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The opinion of the court was delivered by
Mason, J.:
P. T. Foley was arrested upon a charge of paying persons to work (and in some instances to vote) for the election of certain candidates for public office, such conduct' constituting a felony under the corrupt practices act. (Gen. Stat. 1915, §§ 4842, 4343.) A preliminary examination was held before a justice of the peace, by whom he was required to give bond to answer the charge. In thé district court the county attorney asked to be relieved from filing an information, for the reason, among others, that there was not sufficient evidence in his possession to warrant a prosecution. The court made, an order granting the request and the case was dismissed. The complaining witness then applied to other justices of the peace to issue a warrant on a complaint charging the same offenses. Two of them refused to do so, but a third issued a warrant and held an examination, resulting in the discharge of the defendant for want of evidence. A similar complaint was then filed with another justice of the peace, Johnson Wade, who issued a warrant upon which Foley was again arrested. The county attorney filed a written motion asking, and undertaking to direct, that the case be dismissed. The justice of the peace overruled the motion. Foley then brought an action in the district court against the justice of the peace (Wade), the complaining witness, T. B. Ham, and his attorney, A. D. Neale, asking that further proceedings before, the justice be forbidden. Issues were joined, evidence was taken, and judgment was rendered in accordance with the prayer of the petition. The defendants appeal.
1. So far as concerns the justice of the peace the case amounts to an application for a writ of prohibition (or for a judgment or order in the nature of such a writ) forbidding further proceedings in the criminal case on the ground that the county attorney had full right to control the matter, and his direction for a dismissal should have been given effect. The first inquiry is as to the extent of the power of the county attorney in that respect. It is said that the public prosecutor, except as restrained by statute, has absolute control of criminal prosecutions, and .has authority in virtue of his office to enter a nolle prosequi — a virtual dismissal — regardless of the attitude of the court. (32 Cyc. 713; 2 Bishop’s New Criminal Procedure, 2d ed., § 1388; People, ex rel., v. District Court, 23 Colo. 466.) The practice in that respect, however, is not uniform in the different jurisdictions. (Notes, 35 L. R. A. 701; 45 L. R. A., n. s., 1123.) Our statute recognizes the county attorney’s right under ordinary circumstances to refuse to prosecute, by providing that in extreme cases the court may compel him to file an information. (Gen. Stat. 1915, § 7981.) And his need to exercise discretion in determining whether prosecutions shall be brought is made the ground of exempting him from civil liability for wrongfully instituting them. (Smith v. Parman, 101 Kan. 115, 165 Pac. 663.) He is made the representative of the state in litigation “in the several courts” of his county to which it is a party. (Gen. Stat. 1915, § 2620.) He is required to take charge of a preliminary examination in a felony case only when requested to do so by the magistrate. (Gen. Stat. 1915, § 2624.) The statute contemplates that criminal prosecutions may be .instituted not only without his participation, but without his knowledge, provision being made for the protection of the public against costs in such cases, except upon his statement that prior consultation with him was impracticable. (Gen. Stat. 1915, § 4753.) Under statutes quite similar to ours it has been held that a court may by mandamus compel a sheriff to serve a warrant in a felony case, notwithstanding the county attorney had instructed him not to do so. (Beecher v. Anderson, 45 Mich. 543.) This decision has been cited in support of the doctrine that the county attorney does not have absolute control of a criminal case. (32 Cyc. 714; 23 A. &E. Encycl. of L. 275.) It is based, however, upon the conclusion that in the statute making it his duty to “appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications, and motions, whether civil or criminal, in which the state or county may be a party or interested,” the phrase “the courts of the county” is intended to refer only to courts of record. In a situation closely analogous to that presented in the Michigan case this court held that the direction of the county attorney was" controlling. A warrant charging a felony was placed in the hands of the sheriff. The county attorney directed him to return it and he did so. More than two years later the defendant was arrested upon the same warrant and claimed the benefit of the statute of limitations. The question presented was whether the prosecution was to be regarded as pending between the return of the warrant already referred to and its reissuanee, and this was treated as depending upon the power of the county attorney to control it. This court' held that the bar of the statute had fallen, saying:
“The county attorney is the representative of the state in criminal prosecutions, and, subject only to a limited direction by the court, controls such actions. . . . And when the sheriff, by the direction of the county attorney, returns a warrant which has been placed in his hands for service to the court that, issued it, this ends the official connection of the sheriff with such warrant, renders the warrant functus officio, and effects an abandonment of the prosecution by the state.’’ (In re Broadhead, 74 Kan. 401, 405, 86 Pac. 458.)
Notwithstanding that the county attorney is not required to attend a preliminary examination unless asked to do so, we hold that he may appear if he sees fit, and when he does his authority is as complete as though his presence had been requested. The proceeding, while somewhat informal, is an' adversary one. It is accusatory or litigious rather than inquisitorial in character. It has something of the aspect of a voluntary investigation conducted by the magistrate, while exercising a function somewhat analogous to that of a grand jury, to determine whether or not there is ground for a prosecution. But under our practice it is quite different from that. It constitutes actual litigation between opposing parties. Testimony taken at such a hearing may be used at the trial in the district court, if the attendance of the witness cannot be had (The State v. Chadwell, 94 Kan. 302, 146 Pac. 420; 8 R. C. L. 213, 214), a course which could scarcely be justified if the proceedings were not essentially judicial — a trial between opposing parties presided over by a judge. The state is the plaintiff, and the state’s attorney, rather than the complaining witness or any other unofficial person, is entitled to speak in its behalf, and decide upon the course to be pursued in its interest.
“Unquestionably, a private individual has no longer any right to prosecute another for crime, — no right to control any criminal prosecution when once instituted. A criminal prosecution is a state affair, and thé control of it is in the public prosecutor. . . . The purpose of a public prosecution is to prevent the use of the criminal law to gratify private malice or accomplish personal gain. This purpose is fully sub-served when the control of the case is with the county attorney.” (State v. Wilson, 24 Kan. 189, 192.)
“The law makes it the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are alike under his supervision and control. (The State v. Wells, 54 Kan. 161, 165, 37 Pac. 1005.)
“No one but the county attorney, or the attorney-general on proper occasion, or persons deputized by them, may control prosecutions within a county.” (The State v. Snelling, 71 Kan. 499, 506, 80 Pac. 966.)
It is true that this interpretation of the law places in the hands of the county attorney a very large power, which is susceptible of abuse. That, however, is a necessary attribute of most governmental powers. In the case of a public officer some protection is afforded by statutes making official misconduct a crime (Gen. Stat. 1915, § 3588), and a basis'for ouster (Gen. Stat. 1915, §7603). The other theory — that the control of a felony prosecution until it reaches the district court, so far as a plaintiff may exercise control, rests with the prosecuting witness, or with any one who is under no official responsibility — would imply that the county attorney might be seriously embarrassed in the attempted enforcement of the criminal law by the interference of individuals, actuated by' mistaken judgment or perverse purpose. For instance, a private prosecutor, if in charge of a preliminary examination upon a charge of gambling, might call the keeper of the gaming house and permit him to give such testimony as under the statute (Gen. Stat. 1915, § 3652) would result in his own complete immunity. Clearly the selection of witnesses to be used in that manner should rest with the county attorney, and not with individuals or with the justice of the peace. The po^ver effectively to control a prosecution involves the power to determine when and before what tribunal it shall be brought and maintained, and therefore, whether it should be discontinued. We conclude that the justice of the peace should have acted upon the direction of the county attorney and dismissed the case.
Two federal cases militate somewhat against this conclusion, but they are based upon statutes not entirely like those of Kansas. (United States v. Schumann, 2 Abbott [U. S.] 523; The United States v. Scroggins, 3 Woods [U. S. Cir. Ct.] 529.)
2. It is contended that even if the justice of the peace ought to have dismissed the case upon the direction of the county attorney, his refusal to do so was a mere error for .which prohibition is not an available remedy. It is doubtless true that upon the filing of the motion to dismiss the justice did not lose jurisdiction in such sense as to render absolutely void everything that he' thereafter did in the case. Prohibition is frequently spoken of as properly invoked only where it is sought to restrain a judicial officer from an act wholly beyond his jurisdiction. But expressions indicating some modification of this are not uncommon. Thus it is said that “the writ will, lie in all cases either of abuse or usurpation of jurisdiction by an inferior tribunal” (32 Cyc. 604) ; and that
“Three conditions are necessary to warrant the granting of the relief: first, that the court, officer or person against whom it is sought is about to exercise judicial or quasi-judicial power; second, that the exercisetof such power is unauthorized by law; third, that it will result in injury for which no other adequate remedy exists.” (High’s Extraordinary Legal Remedies, 3d ed., § 764a.)
In practice the writ is often used to prevent an act which in a strict technical sense is within the jurisdiction of the officer, but contrary to law — one which he .has the power to perform; but not the legal right. Thus in a recent textbook it is said':
“The doctrine is universally held that a judge who has an interest in the subject matter of the litigation, is disqualified from hearing and adjudging the case, and where he attempts to do so, prohibition will be granted to restrain him.” (2 Bailey on Habeas Corpus, § 360.)
(See, also, State, ex rel. Jones, v. Gay, 65 Wash. 629.)
Yet the disqualified judge is not wholly without jurisdiction, and if he acts the resulting judgment is not void, nor open to collateral attack. (Jones v. Insurance Co., 85 Kan. 235, 116 Pac. 484.) Merely by way of illustration, it may be mentioned that the writ has been successfully invoked to correct an order requiring the production of records at an unreasonable place (Equitable Life Assur. Society v. Hardin, 166 Ky. 51); to stay proceedings before a judge who had declared his intention to rule in a particular way (Cullins v. Williams, 156 Ky. 57); to enforce the rule of res judicata (State, ex rel. Burr et al., v. Whitney et al., 66 Fla. 24; State, ex rel., v. Williams, 221 Mo. 227); to restrain the hearing of a will contest because it was brought too late (State, ex rel. Wood, v. Superior Court, 76 Wash. 27; McVey v. Butcher, 72 W. Va. 526); to prevent the taking of evidence on matters not pertinent to the issue (Miller v. Superior Court, 25 Cal. App. 607); to prevent the splitting of a cause of action (Bullard v. Thorpe et als., 66 Vt. 599); and even to prevent separate actions upon several notes of the defendant (James v. Stokes, and als., &c., 77 Va. 225).
The district court, besides having general original jurisdiction of all matters not otherwise provided for, and jurisdiction in cases of appeal and error from all inferior courts and tribunals, is specifically given by the statute “a general supervision and control of all such inferió!- courts and tribunals, to prevent and correct errors and abuses.” (Gen. Stat. 1915, § 2957.) The clause quoted .can hardly be regarded as referring only to appellate jurisdiction, because that had already been provided for, and because the phrase “to prevent . . . errors and abuses” points to a preventive and not a corrective remedy, If it was the duty of the justice of the peace to dismiss the criminal case upon the motion of the county attorney (and we have determined that it was), he acted beyond his legal authority in going ahead with the hearing, and we think prohibition was an appropriate method by which to require him to conform to the direction which we have decided the public prosecutor had a right to give.
It is true the plaintiff in this case might have submitted to the preliminary examination and given bond, if required to do so, for his appearance in the district court, and awaited his discharge upon the refusal of the county attorney to file an information, but that remedy manifestly might have been far from adequate.
3. A suggestion is made that the plaintiff had no right to resort to prohibition because he had not first invoked relief at the hands of the justice of the peace. When the justice had refused to dismiss the prosecution at the instance of the county attorney, a similar request by the accused would obviously have been a mere formality, the futility of which is demonstrated by the defense made in the district court on the ground that the county attorney did not have control of the case. (State, ex rel., v. Bright, 224 Mo. 514.)
4. In the first proceeding against Foley the docket of the justice did not recite findings that an offense had been committed and that there was probable cause to believe him guilty, facts that the statute requires to be shown in order to warrant binding him over. This is referred to by the defendants in this action as casting a doubt upon the jurisdiction of the dis trict court in that case. The transcript showed that Foley was required to give bond for his appearance in the district court for trial, and this, with the giving of the bond, was sufficient for jurisdictional purposes. (The State v. Tennison, 39 Kan. 726, 18 Pac. 948.)
5. The decision that the order against the justice of the peace was properly granted renders of little practical consequence the question whether error was committed in rendering judgment against the individual defendants. As to them the action was one of injunction, and was maintainable for the same reasons that justified the prohibition against the officer, unless by reason of the rule which has sometimes been announced, that injunction against the prosecution of a criminal action will not lie except for the protection of property rights. (22 Cyc. 904; 14 R. C. L. 428.) This rule seems to be founded on these considerations: The accused has usually a fairly adequate remedy by making- his defense in the criminal action; a court of equity has no jurisdiction of criminal matters, that subject being committed to courts of law; as a matter of public policy the courts ought not to interfere with the representatives of the public seeking the enforcement of the law. In the case of .numerous, repeated and yexatious prosecutions it is evident .that the remedy of meeting the charges in the courts where they are brought may not be entirely adequate; where the same court has jurisdiction of legal and equitable matters, distinctions founded on that difference are of little importance; and with respect to an injunction which runs not against the public prosecutor, but against individuals who seek to direct the machinery of the criminal law in opposition to his judgment, the objection based on a reluctance to embarrass officers in discharging their duty to the government does not apply. A court of equity would seem to be as responsive to a call for the protection of personal rights, in an appropriate case, as to one for the protection of rights relating to property. In Brown v. City of Abilene, 93 Kan. 737, it was said:
“The remedy of injunction may be employed to protect personal and property rights, although it may operate incidentally to restrain a prosecution under an invalid ordinance.” (Syl. ¶3.)
The case on its merits was decided upon oral evidence, and any debatable inferences of fact must be resolved in favor of the plaintiff. So far as the decision turns upon the exercise of discretion, the action of the district court must control. We conclude that no error is shown in any part of the court’s order.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In a petition for a rehearing, the defendant challenges the correctness of a statement made in the opinion found in Burzio v. Railway Co., 102 Kan. 287. That statement is as follows: “It is urged that the findings of the jury-are contradictory to each o^her.” (p. 292.) The defendant contends that this matter was not presented. An examination of the defendant's brief discloses that the contention is correct. This matter was not urged as a ground for reversing the judgment of the trial court. The opinion that has been rendered is modified by striking out all reference to the findings of the jury being contradictory to each other. With this modification the opinion is adhered to.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a judgment sustaining a demurrer to the plaintiff’s evidence.
The plaintiff was engaged in harvesting grain in a field adjoining a public highway, and was using a binder drawn by four horses. The defendant passed along the public highway on a motorcycle, moving at a rate of forty miles an hour. The plaintiff claimed that his horses became frightened from the noise of the exhaust or muffler on the motorcycle and ran away, breaking the binder to which they were hitched, injuring one of the horses so that it died, and throwing the plaintiff from the seat of the binder, resulting in his injuries. It was the plaintiff’s contention that the defendant was wantonly reckless and negligent in traveling at such a rate of speed on the highway with the exhaust of the motorcycle open. The action was sought to be maintained pn the theory that plaintiff was entitled to recover by reason of the provisions of section 7' of chapter 65 of the Laws of 1913, which reads in part as follows r
“No person shall operate a motor vehicle on any highway outside of a city or village at a rate of speed greater than is reasonable and proper, having regard for the traffic and use of the road and the conditions of the road, nor at a rate of speed such as to endanger the life or limb of any person; provided that a rate of speed in excess of twenty-five miles an hour shall be presumptive evidence of driving at a rate of speed which is not careful and prudent in case of injury to the person or property of another.”
The statute has been amended and the limit of speed outside towns and villages fixed at forty miles per hour (Laws 1917, ch. 74, § 5), but the act of 1913 was in force and effect at the time of plaintiff’s injury. The plaintiff testified that he had not heard any noise except that made by the binder, but saw something pass on the highway like a streak, when the horses gave a jump, threw up their heads, and started to run. The evidence showed that the horses attached to another binder four or five rods in front of the one plaintiff was operating were not affected by the noise of the motorcycle.
The defendant’s 'contention, which was upheld by the trial court, is that the statute was enacted solely for the protection of persons using the public highways. The title of the act shows that it relates to automobiles and other motor vehicles “regulating their use and operation upon the streets and highways.” Section 7 forbids any person to “operate a motor vehicle on any highway outside of a city or village at a rate of speed greater than is ‘reasonable and proper, having regard for the traffic and use of the road and the conditions of the road,”"or “at a rate of speed such as to endanger the life or limb of any person.” In another part of the same section, defining the rate of speed at which such vehicles shall be operated within any city or village, it is declared that “no motor vehicle shall be operated, at a speed greater than twelve miles an hour or at a rate of speed greater than is reasonable and proper, and having regard for the traffic and use of the road, and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person.” ’ In this section, also, the person operating a motor vehicle is required to reduce the speed to a rate not exceeding eight miles an hour upon approaching railroad crossings and intersections of highways, or a bridge or a sharp curve or a steep descent, or upon! approaching “another vehicle or an animal or person outside of any village or city,” and there the rate of speed is limited to eight miles an hour until the person is “entirely past such intersection, bridge, curve, descent, vehicle, animal or person.” Section 8 of the. act makes it the duty of the person operating such motor vehicle, “at request or on signal by putting up the hand, from a person riding or driving a restive horse or other draught or domestic animal,” to bring such motor vehicle “immediately to a stop,” and “if traveling in the opposite direction to “remain stationary so long as may be reasonable to allow such horse or animal to pass.”
In section 9 the act requires the motor vehicle to be equipped with good and sufficient brakes and with a suitable bell, horn or other signal, and to exhibit “during the period from one-half hour after sunset to one-half hour before sunrise, one or more lamps, showing white lights visible within a reasonable distance from the direction toward which such vehicle is proceeding, and a red light visible from the reverse direction.”
We think it is obvious that the trial court’s construction of the statute is the correct one. The legislative purpose was to protect a distinct class of persons, that is, users of public highways. The safety of a person in a field adjoining a public highway was not within the contemplation of the legislature. The requirement of a bell or horn and the use of signals and of lamps in front and in the rear, and the giving of signals from the direction towards which such vehicle is proceeding, and a different signal visible from the rear, could only have been intended for the protection of persons traveling on the highway. The duties imposed by law upon the driver of a motorcycle require him to keep his eyes upon the road and to look ahead for the purpose of protecting other persons using the public highway from probable injury resulting from fast driving or other negligence. Since the statute Imposed upon defendant no duty to the plaintiff, the evidence failed tq show negligence. It is only where the defendant wrongfully fails to perform some duty owed to the plaintiff that a cause of action based upon negligence can exist. (Tawney v. Railway Co., 84 Kan. 354, 114 Pac. 223; Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558.) Moreover, there was no evidence tending to show that a motorcycle running at forty miles an hour would make any more noise, or be any more likely to frighten a horse in an adjoining field, than one running at twenty-five miles an hour, which was the rate of speed .allowed by the statute. Counsel for the plaintiff admit they have not been able to find any case or precedent directly in point, and we have found none, but on the general principles upon which actions for negligence are based, we are satisfied that the plaintiff cannot recover.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, J.
This was an action to recover damages for personal injuries suffered by the plaintiff as a result of an automobile collision. The trial court sustained a demurrer to the amended petition and the appeal is from that ruling.
With one exception all issues raised by the appeal are the same as those involved in Crawford v. Miller (No. 36,885), 163 Kan. 718, 186 P. 2d 116 (this day decided), and are determined by what is said and held in the decision.
The exception to which we have referred comes from the fact appellant’s petition discloses he was sitting in the Crawford automobile, which was disabled and hacl been standing on the wrong side of the highway for a period of approximately thirty minutes, at the time of the occurrence of the collision resulting in his injuries. Appellee contends this factual statement compels the sustaining of the demurrer on the basis it convicts appellant of contributory negligence. His position on this point is not sound. Under all the facts set forth in the petition which will be found quoted at length in the opinion of Crawford v. Miller, supra, we have little difficulty in concluding that whether appellant was guilty of any negligence at all in continuing to «sit in the automobile in which he had been riding was a question of fact on which reasonable minds might reach different conclusions and therefore not determinable as a matter of law.
Based on what has just been stated and our decision in Crawford v. Miller, supra, we hold the trial court erred in sustaining appellee’s demurrer to the petition.
The judgment is reversed.
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The opinion of the court was delivered by
Wedell, J.
The defendant was prosecuted and convicted under the provisions of G. S. 1935, 21-435. He was sentenced under the habitual criminal act, G. S. 1945 Supp. 21-107A., His appeal does not involve the sentence, imposed pursuant to that act but .pertains to errors alleged to have been committed in the trial of the action.
Appellant contends the verdict cannot stand for the reason one of the jurors was a nonresident of Logan county in which the alleged offense was committed and tried; that section 10 of our bill of rights guarantees a trial by “an impartial jury of the county or district in which the offense is alleged to have been committed.” Our attention is directed to In re Oberst, 133 Kan. 364, 299 Pac. 959, in which it was held:
“R. S. 62-1322 does not give the district court authority .to change the venue of a criminal prosecution pending before it without the consent of and over the .objection of the defendant.
“Section 10 of the bill of rights of the Constitution of Kansas guarantees to one charged with crime the right to be tried by a jury of the county where the offense is alleged to have been committed, and any statute which contravenes that right is unconstitutional.” (Syl. HU 1, 2.)
It is observed that in the Oberst case the defendant was compelled to go to trial without his consent in a county entirely outside the one in which the offense was alleged to have been committed.
In the instant case defendant was tried in Logan county in which the offense was alleged to have been committed. The one juror, a farmer, concerning whom complaint is made, had lived in Logan county for six years prior to the trial and also until approximately one month prior to the trial. He then moved across the line into the adjoining county of Gove. The pertinent part of his voir dire examination was:
“Q. You may state your name. A. Elmer Russell.
“Q. Where do you live? A. Monument.
“Q. How long have you lived in Logan County? A. About 6 years.”
The pertinent testimony of the juror on motion for a new trial was — ■
“Q. Where do you live, Mr. Russell? A. -I live over in Gove County.
“Q. Now? A. Yes.
“Q. Where did you live at the time you sat on the. jury here in this case. A. Gove County.
“Q. How long had you lived in Gove County at the time you were a juror in this matter? A. Well, I don’t'remember, a month or so.'
“Q. You lived up there by Monument? A. Yes, sir.
“Q. And in your examination as a juror, you said your post office address was Monument, didn’t you? A. I don’t remember.
“Q. Where does your family live now? A. Down there where I live.
“Q. Whose place are you on? A. It is known as the Jordan place.”
There is no contention Russell was not legally selected for jury service in Logan county prior to moving to Gove county.
G. S. 1935, 43-102, in part, provides:
“They shall select from those assessed on the assessment roll of the preceding year suitable persons having the qualifications of electors. . . .”
There is no intimation or contention Russell Sought his selection as a juror or that he deliberately misrepresented his residence on his voir dire examination. The town of Monument is located in Logan county. While the evidence does not disclose how far across the line in Gove county his new residence was, appellee advises, and appellant does not contend otherwise, that it was only a few miles from where he previously resided in Logan county. It also will be observed that on the motion for a new trial it was indicated the juror “lived up there by Monument” and that he did not remember whether on his voir dire examination he stated his post-office address was Monument. These various circumstances, of course, are mentioned only to show there was no evidence of the juror’s bad faith. It is common knowledge that farmers when stating their residence ordinarily mention the town nearest their residence, their post-office address or the town in which they trade. Appellant does not contend Russell did not prove to be an entirely fair and impartial juror. A review of the record touching the motion for a new trial, discloses no evidence that appellant or his counsel did not know where Russell resided or that in the exercise of reasonable diligence they could not have discovered such fact or that the juror would have been chailenged had they known it. Appellant’s peremptory challenges were not exhausted. It .is not claimed the state knew Russell had moved into Gove county. Appellant merely argues the verdict should be set aside for the reason the juror did not actually reside in Logan county at the time of the trial.
Entirely unlike the Oberst case defendant, in the instant case, was tried by twelve jurors who were legally selected for jury service pursuant to law and who at the time of their selection were residents of the county in which the alleged offense was committed. If any of the • jurors were later disqualified for any reason appellant was privileged to exercise his statutory right of challenge.
In State v. Jackson, 27 Kan. 581, the defendant was prosecuted for murder in the first degree. It was held the fact two jurors Were not electors did not absolutely disqualify them but that it was a ground for challenge. It was further held that an objection to such disqualification was too late when made after the verdict had been rendered. It was emphasized that this was particularly true where the disqualification results in no prejudice to any substantial right.
In State v. Ready, 44 Kan. 700, 26 Pac. 58, it was held:
“Where an objection to the competency of a juror, namely, that he had served as a juror in the same court in another case within the preceding year, is first raised after verdict, and the party objecting fails to show that the ground of challenge was unknown to him and his counsel when the juror was accepted, or that he would have exercised his right of challenge if he had known that the cause therefor existed, or that he has suffered any prejudice by the retention of the juror, the objection will not be available for the purpose of obtaining a new trial.” (Syl.)
In Schuchmann v. Kansas City, 156 Kan. 282, 133 P. 2d 132, the facts touching the question of a juror’s residence in Wyandotte county were in dispute. After indicating there were facts upon which the trial court could properly conclude the juror’s residence was in that county, we said:
“More than that, since the question had not been raised until after the verdict the rule seems to be that it was too late. (See State v. Jackson, 27 Kan. 581; State v. Hilbish, 126 Kan. 282, 284, 267 Pac. 1109, and authorities there cited.)” (p.284.)
See, also, Leeper and Powell v. State, 29 Tex. Ct. App. 63, 14 S. W. 398; Rockwell v. Elderkin, 19 Wis. 388; People v. McFarlane, 138 Cal. 481, 71 Pac. 568; 39 Am. Jur., New Trial, § 42.
Appellant also relies on Kerby v. Hiesterman, 162 Kan. 490, 178 P. 2d 194. The' facts there went directly to the question of the juoror’s partiality. His answers on the voir dire examination were false. They prevented further inquiry concerning a fact which went directly to his possible, or probable, partiality. In the instant case there is no contention the answers of the juror were made in bad faith or that he was not an entirely impartial juror.
Appellant complains an attorney not employed by the county commissioners but who was merely selected by the county attorney to assist him should not have been permitted to participate in the prosecution. There is nothing in the record to indicate the county attorney was not at all times in full control of the prosecution or that any prejudice resulted to appellant’s substantial right by reason of such assistance. The assisting attorney had served as county attorney during the regular county attorney’s military service overseas pursuant to the provisions of G. S. 1945 Supp. 73-215. The mere fact counsel was willing, under the circumstances, to assist the county attorney without employment and compensation by the county is not ground for disturbing the verdict.
Appellant contends the court erred in. overruling his motion to elect upon which of two separate and distinct affrays the state would rely for conviction. He contends the first affray constituted merely assault and battery which resulted in no substantial injury; that the second affray which resulted in serious injuries was not caused by the use of appellant’s fists or feet, as charged in the information, but by a tackle which resulted in Cloyd’s head striking the cement sidewalk. The evidence amply disclosed appellant deliberately attacked Cloyd and that while technically it might be said there were two assaults there was in legal contemplation only one affray. The two assaults were part of one and the same complete affray. The time between the attacks was momentary. It lasted only long enough for some of the bystanders to separate appellant from his victim. Appellant immediately made the second attack. The motion to elect was properly overruled.
Appellant argues his demurrer to the state’s evidence should have been sustained. The substance of this contention is likewise that only the offense of assault and battery was established by the evidence. We cannot agree. The injuries sustained by Cloyd, including his serious skull injury, were the result of the complete affray. Appellant’s vicious assault with his hands, fists and feet was terminated only after he had beaten, tackled and thrown Cloyd onto the cement sidewalk, kicked him and left him helpless and unconscious. The evidence was entirely sufficient to go to the jury on the charge of assault with intent to kill.
Appellant contends the court erred in admitting evidence of another offense in connection with the cross-examination of appellant’s wife -and that a specially requested instruction should have been given relative to the effect of such testimony. In the course of appel lant’s wife’s cross-examination she was asked by the state whether she had not lived with appellant prior to 'their marriage. Appellant’s counsel did not object to the question on the ground it was an attempt to prove appellant guilty of another and unrelated offense. In fact, the objection was not on any legal ground. Appellant’s counsel only characterized the question as contemptible. The court overruled the objection for the reason it was not a proper objection. No other objection was made. Thereupon the witness answered the question in the affirmative. There was no further inquiry. There was no motion to strike the answer. In the absence of some specific legal ground for the objection the order overruling it is not reviewable. The state concedes the offense was not similar to the one for which appellant was on trial and that the question was not intended to show the commission of another offense by appellant. The state contends it had the right to cross-examine this witness for the purpose of testing her credibility. For that purpose the question was, of course, competent. (State v. Rafferty, 145 Kan. 795, 800, 67 P. 2d 1111.)
We think the court might well have given the requested instruction that the testimony of the witness could be considered only for the purpose of testing her credibility. There is, however, no indication the testimony was stressed and appellant does not contend the state argued to the jury that it could be considered for any purpose other than to test the credibility of the witness. Under the circumstances of this case we are not inclined to grant a new trial by reason of the court’s failure to give the requested instruction.
It is urged the court erred in admitting technical medical testir mony of an osteopath, without proper foundation having been laid, relative to the nature and extent of injuries suffered by Emil Cloyd, the assaulted person, and in admitting testimony of the witness relative to what certain X-ray plates, made by agreement of the parties'by the staff doctor at the St. Thomas Hospital of Colby, disclosed concerning injuries to Cloyd’s skull. Touching the first point of the objection we need only say the testimony did not pertain to technical medical subjects but to anatomy, the fracture of the skull and its effects on the patient. The witness was a graduate of the American School of Osteopathy at Kirksville, Mo. While in school the witness had examined hundreds of X-ray plate’s for the purpose of familiarizing himself therewith and to be able to understand what they disclosed. He also had observed and studied X-ray plates during his practice but the latter experience had been much more limited than it was during his educational training at Kirksville.
The testimony pertained to the witness’s own examination of Cloyd’s skull. With respect to the reading of X-ray plates the record amply discloses the educational training and experience of the witness combined clearly qualified him to testify concerning the fractures disclosed by the X ray in question.
Counsel for appellant cross-examined the witness at length on all parts of his direct examination. ■ No other witness was produced to dispute any of his testimony. The objection to his testimony was properly overruled.
It is argued the verdict cannot stand for the reason the jury was guilty of misconduct in that it considered evidence outside the record, namely, that appellant drank a good deal and that when he did so he was inclined to fight. The point is not well taken. Testimony of the jurors on motion for a new trial disclosed they discussed these facts but that they were developed in the course of the trial and that counsel for appellant argued those facts to the jury.
It is urged the trial court erred in various instructions given and in refusing to give certain requested instructions. A careful review of all instructions given convinces us they correctly stated the law of the case and that reversible error was not committed in refusing the requested instructions. The complaints are too technical. Un-’ der the express provisions of G. S. 1935, 62-1718, appellate courts are required to render judgment without regard to technical errors which do not affect the substantial rights of the parties.
Appellant asserts the trial court erred in accepting a verdict improper in form. The verdict of guilty conformed to the pertinent language of the statute. The intent of the jury was unmistakable. That was sufficient.
It is finally contended the motion for a new trial should have been sustained. The grounds of the motion have been treated under the respective complaints. The record in this case leaves no doubt the verdict was supported by strong and convincing evidence. We think appellant had a fair and impartial trial.
The judgment is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Parker, J.
This appeal arises from a judgment of the district court of Kiowa county, in an action properly transferred from the probate court of such county, denying the allowance of a claim against the estate of a deceased person.
Rees Carr, an aged bachelor, and his maiden sister, Martha Carr, who was much older, resided together in the city of Haviland, Kan., in April, 1942. Both were, and until the date of their death remained, physically incapacitated and unable to properly care for themselves. Miss Carr died on January 17, 1946. Mr. Carr died on April 25,1946. Some .months prior to their deaths, although Miss Carr owned no property at the time or thereafter, the brother and sister joined in the execution of a last will and testament. That instrument, on appellant’s own petition, was admitted to probate on the 29th day of May, 1946, as the last will of Rees Carr.
On August 31, 1946, the appellant, who was a niece of the testator, filed a claim against his estate. We are interested only in matters asserted by her as grounds for its allowance. With respect to them such demand reads:
“For personal services rendered as housekeeper and practical nurse, to Rees Carr and Martha E. Carr, deceased, at the special instance and request of the decedent Rees Carr, from the 3rd day of August, 1944, to the date of decedent’s death on April 25, 1946, for which services the decedent Rees Carr agreed to pay a reasonable compensation; that a reasonable charge for the services rendered is the sum of $30 per week, or a total of $2,700.
“That on or about the 3d day of April, 1942, the said Rees Carr asked the petitioner to come into the home of the said Rees Carr and Martha E. Carr and keep house for them, and give them such attention and- care as they should require so long as they should live, and agreed with' the petitioner that she should be reasonably compensated for the services rendered.
' “That the petitioner agreed to perform the services requested, and at that time went to the home of the said Rees Carr and Martha E. Carr; that she lived in their home and performed the services agreed upon; ”
Thereafter, the appellee, as special administrator of the estate of Rees Carr, and the appellees, The Friends Africa Gospel Mission of Kansas Yearly Meeting of the Society of Friends and The Friends Bible College, of Haviland, Kan., who are beneficiaries under the will of such testator, filed identical answers in which they stated they had no personal knowledge of the appellant’s claim which permitted them to either deny or admit its validity and requested the claimant be put on strict proof thereof.
With issues joined as heretofore stated, the cause was submitted to the trial court upon the evidence adduced by the parties. In due time that tribunal rendered its judgment denying the claim, which judgment according to the journal entry, was based upon the following findings:
“1. That the claimant, Edna Kinser, did not prove an express contract between herself and Rees Carr.
“2. That the claimant, Edna Kinser, has been' compensated for her services so rendered by reason of the bequest contained in the will of Rees Carr, deceased, in the sum of one thousand dollars($l,000.00) to the said claimant, Edna Kinser, and by reason of the conveyance of real property made by the said Rees Carr to the said Edna Kinser in his lifetime.
“3. That by reason thereof claim should be and the same is' hereby denied.”
Appellant appeals from the judgment charging that the court erred in its findings 1 and 2 and in overruling her motion for a new trial.
The grounds relied upon by appellant as error require an examination of the facts disclosed by the evidence on which the trial court’s judgment was based. Such facts are not in controversy and for that reason will be stated in narrative form rather than in detail.
At the outset it can be stated the appellees concede that on all dates in question both Rees and Martha Carr were in a pitiable condition, that-appellant cared for them in a laudable manner and that the claim made by her for services was reasonable. Therefore, our summarization of the facts will be limited strictly to the evidence pertaining to the contract upon which the appellant predicates her claim and such other matters as have to do with whether it was a proper and legal claim against her uncle’s estate. With respect to such matters the record discloses: ■
In April, 1942, Martha Culver, a niece, who had been caring for the Carrs, decided that she could no longer perform that obligation. She had a conversation with Rees Carr wherein she suggested the possibility of getting her sister, Mrs. Kinser, the appellant, to come to their home and look after them. As a result of that conversation Mr. Carr instructed Mrs. Culver to write appellant and inquire if she would come and care for him, and aunt Martha, and advise her that if she would do so he would see that she was well paid and cared for. Mrs. Culver wrote the letter and in response to such communication the appellant came to the Carr home in April, 1942, and remained there until Mr. Carr died in 1946, during all of which time, as heretofore noted, she looked after and cared for her aunt and uncle. For a year after she came to the home, or perhaps until shortly prior to August, 1944, she did outside work in the community for compensation. Nevertheless, she cared for and looked after the Carrs. From August, 1944, to the date of Mr. Carr’s death, her entire time was devoted to that obligation.
Prior to coming to the Carr home, Mrs. Kinser had been living with her children and had no home of her own. After taking up her abode with the Carrs she was given her board and room without charge but bought her own clothing. She was never paid any wages for her services. In fact, strange as it may seem, there is no evidence that she ever talked with Mr. Carr or his sister, or had any conversation with anyone about what wages she was to be paid or what compensation she was to receive for her services. Indeed, the only evidence on that point is to be found in what has been heretofore stated was written to her by her sister Mrs. Culver, at Mr. Carr’s instruction.
Rees Carr and Martha Carr executed the joint last will and testament to which we have heretofore referred on May 14, 1945. Provisions thereof having application to this appeal read:
“Second — We give and bequeath unto our niece, Edna Kinsey (sic), for her care and kindness to us, the sum of one thousand dollars cash.”
On August 8, 1945, Rees Carr executed and delivered a general warranty deed whereby in consideration of “one dollar and love and affection” he conveyed to appellant certain real property in Haviland, Kan., subject to a life estate in himself, being the home in which all parties were living.. Thereafter, on March 15, 1946, 'just a few weeks prior to his death, he conveyed another tract of real estate in Haviland to appellant. That conveyance was also by general warranty deed in which the consideration recited was “one dollar and other valuable considerations.”
In support of the judgment much time is devoted by appellees in their brief to the question whether there was an express contract between the parties. We do not deem it necessary to here pass upon that interesting subject. Assuming there was such a contract there is sound reason why the judgment of the trial court must be affirmed.
Preliminary to the pronouncement of our conclusions on that point it should be said that if there was a contract appellant’s contention it was void under the statute of frauds (G. S. 1935, 33-106), and therefore not available as the basis for claimant’s demand, cannot be sustained.
This court, in Richard v. Kilborn, 150 Kan. 579, 95 P. 2d 545, under circumstances where — as here — the evidence disclosed the contract had been fully performed, rejected such a contention when it held:
“The provision of the statute of frauds relative to contracts, not in writing, which are ‘not to be performed within the space of one year’ is not to be applied to defeat the claim of one who has fully performed his part of an oral contract for personal services and nothing remains to be done under the contract but payment by the party who has received the benefits of the services.” (Syl. ¶ 2.)
For other authorities to the same effect, see Andregg v. Sparrow, 152 Kan. 744, 748, 107 P. 2d 739, and McEnulty v. McEnulty, 146 Kan. 198, 69 P. 2d 1105.
Heretofore we have noted that appellant’s-second specification of error is based upon the premise the trial court erred in holding she had been compensated for her services by reason of the bequest contained in the will of Rees Carr and in the two conveyances made by him to her. We have carefully examined the record with respect to that contention and it would serve no useful purpose to repeat what is to be found there. Summarizing, it reveals that appellant received and accepted the two deeds, the consideration of one being “one dollar and love and affection” and the other being “one dollar and other valuable considerations.” It further discloses that she was a beneficiary under his will in a bequest expressly stated to be for care and kindness (emphasis supplied). There is nothing in the record to show she ever tendered back or offered to return the considerations received by her and she specifically stated she was claiming the legacy under the will. Neither is there any showing in the record that the property already received by her under the deeds and the bequest to which she was entitled under the terms of the will was not a reasonable compensation for her services. In that situation, based upon a contract that merely provided she was to be “well paid and cared for” we have little difficulty in concluding the trial court’s holding that appellant had been' compensated for her services was sustained by substantial competent evidence. It follows there was no error in denying the claim.
We have no quarrel with the authorities cited by appellant which hold that a legacy shall not be deemed a satisfaction for a preexisting debt unless it appears to be the intention of the testator. The trouble is they are not applicable here. The appellant’s bequest expressly provided that it was for “care.” Besides, there were other advancements made by the testator during his lifetime which the trial court properly took into account in determining whether appellant’s claim had been satisfied.
Without passing upon the proposition, because it is neither briefed nor argued, we feel -impelled to suggest the record may present another good reason why the trial court’s judgment should be upheld. It would seem that one who asserts a demand against the estate of a deceased person, based upon a contract and conditions and circumstances such as are here involved, must renounce his legacy and tender back other considerations paid or advanced by the testator in his lifetime in order to avoid application of the principles of the doctrine of equitable estoppel.
Appellant’s final specifications of error has to do with the overruling of the motion for a new trial. His contentions with respect thereto raise no issues other than those' heretofore mentioned.
The judgment is affirmed.
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The opinion of the court- was delivered by
Parker, J.
This is an action to recover death benefits under an accident insurance policy. Judgment -was rendered against the insurance company issuing the policy and the beneficiary named therein who, prior to the date of the institution of the action, had been paid the full amount of the benefits payable under the terms of that instrument. Both insurer and beneficiary appeal.
It will not be necessary to burden our reports with another statement of fact's. relied on by plaintiff in her petition as ground for recovery. They can be found succinctly stated at pages 453 and 454 of our opinion in Geisler v. Mutual Benefit H. & A. Ass’n, 159 Kan. 452, 155 P. 2d 435, and by reference are made a part of this opinion as fully and completely as if they were set forth at length herein.
Eventually, following our decision in the case just cited, the defendants Boyd Messer and The Mutual Benefit Health and Accident Association filed separate answers in the court below. Plaintiff motioned these pleadings and thereafter, pursuant to rulings of the court not here involved, separate second amended answers were filed which, so far as the record shows, were practically alike in form- and substance. In their amended answers defendants allege in substance: That the company issued a combination policy of health and accident insurance on one August Geisler, pursuant to an application signed by him, on which Messer paid the premium; that Geisler- wate a truck driver employed upon the same basis as other employees of Messer; that while so employed he upset the gasoline transport truck he was driving as a result of which he suffered injuries causing his death; that Messer obtained and the company issued such policy of insurance in good faith; that concurrently with the application for its execution Geisler executed a paper entitled “Employee Assignment of Policy Applied For,” a copy of which is attached to plaintiff’s petition; that at the time of making the application for insurance Geisler advised each defendant that he had no interest in the policy and would claim no right, title or interest therein; that the business in which Messer was engaged was transportation of petroleum products, a business of extraordinary hazard, from which Geisler as an employee might have received injuries in his employment and out of which claims on his part might arise against Messer; that in case of death of Geisler in such employment Messer would hold and entertain a feeling of moral responsibility toward payment of expenses in Geisler’s burial as an employee whose death was occasioned by the extraordinary hazards of his employment; that the insurance company prior to the assertion by plaintiff of any claim against it under the policy had paid the full face amount of the death benefit to Messer, the person named by Geisler as beneficiary, and that plaintiff was estopped from claiming any interest in the policy. In addition such answers, after denying Messer had no insurable interest in Geisler’s life and that there had been a wrongful and illegal collection by Messer, and payment by the company of the death benefits under the policy, alleged that if Messer had no insurable interest then, and in that event, the plaintiff had no interest therein.
To the foregoing amended answers the plaintiff filed a reply. In part, omitting numerous denials and admissions not here material, it reads:
“Plaintiff further alleges with regard to Paragraph 7 that a short time after the death of the said August Geisler that the said defendant, Boyd Messer, agreed to and offered to pay the sum of $500.00 and the funeral bill in exchange for a release and prior to the funeral of the said August Geisler advised the widow that she could spend up to $1,000.00 on the funeral by reason of said policy of insurance and has made other similar statements and promises evidencing a feeling of moral responsibility, but after the said- defendant, Boyd Messer, secured payment of said policy of insurance such moral feeling of responsibility ceased to exist and to this date the said defendant has failed, neglected and refused to pay the sum of $1,000.00 as collected or any part thereof and to even pay the funeral expenses, although demand has been made upon him by this plaintiff, and if such a defense ever existed as to plaintiff’s cause of action, the said defendants have waived the same and are now estopped to assert the same at this time and particularly so in that the said funeral bill amounting to $424.95 is now'due and unpaid. That the said defendant, The Mutual Benefit Health and Accident Association, has likewise failed, neglected and refused to pay the proceeds of said policy to this plaintiff, although demand has been made upon said defendant.”
With pleadings in substance as heretofore related the cause was tried by the trial court. That tribunal, after hearing the evidence and consideration of lengthy stipulations of the parties as to conceded facts, made extended findings of fact which appear to be. supported by evidence. In any event they must be so regarded as the parties neither brief nor argue questions pertaining to their sufficiency.
An entirely different situation prevails with respect to the trial court’s conclusions of law, no one of which has the joint approval of the respective parties. They read:
“1. The defendant, Boyd Messer, had an insurable interest in the life of August Geisler, deceased.
“2. August Geisler took out the policy of insurance on his own life and designated Boyd Messer beneficiary.
“3. Boyd Messer recognized his moral obligation to the deceased and to the family of the deceased.
“The Court considers the modern attitude of the courts with reference to such insurance, correctly set out in the following citation:
“ ‘But in this day and under modern and more enlightened practices employers do not throw injured employees to the dogs when the employer has no liability for the injury. Employers do not first stop to inquire whether they are legally liable for the injury, but, at their own expense, or largely so, they take the injured employee to a hospital, or otherwise furnish all necessary and suitable care and attention, for such reasonable time as required; and, if death results, a decent burial is provided — all this although the employer is not legally liable to all. This is sufficient as a foundation for an insurable interest.’ Neely v. Pigford, 181 Miss. 306, 178 S. 913, 122 A. L. R. 1188.
“4. Boyd Messer by reason of the promises and his statement and actions obligated himself to the plaintiff and to the payment of the expenses incident to the death of August Geisler to the extent of the proceeds of the policy of insurance.
“5. Boyd Messer having obligated himself cannot justify his refusal to pay for the reason that the'plaintiff would not execute a release which embodied waivers and conditions in excess of the amount of payment to be made.
“6. The defendant insurance company was bound to notify plaintiff of settlement.-
“7. The plaintiff has judgment against each defendant in the sum of ©24.94 and costs.”
' The general judgment rendered against the defendants conforms with the conclusions of law. Subsequently, on the theory it was authorized by the provisions of G. S. 1935, 40-256, the trial court awarded plaintiff an attorney’s fee and directed the defendant insurance company to pay it as a part of the costs of the action. By virtue of the notice of appeal and specifications of error both judgments are subject to appellate review.
Before giving consideration to the fundamental issues involved we pause to note the record is replete with copious trial and post-trial motions filed by the astute and capable counsel for the re-. spective parties, also rulings of the trial court thereon. Both rulings and motions have been given careful attention. It suffices to say that to treat them in detail would not affect our ultimate decision on the merits and only result in needless prolongation of this opinion. We therefore pass them by without discussion or further comment.
From what has been related it is apparent the primary legal question raised by the appeal, on which all others depend regardless of how they are presented or argued, is one of insurable interest. We therefore proceed directly to its decision.
Boiled down appellee’s position on this point is predicated upon the proposition that Messer took out a policy of insurance on Geisler’s life making himself beneficiary, that Messer had no such insurable interest in'Geisler’s life as would permit him to become the legal beneficiary, and that he had no right to collect, and the insurance company no authority to pay him, the death benefits payable under the terms of the policy as a result of Geisler’s death.
'It must, of course, be conceded the general rule is that an insurable interest is necessary to the validity of an insurance contract, regardless of whether such contract pertains to property or life, and if no such insurable interest exists the contract is void.and unenforceable. (44 C. J. S. 869, § 175; 29 Am. Jur. 289, § 318.)
Following such rule and with particular reference to life insurance cases, since this action is to be determined by rules applicable thereto (Geisler v. Mutual Benefit H. & A. Ass’n, 159 Kan. 452, 454, 155 P. 2d 435), this court has repeatedly held that a person who has no insurable interest in another’s life cannot take out insurance thereon (Life Ins. Co. v. Sturges, 18 Kan. 93; Life Ins. Co. v. Mc Crum, 36 Kan. 146, 12 Pac. 517; Thomas v. Connecticut Mutual Life Ins. Co., 124 Kan. 159, 257 Pac. 727; Jaklevic v. Supreme Lodge of Fraternal Brotherhood, 131 Kan. 203, 207, 289 Pac. 467.) Thus in Life Ins. Co. v. McCrum, supra, we held:
“A person who has no insurable interest in another’s life cannot recover upon an insurance policy on such life, which is purchased during the lifetime of the insured, as a policy so obtained is a mere wager, and void.” (Syl. ¶ 1.)
An examination of the decisions just cited reveals that in this state, at least, the doctrine holding such contracts void is founded upon considerations of public policy, the principal reasons for its pronouncement being (a) that they are speculative or wagering in character and {b) that they afford an incentive to crime in that where close blood relationship is lacking the person to be benefited by the policy is interested in the death, rather than the life of the insured.
It has been well and frequently said that an “insurable interest” is sui generis, and peculiar in its texture and operation. (44 C. J. S. 870, § 175 [b]; 1 Couch on Insurance 759, § 293.) Therefore, it is not surprising that in the authorities there exists a great divergence of opinion as to when it exists with respect to a beneficiary who is not a close relative. Evidence of this lack of unanimity is to be found in all well-recognized legal treatises and textbooks.
In 44 C. J. S. 903, 905, § 203 (a), we find the following statement:
“It is difficult to define with absolute precision what will in all cases constitute an insurable interest in the life, of a person, so as to take a contract of insurance out of the class of wager policies, the authorities differ to some extent on the question of what, constitutes the interest requisite to consititute an insurable interest supporting a policy of life insurance, and generally each case must depend for solution on its own particular facts. Certain general rules, however, may be formulated. Stated concisely, an insurable interest in the life of a person is an interest in having the life continue; a person has an insurable interest in the life of another where there is a reasonable probability that he' will gain by the latter’s remaining alive, or lose by his death. Stated more comprehensively, an insurable interest exists where there is reasonable ground, founded on the relations of the parties to each other, either pecuniary or contractual or by blood or affinity, to expect some benefit or advantage from the continuance of the life of insured; and unless there is a reasonable pecuniary interest, or a close tie by blood or marriage, justifying the expectation of benefit or advantage from the continued life of insured, a policy of insurance taken out on the life of another is condemned as one of wager for the purpose of speculating on the hazard of a life in which the beneficiary has no insurable interest. Insurable interest is not dependent on who pays the premiums but solely on the relationship the parties bear toward each other. The naked fact that one is named as beneficiary in a life insurance policy does not give him an insurable interest in another’s life. In a few cases an insurable interest has been deemed to be a pecuniary interest in the continuance of the life of insured, and it has been held that mere relationship without definite pecuniary interest is not sufficient to constitute an insurable interest. The rule more generally adopted, however, is that an insurable interest is not always to be limited to a pecuniaiy interest, that it is not necessary that the expectation of advantage or benefit, should be always capable of pecuniary estimation, and that relationship by blood or marriage alone is sufficient to constitute an insurable interest where it( is close enough to indicate that the policy has been obtained in good faith and not for the purpose of speculation, to justify the inference that natural affection would operate efficaciously to protect the life of insured, to give rise to a presumption of some' material or physical benefit to be reasonably expected from the continuance of the life of insured, or to justify a well founded belief that loss or disadvantage would naturally and probably. arise to the person in whose favor the policy is Written from the death of the person whose life is insured.
“At any rate, the authorities agree that a pecuniary interest is sufficient to save the policy. It is enough that in the ordinary course of events pecuniary loss or disadvantage will naturally and probably result from the death of the one whose life is insured to the person obtaining the policy, or that there is a reasonable expectation of pecuniary aid from insured, if needed, or a reasonable expectation of pecuniary benefit or advantage from the continued life of insured. An indirect advantage is sufficient; and except in some jurisdictions, á moral obligation, such as a moral obligation to render care, assistance, or attention in time of need, will support the policy. While an insurable interest is sometimes found to exist by reason of a lethal claim for services or support, it may exist although there is no claim on the person whose life is insured that can be recognized in law or equity.”
To the same effect is 29 Am. Jur. 309, 310, § 353, where it is said:
“While all the authorities are agreed that an insurable interest of some sort must exist in the case of life insurance, the authorities are not exactly agreed on the question of what constitutes the requisite interest. There are cases which hold that the interest must be a pecuniary one and that near relationship is not per se enough. The weight of authority, however, is to a different effect. The general rule supported in substance by most of the cases is that any reasonable expectation of benefit or advantage from the continued life of another creates an insurable interest in such life; the advantage or benefit need not be capable of pecuniary estimation, but an insurable interest may be predicated upon any relation which is such as warrants the conclusion that the person claiming an insurable interest has an interest, whether pecuniary or arising from dependence or natural affection, in the life of the person insured. An insurable interest in the life of another has been defined by statute as a lawful economic interest in having the life of another continue, as distinguished from an interest which would arise only by the death of the insured.”
Mr. Couch in his work on insurance law says:
“As above stated, and as has often been remarked by the courts, it is difficult to define with precision what will, in all eases, constitute an insurable interest in human life. Speaking generally, however, it may be stated that it ought to be such an interest as would take the risk out of that class denominated ‘wagers,’ and of such a nature as would justify a reasonable expectation of advantage or benefit from the continuance of the life insured, but this may rest upon a pecuniary basis, as that of creditor of, or surety for, the insured, or may be based upon consanguinity or affinity, involving a claim to support, or some advantage, or even upon a contemplated marriage. In other words, an insurable interest in the life of another is. such an interest, arising from the relations of the party obtaining the insurance, either as a creditor of, or surety for, the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. Again, it has been well said that whenever there is any well-founded expectation of, or claim to, any advantage to be derived from the continuance of a life, there is an insurable interest, though there may be no claim on the person whose life is insured that can be recognized in law or equity the essential thing being that the policy be obtained in good faith, and not for the purpose of speculating upon the hazard of a life. (1 Couch on Insurance, 758, 759, § 292.)
That the same situation prevails with respect to life insurance contracts involving ordinary employers and their employees is recognized by Mr. Appleman in his work on insurance law and practice. In it he states:
“As to whether or not an ordinary employer has an insurable interest in the life of an employee, there is a direct conflict of authority. Several cases have stated that there is no such interest ordinarily, unless he has a substantial economic interest in the life of such employee, and a small or insignificant economic readjustment which would be necessary is insufficient, even though an actual contract of employment exists. Other cases have held that such employer does have an insurable interest in the life and welfare of his employees, even as to matters for which they have no legal liability.” (2 Appleman’s Insurance Law and Practice, 259, § 872.)
However, in most actions to recover death benefits under insurance contracts, it should be noted that in reaching conclusions as to what constitutes an insurable interest- great liberality is indulged in determining whether the beneficiary, alleged to have no such interest, has anything at hazard in the subject matter of the insurance. Likewise, observed that any interest which would be recognized by a court of law or equity is sufficient. (44 C. J. S. 870, § 175[b].)
Based upon the foregoing authorities, without attempting the im possible task of distinguishing-the countless decisions on the subject, we conclude that in its final analysis existence of an insurable interest depends upon the inherent nature of the financial, beneficial or personal relationship existing between the parties involved and that the all-important and essential thing to be taken into consideration in its determination is whether the policy was obtained in good faith, and not for the purpose of speculating on the duration of a life in which the beneficiary had no interest.
Assuming for present purposes, as contended by appellee, that Messer took out the insurance policy in question, can it be said that he had no insurable interest in Geisler’s life on the date of its execution. We turn to the record. ' It discloses:
1. That Geisler, a man thirty-two years old, a school teacher by profession, was employed by Messer to transport gasoline and other petroleum products on the highways and continued in that hazardous employment until the date of his death.
2. That it was Messer’s policy to carry accident insurance upon his employees.
3. That shortly after Geisler’s employment he signed an application for insurance at Messer’s request and thereafter the appellant company issued him a combination accident and health insurance policy by the terms of which he was insured against loss of life, limb, sight or time occasioned by bodily injuries and from loss of time resulting from sickness or disease while such policy was in force and effect.
4. Facts substantially as stated on.page 454 of the opinion in Geisler v. Mutual Benefit H. & A. Ass’n, 159 Kan. 452, 155 P. 2d 435, which, in the interest of clarity, should be repeated:
“In the body of the .policy, August Geisler is named as the insured, and as such was to receive any benefits for personal injuries not resulting in death, and with these provisions we are not presently concerned. If loss of life occur, the benefits are to be $1,000 and under the standard provisions of the policy, this indemnity is payable to the beneficiary if surviving the insured, otherwise .to the estate of the insured. No beneficiary was named in the policy proper but, by specific provision, a copy of the application was attached to and made part of the policy. The application signed by the insured shows that the insured named as beneficiary ‘Boyd Messer Transfer,’ and that the premium is ‘7.60 — $3.60 Qtrly.’ The question, ‘How much premium have you paid?’ is unanswered in the application. In the policy proper it is stated the policy is issued in consideration of the statements made in the application and the payment in advance of $7.60 as first payment, and that the payment in advance and acceptance by the Association of $3.60 quarterly beginning July 1, 1943, is required to keep the policy in effect. We note also that attached to the policy is a document entitled ‘Employees Assignment oí Policy Applied For,’ which recites that Geisler, the insured, is an employee of Boyd Messer Transfer, and has applied for a policy in the Association ‘and the employer has paid the premium on the policy.’ ” (p. 454.)
5. That the “Employee Assignment of Policy Applied For,” dated the same day as the application, contains the following provisions :
“Now therefore, in consideration of such payment of premium, the employee hereby assigns to the employer so much of the benefits that may accrue to the employee under such policy as may be necessary to reimburse the employer for such damage.
“In the event of any claim under this policy, the Association shall not pay the employer therefor without first giving written notice to the employee and an opportunity to object; and the balance of the benefits under the policy, if any, shall be paid by the Association to the employee. The total payment or payments shall be made in full for all benefits stated in the policy.”
6. That in addition to matters heretofore mentioned the policy contained the following provisions “consent of the beneficiary shall not be requisite to surrender or assignment of this policy, or to change of beneficiary, or to any other changes in the policy.”
7. The fact, conceded by appellee’s reply and established by testimony as well, that within a few hours after Geisler’s death Messer advised appellee she could spend anything she desired up to $1,000 for her husband’s funeral by reason of the policy of insurance.
When the foregoing facts are measured by the rule applicable to the determination of insurable interest we are forced to conclude the trial court’s conclusion of law that Messer had an insurable interest in Geisler’s life on the date of the issuance of the policy must be upheld. Messer did' have an insurable interest in Geisler’s life to the extent of any financial loss he might incur as a result of that individual’s death while in his employ from a cause for which he was liable in damages. That, by reason of the terms of the “Employee Assignment of Policy Applied For,” which we have heretofore observed was a part of the policy itself, was all that he could recover in the event his employee suffered injuries for which he was responsible, the balance being payable to'Geisler. It is true, the policy is silent on the question whether Messer as the named beneficiary was to retain all death benefits payable under its terms. Even so, on that point the parties interpreted their own contract to mean he was 'to retain no greater proportion of such benefits. The evidence is that Messer not only recognized his obligation with respect thereto within a few hours after Geisler’s death by advising the appellee she could spend up to $1,000 for the funeral by reason of the policy of insurance but continued, even after they had been paid to him as beneficiary, to acknowledge his liability by offering to pay the appellee $5,00 and the funeral expenses amounting to $424.95. The fact a dispute with the appellee resulted in a subsequent repudiation of his obligation has no bearing upon the interpretation given the contract by the parties. Nor does it change their rights and liabilities thereunder.
Our conclusion that Messer had an insurable interest in Geisler’s life under the conditions and circumstances disclosed by the record really does away with all necessity for specific reference to appellee’s contention the insurance policy constituted a wagering contract. Nevertheless, we feel constrained to briefly give it attention. The ultimate consummation of the negotiations between the parties in this cause resulted in no bet or gaming venture. The contract was entered into by all concerned in good faith, not for the purpose of speculating on the duration of Geisler’s life-but with the laudable idea of protecting both him and his employer from injury or loss which might result to either of them because of the hazards of the business in which he was employed.
In passing we pause to point out, without deciding the question since its decision is no longer necessary, there is serious doubt whether appellee could have recovered in this action as against the insurance company if her contention the policy of insurance was a wagering contract had been sustained. In Jaklevic v. Supreme Lodge of Fraternal Brotherhood, 131 Kan. 203, 289 Pac. 467, is to be found a definite indication to that effect. In the opinion of that case we said:
“It is undisputed that in the inception the arrangement by which the certificate was obtained was clearly a wagering contract. The beneficiary named did not have any insurable interest in the life of the insured and the policy was void so far as Katie Jaklevic was concerned. (Thomas v. Connecticut Mutual Life Ins. Co., 124 Kan. 159, 257 Pac. 727, and cases therein cited.)
“The lawsuit would end here except for the fact that, as set forth herein-before, one of the by-laws of the society provided for the substitution of other parties as beneficiaries if the named beneficiary ‘shall fail for illegality or otherwise' . . .” (p. 207.) (Emphasis supplied.)
Having determined Messer has sufficient insurable interest to support the policy it necessarily follows, unless something to the contrary 'is to be gleaned from the contract itself, that the com-pany had a right to pay him, and he had a right to receive, the death benefits payable as a result of Geisler’s accidental death. The policy expressly provides “Indemnity for loss of life of the Insured is payable to the beneficiary if surviving the Insured, and otherwise to the estate of the Insured.” It may be.suggested'payment could not be made to Messer as beneficiary except upon notice to the legal representative of the estate of the deceased insured in the same manner the company was required by terms of the assignment to notify Geisler in the event claim was made under the policy, during his lifetime, for accidental injuries suffered by him. If so, the suggestion lacks merit. In the first place the parties did not contract by the assignment or otherwise for notice to the person representing the insured’s estate in event of a death claim. In the next place in Geisler v. Mutual Benefit H. & A. Ass’n, 159 Kan. 452, 454, 155 P 2d 435, we said “This assignment covers only payments which would have been payable to the insured during his lifetime. . . .” Finally, we find nothing in the record to sustain a conclusion the parties interpreted the contract as requiring notice to anyone in the event of a death claim. The result is the company was not required to give.notice of settlement to the appellee as found by the trial court in its conclusion of law No. 6 and the payment to Messer as beneficiary without such notice was proper.
What then must our decision be with respect to the trial court’s judgments against the appellant insurance company? Obviously, since it had fulfilled its obligation under the policy it was not liable for the death benefits or any part of them. By the same token, without liability on the policy, the appellee was not entitled to an allowance of any attorney’s fee under the provisions of G. S. 1935, 40-256.
We now give final consideration to the judgment against Messer. Heretofore we have mentioned the construction placed upon the contract by the parties and need not labor that point further. We find nothing in the record which releases him from liability to pay appellee the balance of the death benefits in conformity therewith. There is some’discrepancy in the record as to its amount but we have concluded the trial court’s computation as reflected in conclusion of law No. 7 is substantially correct and should be approved.
In conclusion it should be stated, as will doubtless be observed, we have made no attempt to deal with all of the trial court’s con elusions of law. As to those not specifically or inferentially referred to it suffices to say our decision makes their consideration unnecessary. For the same reason the opinion ignores arguments advanced by counsel on many legal propositions- pertaining to the rights of the parties if the record warranted a conclusion the beneficiary under the policy in question had no insurable interest in the life of the insured.
The judgment against the appellant Messer is affirmed. The judgment against the appellant insurance company is reversed.
Hoch, J., not participating.'
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The opinion of the court was , delivered by
Dawson, J.:
This was an action and a cross action for damages arising from a collision of two automobiles on the public highway.
The plaintiff’s petition, in substance, alleged that on the evening of February 19, 1916, he was driving his automobile southward on the west side of the public road at a moderate rate of speed, and that the defendant was driving his automobile northward on the west side of the road (wrong side for defendant) at a high and dangerous rate of speed, and through this negligence of the defendant a collision occurred which injured the plaintiff and damaged his machine.
The defendant’s answer denied plaintiff’s allegations, and in a cross petition he alleged that he was driving northward on the east side of the road at a moderate rate of speed, and that the plaintiff was driving his car southward on the east side of the'road (wrong side for plaintiff) at a high and dangerous rate of speed, and that through this negligence of plaintiff the collision occurred which injured the defendant and damaged his machine.
The cause was tried to a jury, which returned a verdict for plaintiff for $350, and judgment was rendered thereon.
Defendant assigns two errors: (1) that the verdict was contrary to the evidence, and (2) that he was entitled to a new trial on his showing of newly discovered evidence.
The court has read the abstracts of the evidence with care, and it cannot be said that the verdict! was contrary to all the evidence. While the testimony of the witnesses was conflicting, a substantial part of it tended to support the allegations of plaintiff’s petition and to support the verdict. The problem for the trial court and jury was simply to determine which of the witnesses were telling the truth and which of them were not. (Wideman v. Faivre, 100 Kan. 102, 106, 163 Pac. 619; Matassarin v. Street Railway Co., 100 Kan. 119, 120, 121, 163 Pac. 796.)
In support of the motion for a new trial the defendant produced affidavits of several new witnesses, which tended to prove that the tracks of plaintiff’s automobile were on the east side of the road, where plaintiff’s car, under the circumstances, had no right to be, and that the broken glass of the defendant’s wind shield was on the east side of the road, where his car had a right to be. This evidence would tend to show that the plaintiff, and not the defendant, was the wrongdoer. But there was a good deal of evidence pro and con on both these phases of the controversy adduced at the trial, and the rule governing the granting of new trials on cumulative evidence controls. (Strong v. Moore, 75 Kan. 437, 89 Pac. 895; Simmons v. Shaft, 91 Kan. 553, 138 Pac. 614; Pittman Co. v. Hayes, 98 Kan. 273, 157 Pac. 1193.)
In appellant’s brief there is some discussion of the duty of one who is in danger to avoid that danger when he can do so, and some discussion of the rights, duties and privileges of travelers on the highway; but no error is assigned touching these matters, and nothing can be discerned therein which affects the judgment.
Affirmed.
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The opinion of the court was delivered by
Mason, J.:
Fidelia Weaver was injured while walking along a street in Cherryvale, by a fall caused by a plank on a sidewalk. She brought an action against the city, and in May, 1916, obtained a verdict.for $675, on which judgment was at once rendered. The defendant filed a motion for a new trial and also a motion for judgment in its favor on certain special findings. At a subsequent term of the court, in December, 1916, the motion for a new trial was withdrawn, and, after a „hearing upon the motion for judgment on the findings, the court set aside the first judgment “because of the special findings,” and ordered a new trial. The plaintiff died after the first judgment, and a revivor was had in the name of her administrator. The. defendant appeals from the ordering /of a new trial and contends that judgment in its favor should have been rendered on the findings. The plaintiff asks that the order for a new trial be reversed and that the judgment on the general verdict be allowed to stand.
A motion has been filed to dismiss the appeal on the ground that it was not taken within six months from the time the original judgment was rendered. The appeal is taken, however, not from that judgment, but from the orders made at the subsequent term, and was perfected in due time.
1. The plank- appears to have been placed so as to fo^m a sort of bridge over a gutter — a substitute for a culvert — used as a part of the west end of the south crossing of a street intersection. From its east end, which rested on the pavement of the north-and-south street, it extended to the west, over the curb and lengthwise along the east-and-west sidewalk. Pedestrians were required, unless they used the plank, to step up or down as they passed from the walk to the crossing. The plaintiff approached the plank from the west, and her fall was occasioned by her foot striking the end of the plank. The findings that are regarded by the defendant as inconsistent with the verdict are, that prior to her injury the plaintiff knew the plank was in use at the place referred to and was familiar with ■the condition of the pavement, curb, and sidewalk there; and that by the exercise of ordinary care and prudence she could have seen the plank immediately before she reached it. On the one hand, it is said that “A person who in the lawful use of a highway meets with an obstacle, or defect therein, may yet proceed if it is consistent with reasonable care so to do, even though he thereby incurs some risk, and the fact that he sees or knows of the obstruction or defect and knows its dangerous character, is not conclusive proof that he was negligent in attempting to pass it, and does not preclude a recovery for injuries sustained by him in the attempt, provided he exercised due cafe” (13 R. C. L. 475) ; and on the other hand, that “If he knows of an obstruction, and knows that by the exercise of ordinary care he can avoid striking it while traveling along the street, his act in striking it is, per se, contributory negligence.” .(13 R. C. L. 477.) The findings are of course to be given a construction that supports rather than one that tends, to overthrow the general verdict, where there is room for interpretation. The finding that the plaintiff could have seen the plank by the exercise of ordinary care seems intended to express the idea that if she had made an effort to see it she would have been able to do so by the use of only ordinary care, rather than that, if she did not see it, it was because she was not exercising reasonable prudence. The statement is that she could have seen the plank by the exercise, of ordinary care —not that she would have seen it if she had been exercising ordinary care. The jury also found that the street at the place in question was not lighted in the proper way, and that the city was guilty of “dilatory neglect” in leaving the plank on the crossing. The general verdict amounts to a finding that the plaintiff did use due care for her own protection, except so far as the special findings affirmatively show the contrary. We think that although she was familiar with the conditions existing, knew of the use being made of the plank, and could have seen it if she had looked for it, she could not on that account be held guilty of contributory negligence as a matter of law. The question whether she failed to exercise due diligence under all the circumstances shown by the findings and evidence, as well as the question whether the city had been negligent, was one of fact to be determined by the jury.
2. While the trial court did not give judgment for the defendant, but merely ordered a new trial, the record affirmatively shows that this action was taken because of the special findings. It is at least doubtful whether at a subseuent term of court, in the absence of a motion therefor by either party, a new trial could be granted. Certainly that could be done only under exceptional'circumstances. But, in any event, the action taken was based upon the view that the findings were inconsistent with the verdict. This conclusion involved a pure question of law, which is fairly debatable and not free from doubt; but as this court is of the opinion that there was no conflict between the findings and verdict, it follows that the original judgment should be permitted to stand.
3. It is suggested that the evidence was insufficient to support the verdict. That is a question that could be properly raised only by a motion for a new trial. However, substantially the same question is involved in the determination of the effect of the special findings. We think the situation justified submitting to the jury the question of the negligence of each of the parties, and that their decision should be given effect.
The refusal to render judgment on 'the special findings is affirmed, the order granting a new trial is reversed, and the cause is remanded, with directions to render judgment for the plaintiff upon the verdict.
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The opinion of the court was delivered by
Mason, J.:
Benjamin Mullarky sued H. A. Manker, asking damages in the amount of $17,840, on account of fraudulent conduct, of which he alleged the defendant had been guilty. He recovered a judgment for $3,537.86, from which an appeal is taken. The judgment was based upon a finding that the plaintiff suffered a loss of $4,840 'through the defendant’s misconduct, it being found that, except for this particular transaction, he would have owed the defendant $1,304.14.
1. The principal contention of the 'defendant is that the finding of this liability on his part was not warranted .by the evidence. The following is a brief statement of the means by which the plaintiff, according to his own story, was defrauded of the amount named:
The defendant owned a piece of real estate in Jewell City known as the Kreamer' property, which he wished to exchange for a tract of land in Chase county, owned by one S. D. Elyea. Elyea did not care to make this trade, but was willing to exchange his land for a building in La Harpe, owned by the plaintiff. In April, 1915, the defendant negotiated a deal by which the plaintiff was to deed the La Harpe property, to Elyea, Elyea was to deed the Chase county land to the defendant, and the defendant was to deed to the plaintiff either the Chase county land or the Kreamer property, as the plaintiff might prefer. This arrangement was carried out to the extent that the plaintiff conveyed his property to Elyea, and Elyea some time later conveyed his to the defendant. On. May 10, 1915, a written contract was entered into for the sale by the defendant to the plaintiff of certain property, including 460 acres of growing wheat, valued in the deal at $20 an acre. In a separate paragraph, however, the plaintiff was credited with $5,000 on the agreed purchase price, reducing' the actual consideration that muchi This paragraph was on the first of the two typewritten pages comprising the contract, the signature of the parties being upon the second sheet. After the execution of the contract the paragraph referred to was changed (a new first page being substituted for the original) so that instead of the $5,000 item being shown as a mere reduction in the purchase price thereinbefore specified, it was made to appear as a credit to be given to the plaintiff in consideration of his releasing the defendant from his obligation to pay the plaintiff for the La Harpe property by making a deed to the Kreamer property or to the Chase county land. In speaking of the written contract, shortly before it was drawn up, the plaintiff told the defendant that it would cover the part of the trade regarding the wheat; that with regard to the La Harpe property they would “check that down as unfinished business and later on make settlement about September 1st.” They then agreed that the- price to be allowed should be $4,840. The plaintiff has never received anything for the property.
The defendant’s version of the affair is this: The arrangement for the exchange of property between the plaintiff, the defendant, and Eiyea was made, substantially as stated. The plaintiff deeded the La Harpe building to Eiyea, and Eiyea deeded the Chase county land to the defendant. Prior to May 10, 1915, the plaintiff and the defendant agreed that the latter should convey the Kreamer property in exchange for the property conveyed to Eiyea, but should make the deed to the plaintiff’s father, to whom the plaintiff was indebted. While matters stood in this condition the written contract was entered into, it being agreed that the plaintiff should have a credit of $5,000 on the purchase price therein specified, in consideration of allowing the defendant to keep the Kreamer property. As thé agreement had already been made that the deed should be executed to the plaintiff’s father, the paragraph on the subject was made to contain a provision that the plaintiff was to procure a surrender of his father’s rights in the matter.
The jury found specifically that the written contract had been altered after its execution, and the sufficiency of the evidence to uphold the verdict turns largely upon whether any part of it had a tendency to show such alteration. The defendant’s argument to the contrary is mainly a summary of a number of circumstances pointing to the extreme improbability of such a change having been made. Granting the force of the considerations suggested, as bearing upon the unlikelihood of a spurious first page having been substituted for the original (that obviously being a necessary incident to the change, if any was made), the reasoning falls short of justifying a reversal. Such a substitution was physically possible, and the plaintiff gave testimony tending to show that it was made. He testified that he heard the contract dictated as it was being written on a typewriter; that the first page was read to him by the writer, but not in the form in which it now appears; that the paragraph in question is not in accordance with the actual agreement of the parties; that no writing in “long-hand (that is, made with a pen) was inserted in his presence, whereas the copy produced contained a number of such interlineations. In the brief of the defendant it is said: “That this contract, when signed, was in the same form as when introduced in evidence is shown by an overwhelming preponderance of the testimony.” This is a matter, however, upon which the verdict of the jury, having been approved by the trial court, must be regarded as final.
The precise point of controversy between the parties will be made clearer by a somewhat fuller statement. It seems to be admitted that the price named for the growing wheat — $20 an acre — was excessive, for the defendant testified that “we figured the wheat price was inflated.” The plaintiff asserts that the credit of $5,000 agreed to be given to him in the contract was merely a means of reducing the inflation. He admits that there was an understanding that he was to procure (as he did) a release from his father of any claim to the Kreamer property, but he gives this explanation regarding the matter: He and the defendant had disagreed as to the terms on which the Kreamer property was to be deeded to him in exchange for the La Harpe property, the defendant demanding $500 boot, which he refused to pay. In that situation the plaintiff’s father offered to buy the Kreamer property from the defendant at a valuation of $8,000, and the offer was orally accepted; but no writing was executed, and nothing further came of this negotiation. The plaintiff insists that what he was to procure from his father was merely a release of any claim to the property under this unenforceable oral agreement — a purely formal matter, as his father had invested nothing in the property and had acquired no legal right whatever regarding it.
The defendant, on the other hand, as already indicated, asserts that the previous agreement had been that he was to give up the Kreamer property to compensate the plaintiff for the La Harpe property, but was to make the deed to the plaintiff’s father because the plaintiff owed him $2,000; and that in the negotiations leading up to the wheat deal it was agreed that a $5,000 credit should be given to the plaintiff in consideration of the defendant being allowed to retain the Kreamer property and being released from his liability on account of having obtained the benefit of the La Harpe property. The written contract in its present form is so worded as to support this version of the transaction.
There was sharp conflict in the evidence. No purpose would be served in going into greater detail on the subject. We con- elude that the verdict must stand unless affected by some ruling on a question of law.
' 2. The petition recited a number of transactions to which no reference so far has been made in this opinion. The defendant contends that several- causes of action -were stated, and complains of the overruling of a motion to require them to be separated and numbered. Under the code of civil procedure as it existed prior to 1909 different causes of action set out in the same pleading were required to be separately stated and numbered. (Gen. Stat. 1901, § 4522.) The section imposing this requirement was omitted in the revision of that year, and at present the ruling on such a matter "is expressly committed to the discretion of the trial court (Civ. Code, § 122, Gen. Stat. 1915, § 7014), and is therefore not subject, to review. (Cribb v. Hudson, 99 Kan. 65, 160 Pac. 1019.)
3. A demurrer to the petition on the ground of misjoinder was overruled. It is urged that several causes of action were stated in the petition, one of which did not affect R. C. Postlethwaite, who was joined as a defendant. A demurrer to the evidence was sustained as to Postlethwaite, who thus for practical purposes ceased to be a party, thereby rendering immaterial the question whether his being a defendant occasioned a misjoinder.
4. A motion to strike matter from the petition was sustained in part and overruled in part. It is contended that error was committed in allowing any of the challenged matter to remain in the pleading. Granting that the allegations objected to were redundant or irrelevant, no prejudice to the defendant is apparent. (Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062.) It is argued that the superfluous matter, containing charges of fraudulent intent and conduct, tended to inflame the jury against him. As the recovery was had upon a single item, and upon the basis of its amount having been agreed to, such an effect of the language complained of does not seem to be established.
5. A final complaint relates to the admission of evidence. While the plaintiff was on the stand he was asked by his attorney to state what was said in a conversation between himself and the defendant on September 7. It is contended that the answer was incompetent. It does not appear to be very material, but in any event the question- was not improper, since it did not necessarily call for anything that was not competent evidence. Nothing is preserved for review in this connection, since the defendant did not ask to have the question made more specific, and did not in any way attack the answer. (Stone v. Bird, 16 Kan. 488.)
A day or two after the signing of the contract, its draftsman, with whom it had been left, and who at the time was the. defendant’s attorney, had his stenographer make a copy of ifc (or what was supposed to be a copy), which he certified as correct and filed with the register of deeds. This purported copy was not a literal transcript of the instrument produced in court, the language being different in a number of instances, although none of these differences affected the essential meaning of the contract. The plaintiff was permitted to introduce this copy in evidence, over the objection of the defendant. As the copy was declared to be accurate and made public by the attorney of the defendant, acting apparently in his behalf, and as it did not conform strictly to the instrument asserted by him to be the original contract, the genuineness of which was attacked by the plaintiff, we think the court was justified in admitting it for whatever bearing it might be thought to have upon the question whether a substitution for the first sheet had been effected.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.
This was an action to recover on an automobile liability insurance policy, and from a judgment in favor of the defendant the plaintiff has appealed.
In a general way it may be stated that in the petition it was alleged that the defendant company had issued to Margaret Bla'ckwell a policy insuring her against the claims of all persons injured by reason of the negligent operation of a certain Packard automobile owned by her, the policy providing that the word “insured” included all persons driving the automobile with her permission; that on April 2, 1942, plaintiff was driving the automobile with the consent of Margaret Blackwell ’and became involved in an accident with one Lewis J. Nelson, who threatened plaintiff with an action for damages unless a settlement was made, and on June 12, 1942, plaintiff notified the defendant company that if it did not comply with the terms of the policy plaintiff proposed to make the best possible settlement of Nelson’s claim against him and would thereafter look to the defendant company for recovery of any amount he' had to pay Nelson; that the defendant company refused to investigate the accident and to extend coverage as provided in the policy; that on June 20, 1942, plaintiff made a settlement with Nelson and paid Nelson the sum of $875 in full settlement and that it was a reasonable settlement. It was further alleged that in order to properly investigate the accident and arrive at a reasonable settlement plaintiff retained the services of an insurance adjuster and an attorney, for whose services he paid a total of $200. He prayed for judgment in the amount of $1,075.
The defendant’s answer was a general denial, and its prayer was that plaintiff take nothing by his petition and that it have judgment for its costs.
At the trial defendant’s demurrer to plaintiff’s evidence was overruled. Defendant offered no evidence. The trial court, upon consideration of the evidence found in favor of the defendant. Plaintiff’s motion for a new trial was denied, and in due time the plaintiff appealed from the judgment and the ruling on his motion for a new trial. His specification of errors covers, the matters hereafter discussed.
Before discussing appellant’s contentions, we note that in its brief appellee states “the failure of the Appellant to file a complete transcript in the Supreme Court” restricts this court’s review to questions of law; that all of the errors specified involve the weighing or analyzing of evidence, and there being no transcript there is nothing to review and our attention is directed to the following decisions: Mercer v. Kirkwood, 147 Kan. 637, 77 P. 2d 929; Barker v. Chicago, R. I. & P. Rly. Co., 158 Kan. 549, 148 P. 2d 493; Kasper v. Miller, 159 Kan. 488, 156 P. 2d 550; Addington v. Hall, 160 Kan. 268, 160 P. 2d 649. It may be noted here that the transcript of the record is to be filed in the district court (G. S. 1935, 60-3311) and not in this court. Briefly stated, it appears that notice of appeal was served and filed December 2, 1946, and shortly thereafter was certified to this court. The cause was set for hearing in this court on March 7, 1947. On January 27, 1947, appellant filed his abstract and on February 8, 1947, his brief, s The appellee’s brief not being on file on March 7, 1947, the cause was continued and reset for April 30, 1947. Appellee filed its brief on April 30, 1947, and for the first time raised the question that the record in the district court did not show any transcript. Affidavits have been submitted from which it appears that the transcript was duly lodged in the office of the clerk of the district court, but through some oversight no record of its filing was noted on the docket. The same affidavits disclose that appellee, before filing its brief, procured its own transcript from the court stenographer. In connection with its brief, appellee filed a counter-abstract containing a motion to make definite and certain and the trial court’s ruling thereon, but there is no statement or contention that the abstract filed by the appellant is erroneous in any particular. Appellee’s contention that appellant may not be heard because the record does not contain a transcript of the evidence is not sustained.
We note further that in appellee’s brief no effort is made to refute contentions advanced by the appellant other than to repeat that in the absence of a transcript there is no proper question for review before this court and that it must be presumed the trial court found on the evidence before it that plaintiff had not sustained the burden of proof. On the oral argument before this court appellee made no particular answer to the contentions advanced and argued by the appellant other than the trial court was not compelled to believe the testimony of appellant’s witnesses, and unless, his testimony be believed, the plaintiff had not proved a cause of action. The legal proposition thus advanced will be discussed after we review the evidence and the appellant’s contentions.
Insofar as need be noticed the policy of insurance, which was received in evidence, named Margaret Blackwell as the insured and described a certain Packard business coupé. The company agreed to pay on behalf of the insured all sums which the insured should become obligated to pay by reason of liability imposed by law for damages sustained by any person caused “by accident and arising out of the ownership, maintenance or use of the automobile.” The word “insured” is defined tó include not only the named insured, but also any person while actually using the automobile “with the permission of the named Insured.”
The plaintiff testified by deposition that he was an engineer employed by a steel company, and that he had occasion to work with V. R. Blackwell, also employed by the same company, and they worked out of Wichita. In connection with their work, they traveled over a territory embracing the oil producing country northwest of Wichita. At times they went in plaintiff’s car and at other times in a Chevrolet owned by Blackwell. Blackwell had only one arm. On these trips the owner of the car they were driving did most of the driving but the other relieved him part of the time. On April 2, 1942, they were on a trip to Great Bend. Blackwell’s car was being repaired and they were using Mrs. Blackwell’s Packard coupé. Gibbs had no direct permission from. Mrs. Blackwell to drive the car, but he did have permission from Mr. Blackwell. When returning home and while Gibbs was driving, the car struck a man named Nelson, who was riding a bicycle on a street in Hutchinson. The details of the accident and the extent, of injuries need not be noted. Gibbs hired an attorney and under date of June 12, 1942, the defendant company was notified that Nelson was threatening suit unless a settlement was made. Under date of June 20, 1942, the company acknowledged receipt and in reply denied that Gibbs was driving the car with Mrs. Blackwell’s permission. It made reference to the fact that Gibbs had insurance in another company, and made some detailed reference thereto. It also stated it was advised that settlement could be made with Nelson for $875 and it presumed such a settlement had been made; that in view of the position it had taken it had no particular interest' in such settlement, but that it expected to' call upon Gibbs’ insurance company to' hold it harmless from any loss which might come from failure to make the settlement. Gibbs further testified that he had settled with Nelson, paying $875 with his own personal check. It may here be noted that the trial court rejected as evidence a written release taken from Nelson and Gibbs complains thereof. In cross-examination, it was developed that the funds on which Gibbs drew his check to Nelson were indirectly furnished by the company carrying the insurance on Gibbs’ automobile.
Y. R. Blackwell was personally present and testified that he and Gibbs were employed by the same company and traveled together; that his wife owned a Packard coupé which he purchased; that witness and Gibbs had made previous trips using Gibbs’ car one time and his the next; that on the trip in question his car was in a garage for repairs and they were using Mrs. Blackwell’s car; that prior to that time he had used her car and she had used his, and on the particular occasion Mrs. Blackwell knew where they were going and that Gibbs was going with him; that Mrs. Blackwell was acquainted with Gibbs and with the work of each of them and knew they went out together on the trips for their employer. He also said he imagined he had Mrs. Blackwell’s specific permission to take the car on the trip; that he wouldn’t just drive it off without telling her; that he used her car on short errands without saying anything to her, but not on long drives. On cross-examination he testified that his wife had not specifically given Gibbs permission to drive the Packard coupé.
There were no other witnesses for plaintiff. It may be observed that none of the testimony was inherently improbable or not candid. Cross-examination of either witness did not disclose anything tending to impeach or discredit answers made on direct examination.
As has been stated, the appellee offered no testimony in defense. On the evidence adduced the trial court found in favor of the appellee. At the oral argument appellee did not contend that the evidence, if believed, did not prove the cause of adtion as pleaded and warrant a judgment for the appellant, but did contend that the trial court was not compelled to credit the testimony even though it was wholly uncontroverted.
In our examination of our decisions we find none which supports the broad claim as made by appellee. In most, if not all of our decisions, the factual situation was that the evidence produced by both sides left a situation where one party claimed that because certain testimony was not expressly contradicted the trier of the fact was bound to give that testimony full credence.
In Swartz v. Levin, 108 Kan. 224, 194 Pac. 646, defendant offered certain evidence as to car weights, which evidence was not disputed. It was contended that such evidence must be believed and if it were, there must be reversal of a judgment. This court held:
“The trier of the facts is not bound to believe evidence the truth of which is not admitted, merely because no direct testimony to the contrary is introduced.” (Syl. H 2.)
In Ragland v. Watkins Nat’l Bank, 129 Kan. 426, 283 Pac. 632, Ragland ignored other evidence bearing on the question and contended the undisputed evidence showed him to be the owner of certain cattle. This court held:
“Some uncontradicted and unimpeached evidence tending to establish the claim of the party assuming the burden in the case will not be sufficient to reverse the finding of the trial court unless such evidence covers and reaches all the necessary points to complete the showing of his right to recover.” (Syl. m.)
In Weber Implement & A. Co. v. Dubach, 132 Kan. 309, 295 Pac. 979, the action was for recovery of the cost of road material and to recover on a surety bond. There was a question whether Dubach had signed a certain document. Reference is made to the opinion for a statement of the evidence generally. This^court held:
“The rule followed that the trier of facts is not bound to believe evidence, the truth of which is not admitted, merely because no direct testimony to the contrary is offered. And it is held that under the circumstances in this case the court was warranted in reaching the conclusion reached as to the facts.” (Syl. U 5.)
In Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966, the defendant appealed, complaining there was error because the jury had not believed certain evidence. In disposing of his contention this court held:
“A court or jury is not required to believe the testimiony of a witness or witnesses merely because there is no direct evidence to contradict the same.” (Syl. ¶ 2.)
In the above mentioned cases and many of those cited in them, whether mentioned or not, it has been assumed that the action of the trier of the fact has not been unreasonable, arbitrary, capricious or on reliance on unsubstantial grounds. The following cases deal with the latter proposition.
In Healer v. Inkman, 89 Kan. 398, 131 Pac. 611, it was contended the jury intentionally ignored testimony, refused to make findings, fearing their effect, and was not candid and fair. This court held:
“While ai jury is at liberty to disbelieve the uneontradicted testimony of a witness which is deemed to be unreasonable and untrue it is never justified in'arbitrarily and capriciously disregarding unimpeached evidence.” (Syl. ¶ 1.)
In Woulfe v. Interurban Railway Co., 115 Kan. 640, 223 Pac. 817, the action was for damages for negligence in connection with a fire. Defendant’s evidence was undisputed upon a material question, but the jury returned a verdict in favor of the plaintiffs. The trial court sustained the defendant’s motion for judgment and plaintiff appealed. In disposing of its contentions, this court, in affirming the trial court, held:
“Jurors have no right to disregard the only evidence upon a material question in controversy and to return a verdict in direct opposition thereto.” (Syl. 112.)
Both phases of the question of undisputed evidence received the attention of this court in In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352, where some of our numerous decisions are cited. It was held:
“A trial court cannot arbitrarily or capriciously refuse to consider the testimony of any witness, but it is not obliged to accept and give effect to evidence which, in its honest opinion, is unreliable, even though such evidence' is uneontradicted.” (Syl. 111.)
Appellant directs attention to the fact that with the exception of the testimony of the witness Blackwell, all of the evidence was the deposition of plaintiff Gibbs and some documents received in evidence; that as to the witness Blackwell, cross-examination was brief and in such examination no challenge was made in any manner with respect to his testimony on .direct examination, and there was no contradictory testimony. It is urged that under our decisions in In re Estate of Kemper, 157 Kan. 727, 145 P. 2d , 103, and In re Estate of Wallace, 158 Kan. 633, 149 P. 2d 595, we aré in as good position as the trial court to weigh the evidence and that it is our duty to. decide what the facts established. Whether that should or need be done will be developed later.
It may be observed that in its journal entry of judgment the trial court made no findings of any character, but stated only th,at -after having considered the evidence, it “Ordered, adjudged and decreed that defendant have and recover judgment against plaintiff for the costs of this action.” As has been indicated, we are not aided by the brief filed by the appellee, and therefore must assume that the contentions now made by the appellant' were the same as those pressed upon the attention of the trial court.
Was the appellee in position to' urge that plaintiff was not the real party in interest? A contention that he was not must have been predicated on his testimony that the funds on which Gibbs drew his check to pay Nelson were indirectly furnished to him by another insurance company. Insofar as the question now under discussion is concerned, we hold that, under our decisions in Lawrence Nat’l Bank v. Howard, 125 Kan. 85, 262 Pac. 561, and Federal Savings & Loan Ins. Corp. v. Hatton, 156 Kan. 673, 135 P. 2d 559, and cases cited therein, in order to contest plaintiff’s right to maintain an action on the ground he is not the real party in interest, the question must be raised by answer, or if the defect appear on the face of the petition, by demurrer, and if not so done will be deemed to have been waived.
The next question presented is whether the fact that money was indirectly furnished Gibbs to pay Nelson results in a conclusion that no loss was sustained by Gibbs and therefore he may not recover. This question cannot be entirely dissociated from that previously discussed, under the situation disclosed by the pleadings and evidence, but we need not pursue this aspect of the matter for the reason that the source of payment, if made in good faith, is immaterial to the insurer and cannot be inquired into, and that the payment may be made with borrowed money is no defense. (See 45 C. J. S. 1054 and cases cited, and also American Motorists Ins. Co. v. Weir, 132 Conn. 557, 46 A. 2d 7, and Garetson-Greason Lbr. Co. v. Home Life & Acc. Co., 131 Ark. 525, 199 S. W. 547.) .That Gibbs paid Nelson $875 stands entirely undisputed, and that this amount represents a loss sustained by Gibbs cannot be gainsaid.
The question of the reasonableness of the settlement is also suggested. In view of the appellee company’s letter of June 20, 1942, to Gibbs, stating it expected Gibbs’ insurance company to hold it harmless from any loss which might come from failure to make the settlement, the amount of which it had been advised, it is not in a position to assert the settlement was not reasonable.
Was the car being driven with permission of Margaret Blackwell? Without reviewing the evidence, it is clear from it that V. R. Blackwell was driving the Packard coupé with his wife’s permission, and equally clear that it was being used on a joint venture of Blackwell and Gibbs and that Mrs. Blackwell was aware thereof. No other conclusion can be drawn from the evidence than that if Margaret Blackwell did not give express permission to both her husband and Gibbs to drive the car, she did impliedly do so. As bearing on the legal results following, see Glens Falls Indemnity Co. v. Zurn, (7 C. C. A.) 87 F. 2d 988, and Aetna Life Ins. Co. v. Chandler, 89 N. H. 95, 193 Atl. 233, in which the omnibus clause respecting use of an automobile was held to cover a third person’s use of the automobile.
The question of reduction of liability of the defendant company by reason of claimed co-insurance because Gibbs had a policy with another company, need not be discussed at any length. Had there been any provision for co-insurance and that has not been made to appear, it would not have affected plaintiff’s right to recover, although it might have affected the amount of such recovery. Assuming, however, the question of co-insurance were actually in the case, this court long ago held that it is a defense to be raised by answer. (Insurance Co. v. McLead, 57 Kan. 95, 45 Pac. 73.) The answer in this case did not plead such a defense.
Our examination of the record, as abstracted, leads to a conclusion that the trial court either was in error as to the principles of law to be applied to the undisputed evidence or, if not, in disregarding the only evidence upon the material matters in controversy and rendering a judgment in direct opposition to that evidence. Under the evidence plaintiff was entitled to judgment. The same result is reached if we consider the evidence, a result we are not compelled to reach in view of the conclusion above stated.
The judgment of the trial court is reversed and the cause remanded with instructions to render judgment in favor of the appellant and against the appellee.
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.
This action was instituted in the district court pursuant to the provisions of G. S. 1945 Supp. 44-512a to recover workmen’s compensation alleged to be due from the employer under a previous award. Defendant appeals from the order overruling its demurrer to the petition.
The petition, in substance, alleged:
Op January 17, 1946, the district court of Crawford county rendered a judgment in favor of the plaintiff and against the defendant, The Western Union Telegraph Company, a corporation, for compensation for an accidental injury sustained by plaintiff while working for defendant; the compensation recovered was for a period of not to exceed 415 weeks at the rate of $9 per week; it was further ordered that defendant pay plaintiff the sum of $477 in one lump sum and that the balance of compensation be paid at the rate of $9 per week until fully paid or until the further order of the district court or the workmen’s compensation commissioner of the state of Kansas; defendant did not appeal from that judgment and it has become final; thereafter and on or about June 3, 1946, defendant filed an application for review and modification of the judgment before the commissioner; after hearings on the application for review and modification the'commissioner on January 7, 1947, made an order and award terminating plaintiff’s compensation as of that date; the order and award of the commissioner is an appeal-able order and award and is not a final adjudication of defendant’s motion for review and modification; on January 10, 1947, plaintiff appealed from the ruling and award of the commissioner to the district court; that appeal is pending at this time; the defendant paid compensation to plaintiff to January 7,1947.
The petition, in substance, further alleged:
On or about January 20,1947, defendant was served by registered mail with a written demand' for payment of the unpaid installments of compensation awarded and adjudged to the plaintiff by ■the district' court on January 17, 1946; the demand was for compensation then due and accumulated; the demand was ignored and no payment was made for a period in excess of two weeks from the date of the demand; there is due in unpaid installments the sum of $2/793.
The former judgment, referred to in the petition, was rendered in favor of Margaret Arvilla Jones, who has remarried and whose name is now Margaret Jones Brewington, the plaintiff-appellee in this action.
The demurrer to the petition was on the following grounds:
“1. The court has no jurisdiction of the subject of the action.
“2. There is another action pending between the same parties for the same cause.
“3. That the petition does not state facts sufficient to constitute a cause of action for the said plaintiff against the said defendant.”
The pertinent portion of G. S. 1945 Supp. 44-512a provides:
“That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen’s compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same, payment of said demand is thereafter either refused or not made within two weeks from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt.” .
In order for appellee to prevail it was, of course, necessary that compensation be due and payable at the time she made her demand therefor pursuant to the foregoing statute. Her petition concedes the commissioner had previously terminated all compensation and that the district court had not reviewed the record on appeal from such ruling and had not reversed the new award of the commissioner. Counsel for appellee contend compensation was nevertheless due. In harmony with their customary adroitness they argue that notwithstanding the new award of the commissioner, unchanged by appeal, the previous award of the district court, unappealed from, remained in full force and effect until the district court reviewed the new award of the commissioner. In other words, this action is predicated squarely on the provisions of the former judgment of the district court.
Appellant concedes no appeal was taken from the former judgment of the district court and that all parties are bound by its provisions. It, however, denies the' award of the district court remains in full force and effect until the district court reviews the new award of the commissioner made on the hearing for a review and modification of the award of the district court. Appellant contends the judgment of the district court was by express terms limited in its duration as follows:
“. . . until fully paid or until the further order of this Court or the Workmen’s Compensation Commissioner of the State of Kansas.” (Our italics.)
as affirmatively disclosed in the petition of appellee.
Appellant, in substance, contends appellee cannot accept the benefits of one portion of the judgment of the district court, which provides compensation shall be paid at the rate of $9 per week, and repudiate the other portion of the same judgment which expressly limits the period over which such payments shall be made. In that view we concur. The judgment of the district court, in the absence of an appeal by either party, bound both parties with respect to all of its provisions.
We, however, believe it is unnecessary to stress the binding effect of the judgment of the district court which limits the payment of $9 per week until further order of the workmen’s compensation commissioner. Appellee concedes that part of the judgment conforms to the existing law on the subject. Both parties, at any time before final payment of the award, had the right, upon a proper application, to obtain a review before the compensation commissioner for the purpose of having the old award modified. The pertinent provisions of G. S. 1945 Supp. 44-528 read:
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commissioner upon good cause shown upon the application of either pai-ty and in connection with such review the commissioner may appoint a physician or surgeon, or two physicians or surgeons to examine the workman and report to the commissioner and the commissioner shall hear all competent evidence offered and if he shall find that the award has been obtained by fraud or undue influence, or that the committee, or arbitrator, making the award acted without authority, or was guilty of serious misconduct, or that the award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commissioner may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations hereinbefore provided in this act. . . .” (Our italics.)
The purpose of this statute has been considered on many oeca sions as reflected by the numerous decisions collected thereunder. Its purpose, as expressly stated in the statute, is to permit the commissioner to "modify such award upon such terms as may be just. . in order to conform to changed conditions.
The modification of the award of the district court by the commissioner is in no sense a review of the former judgment of the district court. The modification authorized is -based on the existence of new facts, a changed condition of the workman’s capacity, which renders the former award either excessive or inadequate. Manifestly, it was not intended the old award of the district court should continue to be operative after the new award of the commissioner, based on the changed condition of the workman, was made. That is precisely what'the statute for review and modification was intended to remedy in the interest of justice to all parties. The compensation law provides its own full, complete and exclusive procedure. (Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78.) It makes no provision for the enforcement of a former award after it has been modified in conformity with statutory procedure. The only remedy provided is by appeal to the district court and from the district court to the supreme court. (G. S. 1935, 44-556.) Courts are without power to add new and different remedies.
If appellant as a result of this action is obliged to pay compensation under the former award of the district court and the district court adopts the last award of the commissioner, appellant will be obliged to endeavor to recover back what it has been unjustly required to pay to appellee under the old award of the district court. We find no authorization for such procedure under the compensation act.
The award of the commissioner under the review and modification statute constituted a new award. (Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 443, 37 P. 2d 48.) Being a new award, based on an entirely different record, there can be no enforcement of the old award thereafter’. Unappealed from, the new award of the commissioner becomes a finality and is binding on all the parties. (Dobson v. Apex Coal Co., 150 Kan. 80, 91 P. 2d 5.) In the instant case there was an appeal by the workman to the district court which appeal is now pending. The mere fact, however, that an appeal was perfected from the new award could not operate to reinstate the former award of the district court. That appeal presents to the district court an entirely new and different record from the one previously presented to it. The new record reflects the changed condition in the workman from that which existed when the district court rendered its first award. The district court could affirm the new award or could allow compensation in accordance with what it believed the changed condition of the workman required. In no event, however, could the former judgment of the district court, based upon a wholly different record, constitute an enforceable award after it was modified pursuant to statute to meet the changed condition of the workman.
To permit the former award of the district court to be enforced after it was modified in accordance with express statutory procedure would result in confusion and would defeat the very purpose of the wholesome provision for review and modification. The workmen’s compensation act provides for compensation during incapacity, and the implication is that compensation should cease when incapacity ends. (Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244; Dobson v. Apex Coal Co., supra.) Until the new award of the commissioner, in the instant case, is altered by the district court on appeal no compensation is due.
The instant action to recover compensation alleged to be due was instituted after the new award was made by the commissioner. That award terminated all compensation. At the time appellee made a demand for the payment of compensation there was no compensation due. The third ground of the demurrer should have been sustained. The other grounds need not be treated.
Counsel for appellee raise the question whether a modified award by the commissioner allowing some compensation would be enforceable prior to a review of the award by the district court. . In fairness to counsel it should be said they recognize'that is not the question presented by the demurrer to the instant petition. Such a case would present some problems quite different from those involved in this case and we prefer to express no views thereon. It may, however, be well to observe that under such circumstances there would have been some compensation allowed by the new award and also that it would not constitute an attempt, as here, to enforce a former award of the. district court subsequently modified.
The#order overruling the demurrer to the petition is reversed.
Smith, J., dissents.
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The opinion of the court was delivered by
Parker, J.
This is an appeal from an order in a divorce action overruling a motion to strike the petition from the files.
On December 26, 1946, the plaintiff commenced an action for divorce against the defendant in the district court of Sedgwick county, by filing a petition, verified by her before her attorney of record who was a notary public, charging gross neglect of duty and extreme cruelty. Thereafter defendant was served with summons. On January 4, defendant brought suit against plaintiff for divorce in the district court of Rice county and on the same day procured service upon her by process issued from that county. Two days later, on January 6, defendant filed a motion to quash the summons and dismiss the Sedgwick county action. This motion was overruled. Thereupon defendant, orally moved to strike plaintiff’s petition from the files on the single ground it was verified before her attorney. Subsequently, and before the trial court- ruled on such motion, the plaintiff filed an amended affidavit, which had been signed, subscribed and sworn to before a notary public whose authority to verify pleadings is not in question, wherein she stated among other things that the allegations and statements contained in her petition were true. Thereafter, on February 11, the district court overruled the motion to strike. On the same day it overruled defendant’s objection to the introduction of testimony in a contempt proceeding and his demurrer to the petition, based upon the premise there was a' similar cause of action pending in the district court of Rice county between the same parties. Defendant then served and filed a notice of appeal in which he appealed only from the order overruling his motion to strike the petition from the files.
From the foregoing brief 'statement it becomes apparent the' sole question appellant seeks to have determined is whether a petition for divorce can be verified before a notary public who is also an attorney for the party who filed the pleading. However, before it can be considered, we must first determine whether we have appellate jurisdiction to review' an order overruling a motion to strike a petition from the files. This even though the parties have not raised the issue (Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609; Shively v. Barr, 157 Kan. 336, 139 P. 2d 401; In re Gambrell, 161 Kan. 4, 165 P. 2d 760; Asendorf v. Asendorf, 162 Kan. 310, 176 P. 2d 535).
Our code of civil procedure specifies the particular matters on which a trial court’s rulings .will furnish a basis for an appeal (G. S. 1935, 60-3302). Resort to its provisions does not reveal that an order overruling a motion to strike is one of them. Clearly the motion to strike does not involve the merits of the action or any part thereof. It cannot be construed as a demurrer for we have held that an alleged defect in the affidavit verifying a divorce petition cannot be reached by demurrer (Warner v. Warner, 11 Kan. 121). Neither can it be regarded as the equivalent of a demurrer for if so treated it must, of course, concede the facts alleged in the pleading which if accepted as true unquestionably state a cause of action for divorce. Nor can the order overruling the motion be held to be a final order, the only other ground specified in the statute of possible application, not heretofore mentioned, which authorizes an intermediate appeal! True enough, we have' held that an order striking a petition from the files is a final order and therefore appealable (Hicks v. Parker, 148 Kan. 679, 84 P. 2d 905; Dwinnell v. Acacia Mutual Life Ins. Co., 155 Kan. 464, 126 P. 2d 221). The reason for the rule announced in the decisions just cited is so obvious as almost to preclude the necessity of commenting upon it. When a motion to strike is sustained the plaintiff’s right to proceed with the cause on its merits is wiped out with •the result the ruling is to all intents and purpose a final order for which the code gives a right of appeal. But the converse of such ruling has no such consequence. The overruling of a like motion does not determine the action or prevent a judgment. It not only leaves' the defendant free to conduct his defense but also permits him after the cause has been tried upon its merits to present alleged trial errors and irregularities on final appellate review.
As we leave the point in question, although we have repeatedly held that motions to strike portions of a petition are not appealable unless they affect a substantial right and in effect determine the action (see Estes v. Tobin Construction Co., 159 Kan. 322, 153 P. 2d 939, and cases' there cited), we are not unaware of the. fact our decisions with respect to the sustaining of a motion to strike a petition in tato are not so numerous. The most recent case dealing with the subject, which we must concede is not entirely in point and therefore more indicative than decisive as a precedent, is Marsol Credit Co. v. Blaker, 144 Kan. 632, 62 P. 2d 914. There we held:
"An order overruling a motion to dismiss a petition filed pursuant to the provisions of R. S. 60-2821 is not a final order so as to be appealable.” (Syl.)
However, we observe the situation disclosed by the record in the instant case, namely, an attempt to dispose of the action by an intermediate appeal without making a defense on its merits, upon which we base our conclusion the order overruling the motion to dismiss the petition from the files is not in itself an appealable order, is in principle not unlike those with which this court has been confronted in numerous cases involving attempts to appeal from rulings refusing to dismiss actions or quash service of summons. We have repeatedly and uniformly held that the overruling of a motion to dismiss an action, made by the defendant, is not one of the orders of the district court from which an appeal lies to the supreme court until final disposition of the cause in the court below (Brown v. Kimble, 5 Kan. 80; Dolbee v. Hoover, 8 Kan. 124; Simpson v. Rothschild, 43 Kan. 33, 22 Pac. 1019; Hudson v. Hudson, 142 Kan. 358, 46 P. 2d 882; St. Paul Fire and Marine Ins. Co. v. Bender, 153 Kan. 752, 113 P. 2d 1062). The same holds true of orders refusing to set aside the service of a summons (Potter v. Payne, 31 Kan. 218, 1 Pac. 617; Reynolds v. Bank, 66 Kan. 461, 71 Pac. 847; Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061; and Tinkler v. Devine, 159 Kan. 308, 315, 154 P. 2d 119).
As we conclude we pause to note the record discloses another reason which precludes consideration of the question appellant seeks to have reviewed.
Our státute (G. S. 1935, 60-1504) requires that the' petition in a divorce action must be verified as true by the affidavit of the plain tiff. Irrespective of the merit of appellant’s position with respect to the original petition it appears that pleading was amended prior to the ruling on the motion to strike in such manner that there could be no question regarding the validity of the verification. We are not advised whether the amendment was made before or after the appellant’s answer ‘day. But that makes no difference. Our civil code (G. S. 1935, 60-756) permitted the amendment without leave, before answer; if after, it (G. S. 1935, 60-759) authorized the amendment by permission of the court. In view of the state of the record we must assume the amendment was made under one circumstance or the other. The result, since the court’s ruling on the, motion was based upon the state of the pleadings on the date of its rendition, is that the motion as directed against the petition as originally filed is not here on appeal now.
Appellant’s contention the amended verification to the petition does not relate back to the date of the original petition is not tenable. Assuming, without passing upon his contention, the original affidavit was improperly verified it was, nevertheless, verified in such manner that at the very most it can be said to be voidable only. This court has so held (Swearingen v. Howser, 37 Kan. 126, 14 Pac. 436; Cheyenne County Comm’rs v. Walter, 83 Kan. 743, 112 Pac. 599; Belinder v. Cupp, 156 Kan. 729, 137 P. 2d 139). In that situation, in attachment proceedings and proceedings to open judgments, wé hold the original affidavit may be amended by a proper verification and that when the amendment is filed it will relate back to the original (Cheyenne County Comm’rs v. Walter, supra; Swearingen v. Howser, supra). We see no reason why the same rule should not be applicable to the affidavit to a petition in a divorce proceeding. Such is the general rule. See 17 Am. Jur. 310, §-316, holding that even where the verification of the petition in a divorce action is a jurisdictional requirement the right to amend by supplying the necessary verification before trial is generally recognized and 27 C. J. S. 713, § 120, stating amendment of defects in the affidavit should be allowed on timely request and that a plaintiff may properly be permitted to file an amended or substituted affidavit.
Tootle, Hanna & Co. v. Smith, 34 Kan. 27, 7 Pac. 577, principally relied on by appellant as supporting his contention with respect to the last point considered is not helpful. What is held there has been superseded if. not actually overruled by Swearingen v. Howser, supra. The two decisions are distinguished and their present force and effect discussed at page 732 of the opinion in Belinder v. Cupp, supra.
The appeal is dismissed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, C. J.
This is an original proceeding in quo warranto challenging the authority of the state commission of revenue and taxation, the state highway commission, the state treasurer and state auditor, to execute in their respective capacities chapters 271 and 272, Laws of 1945 (being respectively articles'18 and 17 of G. S. 1945 Supp. ch. 68). The petition questions the constitutionality of the legislative acts and the validity of the action and proposed procedure of defendants thereunder. These are companion acts passed by the same legislature and approved the same day.
The passage of these acts was prompted by an act of Congress known as the “Federal-Aid Highway Act of 1944” (Public Law 521, ch. 626, 78th Congress, 2d Session, approved December 20, 1944). By this-act Congress outlined its federal-aid highway program for a three-year postwar period. It was designed to overcome deficiencies in the road system, catch up on construction and reconstruction deferred during the war period, and meet the nation’s anticipated transportation requirements. It anticipated the biennial sessions of forty-five states would be held in 1945 so that the states could know the extent of federal aid and make provision for meeting the requirements of the federal government. It continued the principle of federal aid by allocating funds to the states to be matched by state funds to be administered by the Public Roads Administration cooperating with the several states. It established a more definite classification of road systems so that improvements could be made on a selective basis to meet transportation needs, and it took into consideration the employment situation likely to exist after the war and the needs of men returning from military service. The first section redefined the term “construction,” as applied to highways so as to include supervising, inspecting, actual building, and all expenses incident to the construction or reconstruction of a highway, including locating, surveying, mapping, and costs of rights of way. It defined the term “urban area” as an area including and adjacent to a municipality of five thousand or more, the boundaries of the area to be fixed by the state highway department in each state, subject to the approval of the Public Roads Administration; and the term “rural areas” as meaning all areas of the state not included in urban areas. It also defined the term “secondary and feeder roads” to mean roads in rural areas, including farm-to-market roads, rural-mail routes and school-bus routes not in the federal-aid system. It appropriated the sum of $1,500,000,000 to become available at the rate of $500,000,000 per year for each of three successive “postwar fiscal years,” which term was defined. Of this sum $225,000,000 was made available for projects on the federal-aid highway system; $150,000,000 for projects on the principal secondary and feeder roads, including farm-to-market roads, rural free delivery mail and public-school bus routes, to “be expended on a system of such roads selected by the state highway departments in cooperation with the county supervisors, county commissioners, or other appropriate local road officials and the Commissioner of Public Roads”; and $125,000,000 for projects on the federal-aid highway system in urban areas. Provision was made for allocating the sums appropriated among the several states. The act provides that the share to be paid by the federal government on account of any project shall not exceed fifty percent of the construction cost, exclusive of rights of way, nor exceed one-third of the cost of the rights of way. It is further provided that to expedite the project the Commissioner of Public Roads may advance to a state funds from the federal share of the cost to enable the state highway department to make prompt payments for work as it progresses. “The funds so advanced shall be deposited in a special trust'account by the state treasurer . . . to be disbursed solely upon vouchers approved by the state highway department for work actually performed in accordance with plans, specifications, and estimates approved by the Public Roads Administration under the provisions of the act.” Provision was made authorizing the Commissioner of Public Roads to enter into appropriate agreements with-the state highway commission to carry out the purposes of the act.
Chapter 272, supra, provides for the designation of a system of roads to “be known as the secondary road system, including farm-to-market roads selected in accordance with the provisions of this act, rural mail routes and school bus routes not on the state highway system, the construction, reconstruction and maintenance of which shall be under the jurisdiction of the board of county commissioners of each county.” The act fixes the mileage of the system in the state and provides the method of selecting the roads which make up the system. Existing county.and township roads which previously had been approved by the federal government as being eligible for participation in federal aid funds would become a part of the system. Additional ’roads making up the system were to be determined by the county commissioners with the. concurrence of the state highway commission.
By chapter 271, supra, the legislature sought to take advantage of the “Federal-aid Highway Act of 1944.” It specifically found that as a result of the war and consequent wartime restrictions- on man power, materials and supplies and the depleted highway revenues due to tire and gasoline rationing and other causes, serious doubt existed whether future revenues from present sources would be sufficient to meet the state’s requirement for matching federal aid in the first three-year war period, and that provision should be made to enable the state and its subdivisions to take advantage of and participate in the three-year postwar highway program outlined by the federal act; and for the purpose of declaring the,policv of the state to participate in that postwar program and to eliminate doubts as to the ability of the state to match federal aid funds for that program, the legislature created a second highway anticipation fund to supplement funds> otherwise available with which to pay revenue anticipation warrants issued and sold for the purpose of obtaining funds with which to match the federal aid for the state and its subdivisions entitled to participate in the federal three-year postwar program. It authorized the state highway commission to enter into all contracts necessary with the Public Roads Administration or other federal agency, and to do and perform acts required by it; to obtain all benefits under the terms and provisions of the Federal-aid Highway Act of 1944; and the state treasurer was authorized to receive, deposit and disburse moneys appropriated to the state and its subdivisions, as provided by the federal act. In order to enable the state and its designated subdivisions to participate in and to receive the full benefit of the funds available or made available under the federal act, and in particular to receive the federal aid for the construction, improvement and reconstruction of highways on the federal aid system, secondary and feeder roads in rural areas, including farm-to-market roads, rural mail routes and school-bus routes not on the federal aid system, urban and rural areas, the state highway commission was authorized to take all steps and proceedings and to make arid enter into all contracts and agreements necessary or incidental to the performance of its duties in that respect, which acts or contracts should be approved by the governor of the state before the same became effective. It further provided that for the purposes stated the state highway commission, upon affirmative vote of a majority of the state highway commissioners, might issue and sell to the highest and best bidder, at not less than par, revenue anticipation warrants, and might use the funds derived therefrom for the purposes stated in the act; but no warrants should be issued unless and until the governor and the commission should find and publish such finding in the official state paper that (a) moneys in the highway fund available to match such federal aid have been fully used for that purpose, and (6) that additional postwar federal aid funds were available for matching and no state funds in the highway fund were available to match the federal aid. A date was fixed for the expiration of authority to issue such warrants, and it was provided that the money realized from the sale of such warrants should be paid into the state treasury to the credit of a fund known and designated as the “Second Highway Anticipation Fund,” and the moneys paid into the fund were appropriated for the use set out in the act. A limitation was placed upon the amount of the warrants which could be issued, and provision was made for keeping a proper record of such warrants and for their payment. It was specifically provided that the money derived from the sale of such warrants should be used to match federal aid for projects on the federal-aid highway system and secondary and feeder roads in rural areas, including farm-to-markc.t roads, rural free-delivery mail and public school-bus routes, and urban and rural areas, as defined in the Federal-aid Highway Act of 1944. The act imposed a tax in addition to those imposed by chapter 79, article 34, G. S. 1943 Supp., upon motor vehicle fuels and fuels, as (a) a tax of one cent per gallon or fraction thereof on the use, sale or delivery of all motor vehicle fuels, as defined in G. S. 1943 Supp. 79-3401, used, sold or delivered in this state for any purpose whatsoever; and (i?) a tax of one cent per gallon or fraction thereof on all users of fuel, as the term is defined in G. S. 1943 Supp. 79-3433. It provided for the collection of these taxes by the director of revenue, who should daily deposit the tax collected with the state treasurer, who should place three percent-thereof in the revenue administration fee fund designated and established by G. S. 1943 Supp. 74-2421, and the remainder of the tax collected in the fund created by the act known as the second revenue anticipation warrant retirement fund. This fund was to be used by the state tax commission to match federal-aid funds under the Federal-aid Highway Act of 1944 until such warrants should be issued as provided in the act, and thereafter used exclusively for the payment of (a) interest on such warrants, (b) the fiscal agency charges, (c) the payment of the warrants as they would fall due or as they might be called for payment, and (d) other necessary expenses incidental to the authority granted by the act. A date was fixed when the tax imposed would become effective, and a limitation was fixed upon the time for which it would continue in force. It was further provided that when the state highway commission should have created obligations by contract or otherwise, pursuant to the provisions of the act or any existing authority, the tax levied and imposed by the act should not be repealed or amended so that the aggregate of revenues derived would be insufficient to pay the principal, interest, expenses and retirement of the revenue anticipation warrants issued under the provisions of the act, and that the obligations incurred under the act should constitute a first lien upon all the revenues derived under the act and be deposited in the secondary revenue anticipation- warrant retirement fund. The act provided for an equitable allocation of the funds to the respective highway districts in equal amounts, as nearly as practicable, and that the state highway commission should construct the highways to be improved under the Federal-aid Highway Act of 1944 in such manner as would equally distribute, as nearly as practicable, the benefits and highway improvements among the respective counties of the state.
Other provisions of the act might be noted, but it seems clear from the wording of the act as a whole and its several provisions that the legislature made a sincere effort to make provision to take advantage of the Federal-aid Highway Act of 1944 in such a way that the authority granted to the state highway commission would not be abused, and that the state and its respective subdivisions would receive the full' benefit both of the Federal-aid Highway Act of 1944 and of our state -laws.
In the petition plaintiff pleads the enactment of chapters 271 and 272, Laws of 1945, names as defendants all the state commissions and officers charged with the duty of enforcing those statutes, and alleges that unless enjoined from doing so defendants will undertake to carry out the provisions of the statutes, and further alleges that the statutes are unconstitutional and void for the following reasons:
That chapters 271 and 272 violate sections 9 and 10 of article 11 of our constitution, (1) by compelling the expenditure of funds on. streets and highways not a part of the state highway system; (2) by providing for the issuance of “tax anticipating warrants” which would, in effect, be bonds of the state of Kansas, and (3) by requiring the collection of a one cent gasoline tax on all gasoline whether used for highway or nonhighway purposes.
That chapters 271 and 272 violate the equal protection clause of the 14th amendment of the United States constitution and the uni form tax provision of section 1, article'll, of the constitution of Kansas, by creating an illegal, unjust and unequal burden on various classes of taxpayers, as follows: (a) Farmers and others who burn gasoline motor fuel for nonhighway uses are required to pay the tax while farmers and others who use coal, diesel oil, alcohol, or other fuel for nonhighway motor purposes do not pay such tax; (b) non-highway users are taxed for highway purposes and highway users burning tax-exempt motor fuels or no fuel at all use the highways without paying any tax; (c) city dwellers and others who do not use the state highways for any purpose, but use their vehicles principally or entirely on streets and roads constructed and maintained from the proceeds from the general property tax, are required under existing law to pay four cents per gallon for state highway use tax for the benefit of highways they have little or no use for, which constitutes them a class illegally discriminated against; (d) many persons are unable by reason of their residence or occupation to purchase or use any tax-exempt gasoline but pay four cents per gallon for all their motor fuel, while others, with the apparent knowledge and implied consent of defendants, pay only one cent per gallon tax for motor vehicle fuel.
That the tax anticipation warrants issued as provided in chapter 271 will create a debt in excess of $1,000,000 without a vote of the people, in violation of sections 6 and 7 of article 11 of our constitution.
That chapter 271, which requires vendors of motor fuel to collect the tax from purchasers and remit the same without compensation for such service, subjects such persons to involuntary servitude, in violation of section 6 of the bill of rights of our constitution.
That the title of chapter 271 does not clearly express the subject matter contained in the act, and that the act contains more than one subject, in violation of section 16, article 2, of our constitution.
Defendants'by their answer admitted the facts alleged, but specifically denied the legal conclusions alleged in the petition.
The petition and the answer contain allegations respecting the procedure taken or contemplated by defendants under the act and the amount of tax collected and the use being made of it. These matters will be discussed later.
We turn now to the questions raised as to the validity of chapters 271 and 272, Laws of 1945. Sections 9 and 10 of article 11 of our constitution read:
"Sec. 9. The state shall never be a party in carrying on any work of internal improvement except that it may adopt, construct, reconstruct and maintain a state system of highways, but no general property tax shall ever be laid nor bonds issued by the state for such highways.
“Sec. 10. The state shall have power to levy special taxes, for road and highway purposes, on motor vehicles and on motor fuels.”
It is argued that the statutes in question violate these constitutional provisions by compelling the expenditure of funds on streets and highways not a part of the state highway system. By a statute originally enacted in 1927 (Laws 1927, ch. 255, sec. 6, and several times amended and now appearing as G. S. 1945 Supp. 68-406) the state highway commission was authorized to designate and improve “a state highway system” consisting of not more than 10,000 miles. Counsel for plaintiff argue that the state highway system so established is synonymous with the words “a state system of highways” used in our constitution (sec. 9, above quoted), and in effect argue that having established a state highway system, with a limited number of miles, it has no authority to establish an additional secondary-road system, as it attempted to do in chapter 272, supra. The point is not veil taken. It was held in Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625: “The legislature, as the representative of the public, has plenary power over streets, and highways . . .” (syl. ¶ 1). This view has been repeatedly sustained in later decisions of the court which may be found readily from the citator. This accords with the general rule stated in 39 C. J. S. 949, as follows:
“The power to establish highways rests primarily in the legislature which may, subject to constitutional restrictions, delegate it to political subdivisions or local agencies, to -be exercised in the manner prescribed.”
And in 40 C. J. S. 25, it is said:
• “The construction and repair of public roads is a governmental function which may be exercised by the state or delegated to state or local agencies or bodies . . .”
Other authorities on highways are to the same effect.
We think the phrase, “a state system of highways,” in our constitution (sec. 9, supra) is broad enough to authorize the state to classify all the highways of the state and to provide for their construction and maintenance either by the state or by any of its .political subdivisions, or by any combination of them, as it may deem proper. It is well settled that the state, through its legislature, may exercise any governmental powers not granted to federal govern-' ment and not prohibited by our constitution. (Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302; Lemons v. Noller, 144 Kan. 813, 63 P. 2d 177.) Certainly the power authorized to be exercised by the constitutional provision was not exhausted by the establishment of the state highway system under G. S. 1945 Supp. 68-406.
It is argued that the statutes in question violate the constitutional provisions above quoted inasmuch as they provide for issuing tax anticipation warrants which, in effect, would be bonds of the state. This question was fully considered in passing upon the validity of a similar statute in State, ex rel., v. State Highway Comm., 138 Kan. 913, 28 P. 2d 770, where it was specifically held that such warrants are not bonds. We think the reasoning of that case applies here.
It is argued that the statutes in question violate the above constitutional provisions for the reason that in effect they levy a general property tax by requiring the collection of one cent per gallon on all gasoline, whether used for highway or nonhighway uses. We do not regard the use made of it as being controlling. Gasoline is a “motor fuel” upon which a tax may be levied under our constitution (sec. 10, supra).
It is argued that the statutes in question create an illegal, unjust and unequal burden on various classes of taxpayers in certain enumerated particulars, in violation of that portion of section 1, article 11, of our constitution, which reads: “The legislature shall provide for a uniform and equal rate of assessment and taxation, . . .” This point was considered and decided adversely to the contention of plaintiff in State, ex rel., v. Barton County Comm’rs, 142 Kan. 624, 51 P. 2d 33, where it was said: '
“This provision, of our Constitution applies exclusively to taxation of property. (City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288.) The motor-vehicle fuel tax is not a tax on property. The act providing for it ‘creates no property tax, but is a personal liability upon dealers.’ (State, ex rel., v. Snell, 127 Kan. 859, 860, 275 Pac. 209.) The same question has been considered by other courts where the constitutional provisions were similar to our own, and the same conclusion reached in the following cases:” (Citing the cases.)
For similar reasons counsel for plaintiff argue that the tax imposed by the statutes in question violates the due process clause of the 14th amendment to the federal constitution. The federal authorities are contrary to that view. In Carmichael v. Southern Coal Co., 301 U. S. 495, 509, it was said:
“It is inherent in the exercise of the power to tax that a state be free to select the subjects of taxation and to grant exemptions. Neither due process nor equal protection imposes upon a state any rigid rule of equality of taxa tion. [Citing federal cases.] This^Court has repeatedly held that inequalities which result from a singling out of one particular class for taxation or exemption, infringe no constitutional limitation. [Citing federal cases.]
“Like considerations govern exemptions from the operation of a tax imposed on the members of a class. A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest .on that basis, if there is any conceivable state of facts which would support it.” (Citing federal cases.)
Under this general heading plaintiff alleges several subdivisions: (a) Persons who use gasoline as a motor fuel for nonhighway uses are required to pay the tax, while others who use coal, diesel oil, alcohol, or other motor fuels for such purpose do not pay the tax. It may be a sufficient answer to this contention that the constitution (art. 11, sec. 10) specifically authorizes the legislature to tax gasoline. We point out, however, that this constitutional provision was not necessary in order to give the legislature that authority. The state, in its sovereign capacity, has power, through its legislature, to levy excise taxes for revenue purposes, and in fact our legislature had done so before this constitutional amendment was adopted. One may inquire if this is true, why the amendment was submitted to and adopted by the people. Perhaps the reason was that many of our citizens had questioned previous legislative acts levying such a tax, and that it was done to quiet any feeling of that kind. But, irrespective of the reason for it, it must be interpreted in harmony with not only other provisions of the constitution, but with the fundamental, inherent power of the state. This legislative power arises from the fact that our government is one of the people, who act through their legislatures in enacting laws, the only restriction being that the people so acting cannot exercise powers which have been granted to the federal government by the adoption of the federal constitution or limited by our state constitution. Section 10, article 11, is a recognition of an existing power. The legislature needed no grant of such power it had previously exercised, and it is not a limitation of legislative power. The only limitation placed upon the legislature with respect to taxes to raise money for highway purposes is in section 9, article 11, where it is specifically provided that no property tax shall be levied nor bonds issued for that purpose.
(b) It is alleged nonhighway users of gasoline are taxed for highway purposes, while users of highways who use some other motor fuel are not taxed. Being an excise tax, that was a matter of legis lative selection. The basic rule was well stated in Fretwell v. City of Troy, 18 Kan. 271, 274 (opinion by Brewer, J.), as follows:
“Regarded as a tax, therefore, it comes within the general proposition concerning taxation, that it knows no limit other than the necessities of the public treasury, and the discretion of the taxing power.”
See, also, In re Martin, 62 Kan. 638, 64 Pac. 43; 61 C. J. 154.
(c) It is alleged that persons who do not use the state highways for any purpose, but use their vehicles on streets or roads constructed and maintained by a general property tax are required to pay four cents per gallon, the proceeds to be used for highway purposes for which they have no use; and (d) persons who, by reason of their residence or occupation are unable to purchase or use tax-exempt gasoline, pay four cents per gallon for their motor fuel, while others pay only one cent per gallon. It is difficult to visualize any substantial number of persons who could be so classified, but, assuming there is, we regard the contention as of no consequence. The arguments might have been and probably were presented to and considered by the legislature. • It is characteristic of every excise tax that it may apply to some persons and not to others. The fact that it does so does not render the tax invalid. Certainly it presents no constitutional reason for the invalidity of such tax.
It is alleged the tax anticipation warrants authorized to be issued under chapter 271 will create a debt in excess of one million dollars without a vote of the people, in violation of sections 6 and 7 of article 11 of our constitution. Those sections relate to state debts created to be paid by property taxes and have no application to the tax here involved for the reason, as previously pointed out, the obligation created by these warrants is not a debt of the state within the meaning of those sections; it is a lien and charge upon the funds raised by the tax. (State, ex rel., v. State Highway Comm., 138 Kan. 913, 28 P. 2d 770.)
It is alleged chapter 271 requires vendors of motor fuels to collect and to make the tax without compensation, and in doing so subjects them to involuntary servitude, in violation of section 6 of our bill of rights. This section of our bill of rights is tantamount to the 13th amendment of our federal constitution. Respecting that it was said, in Butler v. Perry, 240 U. S. 328, 332 (36 S. Ct. 238, 60 L. Ed. 272):
“This amendment was adopted with reference to conditions existing since the foundation of our Government, and the term involuntary servitude was intended to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.” (Citing cases.)
It is generally recognized that an individual may be required to give services to a state without compensation (Crews v. Lundquist, 361 Ill. 193, 197 N. E. 768).. Indeed, it is a common practice, both for the federal government and for the state, to call upon citizens to perform some service for the state without compensation.
It is alleged that the title of chapter 271 does not clearly express the subject matter contained in the act and that the act contains more than one subject, in violation of section 16, article 2 of our constitution. The point is not well -taken. While the title is perhaps more in detail than necessary, it is not contended that it is misleading.
Having considered all the objections raised to the validity of chapters 271 and 272, Laws of 1945, the court finds that they are free from any constitutional infirmity and that they are valid enactments of the legislature.
. The pleadings outline the various steps taken by defendants under these statutes since their enactment, and copies of the forms of the proposals, resolutions and contracts made in carrying out the provisions of the acts are set out. These are too lengthy to embody herein, and perhaps it would serve no good purpose to do so. They appear to be in harmony with the statutes and to provide an effective method of carrying out the intent anjl purposes of the statutes. No serious contention is made to the contrary.
From what has been said it is clear that judgment should be entered for defendants. It is so ordered.
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The opinion of the court was delivered by
Smith, J.
This is an original proceeding in habeas corpus wherein petitioner seeks to be released from confinement in the state penitentiary at Lansing, where he is confined under a commitment issued out of the district court of Wyandotte county under date of April 6, 1929.
There is not much dispute about the facts.
Defendant was found, guilty of theft of an automobile. On April 6, 1929, he was sentenced on that charge to a term of not less than ten nor more than twenty years. The sentence was doubled on account of a previous conviction of a felony. He was received at the penitentiary April 6, 1929.
Sometime during 1936 he was paroled from that sentence. Sometime during 1938 this parole was revoked and he was returned to the prison. So far no complaint is made by him as to the regularity of the proceedings. During May, 1939, he was again permitted to go on parole. Sometime in August he was,again apprehended. The actual circumstances are not quite clear. The arrest took place in Missouri. He claims he was arrested in Missouri for violating his parole. The respondent does not concede this to be a fact. The record discloses his parole .was not revoked until sometime later. At any rate, he was taken to Kansas City, Kan., and held there for about twenty-six days.
During that time he was indicted by the United States for the crime of post-office robbery. He was' surrendered to the federal authorities, tried, convicted and sentenced to ten years confinement in the United States Penitentiary at Leavenworth. He was received there January 2, 1941. He was released therefrom December 27, 1946. Immediately on his release he was taken into custody by Kansas authorities under what is called a “Hold Order.” This is an order whereby the authorities of one jurisdiction request the authorities of another jurisdiction to deliver a prisoner whose confinement is about to expire so that- the authorities of the first jurisdiction may deal with him. It is quite commonly used by law enforcement officials.
The petitioner was délivered to the Kansas authorities by the federal authorities and he was taken to the state penitentiary, where he is now being held.
His sole complaint is that when the Kansas authorities had possession of his person in 1940 and surrendered possession of him to the federal authorities they then lost jurisdiction to punish him further. What the argument amounts to is that when a parole violator is taken into custody by state authorities whose parole he has violated, these authorities must take him back to the penitentiary forthwith, that is, they can do nothing else — either that or set him at liberty again on another parole. • •
There are two reasons why that argument is not good here. In the first place, the record discloses that the parole was not revoked until after petitioner was incarcerated in the penitentiary at Leavenworth. It is not at all certain that he was apprehended on account of having violated his parole. For all that appears in this record he was held for the twenty-six days at Kansas City, Kan., for the convenience of the federal authorities until he could be indicted. This often happens. The federal authorities have no jails in which to confine prisoners while they are being held. In such an event there was no surrender of the person of respondent by the state.
In the second place, conceding for the sake o| argument that the parole was revoked at the time petitioner was apprehended in Missouri, or even that he was taken into custody because his parole was revoked, the state might still deliver him to the federal authorities for trial without forfeiting its right to take him into custody again when the federal authorities were through with him. Any other rule would cause rivalry between states and between states and the federal government, which would only result in hampering the general work of law enforcement.
There have been cases where one sovereign has permitted a person to be taken from a penal institution by another sovereign so that the second sovereign might proceed to try him and when the second sovereign was through with him he was returned to the first. The rule is stated in 22 C. J. S. 239, as follows:
“As a general rule, federal courts have no right to interfere with the custody of state courts over persons in their possession. A state court may permit a federal court to exercise some jurisdiction over its prisoner without surrendering the prior jurisdiction which it has.”
“This right of priority, however, is a matter of concern to the courts involved, it being for them, not accused, to decide which shall try or inflict punishment on him first. Hence, such right of priority may be waived, accused having no right to complain thereof, but such waiver extends no further than intended. Thus, one accused of an offense against both federal and state law may be subjected to trial in the courts of one of these sovereignties, when the other, which first had custody of his person, turns him over for such purpose, accused having no right to complain of the jurisdiction thereby conferred.” (p. 238.)
See, also, Ponzi v. Fessenden, 258 U. S. 255, 66 L. Ed. 607; United States v. Farrell, 87 F. 2d 957; and Florio v. Edwards, 80 F. 2d 509.
It follows that the writ will be denied. It is so ordered}.
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The opinion of the court was delivered by
Harvey, C. J.
This is an original proceeding in mandamus to require defendant to register $154,458.85 of general improvement bonds (water supply) of the city of Wichita, being a part of an issue of bonds of the city in the aggregate principal amount of $1,240,800 for that purpose, alleged to have been authorized at a special city election held at the time of the general election on November 5, 1946. Defendant refused to register the bonds upon the ground that the notice of the election was not given for the time required by G. S. 1935, 10-120, the pertinent portions of which read:
“Notice of such election shall'be published in a newspaper of general circulation in the municipality once each week for three consecutive weeks, the first -publication to be not less than twenty-one days prior to such election.” (Emphasis supplied.)
The facts are. not controverted and may be stated briefly as follows: The abnormal growth of the population of the city and the difficulty of - obtaining material and labor for needed city improvements during the war years, became so great that in 1946 plans were made for the issuing of bonds for a number of public improvements, with the result that the city officials prepared and caused to be published in the official city paper on October 3 a series of resolutions which had been adopted by the city commissioners declaring the necessity of the respective improvements, outlining the general character of each of them, directing the city engineer to prepare preliminary reports and estimates of the cost, and the city attorney to prepare proper ordinances, and for the issuance of a proclamation and notice of a special election to be held on November 5, 1946, to vote upon general improvement bonds for the respective purposes.
On October 16, 1946, city ordinance No. 14-492, previously enacted, was published in the official city paper. Section 1 authorized and directed the mayor and board of city commissioners to call a special city election for the purpose of submitting to the qualified electors of the city each of eight propositions for the issuance of general improvement bonds, in the amounts stated as to each,, for the following purposes: (1) For the improvement of the water supply; (2) improvement of the sewer system; (3) constructing suitable buildings for police purposes; (4) erection of a building for a public library; (5). erecting a building for a public auditorium; (6) erecting buildings for the fire department; (7) for adding to the building known as the Forum; (8) erecting a building as a garage for city owned vehicles. Section 2 reads:
“That said election shall be held on the 5th day of November,, 1946, as is provided by law.
“Sec. 3. That the ballots to be used in said election shall be in substantially the following form: ”
Here was set out in full the official ballot for the election. This set out each of the propositions separately, stated the amount of bonds proposed to be issued for each purpose, and gave proper in formation for those who desired to vote for or against each particular proposition.
Section 4 provided for notice of said election, to be given in the manner as provided by law. Such notice set forth the time and place of holding the election.
Section 5. “The proclamation and notice of said special bond election shall read as follows:” ' And here followed in full the proclamation and notice for the city bond election.
On October 17, 24 and 31,1946, there was published in the official city paper the proclamation and notice of the- city bond election. This was complete in form- and identical with those published in the city ordinance.
The election was held on November 5, 1946. On the Friday following the- election the commission met and canvassed the- vote and found that proposition- 1, pertaining, to the bonds for the water supply, had been carried by a majority of 2,661 votes, and proposition 2, pertaining to the bonds for the sewer’ disposal had carried’, by a majority of 3,622, and that each of the other propositions submitted at the election was defeated by the vote cast.
The legislature of-1947 enacted House bill No., 4, which became effective on its publication in the official- state paper March 1,. 1947, entitled, “An Act relating, to cities, validating and legalizing certain bond elections and' bonds.” The pertinent portions- of the- statute read:
“That if any city, prior to the effective date of this act,, has. called an election for the purpose of submitting to the electors of such city the question of the issuance of bonds for one or more of the following purposes: (1) Paying the cost of constructing and equipping a building to repair, maintain and store motor equipment and other personal property of said city,; (2) paying the cost of constructing and equipping a building- to house the police and fire departments of said city and to provide quarters for war veterans’ organizations- and to acquire additional land for-a site for such building;- . . . and the-notice calling such election was first published only twenty days prior to the date fixed for holding such election although the statute under which such election was called required that such- first publication- should be not less than twenty-one days prior to such election, such bond election is hereby validated and said election is hereby declared to be legal and regular in every respeet the same as if the notice calling such election had been first published at least twenty-one days before the date fixed for holding such bond election; and said city is. hereby authorized and empowered to issue the .bonds of such city for any of the purposes approved ... by the majority of the electors voting at such bond election; and such bonds are hereby validated and declared to be valid and legal obligations of such city the same as if said bond election was regular and correct in each and every respect and in full compliance with the law relating to the publishing of notices of bond elections.”
The legal questions argued here are: (1) Whether the notice of election was published twenty-one days before the date of the election, and if not (2) whether the election is validated by House bill No. 4 of the Laws of 1947.
The portion of G. S. 1935, 10-120, above quoted, requires the first publication of the notice of election to be at least twenty-one days before the date of election. The formal proclamation and notice of election was first published in this case on October 17. Counting that day as one of the days of publication there were only nineteen days before November 5. Plaintiff argues, however, that since the proclamation and notice of election was published in full in the city ordinance published on October 16 that date should be counted. We think the point is well taken, and specific authority for so holding is found in State, ex rel., v. Comm’rs of Sherman Co., 39 Kan. 293, 18 Pac. 179. That was a county-seat election, which required the notice to be published thirty days before the date of election. The order calling the election for November 22 was published as a part of the commissioners’ proceedings on October 20 and 27. This was followed by an official publication of the notice of election on October 28, and in each succeeding issue of the paper until November 22. Both the commissioners’ proceedings and the official notice of the election were signed by the proper officiers and were official publications. It was held that the publication of the notice of the election in the commissioners’ proceedings, followed by the official publication, was a compliance with the statute. In this case both the ordinance published on October 16 and the formal -proclamation and notice published on the 17, 21 and 28 of October were official publications, signed by the appropriate city officials. We hold, therefore, that the official publication was for twenty days when, under the statute, it should have been for twenty-one days.
Under our previous decisions we could not regard that as sufficient. The provisions for notice of the time and place of an election are mandatory rather than directory. ' (See State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523, and State, ex rel., v. Staley, 90 Kan. 624, 135 Pac. 602.) Many of our other cases might be cited and commented upon, but we shall not labor this point because of the one next to sbe considered.
Counsel for plaintiff argue that inasmuch as the notices of election were first published twenty days prior to the date of the election that the election was validated by House bill No. -4, above mentioned. We think the point is well taken. It is true that all the propositions submitted in this case were not referred to in House bill No. 4, but three of them, Nos. 3, 6, and 8 were. Hence, House bill No. 4 validated the election upon those propositions. The city ordinance in this case did not call for eight elections; it called for one election upon eight propositions, which was proper. (29 C. J. S. 99.) It would be unreasonable to say that the election was valid on propositions tantamount to those mentioned in House bill No. 4, but was not valid upon the other propositions. It is the election which House bill No. 4 validated. It seems clear to us that in this case the election held on each of the eight propositions submitted to the voters at the special election of November 5, 1946, was a valid election. Since that is true, plaintiff’s officials are authorized to issue the bonds upon the propositions which carried at that election. This includes the internal improvement bonds sought to be registered now.
Judgment is rendered for plaintiff. No formal writ will be issued if the bonds are registered promptly.
Hoch, J., not participating.
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The opinion of the court was delivered by
Smith, J.
This proceeding originated as a petition for the appointment of an administrator filed by a creditor and a surviving partner of the decedent. After a hearing upon issues joined by the filing of a written defense to the petition on the part of one who claimed to be the legal representative of the sole heir at law, the probate court appointed as administrator the party who filed the written defense. On appeal the district court appointed the same person the probate court had appointed. The two original petitioners, the custodian of the minor and the duly appointed guardian of the estate of the minor, have appealed.
There is not much dispute about the facts.
The two petitioners alleged that one was the surviving partner of the decedent and the other was a creditor of her estate as the result of having performed services at her funeral. The petition further alleged that the decedent was survived by James Francis Paronto, three years old, who was her only heir at law-and who was at that time in the physical possession of Donald Armstrong; that the probable value of the decedent’s estate was personal property of the value of $3,500; and that the appointment of an administrator was necessary. The appointment of Dean S. Landon was asked.
This petition was filed April 8, 1946. It was set down for hearing and a notice published. Copies of the notice were mailed to James Francis Paronto and to Donald R. Armstrong as guardian. On May 4, 1946, Donald R. Armstrong filed a written defense to the petition in which he alleged that he was the duly appointed, qualified and acting guardian of the estate of James Francis Paronto, and that he was filing his defense as such guardian and as the legal representative of the sole heir of the decedent. He also alleged that as legal representative of the sole heir of the decedent he was entitled to be appointed administrator of the estate; that Boykin,'one of the petitioners, was not the next of kin of decedent and was not entitled to petition the court for the appointment of an administrator, and Smith, who claimed to be a creditor, had no preferential right to ask for the appointment of an administrator. Armstrong prayed that petitioners’ prayer be denied, and that as legal representative of the sole heir at law of the decedent he be appointed administrator.
On May 4,1946, the petitioners filed their request for the appointment of a guardian ad litem to represent James Francis Paronto at the hearing. In this they alleged that he, a minor child, was the sole heir at law of the decedent and that on the hearing for the appointment of an administrator ■ some disinterested and capable person should be appointed by the court as guardian ad litem for him; that the matter of the guardianship and custody of the minor child was pending on appeal in the district court of Russell county and also a habeas corpus proceeding filed directly in the supreme court of the state involving the right to his custody. No guardian ad litem was appointed pursuant to this request.
On May 4, 1946, the probate court appointed Donald R. Armstrong as administrator. It recited that the court found an administrator should be appointed; that Donald R. Armstrong' was a suitable and proper person to act as administrator and that he should be so appointed upon his taking the oath and giving bond in the amount of $10,000.
Boykin and Smith, the petitioners, appealed to the district court. The probate court failed to transmit the entire record in the probate court, as required, but when the matter came on to be heard in the district court the parties stipulated that all the files should be considered.
On July 11, 1946, Boykin and Smith filed in the district court a motion wherein they alleged that Boykin was an uncle and surviving partner of the deceased and the administrator of the partnership estate and that Smith was a creditor; that James Francis Paronto was an orphan and minor and the decedent’s sole heir; that in the matter of the appeal the moral character and fitness and the capacity of Donald R. Armstrong to serve as administrator was involved; that on April 15, there was commenced in the supreme court an action entitled “Ed Paronto et al v. Donald Armstrong” which was a habeas corpus proceeding to determine Armstrong’s right to the care and custody of James Francis Paronto; that it was then' pending and necessarily involved in it was the moral character and fitness of Donald R. Armstrong and they asked the court to hold the action in abeyance until the supreme court should finally determine the habeas corpus proceeding. Apparently no formal disposition of this order was ever made.
On August 31, 1946, Boykin and Smith filed in the district court a reply to the written defense Donald R. Armstrong had filed in the probate court. In this reply they denied that Armstrong was the duly appointed, qualified and acting guardian of the estate of James Francis Paronto: They alleged that Armstrong was no kin of the child; that he was not a creditor of either the child or decedent; that he was neither an heir nor devisee of the decedent and that he occupied no fiduciary relationship toward either the child or the decedent. They further alleged that all these matters had been fully adjudicated by the order of the supreme court, dated July 10, 1946, and the opinion of the court filed August 7, 1946, entitled “Ed Paronto et al v. Donald Armstrong et ux” and were res judicata and Armstrong was estopped to deny them; that Armstrong had no standing in the proceeding to interfere or object to the petition for administration and that he was in nowise fit, qualified or competent to serve as administrator. They prayed that the order of the probate court appointing Armstrong administrator be set aside and that they have the relief prayed for in their original petition in probate court.
On the 7th of October, 1946, Bessie Cooner, as legal custodian of James Francis Paronto and The Planters State Bank, as guardian of the estate of James Francis Paronto, filed their motion for leave to intervene. At the hearing of this motion on October 7, 1946, the intervenors presented the petitions they intended to file on behalf of the minor child should they be permitted to intervene. In its petition the bank alleged that it was the duly appointed, qualified and acting guardian of the estate of James Francis Par-'onto; that it was to the best interests of the minor and the estate that Dean S. Landon be appointed administrator; that Donald R. Armstrong was no heir of decedent and had no interest in the estate and had no authority or right to object to the appointment of Dean S. Landon; that he was not a proper person to be appointed administrator. Bessie Cooner in her petition alleged that James Francis Paronto was an only child of Hazel Del Paronto and her sole heir; that the child resided with the intervenor at her home in Dickens county, Texas, and that she was the'mother and only surviving parent of the decedent. She alleged she was the legal custodian of James Francis Paronto; that Armstrong was no kin of the child and not a creditor of decedent and had no fiduciary relationship and he was wholly unfit to serve as administrator; that she had read the pleadings filed by Boykin and Smith and consented thereto and she prayed that Dean S. Landon be appointed administrator. The district court denied the motion for permission to intervene.
At the trial before the district court Boykin testified that decedent was killed in an automobile accident, and at the time of her death was a partner with him in the operation' of a beauty shop; that she also owned some bonds and insurance; that she was a widow at the time of her death and had only one child, James Francis Paronto; that Boykin was the duly appointed, qualified and acting administrator of the partnership estate. He further testified that Smith had furnished the funeral services and his bill was a little more than $500 and had not been paid; that at the time of the trial James Francis Paronto was with his grandmother in Texas. He testified that he desired that Dean S. Landon be appointed administrator of the decedent’s estate. Evidence was introduced of the funeral account and that Dean S. Landon was a proper and fit person to be administrator. There was evidence that The Planters State Bank of Salina was the guardian of the estate of James Francis Paronto. There was no evidence offered other than our opinion in Paronto v. Armstrong, 161 Kan. 720, 171 P. 2d 299, as to the fitness or lack of fitness of Donald R. Armstrong to be administrator.
The petitioners offered in evidence our opinion in Paronto v. Armstrong, supra. This offer was refused by the trial court on the ground that it did not tend to prove any issue. The offer was renewed at the hearing of the motion for a new trial and again refused. The matter which gave rise to the offered opinion was an original habeas corpus proceeding in which the uncle and maternal grandmother of the minor James Francis Paronto were plaintiffs and Donald R. Armstrong and Ruby Armstrong, his wife, were defendants. Our commissioner heard evidence and made a report. The court decided the case on the merits and handed down the opinion August 7, 1946. The proceeding was pending at the time of the hearing in the probate court. It had been finally decided at the time of the hearing in the district court. In the presentation of the case the Armstrongs had argued they had been made custodians of the child by his mother during her lifetime and Donald Armstrong had been appointed guardian of his estate and of his person by the probate judge of Russell county, the same probate judge who heard the initial proceedings in this case. The commissioner found that Arm strong had been appointed guardian without notice to anyone. .There was no dispute about those facts. We gave custody of the child to Bessie Cooner, the maternal grandmother. In the course of the opinion we held the appointment of Armstrong as guardian of the person and estate of James Francis Paronto was not only void as a matter of law but so far as Donald Armstrong was concerned it was obtained under circumstances which did no credit to his honor or integrity.
We shall consider the opinion in Paronto v. Armstrong, supra, not as proof of any fact at issue in this action but as establishing as a matter of law that Armstrong’s appointment as guardian was void and he was a stranger to any of the proceedings in this action. This becomes important here because the trial court pointed out that while it had the same jurisdiction and power as though the controversy had been commenced by proceedings in that court, the court did not feel that it should overrule or interfere yvith the judgment or order of the probate court appointing Armstrong administrator unless good cause was shown for doing so. It will be remembered that in his written defense filed in probate court the sole ground upon which Armstrong sought to be named administrator of the estate was that he was the legal representative of the sole heir at law and hence was entitled to be appointed.
The court pointed out that the petition asked for the appointment of Dean S. Landon and that it was admitted by all parties he was duly qualified to accept the trust and that for some reason not shown the probate court disregarded this request and appointed Armstrong. The court also pointed out that nothing was shown by the record to indicate that Armstrong was not fully qualified to accept the trust.
G. S. 1945 Supp., 59-705, provides as follows:
“Administration, of the estate of a person dying intestate shall be granted to one or more of the persons hereinafter mentioned, suitable and competent to discharge the trust, and in the following order: (1) The surviving spouse or next of kin, or both; as the court may determine, or some person or persons selected by them or any of them. (2) If all such persons are incompetent or unsuitable, or do not accept, administration may be granted to one or more of the creditors, or to a nominee or nominees thereof. (3) Whenever the court determines that it is for the best interests of the estate and all persons interested therein, administration may be granted to any other person, whether interested in the estate or not.”
The trial court quoted this section and held it was not obligated to appoint the nominee of a creditor, citing In re Estate of Grattan, 155 Kan. 839, 130 P. 2d 580, where we stated that the probate court had a measure of discretion with respect to'the appointment of an administrator. The court also found:
“The court finds and determines that it is for the best. interests > of the estate and all persons interested therein, that the order of the Probate Court appointing Donald Armstrong as administrator of this estate will be affirmed.”
Judgment was given accordingly. Donald R. Armstrong was appointed administrator.
The trial court said in passing on the motion for a new trial that the qualifications of Mr. Armstrong were only attacked by written statements which had never been substantiated in any way; that the motion should be overruled.
Appellants in this court are Jim Boykin and Rush V. Smith and intervenors Bessie Cooner, in whose custody we placed the child, and The Planters State Bank, as guardian of the estate of James Francis Paronto, a minor. They have appealed from the judgment denying the'motion of Bessie Cooner, legal guardian, and The Planters State Bank, guardian of the estate of James Francis Paronto, for leave to intervene; from the judgment rendered October 15, 1946, appointing Armstrong administrator and refusing to appoint Dean S. Landon, and from the order denying a new trial and all the other intermediate rulings and decisions.
The appellants argue that we should interpret G. S. 1945 Supp., 59-705, to the effect that the probate court was obliged under the circumstances to appoint Dean S. Landon administrator since he was the nominee of a creditor. Armstrong cites and relies on In re Estate of Grattan, supra. In that case the contest was between parties, one of whom desired a man designated in a will to be appointed executor while opposing parties urged the appointment of one who was not so designated. ■
The trial court in this action construed our statement in that case to mean that the probate court in the first instance in proceedings for the appointment of an administrator and the district court on appeal could under the provisions of G. S. 1945 Supp., 59-705, in the exercise of discretion, appoint any person desired, so long as the court should .determine that it was for the best interests of the estate and all persons interested in the estate that administration be granted to that person. In this case the trial court made such a finding.
We said in In re Estate of Grattan, supra, that G. S. 1945 Supp., 59-705, enlarged the discretionary power of the probate court in appointing administrators. We do not find it necessary to comment further upon that language here. There still remains the question of whether under all the surrounding facts and circumstances this case was one where the probate court in the first instance and the district court on appeal was entitled to exercise any discretion.. We shall consider that point.
The original notice of the hearing upon which all of .the proceedings are based was directed to James Francis Paronto and Donald R. Armstrong, as guardian. The statute provides for notice of the hearing of an application for administration by publication for three weeks and the mailing of a copy to each heir, devisee, legatee or guardian and ward. (See G. S. 1945 Supp., 59-2222 and 59-2209.) On the face of things the notice to James Francis Paronto, the three-year-old child, and Donald R. Armstrong, as guardian, complied with this section. The entire situation does not become plain, however, until we consider the further proceedings, including the defense filed by Armstrong in answer to that notice. He alleged first he was filing the defense as guardian and as the legal representative of James. Those were merely formal allegations, however. At the point in his pleading where he really sought to allege a defense to the petition for administration he stated that he, as legal representative of the sole heir at law of the decedent, was entitled to be appointed administrator of the estate. He was there seeking the appointment for himself, and relying on the appointment as guardian which he had procured by what we subsequently held amounted to fraud. See Paronto v. Armstrong, supra. He alleged nothing in reality as a representative of the minor. On the same day the petitioners asked that a guardian ad litem for the minor and sole heir be appointed. No such guardian ad litem was appointed. On the same day Armstrong was appointed administrator. Those proceedings were had just thirty days after Armstrong had been appointed guardian of the person and the estate of the minor without notice to anyone. Approximately fifteen days before the proceedings in this case were had, a habeas corpus proceeding had been filed in the supreme court involving the right of the Armstrongs to the custody of James. An appeal had been taken to the district court from the order appointing Armstrong guardian of the minor. It must have been apparent to the probate judge when hearing this petition that all questions involving the affairs of James Francis Paronto, the minor, and the estate of his mother were controversial. The statute provides that the court may appoint a guardian ad litem in any proceeding to defend a party who is under legal disability. (See G. S. 1945 Supp., 59-2205.) Certainly James Erancis Paronto was under -legal disability on April 4,1946, since he was only three years old. Armstrong pretended to file a defense for James but actually filed it on his own behalf. It is true the statute uses the word “may” appoint a guardian ad litem rather than “shall.” In Paronto v. Armstrong, supra, in speaking of the appointment of Armstrong as guardian we referred to G. S. 1945 Supp., 59-2257 and 59-2259, which latter section provides for guardianship proceedings, and said:
“Under the quoted statute service should have been made upon the ward. A guardian ad litem should have been appointed for him, G. S. 1945 Supp., 59-2205, and notice should have been given to his nearest kindred. The probate code was constructed upon the plan of adversary, as distinct from ex parte procedure. Parties substantially affected by probate court rulings are entitled to be heard. Notice and an opportunity to be heard are essential to due process of law. We have not hesitated to strike an ex parte order made by a probate court which substantially affected the rights of a party. Here the care, support and education of a child three years of age, during his minority, as well as the care of his substantial fortune, were involved; also involved were the rights of the nearest kindred to the custody; care and education of the child. All of these were ignored by the ex parte order of the court appointing Donald Armstrong as guardian of the person and estate of the child. We regard the order as void.” (p. 727.)
At the time this appointment of administrator was made there could not have been any doubt in the probate court’s mind but that conflicting interests were presented by the issues. The actual question involved was not whether Donald R. Armstrong was entitled to be administrator of the estate because he had been appointed guardian. The actual issue was the best interests of the estate, and of the only heir and how best to safeguard them. Notice was sufficient under the statute but when Armstrong failed to file any pleading in behalf of the minor and the court refused to appoint a guardian ad litem the force and effect of that notice was lost. We hold it was an abuse of discretion on the part of the probate court to refuse to appoint a guardian ad litem for the minor so his interests could properly be presented. So far as the probate court is concerned nobody has yet appeared to defend the minor himself and his interests. The order of the probate court was of no higher standing than if it had been made without any notice whatever. We held in the case of Paronto v. Armstrong, supra, that all the proceedings with reference to the guardianship were void and of no effect whatever, so that Armstrong was and is in reality a stranger to the proceedings.
G. S. 1945 Supp., 59-705, provides that letters of administration shall be granted to persons of certain classes, providing they are .suitable and competent to discharge the trust. The section also provides in what order they shall be given preference. In the first designated class is “the surviving spouse.” There was no surviving spouse here since Mrs. Paronto was a widow. Next in that class is named “the next of kin.” The next of kin here was a three-year-old boy. ■ Obviously he could not be appointed. We have demonstrated, however, that it was the duty of the court to name a guardian ad litem for him. Had the court done this the guardian would have filed a pleading and selected some person on behalf of the minor and next of kin whom he wished, in compliance with the statute, to have appointed. The probate court would then have had the duty and power to exercise its discretion as to whether any such persons were incompetent or unsuitable. It would have been necessary, however, that this finding be based on evidence and not made by the court without any evidence whatever, as was the case here. If the court should have found the next of kin or the person selected by him to be incompetent or unsuitable or in case none of them accept the appointment, still the court would not have been free to appoint whomever it wished or thought suitable. The statute next provides that in the event of the happening of any of the above contingencies administration may be granted to one or more of the creditors or a nominee or nominees of them. This is a clear provision that next after the surviving spouse and next of kin, a creditor or creditors or their nominee are entitled to be named. In the event the court should determine that it is for the best interests of the estate and all persons interested in it that administration be granted to any other person whether interested or not, such person may be appointed. This determination must be based upon evidence, however. Here there was no evidence whatever offered in probate court that the nominee of Smith, the creditor, was incompetent or unsuitable to accept the trust. The next of kin was denied any opportunity to select an administrator through a guardian ad Utem. There was ho evidence whatever that it would be for the best interests of the estate and all persons interested in it to grant administration to some other person. Under such cimcumstances the probate court should have granted administration to the nominee of the creditor.
An appeal was duly taken to the district court by the petitioners.
There the person in whose custody this court had placed James Francis Paronto, that is, his maternal grandmother, and The Planters State Bank of Salina, which had been appointed guardian of his estate, asked leave to intervene in the administration proceedings on behalf of James. In the intervening petitions tendered by them they disclosed that they intended to raise the point of the unfitness of Armstrong to be administrator of the estate, as well as the adjudication of the guardianship matter and the custody of James, which had been passed upon by this court in the meantime. (See Paronto v. Armstrong, supra.) They each asked that administration be granted to Dean S. Landon, the same person nominated by the creditor, one of the original petitioners. The motions for leave to intervene were denied by the district court. Neither Bessie Cooner nor the guardian of the minor’s estate had appeared in the proceedings in probate court because their official status had not been established at that time. On appeal from the probate court the district court exercises the same jurisdiction as though the controversy had been commenced in that court and may allow pleadings to be filed or amended. (See G. S. 1945 Supp., 59-2408; In re Estate of Pallister, 159 Kan. 7, 152 P. 2d 61.) Had the appeal come on to be heard without the offer of intervention by Bessie Cooner and the bank or assuming for the sake of argument that no guardian of the estate of James Francis Paronto had been appointed it would have been the duty of the trial court to appoint a guardian ad litem. No such action was required here, however, since there was a duly appointed guardian asking to be allowed to plead for the minor. The statute provides that “The guardian of the estate shall (1) prosecute and defend for his ward ... (5) possess and manage the estate . . .” (See G. S. 1945 Supp., 59-1804.) It was the duty of the bank that had been appointed guardian to intervene in this proceeding and to represent the minor. It was the duty of the district court to permit it to intervene.
At the time the cause was finally submitted to the trial court, the only creditor had requested the appointment of Dean S. Landon. The duly appointed, qualified and acting guardian of the estate of the next of kin and the custodian of the person of the next of kin had both filed pleadings stating that had they been permitted to intervene they would have requested the appointment of Landon. The trial court on substantial evidence found that he was fully qualified to accept the trust.
On appeal the district court is bound by the provision of G. S. 1945 Supp., 59-705, just as we have demonstrated the probate court was bound. There was ample evidence to sustain the finding as to the qualifications of Landon. There was no evidence one way or the other as to the qualifications of Armstrong. This court, however, ha,d held his appointment as guardian void. This had been done at the time of the hearing in district court. It was called to the attention of the trial court. Armstrong was a stranger to all the proceedings at the time of the trial court’s final action.
The trial court concluded that it had the same general power and jurisdiction as though the controversy had been commenced in that court and as though it had original jurisdiction. In this it was correct. (See G. S. 1945 Supp., 59-2408.)'
The trial court, however, apparently had a mistaken conception of its duty under G. S. 1945 Supp., 59-705. The judge stated that the district court should not overrule or interfere with the judgment of the probate court. It was the duty of the district court to Lear the entire matter on the merits and to form an independent judgment of its own as to the facts and the law. This must be the rule or there would be no use of the statutory provisions allowing the district court to permit the filing of new pleadings and the introduction of evidence, as was done in the district court. The burden was not on the petitioners nor either one of the ihtervenors to prove that Armstrong was not fully qualified to accept the trust. He had not been nominated or selected by anyone but himself. Once the trial court found as a matter of fact that Landon, the man selected by the creditor, and who would have been selected by the guardian of the next of kin, was fully, qualified, it became the court’s duty to grant administration to' him. This matter should be settled without further litigation.
The judgment of the trial court is reversed with directions to transmit the entire record to the probate court and to direct that court to permit the guardian of the estate and the custodian leave to intervene and to proceed with the administration of the estate in accordance with the views expressed herein.
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The opinion of the court was delivered by
Harvey, C. J.
This was a workmen’s compensation case. The workman filed a claim for compensation for personal injuries, and also filed a petition to set aside a final receipt and release executed by him, on the ground of mutual mistake. The matter was set for hearing before the compensation commissioner on October 18, 1946. At this time claimant appeared without an attorney. Answering questions asked him by the commissioner he stated that b.e could not read or write and had no schooling further than the third grade; that on November 18, 1945, he was working for respondent as a roustabout; that his job was pulling rods and tubing and almost anything there was to do around an oil well; that “I was lifting on a drill stem, when there was a severe pain hit me in the back, and I was unable to straighten up, back and hips”; that he went back to work sometime between the 5th and 8th of January, 1946, but was unable to do anything but light work; that he stayed on the job until February 26, when his thumb was broken and he had to lay off for a time; that he then went back to see if he could go to work and was told that he was not needed. The answers to some of the questions asked him by the commissioner and by counsel for respondent were somewhat confused and tended to be contradictory. Obviously, part of that arose from the fact that claimant did not fully understand some of the questions. The commissioner concluded that claimant could not well present his own case, suggested that he get an attorney and that the hearing be held later. To this claimant’agreed. The hearing was resumed before the compensation commissioner on December 20, 1946, plaintiff appearing with his attorney and respondent and the insurance carrier appearing by their counsel. The parties stipulated:
. . that they were governed by the Kansas workmen’s compensation law; that the insurance carrier for the employer is The St. Paul Mercury Indemnity Company; that the claimant met with an accidental injury which arose out of and in the course of his employment with this respondent on November 18, 1945; that the relationship of employer and employee existed at the time of the alleged accidental injury; that respondent had notice of such accidental injury; that written claim for compensation was served as required by law; that compensation in the amount of $74.52 has been paid; that medical and hospital expense has been furnished in the amount of $52.50.”
The questions at issue were the nature and extent of the injury and disability, the amount of compensation to be paid, if any, and the average weekly wage. Respondent offered to agree to an average weekly wage of $60, and that offer was accepted.
After hearing the evidence the commissioner set aside the final receipt’ and release and rendered an award to claimant for total permanent disability, subject to review and modification as provided by law. Respondent and his insurance carrier appealed to the district court, where, after a hearing, the court held:
“. . . that the evidence sustains the award made by-the commissioner, and the findings and award made by the commissioner are by this court confirmed and approved, and the court adopts the findings of the commissioner as the findings of the court . . .”
Respondent and its insurance carrier have appealed and contend (1) the evidence is insufficient to justify the cancellation of the release, and (2) the evidence is insufficient to sustain a finding that claimant’s disability resulted from the accident of November 18, 1945.
The questions thus raised are regarded as questions of law under G. S. 1935, 44-556. (See Smith v. Cudahy Packing Co., 145 Kan. 36, 64 P. 2d 582; Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, syl. ¶ 5, 139 P. 2d 846; 148 A. L. R. 1131, and cases cited therein.) In considering the legal questions thus presented this court does not weigh the evidence. • It examines the evidence only to see whether it contains sufficient to support the judgment of the trial court, and in doing so it looks to evidence to support the judgment, disregarding the evidence tending to the contrary.
In Shay v. Hill, 133 Kan. 157, 299 Pac. 263, the court held: .
“ . . . this court may not review the evidence as the district court did, and determine the nature of the relation between the employer and the deceased. The function of this court is limited to determining if there was evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court.”
This holding has been adhered to consistently in our subsequent decisions. In Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402, it was said:
“Under our decisions we have neither duty nor authority to weigh the evidence and are concerned only with such testimony as supports or tends to support the findings and judgment of the trial court. Our jurisdiction is specifically limited to questions of law (G. S. 1935, 44-556). Once that testimony has been ascertained our only function is to determine whether it is competent and substantial in character. If it is, the trial court’s decision that the injury is compensable must be upheld. It is not for us to speculate as to whether’ there was other evidence which might have warranted a contrary decision. This is true even though such evidence might lead us to a different conclusion if we were the triers of fact. That the principles just enunciated are well grounded in this jurisdiction and are no longer open to argument or debate is evidenced by a long line of uniform cases (see Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 362, 139 P. 2d 846, and earlier cases there cited). Por more recent decisions of like effect, see Carrington v. British American Oil Producing Co., 157 Kan. 101, 105, 138 P. 2d 463; Goss v. McJunkin Flying Service, 157 Kan. 684, 143 P. 2d 659; Thompson v. Swenson Construction Co., 158 Kan. 49, 56, 145 P. 2d 166; Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 402, 147 P. 2d 705; Murphy v. I. C. U. Const. Co., 158 Kan. 541, 542, 148 P. 2d 771; Woodfill v. Lozier-Broderick & Gordon, 158 Kan. 703, 705, 149 P. 2d 620; Hall v. Kornfeld-Harper Well Servicing Co., 159 Kan. 70, 74, 151 P. 2d 688, and Stanley v. United Iron Works Co., 160 Kan. 243, 160 P. 2d 708.” (p. 522)
Viewed in the light of the above authorities the pertinent evidence in this case may be summarized as follows: Claimant, 35 years of. age and illiterate, was working as a roustabout in oil-field work, which consisted of servicing oil wells, pulling the drilling tools and casings, and doing whatever was necessary to be done in that connection. In September, 1943, he was riding in a truck when one of the truck wheels broke, the truck rolled over on its side and caught fire, burning both of plaintiff’s hands, hurting his shoulders and left chest walls. Doctor Leonard, who treated him at that time, made the following diagnosis:
“Second degree burns, tip of second, third and fourth digits, right hand, and mild burn of the left hand, and contusion of back and left shoulder.”
After that injury he wore a light belt, for what length of time is not shown. It is not disclosed by the abstract whether any claim for compensation was made for those injuries, or for whom, if anyone, claimant was then working. He did return to work with respondent in November, 1943, and appears to have worked steadily until November 18, 1945, except that in April, 1945, he suffered what he described as a slight strain in his back, which laid him off for two or three days. No claim for compensation was made for that injury, and he paid his own doctor bill. On November 18,1945, at about 2:00 o’clock p. m., he and three other workmen were lifting a drill bit, which he estimated weighed as much as a thousand pounds. He felt a severe pain in his back and fell down and had difficulty getting up. In some way he got to his home. His wife testified: “Well, he was down in bed, and couldn’t get up.’.’ How long that continued is not disclosed. On November 24 he saw Doctor Leonard. His diagnosis at that time was sacroiliac sprain, and he reported that the probable length of the disability would be a few days. Claimant went to the doctor’s office along through No vember and December and the doctor gave him some heat treatments. On December 26, the doctor released him.for work. The doctor testified:
“He has been at the office and I have talked to him about his back several times afterwards, but I never examined him.”
The doctor saw him again on January 5, and apparently everything was going along all right. The claimant testified that the doctor released him only for light work, that he knew he was not able to go back to heavy work at that time. .
“. . . but I felt like I should try to do something, I couldn’t live on $18 a week, and I figured if I could do light work I could do a better job of supporting my family.”
Apparently respondent put him on the pay roll again as of December 26, but he testified he did not actually go to work until about the 6th of January. Respondent had been paying compensation, and on January 2 Mr. Norton, apparently respondent’s foreman, took the claimant an instrument, which he told him was a release. He did not read it to claimant nor further explain what it was. Claimant could not read it and did not understand it. He thought it was a permit for him to return to work. It was a lengthy instrument which, with the physician’s report attached, covers five pages of the abstract. It contained a receipt for $38.52, making with the payment previously received the sum of $74.52 in final receipt and release of liability. Claimant took it to the bank in Chase, signed and acknowledged it before a notary public and it was returned to the employer by mail. When plaintiff returned to work about January 6 he was still suffering pain, but undertook to do his work. On the third day after he went to work for respondent he suffered unusual pain. He did not regard this as an additional hurt, but simply an increased pain from the hurt received on November 18. He testified that the other men of the crew did the heavy work and let him do the light work. In this he was corroborated by one of the workmen, who testified:
“Q. Did he do the light work or did he do just the regular work again? A. Well, he didn’t do hardly anything, because he was not able to do it. . .. . We let him do things that he could do; and what he couldn’t we done.”
He continued this work until February 26, when he was handling some large wrenches and one of them slipped in such a way that it broke the bone of his thumb. He quit to have that set and to per mit it to get well. All of that time the disability from his injury of November 18 continued, and increased. He went back to Mr. Norton in April to talk about going back to work and was told that they had no place for him. Later X rays were taken by Doctor Gill and he was examined by Doctor Jarrott, who testified as follows:
“The patient was complaining of pain in the dorsal area of the back, the lumbosacral area, sciatic radiation down the posterior aspects of the thighs, particularly on the right. Physical examination revealed moderate to severe lumbosacral findings, with a pelvic tilt to the right, severe lumbosacral muscle spasm, limitation of motion of the straight leg raising on the right at 30 degrees. There was no atrophy in either extremity. X-rays taken by Dr. Gill and brought by the patient to the office, Exhibits B, C, and D, revealed a slight compression of the fourth lumbar vertebra anteriorly, a large, soft arthritic spur in the anterior superior edge of the fifth lumbar vertebra, a marked narrowing of the lumbo-sacral joint posteriorly, with approximately one-fourth reverse spondylolisthesis. The posterior edge of the superior sacrum impinges on the lower edge of the fifth lumbar vertebra. His diagnosis, strain, chronic, lumbo-sacral joint, severe. . . .” (Emphasis supplied.)
Claimant testified that he had done no work since February 26, 1946; that he was in constant pain and unable to do any work. No contention was made in the hearing before the Commissioner or the trial court, and none is made here, that claimant was not correctly classified as being totally and permanently disabled for performing labor; hence, we need not further detail the medical evidence. With respect to the release the commissioner found:
“The man does have the appearance of a very honest workman. He is only thirty-five years old, and he was making excellent money prior to the time of his accident, and it would certainly appear he would rather be making the salary he was- making than be on pay of $18 per week under workmen’s compensation. He testified that he received the settlement agreement and release in the United States mail and he thought it was an authorization for him to return to work, so he signed the same before a notary public without having it read to him, and he returned it to the company without any argument. He also testified that he could not write except for signing his name and that he could not read; that he had very little education. Under these circumstances and in view of the fact this man has done no work of any kind from February 26 to the time of trial, December 20, 1946, it is found that there was a mistake as to the nature of his injury and the settlement agreement, final receipt and release of liability executed on January 2, 1946, is hereby set aside.”
The commissioner further found:
“In view of the-findings of Drs. Gill and Jarrott it is found that claimant is now wholly disabled by reason of his accidental injury of November 18, 1945, . . .”
These findings were approved by the trial court and the trial court made the further finding of the extent of his injuries as follows:
. . that claimant and respondent and insurer entered into a stipulation that claimant met with an accidental injury which arose out of and in the course of his employment with respondent on November 18, 1945; that although there was testimony introduced which showed that claimant had a weak back before November 18, 1945, there was undisputed evidence that claimant had been performing his work satisfactorily, and getting paid for it, prior to November 18, 1945; that there is undisputed evidence that claimant now is permanently disabled from performing the heavy work he did prior to November 18, 1945, and that because of claimant’s lack of education he is prevented from performing anything except heavy manual labor.”
We think from the evidence the court was justified in setting aside the final receipt and release. Doctor Leonard, when he examined .claimant on November 24, reported to respondent “that the probable length of the disability would be a few days,” yet he treated claimant for about a month before he permitted him to go to work at all, and during that time made no further examination of him. Claimant knew he was not able to do the hea'vy work, but there is no evidence that he knew any more about the extent of his physical injury than the doctor knew, and as we have seen, he was obviously mistaken. More than that, it is clear that the release was not understanding^ executed by the claimant, and the amount paid for release was grossly inadequate. We think'there is no necessity of making an extensive review of the authorities. Counsel both for appellants and appellee cite authorities to the effect that when both parties were mistaken as to the extent of the injury at the time the release was executed the court may properly set it aside.
Claimant based his claim for compensation upon the injury of November 18, 1945. Counsel for appellants do not contend that there was no substantial, competent evidence to sustain the trial court’s finding that claimant is totally incapacitated. The claim is that the evidence does not justify the finding of the trial court that his' present incapacity resulted from the injury of November 18, 1945.' In doing so counsel point to the injury of April, 1943, when claimant''strained his back and laid off from work for two or three days. We think the court was justified in concluding that these injuries no more than demonstrated that perhaps claimant’s back was not as strong as it should have been to justify him in doing the heavy portion of his work. That situation, of course, would not defeat claimant. The compensation law does not require the workman to have been perfect physically. (See Blackburn v. Brick & Tile Co., 107 Kan. 722, 726, 193 Pac. 351; Williams v. Cities Service Gas Co., 151 Kan. 497, 99 P. 2d 822.) The weight to be given to all that evidence was for the trial court. Having weighed all of the evidence the tri^l court concluded that the disability suffered by claimant resulted from the injury of November 18, 1945. We have no authority to. reweigh this evidence and reach a different conclusion. We have no difficulty in saying that the evidence was sufficient to justify the trial court in the conclusion it reached.
Counsel for appellants point to some discrepancies in the testimony of claimant. We have previously referred in part to those. There was testimony that claimant’s injury has made him highly nervous and that he was nervous at the time of both the hearings before the commissioner. Counsel for respondent quite vigorously cross-examined him at both hearings. There were some discrepancies, at least a part of which arose from the fact that claimant did not understand the questions or take sufficient time to comprehend them. In this connection counsel for appellants cite cases from other states to the effect that when a situation of that kind arises “the trier of the facts is not entitled to guess as to which version is correct and as a matter of law the testimony is unsufficient to sustain the burden of proof.” Counsel frankly state they find no cases in our reports to sustain this rule. Indeed, the rule is contrary to our many decisions previously noted herein. Counsel suggest that the rule contended for" is clearly analogous to the situation involved in Streeter v. Dowell, 43 Kan. 545, 23 Pac. 599. An examination of that case discloses that the question actually ruled upon there was that there was no substantial evidence to support the verdict of the jury, and the case has been so treated in the only two cases in which it has been cited by this court (King v. Telegraph Co., 81 Kan. 223, 228, 105 Pac. 449; Elliott v. Ball, 113 Kan. 447, 449, 215 Pac. 293). As so construed the rule is a common one in this state. But, as previously noted, counsel do not invoke it here, and if it were invoked it would lack merit. As the trial court pointed out, claimant had performed his work for two years prior to his injury on November 18, 1945, and that he never has been able to do the work since that date. Medical evidence which is not controverted connects his present disability with that injury.
Counsel for appellants stress a conflict in the evidence in this respect: Claimant testified that Doctor Leonard, on December 26, 1945, released him for light work. Doctor Leonard testified that the release was not so limited; that h.e released him for work. Doctor Leonard made a report to the employer that claimant was released for work. There is no contention that claimant saw that report or was told about it, hence the report itself is not binding upon claimant. The discrepancy in the oral testimony was for the trier of facts. The trier of facts had a right to believe claimant as distinct from Doctor Leonard on that point; indeed, it was the duty of the trier of facts to do so, if he thought from the entire situation such a construction was proper.
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hoch, J.
This was an action to recover amounts alleged to be due under well-drilling contracts. On one cause of action, the jury was unable to agree. On a second cause of action, the trial court directed a verdict in favor of the plaintiff. The defendant oil company appeals, asserting that the trial court erred in overruling its demurrer to the evidence on the first cause of action, and in directing a verdict for plaintiff on the second cause of action.
The essential facts may be briefly stated. In November, 1943, the appellee Helmerick & Payne — a corporation engaged in the business of drilling oil wells — entered into a written contract with appellant, The Bay Petroleum Corporation, to drill a well on a lease held by Bay in McPherson county. Under the terms of the contract, the appellee was to furnish at its risk and expense all drilling equipment and labor, and the appellant was to furnish all necessary casing, cement, well control and production équipment, welding — except on appellee’s equipment — special mud materials not normally required, and certain other items not necessary to enumerate.
A well, designated Carter-Carlson No. 1 — hereinafter referred to as Well 1 — was begun, but was not completed to the agreed depth. A second well, known as Carter-Carlson No. 1A — and hereinafter referred to as Well 1A — was then drilled to completion. Bay refused to pay for the work done on Well 1, uncompleted. The undisputed amount due for drilling Well 1A was $12,014.84. From this amount, Bay withheld $3,785.85, asserting that it had been put to unnecessary expense in that amount as a result of improper drilling methods employed on Well 1. In the action by the well-drilling company which followed, the plaintiff sought, in the first cause of action, to recover for the expense of drilling the uncompleted Well 1, and in its second cause of action, to recover the unpaid balance on Well 1A.
The controversy as to uncompleted Well 1 turned upon the question of whether the abandonment prior to completion was directed by appellant, and without fault on the part of appellee, or whether the hole was “lost” by appellee, in which case no payment would be due. The issue involved in the appeal from the order directing a verdict for plaintiff on the second cause of action will be stated later.
As to abandonment of Well 1 and the circumstances leading up to such abandonment, appellee’s petition contained the following allegations:
“That thereafter said plaintiff moved in its tools and commenced actual drilling with rotary tools of said test well upon said lands within the time and at the location mentioned in said contract, and thereafter continuously drilled the same with due diligence to an approximate depth of 305 feet, which was reached on November 28, 1943. That in accordance with the terms of said contract said defendant was to furnish all casing to be set in said hole when and as needed, and said defendant had, prior to said November 28, 1943, delivered at the well location 305 feet of 8% inch casing. That at the time said hole was drilled to said approximate depth of 305 feet, H. M. Myers, the daylight driller in charge of the drilling of said well for said plaintiff, got in touch with Mr. Forrest Crawford, the District Superintendent of Defendant in charge of the drilling of its wells in the district in which said well was being drilled, and with full power and authority to represent said defendant company in all matters relative to the drilling of said well, and told him that in that locality where said well was being drilled there is a very porous formation encountered between the approximate depths of 300 and 380 feet, which was so porous that same usually and normally could not be drilled with rotary tools without casing off the same, because the formation would absorb the rotary mud and stop mud circulation necessary to rotary drilling; that the defendant company had then only furnished 305 feet of 8% inch easing to case off said formation and that approximately 375 to 380 feet of said casing should be furnished. Said Crawford then told said Myers that the defendant company did not desire to run but 305 feet of 8% inch intermediate casing in said well, that the risk and responsibility for setting an inadequate amount of said casing in the hole was on the defendant and for him to go ahead and run the same and make arrangements for the defendant with the cementing company to have same cemented in the hole. That thereupon said Myers informed Crawford that plaintiff company would not run that small amount of casing in the hole as it would most probably not be sufficient to case off the dangerous porous formation found at the depth above stated, and would probably cause the loss of the hole. Whereupon said Crawford told Myers that the risk and respond sibility of running said shorter string of casing would be upon the defendant company if anything happened to the hole because of the same and ordered and authorized him to run and cement said 305 feet of 8% inch casing in said hole, and that if same was insufficient the loss would be on the defendant company. That thereupon Myers told said Crawford that under those conditions only, he would run the casing in the hole and have same cemented, but that if anything happened to the hole because of the same, the liability and loss therefor would be at the risk and expense of defendant company and said Crawford then and there agreed to the same.
. “That after said 305 feet of 8%’ inch casing had been run and cemented in said hole said plaintiff resumed the drilling thereof with rotary tools, drilled out the cement plug in said casing and drilled said hole to a depth of 784 feet, at which time circulation was lost through the porous formations (which should have been cased off) found in said hole between the depth of 305 and approximately 380 feet; which caused.plaintiff to cease drilling. That thereafter said plaintiff attempted to cement off said porous formations (which caused the loss of said circulation and cessation of said drilling) and put said well in condition so that drilling could be resumed; but up until December 13, 1943, had been unable to condition the well so that drilling could be resumed and the hole completed. That on or about December 13, 1943, the said Forrest Crawford ordered said plaintiff, by and through its duly authorized drilling superintendent for that district, C. R. Smith, to plug and abandon said well, skid over and commence and drill another well close by. That an itemized statement of plaintiff’s actual expense of moving in, rigging up, drilling and plugging said first well is hereto attached, marked Exhibit ‘B’ and made a'part hereof; and said defendant is indebted to said plaintiff in said amount plus 15 percent thereof.
“a. That the amount of 8% inch casing (namely, 305 feet thereof) furnished by the said defendant for use in drilling said well, was, for the reasons above stated, wholly inadequate for that purpose, and because of that fact, and that fact only, said plaintiff was unable to complete.and drill the same to contract depth and said defendant so ordered same plugged and abandoned.”
Under these allegations, appellee sought recovery for expenses incurred upon incompleted Well 1, resting its claim principally upon paragraph 14 of the drilling contract, which was as follows:
“14. PREMATURE ABANDONMENT. Bay reserves the right to require Contractor to stop drilling and either complete or abandon test.well at any time or depth. If abandonment or- completion is ordered, before a depth of twenty-five hundred (2500) feet has been reached, Bay shall pay Contractor for Contractor’s actual expense of moving in, rigging up, drilling, plugging or completion and dismantling the tools plus fifteen percent (15%) of such sums, or at Contractor’s option, Bay shall pay at the herein specified footage price for actual footage cut or made.”
In its answer appellant alleged:
“That in the drilling of said test well described in said petition as Carter-Carlson No. 1, said plaintiff was guilty of negligence in that said plaintiff attempted to drill said well and make hole therein at a speed and rate which was excessive when measured by customary and efficient practices in the drilling of such oil wells, and in so doing put too much weight on the drill stem of said drilling equipment and as result thereof caused the breaking and rupturing of the surface pipe furnished by said defendant. That said plaintiff by the exercise of due care knew or should have known that said excessive speed and excessive weight put upon said drill stem would result in damage to and breaking of said pipe.” (Italics supplied.)
It then alleged that “by reason of the negligence of said plaintiff and the resultant break in said pipe,” it was damaged in the sum of $3,785.85 because of loss of casing, the expense of cementing, of welding, of plugging the abandoned hole, et cetera, and that such amount was accordingly withheld from payment on Well 1A. Appellant contends that it owes nothing for the drilling of Well 1, uncompleted, and stresses the provisions of paragraph 16 of the contract, which reads as follows:
“16. LOSS OP HOLE. Should test hole be lost before contract depth is reached, Contractor shall move tools to a new location designated by Bay as a reasonable distance from lost hole and proceed with the drilling of another .test well under the terms of this contract. Contractor shall not be entitled to any payment from Bay under the terms hereof for any footage made or work done in such lost test hole.”
Narrowly stated, the question is whether there was any substantial evidence to support appellee’s contention that Well 1 was ordered abandoned by the appellant and that such abandonment resulted from appellant’s failure to furnish the required casing as alleged. Our examination of the record convinces us that there was ample evidence of that sort to require submission of the question to the jury, and that appellant’s demurrer to the evidence as to the first cause of action was properly overruled. We need only summarize some of the evidence which tended to support appellee’s allegations, above recited.
Craig, testifying as general production superintendent for the Bay company, testified that Crawford was “production foreman” for the company throughout the state of Kansas, and that his orders were carried out by Crawford. Crawford testified that he took his orders from Craig and transmitted them in the field. Smith testified that he was drilling superintendent for appellee, and in charge of drilling wells in Kansas, and that prior to the instant contract he had drilled two or three other wells for Bay, the appellant; “that Mr. Crawford informed us how much casing to set and where to set it in these other wells.”
Meyers, driller in charge for appellee, testified:
“A. Well, I put in a call for Mr. Crawford — I put one in for Mr. Craig for Wichita and couldn’t get in contact with him — placed a call for Mr. Crawford in Lyons and couldn’t contact him at that time, but he called back, and answered the call later, two or three or four hours later, maybe it was — I don’t remember just how much it was, but I told him we didn’t have enough pipe to reach the anhydrite formation that was presumably the first solid formation to set the 8% inch casing inj and he asked me how much I had, and I said 305 feet, and we should have between 360 to 375, somewhere in that neighborhood, and he said, ‘Well, that is all; you have got as much pipe as we sent to the other well out there drilling south of us, and I believe that will be enough pipe for you, so go ahead and run it.’
“A. Well, I told him that we had lost circulation when we were cutting our first well there, and continued to lose it while we was reaming the hole for the 8%, and that we would run into trouble if we tried to cement that pipe in that porous formation.
“Q. Did you say anything about how much pipe you thought you ought to have? A. I told him I thought we should have between 360, 70, 75 feet. That is what I had been warned against when I went over there to drill it, to be sure and set it in a solid formation.
“Q. After you had this conversation with Mr. Crawford, what did you do next on the well? A. I went ahead and run the 8% inch casing.
“Q. Was the 8% cemented? A. We cemented it, but we couldn’t tell whether or not we had got a cement job on it until after we gave it a chance to set and went back in and tried it.
“Q. You say we cemented it; as a matter of fact, wasn’t it the Halliburton Oil Well Cementing Company that cemented it? A. Yes, sir, Halliburton cemented it.”
Meyers then testified at length concerning later cementing operations carried on in an attempt to restore circulation and complete the well. On cross-examination he testified:
“I called Crawford and told him we lacked 60, 70 or 75 feet of having enough pipe to case off the structure. I told him that was needed on account of the circulation lost at 250 feet. At that time we were still in that formation at 305 feet. I don’t remember exactly what I told him. I just told him we had lost circulation and that we should have enough pipe to go down to where it was solid enough to set.
“A. I just set in every bit of pipe I had, right in this soft formation.
“Q. Just let it hang? A. Yes.
“■Q. What did you think that would do? A. I knew what it would do.
“Q. Yet you went ahead and did it. A. I did.
“Q. Why did you go ahead and do it? A. Orders from Crawford.”
Simpson, tool pusher for appellee and employed on the drilling of the wells in question, testified:
“I had a conversation with Mr. Crawford, of Bay, regarding the 8% inch string of casing in the Carlson well. ... I told Mr. Crawford what the driller had told me about the amount of pipe he had there. I told him it was something over 300 feet of pipe and I didn’t think it was enough pipe. He seemed to think it was and I told him we would probably have loss of circulation trouble if we didn’t set in the anhydrite, and he still said that it was all the pipe we were going to get, and' I called Mr. Meyers and told him that was all the pipe Bay would furnish and we would have to run what they had furnished.
“I am the one who is supposed to make personal contact with the wells unless my superior, Mr. Smith, does. It is customary.for the tool pusher, if he can, to be present on a well whenever circulation is lost. I had two fishing jobs at the time and I thought they were more important than the well which had the lost circulation, because I had Halliburton over there and they could do all I could. I talked it over with Crawford and I suggested what we could do, and he didn’t seem to know anything else we could do, and I told him that is what we would do. We would just keep filling it up with cement to get it shut off. That was after circulation was lost. Halliburton are experts in the matter of drilling wells and their judgment should be trusted. I do not know of anything I could have done to have saved the well if I had been there.”
As to plugging Well 1 and “skidding” to a new location forty feet north, Smith, appellee’s drilling superintendent, testified:
“I gave orders to Meyers to plug the hole and to skid it 40 feet north. Prior to those orders to Meyers, I had a conversation, either with Mr. Craig or Mr. Crawford, over the telephone. This conversation must have been the day before we skidded.
“A. I talked to him about what they wanted to do, and he said ‘Skid it forty feet north.’
“Q. Wanted to do in regard to what well? A. Carlson 1.
“Q. And they said ‘Skid it’? A. Skid it forty feet north.”
Objection was made to this testimony on the grounds that the witness couldn’t say positively whether the conversation was with Craig or Crawford, and that Crawford had no authority in the matter. The testimony was properly received as there was substantial evidence to justify appellee in accepting directions from either Craig or Crawford.
Lastly, as to the first cause of action, the appellant invokes the doctrine of mitigation of damages, asserting that if additional casing was required to reach through the porous formation and appellánt refused to furnish it, the duty was then upon appellee to secure such additional casing upon its own initiative. The contention requires no extended comment. Under the contract, all necessary casing was to be furnished by appellant. According to plaintiff’s testimony, the appellant was advised as to the need of additional casing but took the position that' sufficient casing had been furnished, and appellee proceeded, attempting to set the casing furnished under direction from the appellant. We are here concerned only with plaintiff’s testimony, as against the demurrer, and we find nothing in. that evidence which would require the trial court to sustain the demurrer on the ground that appellee had a duty which it did not perform. Appellant sets out in the abstract the instructions given and those relating to mitigation of damages which were requested and refused. But questions there involved are not here for review since the jury was unable to agree, no judgment was entered, and of course there was no motion for a new trial as to the first cause of action.
We come to the second cause of action, for recovery of unpaid balance'on the drilling of Well 1A. The issues of fact are closely connected with those involved in the first cause of action. We are convinced that the trial court construed too strictly as against appellant the allegations of the answer, as well as the evidence offered in support of those allegations.
The allegations of the answer have been hereinbefore noted. It is urged that appellant only alleged that the drilling on Well 1 was done “at a speed and rate” which was excessive, and that there was no direct evidence on the question of speed and rate, and therefore nothing to submit to the jury. But the, answer further alleged that “in so doing put too much weight on the drill stem of said drilling equipment and as result thereof caused the breaking and rupturing of the surface pipe furnished by said defendant. That said plaintiff by the exercise of due care knew or should have known that said excessive speed and excessive weight put upon said drill stem would result in damage to and breaking, of said pipe.” (Italics supplied.)
Without reviewing all the testimony, much of which deals with technical matters in connection with drilling operations, we call attention to some testimony with reference to how circulation was lost, as bearing upon the above allegations.
Herring, a consulting geologist and engineer with many years of practical experience, testified as follows:
“Well, generally speaking, in a rotary well, rotary hole, I could think of— of course, there might' be others — but the pipe, as it turns, is flexible. It is just like a string of macaroni, when you think about it as hanging down in the hole and turning, and when you let the weight of it just rest on the bottom, even all of it or even some portion of it, it bows out'. It hasn’t got any place else to go. It is just like a snake. That pipe, while it might not look flexible, is, and when you start turning it around at say 100 or so revolutions a minute, so every time it goes round, it slaps this pipe a good hard bang, and I think that knocks a hole in the pipe.
“Q. Is it your opinion tha,t is what happened in this case? A. Yes, I think it is.”
When questioned as to whether that was good drilling practice, he was not permitted to answer the question, the trial court taking the position that the answer contained no charge of any improper drilling practices. We think the trial court construed too strictly the allegations above quoted.
Hoisington, a duly qualified witness, testified in part:
“The very fact that they had to run so many cementing jobs under the conditions existing in the well at that time, definitely and positively indicates that the hole, or the casing, or both, was not made and placed in such a manner that it would permit successful progress of the drilling of the well. That is obvious. ... In the course of the drilling, they had some, at least 6,000 pounds of drill pipe and kelly joint, grief stem, on top there, that was rotating probably 100 revolutions a minute, and in getting around this bend, your casing was taking a considerable beating, hammering, and it appears in the records here that that was at approximately 252 feet.”
Wynn, a cementer with long experience, and employed on the job at Well 1, testified at length as to the conditions found at the well. He testified:
“A. Mr. Crawford asked Mr. Meyers how he was getting along; and he said. Mr. Meyers said, ‘Well, not very well.’ I believe Mr. Crawford said something to the effect, ‘Well, what seems to be the trouble.’ Mr. Meyers’ answer, I believe, was that he was cutting a new hole. I don’t remember Mr. Crawford’s exact words, I can’t remember just exactly how he put it—
“Q. Just give the substance of it. A. In substance it is, ‘You have evidently knocked the casing off’.”
Defendant’s evidence as to the cause of loss of circulation in Well 1 fell within a reasonable interpretation of the allegations of the answer. The parties stipulated that the expense incurred by the defendant in attempting to save the well was the amount claimed by defendant by way of set-off against payment on Well 1A. We conclude that the trial court erred in directing a verdict for plaintiff as to the second cause of action.
The order overruling the demurrer to plaintiff’s first cause of action is affirmed. The order directing a verdict for plaintiff on the second cause of action is reversed.
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The opinion of the court was delivered by
Hoch, J.
This was an action by the grower of grain to recover from the prospective buyer, under a written contract, for loss resulting from damage 'to the unharvested crop by a wind and rain storm. The defendant demurred to plaintiff’s fourth amended petition on the ground that it did not state a cause of action. The demurrer was sustained and the plaintiff appeals. Appellant’s primary contention is that the legal relation between the parties under the contract was that of bailor and bailee, and that the prospective “buyer,” being a bailor, was owner of the growing crop and must therefore suffer the loss.
It will suffice to summarize pertinent allegations of the petition, the averments of fact being admitted by the demurrer.
The appellant Schoonover and the appellee Igleheart' Brothers, a corporation, entered into a written contract on May 11, 1944, the text of which will be later incorporated herein. By the terms of this contract, appellant, who was engaged in farming in Hamilton county, agreed to grow waxy sorghum upon 180 acres of land from seed furnished free by appellee. He agreed to harvest and thresh the crop promptly upon maturity and to make delivery as provided in the contract. The defendant (appellee here) agreed that he would buy the entire crop of waxy sorghum which graded No. 2 or better, and make payment upon the date of delivery or upon plaintiff's demand at a later date as specified, at the “Syracuse Elevator.” Prior to maturity of the crop, an agent of the appellee directed that delivery be made to the elevator of the Gano Grain Company in Syracuse. On or about November 15, 1944, the crop was matured and ready for harvesting, and appellant began the harvesting and delivery of the grain on that date. On the first day of harvest, plaintiff harvested approximately three and one-half acres which produced 218 bushels and 52 pounds of grain which he loaded upon a truck and delivered to the Gano elevator. An employee of the Gano company in charge of the elevator refused to receive this truckload of grain for the reason stated that there were no cars in which to ship it and no room was then available for storage. Thereafter, for eight successive days excepting Sunday, appellant tendered the grain to the Gano elevator and each time the grain was refused for the reason above stated; but on November 24 the truckload was accepted and paid for. The entire crop was ripe and ready for harvest on November 15, 1944, “and in the ordinary course of such operations would have been harvested and delivered in not more than six days” if the Gano company had been willing to receive it. During the period of eight days subsequent to November 15, weather conditions were favorable and appellant would have proceeded with the harvesting of the grain without interruption .until completed if it had not been for the refusal of the Gano company to accept it. On November 24; a severe storm damaged the unharvested grain, with' the result that appellant was thereafter able to harvest only 1,646 bushels which' was accepted and paid for.
It was further alleged in the petition that “if the defendant herein had received the crop of grain so produced by plaintiff at the time the same was ready to harvest and would have b'een harvested but for the failure and refusal of said defendant to receive the same, there would have been a total of 6,800 bushels of waxy sorghum grain harvested, of the required quality as stated in' said contract, and said grain would have been delivered to the defendant by the plaintiff as in said contract provided.” Deducting from the 6,800 bushels which appellant alleged would have been harvested prior to November 24, the amount of grain which was delivered and paid for, appellant alleged a loss amounting to 4,935 bushels which, computed “at the price of said grain at the time when, the same should have been delivered” represented an alleged loss to appellant of $2,999, for which amount he asked recovery.
The contract involved was as follows:
“Grower’s Contract
Date May 11, 1944.
M. A. Schoonover Syracuse, Ks.
(Name of Grower) (Address)
County of Hamilton State of Kansas
hereinafter called ‘seller,’ has agreed to sell, and IGLEHEART BROTHERS, INCORPORATED, hereinafter called ‘Buyer,’ has agreed to buy, for delivery during .this year’s harvest season, the crop or crops of waxy sorghum specified below, to be grown by seller upon the following described lands in the County of Hamilton, State of Kansas, to wit:
(Description of Land)
on the following basis, to wit:
Buyer agrees:
1. To furnish 540 pounds of waxy sorghum seed to the seller without cost.
2. To purchase for cash the entire waxy sorghum grain crop produced by seller, grading No. 2 or better, exclusively from the seed furnished as herein provided, at a premium of thirty cents per hundredweight above the local grain sorghum market, said local market to be based on Kansas City quotation, less freight, basis No. 2 grade or better, delivered f. o.b. Syracuse elevator.
3. To purchase on the above described basis upon the day of delivery at harvest time or upon seller’s call at any date thereafter prior to March 1st next following. If seller does not call prior to March 1, 1945, the price shall be fixed as of that date. In accordance with regulations and common practice concerning this type of transaction, Buyer will deduct storage charges of 1/30 ' cent per bushel per day from the date of delivery to the call date, or said March 1st as the case may be.
Seller agrees:
1. To grow 180 acres of waxy sorghum from the above seed, and to deliver to seller (buyer) the entire crop from the acreage as stipulated above.
2. To plant, cultivate, harvest, thresh, and otherwise handle the crop in a careful manner approved by Buyer.
3. To plant the acreage contracted for herein before June 15th, next following the date hereof.
4. To keep the crop of grain grown on said acreage separate from all other grains during handling, harvesting, and shipping, it being clearly understood that only waxy sorghum produced from seed as outlined above will be accepted by the Buyer.
5. To harvest and thresh said grain crop promptly after maturity and to make delivery hereunder promptly.
6. That he- will not assign this agreement or any rights hereunder without Buyer’s prior written consent.
The foregoing constitutes the entire agreement of the parties with respect to the sale by seller to Buyer of the crop(s) covered hereby, and may be altered or amended only by mitten memorandum signed by seller and by an authorized Agent of Buyer. (Italics supplied.)
/S/ M. A. Schoonover (Seller)
Igleheart Brothers, Incorporated By: Collier C. Brown (Buyer)”
In sustaining the demurrer, the trial court submitted a memorandum opinion in which the provisions of the contract were thoroughly analyzed and the various contentions fully considered. This excellent memorandum of the trial court might well be inserted here in full, but to do so would perhaps unduly extend this opinion.
Before considering appellant’s contentions, we note that he treats the contract as one “to grow seed,” and that the cases upon which he relies and to which reference will be made later are of that nature. Such contracts — often called “seedsman’s contracts” — although somewhat unique in character, are not uncommon. However, we find nothing in the contract, which alone is before us, to indicate that appellee desired the sorghum for seed purposes, and in oral argument counsel for appellee stated — also outside the record — that the sorghum was not to be used for seed purposes but for special use in a manufacturing enterprise in which appellee was engaged and in which waxy sorghum of pure and high quality -is required. But in any event the distinction is not determinative here.
Appellant’s fundamental contention is that the contract created a bailment relationship, the company which furnished the seed being the bailor and the farmer who was to grow the crop being the bailee. Under this view, not only the seed furnished but the crop later growing or grown from it being treated as the personalty delivered into the bailee’s possession, title at all times remained in the company.
Approaching his argument, appellant invokes the general and elementary rule that a contract like other instruments is to be' construed, if possible, to carry out the intention of the parties, and that that intention is to be determined from examination of the contract as a whole. It is also true that the question of whether a contract or other transaction constitutes a bailment is to be determined from all the circumstances and from the entire contract. (8 C. J. S. 228.) We are mindful of these principles in construing the contract before us.
There is no occasion here for lengthy discussion of the broad subject of bailments. The term has been variously defined. It is comprehensively defined in 8 C. J. S. 222 as “a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to' the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.”' Other definitions frequently, given do not materially differ. In appellant’s brief are set out many familiar illustrations where it has been held that the transaction constituted a bailment even though material changes were made in the property delivered to the bailee. (18 Ia. Law Rev. 279.) Among the cases of this nature cited is Arnott and Archer v. K. P. Rly. Co., 19 Kan. 95. It was there held that old and worn-out railroad iron which had been delivered by the railway company to a rolling mill to be used by the latter 'to reroll into new bars or rails with a certain amount of new iron added, remained throughout the process and in its final form the property of the railway company and that the transaction was in the nature of bailment. Many similar illustrations of this sort might be cited, such as the delivery of wheat to be ground into flour and as such to be returned to the bailor, or of leather delivered to be manufactured into leather products and in that form to be returned to the bailor. Appellant cites several cases and some textbook comments in which this theory of bailment has been expanded .to cover the so-called “seedsman’s contracts.” (6 Am. Jur. 161.) Under this theory, the growing and the matured crop maintains identity with the seed from which it grew. This expansion of the doctrine of bailment has not been free from criticism as being farfetched. (See 10 Cal. Law Rev. 360-361.) However, it is not our purpose to enter that discussion here. For present purposes we may assume that a bailment relationship may result under a standard seedsman’s contract. Let us briefly examine, however, the supporting cases cited by appellant.
The cited case of Ferry & Co. v. Forquer, 61 Mont. 336, 202 Pac. 193, is made the subject of an annotation in 29 A. L. R. 642. In the annotation (p. 647) it is said that under the ordinary seeds-man’s contract “the seedsman furnishes the seed and agrees to pay the grower for raising the seed a certain sum per pound or bushel for all seed meeting the requirements of the contract. There is generally a provision in the contract reserving to the seedsman title to the seed raised.” (Italics supplied.) The patent purpose of this reservation of title in the seedsman is to prevent sale of the growing or matured crop by the grower who has been hired to produce the crop, or attachment of the crop by creditors of the grower. In the Forquer case the court construed as a bailment a contract under which a grower agreed “to raise' for you ... 30 acres Golden Wax beans” and to properly prepare the soil and plant the seed furnished by the other party in a manner to secure the greatest possible return of seed.suitable for seedsman’s use and in which the grower agreed that “the stock seed and seed crop produced from it is, and shall remain your property except as otherwise stated in this contract. ... In case you refuse to accept the crop, its title shall vest in me.” (Italics supplied.) It is clear that under the Forquer contract, the grower was simply performing a service for compensation in growing a crop for the seed company. In the opinion it was said:
“In other words, title was in the plaintiff until it rejected the crop for either of the reasons mentioned, and then, and not until then, should title vest in the defendant. . . . Again, counsel urge that the provision that plaintiff should pay for the crop in any event is at war with the notion that plaintiff was the owner. The fallacy of this argument lies in the assumption that plaintiff was to pay for the crop. The contract does not so.provide. The only reference to compensation in the contract is found in the provision for compensation for the services rendered by the defendant, the amount thereof to be computed upon the amount of the crop produced.” (p. 342.)
Obviously, the contract differed materially from the one before us.
Appellant cites the case of D. M. Ferry & Co. v. Smith, 36 Ida. 67, 209 Pac. 1066, and an editorial comment on the case from 21 Mich. Law Rev. 590. From the comment, we call attention to the following excerpts:-
“The defendant Smith leased land to a third party, who covenanted to pay as rent one-half of all crops grown on the land. Subsequently the lessee made an agreement with the plaintiff by which the former contracted to raise a crop of beans fróm seed furnished by the company in return for a stipulated compensation per bushel, the title to seed and crop to remain in the plaintiff until specifically rejected.” (Italics supplied.)
Again 'it is clear that the case is not persuasive here.
Bank v. Simmons, 91 Colo. 160, 13 P. 2d 259, is cited. This case also involved a contract similar to those in the cases just referred to and entirely different in character from the one before us. In every case cited by appellant, and in every seedsman’s contract case found in our own research, where the transaction was held to be a bailment, the contract specifically provided that the title to the seed and the crop was to remain in the party, furnishing the seed and it was equally clear that the grower was simply performing a service for which he was to be compensated, such compensation being variously computed.
In Thiel v. Pacific Fruit & Produce Co., 51 Ida. 145, 4 P. 2d 356, the court had before it a contract under which T was to deliver to B two sacks of potatoes for each sack furnished by B, from crop raised therefrom, and in considering the case the court discussed at some length its prior decision in Ferry & Co. v. Smith, supra. It was held that the contract did not create a bailment, the fact being stressed that it contained no such reservation of title as in the former case.
Appellant appears to assume that if the instant contract did not provide for a present or executed sale, it necessarily follows that it created a bailment relationship with title to the growing crop remaining in the appellee. Such a result does not follow. We do not find the contract ambiguous. We think it is clearly executory in character (17 C. J. S. 326), one party agreeing to produce a crop of sorghum under specified conditions, and to thresh and deliver it promptly, and the other pgxty agreeing to buy the entire crop, if of proper grade, at a premium price upon delivery. Throughout the contract appellant is referred to as the “seller” and appellee as the “buyer”; the appellant “has agreed to sell” and the appellee “has agreed to buy . . . the crop ... to be grown by seller”; appellee (the buyer) “agrees to purchase . . . the entire waxy sorghum grain crop produced by seller, grading No. 2 or better . . . at a premium of thirty cents per hundredweight above the local grain sorghum market”; also “to purchase . . . upon the day of delivery.” (Italics supplied.)
Appellant quotes at some length from an article by Professor Williston in 34 Harvard Law Review 744, in which the writer discussed “the possibility of selling something which does not exist,” and states that “the metaphysical doctrine of potential possession in the common law has contributed to confusion of thought in the matter.” However, as already noted, we are not here dealing with any “doctrine of potential- possession” but with an executory contract to purchase in the future. Professor Williston says:
“The English Sale of Goods Act and the American Uniform Law both abolish by implication the doctrine of potential possession, leaving the question of contracts to sell future crops, and the future young of animals, on the same footing as contract to sell other unspecified or future goods. In a Colorado decision, a seller contracted to sell ‘all hay, grade No. 2, or better, grown or growing upon the above described land for season 1916’. The court held that no title passed to the hay prior to its grading and acceptance by the purchaser. Such would be the natural presumption, and if, as may be supposed, grading involved a matter of judgment and opinion, the necessary conclusion; for until the hay was graded the subject matter of the sale would not be identified. The court also held that a mortgage subsequently executed on the whole crop of hay was valid as against the buyer though the mortgagee knew of the prior contract. This also seems sound.”
Likewise, in the instant case, title to the crop did not pass “prior to its grading and acceptance by the purchaser.” Prior to the sale, title to the growing crop remained in the grower, no provision in the contract providing otherwise.
Inasmuch as appellant rests his appeal solely upon the premise that the contract constituted a báilment, our rejection of that view is sufficient to dispose of the appeal. - We may add, however, as pointed out in the memorandum opinion of the trial court, that even if appellee should be considered a bailor, it does not appear from the allegations of the petition that appellant had performed his obligations under the contract. Although he had ample time to harvest the entire crop under good weather conditions prior to the storm, he did not do so and did not deliver it at the time and place required under the contract. We could not say as a matter of law, that the reason asserted for not doing so relieved him of the obligation to harvest the crop during the good days available prior to the date of the storm, or to tender the grain at the designated place of delivery.
One or two incidental questions are raised, but their discussion or determination would in no way modify the conclusions already stated.
The judgment is affirmed.
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The opinion of the court was delivered by
Hoch, J.
A brief opinion was filed in this case on July 14, 1947, reversing the judgment because of error in the admission of' incompetent evidence, granting a new trial and announcing that a fur ther opinion would be filed latér. At that time we directed the release of the appellant, upon bond, pending such new trial.
Appellant was convicted and sentenced under section 42 of the crimes act (G. S. 1935, 21-435). He appeals from an order denying his motion for a new trial, asserting that the trial court erred in admitting incompetent evidence, in unduly restricting the cross-examination of witnesses for the state, and in failing to instruct the jury on the elements- of section 42 of the crimes act. The contention principally stressed is that the appellant’s rights were prejudiced by the admission of testimony as to the results of “lie-detector” tests upon both the defendant and the complaining witness.
Appellant was tried upon two counts, the first being for felonious assault (G. S. 1935, 21-431) ,■ and the second for kidnapping as defined in section 21-449, G. S. 1935. At the first trial the jury was unable to agree and was discharged. Upon the second trial, the defendant was found guilty of felonious assault under section 42 of the crimes act (G. S. 1935, 21-435) and sentenced to imprisonment for a term not exceeding five years. Motion for a new trial was overruled, and this appeal followed.
The factual background of -the questions here presented may be briefly stated. Appellant Lowry and the complaining witness lived about four miles apart on farms in Linn county. Lowry had asserted that one of his horses had been stolen about a year prior to the incident here involved.
Richards’ story was that on the evening of April 24, 1946, when he -was at-his barn with a lantern to milk cows and do other chores, Lowry suddenly appeared carrying a shotgun, flashed a light upon him; and under threats upon his life forced him to walk across fields' and pastures-to the Lowry farm, continually .threatening to shoot him, and that when they reached the Lowry place Lowry said, “Now what did you do with my mare?”; that he answered, “I nevér stole or never saw your mare”; that after renewed threats, Lowry shot him in the foot; that in order to avoid further injury he said he “was passing out”; that after slapping him repeatedly, Lowry got a rope and tied his hands; then got a horse and helped him get on the horse, took him to the barn and forced him to sign two statements confessing that he had stolen the Lowry horse. . The many other details of Richards’ testimony need not be recited.
Lowry, of course, told an entirely different story. He testified that, upon the night in question he went to his bam, after dark, to shoot at rats; spent about an hour there, then took his shotgun with a flashlight attached to the barrel and started back to the house; that he thought he heard a voice saying “whoa,” that he walked to where some of his horses were about a half-mile from the barn; that he found some of his horses and then walked farther on and saw something white moving; that he turned his flashlight on and then saw someone leading one of his mares and yelled to him; that he then shot towards the ground; that Richards begged him not to call the sheriff and said that if he would not do it, he would sign a statement confessing that he was attempting to steal the horse when he was shot in the foot. The testimony of numerous witnesses called by both sides need not be narrated.
We first note appellant’s contention that the trial court unduly limited cross-examination of some of the state’s witnesses. That question is not here for review. If such cross-examination was unduly restricted to the prejudice of appellant, it was a trial error, and wasi not specified in the motion for a new trial. It is true that in the motion the defendant included as grounds for a new trial “erroneous rulings of the court.” But he specifically enumerated the alleged erroneous rulings and did not include therein any reference to limitation of cross-examination. Not being called to the attention of the trial court on the motion for new trial, it is not reviewable on appeal.
The next contention of appellant is that the trial court failed to instruct the jury upon essential elements included in the crime defined in section 21-435, G. S. 1935 (Crimes Act, § 42) for which he was convicted. The trial court did instruct the jury, at some length, that the defendant might be found guilty of the lesser offense defined in section 21-435, stating, inter alia, that under the statute, proof of intent to injure is not a necessary element of the offense. The defendant did not object to the instruction when given, did not ask any modification or clarification of it, and requested no substitute instruction as to the elements necessary to be shown to justify conviction under section 21-435. Appellant contends that such failure does not preclude review here, citing in support State v. Phelps, 151 Kan. 199, 97 P. 2d 1105, and State v. Carr, 151 Kan. 36, 98 P. 2d 393. The cases are not persuasive here. In the Phelps case, the trial court failed to give any instruction whatever as to a lesser offense — one which was most clearly indicated under the evidence. That is not the situation here, and the jury here did find the defendant guilty only of the lesser offense. A like distinction exists as to the Carr case. Appellant’s contention on this point cannot be sustained.
We come to appellant’s principal contention, relating to admission of evidence with reference to the “lie-detector” tests. Following the first trial, the trial court suggested to both defendant and complaining witness that they submit to “lie-detector” tests before the second trial. In compliance with the court’s expressed desire, they submitted to such a test, but there was no stipulation nor agreement that testimony might be admitted concerning the results of such tests. Prior to the opening statement for the state, and in the absence of the jury, counsel for the defendant — aware that such testimony was to be offered by the state — argued that it was inadmissable, but the court stated that it considered the results of these tests to be of a scientific nature, to be competent “to a certain extent,” and that the state’s witness would be permitted to testify as to the tests made upon both the defendant and the complaining witness. Defendant’s right to review on this question was further protected by timely objection when the evidence was offered and upon motion for a new trial.
The tests were made upon the same day upon both the defendant Lowry and the complaining witness Richards, by Phil Hoyt, captain of police in Kansas City, Mo. Hoyt testified that he had been conducting tests with the lie-detector since 1937, having taken training under Keeler of Northwestern university, who is largely credited with devoloping the instrument. As to his experience as an expert witness, he testified:
“I never did testify before as an expert in this particular branch of police work as to the result of a machine that w^s used to bolster up the testimony of a prosecuting witness in a ease. In all these 2,400 cases that I gave I have testified merely on rebuttal and preliminary. The reason 1 went on rebuttal, it concerned confessions that persons made charged with crime after they had been subjected to this test.” (Italics supplied.)
The witness described the “lie-detector” and its operation as follows:
“This instrument is an ordinary blood pressure cuff similar to that used by a physician used in taking blood pressure. You place it around the right arm and the pressure from the artery is carried to an attachment that registers with a pen based on a pivot which leaves a graph on paper, being wound by a motor at the rate of six inches per minute. Another attachment is an ordinary rubber tube one end of which is a smaller hose which goes to an at taehment that records the respiration on the graph paper by a pen. By respiration I mean, breathing of the person taking the test. The object is that theoretically every person who lies deliberately will show some physical reaction, and with most people it is registered by a rising blood pressure and a subconscious block in breathing. The difference in breathing is ordinarily seventeen to nineteen inhalations a minute, which is usually increased during a five second period.”
The witness Hoyt was then permitted to testify not merely as to whether, in his opinion, the tests indicated, generally, truthfulness or falsification on the part of Richards and'Lowry, but was permitted to give his interpretation of their answers on the essential issue of the .case — his answers bearing directly upon the guilt or innocence of the defendant. From Hoyt’s extended testimony, we take brief excerpts. As to the test upon Richards he testified:
“To the question ‘Did Melvin Lowry force you to go with him from your farm to his farm on the night of April 24th’ he answered ‘yes’ and we didn’t get any reaction, indicating that he is telling the truth. To the question, ‘did you have some coffee today’, we got no reaction indicating he was not telling a lie. To the question, ‘did Melvin Lowry catch you leading a horse from his pasture on- the night of April 24th’, he said, ‘no’, and we didn’t get any unusual reaction, indicating that he was or he believed he was telling the truth. To the question, ‘did you try to steal a horse from the Lowry farm on the night of April 24th’, he said ‘no’, and there is no reaction. To the question, ‘did Lowry shoot you because he found you trying to take one of his horses’, he said' ‘no’. There is no reaction, indicating he is telling the truth.” (Italics supplied.),
As to the test upon the defendant Lowry, the witness testified:
“To the question, ‘did you force Rex Richards to go with you to your farm on the night of April 24th, this year?’, he shows' definite reaction, and that is when he said, no. The reaction indicated by the graph is similar to that of persons not telling the truth. The physical reaction indicated is a rise in'- blood pressure and a hesitancy in breathing. There is a typical reaction of that to a person not telling the truth. . . . ‘Did you find Rex Richards leading a horse from your farm on the night of April 24th?’ He said, ‘Yes’ and showed definite reaction to not telling the truth. . . . ‘Did you go to Rex Richards’ farm on the night of April 24th?’ ‘No’, showed positive reaction indicating not telling the truth. ‘Did you shoot Rex Richards because you found him stealing one of your horses?’ ‘Yes’, same reaction, indicating not telling the truth.” (Italics supplied.)
All this testimony went directly to the issue of whether Richards’ story or Lowry’s story was the true one; whether Richards was kidnapped, deliberately shot in the foot and under threats to his life forced to sign the written confessions, or whether Richards went to the Lowry farm after dark and Lowry there discovered him attempting to steal a horse, and úpon making such discovery, shot towards the ground with resultant injury to Richards.
We need not set out the court’s instructions to the jury with reference to this testimony except to note that the court did not limit its province to a general question of credibility but put it in the same class as all other evidence to be weighed by the jury in determining the guilt or innocence of the accused.
The practical effect of the admission of this testimony was to constitute a mechanical device — as reported by the operator- — a sort of witness in absentia on the question of the defendant’s guilt or innocence.
In no case cited by appellee or found in our own research has a court of last resort sanctioned the admission of such testimony. Nor has any trial court, as far as we are aware, admitted testimony, over objection, as to the result of such tests upon a complaining witness. The ultimate, logical result of doing so would be to have such tests made upon all witnesses for the purpose of helping the jury determine their credibility.
Cogent reasons in support of this attitude of the courts readily suggest themselves. In the' first place, the vital function of cross-examination would be impaired. The operator, appearing as a witness to report and interpret the results of the test, might be questioned as to his. qualifications, experience, his methods, and on similar matters, and that is about all. But the machine itself— conceding the comparatively high percentage record as to accuracy and reliability claimed for it — escapes all cross-examination. There is no persuasive analogy here with such tests as fingerprinting which have a strictly physical basis, clearly demonstrable. It is not contended that the lie-detector measures or weighs the important psychological factors. Many innocent but -highly sensitive persons would undoubtedly show unfavorable physical reactions, while many guilty persons, of hardened or less sensitive spirit, would register no physical indication of falsification. This the trained o'perators of course understand, and proceed upon the basis of a large percentage of error. But it seems quite too subtle a task of evaluation to impose upon an untrained jury.
Consider the situation in the instant case. Two men were involved. One wap a defendant on trial. The other was merely a witness and under no such emotional strain. Can it be said that with such wholly different mental states existing, the tests would be equally fair? Must the jury be asked to consider and weigh such intangible and elusive elements?
We are not ready to say that the lie-detector has attained such scientific and psychological accuracy, nor its operators such sureness of interpretation of figures on a dial that the testimony here in question was competent, over objection, for submission to a jury holding the fate of the defendant in its hands. It must be remembered that we are not here considering a case where there was a prior agreement that the results of the test might be admitted in evidence. While the two men agreed to take the tests, there was no such stipulation. In fact, the witness Hoyt agreed upon cross-examination that in the conversation between counsel about taking the tests, the defendant’s counsel stated that it “wasn’t for the purpose of placing before a jury.” Moreover, the defendant might well have hesitated to refuse to take a test proposed by the judge himself before whom he was about to be tried.
All this is not to discredit the lie-detector as an instrument of utility and value. Its usefulness has been amply demonstrated by detective agencies, police departments and other law-enforcement agencies conducting criminal investigations. It is also being frequently employed in matters, other than investigation of crimes. By its use admissions and confessions are frequently secured, and facts developed which assist in further discoveries. Such admissions and confessions, if otherwise competent, have generally been admitted, and no reason now appears why they should not be admitted. But we are not here dealing with such questions.
The conclusion here reached is in line with the almost unanimous holding of other courts and with the conclusions of law writers generally. About twenty years have elapsed since the admissibility of a lie-detector test was first passed upon in a reported case. The only reported decision of which we are aware holding such a test admissible is People v. Kenny, (1938) 167 Misc. 51, 3 N. Y. S. 2d 348, and in that case no appeal was taken. In all other reported cases the courts have rejected such tests, generally upon the ground that their reliability has not yet been sufficiently established. (139 A. L. R. 1174.) (See, also, annotations in 34 A. L. R. 147; 86 A. L. R. 616, and 119 A. L. R. 1200.) And even the Kenny case, in which an expert was permitted to testify concerning a test made upon the defendant, is no authority to support the admissibility of a test upon a complaining witness.
In Frye v. U. S., 54 D. C. App. 46, 293 Fed. 1013, which was a murder case, the accused had taken the test, with a result said by the expert witness to be favorable to him. His offer to submit to the test again, in the jury’s presence, was rejected on the ground that the test “has not yet gained such standing and recognition among physiological and psychological authorities” as to justify its use as evidence in court.
In State v. Bohner, 210 Wisc. 651, 246 N W. 314, which was a bank robbery case, the defendant sought admission of the result of such a test in support of an alibi. The offer was rejected.
In an article in the Wisconsin Law Review, May, 1943 (page 430), a number of unreported Wisconsin cases are discussed in which trial courts have admitted in evidence the results of such tests. But these were cases where either the confession only, which apparently had been in this manner secured, was admitted, or where there had been a prior written agreement that the testimony might be admitted.
In an article in 29 Cornell Law Quarterly, 535 (1944), the writer, who looks with favor upon a larger use of such tests in criminal procedure, discusses a number of cases in most if not all of which admission of such testimony was refused. While the writer thinks that the results that have been attained “would seem to justify the assertion that using the results of lie-detector tests to verify the testimony of important witnesses would be an inestimable advance in the efficiency of the legal process,” he none the less concedes that there are real difficulties attendant upon use of lie-detector tests by the courts, which “merit serious consideration.” He says:
“First, a party might produce only those tests which were favorable to himself, and his opponent would not be able to examine him under the lie-detector, nor to cross-examine him should he refuse to take the-stand. Second, it would be difficult for the opposing counsel to expose an incompetent or dishonest expert and to cross-examine him concerning the tests, because the lie-detector is not adequately standardized as to instrument, manner of conducting tests, qualifications of examiners, and interpretation of the records.” (p. 543.)
A leading authority on the lie-detector is Fred E. Inbau, professor of law at Northwestern university. As an associate of Doctor Keeler of Northwestern, who is credited with perfecting the instrument, he is a firm believer in the usefulness and reliability of the instrument and has had wide experience in its use. But Professor Inbau apparently does not share the view entertained by some en thusiasts that courts should readily admit in evidence testimony or the results of such tests. In an article in the Boston University Law Review (April, 1946) Professor Inbau says:
“A number of trial courts have admitted in evidence the testimony of lie-detector examiners as to their interpretation of test records in instances where, prior to the test, counsel for both litigants agreed and stipulated that the test results could be used in evidence without objection on the part of the party adversely affected thereby. Although no appellate court has thus far passed upon the legality of such agreements and stipulations, a prediction may be ventured that the procedure would be declared valid, with the proviso, however, that the approval or disapproval of the agreement and stipulation in any given case should rest within the trial court’s discretion. But in the absence of such pre-test agreements and stipulations, the test records and the examiner’s interpretation thereof have been held inadmissible as evidence by every appellate court which has had occasion to consider the matter, for the very understandable reason that the test had ‘not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.’ ” (Italics supplied.) (p. 270.)
Lastly, it is contended that even if the trial court erred in admitting this evidence, the error cannot be said to have prejudiced appellant’s rights. The argument is that appellant was charged with felonious assault, with malice aforethought; and with kidnapping in the first degree; that the lie-detector evidence tended only to support Richards’ testimony and to contradict Lowry’s as to the kidnapping and the deliberate shooting, and that since the jury found the defendant guilty only on the lesser offense involving neither kidnapping nor malice, it cannot be said that such evidence prejudiced the defendant’s rights. The argument is not realistic. Going as it did to the heart of the controversy, we cannot safely say that the jury was not influenced to resolve a reasonable doubt as to defendant’s guilt on the offenses charged, by finding him guilty on the lesser offense.
Based upon the conclusion that the trial court erred in admitting the lie-detector evidence, we reversed the judgment, as heretofore noted, and directed that a new trial be granted. That conclusion and disposal of the appeal are here reaffirmed.
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The opinion of the court was delivered by
Burch, J.
The appeal in this case is from a ruling of the district court sustaining a demurrer to a motion filed by the appellant to vacate and set aside a judgment, order of sale, confirmation thereof, and a sheriff's deed in a tax foreclosure proceeding. The appellant contends that under the provisions of G. S. 1945 Supp., 79-2804b, equitable proceedings may be brought to open, vacate, modify and set aside any judgment rendered for taxes and that his motion set forth equitable grounds which would justify setting aside the judgment. We do not reach a decision upon the question. This court is without jurisdiction because a necessary party to the appeal was not served'with any notice of appeal.
The action was brought in the district court by the board of coun'ty commissioners of Cowley county, against Martha Herbert and many others to foreclose tax liens upon various properties, including a certain lot which the appellant asserts he’ had purchased under a contract from Arthur Brown, one of the defendants. The appellant had not received a deed for the lot at the time the action was brought. While the reco,rd is rather uncertain, it appears that the tax foreclosure action had proceeded to the point where judgment had been entered in behalf of the county, order of sale had been issued, the sale had been confirmed, and a sheriff’s deed had been issued to Jasper Ñ. Powell covering the involved lot. Thus, it will be seen that the county had recovered on its judgment for taxes in the action and that if the judgment and all subsequent proceedings were to be set aside, the rights of'the county would be involved. The judgment of the district court in favor of the board of county commissioners will stand in view of the ruling of the district court unless this coürt, upon appeal, would conclude that the ruling was erroneous. Therefore, it clearly appears that the county, acting through the board óf commissioners, is an interested and necessary party and that its rights may be affected by the appeal. The record is not clear as to whether the board of county commissioners was served with a copy of appellant’s motion and notified by summons or in any other manner to appear. The abstract indicates that notice of the motion was served upon only the purchaser of the property, Jasper N. Powell. However, the record is unquestionably clear that the notice of appeal to this court was served only upon Jasper N. Powell and was not served upon any representative of the county.
Our applicable statute (G. S. 1935, 60-3306) provides that “A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . . .” The opinion in Peoples State Bank v. Hoisington Mercantile Ass’n, 118 Kan. 61, 234 Pac. 71, reads as follows:
“Of course the new code does require that ‘all adverse parties whose rights are sought to be affected by the appeal’ must be served with notice of the appeal. (R. S. 60-3306.) An ‘adverse party’ under this code provision has been variously defined to be any party to the litigation, plaintiff, defendant or intervener, to whose intérest it is that the judgment of the trial court be upheld; any party to the litigation who is interested in opposing the relief which the appellant seeks by his appeal, [citing authorities.]” (p. 67.)
Obviously, it is to the interest of the county that the judgment of the trial court be upheld even though the appellant offered, in connection with his motion, to pay .to the clerk of the district court of Cowley county the amount of the purchase price of the property paid by Jasper N Powell at the tax sale. Such an observation follows from realization that the overruling of the demurrer undoubtedly would involve the county in further litigation not only with the appellant but with the purchaser of the property. The law re qu'iring dismissal of the appeal in the circumstances is well settled. (See White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P. 2d 1041; Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455, and cases cited therein.)
It may be volunteered that a review of the record as it is presented convinces us that the ruling of the trial court would be affirmed if the appeal were considered upon its merits.
The appeal is dismissed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, C. J.
This was an action for damages alleged to have resulted from defendant’s refusal to perform its duty under our statute relating to the moving of houses, etc., upon highways (G. S.-1935, 17-1914 to 17-1920). The trial court overruled defendant’s general demurrer to plaintiff’s petition and defendant has appealed.
Briefly stated, the petition alleged that plaintiff is a duly licensed operator and chauffeur engaged in the business of a private carrier and mover of buildings under the authority of permits duly issued, and resides at Peabody, Marion county; that defendant is a Kansas corporation engaged in the sale and distribution of electric light and power to the public and maintains electric wires strung on poles across the public highways, specifically at the intersection of State Highway ,No. 14 with another highway about a mile north of Lyons, in' Rice county; that prior to June 20,1946; plaintiff entered into an agreement with one Poteete to move a house from the city of Pea body to the vicinity of Great Bend and it was necessary to cross State Highway No. 14; that more than twenty-four hours prior to June 20,1946, plaintiff made application to the county clerk of Rice county for a permit to move the house so as to pass the place where defendant’s electric power wires were strung across the intersection of the roads above mentioned; that the county clerk duly issued the permit and also issued a written notice to defendant of the time and place where the removal of the poles or the cutting, raising or otherwise interfering with defendant’s electric wires would be necessary, which notice plaintiff personally served upon defendant’s authorized managing agent at Lyons, Kansas; that on June 20, 1946, plaintiff proceeded with the house on his truck and trailers or moving dollies until he reached the place on State Highway No. 14 where defendant’s electric power wires were strung on poles across the highway, which prevented plaintiff’s further progress; that plaintiff was unable to proceed farther because- deféndant’s agents and employees there present refused to raise the wires so as to allow plaintiff, with the house so loaded, to pass under them; that defendant, through its agent, wrongfully demanded of plaintiff that he pay to defendant a deposit of $25 to defray expense of raising the electric wires; that plaintiff refused to put up such deposit, “but then and there offered and assured defendant that after said wires were raised plaintiff would promptly pay his share of the necessary expense incurred by defendant in raising said wires, according to law,” but the defendant' refused and failed to raise the electric power wires; that it was too dangerous for plaintiff to raise the wires and “he was unable to hire competent -and experienced workmen or linemen to raise the said wires.” It was further alleged that as a result o,f such refusal and failure of defendant, plaintiff incurred certain expense and suffered certain damages, which were detailed.-
The pertinent statute provides that -no person shall move any house of the height of sixteen feet or more upon or across any highway of the state outside of an incorporated city upon which electric power wires are strung without first obtaining a permit therefor (17-1914). The permit is issued by the county clerk upon-application and the-payment of a fee,,and if it is necessary to cut, move, raise, or otherwise interfere with such wires the application, shall state the name of the owner thereof and the time . and. place when the work will be necessary (17-1915)/,The county clerk-is .required to give' as much as twenty-four-hours’ written notice to the owner or operator of the wires of the time and place the work upon the wires will be necessary (17-1916). The petition alleges these things were done, and appellant makes no complaint with respect thereto. Section 17-1917, so far as here pertinent, reads:
“It shall be the duty of any . . . corporation owning or operating said poles or wires after service of notice, ... to furnish competent workmen or linemen to remove such poles, or raise or cut such wires, as will be necessary to facilitate removing of such house, . . . The necessary expense which is incurred . . . shall be equally apportioned between, and paid by, all the parties concerned. No person engaged in moving any house, building, derrick, or other structure shall raise, cut, or in any way interfere with any such poles or wires Unless the persons or authorities owning or having control of the same shall refuse so to do after having been notified . . . then, only competent and experienced workmen or linemen shall be employed in such work, and in such case-the necessary and reasonable expense shall be paid by the owners of the poles and wires handled, and the work shall be done in a careful and workmanlike manner, and the said poles and wires shall be promptly replaced and the damages thereto promptly repaired.”
Section 17-1918 makes it unlawful for any person—
“To move, touch, cut, molest, or in any way interfere with any . . . electric power wires or any poles bearing any such wires, except under and. in compliance with the provisions of this act.”
And section 17-1920 provides the penalty for persons who violate the provisions of the act.’
Appellant argues that the statute imposes no duty upon it to move its wires. The statute made it the duty of defendant to furnish competent workmen to remove such poles, or to raise or cut such wires as was necessary to facilitate moving the house along the highway after plaintiff had procured the permit and notice had been given defendant, as the statute provides. Indeed, prior to the enactment of the statute the authorities indicate defendant would have had such a duty upon proper notice. (Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Logan v. Electric Co., 99 Kan. 381, 161 Pac. 659.)
It is next argued that the statute did not give plaintiff, as an individual, a right to have the wires removed. Supporting this contention it is argued that the statute was a public welfare statute not designed to give individual rights or impose individual liabilities. The point is not well taken. The statute is one designed for the benefit of owners of electric wires constructed and used on highways and to movers of houses or similar structures over the highways, and for the benefit of the general public in the use of the highways. This was developed and clearly stated in Hawn v. Kansas Gas & Electric Co., 122 Kan. 395, 252 Pac. 245, which appears to. be the only decision specifically construing the statute.
Appellant contends that assuming the statute imposed a duty upon defendant to move its wires there was no violation of that duty. It is argued defendant did not flatly refuse; it merely requested plaintiff to deposit a small sum to assure his performance of the mutual obligations imposed by the statute. We think the statute does not contemplate such a requirement; rather that it contemplates that defendant should furnish the workmen and move the wires, and that after the expense thereof had been determined the cost should be apportioned between the parties and paid by them. As bearing on this question see Railway Co. v. Sproul, 99 Kan. 608, 162 Pac. 293.
Appellant complains of some of the items of damages sought to be collected by plaintiff. It is quite possible plaintiff will not be able to recover all the damages he asks. However, the petition in this case was not motioned. Defendant did not ask to have any of the items of damages stricken. As the case comes to us the simple question is whether plaintiff is entitled to recover any damages. The statute provides in substance that if the owner of the wires shall refuse to move them, after having been notified, that the necessary and reasonable expense incident to their removal shall be paid by the owner of the poles and wires. We think some of the items claimed by plaintiff are recoverable under this statute, hence that the court correctly overruled defendant’s general demurrer to the petition. The ruling is affirmed.
PIoch, J., not participating.
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The opinion of the court was delivered by
Harvey, C. J.
This was a common-law action for damages for alleged malpractice. The appeal is from an order overruling defendant’s general demurrer to plaintiff’s fourth amended petition. While other questions are discussed the only one we need to consider is whether the cause of action attempted to be stated in the fourth amended petition is barred by the statute of limitations (G. S. 1935, 60-306, ¶3), which requires such an action to be brought within two years after the cause of action shall have accrued.
Without reciting details of the several petitions it is sufficient to state that on March 4, 1944, plaintiff filed the original petition, which alleged that on March 11, 1942, plaintiff sustained a serious injury to his ankle and to various other parts of his body; that the defendant, a physician and surgeon engaged in the general practice, was called to treat him; that defendant negligently took an X ray of his ankle, negligently read the X ray, and negligently treated plaintiff for about ninety days, as a result of which plaintiff has been permanently crippled. Defendant’s motion to make the petition definite and certain in a number of particulars was sustained in part, and on June 10,1944, plaintiff filed his first amended petition. Defendant moved to strike this from the files because it did not comply with the court’s order, and also filed a motion to make it definite and certain. When these motions were argued plaintiff asked and was given leave to file a second amended petition. This was filed November 27, 1944. Defendant attacked this with a motion to strike and a motion to make definite and certain, which was sustained in part, and on May 11, 1945, plaintiff filed his third amended petition. To this the defendant filed a demurrer upon the ground, among others, that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant. This demurrer was presented to the court upon argument and briefs, and on October 25, 1945, the court rendered judgment,
“That defendant’s demurrer to the third amended petition of the plaintiff' be and the- same is hereby sustained.
“That plaintiff be and he is hereby given twenty days in which to file an amended petition to comply with the former orders of this court or elect to stand on said third amended petition.”
No appeal was taken from this judgment and no amended petition was filed within twenty days, nor was a request made for the extension of time for the filing of the amended petition.
Nearly six months thereafter, and on April 1, 1946, plaintiff filed his fourth amended petition. To this the defendant filed a demurrer upon the ground that it does not state facts sufficient to constitute a cause of action in favor of the plaintiff and' against defendant, and upon the ground that it is not framed upon any definite theory, and stating details as to the second ground. This demurrer was presented to the court upon oral arguments and briefs, which the court considered, and on February 8, 1947, made an order overruling the demurrer.
Counsel for appellant argue in effect that when the court sustained the demurrer to the third amended petition and fixed a time within which plaintiff might file an amended petition or elect to stand on the third amended petition, and plaintiff did not file an amended petition within the time fixed by the court, or even ask for an extension of the time, and did not appeal from the judgment of the court, the judgment of the court sustaining the demurrer became final. The point is well taken. When the court sustains a demurrer it has authority to permit the adverse party to amend “as the court or judge in its discretion shall direct.” (G. S. 1935, 60-■761.) Appellee does not contend the court did not have authority to make the order it did with reference to the time an amended petition should be filed, nor does he contend that the court abused its discretion in so limiting the time. There are reasonable limitations on the number of amendments which may be allowed to a pleading.- (See Sheldon v. Board of Education, 134 Kan. 135, 143, 4 P. 2d 430.) The result is that when the plaintiff filed the fourth amended petition, almost six months later, it was tantamount to the bringing of the action upon the date that petition was filed. That was approximately six years after the alleged cause of action accrued. Counsel for appellee call our attention to Armstrong v. Lough, 128 Kan. 167, 277. Pac. 51; Dodd v. Boles, 137 Kan. 600, 21 P. 2d 364, and other cases, to the effect that an amended petition which no more than enlarges or particularizes the facts of the original petition relates back to the time of the filing of the original petition. Appellee is not in position to ask the court to consider that point for the reason that he did not file his fourth amended petition within the time granted him by the court. He ignored the court’s order respecting amendments and thereby elected to stand upon the third amended petition, from which he did not appeal.
We conclude that the filing of the fourth amended petition at the time and -under the circumstances above stated was tantamount to the bringing- of a new action at the time it was filed. The fourth amended petition alleged the date the cause of action arose, hence the petition shows on its face that it was filed more than two years thereafter. The demurrer to the petition should have been sustained. Since the time for filing the action has long since expired the judgment of the trial court 'will be reversed with directions to sustain defendants demurrer to the fourth amended petition and to render judgment for defendant. It is so ordered.
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The opinon of the court was delivered by
Burch, J.
The appeal in this case concerns construction of the provisions of an endowment insurance policy. The question involved is whether the insurer was obligated to make a lump sum payment of the principal amount or required to make payments in periodical installments. The trial court held that the insurer was obligated to pay the proceeds of the policy in a lump sum. The insurance company contends that it was morally and legally obligated to pay the proceeds in periodical payments even though a lump sum payment would be to its financial advantage. The case was submitted to the trial court upon the pleadings and facts stipulated by'the parties in the opening statements of respective counsel therefor! The pleadings are short and clear. ' ,'
The petition alleged that on the 24th day of December, 1935, the defendant, for an agreed consideration, executed and delivered to the plaintiff a life insurance policy covering the life of the plaintiff, in the principal sum of $22,900; that under the terms of the policy it was provided that should the insured be alive on the 24th day of December, 1945, the defendant would pay such sum for the surrender of the policy provided all premiums had been paid in full as they became due. The petition further alleged that the policy contained a general provision setting forth that the insured might elect, revoke or change any payment option in the policy by filing a written request therefor with the defendant company; that the plaintiff filed a written election to accept a payment option which required-the company to pay the principal sum of $22,900 in cash upon surrender of the policy; that the plaintiff had paid all the premiums as they became due and had surrendered the policy in connection with the written election but that the defendant had failed and refused to pay the principal amount in a lump sum.
The answer of the defendant admitted the execution of the policy and a photostatic copy'of the policy was attached as a part of the answer. In addition the answer alleged -that the consideration for the policy was paid for' by the father of the plaintiff and that a rider attached to the policy, which stated that payment should not be made in a lump sum, was attached at his special instance and request. Attached to the answer, as another exhibit thereto, was a supplemental contract which consisted of a written acknowledgment by the defendant company that it was obligated to pay to the plaintiff $99.61 each month until the date of her death. The supplemental contract also contained a provision to the effect that should the death of the plaintiff occur before, she had received 120 installments, in the named amount, that the balance of the 120 installments would be computed at the rate of 3% percent per annum, compounded annually and paid in one lump sum to her estate. The supplemental contract set forth that it was offered in accordance with the terms and provisions of the designated, policy. The reply of the plaintiff denied all new matter set forth in the answer and alleged that the plaintiff had not accepted’ or agreed to the terms, of the supplemental contract.
The opening statements by counsel for the respective parties developed that no significant factual controversies existed between the litigants. Counsel for the plaintiff admitted that a certain pay ment option “B” in the policy, which provided for periodical payments, was made irrevocable at the instance and request of the plaintiff’s father, T. M. Deal, but insisted that such fact was of no consequence because the policy had been' entered into solely between the defendant and the plaintiff. Plaintiff's counsel also conceded that a large percentage of the premium money had been furnished by T. M. Deal but stated that all of the premium payments had been made by the plaintiff to the defendant and that, therefore, the source of the money was of no importance because the policy contract had been entered into only between the two parties involved in this action. Insofar as the irrevocable feature of the option “B” payment provision was concerned, counsel for the plaintiff contended that the defendant was not entitled to rely thereon because the defendant did not claim any financial interest in the method of payment or that any less or more amount in premiums had been required by the defendant by reason of the irrevocable periodical payment provision in the policy. Counsel for the defendant admitted, in effect, that payment in a lump sum would be' to the financial advantage of the defendant but insisted that the provisions of a typewritten rider attached to the face of the policy controlled the controversy. Counsel for the plaintiff informed the trial court that the plaintiff was in need of all of the money at once because she and her husband had obligated themselves to purchase a large amount of stock in a company which had been operated by the plaintiff’s father and that the full amount of the money was required in order for the plaintiff to retain control of such company. The trial court held, in substance, that since the defendant had admitted it did not have any financial interest in retaining a large portion of the proceeds of the policy for the purpose of inaking periodical payments, the irrevocable provision was revocable and that under a provision in the policy which permitted the plaintiff tó revoke or change a payment option the plaintiff was entitled to elect to recover the full cash value of the policy in a lump sum. ' Judgment was entered for such amount.
The foregoing develops’ the necessity for examination of the pertinent policy provisions. We observe that the written application for the policy, the typewritten rider attached thereto, and the printed policy, all were conceded to be the integral parts of the entire insurance contract. The application for the. policy contained a clause reading as follows:
“How are proceeds to be paid? . . . —in the event the insured is living at maturity of endowment, the proceeds are to be paid under Option B, 10 years certain iirevocably and with the spend thrift clause.” (Emphasis supplied.)
Option (b) in the policy was entitled “Monthly Income for Life” and provided that the company would pay equal monthly installments for a definite number of years (admittedly ten years in this case) and as long thereafter as such payee (the plaintiff) might survive. In compliance with the application for the insurance the defendant issued the policy and attached on the face of the second page thereof a typewritten rider which read as follows:
“By this rider, attached to and made part of Policy No. 94354, and in accordance with the written request of the Insured, contained in the application for this Policy, a copy of which is hereto attached, it is hereby agreed that, should this Policy mature as an Endowment, the net proceeds of this Policy shall not be paid to the Insured in one lump sum but shall be paid as provided in Option (b) in the ‘Optional Settlements’ provisions, in equal monthly instalments for ten years certain and as long thereafter as the payee may survive.” (Emphasis supplied.)
The last page of the policy pertained to optional settlements and thereon under the heading, “General Provisions,” in small print appeared the following:
“The Insured may elect, revoke or change an option by written request filed in the Home Office of the Company, accompanied by the Policy for endorsement.”
1. Counsel for the defendant invoke the rule that a written clause must prevail over inconsistent printed provisions of an insurance policy. In support of such statement they cite 44 C. J. S. 1162, § 295, which reads as follows:
“A policy which is partly written and partly printed should, if possible, be so construed as to give effect to all its parts; but, if the different parts are irreconcilable, the written, as well as stamped or typewritten, parts will prevail over the printed.
“In accordance with the rules relating to the construction of an insurance contract as an entirety, discussed infra § 298, a policy which is partly written or typewritten and partly printed should be so construed, if possible, as to reconcile and give effect to all of its parts; but, if there is an irreconcilable conflict between the different parts, the written part will control and prevail over the printed, as will also stamped or typewritten parts.”
In support of the text defendant cites Hickey v. Dirks, 156 Kan. 326, 133 P. 2d 107; and Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan. 356, 133 P. 2d 574, from which the following is quoted:
“Where an irreconcilable conflict exists between general provisions of a contract and particular portions written into the contract preference is given to the latter for the purpose of ascertaining the intention of the parties.” (p. 362.)
The general rule to such effect is well established and has been repeatedly followed in construing conflicting provisions of insurance contracts. (See Fourth Decennial Digest, Insurance, Key No. 149, and Aetna Ins. Co. v. Houston Oil & Transport Co., 49 F. 2d 121, certiorari denied Houston Oil & Transport Co. v. Aetna Ins. Co., 284 U. S. 628, 52 S. Ct. 12, 76 L. Ed. 535.) Counsel for the plaintiff virtually concede the general rule but contend that it is not applicable because the problem in the present case is not that of an indefinite provision in a printed form which is clarified or defined by a written insertion. They contend that the policy provision reading, “The insured may elect, revoke or change an option by written request . . .” is unambiguous and that the printed and written portion should be construed to the end that the conflict between the two portions be resolved to the extent that one clause modifies the other (citing Cobb v. Insurance Co., 17 Kan. 492). We are unable to agree with counsel for the plaintiff in such respect. As we view the entire insurance contract, the printed clause last quoted is in direct conflict, not only with the typewritten application for the insurance, which was made a part of the cpntract and read “irrevocable,” but also with the typewritten rider which read, “the net proceeds of this Policy shall not be paid to the Insured in one lump sum but shall be paid as provided in Option (b) . . .” Counsel for the plaintiff, in effect, would have us strike from the application and the rider the significant language just quoted and hold that it was necessary for the defendant company to negative again the printed provision relative to the insured's right to revoke or change an option payment by deleting such provision from the contract or by specifically stating in the rider or the application that such provision should be considered null and void. In support of such a contention they rely upon the rule that when the entire policy is prepared by one party, any divergence of language therein is to be construed against the drawer of the instrument. We are of the opinion that in the present case it was unnecessary for the defendant company to curtail further or to negative the settlement option provision by inserting in the application or the rider more specific provisions to such effect. When two typewritten provisions of an in*surance contract conflict with one printed provision thereof, the rule that greater effect must be given the typewritten words unquestionably prevails, and the printed provision should be considered as deleted or omitted from the contract. Consequently, further consideration of the case will be predicated upon the conclusion that the policy, in effect, did not contain any provision which permitted the plaintiff to revoke or change the wording therein, that the payment provisions were “irrevocable” and that “the net proceeds of this' Policy shall not be paid to the Insured in one lump sum but shall be paid as provided in Option (b).”
2. The principal contention of counsel for the plaintiff is that the “irrevocable” nature of the contract does not sustain the defendant company in the present case. We quote from plaintiff’s brief:
“We have therefore only one real issue — does the use of the word ‘irrevocable’ in connection with the appellee’s designation of payment under Option (b) in the ‘optional settlements’ provision bar a recovery?”
In support of a negative answer to such a question, the plaintiff contends that since no contractual relation was entered into between T. M. Deal and the defendant, even though the application did provide it was irrevocable, such provision had no effect whatever and that the plaintiff had the right to revoke the provision as between her and the company. It is contended the same rule applies that is applicable to the granting of an irrevocable power of attorney because the defendant was not prejudiced and had no interest which was affected by a change in the method of payment of the proceeds. In other words, the plaintiff contends that since the defendant conceded that it was not concerned with how the payment should be made, from a financial standpoint, .the plaintiff had a right to demand payment in a lump sum regardless of what restrictions may have been inserted in the insurance contract’relative to the method of payment. In such circumstances plaintiff’s counsel insists that the controlling rule or principle is the same as that which is applied in cases of irrevocable powers of attorney, irrevocable provisions in proxies and other irrevocable agency contracts wherein the power or authority granted is not coupled with an interest. In such cases it is frequently said that even though a power is designated as irrevocable it is in its very nature revocable when it concerns the interest of the principal alone. In support of the contention we are cited the case of Life Association v. Boyer, 62 Kan. 31, 61 Pac. 387, from which the following is quoted:
“. . . All powers of attorney are revocable by the donor of the power except when coupled with an interest in the donee. Though they be by their terms irrevocable, they nevertheless may be revoked by the donor, except in cases where the donee has an interest in their continuance.” (p. 40.)
In addition to many cases from other states holding ,to such effect plaintiff’s counsel cite the general rule stated in 2 Am. Jur., Agency, 39, § 38, which reads as follows:
“Ordinarily the principal may revoke at any time a power of attorney constituting a mere agency. Such a power is in its very nature revocable when it concerns the interest of the principal alone. If it is a mere naked authority not coupled with an interest, it is revocable at the will or even caprice of the principal, though the instrument itself contains an express declaration of irrevocability.”
Counsel for the plaintiff, however, fail to cite any cases in which the rule has been applied to the construction of an insurance policy and the question arises whether the agency rule, applicable when the .agency is not coupled with an interest, applies to the construction of an insurance contract.
This court is of the opinion that the rule permitting an irrevocable agency relationship to be revoked should not be applied for the purpose of altering the provisions of an insurance contract. An insurance contract is not created by one party only executing a declaration of delegated authority to another party. The consideration for an insurance policy is not paid solely for the purpose of compensating an agent. There is a distinction between a mere revocation of representative authority and an attempted cancellation of contractual obligations. .When one party simply designates another as his representative, as between the parties, the principal does not part with all power to direct and control subsequently the acts of the agent. When such a status exists, the principal can direct his designated representative to do nothing and therefore, even when the power of the agent is made irrevocable, it in effect can be revoked unless the agent has acquired an interest which he has a right to protect. Ordinarily, when only a representative relationship exists, not coupled with any interest, the relationship can be terminated without further obligation on the part of either party. But when the relationship of insured and insurer is created the relationship can be terminated only in compliance with the provisions and obligations of the policy. The nature and extent of such obligations depend upon the provisions of the insurance contract. Thus, in the present case the defendant company was obligated to pay the proceeds of the policy in compliance with the policy provisions. It would be unwise to hold that merely because an insurance company is not financially interested in what disposition is made of the proceeds of a policy, the insured may direct a disposition of the proceeds contrary to the policy provisions. Upon such reasoning an insured would be permitted to direct that an irrevocable beneficiary clause contained in the policy be disregarded or that a policy which provides against assignment be assigned. If such were the rule, it would be entirely unsafe for a designated irrevocable beneficiary to advance moneys for the purpose of paying premiums upon policies and many inequitable consequences might develop. Equity frequently intervenes for the purpose of directing what disposition shall be made of the proceeds of insurance contracts even in instances wherein those entitled to a portion or all of the proceeds of the policy are not the insured and the insurer. (See Kansas City Life Ins. Co. v. Wilkinson, 125 Kan. 305, 264 Pac. 37; Tivis v. Hulsey, 148 Kan. 892, 84 P. 2d 862, and 46 C. J. S. 60, § 1173.) The inherent dangers which might develop to the rights of third parties who are indirectly interested in the fulfillment of insurance contracts require the application of the rule to the effect that liberal construction does not apply where the language in the contracts is unequivocal and unambiguous and is sufficiently plain to express the intent of the parties originally interested, or where an ambiguity in provisions disappears when the ambiguity has been removed by judicial construction. (See Order of United Commercial Travelers v. Knorr, [C. C. A. Kan.] 112 F. 2d 679.) As hereinbefore stated, the typewritten provisions of the application and of the rider removed from the policy any ambiguity created by reason of the printed provision in the policy which permitted the insured to revoke a payment option. Consequently, the payment provisions contained in the application and in the rider must prevail and be strictly construed in compliance with the .original intent of the parties. The plaintiff does not contend the contract was misrepresented or misunderstood. When the plaintiff accepted the policy which provided by rider that the payment should not be made to her in a lump sum she divested herself of the right to have the payment made in such manner.
The judgment of the district court is reversed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Porter, J.:
The Studebaker Corporation appeals from a judgment against it for costs in an action on a promissory note executed by the appellee, W. J. Bell, as principal, and W. Kurt and Gary Wilson as sureties. The note was given as part payment for an automobile purchased by Bell from the appellant. Bell answered that he had paid the note to Kurt and Wilson, agents of appellant with authority to collect the note. The case was tried by the court and findings made, in substance, that the firm of Kurt and Wilson was appellant’s agent and authorized to receive payment of the note.
The sole contention of appellant is that there was no evidence to support these findings, and that judgment should have been rendered against Bell for the amount of the note and interest.
The appellant is engaged in the manufacture and sale of automobiles, its principal place of business being at South Bend, Ind., and it maintains a branch office at Kansas City, Mo. At the time the note was executed Kurt and Wilson were partners in business at Emporia, and were selling the appel Iant's automobiles under a written contract called a “dealer’s agreement,” which granted to them the right to sell Studebaker automobiles in certain prescribed territory during the life of the contract. The dealer was required to pay cash upon delivery of the automobiles at the regular list price, less certain trade discounts allowed. The title to the automobiles and parts .furnished the dealer was to remain in the company until the goods were fully paid for. Kurt and Wilson agreed not to deal in new automobiles not sold by appellant in such manner as in the judgment of appellant would prejudice the sale or reputation of its automobiles. There was a provision in the contract* to the effect that the dealer should in no way be the legal representative or agent of the company. The contract gave Kurt and Wilson authority to appoint a subdealer in any one of six designated towns, but they were made responsible to the appellant for all acts of any subdealer appointed by them. W. J. Bell lived at Americus and was engaged in the grocery business. Kurt and Wilson arranged through him to sell automobiles and to allow him part of the discount given by the appellant. Americus is not one of the places named in the contract at which Kurt and Wilson were authorized to appoint a subdealer, but the evidence shows that appellant knew they were selling cars through Bell and recognized him as a sub-dealer.
The appellee, Bell, testified that Kurt and Wilson made an arrangement by which he sold automobiles for them to such-customers as he could find in his locality. His testimony was, “If I sold a car I came down and got it of Kurt and Wilson and sold it to my customer, and when the customer paid me the money was mine”; that this was the extent of his connection with Kurt and Wilson. He further testified that the note sued on is the only one he ever signed; that he was unable to get this note from Kurt and Wilson when he paid them the money, but kept insisting upon their getting it for him; he finally wrote to the Studebaker company and asked them if they had it and learned from them that they had.. It was the only car he ever bought without paying cash for it.
Kurt, who was a witness for the appellee, testified that the way in which the firm of Kurt and Wilson carried on business with the appellant was, that if they wanted a car they had to buy it from the Stuclebaker people and then sell it to some customer; that Bell paid the amount of the note to him shortly before it was due; that his firm had never made any other collections for the appellant; that in one other instance where a note was taken in payment for a car the note was sent by the appellant to the local bank and the maker' notified to pay it there; that the reason the note was taken payable to the Studebaker company was because the firm had to sign the note with Bell. He knew the note was made payable in Kansas City. He was asked what direction, if any, he had from the branch house at Kansas City with reference to this Bell transaction, and .said that a traveling representative of the appellant, named Wollington, came to his office in Emporia and made out the notes which were to be executed in payment for Bell’s car. Asked what Wollington said, he answered:
“The representative made out these notes, the Bell note, and we signed it, and he said, ‘Bell is dealing under you folks. He is your subdealer. All his transactions is done through you,’ for him being our subdealer, he would have to do his transactions through us. That is the way this collection' was made. When Bell paid us he was doing his business through us instead of through the company. We made that collection.”.
On cross-examination he testified:
“Q. Now, then, you say that Wollington told you to collect this money? A. Well, he told us that all of Bell’s transactions was through us.
“Q. Is that what he said? A. That’s what he said.”
He was recalled by the appellee and asked the following question:
“I did understand you to say that the man that made out the note was the one that told you that you was to collect that from Bell and they looked to you for it. A. That’s right.”
He was again cross-examined, and the substance of his testimony is given in the following questions and answers:
“Q. Now, I understand now, Mr. Kurt, that during that conversation there was not anything said about you collecting this particular note from-Bell? A. Well, now, I can’t say just exactly on that but I think it included that.
“Q. That is simply your opinion that it did include that but do you remember anything said'about you having to collect this note? A. No, I would not say that I remember of anything said definite about that note. I said at the time he made the notes out that he mentioned — or spoke to him [me] about the dealings with Bell, ,and he said all the transactions as between you and Bell; this Bell, we don’t know each other.”
The court overruled a demurrer.to the appellee’s evidence. The appellant’s evidence in rebuttal was given in the form of depositions. The treasurer of the appellant testified that Kurt and Wilson had no authority to accept payment of the note. Coleman McNulty testified that on the 3d of February, 1915, he was salesman for the Studebaker company and his territory then included the city of Emporia; that he served there from January, 1915, until August 12 of that year; he was preceded in that territory or “block” by Iver Schmidt and followed by L. S. Wollington; that Wollington commenced in that district on the 12th of August, 1915. He denied having any conversation with Kurt or Wilson at Emporia concerning the collection of the note or payment of the same. He further testified that he had no authority to make oral or written agreements concerning the collection of money due the corporation for the sale of automobiles. J. W. Lytle, an employee of the appellant in the traffic department at the Kansas City branch, testified that the note sued on was drawn up by himself in the office of the company at Kansas City. Appellant’s cashier testified that L. S. Wollington was put on the Emporia territory in July or August, 1915, and had not made that territory before; also, that the note sued on was drawn up in the office at Kansas City by J. W. Lytle, and was sent to the Emporia State Bank to be signed. He denied that Kurt and Wilson, or either of them, had any authority to collect from Bell the amount due on the note.
The court made the following finding of fact:
“The court further finds from the evidence that the said defendant, W. J. Bell, at or about the time of the maturity of said note paid the same by paying to the said Gary Wilson and William Kurt, who were at said time a partnership and as such partnership were the local agents of the said plaintiff, through whom ,the said W. J. Bell had theretofore transacted his business with said plaintiff.”
Upon this finding the court based the further finding that Kurt and Wilson were the agents of appellant, and held as a matter of law that the payment to them satisfied the note.
In our opinion it is very doubtful if there is any evidence to sustain the finding that Kurt and Wilson were agents of appellant at all, or that they had any authority other than to deal in automobiles in the manner specified in the contract. How ever, aside from this part of the findings, there is nothing in the evidence to sustain the finding that when Bell made the payment to Kurt and Wilson they were the local agents of the appellant “through whom the said W. J. Bell had theretofore transacted his business with” the appellant. We are unable to find, in the record, evidence showing that prior to the payment Bell ever transacted any business with appellant, except to purchase the one car and to execute the notes in payment therefor. On the contrary, the undisputed evidence is, that he. bought cars direct from Kurt and Wilson; paid for them in cash, sold them to customers of his own, and when they paid him for the cars, the money belonged to him. ■ In these transactions he had no dealings with the appellant; nor does he claim to have had. His testimony as to this car is, that he went to Kansas City and purchased it from the branch house. Kurt was with him, and presumably the firm of Kurt and Wilson got the benefit of a dealer’s commission. The utmost that can be said for the testimony of Kurt with respect to the conversation with Wellington is, that he was inclined to think it referred to and included this note; but he states the substance of the conversation from which it is apparent that nothing was said about the note nor about collections, and that it referred only to transactions between Bell as subdealer and Kurt and Wilson. Again and again the witness declared that the note was not mentioned. Each time that he is asked to give the conversation, he spates that the substance of what Wollington said was, that the Studebaker company had no dealings with Bell in the purchase of cars; that Bell was not the agent of the appellant, but a sub-dealer under Kurt and Wilson, and in all transactions between them Bell was to pay them. The purchase of the car and the giving of the note was not a transaction between Bell on the one side and Kurt and Wilson on the other. That was a transaction in which Bell, Kurt, and Wilson were the makers of á promissory note, and the Studebaker corporation was the payee. Moreover, the evidence shows that Kurt and Wilson never made collections for the appellant, and that in the only othe'r instance where a note was taken in payment for an automobile, the appellant sent the note for collection to the local bank and it was paid there.
The provision in the contract that the dealer was in no way the legal representative or agent* of the company, and had no right or authority from it to assume any obligation on its behalf or to bind it in any manner, expressed the intention of the parties and cannot be wholly ignored. Prima facie it stated the relation between the parties. No reason is perceived why the contract should not control, unless it was afterwards altered, or unless the appellant is in some way estopped by its conduct from relying upon the terms of the contract. Of course, the law is well settled that nothwithstandjng the express terms of the‘contract, if appellant by its course of dealing with Kurt and Wilson held the latter out to the public or to Bell as its agent to collect the note, then the courts would ignore the provision and hold appellant estopped to deny the agency. Now what particular conduct of the appellant, or course of dealing by it with Kurt and Wilson, is shown, upon which an estoppel can be predicated? The trial court seems to have concluded that appellant was estopped to deny the authority of Kurt and Wilson to receive payment of the note, because through them Bell “had theretofore transacted his busi-,ness with” appellant. As already shown, the undisputed evidence is, that Bell had no transactions or dealings with the appellant save and except the purchase of this one car for which he gave the note sued on; and further, that he cannot base any estoppel on the conversation between Wollington and Kurt for he was n’t present, and is not shown to have had any notice or knowledge of the conversation prior to the time he made his payments. These facts, together with the undisputed testimony that Kurt and Wilson had never received payments on promissory notes belonging to the appellant, and had never made collections for it, leave no foundation for the operation of estoppel. There was nothing shown in the evidence to overcome the written contract defining the limits of the authority of Kurt and Wilson.
The note was payable at Kansas City to the order of the Studebaker corporation. Bell was the" principal and Kurt and Wilson were sureties; the note was not in their possession, and Bell knew these facts. Where payment is relied on as a defense to an action on a promissory note, and it is sought to show the agency of a comaker to collect for the principal, especially where the note is not in the hands of the other maker, the evi dence to establish authority to receive payment should be clear and convincing, because such a proceeding is opposed to the usual course of business in transactions relating to promissory notes. Such agency ought not to-be assumed from the character of the testimony given by Kurt, to the effect that he thought the conversation related.to the note. Since the court based the conclusion of law, that agency was established, upon a finding that the appellee had transacted his other business with the appellant through the same parties, which is not sustained by any evidence, it follows that the judgment must be reversed with directions to render judgment against the appellee.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a mortgagee to recover on an insurance policy issued to his mortgagor. The judgment was for the defendant, and the plaintiff appeals.
The policy was issued to the owner of the property, Joseph Leaviek. One of the provisions was that the policy should be void in case of change of title, possession, or interest, or in case of assignment of the policy, unless otherwise provided by agreement indorsed on the instrument. Leaviek sold the property and conveyed it to A. L. Landsberg. The sale and conveyance were effected by a realty company, which later undertook, by correspondence to procure an assignment of the policy to the vendee. The insurance company imposed certain conditions, which were-not met until after loss had occurred. The delay was caused by the realty company, and was not the result of inattention or other fault of the insurance company. After receiving information that loss had occurred, the insurance-company returned to Leavick the proper proportion of the premium for the unexpired time subsequent to the date on which the company learned of the transfer to Landsberg, and canceled the policy as of that date. The plaintiff bases his right to recover on the following stipulation of the policy:
“This company hereby consents that the loss, if any, under this policy, after the same shall have' been ascertained and duly verified by the assured, shall be payable to J. H. Longfellow, or assigns, Bonner Springs, Kan., mortgagee, for and on account of said assured; subject, however, to all the terms and conditions contained or referred to in this policy.”
The stipulation merely constituted the mortgagee an appointee to receive the proceeds of the policy for and on account of the assured, subject to compliance by the. assured with the conditions essential to recovery by him. There is no substantial disagreement among the authorities respecting this subject. A statement of principles and a list of cases in which the principles have been discussed and applied may be found in a case note, 18 L. R. A., n. s., page 197. In the note referred to, the clear distinction between the form of mortgage -clause under consideration and the more modern form known as the union mortgage clause is pointed out and illustrated.
When Leavick sold the property he lost the right to claim insurance money, and the mortgagee lost the right to claim through him. The contract of insurance is personal. The insurer has a right to choose with whom he will contract. A substitute for the assured cannot be introduced without the insurer’s assent, and he may condition his assent as he may choose. In this instance the insurer desired to know of the proposed substitute if he had ever’ suffered loss by fire, and if so, the particulars — a very reasonable requirement.' The information was not furnished, and Landsberg was not accepted as the person assured in place of Leavick. This being true, the mortgagee cannot claim through Landsberg. The mortgagee has no claim except through an assured owner of the property having a right to recover, and no such person is in existence.
It is not necessary to find an apt name for the status of the policy while negotiations were pending for substitution of a new party for the one originally assured. Leavick was out and Landsberg was not in. The insurer lost no rights by entertaining the proposal to substitute. The negotiations were all in writing. They were fair and easy to- understand, on the side of the insurance company, and the letters show that nobody was misled. They came to nothing, a,nd the court properly instructed a verdict for the defendant.
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The opinion of the court was delivered by
Dawson, J.:
This is an equitable action to cancel an oil and gas lease of certain lands for failure to prospect and develop them.
In 1902, the grantor of the lease owned some 936 acres of land in two separate tracts, one of 220 acres and the other of 716 acres. The two tracts were about two miles apart. These lands were leased in one contract evidenced by one written instrument to the defendants for ten years and “as much longer as gas or oil may be found in paying quantities.” The contract acknowledged receipt of one dollar as consideration, bound the lessees to pay certain royalties, and—
“It is mutually agreed that the parties of the second part shall begin operation' under this lease within six months from the delivery hereof, and complete on or before the first day of January, 1904, three wells on the above described lands, no other or additional expense shall be incurred under this lease by the second party, and this lease shall be binding so long as second parties shall comply with their obligations hereunder, otherwise, this lease shall be null and void and no longer binding on either party.”
As time passed, the plaintiff as one of the heirs of the grantor succeeded to the title to the 220 acres, and in 1916 he commenced this action. His petition alleged, among other matters, that defendants had drilled twenty-five oil wells, gas wells, and dry holes on the larger and separate tract of 716 acres, and that defendants paid royalties on the paying wells thereon to the present owners thereof; but that in all the thirteen years or more since the lease was executed no drilling or development of any sort had ever been undertaken on the 220 acres now owned by him, nor any attempt at exploration or development thereof, nor any attempt made to take possession of that tract of land; that it was one of the implied covenants and the intention of the parties to the lease that his tract of land (as well as the other) should be drilled and explored for gas or oil and not held indefinitely without exploration; that in that community there had been three distinct “oil booms,” in 1904-05, in 1912-13, and in 1915-16; that plaintiff had had several opportunities to lease his land to other parties for gas or oil development, one of whom offered him a dollar per acre if the unused lease of 1902 held by defendants was extinguished. Plaintiff further pleaded that defendants had wholly abandoned their rights under said lease to his land; that the lease had long expired; that some weeks prior to bringing his action he had demanded of defendants that they discharge the lease of record; that they failed to satisfy such demand;' and that the lease constituted a cloud upon his title; and that he had no adequate remedy at law, etc. Plaintiff prayed for a cancellation of the lease so far as it affected his land, etc., and for such other relief as might be equitable and just.
Defendants’ demurrer to this petition was sustained and plaintiff appeals.
Both tracts of land were covered by the one contract of lease. It was improvident for the owner to grant a lease of two large tracts of land for a long term on such meager specified requirements of exploration and development as those particularized in this contract, and without providing that a certain minimum of work should be done on each tract. But it is not the province of the courts to end a contract inerely because it is a bad bargain. (Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625; Marble Company v. Ripley, 77 U. S. [10 Wall.] 339, 356.) Plaintiff may have some redress in damages for breach of the alleged impliéd covenant “that it was the intention of the parties to the lease” that plaintiff’s “tract of land (as well as the other) should be drilled and explored for gas and oil and not held indefinitely without exploration.” (Core v. Petroleum Co., 52 W. Va. 276.)
In Harness v. Eastern Oil Co., 49 W. Va. 232, it was held that where two separate tracts of land were leased under one contract, and only one of the tracts was prospected and developed for gas and oil, equity would not cancel the lease on the undeveloped tract, but in the opinion it was said:
“The principles of equity would not permit the lessees, without consideration, to hold the lease indefinitely for speculative purposes, to the prejudices of the interests of the lessor.” (p. 250.)
The plaintiff asks the court to cancel this, contract, to decree a forfeiture of it, and not for default of any expressed provision of the contract but merely for default of one of its implied covenants. The instances are rare where equity will enforce a forfeiture. It will never 'do so where less drastic redress will satisfy the demands of justice. (Brewster v. Lanyon Zinc Co., 140 Fed. 801, 72 C. C. A. 213.) Forfeitures of oil and gas leases for breaches of mere implied covenants are seldom decreed. (Davis v. Gas Co., 78 Kan. 97, 96 Pac. 47; Brewster v. Lanyon Zinc Co., supra; Thornton on the Law Relating to Oil and Gas, 2d ed., §§ 91, 157.)
In Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47; 82 Kan. 367, 108 Pac. 813, the failure to market the pr.oduct of one gas well and to proceed with reasonable diligence to prospect for and to develop others was held insufficient to summarily forfeit the lease, and the cause was remanded with instructions to permit the lessor to prove his damages if such proof was available, and for the trial court to determine whether an adequate remedy at law for failure to develop was practicable, and it was further ordered that if redress in damages could not be applied an alternative decree might be entered, upon proper proof, providing that the defendant should proceed within a reasonable time to drill the necessary wells to develop the property, or failing therein that the lease be canceled.
It seems that in principle the case at bar is subject to similar disposition. The clause in the lease providing that “no other or additional expense should be incurred” seems fairly susceptible of restriction to.the acknowledged obligation to drill three'wells, etc., prior to January 1, 1904; and such interpretation is more rational and just than to say that it ex-empted the lessees from, developing plaintiff’s separate tract of 220 acres to any extent or at any time — even in fourteen years. Unless the plaintiff’s tract was to be developed some time there was no reason to include it in the lease, and as it stands it is of no value to defendants. Unless the defend-; ants had a bona fide intention to prospect' and develop this. tract they had no proper purpose in leasing it, and to cancel the lease will do them no injury. While equity abhors forfeitures it likewise abhors injustice.
Since plaintiff’s lands are burdened with an oil and gas lease he is entitled to have those lands prospected for oil and gas within a reasonable time.
“On principle, it would seem that there is such implied covenant in the written instrument. When no time is fixed for the performance of a contract, a reasonable time is implied. When a contract for the erec tion of a house or other structure is silent as to the quality of the materials or; workmanship, it is implied that the same should be a reasonable quality. In a lease of a farm for tillage on the shares, it is implied that the tenant shall cultivate the farm in the manner usually done by reasonably good farmers. So, under an oil lease which is silent as to the number of wells to be drilled, there is an implied covenant that the lessee shall reasonably- develop the lands and reasonably protect the lines.” (Harris v. The Ohio Oil Co., 57 Ohio St. 118, 127.)
(See, also, Note, 20 Ann. Cas. 1165, et seq.)
Plaintiff’s petition stated a cause of action of some sort. It narrated a predicament capable of some legal or equitable redress, not necessarily the 'redress prayed for by plaintiff, (Eagan v. Murray, ante, p. 193, syl. ¶ 2.) Indeed, a critical reading of defendants’ brief discloses that this conclusion has been anticipated by their counsel, who cautiously mentions the possible ascertainment of damages, and, failing there, that the plaintiff should proceed “by making the necessary demands upon the lessee to do the desired drilling, giving the lessee a reasonable time in which to do it.”
We think this lawsuit will answer the purpose of a demand for drilling; and chat justice between the parties will be best subserved by remanding the cause to the trial court with instructions to set aside its ruling on the demurrer, and to permit issues to be joined and the pertinent facts determined, to allow plaintiff damages if they can be definitely ascertained; and in the alternátive that the defendants be required to proceed in good faith to prospect and develop plaintiff’s lands within a reasonable time, to be fixed by the trial court, and on failure of the defendants so to do that the lease of plaintiff’s lands be canceled, in' harmony with the views herein expressed and in harmony with the doctrine announced in the fourth paragraph of the syllabus of Howerton v. Gas Co., supra.
Reversed.
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The opinion of the court was delivered by
Smith, J.
This is an opinion on rehearing. For original opinion of reversal see In re Estate of Moore, 161 Kan. 603, 170 P. 2d 838. The opinion was filed July 6, 1946. In due time a petition for rehearing was filed by appellee Mildred Meyer. In this petition appellee stated that she had no quarrel with the decision insofar as it decided whether full administration should be granted, but did object to a statement in the opinion which was set out in the motion. That statement appears at the close of the opinion on page 611 and is as follows:
“There is an innuendo in the various ¡statements and in the oral argument that Mildred was not recognized as the daughter of Vesper by the trustees of the estate. There is.no allegation to that effect in the pleadings, however. At any rate, administration proceedings in the probate court of Gray county, Kansas, as to the land located there, forty-five years after the death of the testator, is not the'pr°per tribunal and not the proper time to have that question raised.”
For reasons deemed adequate to the court a general rehearing was allowed and the cause was set for January 20, 1947. When the cause came on to be heard it appeared that counsel had not been advised upon just what points we desired further argument. Accordingly, the cause was not submitted on that date but was taken out of the January sitting and reset for final submission at the session for April, 1947. Counsel were advised that we wished briefs and arguments upon the question of the effect to be given section 7961 of the General Statutes of 1901 in view of the entire record in the case. The cause has now been finally submitted.
At the outset we have concluded that the statement to which appellee objected, and which she asked to have withdrawn and stricken, was not necessary to a decision of the point decided in the opinion. The court does not desire to decide any question against the interests of either party until it has been fully briefed and properly presented. There is danger that such a construction might be at least claimed for the statement in question. It is withdrawn and stricken out. From the date of the publication of this opinion the statement quoted above, appearing in 161 Kan. 603; 170 P. 2d 838, will not be regarded as part of the opinion of this court nor of any force and effect whatever. A question was raised in the briefs which we have concluded to treat in addition to what was decided in the former opinion. Because this question is somewhat novel and involves an examination of some of our early statutes dealing with wills and estates generally we shall restate the facts briefly.
These two appeals arise from a proceeding for the admission of a will to probate in Gray county., Kansas, begun by the trustee of the estate of a man who died while a resident of Illinois. The trustee also asked that letters of administration be issued to him to administer real estate belonging to the estate located in Kansas. A •jvoman who claimed to be a beneficiary under the will also filed a petition in which she asked full administration of the estate in Kansas and for an accounting.
The contest in the probate and district courts occurred between this trustee and a guardian ad litem for certain minors and for a person in the armed services, who were devisees under the will on the one hand and the woman who claimed to be a devisee under the will and interested in the estate on the other. •
The will was admitted to probate, a full administration was ordered and an administrator who was a resident of' the county appointed. Subsequently the trustee and the guardian ad litem filed motions asking that the order appointing the administrator, admitting the will to probate, and for full administration and an accounting, be set aside and the proceedings dismissed. The probate court denied these motions and on appeal the district court entered the same judgment as had been entered by the probate court except that no accounting was ordered.
On May 23, 1945, Clifton M. Warner filed a verified petition in the probate court of Gray county alleging that one Clifton H. Moore had died in Illinois on April 29, 1901. The names of devisees were then stated. The petition further stated the general nature of the property owned by the estate of decedent, and letters of administration were prayed for Clifton M. Warner, trustee and surviving executor under the last will of Clifton H. Moore by virtue of his appointment by the county court of DeWitt county, Illinois, at its May term in 1925. The petition then referred to Moore’s last will, which was attached, and stated that by reason of the decedent having died leaving real property within the state of Kansas, it should be admitted to probate in Gray county. The prayer was that the will be admitted to probate and for the appointment of Warner as trustee and executor.
The will devised considerable property and created a trust in favor of children, grandchildren and great grandchildren of the testator. It provided that the executors named should become trustees and administer the trust for the benefit of these devisees after the estate was finally wound up. Exhibit “B” described 12,380 acres of farm land, a part of the estate, all in Gray county, Kansas.
The petition was set for hearing on the 22d of June, 1945. On that date one Mildred Meyer filed a verified application in which she said she was the daughter of Vesper M. Warner, one of the devisees and legatees under Moore’s will and entitled to a portion of his estate. She asked the court to require a full administration of the estate within the state of Kansas and that a full accounting be had in Kansas of the estate since Moore’s death. On June 22, 1945, on motion of the trustees the court appointed a member of the bar of Ford county as guardian ad litem for three minor devisees and one devisee who was in the military service. The guardian filed answers to the trustee’s petition in which he said he neither admitted nor denied its allegations but prayed that the petitioner be put on strict proof. • On the same date the probate court ordered the will admitted to probate and ordered a full administration of the estate within the state of Kansas and that the matter of appointment of an administrator therefor be continued to July 6; 1945.
On July 6, 1945, the trustee' filed a verified application to set aside the judgment rendered on the 22d day of June. He stated that none of his attorneys knew at the time they filed the petition to probate the will and for the appointment of an administrator that Moore’s will had already been admitted to probate and record in the probate court of Gray county between November, 1905, and April, 1906, and further alleged that Moore’s property situated in the state of Kansas consisted of real estate; that there was no personal property to be assembled or debts to be paid and no further administration was necessary. He prayed that all orders made therein on the 22d day of June, 1945, be set aside and he be permitted to dismiss the petitions at his cost. On the same date the guardian ad litem filed an amended answer to the same general effect. He, too, prayed that the order for administration be set aside and that the court find no administration was necessary.
When a will made in 1888 by a testator who died in 1901 is offered for probate in 1945 and involves about 12,000 acres of Kansas real estate attention is challenged at the outset as to just what has been the situation during the intervening years. From the abstracts and briefs as well as the arguments of counsel we glean that the executor named in the will and appointed by the probate court in DeWitt county, Illinois, had managed the Gray county land as executor until 1925. At that time an action had been filed in the district court of Illinois in DeWitt county and pursuant to the terms of the will the executor had been named trustee of the' trust created by the will. Either the trustee named or his successors had managed all of the property of the deceased, including the Kansas land, since that time.
Sometime in 1944 there was some oil and gas activity in and around Gray county and the trustee sought to lease the real estate in question for oil and gas. Some question was raised about his right to give such a lease. The filing by him of the petition to probate the will and for administration followed. It is fair to state from what has been said in the briefs and abstracts that the filing of the application by Mildred Meyer was not expected. She stated in her application that she was one of the devisees under the will because she was the daughter of Vesper M. Warner, who was a grandson of the testator. She has never been recognized as the daughter of Vesper M. Warner or a devisee under the will. As these proceedings now stand that question of fact has never been presented to any court and is not passed on here. The estate has been in existence since 1901. It comprises approximately three million dollars and consists of many thousand acres of real estate in hundreds of tracts in Illinois, Iowa, Ohio, Missouri, Kansas, Nebraska and Georgia. Mildred Meyer asked and was granted in the order of the probate court on June 22 the performance of a stupendous task. There was no allegation in her application whatever as to the necessity for such sweeping and comprehensive accounting and administration. Apparently no question was raised about that in the probate court on June 22 because the hearing on the original petition was set, the guardian ad litem was named and filed his pleadings, she filed her application and the relief all parties asked— that is, she and the trustee and the guardian — was granted on that same date. No mention is made in the record before us of any controversy at that hearing.
The next steps in the proceeding were taken on July 6, 1945. Apparently between the dates of June 22 and July 6, 1945, a search of the records in the office of the probate judge of Gray county was conducted.- We learn that, because the pleadings filed by the trustee and the guardian ad litem on that date, each states they did not know at the time of filing the original petition that the will of Clifton H. Moore had already been admitted to probate and recorded in the probate court of Gray county, Kansas, between November, 1905, and April, 1906, and was fully recorded in Book 1 of Wills, at pages 209 to 219. On a hearing upon these applications and answers the contest became one in which the trustee and the guardian ad litem sought to set aside the orders of June 22, 1945, and to dismiss the proceedings, and Mildred Meyer sought to keep them in effect and to prevent their being dismissed.
For the sake of clarity we quote from the order of the probate court stating the grounds given by Mildred Meyer in the probate court as to why the proceeding should not be dismissed.
“Thereupon the attorneys for Mildred Meyer objected to the granting of the applications and prayers of the amended answers for the reason that the proceedings referred to in Book 1 of Wills, pp. 209-219, are incomplete, that the purported will copied in said book was not properly authenticated, without legal force or effect and the same was not admitted to probate in accordance with the statutes of Kansas, and for the further reason that the purported trustee was never authorized or appointed by any court in Kansas, in which state the land in question is situated; he has no authority to act in Kansas or to transfer or distribute or handle the real estate located in Gray County and elsewhere in the state of Kansas without proper proceeding within the state of Kansas.”
The appeal to the district court by the trustee and the guardian ad litem was from the order of June 22', 1945, and that of July 6, in which the court refused to set aside the former orders. The district court heard the cause as though it had been brought there originally. No new pleadings were filed. The probate judge identified Book 1 of the Wills as part of the records of her office and stated that it was the first record of Wills in that court; that on page^209 she found a certificate, as follows:
“State of Illinois
“DeWitt County: SS
“I, Warner Hickman, Clerk of the County Court in and for the said county ” in the state aforesaid (the said court being a court of record and having a seal) do hereby certify that the annexed instrument in writing is a true copy of the last will and testament and codicil of Clifton H. Moore, deceased, as proven and admitted to record in said court on the 3rd day of June, A. D., 1901, as appears from the records of said court in my office.”
And that following this certificate was a verbatim copy of the will of Clifton H. Moore; that the date of recording of an instrument prior to the recording of the above was November 9, 1905, and the first date showing a recording subsequent to the Moore will was April 9, 1906. She also testified that she had searched her records and found no case file relative to the above certificate and will. The Book of Wills was offered in evidence but an cb jection to it by Mildred Meyer was sustained. It was stipulated that Mildred was forty-three years old. Over the objection of Mildred the affidavit of the trustee was admitted. This affidavit was to the general effect that he was trustee of the estate and had been for twenty years; that Clifton H. Moore died a resident of DeWitt county, Illinois, April 28,1901; that his last will and codicil were admitted to probate and record in the county court of that county that year; that due administration was had on it and all claims against it were allowed and paid; that the estate owed no debts and owned no personal property in Kansas.
The district court recited the orders of the probate court of June 22 and that of July 6, which refused to set aside the order of June 22; it then overruled the demurrer of the trustee to Mildred’s evidence on the ground that she did not have any right to be heard. The court then made the following order:
“It is Therefore Ordered, Adjudged and Decreed by the Court that the appeals be overruled and that the orders appealed from to-wit, the order of June 22, 1945, and the order of July 6, 1945, admitting the Last Will and Codicil of Clifton H. Moore to probate in Gray County and ordering full administration thereon in Gray County and directing that an administrator be appointed in said estate in Gray County, and the order refusing to set aside said order admitting said Last Will and Testament and Codicil to probate, be and the same are hereby sustained, and affirmed.”
The district court heard this case on appeal from the probate court. It exercised the same jurisdiction as though the controversy had been by an action in that court. (See G. S. 1945 Supp. 59-2408.) Consequently the form of the final judgment should have been that the trial court ordered the will admitted to probate, appointed an administrator and ordered a full administration rather than as above. The judgment as finally made, however, will be considered by us as though it was stated in the language used by the probate court.
The guardian filed his motion for a new trial on the grounds of erroneous rulings and abuse of discretion by the trial court that the judgment was contrary to the evidence and contrary to law. The evidence taken at the trial was taken again at the hearing on this motion because there had been no official reporter at the trial. The motion was overruled.
The trustee and the guardian ad litem appealed from the judgment wherein the trial court overruled the appeals from the orders of June 22 and that of July 6 admitting the will to probate and ordering full administration in Gray county, and the order refusing to set aside the order admitting the will to probate; and the trustee appealed from the decision overruling his demurrer to the application of Mildred Meyer and from the same order overruling his demurrer to her evidence. The guardian ad litem appealed from all orders and judgments including the denial of his motion for a new trial.
The specifications of error are that the trial court erred in admitting the will and codicil to probate, in ordering administration, in excluding from the evidence a former record of the probate of the same will and codicil and in overruling the appellants’ motion for a new trial.
It will be remembered that Mildred Meyer in the probate court gave as her reason why the original petition should not be dismissed certain infirmities and irregularities in the proceedings attendant on the recording of the will in 1905 or 1906, and argued that without proper probate proceedings in Gray county the trustee was without authority to act in Kansas. The probate court and on appeal the district court apparently were favorably impressed with these reasons.
Appellants argue here as to specifications of error two and four that the trial court erred in ordering the administration and the appointment of an administrator because no administration was necessary under the circumstances. In our former opinion we held that the trial court did err in that respect. We placed our opinion of reversal upon that ground. We so held without passing on the proceedings of 1905. (See In re Estate of Moore, supra.) To what was said by us there on the above question we still adhere.
. We have concluded to deal further in this opinion with the effect to be given the proceedings of 1905 in view of our statutes in force at that time. The appellants argue that the trial court erred in refusing to admit in evidence the copy of the will and the certificate from Book 1 of Wills of the probate court. Mildred Meyer points out the certificate, which has already been set out here, and to the fact that no case files could be found by the present probate judge. She argues that such a record does not disclose a sufficient compliance with the statute to entitle this copy to any weight whatever. We shall first examine that proposition.
The statute in effect at that time was G. S. 1901, § 7961. It was originally section 24 of chapter 117 of the General Statutes of 1868. It also appears at G. S. 1935, 22-227. It provides as follows:
“Authenticated copies of wills executed and proved according to the laws of any state or territory of the United States, relative to any property in this state, may be admitted to record in the probate court of any county in this state where any part of such property may be situated; and such authenticated copies so recorded shall have the same validity as wills made in this state in conformity with the laws thereof. When any such will or authenticated copy has been or shall hereafter be admitted to record in the probate court of any county in this state where any part of such property may be situated, a copy of such recorded will, with a copy of the order to record the same annexed .thereto, certified by the probate judge under the seal of his court, may be filed and recorded in the office of the probate court of any other county in this state where any part of such property is situated; and it shall be as effectual in all cases as the authenticated copy of said will would be if proved and admitted to record by the court.”
Mildred Meyer calls our attention to section 371 of chapter 80 of G. S. 1868, which in 1905 was G. S. 1901, § 4819, and is now with some amendments not now important G. S. 1935, 60-2853. That section read as follows:
“Copies of records and proceedings in the courts of a foreign country may be admitted in evidence, upon being authenticated as follows: First, By the official attestation of the clerk or officer in whose custody such records are legally kept; and, Second, By the certificate of one of the judges or magistrates of such court, that the person so attesting is the clerk or officer legally intrusted with the custody of such records, and that the signature to his attestation is genuine; and, Third, By the official certificate of the officer who has the custody of the principal seal of the government under whose authority the court is held, attested by said seal, stating that such court is duly constituted, specifying the general nature of its jurisdiction, and verifying the seal of the court.”
She points to the word “authenticated” in G. S. 1901, § 7961, and then to the provisions of G. S. 1901, § 4819, as to the authentication of records and documents of a foreign country, and argues that the will in this case was not properly authenticated when it was offered in 1905 because the record now shows only the certificate of the officer or clerk in whose custody the will itself was kept and did not have the certificate of one of the judges of the court that the person so attesting was such clerk and his signature genuine. She argues that on account of the above the will and certificate as we find it in Book 1 of Wills of the probate court of Gray county is of no value whatever as evidence. She argues that since the presumption is that the probate judge of Gray county in 1905 would obey the law, and since the law required that a foreign will be authenticated in a certain manner, and since the record we find there today does not disclose such authentication, then the presump tion must be that the probate judge did not admit this will to record and it is of no value whatever as evidence.
The trouble with this argument is that it asks us to overlook the fact that the will was actually recorded. We know that. The will is there for us to see. It was recorded in compliance with another old statute, being section 3010 of G. S. 1901, which provides as follows:
“The probate judge shall record in the proper books to be provided for that purpose by the county, all wills admitted to probate; all letters testamentary or of administration, and all bonds of executors or administrators, before the letters shall be issued; all inventories, appraisements and sale bills; all petitions for the sale of real estate, and the proceedings and other papers connected therewith; all accounts and settlements. of any executor or administrator, but not the vouchers; and all other acts and proceedings of the court relating to the estate.”
This section was 204 of G. S. 1868. The section must be construed together with G. S. 1901, § 1974, which was section 1 of chapter 29' of G. S. 1868. That section provides, in part, as follows:
“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: First, To take the proof of last wills and testaments, and admit them to probate; and to admit to record authenticated copies of last wills and testaments executed, proved and admitted to probate in the courts of any other state, territory or country.”
It seems to have been the intention of our lawmakers from the beginning that wills executed and admitted to probate in another state needed only be recorded in a county in this state where the property was located in order to become effective there. It was not necessary that they be offered for probate.
When the copy of the will in this case was offered to the probate court of Gray county the court had only to satisfy itself that the will had been executed and proved according to the laws of Illinois. The authentication was the means provided for this determination. If witnesses had been brought out to Gray county to take the stand and testify to that effect no one would have questioned the regularity of the proceedings even though the testimony had not been recorded. Clearly the court did act on whatever was before it. For all we know, the person who copied the matter into Book 1 of Wills, which was found, merely failed to copy the certificate of the judge of the county court of which Warner Hickman was a clerk. We are unable to say from this record that such a certificate was not presented with the copy of the will.- The statute does not say the authentication shall be recorded. It says the copy shall be recorded.
In State v. Merriweather, 136 Kan. 337, 15 P. 2d 425, we dealt with a statute which provided that where one had been convicted of a felony in this state his punishment could be doubled if he had been formerly convicted of a felony. Before the defendant was sentenced a certified copy of proceedings in a district court of Nebraska was introduced to show a former conviction there. The statute provided that the former conviction could be shown by authenticated copies of the proceedings. The county attorney who conducted the prosecution in Nebraska had been present at the trial in Kansas and testified as to the former conviction and identified the documents and the various officers. On appeal, it was argued in this court that the former conviction was not properly shown because the statute provided it could be shown by the production of an authenticated copy. We said:
“The statutes relating to authentication of copies of records and proceedings of foreign courts were not designed to supersede other methods of proof. The subject is discussed by Wigmore as follows:
“ ‘The whole purpose of the process of authentication by presumed genuineness, judicial notice, and certificates of authority, is to avoid the inconvenience and expense of calling witnesses in the ordinary way to prove that which is seldom fairly disputable. The formalities so available by the common law or by statute are thus clearly not prescribed for their own sake, as being a necessary accompaniment of the process of authentication, but merely as substitutes for a more tedious and undesirable method. If, then, a party wished to resort to the more cumbrous method which would otherwise be necessary, the law will interpose no obstacle. It has merely endeavored to facilitate his proof; if he chooses to repudiate this assistance and proceed by the other method, he is at liberty to do so. It follows that if he attempts to avail himself of the more convenient method specially furnished, and fails to employ it properly, he may then nevertheless fall back upon the more cumbrous method which would have been open to him in the beginning had he chosen. In other words, he may supply by. other testimony the defects of a certificate of authentication.’ (3 Wigmore on Evidence, § 1679, p. 565.)” (p/339.)
This is sound authority for the conclusion we have reached that it was not required that the authenticity of the will from Illinois be shown by authenticated copies' or that the authentication be shown as part of the recorded copy in the records of the probate court. (See G. S. 1901, § 1726.) This.section was carried into our law and up to the time the new probate code was adopted could be found in G. S. 1935, 19-1102. It now appears in substantially the same form as far as this ease is concerned in G. S. 1945 Supp. 59-202. This is added argument that the same person who was clerk of the probate court and actually made the copy of the will which was found was the probate judge who passed on the question of whether or not it had been probated according to law in the state where made and the probate properly shown.
In connection with G..S. 1901, section 7961 swpra, sections 7962 to 7965, inclusive, should be considered. They provide as follows:
“A will executed, proved and allowed in any state or country other than the United States and territories thereof, according to the laws of such foreign state or country, may be allowed and admitted to record in this state in the manner and for the purpose mentioned in the following sections.
“A copy of the will and probate thereof, duly authenticated, shall be produced by the executor or by any person interested therein, to the probate court of the county in which there is any estate upon which the will may operate, whereupon said court shall continue the motion to admit such will to probate for the term of two months; and notice of the filing of such application shall be given to all persons interested, in some public newspaper printed or in general circulation in the county where such motion is made, at least three weeks consecutively, the first publication to be at least forty days before the time set for the final hearing of the motion.
“If on hearing it shall appear to the court that the instrument ought to be allowed in this state, the court shall order the copy to be filed and recorded, and the will and the probate and record thereof shall then have the same force and effect as if the will had been originally proved and allowed in the same court in the usual manner; but nothing herein contained shall be construed to give any operation or effect to the will of an alien different from wha.t it would have had if originally proved and allowed in this state.
“After allowing and admitting to record a will pursuant to the four preceding sections of this act, the court may grant letters testamentary thereon, or letters of administration with the will annexed, and may proceed in the settlement of the estate that may be found in this state; and the executor taking out letters, or the administrator with the will annexed, shall have the same power to sell and convey the real and personal estate, by virtue of the will or the law, as other executors or administrators with the will annexed shall or may have by law.”
These sections provided the method of procedure in cases where a will admitted to probate in another state devised property in this state. The sections throughout spoke of “recording” and “admitting to probate” as two distinct matters. G. S. 1901, § 7966, provided that no will should be effectual to pass real or personal property in this state unless it should have been duly admitted to probate1 or recorded as provided in the act. Clearly an expression of intention that a will admitted to probate in another state need only to be recorded in a county where property was located to pass title to that property.
The argument of appellee here is in effect an attack upon the action of the probate court in recording the copy of this will in 1905 or 1906.
Our probate court in 1905 was a court of general jurisdiction as to wills and the estates of deceased persons. (See G. S. 1901, § 1974; Watkins v. Mullens, 62 Kan. 1, 61 Pac. 385; also Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116.) The absence from the record of certain procedural steps having been taken does not require a striking down of the judgment or order. (See Chamberlain v. Thorne, 145 Kan. 663, 66 P. 2d 571.) In the above opinion we said:
“A probate court,- in this state, relative to an order of adoption, is a court of general jurisdiction; the failure of the record to show affirmatively the existence of facts essential to jurisdiction is not sufficient to defeat the judgment upon a collateral attack; where the record is merely silent the presumption is that the necessary jurisdictional facts existed.” (Syl. f 2.)
(See, also, Denton v. Miller, 110 Kan. 292, 203 Pac. 693.)
It was not required that any order be made admitting the will to record. (See Gemmell v. Wilson, 40 Kan. 764, 20 Pac. 658; and Niquette v. Green, 81 Kan. 569, 106 Pac. 270.) All that was required was the actual recording. There is no doubt but that that was done. (See Howbert v. Heyle, supra.) In Calloway v. Cooley, 50 Kan. 743, 32 Pac. 372, a will admitted'to probate in another state was offered for record and recorded here. Subsequently in a collateral proceeding the authentication was attacked. We said:
“It is next contended that the authentication of the will was insufficient, and that therefore the plaintiffs’ motion for judgment on the findings should have been allowed. The authentication appears to be substantially correct, but its sufficiency having already been adjudged by a competent tribunal, it is not before us for decision. It appears from the findings that an application was made in the probate court of Lyon county by the executor to have a copy of the will admitted to record in that court, and upon a hearing duly had, it was found that the will presented was a duly-authenticated copy of the will of James Calloway, deceased; that it had been executed, proved and admitted to probate according to the laws of North Carolina, and that the authentication thereof is in due form of law; it was further found, that the will related to property in Lyon county, Kansas; and upon these findings an order was made that the authenticated copy of the will be admitted to record in that court and duly recorded. The probate court is vested with full power to inquire into the sufficiency of the authentication and to ascertain whether, under the proof offered, the will should be admitted to record. Being vested with jurisdiction, its finding and determination are' final, unless corrected upon appeal or proceedings in error, and are not subject to collateral attack.
“The statutes provide that the existence of certain facts are necessary before a will executed and proved in another state can be admitted to record in this state. One of the requisite facts is, that the copy of such will presented for record shall be duly authenticated. This fact is to be determined upon proof, and the authority to determine it is conferred upon the probate court. (Gen. Stat. 1889, Hi 2932, 7228.) Anything indicating a contrary view in Gemmell v. Wilson, 40 Kan. 764, is not controlling, as in that case the existence of the requisite facts for admission to the record were conceded. Under the statutes, these requisite facts must be determined by the probate court; and it having exercised the jurisdiction, its determination, although it may have been erroneous, is conclusive upon all interested parties and all courts, until it is reversed or reviewed in some appropriate proceeding.” (p. 753.)
Appellee argues that the foregoing decision is not in point here because there was an attempt at an authentication in that case and none here. The difference, however, does not detract from the weight to be given what we held as to the action of the probate court in recording the will upon the evidence furnished. We conclude that the court erred in sustaining the objection of Mildred Meyer to the copy of the will as it was found copied in Book 1 of Wills. The will should have been considered by the trial court.
Having reached this conclusion on this- phase of the case we are next confronted with the question of the effect this- recording of the will had on the application of Mildred Meyer for administration of the estate. She argues that no one claiming under the will had any title to the real estate in Kansas until the will was probated in Kansas. She argues specially in her brief on rehearing that her claim under the will insofar as it affects land in Kansas may be adjudicated in Kansas courts. We find no fault with that general rule, as announced in the authorities furnished us by appellee.
They have no application to this record. At the time the will was recorded in Kansas pursuant t(j G. S. 1901, § 7961, other statutes in force were sections 8003 to 8006. These were as follows:
“Trusts created by a will made out of this state and relating to lands situated in this state may, after the will is duly admitted to record in this stat-e, be executed as hereinafter provided.
“If a trustee is named in such foreign will, he may execute the trust upon giving bond to the st-ate of Kansas in such sum and with such sureties as shall be approved by the probate* court of the county in which said will is recorded, conditioned to discharge with fidelity the trust reposed in him; and when the testator in the will naming the trustee shall have ordered or requested that bond should not be given by said trustee, the bond shall not be required, unless from a change in the situation or circumstances of the trustee or for other sufficient cause the probat-e court shall think proper to require it.
“If a trustee has been appointed by a foreign court according to the laws of the foreign, jurisdiction, he may execute the trust upon giving bond as provided in the preceding section, and satisfying the probate court of the county in which said will is recorded, by an authenticated record of his appointment, that he has been duly appointed trustee to execute the trust.
“The said probate court may when necessary, on application by petition of the party or parties interested, appoint a trustee to carry into effect a trust created by a foreign will, which trustee, before entering upon his trust, shall give bond with such security and in such amount as such court shall direct.”
Note, also, G. S. 1901, § 2953. That section is as follows:
“Whenever in any will which heretofore has been or hereafter shall be executed and proved in any state or territory of the United States, power is given to the executor or administrator with the will annexed to sell or convey real estate of the testator, any executor of such will or administrator with the will annexed of the estate of the testator, duly appointed and qualified in any state or territory of the United States in which such will shall have been executed and proved, may sell and convey the real estate of the testator in this state, in pursuance of the power given in the will, as effectually and to the same extent as if letters testamentary or of administration with the will annexed of the estate of the testator had been duly granted to such executor or administrator in and under the provisions of the laws of this state, unless at the time of such sale and conveyance administration upon the estate of the testator shall have been granted in this state: And provided, That at the time of such conveyance a copy of such will shall have been recorded in the office of the probate court in the county in which any land so conveyed is situated, as authorized by section twenty-four of chapter one hundred and seventeen of the General Statutes.”
This record does not disclose whether the executor in Illinois and later the trustee there followed either one or the other of the statutes. With that we are not concerned now. Either course was open to him. Both statutes clearly provided that they shall be applicable once the foreign will was “recorded” in this state. It did not have' to be admitted to probate. We here hold the will in this case was properly recorded. It follows that the reason the trustee gave for asking for the probate of the will and for a full administration of the estate in Kansas did not exist.
He should have been permitted to withdraw the petition and dismiss the proceedings. There was no necessity for an administration of the estate in Kansas on the application of Mildred Meyer. Her application should have been denied.
The original judgment of reversal is adhered to.
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.
This action was brought in the district court by eleven heirs at law against the only other heir at law of a decedent' who died intestate to set aside a deed executed and delivered by him to defendant, to quiet title in the twelve heirs in equal parts, for partition and an accounting.
The petition was drawn in four alleged causes of action, to each of which defendant filed a general demurrer and also a demurrer challenging the jurisdiction of the district court. Both demurrers were sustained and plaintiffs appeal.
Each alleged caused of action, after the first, made the allegations of the former cause of action a part thereof. It will not be necessary to set forth all the allegations or to set them out in four separate parts. Material allegations will be considered in connection with the various contentions. We pause, however, to state decedent died intestate in Crawford county.. The land involved was situated in Neosho county. Administration was had on his estate in Crawford county and the records of the probate court of that county were made a part of the petition by stipulation. The instant action was instituted soon after the administrator was discharged and the estate closed.
The first question presented by appellants is the determination of the legal effect of a deed to the decedent in order to ascertain what title he had to convey to appellee.
The decedent was Asbery Houdashelt, also referred to as Asbury Houdashelt. The deed to decedent, executed in 1895, provided:
"WITNESSETH, That the said parties of the first part, in consideration of the sum of Three Thousand and no/100 Dollars, to them duly paid, have sold, and by these presents do grant and convey to the said [Asbery Houdashelt] party of the second part his blood heirs and assigns, to his own sole and separate use free from the interference or control of his wife, all that tract or parcel of land situated in the county of Neosho and State of Kansas, and described as follows, to-wit: [Description]
To Have and to Hold, the above granted premises to' the said Asbery Houdashelt to his sole i and separate use as aforesaid and his heirs, and assigns, and to his and their use and behoof forever,
with the appurtance and all of the estate', title and interest of the said parties of the first part therein. And the said parties of the first part do hereby covenant and agree that at the delivery hereof they are the lawful owners of the premises above granted, and seized of a good and indefeasible estate of inheritance therein free and clear of all incumbrance and that. they will WARRANT AND DEFEND the same in the quiet and peaceable possession of the said party of the second part his heirs and assigns forever, against all persons lawfully claiming the same.” (Our italics.)
On March 22, 1944, decedent conveyed his title to appellee by warranty deed, free and clear of all incumbrances.
Appellants first argue decedent acquired only a life estate and that the remainder passed to his “blood heirs,” appellants and appellee, in equal shares. They, therefore, contend that, assuming the deed was not obtained by fraud and was valid, decedent could, and did, convey only his life estate to appellee. Upon that premise appellants argue that since they and appellee acquired such title by deed directly from their father’s grantor the property was no part of decedent’s, estate and there was no occasion for asserting any right thereto or interest therein in the probate court.
We need not consider what interest the deed to the decedent would have conveyed had it employed only the words “blood heirs.” • The deed was not so limited. The grantee therein was Asbery Houdashelt, “party of the second part his blood heirs and assigns.” The deed warranted the title to “party of the second part his heirs and assigns forever.” This was not a conveyance to decedent of a mere life estate but of the fee simple title. (Howe v. Howe, 94 Kan. 67, 145 Pac. 873; Ragland v. Ragland, 146 Kan. 103, 107, 68 P. 2d 1100.) Appellants therefore acquired no title by virtue of this deed. Whatever rights they acquired later, if any, were as heirs under the law of descents and distributions.
Appellants next contend, as alleged in their petition, the deed to appellee was void in that it was obtained from decedent by fraud and undue influence while he was feeble-minded and lacked the necessary understanding to make the conveyance. If that be true what was the proper forum in which to initiate proceedings to set aside the deed and to bring the property into administration under the admitted facts of this case?
What were the facts ? Decedent conveyed the property to appellee March 22, 1944. It was recorded on the same day. Appellants filed no action to set it aside during the grantor’s lifetime. The grantor died intestate February 2, 1945, a resident of Crawford county. On February 28, 1945, Paul Houdashelt, one of the appellants and represented by counsel, filed a verified petition for letters of administration. He claimed as an heir who- had an interest in the estate. He asserted the estate consisted of personal property of the probable value of $530. He stated the appointment of an administrator was necessary for the conservation, collection and administration of said property and prayed for the appointment of C. C. Groomer as administrator. He listed appellants and appellee as heirs of the estate. The order appointing the administrator made March 26, 1945, discloses notice of the time and place of hearing of the petition was given as required by law; that the notice was approved and that no person objected to the petition for the appointment of the administrator. The order appointing the administrator also disclosed decedent died intestate in Crawford county February 2, 1945, and at the time of his death was the owner of property situated in Crawford county. The inventory filed by the administrator April 21, 1945, disclosed decedent’s estate consisted of personal property only. The verification stated such was all the property of decedent that had come to the administrator’s knowledge. On January 28, 1946, the administrator filed his verified petition for final settlement and distribution of the estate. It disclosed the costs of administration and the funeral expenses could not be paid in full. On the same day the probate court approved the administrator’s report, discharged the administrator and closed the estate. The court expressly found no notice of final settlement of the estate was required and that it should be closed as provided by G. S. 1945 Supp., 59-1507.
The instant action was commenced in the district court of Neosho county March 20,1946.
As previously indicated the land was conveyed to appellee. Appellants alleged it was conveyed as the result of undue influence and fraud. If that be true no right, title or interest in the land was legally conveyed and the land remained an asset of decedent’s estate. It remained so subject to the payment of decedent’s debts and costs of administration. Appellants could obtain only such portion of the estate as remained for distribution after the land was sold and costs of administration and claims against it were paid.
During administration all property of a decedent of every kind and character is drawn into the administration of the probate court' as it has exclusive original jurisdiction thereof. 'A few cases so holding are Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Burns v. Drake, 157 Kan. 367, 139 P. 2d 386. On final settlement and distribution the probate court has exclusive original jurisdiction to determine what assets belong to the estate and it is obliged to describe the property and determine the portion or part thereof to which each heir, devisee and legatee is entitled. (G. S. 1945 Supp., 59-2249.) That could not be done in this case until the land in question was brought under the jurisdiction of the probate court.
Manifestly appellants, with full notice of the pending administration, could not by-pass the court of exclusive original jurisdiction and, after the estate was closed, acquire title to the property of the decedent as heirs at law free from the just claims of creditors of the estate.
Before appellants could acquire their rightful part of the land, if any, as heirs at law, there was a deed in their way which, so long as it stood, effectually thwarted their purpose. So long as it was not set aside they could not be decreed any part of it or interest therein as heirs at law. The probate court had the exclusive original jurisdiction to determine the validity of any contention or claim, whether legal or equitable in character, that was necessary to make a proper and just distribution of the decedent’s estate except where the probate code expressly provides otherwise. This general principle has been definitely established in cases involving varying facts and circumstances. Some of them are: Foss v. Wiles, supra; Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242; Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188; Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; Sheedy v. Willoughby, 157 Kan. 508, 142 P. 2d 801; Burns v. Drake, supra; In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278; Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450; In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501; Simmons v. Gill, 161 Kan. 123, 166 P. 2d 574; Asendorf v. Asendorf, 162 Kan. 310, 176 P. 2d 535. We, as in the past, emphasize that this is not a case in which an heir at law may by mere operation of law, and without any action on his part, acquire his distributive share under the law of intestate succession. Were it such a case there would be no need for filing a claim or demand for a distributive share as an heir. Here appellants were obliged to set aside the deed to land which was an asset of decedent’s estate before they could hope to be decreed distributive shares as heirs at law. In the case of In re Estate of Grindrod, supra, a will stood in the way of an heir who sought to take under the law of intestate succession. She sought to remove that obstruction in the district court. We held she was obliged to initiate the proceedings in the probate court and said:
“The sole purpose of prosecuting the will contest action was to'set aside the will and thereby establish appellee’s right to a portion of the estate as an heir at law. The will contest action is merely the means, vehicle or form of action chosen to accomplish that specific purpose. To say that appellee is not now, in substance and in reality, attempting to establish her right or claim to a portion of the decedent’s estate as an heir at law would require us to completely ignore the obvious purpose and intent of her present action.” (p. 353.)
Appellants further argue the probate court has no power to pass on the question of title to or ownership of land. Where those questions are germane and necessary to final settlement and distribution we have held the probate court alone has such original jurisdiction except where the probate code expressly provides otherwise. See list of cases cited in concurring opinion in Malcolm v. Larson, 158 Kan. 423, 427-430, 148 P. 2d 291. In Gantz v. Bondurant, supra, we held:
“The determination of an issue of ownership to real estate is as much a prerequisite to the proper distribution of a decedent’s estate as the determination of any money demand, and a claim to all or a portion of the decedent’s property must be asserted originally in the probate court irrespective of whether the claim be based upon legal or equitable grounds or whether decedent died lestate or intestate.” (Syl. f 2.)
In the opinion of that case, after quoting numerous cases, it was said:
“In none of the above cases was the claim or demand against the estate for money. In each case it was specifically a claim or demand to all or a portion of the decedent’s estate and was based upon the theory that claimant was entitled to be- decreed the owner thereof.
“The rule that a claim of ownership to property of a decedent’s estate must be filed in the probate court has been applied in cases where decedent died intestate as well as where he died testate. (Dixon v. Fluker; Burns v. Drake, both supra.)” (p. 394.)
These principles were followed in In re Estate of Bourke, supra, p. 561; Simmons v. Gill, supra; and in the recent case of Asendorf v. Asendorf, supra, where the legal effect of a portion of a will was involved. We held:
“The will of a testator had been admitted to probate and the estate was 'being administered pursuant to it, question arose as to whether a certain clause of the will was void, held, that the probate court had exclusive original jurisdiction to determine this.” (Syl. ¶ 1.)
Contrary decisions on the precise point rendered prior to the adoption of the new probate code July 1, 1939, are not controlling. Counsel for appellants rely strongly on two cases decided since the adoption of the new code as supporting their right to bring this action in the district court. They are Kininmonth v. Carson, 156 Kan. 808, 137 P. 2d 173; Sheedy v. Willoughby, 157 Kan. 508, 142 P. 2d 801. We do not deem it necessary to restate all the facts narrated at length in those opinions. The paragraphs of the syllabi and the opinions disclose those actions were not brought by heirs claiming a part of decedent’s estate' but were brought by the administrator in the Kininmonth case and by,the executor ,in the Sheedy case. The Kininmonth case was brought to quiet title, to land under statutory authority and an order of the probate court to take possession of the land to which others claimed title by reason of certain instruments of conveyance. Defendants did not claim as heirs of decedent’s estate.
The Sheedy case was brought by an executor to obtain partition of real estate which he was authorized to sell by express terms of the will under which he was functioning. The principal defendants who happened to be heirs at law of the decedent were not contesting the will and were asserting no interest, under the will, to the portion of the real estate involved. The testatrix was alleged to own an undivided interest in the land and certain defendants, heirs at law, ■ were alleged to hold the remaining undivided interest therein. The respective interests were not in dispute. Insofar as the land was concerned the defendants were utter strangers to the administration proceedings. Under the provisions of G. S. 1945 Supp. 59-1401, an executor or administrator has a right to the possession of all property of the decedent, except the homestead and allowances to the surviving spouse and minor children. An executor or administrator may by himself, or with the heirs, maintain an action for the possession of real estate or to quiet the title to the same. We discern nothing in the Kininmonth, the Sheedy or in any other case cited which gives appellants, in the instant case, the right to assert a claim to a portion of decedent’s estate, in the first instance, in the district court.
Appellants argue the order closing the estate without notice to them was void. It appears that in view of the admitted insolvency of decedent’s estate, as disclosed by the probate court records, that court was not compelled to serve such notice on appellants. (G. S. 3945 Supp. 59-2247; 59-1507.) That point, however, need not be determined. Appellants have not appealed from the finding of the facts and the order made pursuant thereto that such notice was unnecessary. The finding and order have become final insofar as the instant action is concerned.
Appellants pleaded and contend they presumed and believed the administrator would do his- duty and institute proceedings to bring an action to set aside the deed and for possession of the land. The contention is untenable. Appellants’ conduct and the instant action itself are wholly contrary to the alleged presumption and belief. It is conceded appellants were properly notified of the petition for the appointment of an administrator. They therefore knew at all times the estate was being administered and would be closed in due time. The petition nowhere alleged they notified the administrator the land in question belonged to decedent’s estate or that they requested him to have the question of ownership determined. On the contrary one of the appellants in his application for administration expressly alleged the estate consisted only of personal property insofar as he knew. The inventory of the administrator likewise disclosed only personal property. The instant petition plainly shows appellants waited until the estate was fully administered and closed before they instituted this action. All the appellants then continued, in such action, to claim the land was no part of decedent’s estate.
A studious examination of all cases cited by able counsel on both sides compels us to affirm the judgment of the district court. It is so ordered.
Hoch, J., not participating.
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The opinion of the court was delivered by
Smith, J.
This is an equitable action to quiet title to real estate. Judgment was entered adjudging plaintiff to be the owner of only an undivided one-sixth interest. He appeals because he was not adjudged to be the sole owner.
There is not much dispute about the facts.- Hattie Pearl Eidson died on February 15, 1936, and left the quarter section in question to five sons and one daughter. Following probate court proceedings each child was, on December 4, 1944, decreed to be the owner of an undivided one-sixth interest. On March 1, 1940, there was filed in the district court of Stevens county an action to foreclose a tax lien on the property. All but one of the heirs were made'defendants. Personal service was had on one of the heirs, service by publication on four and no service on the one who was not a party.
On-June 6, 1940, a judgment was entered holding the land to be subject to a tax lien in the amount of $220. It was sold for $105 on August 12, 1940, and on September 7, 1940, the sale was confirmed and on the sáme date a sheriff’s deed was issued to G. G. Railsback. This d.eed was not placed on record until December 21, 1945. On January 18, 1946, Railsback executed and delivered to the defendant in this action a quitclaim deed to the land in question.
On January 21, 1945, plaintiff obtained a warranty deed to the real estate in question from four of the heirs. This deed was recorded February 17,1945. That from the others was recorded April 16, 1945. One of the heirs was a minor and in proceedings about which there is no dispute a guardian’s deed was executed and delivered to plaintiff on May 15, 1945, and recorded on the same date. On paper these conveyances gave plaintiff sole title to the real estate in question. '
Plaintiff inspected the land before he bought it and saw that it was not in cultivation, was not fenced, was unoccupied and was not being grazed. Plaintiff had no actual knowledge or notice that the land had been foreclosed for taxes or that Railsback had any interest in it. *
There was undisputed evidence that plaintiff paid $1,100 for the land; that he had an abstract of title made before the purchase price was paid; that the abstractor checked the records in the office of the register of deeds and the probate and district courts and found no record of the tax foreclosure suit, action or judgment; that the abstractor helped prepare the action to foreclosure; that there were over 1,200 pieces of real estate involved in it and he did not remember about this particular piece and at the time he discussed', the abstract with plaintiff he did not know about the sheriff’s deed; that the records showed the taxes paid up to 1938; and that at the-time plaintiff bought the land they were paid from that date to the date of the conveyance out of the purchase price plaintiff paid. The lawyer who examined the title testified he examined the records in the office of the register of deeds and the clerk of the court and found nothing which would lead him to believe the property had been sold for taxes.
The trial court found that defendant was the owner of an undivided five-sixths interest in the property and plaintiff was the owner of an undivided one-sixth interest, certain equitable adjustments as to the undivided one-sixth interest of plaintiff in the crops on the land were made by the trial court on account of defendant having been in possession.
Succinctly the facts may be stated thus: Defendant received a sheriff’s deed to the land in question as a result of a suit to foreclose a tax lien. He did not record this deed for five years, three months and fourteen days after it was issued. During all that time the record title stood in the name of the six heirs of Hattie Eidson. The records in the office of the clerk of the district court did not show that any of these heirs had been made a party to the general action to foreclose tax liens. While the title to the land in question thus stood in the name' of the six heirs they conveyed the land to' plaintiff for a valuable consideration. The plaintiff at the time he paid the consideration and accepted the deeds from the heirs had no actual knowledge or notice of the existence of the sheriff’s deed. At that time he inspected the land and found it to be uncultivated, ungrazed, unfenced and without improvements.'
Defendant argues that the tax foreclosure statute, G. S. 1945 Supp. 79-2801 to 70-2809, is the exclusive remedy for the foreclosing of tax liens; that upon his purchase of the land he became the equitable owner of it and when the sale was confirmed and the sheriff’s deed executed and delivered to him he became the owner of the fee simple title and the plaintiff, therefore, had constructive notice of that fact and purchased the land subject to the rights of the purchaser at the tax foreclosure sale.
At the outset we should deal with the argument of defendant that G. S. 1945 Supp. 79-2801 to 79-2809 is full and complete as to pro cedure and remedy and no provision of the code may be considered when construing procedures under it. We have never held that pertinent provisions of the code of civil procedure had no place in considering a construction of the tax foreclosure act. There are many procedural steps in carrying on a tax foreclosure action where the code must be followed. For instance, the first section of the act provides for service of summons and for service by publication, as provided in the code. Where there is a procedural step which is not clearly provided for in the tax foreclosure statute we will look to the code just- as in other actions.
Having reached the above conclusion, we must first examine the tax foreclosure statute. We will consider G. S. 1945 Supp. 79-2804. That section provides for certain procedural steps. The first step is the order of sale. Next, the actual sale by the sheriff and that officer’s return thereof. Next, the execution and delivery of a deed and its form. The section then provides:
“When said deed is filed for record in the office of the register of deeds of the county where such real estate is situated, it shall vest in the purchaser or grantee therein named, as against all persons, including, but not limited to, corporations and municipal corporations, parties to such proceedings, a fee-simple title thereto, subject only to valid covenants running with the land and valid easements of record in use and subject to taxes and interest which have become a lien thereon, subsequent to the date upon which such judgment was rendered, and said deed shall be prima facie evidence of the regularity of all proceedings prior to the date of filing the same for record as aforesaid.”
It will be noted the statute provides specifically for the passing of title on the filing of the sheriff’s deed for record. Naturally the execution and delivery of a sheriff’s deed after the sale was confirmed would have passed title even if the above quoted provision had not been in the statute. There would be no reason for the inclusion of this particular provision other than to fix the time of the passing of title as the time when the sheriff’s deed was recorded: The legislature must have so intended. As a matter of fact that is what the statute says. Had that provision not been in the statute, then a plausible argument could be made that title was vested in the purchaser when the sheriff’s deed was executed and delivered. Naturally the prospect of any other person obtaining a sheriff’s deed to the same property is remote. What the legislatüre had in mind no doubt was the rights of innocent third parties, such as we have here. We do not wish to hold that in order to prevent the rights of third parties from intervening the purchaser must walk directly, from the office of the sheriff to that of the register of deeds and record his deed. We are not compelled to so hold. G. S. 1935, 60-3458, provides as follows:
“The purchaser of real estate at sale on execution or order of sale or special execution must place evidence of his purchase upon record within six months after the expiration of full time of redemption; up to that time the publicity of the proceedings is constructive notice of the rights of the purchaser, but no longer.”
This is section 495 of chapter 182 of the code of civil procedure enacted in 1909. The effect of it. is to give purchasers of property at a sheriff’s sale six months after the expiration of the period of redemption, during which time third parties must take notice of the proceedings and take title subject to the outcome of the litigation-regardless of whether the deed has been recorded. Construing both these statutes together the effect is to provide that the purchaser of land at a tax foreclosure action has six months after the delivery of the sheriff’s deed within which to record it in order that his deed may be notice to the public. For six months after the sheriff’s deed is delivered to a purchaser of real estate at a tax foreclosure sale the pending of the action is notice to third parties of the purchaser’s interest.
The argument of defendant is that the doctrine of lis pendens applies to this case. The statute (G. S. 1935, 60-2601) is, in part, as follows:
“When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiff’s title; but such notice shall be of no avail . . .”
It will be noted the above section provides that the pending of an action is notice only while the action is pending. This record does not disclose whether the tax foreclosure action was still pending when plaintiff obtained his deed from the heirs about four year's later. Certainly, however, it was not pending as to the heirs of this piece of land more than six. months after the delivery of the sheriff’s deed. Such is the effect to be given G. S. 1935, 60-3458.
The judgment of the trial court is reversed with directions to enter judgment for plaintiff in- accordance .with the views herein expressed.
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The opinion of the court was delivered by
Harvey, C. J.
The appeal here is from an order of the court overruling a motion to change the custody of children. The record discloses that plaintiff and defendant were married in June, 1933, and are the parents of two children, a son, Bruce, now about twelve years of age, and a daughter, Helen Marie, about a year younger. On April 17, 1943, plaintiff was granted a divorce from defendant and the decree of the court gave her the custody of the two children and required defendant to pay $40 per .month for their support. Defendant did not appear and defend the divorce case nor complain of the decree issued therein, He has continued to make the monthly payments provided for in the decree for the support of the children and at times has made additional payments. .
Defendant entered the armed service May 12, 1943, and was honorably discharged October 12, 1945. On May 18, 1946, he married his present wife, Helen Kogler, who has two daughters, ages about seven and three, by a 'former, marriage.
In June, 1946, plaintiff filed a motion for an order increasing the payments for child support. In August, 1946, defendant filed a motion asking the court to changó the custody of the children from plaintiff to himself. On September 7,1946, both motions were heard and denied. A number of witnesses testified at the hearing. In his motion to change the custody of the children defendant, among other things, alleged:
“Plaintiff is not a fit and proper person to be charged with and have the responsibility of their maintenance, care, control and custody.”
- In a, written decision passing upon the motions the court recited the fact that the divorce had been granted to plaintiff and that she had been given1 the custody of the children, at which time no complaint was made of her fitness to have their custody, and said:
“She has had them since the 17th day of April, 1943. The testimony which has been introduced here has not in any way assailed her character. The testimony has not in any way assailed her fitness to have the custody of these children. Of course, there has been testimony of neglect on one side on one or two occasions. There has been testimony of, shall we say unseemly conduct, on the part of the father on one or two occasions, but there has' been no testimony which assailed the character of either one of them, and particularly none which has assailed the character or the fitness of the mother.”
The case is submitted here upon the abstract and brief of appellant only. Counsel who appeared for appellee at the hearing advises that she has no funds to pay for the preparation of a counter abstract and brief. However, the abstract prepared for appellant appears to be quite complete. • We need make only a brief summary .of the evidence offered. Plaintiff’s mother died when she was less than a year old. She was reared in the home of her sister, Mrs. Herbert Felbush, and her husband. They own and operate a 400-acre farm about ten miles from town. It appears that after plaintiff and defendant were divorced she and the children lived for a time in an apartment in town* but had to give it up because she could not pay the rent. Mr. and Mrs. Felbush then bought a home in town for plaintiff and her children, where they have sinóe resided.' Plaintiff worked at such work as she could find to do — house work, at a mill, in a greenhouse, and more recently by doing sewing at. her home. Plaintiff testified she could not maintain the children on what she earned and the amount'defendant’paid:'her. The children have attended school. Their attendance records show some daily absence. Plaintiff testified they were never absent except for illness or when defendant kept Bruce out of school. Bruce spent the summer of 1946 with Mr. and Mrs. Felbush on their farm. He was much interested in the work and things about the farm and has learned to do some worthwhile things. For about two months prior to the hearing the daughter, Helen Marie, spent most of her time with defendant and his second wife. Plaintiff testified Helen Marie wanted to come home, but her father would not let her. Defendant testified that he and his present wife have a modem seven-room home, well located in town, not far from school; that he is employed by a milling company, earning 88% cents per hour, working 48 hours per week, and that it costs him about $175 per month to support his family. Defendant’s wife testified that she divorced her first husband and was given the custody of her two minor children, who live with her and the defendant; that her children get along well with Bruce and Helen Marie; that she sees to it that the children go to Sunday school every Sunday, and would continue to do so if Bruce and Helen Marie were living with her; that she would do all she could to merit their affection and to. cultivate the children’s love and respect for their mother and other relatives, and that they could live and manage on defendant’s earnings. Counsel for appellant contends the trial court placed too much stress on the fact that plaintiff was granted a divorce for defendant’s fault; that he made no contention at that time that she was an unfit person to have the custody of the children, and that the court did not give enough attention to what would be best for the children’s welfare.' We think the court properly gave consideration to the terms of the divorce decree, and perhaps also gave some consideration to the fact that defendant charged the mother of his children with being an unfit person to have their custody without presenting any proof of that to support such a serious charge; but we see nothing in the record to justify the complaint that the court did, not give attention to what was to the best interests of the children. It appears to be true that appellant and his present wife are in position to furnish the children a better home to live in than the children have at the present, and we find no reason to discount the testimony of his present wife as to her ambitions and desires for the children. But those things are not conclusive. The defendant and his present wife have been married only a few months. It does not appear that she had seen much of Bruce, since he had spent the summer on the farm. She might very well find having two sets of children in the home would present questions with which she has never had to deal. No doubt the summer on the farm was advantageous to Bruce, as, indeed, it would be to most any boy who was reared in a city. The evidence indicates these children are getting along very well with their mother. It is true they do not have all the advantages that great wealth would give, but that does not pr.event the children from developing into healthy, useful citizens. Appellant contends the court should have given attention to the wishes of the children. At the request of defendant the court did inquire of each child whether it would prefer the custody of the father or the mother. Helen Marie expressed a preference for the custody of her father. Bruce declined to express a preference. It is a debatable matter as to whether questions of this kind should be presented to the children. There is no reason to say that the court did not consider the result of his examination of them, together with all of the other facts and circumstances shown.
It is the well-settled rule of law that whether the court changes the custody of children from one parent to another when they have been divorced rests in the sound judicial discretion of the trial court in view of all the facts and circumstances shown by the evidence. We are unable to say from this evidence that the court did not use that discretion. We would not be justified in setting aside the order of the court unless it was clearly shown that the court had abused its discretion. Certainly that cannot be said here. The trial court still has jurisdiction to entertain an application for the change of the custody of the children and has authority to do so if the facts should warrant it.
The judgment of the trial court is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Smith, J.
This was an application by a widow asking that the property occupied by her and her husband as a residence- at the time of his death be set aside to her as a homestead.' She also asked for certain statutory' allowances.- This application was denied in the first instance by the probate court. On appeal’to the district court the application was allowed. The executor has appealed.
Both parties had been married before. She had one son by a former marriage. He had three sons and a daughter. The husband and wife had been living together in the residence in question at the time of the husband’s death. The question at issue turns upon an interpretation of the husband’s will and the wife’s consent thereto. It will be set out here in full as follows:
“I, David A. Fawcett, residing at 923 Osage Street, in the city of Neodesha, county of Wilson, state of Kansas, being of lawful age, of sound and disposing mind and memory, and not under any restraint, do hereby make, publish and declare this to be my last will and testament; hereby revoking any and all former wills by me made. This will is intended by me and by my wife, Leora E. Faw'cett, to be irrevocable and to serve as a full and final settlement of all our mutual property interests upon my death or her death. In the event my wife, Leora E. Fawcett, should die before my death, then and in that event the part of my estate which is to pass to her upon my death under this will shall be and is hereby given to her only child, Clyde Basey, to be paid to him by my executor on my death from my estate.
“First: I direct that my just debts, funeral and burial expenses, be paid by my executor from my estate.
“Second: I give, devise and bequeath to my son, J. Loran Fawcett, the sum of One Dollar ($1.00).
“Third: I hereby give, devise and bequeath to my wife Leora E. Fawcett, all the household goods, furniture and equipment which may be owned by me and in my house at the time of my death.
“Fourth: I give, devise and bequeath to my wife, Leora E. Fawcett, and to my three children, viz: William Fawcett, now residing on the comer of Eighth and Osage Street, city of Neodesha, Kansas; Harold Fawcett, now residing at Colorado Springs, Colorado; and Velma Laverty, now residing at rural Neodesha, Kansas, each an undivided one-fourth interest in all the rest and residue of my estate, share and share alike, except that my wife’s one-fourth share in and to the residue of my estate shall not be less than Eight Thousand Dollars ($8,000.00), and in the event that her undivided "one-fourth interest in the rest and residue of my estate does not amount to Eight Thousand Dollars ($8,000.00) then the' interests of the three children named in this paragraph shall be equally reduced and added to my wife’s share so that my wife does receive the said sum of Eight Thousand Dollars ($8,000.00), the said amount to be in addition to any and all other bequests made by me to her in this will. In the event that any of my three children, viz: WilliamFawcett, Harold Fawcett and Velma Laverty, should die before my death, then, in that event, the interest which he would have received in my estate under this, will, I hereby give and devise to the children, then living, of the said child or children that died before my death.
“Fifth : I hereby request and instruct the executor of this my will to give my’ wife, Leora E. Fawcett, should she survive me, the first privilege to purchase my present residence property located at 923 Osage Street, Neodesha, Kansas, at the value placed thereon by. the appraisers of my estate.
“Sixth: I hereby nominate and request the court to appoint William Fawcett, now of Neodesha, Kansas, as executor of this my last will and testament.
“Witness-my hand at Neodesha, Kansas, this —— day of December, 1944.”
Attached to the will was an election to take under the will signed by the widow. It read as follows: ^
“The undersigned, Leora E. Fawcett, the wife of David A. Fawcett, having read the foregoing will of said David A, Fawcett, and having had independent advice thereon, and being well informed of the contents thereof and the provisions made for her therein and her rights under the laws of the state of Kansas hereby consents to the provisions contained therein for her benefit, and expressly consents that the said David A. Fawcett may bequeath away from her more than one-half of his property and hereby elects to take under said will.
“Dated at Neodesha, Kansas, this-day of Décember, 1944.”
The will to which the above election was attached was duly admitted to probate.
The application upon which this proceeding was based was called “Application of Leora E. Fawcett, widow, for widow’s allowance.” It stated that she was the surviving widow of deceased; that under the provisions of G. S. 1945 Supp. 59-401 and 59-403, she was entitled to have set aside to her the residence occupied by deceased and herself at the time of his death, certain carpenter, yard and garden tools, the family automobile and $750 in cash. The application prayed that all this be set aside to her.
The executor of the estate answered that the terms of the will clearly showed the testator’s intention to make other provisions for his wife than were, provided by G. S. 1945 Supp. 59-401 and 59-403, which benefits she accepted and ratified by executing the consent to the will and by filing a consent to take under the will after the will was admitted to probate; and that the will and the consent thereto were in fact a contract between the parties.
The prayer of this answer was that the application be denied.
The probate court found that it was the clear intention of the testator to make other provisions for the widow in the will in lieu of her homestead and statutory rights and that the application should be denied. On appeal the parties stipulated as to the marriage of testator and Mrs. Fawcett; that he died leaving applicant as his surviving widow; -that prior .to his death the parties maintained their home on the property in question and that since his death the widow had continued to live on the premises.
The trial court found that Leora E. Fawcett was entitled to the homestead and statutory rights as provided by G. S. 1945 Supp. 59-401, 59-403 and 59-404. Judgment was entered that the real estate in question should be set aside as the widow’s homestead to remain her homestead until her death and that there be set aside to her the carpenter tools, household goods, the automobile and that $750 be paid to her. by the executor within a reasonable time. The executor has appealed. His sole specification of error is that the trial court erred in sustaining the application of the widow.
All parties agree that, had there been no will or had the widow not consented thereto or agreed to take under it she would have been entitled to an undivided one-half interest in his estate and to a homestead right in the real estate in question and to the statutory allowances. There was a will, however, and the widow did consent to it. The widow relies in the main on G. S. 1945 Supp. 59-404. That section follows 59-401 and 59-403, one of which gives the widow her homestead rights and the other grants.the statutory allowances of personal property. Section 59-404 provides as follows:
“The surviving spouse, by electing to take under the will of decedent or by consenting thereto, does not waive the homestead right nor the right to such allowance, unless it clearly appears from the will that the provision therein made for such spouse was intended to be in lieu of such rights.” '
There are certain limitations on the testamentary power. .' Thus, either spouse may will away from the other one-half of his property subject to the rights of homestead and allowances secured by statute, but neither spouse may will away from the other more than one-half of his property subject to such.rights and allowances unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses or shall elect to take under the testator’s will as provided by law. (See G. S. 1945 Supp. 59-602.)
Another statute of interest to us here is G. S. 1945 Supp. 59-603. It provides as follows:
"The surviving spouse, who shall not have consented in the lifetime of the testator to the testator’s will as provided by law, may make an election whether he will take under the will or take what he is entitled to by the laws of intestate succession; but he shall not be entitled to both. If the survivor fails to consent or to make an election, he shall take by the laws of intestate succession.”
There is no doubt in the case at bar that the widow in the lifetime of the testator consented to the will. The will did give to persons other than the widow more than half of the testator’s property. It is impossible for us to say from this record just how much more than one-half because we cannot ascertain the value of the household goods, furniture and equipment, all of which was given to the widow by paragraph three of the will. It is also impossible to say what the advantage to the widow would be from the peculiar jiro vision of paragraph four, wherein the testator made sure that she would receive at least $8,000 as her share. Outside of the personal property, however, she was given an undivided one-fourth interest in the residue.
Does it clearly appear from the will that the provisions made for the widow were to be in lieu of the rights she had to the homestead and the statutory allowances? As far as the statutory allowances are concerned the question is easily answered in the affirmative since the statute gives her the furniture and household goods, utensils and implements used in the home and one automobile, together with $750 in cash; while testator gave his widow by the will all the household goods, furniture and equipment owned by. him and in his house at the time of his death. Outside of the $750 she received by the will just about what the statute gave her.
As to the homestead rights in the real estate occupied by them at the time of the death of the testator, we must examine the will in the light of all the surrounding facts and circumstances.
The wife in the instrument denominated a consent stated that she consented to the provisions of the will for her benefit and expressly consented that the testator might bequeath away from her more than one-half of his property, and she thereby elected to take under the will. What were the provisions for her benefit to which she consented? It will be remembered that at that time she had one son, while the testator had three sons and a daughter, although only three of these were residuary legatees under the will. The will was first declared to be irrevocable and to serve as a final settlement of all mutual property interests upon the death of either. Then we find a provision that in the event the wife should die before the testator- the share she would have inherited should go to her son. Without this provision the son would have inherited'nothing in case of'his mother’s death before that of the testator. This provision was really for the benefit of the widow since by it she was able to provide somewhat for the person she would naturally wish to be the recipient of her bounty in case of her death. Then the provision giving her all the household goods, furniture and equipment.was for her benefit as well as was the provision as to the residue, whereby she was to. receive not less than $8,000 even though it might mean reducing the amount the other residuary legatees were to. receive.
The fifth paragraph whereby she was given the' privilege to purchase the residence at the value placed on it by the appraisers, of his estate was also for her benefit.
The provisions of G. S. 1945 Supp. 59-404 that the provisions of the will must have been intended to be in lieu of the homestead rights, no doubt means intended by the testator and the other spouse, in this case the widow.
We shall not decide whether the will and consent constituted an irrevocable contract between the husband and wife. We have examined the contractual features of the two documents, however, for the bearing they have .upon the question of what was intended by the parties when the two documents were executed. The wife may by consent to a will give her husband power to dispose of the homestead and thereby cut off her rights. (See Burns v. Spiker, 109 Kan. 22, 202 Pac. 370.) True, that case was decided before the enactment of G. S. 1945 Supp. 59-404, which was section 22 of chapter 180 of the Laws of 1939. However, the rule at that time as to the right of one spouse to dispose of the homestead by will where the other spouse had consented to the will was substantially the same as is now provided in the present probate code. In Burns v. Spiker, supra, we said:
“Upon weighing all these considerations the court adopts the view that by a will to which his wife consents in writing in the presence of subscribing witnesses a husband may dispose of all his property, including that occupied as a family residence, and thereby cut off the right of the widow to continue in its occupancy; and that such a will which in general terms bequeaths and devises to persons named all his property without specifying any items, and without making any exceptions or reservations, is to be construed as intended to have that effect.” (p. 31.)
The will in this case is even more favorable to the wife than was the will in Burns v. Spiker, supra.
Counsel for the wife attempt to distinguish this case from Burns v. Spiker by pointing out that there was an antenuptial contract in that case while in this case there was no such contract. As we have pointed out, there were some contractural features in the present will. However, we do not place the decision on that ground. We only point out the contractural features as elements to be considered as bearing on what the parties intended. The opinion in Burns v. Spiker, supra, leaves no doubt that the result would have been the same had there been no contract.
The judgment of the trial court is reversed with directions to proceed according to the views expressed in this opinion.
Hoch, J., not participating.
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The opinion of the court was delivered by
Parker, J.
This was an action to recover for damages to property sustained in an - automobile collision.
The original petition filed by the plaintiff was attacked by a motion to make more definite and certain. That motion is not in the record. The defendant states it was. sustained in its entirety while the plaintiff avers it was sustained in part.. In any event- the petition was amended and now, omitting allegations pertaining to damages and its prayer, reads:
“1. Plaintiff is a resident of Saline County, Kansas, and his correct post office address is Salina, Kansas.
“2. On March 5, 1946, at about 7:15 or 7:30 P. M., the plaintiff was the owner of a'certain automobile,-being a 1937 Dodge Coupé, Motor No. D5201237, which was at that time, and had been for approximately one-half hour prior thereto, standing on and occupying the south half or portion of U. S. Highway No. 40, about four, miles east of Salina, Kansas, which said automobile was facing in a westerly direction, with all four of its wheels resting on the south half of the paved portion of said highway; that the headlights of plaintiff’s automobile had, previous to the collision hereinafter referred to, been disabled, and were not lighted at the time of said collision; that at or about the time aforesaid, at which time it was cloudy and dark, the defendant, who was then and there operating and driving a certain Ford V-8 tudor automobile, approached the- point on said highway where the automobile owned by the plaintiff was then standing; that plaintiff’s car was not at the time herein mentioned in operating or working condition; that said defendant was. driving said Ford V-8 tudor automobile in an. easterly direction on the south side of said U. S. Highway No. 40 at a high, unlawful, dangerous rate of speed, and at a rate of speed which was greater than was reasonable and proper under the conditions then existing, to-wit: At a rate of speed in excess of fifty miles per hour; that the automobile of the plaintiff was plainly visible, or should have been plainly visible, to the defendant approaching the same from the west as aforesaid, and was, or in the exercise of due care should have been seen by said defendant in time for the defendant to have stopped or slowed the car driven by him in time to avoid striking the car of plaintiff as aforesaid; that at said time and place, the north half-of said-highway was open and unobstructed, and there was ample room thereon for the defendant to have turned his car aside and onto the north half of said highway, and to have passed the car of the plaintiff in safety and without striking the same, but plaintiff alleges that the defendant. carelessly and negligently continued to drive his automobile, as aforesaid, at a high, dangerous and unlawful rate of speed and at a rate of speed which was greater than was reasonable and proper -under the circumstances then existing and at a rate of speed so great that he could not stop or control his car within the range of the vision of his headlights, and carelessly and negligently failed to keep or maintain a lookout for and to observe other vehicles or objects on said highway,- and particularly the automobile of the plaintiff, and carelessly and negligently failed to observe signals -or warnings given to him, which signals or warnings were given by waving a lighted electric lantern pointed in the direction of the defendant’s oncoming car, by one Con Goracke, and carelessly and negligently failed to reduce his speed after he saw, or in the exercise of due care, should have seen the plaintiff’s car in a position, of peril on said highway, and as a result of and by reason of the careless and negligent acts of the defendant as aforesaid, said defendant drove his said Fórd V-8 automobile into and against the automobile of the plaintiff, and thereby and as a result thereof demolished and destroyed plaintiff’s said automobile. That at the time and place above mentioned, there were other cars parked along the sides of the highway, the number of said cars being unknown to the plaintiff; that several of such cars, the number thereof being unknown to the plaintiff, were standing .at the south side of said highway, south of and off the paved portion of said highway, heading east, with their ‘headlights and tail lights burning, and several of such' cars, the number thereof being unknown to plaintiff, were standing at the north side of said highway, and north of and off of the paved'portion thereof, headed west, with their headlights and tail lights burning.”
Shortly after the amended pleading was filed the defendant demurred thereto on'the ground it failed to state facts sufficient to constitute a cause of action. In due time' the demurrer was sustained and plaintiff was given twenty days in which to file a second amended petition. Instead of amending, plaintiff served notice of appeal and now submits for appellate review the question whether the trial court properly sustained the demurrer.
Preliminary to our consideration of the real question raised by the appeal it should be stated that in view of the state of the record the allegations of the amended petition are to be liberally construed in favor of the pleader. This is not a case where it appears the pleading as filed has been attacked by a motion which has been successfully resisted and therefore become subject to strict construction. Neither is it one — since the motion to make more definite and certain is not in the record — where it can be urged portions of the petition amended pursuant thereto on matters attacked are to be strictly construed against the pleader on the theory that in complying with orders of the court in connection therewith the plaintiff has pleaded all that he can that is in his favor.
Boiled down the gist of appellee’s contention in support of the trial court’s ruling in sustaining the demurrer is that the amended petition clearly shows that at the moment of the accident described therein the appellant was violating three positive provisions of the uniform act regulating traffic on the highways, the violation of any one of which was negligence per se and precluded his recovery as a matter of law. Specifically, he charges that pleading shows on its face the appellant's automobile (1) was being operated on the wrong side of the road in violation of G. S. 1945 Supp. 8-537, (2) was upon the highway without lights in violation of G. S. 1945 Supp. 8-581, and (3) was left standing upon the paved, improved or main-traveled part of-the highway with all four wheels on the pavement for at least thirty minutes in violation of G. S. 1945 Supp. 8-570.
We are not too certain that appellee’s claim as to the factual situation disclosed by the petition can be upheld. In fact, when its allegations are liberally construed in favor of the pleader and given the benefit of inferences to which they are entitled, it appears that at the time of the accident in question appellant’s automobile was not in operation but had come to a stop and was standing on the wrong side of the highway in a disabled condition with its lights temporarily out of order as a result of some unavoidable mishap, under circumstances which made its removal impossible during the time it had been standing there. Thus construed, we do not think it can be seriously urged that appellant’s car was on the highway in violation of the rules of the road heretofore mentioned or that he had failed to state a cause of action in negligence sufficient to withstand attack by general demurrer. Be that as it may, giving the amended petition the factual construction placed upon it by the appellee, there is sound legal basis for rejection of his claim the demurrer should have been sustained because such pleading shows negligence preventing appellant’s recovery.
This court has always held that mere violations of the statute regulating traffic are not in and of themselves sufficient to make the driver of a motor vehicle guilty of actionable negligence and that to make him liable it must appear the violation, or violations, contributed to the injury and were the proximate cause thereof.
In Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906, we held:
“The mere violation, of a statute regulating speed is not in itself sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the speed contributed to the collision and was the proximate cause of the injuries sustained.” (Syl. ¶[ 3.)
To the same effect is McCoy v. Fleming, 153 Kan. 781, 113 P. 2d 1074.
See, also, the recent case of Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P. 2d 158, where we said:
“To the foregoing canons of law we might add two more which are applicable here. One so universally recognized as to almost preclude necessity for citation of authorities, is that negligence is not actionable unless it is the .proximate cause of injury (See West Kansas Digest ‘Negligence’ §56). The other, similar in character, but having particular reference to recovery of damages for injuries sustained in motor vehicle collisions is that mere violations of an ordinance or statute regulating traffic, such as excessive speed, defective equipment, driving down the center of the highway, or other matters of a similar nature, are not sufficient to make the driver of an automobile guilty of actionable negligence in an action involving a collision unless it appears from the evidence that such violations contributed to the accident and were the proximate cause of the injuries therein received. For some of our important, and recent cases on the subject, see: Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397; Barsfield v. Vucklich, 108 Kan. 761, 197 Pac. 205; Phillips v. Meyer Sanitary Milk Co., 129 Kan. 45, 281 Pac. 895; Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; Frakes v. Travelers Mutual Cas. Co., 148 Kan. 637, 84 P. 2d 871; Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870; Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P. 2d 665; Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271; and Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827. See, also, West’s Kansas Digest ‘Automobiles’ 201 (1, 2, 3, 4); Hatcher’s Kansas Digest ‘Automobiles’ §§ 10 and 15.” (p. 618.)
By analogous reasoning it follows that violations- of ordinances or statutes regulating traffic, although they appear on the face of a petition, do not-necessarily compel a conclusion that a plaintiff is guilty of negligence which precludes him from recovery as a matter of law. To prevent recovery it must appear from other allegations of the petition that those violations were the legal cause of the injury for which he seeks to recover damages predicated upon the negligence of another. In fact, that has always been the rule in this, jurisdiction. That such is the law was indicated in Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635, wherein we held:
“The plaintiff, who was riding a bicycle, was injured by the defendant, who was driving an automobile on one of the streets of the city of Kansas City, Mo. In an action for damages sustained on account of the injury it appeared that the plaintiff had no license to ride his bicycle and carried no light, contrary to an ordinance of the city. The absence of a license was not a factor causing the collision, and the defendant testified that he saw the plaintiff when he was a long distance from the point of collision. Held, neither violation of the ordinance constituted a defense to the action.” (Syl. If 1.)
The rule is stated expressly in Pens v. Kreitzer, 98 Kan. 759, 760, 761, 160 Pac. 200, where it was said:
“The fact that the plaintiff was, at the time of the accident, violating the law of the road in not turning to the right after he heard the automobile, does not, as a matter of law, preclude his recovery. (Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635; McComas v. Dry Goods Co., 96 Kan. 467, 152 Pac. 615; Note L.R.A. 1915 E. 961.)” '
Further authority for the principle is to be found in Spohn v. Southern Kansas Stage Lines, 142 Kan. 595, 50 P. 2d 1001. In that case the plaintiff was seeking to recover for pergonal injuries, and damages sustained in a motor-vehicle collision. The defendant’s claim on appeal was that plaintiff’s evidence revealed that he 'had violated certain rules of the road which made him guilty of contributory negligence as a matter of law. There we held:
“. . .- (2) that the failure of the plaintiff to do one or more things he might have'done to avoid the collision will not necessarily make him guilty of contributory negligence if there is evidence that will support the finding that the collision was caused by the negligence of the defendant.” (Syl. If 1.)
To the same effect, although dealing with negligence of the plaintiff as a pedestrian, is Morlan v. Hutchinson, 116 Kan. 86, 225 Pac. 739, where we held:
“In an action for damages for wrongfully causing the death of one by running over or striking him with an automobile In a public road, although the evidence may show that the, negligence of the deceased, in lying in the road in the first instance contributed toward his injury, yet, if there is evidence tending to show that the driver of the automobile which caused the death saw deceased in the position of danger, from which he could not extricate himself, or, by the exercise of reasonable diligence, should have seen him in time to stop or to avoid running over or striking him, the proximate cause of the death is one of fact for the jury.” (Syl. ¶ 4.)
See, also, Zinn v. Updegraff, 113 Kan. 25, 32, 213 Pac. 816, where we quoted with approval from Huddy on Automobiles, 6th ed., 474, as follows:
“ ‘Even though the plaintiff has violated the law of the road, there always remains the question whether the ■ violation was a proximate cause of his injuries; if not the proximate cause, the violation does not bar his'right of action.’ ”
And in commenting on the rule as quoted said:
“Thus it will be seen from the authorities, that under the law of the road a person may use any part of the traveled way, but on meeting another vehicle he should seasonably turn to the right of the center of the traveled way, that is, that he should turn in sufficient time to enable the one approaching him to pass without collision, but if he does not do so the question of whether-or not he is liable for injuries resulting from a collision will depend on whether or not his being on the left side of the road, and failing seasonably to turn to the right was the proximate cause, or one of the proximate 9auses, of the injury.” (p. 32.)
That a negligent condition may or may not be the proximate cause of an injury, depending upon varying circumstances, is a well-established legal proposition (Bringle v. Gale Township, 127 Kan. 115, 272 Pac. 126; McRae, Adm’r v. Railroad Co., 116 Kan. 99, 225 Pac. 1032; Lambel v. City of Florence, 115 Kan. 111, 222 Pac. 64).
Moreover, this court has repeatedly held that where the absence of lights or signals does not prevent a driver from seeing a vehicle in time to avoid it, the absence of such lights or signals cannot be said to be the proximate cause of a motor vehicle collision (Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870; Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P. 2d 665; Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271 and Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827).
We have carefully examined the amended petition which has heretofore been quoted at length. No useful purpose can be served by repeating the allegations to be found therein. It will suffice to say we find nothing there which affirmatively discloses as a matter of law appellant’s negligence was the proximate cause of the collision on which he bases his claim for damages. So construed the trial court erred in sustaining the demurrer.
The judgment is reversed.
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The opinion of the court was delivered by
Marshall, J.:
In June, 1908, the defendants, with other persons, ten in all, armed, left the ranch of defendant Chauncey Dewey and went to the home of Alpheus Berry, about five miles distant, to get a water tank that had been purchased by Chauncey Dewey at an execution sale on the day previous. While Dewey and his party were at the home of Alpheus Berry, a battle occurred between Dewey and his party on the one side and Daniel Berry, Alpheus Berry, Burch Berry, Beach Berry, and Roy Berry on the other side. When the battle ended, Daniel Berry, Alpheus Berry, and Burch Berry had been killed by members of the Dewey party, and Roy Berry had been wounded by them. Beach Berry escaped. None of the Dewey party was injured.
Daniel Berry was the father of Burch Berry and. Alpheus Berry. Harriet M. Berry was the wife of Daniel Berry and the mother, of Burch Berry and Alpheus Berry. In 1905 Harriet M: Berry was appointed administratrix of the estate of Burch Berry.- She then commenced this action, which, in March, 1917, resulted in a judgment in favor of the plaintiff for $5,000, from which judgment the defendants appeal.
1. The defendants question the jurisdiction of Hon. J. C. Ruppenthal to try the action. They present the same questions that were presented in Berry v. Dewey et al., 102 Kan. 392. The conclusion there reached is now followed.
2. The defendants applied for a continuance on the ground that B. F. Endres, one of their attorneys, was a member of the legislature and could not be present at the trial, because the legislature was in session. The continuance was refused. The defendants contend that the refusal was error. The trial court gave as a reason for refusing to grant a continuance on this ground that Mr. Endres did not appear to be of counsel for the defendants in kindred actions that had been on-trial in the previous November and December, and that the court had every reason to believe that the employment of Endres in the present action was subsequent to his election to the legislature. The court concluded that to grant a continuance on an application of this kind would be ignoring the provisions of sections 6050-6052 of the General Statutes of 1915, which authorize the court to prevent any abuse of the privileges granted by these sections of the statutes. This action had been pending in the district court twelve years; it was time to dispose of it. Á continuance might have been granted, but there was no reversible error in refusing to grant it.
3. The defendants complain of the refusal of the court to grant a continuance on account of the absence of defendant Chauncey.Dewey, who desired to be present and to testify as a witness. At the time of the trial Mr. Dewey was in New Orleans, La. On March 1,1917, he telegraphed from New Orleans that his only child was dangerously sick, and that he could not leave the child, and asked that the cause be continued. That telegram was sent to Clifford Histed, one of Dewey’s attorneys. The certificate of three doctors in New Orleans was attached to, and made a part of, the application for a continuance. That certificate was dated March 1,1917, and read:
“To whom it may concern: This certifies that, owing to the critical condition of their child, Molly Dewey, Mr. Chauncey Dewey and wife will be unable to leave the city at present or in the near future.”
The certificate was signed by three physicians and acknowledged — not sworn to — before a notary public. The application was sworn to by James H. Harkless, one of the attorneys for the defendants. It disclosed the importance of Dewey’s attendance, both as a witness and as a party. The basis of the application was the sickness of Dewey’s child. In Harlow v. Warren, 38 Kan. 480, 17 Pac. 159, this court said :
“Where an application is made for the continuance of the trial of a case to another term, upon the ground that the party applying therefor is prevented from attending the court on account of his sickness; and the application is supported, as to the sickness of the party, only by the certificate of a physician; and no affidavit is filed by the physician, or any other person having personal knowledge that the party in unable to attend court: jHeld, That the ruling of the district court in refusing a continuance of the case will not be reversed.” (Syl.)
(See, also, Beard v. Mackey, 51 Kan. 131, 32 Pac. 931; 9 Cyc. 97.)
The present case and Harlow v. Warren, supra, are very closely parallel, and under the authority of that case the trial court did not abuse its discretion in refusing a continuance, and no reversible error was thereby committed.
4. The defendants contend that the court erred in admitting evidence concerning the property owned by, and the wage-earning capacity of, Burchard B. Berry. In an action to recover damages for wrongful death, it is proper to prove the amount of property owned by, and the wage-earning capacity of, the deceased person. (K. P. Rly. Co. v. Cutter, 19 Kan. 83; Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635.)
5. On the trial, the plaintiff, in order to show the good character of the Berrys, was permitted to prove that none of the Berrys had been engaged in stealing cattle prior to the shooting. The defendant then- offered to introduce in evidence an indictment of Alpheus Berry and Daniel Berry, charging them with grand larceny and with having received stolen property in Boulder county, Colorado, in October, 1891. The indictment, with other documents concerning the same matter, was admitted in evidence, and afterward withdrawn. The defendants urge that it was error to withdraw that evidence from the consideration of the jury. The evidence may have been competent, but it was not material. It did not matter whether Alpheus Berry and Daniel Berry had previously been engaged in stealing cattle, or whether they had been indicted for larceny. Evidence on either of these questions could not assist the jury in determining the issues that were properly on trial in the present action. Neither Alpheus Berry nor Daniel Berry were witnesses; both had been killed by the Dewey party.
6. The defendants strenuously argue that there was not sufficient evidence to establish a conspiracy on their part. Although it is practically impossible to detail all the evidence which tended to prove that there was a conspiracy, yet some of the evidence which tended to show that fact was as follows :
For some tim§ there had been ill feeling between Dewey and his employees on the one side and the Berrys on the other side. Threats had been made, and each of the contending parties went armed as against the other. On the day before the tragedy occurred, defendant Dewey, at a sheriff’s sale under an execution, purchased a water tank that was then on the property of Alpheus Berry. On the day of the’ tragedy, ten men gathered at the ranch headquarters of defendant Dewey. The ten, all armed, then went to the home of Alpheus Berry to get the water tank, but, when they reached that home, no request or notice of any kind was given that the defendants desired to take the tank. They arranged themselves in such a way as to protect themselves in case shooting should occur. When the Berrys approached, the Dewey party began shooting, and when the shooting ceased three of the Berrys were dead and one was wounded; one had escaped. The tank was then forgotten, and the Deweys returned to their ranch. This evidence was sufficient to warrant the trial court in submitting to the jury the question of a conspiracy, and was sufficient to justify the jury in finding that there was a conspiracy.
7. Complaint .is made of the instructions given by the court. The basis of this complaint is the question of conspiracy. The instructions have been examined; they appear to have been fair and to have fully protected all the rights of the defendant. No substantial error in them has been indicated by the defendants.
8. Complaint is made of the refusal of the court to give certain instructions asked by the defendant. Those of the instructions requested that were proper weré, in substance, given by the court, and those that were not proper were refused. There was no error in refusing to give any of the instructions requested by the defendant.
9. Another matter urged is that the verdict was excessive. The verdict and judgment were for $5,000. At the time Burch Berry lost his life he was 33 years of age, in good health, vigorous, and was accumulating property, and was able to earn about $1,000 a year. Burch Berry left neither wife nor children. The verdict for $5,000 was not an excessive verdict as compensation for the loss of support that would have been furnished to Harriet M. Berry by her, son, had he lived after her husband and her other son were killed.
10. The last matter urged is that Harriet M. Berry, who was the sole heir of Burch Berry, received a substantial financial benefit as the result of the death of her son, and it is urged that the benefit should have been deducted from the amount of the verdict, and, if the benefit was greater than the damage sustained, no verdict should have been rendered for the plaintiff. The proposition is untenable. Although it appears to have standing in the courts of some of the states, it does not address itself to the judgment of this court as being sound, legal, equitable, or fair, and it cannot be permitted to reduce the amount of recovery in any way.
On the whole, substantial justice seems to have beén done in this case, and the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks to recover under the workmen’s compensation act. The city of Anthony demurred to the plaintiff’s petition; that demurrer was sustained, and the plaintiff appeals.
The petition alleged, in substance, that the plaintiff was employed by E. M. Eby, a contractor who was building a sewer system for the city of Anthony; that while the plaintiff was working for Eby in the construction of the sewer system, a ditch caved in and buried a number of other workmen; that the plaintiff was directed by the foreman in charge of the work to remove the dirt from those buried; that while the plaintiff was engaged in that work, the walls of the ditch wherein he was working suddenly caved in, and the dirt, boards, and timber closed in about the plaintiff and injured him; and that these injuries totally incapacitated him for work during a period of eight weeks, and partially incapacitated him for work during the remainder of his life.
The question presented by the demurrer to the petition has been disposed of by this court. In Roberts v. City of Ottawa, 101 Kan. 228, 165 Pac. 869, this court said:
“A city in constructing a lateral sewer, while exercising its proprietary power, is not engaged in an enterprise involving any element of gain or profit and therefore is not within the terms or operation of the workmen’s .compensation act.” (Syl. ¶ 1.)
“Under the rulings referred to distinguishing between a city’s governmental and proprietary powers, the building of the lateral sewer in question doubtless comes within the latter rather than the former. But, as pointed out in the Gray case, in order to bring the city within the statute this proprietary work must have been in the nature of a business'or trade involving the idea of profit or gain. Certainly the construction of a lateral sewer to be paid for by the property owners of a given sewer district is not trade or business in the sense of profit, or in any commercial sense.” (p. 230.)
In Gray v. Sedgwick County, 101 Kan. 195, 165 Pac, 867, the case above referred to, this court said:
“The general purpose of the workmen’s compensation act is to provide for compensation to workmen injured in hazardous employments carried on for the purpose of business, trade, or gain.
“A county in resurfacing a county road is not engaged in trade or business within the terms or operation of the workmen’s compensation act. (Syl.)
In the Gray case, the plaintiff was injured while hauling gravel for use on the county road in Sedgwick county, which road the board of county commissioners and the county engineer were grading and surfacing.
The statute undér which the plaintiff seeks to recover, section 5900 of the General Statutes of 1915, in part, reads:
“This act shall apply only to employment in the course of the employer’s trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments where a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain. . . .”
A sewer is neither constructed nor operated by a city for the purpose of business, trade, or gain. Sewers are paid for by taxation. In operating sewers, there is no sale or purchase of any property or commodity; neither is there any trade nor gain. In constructing sewers, cities, in' their corporate capacity, do not engage in trade within the meaning of the workmen’s compensation act, and do not receive any gain or profit.
To come within the operation of the workmen’s compensation act, a workman must be employed in one of the various classes of enterprises named in the statute, and that enterprise must be conducted for the purpose of business, trade, or gain.
The city did'not come within the provisions of the workmen’s' compensation act. The plaintiff’s petition did not state a cause of action against the city. The demurrer to the petition was properly sustained, and the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered a judgment foreclosing a mortgage on real property ill Harper county. That judgment is not questioned. The controversy is between the defendants J. C. Elvin and J. G. Kille. Judgment was rendered in favor of J. G. Kille and against J. C. Elvin, who appeals.
The plaintiff’s mortgage was executed by B. A. Shupe and Maude Shupe, and was given to secure the payment of a note for $2,875. After the plaintiff’s mortgage had been executed, Frank Burdg became the owner of the real property, and, on October 28, 1914, executed a mortgage thereon to J. C. Elvin for the purpose of securing the payment of $1,208.85. On January 24, 1916, Frank Burdg and wife, executed another mortgage to J. G.. Kille to secure the payment of a note for $355.24. The mortgage to Kille contained the following recital:
“This mortgage is given subject to a mortgage of $2,875 to A. A. Kurt, and a second mortgage of $1,208.85 in favor of J. C. Elvin.’l
J. G.' Kille filed a cross petition in which he set up the mortgage owned by him and alleged that it was a valid and subsisting lien on the real property, subject only to the lien of the mortgage of the plaintiff, John Kurt. J. C. Elvin likewise filed a cross petition in which he set up the mortgage held by him and alleged that it was a second lien on the real property, subject only to the mortgage of the plaintiff, and superior to the mortgage held by J. G. Kille. Elvin also alleged that the note held by him had been lost. Kille filed an answer to Elvin’s cross petition in which Kille denied that the note had been lost and alleged that it had been fully paid and discharged at the time the cross petition was filed. The court found for the defendant Kille, against the defendant Elvin, and rendered judgment in favor of Kille on his mortgage. The court further found that the note sued, on by Elvin as a lost note had been paid; that the mortgage held by him had been satisfied by the payment of the note; and that the mortgage was no longer a lien on the real property. The court rendered judgment that Elvin take nothing by this action.
Elvin contends that there was no evidence whatever from which the court could find that the note given to him had been paid, and that no fact was brought out on the trial which justified the court-in canceling Elvin’s mortgage and advancing Kille’s mortgage to second place.
After the mortgage by Shupe and wife had been executed, Elvin in some way became the owner of the property. Burdg bought the property from Elvin, and, in part payment therefor, gave Elvin the $1,208.85 mortgage. Afterward, Elvin, either for himself or for Fred B. Long, repurchased the real property from Burdg. Burdg did not deal with Long in effecting the sale of the land; he dealt entirely with Elvin. The deed from Burdg and wife to Long- was a general warranty deed, and it did not mention any mortgages.
Frank Burdg, the maker of the Elvin and Kille notes and mortgages, testified, in part, as follows:
“I paid one of these mortgages. I paid the $1200.00 one. . . .
“I received this $1200.00 note taken from Elvin. Nothing was said about the note except that it straightened it up. That settled all I owed Mr. Elvin. ... I gave a chattel mortgage. It was under the same note to secure the same note. I received the chattel back from Mr. Elvin. Mr. Elvin handed it to me, and said that paid it. Paid all I owed him. . . .
“Q. And Mr. Long was to take it subject to'the mortgage, was he? A. You mean settle this mortgage?
“Q. Yes. A. Yes, sir. . . .
“Q. Three mortgages, one $2,875, the other $1,208.85. . . . And those mortgages, Long was to take care of those mortgages? A. He was to take care of all but that $355.24.
“Q. He was not to take care of it? A. No, sir.
“Q. And you were to take care of that yourself? A. No, sir, Mr. Elvin was to take care of it. I left the money there to pay it.
“Q. I say, did Elvin ever give it to you? A. He gave me the note and gave me those papers when I paid him the $1,200.00.
“Q. Isn’t this a fact, Mr. Burdg, the way the thing was done. You did n’t pay anyone anything did you? A. I paid out no money.
“Q. And the agreement between you and Elvin and Long was that you were to convey the land and that Long was to take care of all your debts against the land, was n’t that the agreement — let you out? A. Why, it was this way. I did not owe Long nothing. What paper I had was to Elvin.
“Q. Elvin was the go-between between you and Long? A. He was the man I made the trade with, yes, sir.
“Q. You say Jim Elvin gave you this note — where was he when he gave it to you? A. In his office.
“Q. You were going to move out of Kansas down into Oklahoma? A. Yes, sir.
“Q. And you .wanted Swinhart to hold that mortgage against your property until you got to Oklahoma, didn’t you? A. I don’t know as I have to answer that. I don’t think that has anything to do with it.
“By the Court: Answer the question. Do you understand the question?
“A. No, I do not.
“Q. I asked you if you did not want Swinhart to have that mortgage assigned to him and hold it until you got moved into Oklahoma? A. Well, he did that, yes, sir.
“Q. But Swinhart did not have any interest in the chattel mortgage, did he? A. No, sir.
“Q. He did not give Elvin any money? A. No, sir.
“Q. And you requested that assignment be made to Swinhart? A. Yes, sir.
“Q. Why did you want that done? A. Sir?
“Q. Why did you want that done? A. Well, so I could have the stock.
“Q. Did you pay in any way except by the deed to Long? A. Why, that was the only way I paid it. I thought that was sufficient.
“Q. I understood you, on direct examination to say, when you got the note from Jim Elvin at Harper he said something'to you about the note— about squaring that mortgage. A. Well, he said this way. He said that squared up this $1,200 that I owed him on this chattel and on this $1,200 mortgage that includes that chattel.
“Q. Now, when was it that you had the conversation with him about the Kille mortgage — about paying Kille? A. It was there the day that I was dealing with him on this other land, when they traded. It was mentioned at different times. One time was out at home and another time was in town — talked about it.”
Burdg had possession of the note and produced it at the trial.
The evidence above detailed is sufficient to support the finding of the court that the note given to Elvin had been paid and the mortgage discharged. That is the only question presented. Argument concerning what the evidence proves or does not prove is unnecessary.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The action was commenced in the city court of the city of Hutchinson, and a trial resulted in a judgment for the defendant. The plaintiff appealed to the district court, and on January 19, 1916, recovered judgment. On June 21, 1916, the defendant filed a motion to vacate the judgment, claiming that-the court had no jurisdiction to entertain the appeal because of the decision in State, ex rel., v. Deming, 98 Kan. 420, 158 Pac. 34, in which the act establishing the city court of Hutchinson was declared unconstitutional and void. The motion was overruled, and the appeal is from that ruling.
In the original bill of particulars the plaintiff alleged that he purchased of defendant two mares, giving in consideration therefor his promissory note for $450; that the note had been transferred to an innocent purchaser; that defendant guaranteed the mares to be sound and suitable for farm work; that one of them was worthless; and that he had offered to return the mares, and demanded return of the purchase price. He sued to recover $450. After the cause reached the district court he filed a motion for permission to amend the bill of particulars,' alleging that, as only one of the mares was not as guaranteed, he preferred upon due consideration to retain the sound one and recover damages for the defective one, and that the amendment would in no wise prejudice the defendant, because the evidence would be the same in either case. No objection was made by defendant, and the court allowed the amendment. The defendant then answered the amended petition, and the case proceeded to judgment.
The defendant now contends that the district court had no jurisdiction because the court where the case was commenced was not legally established, and therefore the whole proceedings must fail. There is also a contention that the district court lacked jurisdiction to permit plaintiff to amend his bill ’of particulars and change the nature of his cause of action. Neither contention is sound. The defendant made no objection to the amendment, but on the contrary waived any objection he might have had thereto by filing an answer and submitting the controversy to the court. For the same reason it is too late for him to object to the jurisdiction. The district court had jurisdiction of the subject matter, and since both parties came into court and litigated the matter without objection, the court had jurisdiction of the parties. Both are estopped from afterwards claiming that the court was without jurisdiction.
In Miller v. Bogart, 19 Kan. 117, the action was brought before a justice for the recovery of property valued at $15. There was a judgment for the defendant, and the plaintiff appealed to the district court, where the plaintiff recovered a judgment. At a later term of the court the defendant moved to. set aside the judgment and dismiss the appeal because the statute only authorized appeals- in such cases where the amount involved was at least $20. It was claimed that the district court could take no jurisdiction by the appeal. The district court sustained the contention and set aside the judgment. On appeal it was held that the district court, being one of general original jurisdiction in an action of replevin, and the parties ‘having voluntarily appeared and tried the question, the defendant could not be permitted to plead want of jurisdiction.
In Mo. Pac. Rly. Co. v. Lea, 47 Kan. 268, 27 Pac. 987, the action was commenced in a justice court, where plaintiff recovered judgment in the sum of $300, for hay that had been destroyed. The defendant appealed, and the plaintiff filed in the district court an amended bill of particulars claiming that the value of the hay was $360. Without any objection to' the amendment defendant answered, but subsequently filed a motion to dismiss the appeal for want of jurisdiction. The mo-' tion was overruled, and on the trial the plaintiff was given judgment. The defendant appealed, and it was held that the motion to dismiss came too late. To the same effect is Telegraph Co. v. Moyle, 51 Kan. 203, 32 Pac. 895. Numerous other cases might be cited, but these are sufficient to show that defendant’s contentions are without merit.
The .judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The defendant bank appeals from a judgment against it for having loaned for the plaintiff $400 to an insolvent borrower.
Complaint is made of rulings rejecting and receiving evidence, of instructions given, and of overruling a motion for a new trial.
The petition alleged in substance that the bank, well knowing the insolvency of one Franz C. Wimmer, loaned $400 of the plaintiff's money to him, taking a mortgage on a stock of drugs subject to a first mortgage to the bank for $525.25; that plaintiff had advised the bank that she desired to have this loaned with good security; that the bank well knew the insolvency of Wimmer and misappropriated the plaintiff’s money by loaning it to him, and used the proceeds to liquidate overdrafts and' other accounts owing the bank by Wimmer, who was subsequently adjudged a bankrupt, all of the assets being exhausted by the bank and the plaintiff receiving nothing.
It is complained that no agency was shown, but the record sufficiently justifies the conclusion of the jury on this point.
The court correctly instructed on the subject of fraud, and of this the defendant complains on the ground that no fraud was alleged. The word fraud is not found in the petition, but that pleading as clearly and fully described fraudulent conduct as if that particular adjective had been employed. Hence, there was no error in giving the instructions complained of.
It is argued that the bank' could be held only for the unauthorized acts of its officer in case it accepted and retained the benefits arising therefrom, and the question is asked, What consideration did the bank receive or retain? There was evidence that the bank used the proceeds of this loan to pay off overdrafts and other accounts held by it against Wimmer.
We find no error in the rejection or admission of evidence-The jury heard all the testimony, and the trail court approved their verdict. We now add the approval of this court.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
On December 27, 1915, the state of Kansas brought this action to oust The Topeka National Live Stock Insurance Company, The Central National Mutual Hail Insurance Company, and other insurance companies from doing business in the state.
A receiver was appointed for all the insurance companies, and took charge of their property. Afterward, James Burns intervened in the action and filed a petition therein. In that petition Burns alleged that there was $1,725 due him for services rendered by him for The Central National Mutual Hail Insurance Company under a contract between himself and J. H. White, state agent for that company.
Trial was had on the intervening petition, evidence was introduced, and special findings of fact and conclusions of law were made. The evidence has not been abstracted. The material parts of the findings of fact were as follows:
“On the 4th day of January, 1915, the claimant herein, James Burns, entered into a contract with The White Agency. . . .
“The claim of James Burns herein is based upon the contract marked Exhibit B [the contract above referred to] and whatever services or commissions he may have earned are for services and commissions rendered under said contract. That at the time of the making of said contract J. H. White was doing business under the name of The White Agency which consisted of J. H. White. That The White Agency had rooms and offices in connection with the above insurance company.
“That the services rendered by the claimant herein sued for were rendered by him for The White Agency under the contract heretofore mentioned as Exhibit B, and the effect' of which was to help swell the business of said insurance company, and for which services under said contract, Exhibit B, J..H. White or The White Agency were liable.”
Other findings of fact were made, but they were consistent with and supported, rather than modified or changed, the findings above set out.
The conclusions of law were as follows:
“James Burns, claimant herein, was in the employ of The White Agency and the services sued for herein were performed for said White Agency and not for the Central National Mutual Hail Insurance Company.
“That there is due the said James Burns from The White Agency for the services sued for herein the sum of $1,441.01.
“That the defendant The Central National Mutual Hail Insurance Company is entitled to judgment for its costs herein expended.”
The court rendered judgment in favor of the insurance company and of Clay Hamilton, receiver. James Burns appeals. He cites Edwards v. Gildemeister, 61 Kan. 141, 59 Pac. 259, and quotes therefrom as follows:
“A contract executed by an authorized agent in his own name, but in fact in behalf of his principal, is the contract of the principal, and suit may be brought against him to enforce its provisions.” (Syl. ¶ 2.)
The difficulty with the position taken by Mr. Burns is that in the Edwards case the contract was made in behalf of the principal, while in the present case the contract was made, not in behalf of the insurance company, but with The White Agency in its own behalf, and the services rendered by Burns were rendered for the agency. The findings conclude the argument. 'They leave nothing further to be said. Under them the judgment that was rendered was the only one that could be rendered. Burns must look to his employer for compensation.
The judgment is affirmed.
Dawson, J. Not sitting.
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The opinion of the court was delivered by
West, J.:
The parties were owners of the capital stock of a shoe company. The plaintiffs sold the defendant their stock and interest in the goods and in the lease of the building where the business was carried on, for $1,000, evidenced by a written contract. At the same time another written' agreement was made, providing for the payment of another $500 on certain conditions. In addition, the answer set up a third agreement, made orally, to the effect that if the defendant should negotiate a certain compromise settlement with the creditors of the company the plaintiffs should transfer all their interest. Further, that if such contemplated settlement could be made by the defendant for a sum not exceeding fifty cents on the dollar for the total liabilities of the company, then after the transfer by plaintiffs of their interest in the stock of goods and lease, the defendant was to pay plaintiffs a further sum of $500 as a consideration for the transfer of the stock and lease, but in no event should either of these sums be due or payable to the plaintiffs unless such settlement should be made and consent of the owners to the transfer by the plaintiffs of the lease to the defendant should be obtained, and the lease transferred at the same rental value provided in such lease, which contained a condition that rio transfer or assignment could be made without the written consent of the lessors. It was further alleged that after this oral agreement a settlement was attempted, but without avail, because of the conduct of the plaintiffs, thereby eliminating the consideration for the defendant’s contract to pay any sum whatever. That it afterwards developed by a proceeding in bankruptcy that the company, and not the plaintiffs, owned the lease, which was ordered sold by the trustee as a part of the estate of the bankrupt company, and that the defendant was compelled to buy in the assets, including the lease. Instead of replying to this answer, plaintiffs moved for judgment on the pleadings, which motion was sustained. The defendant’s motion for new trial was overruled, and he appeals.
The court correctly construed the allegation of the oral contract as an attempt to vary the terms of the written agreement sued on. But the petition alleged ownership in the plaintiffs of certain shares of capital stock and of the lease, and the delivery of both to the defendant. It is argued by the defendant’s counsel that the answer put in issue the ownership of the lease and the delivery of the goods and lease, and this is true.
It was alleged that upon determination that the lease belonged to the estate and not to the plaintiffs, it was put up for sale, and the defendant “was compelled to so purchase said stock and said lease, as the assets of said corporation, in order to secure the legal title and possession of the same to him, . . .” It cannot be told from the answer whether the possession of the lease was taken from the defendant or not. The only clear thing alleged in the answer is failure of consideration. If the plaintiffs did not own the lease, this, of course, would amount to a partial failure; but laying aside the long story about a verbal agreement, entirely out of harmony with the written contract, the defense indicated was pleaded, and it was error to render judgment on the pleadings: (McCready v. Dennis, 73 Kan. 778, 85 Pac. 531; Sparks v. McAllister, 80 Kan. 546, 103 Pac. 127; Cobe v. Coughlin, 83 Kan. 522, 112 Pac. 115.)
The petition was not vulnerable to the motion to make definite and certain, and such motion- was properly overruled.
The judgment is modified as indicated, and the cause remanded for further proceedings in accordance herewith.
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The opinion of the court was delivered by
West, J.:
This case involves a husband’s rights in land of his deceased wife, attempted to be conveyed by her alone during their marriage. The court held it subject to partition at the suit of the surviving husband, and the defendants appeal.
In 1906 Sarah Murray owned the land in controversy and made a conveyance thereof without joining her husband, with whom she then lived in Sherman county. She died there intestate during the same year and an administrator of her estate was appointed. In 1914 this action was begun. It is argued that it is barred by the two-year statute of limitations if the deed by the wife was procured by fraud, and by the five-year statute because within that period no application was made to the probate court to allot to the husband his share of the land. But the main defense is that the wifé owned the land in her own right, and as it was not the homestead of herself or husband she could convey it without his joining in the deed.
Section 6 of article 15 of the constitution of this state directs the legislature to provide for the protection of the rights of women in acquiring and possessing property separate and apart from the husband. The descents and distributions act (Gen. St'at. 1915, § 3831) provides that one-half in value of all the real estate in which the husband at any time during the marriage had an interest, which has not been sold on execution or other judicial sale and is not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executors as her property in fee simple upon the death of the husband, if she survive him. Section 3833 of the General Statutes of 1915 provides that such allotment may be made by the commissioners within five years after the death of the husband. Section 3850 is as follows:
“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 courtesy are abolished.”
It has been difficult to find a name for the interest the wife has in her husband’s real estate apart from the homestead. In Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, it was said that it is inchoate and uncertain, but possesses the element of property to such a degree that she could maintain an action during the life of her husband to prevent its wrongful alienation. In Munger v. Baldridge, 41 Kan. 236, 243, this interest was said to be a contingent one, but unquestionably property. In Buffington v. Grosvenor, 46 Kan. 730, 27 Pac. 137, it was spoken of, not as an estate, but as a mere possibility depending upon the death of the husband, or whether he had divested himself of the title prior to his death. In his brief in the case of Jenkins v. Dewey, 49 Kan. 49, 30 Pac. 114, the late Mr. Ware suggested as a proper name the “Kansas Marriage Right.” In Nagle v. Tieperman, 74 Kan. 32, 85 Pac. 941, the interest was declared (page 41) to be quite analogous to that of an heir. It was said (page 43) that section 3831 at most creates an interest in the husband’s real estate which attaches, not during his lifetime, but upon his death. In a dissenting opinion, Mr. Justice Greene discussed the nature of this interest and insisted that it is a present property interest, not an estate which ripens into an estate only upon the husband’s death. The same Justice in writing the opinion in McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663, wrote in paragraph two of the syllabus, thus:
“The interest given by statute to a wife in the real estate of her deceased husband is not an inheritance, . . .”
In the opinion it was said:
“The interest which the statute gives to the wife in the real estate of her husband during his life is not easily classified or defined. Because of this difficulty it has been thought by some to be in its nature an inheritance, and such a suggestion may be found in some of the opinions of this court. But practically the entire trend of the decisions of this court is to treat it as a present existing interest — one which the wife may protect by an appropriate action during the life of the husband and against his wrongful acts. (Citing authorities.) The wife’s interest does not depend for its inception upon the death of the husband, as an inheritance would, but springs into existence by operation of law upon a concurrence of seizin and the marriage relation.” (p. 329.)
Speaking of the provisions of section 3831, touching the setting aípart by the probate court, this language, was used:
“And the only control exercised by the probate court or the executor or administrator over the wife’s interest in the real estate owned by her husband at the time of his death is to ascertain its value and set it apart to .the widow — not as an heir of her deceased husband, but as her separate and absolute property in fee simple. And since this interest does not come to her by inheritance it is not a bar to her recovery that her husband parted with his title in such a fraudulent manner that neither he nor his heirs can recover- it.” (p. 329.)
But it is argued by counsel for the defendants with much plausibility and consistency that because section 6160 provides that the property which a woman owns at the time of her marriage, or which shall come to her by descent, devise, or bequest, or the gift of any person except her husband, “shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts,” and because section 6161 provides that she may, during marriage, convey her real property in the same manner and to the same extent as a married man may, the intention of the legislature was to enable the wife -to dispose of her real estate by deed, in which instrument it was not intended to be necessary for the husband to join. Their brief says:
“We believe that it was the intention of the makers of our constitution that the wife’s separate property should be absolutely under her control to do with as she pleased.”
But this theory, pursuasive as it may be, ignores the requirement of section 3831 to set apart the undisposed-of property to the survivor in fee simple. While it is true that no -express language is found in the statute that this shall be inherited by or become the property of such survivor, still the only possible effect to be given to the language used is that whatever portion of the land the survivor may rightfully be allotted comes to him as a fee-simple owner, the allotment manifestly being for the mere ascertainment of its identity and not as a source of title. The title does not come because the allotment is made, but the allotment is made because the title has come. There is nothing in section 6160 or 6161 that really goes counter to this provision, and giving all the various sections relating to the matter their proper significance, it must be held, in accordance with the former rulings in the cases already mentioned, that the plaintiff is entitled to maintain his action to have partitioned to him his part of the land formerly owned by his deceased wife, in the conveyance of which he did not join.
While he alleges in his petition that she was unduly influenced to make the deed, that is not material, for' she could not by suqh conveyance, whether unduly influenced or not, deprive her surviving husband of his fee-simple interest in the land in > question.
It follows, therefore, that the judgment must be affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff bank loaned Jacob Staab $175.25, taking his note payable on demand, which note his father was to have signed, but did not, secured by a chattel mortgage on some wheat and other property already mortgaged to the bank by the defendants to secure indebtedness which had been running and accumulating for a number of years. The bank brought replevin, and in its affidavit fixed the value of the wheat at $3,000 and the other property at $1,730. No redelivery bond was given. The bank sold the wheat for $600 and the other property for $971.50. The defendants pleaded an oral agreement on the part of plaintiff’s cashier when the note of Jacob Staab was given, that no action would be taken on the Chattel mortgage until the wheat was thrashed and marketed, and prayed judgment for a return of the property or the sum of $4,500 and costs. The defendants recovered a judgment for $3,900, and the plaintiff appeals, assigning as errors the admission of evidence as to the alleged agreement and certain other rulings touching evidence and instructions.
The principal complaint is that the alleged parol agreement contradicted the terms of the note given by Jacob Staab. The latter testified that when he gave this demand note he thought it was the same as any other and would “give a man time, thirty days or ninety days.” That he understood from the cashier from what he said that he was to pay after the wheat was thrashed and marketed, and that he would not have signed these notes and chattel mortgage if he had known that the bank would demand payment within thirty days and before the ■ wheat was thrashed and marketed. On cross-examination he. testified that the note was not to be paid until after harvest.
“Q. Who told you that? A. Mr. Madden.
“Q. What did he say? Give us his exact language. A. Now, he says, I want you to straighten out these notes this fall. I says I tvill just as soon as I thresh. I says I can’t pay them'before that.
“Q. And that is what he said? A. Yes.
“Q. He didn’t say he would hot try to collect them before that, he had any particular time? A. No, he never said that.”
The court instructed that—
“Evidence has been presented as to the agreement regarding the maturity of the note given by Jacob P. Staab and of the alleged extension of his father’s note until threshing or marketing time. . . If, at the time that the defendant, Jacob P. Staab, signed the notes in controversy,' he and the bank made an agreement to the effect that payment thereon was not to be made nor demanded until after the wheat of the defendant was threshed and marketed, and if it was understood and agreed at such time between said defendant and the bank that said notes should not mature nor be due and payable until after threshing and marketing the wheat, such agreement, if any, would be binding upon the plaintiff as well as the defendant, even though the note taken provided that it was due and payable ‘on demand,’ provided that by reason either of accident or mutual mistake of both parties, or of fraud on the part of the bank, the note did not express the contract or agreement of the parties in relation to the maturity of said note.”
We are compelled to hold that this instruction not only went beyond the allegations of the answer, which did not allege any fraud or mutual mistake, and the evidence, which in no wise indicated either, but also went counter to the rule that the plain terms of a promissory note cannot be varied by oral testimony. This rule is clearly set forth in Stevens v. Inch, 98 Kan. 306, 158 Pac. 43, and Bank v. Paper Co., 98 Kan. 350, 158 Pac. 44. It is but fair, however, to say that both of these decisions were rendered after the trial of this action.
It is complained that the affidavit was permitted to go to the jury on the question of the value of the property. The court refused an instruction that it should not be considered, and charged that, while not an absolute test of the value and while made only for the purpose of fairly approximating the value in fixing the amount of bond to be given, it might be considered so far as it threw light upon the question of a feeling of insecurity. There was no error in this of which the plaintiff can complain, for the court might have gone further and charged that the affidavit might be considered touching the question of value and the plaintiff’s estimate thereof. (Crawford v. Furlong, 21 Kan. 698; Hoisington v. Armstrong, 22 Kan. 110; Mills v. Mills, 39 Kan. 455, 18 Pac. 521; 34 Cyc. 1605.)
On the question as to whether the bank actually deemed itself insecure, the jury were correctly charged that if when the property was taken the cashier took possession with the conviction of insecurity in his mind, that was sufficient. The cashier not only testified to this feeling of insecurity but gave cogent reasons therefor. It is complained that there was no evidence to the contrary, and that the jury were' erroneously permitted to pass-on the question. The court instructed that as the cashier had testified that he had such feeling at the time — •
“Then upon the facts of the case if you think it is at all fairly and reasonably possible to believe that he had such feeling, then you should so find, and it should be held that the bank had a right to take possession of the property.”
There is nothing on the face of the record to impugn his credibility in the slightest, except the matter of value fixed in the affidavit, but this particular part of the charge is not complained of.
One of the provisions of the mortgage was that possession might be taken if the bank should deem itself insecure. It was alleged that it did so deem itself. The answer contained a general denial. It was proper, therefore, to permit proof as to such alleged feeling of insecurity — the reasonableness thereof being entirely immaterial.
The judgment is reversed, and the cause remanded for further proceedings.
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The opinion pf the court was delivered by
Burch, J.
This action, in the nature of quo warranto, was brought to test the validity of the so-called school reorganization laws. Both the original act of 1945, which is chapter 291 of the laws of that year (G. S'. 1945 Supp., 72-5601 to 72-5623, inclusive), and the amendatory act, House bill No. 376 (see Laws 1947, chapter 374), are challenged. The plaintiff asserts that the involved statutes are unconstitutional for seven reasons. The defendants, of course, vigorously contend to the contrary.
Before giving consideration to the specific questions presented, some general observations should be made. The court is cognizant of the complicated consequences which rest upon the result of the litigation. The court realizes that probably nothing is more essential to the welfare of the state than the continued maintenance of adequate schools in the communities throughout its counties. The court is comprehensive of the complex problems which have confronted the legislature in its efforts to enact satisfactory legislation controlling the controversial questions which arise upon consideration of school reorganizations. As a consequence this case presents an instance wherein the rule relative to the duty of a court to hold that statutes are valid, whenever it is reasonably possible to do so, has profound significance. The court is aware, also, of the thought often expressed to the effect that the constitution must be given flexibility so that it may vibrate in tune with the vicissitudes of time. The court, likewise, is contemporaneously conscious of the admonition that the flexibility theory of constitutional construction should not be followed to the point of regarding the dominant document as being merely worthy of mention. The constitution still stands, not only as the supreme expression of powers granted by the people to their government, but it stands today and should stand tomorrow, staunch and rigid in its restraints upon governmental powers in our system of democracy. With such general concepts in mind, the Court has given extended consideration to the statutes which are herein subjected to constitutional tests.
The first contention of the plaintiff is that the powers conferred upon the school reorganization committees in the respective counties by the act of 1945 amounts to a delegation of legislative power in violation of the provisions of section 1 of article 2 and section 21 of article 2 of the constitution of the state of Kansas. Section 1 of article 2 reads:
“The legislative power of this state shall be vested in a house of representatives and a senate.”
Section 21 of the same article reads:
“The legislature may confer upon tribunals transacting the county business, of the several counties, such powers of local legislation and administration as it shall deem expedient.”
The plaintiff asserts that the establishment or alteration of school districts is a legislative function; that the establishment or alteration of school districts cannot properly be classified as “county business” or “local legislation” and that, therefore, the legislative powers cannot properly be delegated to “tribunals transacting the county business” or any other tribunals.
1. Obviously, the first question which must be answered is whether the creation of school districts or the alteration of their boundaries is a legislative function. Beginning with State, ex rel., v. Comm’rs of Ford County, 12 Kan. 441, this court has held repeatedly that the legislature has “absolute power over the organization . . . school-districts . . .” See, also, School District v. Board of Education, 16 Kan. 536, 540; School District v. Board of Education, 110 Kan. 613, 620, 204 Pac. 758; State, ex rel., v. Mowry, 119 Kan. 74, 78, 237 Pac. 1032; State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102; and State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1090, from which the following is quoted:
“We agree with appellee that the questions considered by the state superintendent of public instruction, as shown by his testimony, pertain to the prudence or advisability of establishing the joint rural high-school district, with its proposed boundaries, were legislative in character . . .” (Emphasis supplied.) (p. 317.)
The court is of the opinion that consistency commands us to hold that the principal purpose of the act, which was to accomplish the reorganization of schools throughout the state, was legislative in character.
2. The next question which must be considered is whether the legislative power can be delegated to the tribunals named in the statute. If the powers sought to be delegated are legislative in character, as distinguished from administrative, ordinarily they cannot be delegated unless their delegation is authorized by some express provision of the constitution or the authorization arises by reason of clear implication therefrom.. Such a result follows from the doctrine of separation of the powers of government. The functions of the legislature must be exercised by it alone and:cannot be delegated unless there is constitutional sanction- therefor. The opinion in the case of State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102, reads as follows:
“An attempt to confer such power is said to be an attempt to delegate legislative power, which is futile. This is settled by a long line of- decisions, beginning with Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and extending to Barrett v. City of Osawatomie, 131 Kan. 50, 289 Pac. 970.” (p. 175.)
See, also, Oakland State Bank v. Bolin, 141 Kan. 126, 40 P. 2d 437, and State, ex rel., v. Storey, supra, and cases therein cited. The last expression upon the subject by this-court will be found in State, ex rel., v. Jackson County Board of Social Welfare, 161 Kan. 672, 171 P. 2d 651. From page 680 of the opinion the following is quoted:
“. . . Legislative power is vested exclusively in the state legislature except that it is provided in section 21, article 2 of the constitution, that ‘The legislature may confer upon tribunals transacting the county business of the several counties, such powers of local legislation and administration as it shall deem expedient.’ No such delegation of legislative power to a state board or agency is provided for in the constitution; and it is well established law that in the absence of such provision, legislative power cannot be delegated.”
Comprehension of the necessity for, constitutional confirmation of the power essential to the delegation of legislative functions forces us to search for the -fundamental elements which may give validity and life to the legislation under consideration. Section 3 .of chapter 229 of the Laws of 1945 (now G. S. 1945 Supp. 72-5603) provides that “There is hereby created in each county of the state a school reorganization committee.” The question develops at once, is there any constitutional provision authorizing the formation of a school reorganization committee in each county of the state to which can be delegated legislative power? The constitution contains no express provision to such effect. Section 1 of article 6 of the constitution reads:
“The state superintendent of public instruction shall have the general supervision of the common-school funds and educational interests of the state, and perform such other duties as may be prescribed by law. A superintendent of public instruction shall be elected in each county, whose term of office shall be two years, and whose duties and compensation shall be prescribed by law.”
In construing the above-quoted section of the constitution this court has held that the legislature can confer legislative power upon the state superintendent of public instruction because the constitution “specifically authorized him to ‘perform such other duties as may be prescribed by law/ without limiting those duties to such as might be classified as executive or administrative only.” (See State, ex rel., v. Storey, supra.) In the case of School District v. Community High School, 146 Kan. 380, 69 P. 2d 1102, this court called attention to the fact that “The county superintendent of schools is a constitutional official” and the validity of G. S. 1935, 72-2505, was upheld although the result reached therein was predicated upon the designated official having been given administrative or ministerial duties, rather than legislative authority, under the standards and guide rules provided in the statute. But we have no provision in the constitution which refers in any manner to any committee or tribunal having duties similar to those of a school reorganization committee being created in each county of the state. Consequently, there is no constitutional basis for application of the theory followed in State, ex rel., v. Storey, supra, and which might possibly have been followed in School District v. Community High School, supra, if it had been necessary.
Article 6 of the constitution pertains to “Education,” and its second section reads:
“The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments.” (Emphasis supplied.)
The rule is old that in expounding the constitution every word must be given due force and appropriate meaning. (See Holmes v. Jennison, 14 Pet. 540, 570, 571, 10 L. Ed. 579, 594; Myers v. United States, 272 U. S. 52, 151, 71 L. Ed. 160, 180, 47 S. Ct. 21, and Williams v. United States, 289 U. S. 553, 77 L. Ed. 1372.) The word “establish” has been defined as signifying “the putting or fixing on a firm basis . . . in a settled or efficient state or condition . . (See Armstrong v. George, 84 Kan. 248, 251, 114 Pac. 209; State, ex rel., v. Board of Education, 111 Kan. 598, 600, 207 Pac. 764, and Thummel v. State Highway Comm., 160 Kan. 532, 547, 164 P. 2d 72.) Thus, it may be fairly said that the men who framed the constitution intended that those who should establish a uniform system of common schools would do so upon a firm, efficient basis. Even though we disregard such elements and' conclude that the word "establish” may be construed as synonymous with “create,” the result still requires us to inquire: Upon whom was the .responsibility placed to establish a uniform system of common schools? The answer is as evident as light. The constitution says the legislature shall establish a uniform system of common schools. The constitution does not say that the legislature can delegate the power to establish schools to any corporate or quasi-corporate body it may create. In such circumstances, as was said long ago by Mr. Chief Justice Marshall in American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 7 L. Ed. 242, “they are incapable of receiving it.” Mr. Justice Sutherland emphasized the rule in Williams v. United States, supra, from which the following is quoted:
“. . . it cannot be reconciled with the limitation fundamentally implicit in the constitutional separation of the powers, namely, that a power definitely assigned by the Constitution to one department can neither be surrendered nor delegated by that department, nor vested by statute in another department or agency.” (p. 580.)
The school reorganization committee which the statute under consideration seeks to establish is unquestionably an “agency” never contemplated by the men who molded the constitution. Consequently, it cannot be correctly asserted that any implication arises from the constitution to the effect that an unnamed and unborn agency should be vested with legislative power. Surely, such a result must follow from realization of the fact that the constitution explicitly and specifically placed the power to establish a uniform system of common schools in the. legislature and nowhere else. In instances wherein the constitution is silent upon the subject of legislation, a different question may arise, but the constitution is not silent on the subject of the establishment of schools. As herein-before set forth, under the rule that all provisions of the constitution should be given equal recognition, this court has held that the state superintendent of public instruction may be delegated legislative power, but the liberal construction of the constitution followed in reaching such a result cannot be extended to the point of holding that the constitution sanctions the delegation of legislative power to an agency or committee not in contemplation at the time the constitution was created. We can find nothing in section 2 of article 6 which forms a basis for holding that the legislature can vest in a school reorganization committee the power to legislate upon questions' concerning the establishment of a uniform system of common schools. If constitutional power exists for such a purpose, it must be found in some other section of the constitution. Examination of the remaining sections of article 6 of the constitution reveals that no other section of the article has any possible application to the problem here presented.'. Therefore, we must leave article 6, which pertains to “Education,” and seek to find constitutional guidance in some other article.
3. The only other section of the constitution which appears to have any application to the problem under present consideration is section 21 of article 2. The section has been quoted hereinbefore but its brevity permits repetition for the purpose of clarity. It reads:
“The legislature may confer upon tribunals transacting the county business of the several counties, such powers of local legislation and administration as it shall deem expedient.”
Under the authority granted by the above provision this court has held that legislative powers may be conferred upon county commissioners and upon other local agencies provided they are transacting the county business. But the court has consistently, cautiously confined the approved delegation of such legislative powers to powers pertaining to the county business and to matters of local legislation and administration. (See City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616; State, ex rel., v. Hardwick, 144 Kan. 3, 57 P. 2d 1231; and Russell State Bank v. Steinle, 159 Kan. 293, 153 P. 2d 906.) In State, ex rel., v. Hardwick, supra, the court held:
“Insofar as a county tribunal is concerned, the legislature is limited; it can confer only power of local legislation.” (p. 6.)
The cited case held that a statute pertaining to the prevention of soil erosion was invalid because it conferred upon a county tribunal the power to legislate on a matter which was not a subject of local legislation. We quote, further from the opinion a statement which is germane to the present question:
“The statute requires the board to prescribe rules which must be complied with, a clear delegation of legislative power, and of power to legislate on a matter which is not local and is forbidden by the constitution. In our judgment, the evil to be eradicated and the injury to be remedied come not from any local situation nor from any county situation, but from one that is almost state-wide and that cannot by any fiat of the legislature be limited in its scope. The attempted delegation of power to legislate violates the-provisions of our constitution. [Art. 2, sec. 21]” (p. 8.)
In furtherance of the desire to uphold the constitutionality of the statutes under consideration, can it be held that the power to create and reorganize school districts over all the state involves only an exercise of local legislation? The title to the act reads: “An Act relating to schools, creating a division of school reorganization within the state department of education and a county reorganization committee in each county, prescribing powers and duties . . .” (Laws 1945, ch. 291.) It is evident from the title that the legislature was not attempting to pass legislation which was local in its nature. The situation which it sought to remedy arose from conditions existing over all the state and it is apparent that the legislature, in recognition of constitutional admonitions, was attempting to pass legislation providing for the establishment of a uniform system of common schools which was a general law and should have uniform operation throughout the entire state in compliance with section 17 of article 2 and section 2 of article 6 of the constitution. Moreover, examination of the pertinent provisions of the act reveals that the activities of the county reorganization committees are not confined strictly to reorganization of school districts within the counties. Subsection (2) of section 72-5607 of the act (G. S. 1945 Supp.) provides that in cases of school districts containing land lying in two or more counties, the reorganization committees of the counties involved shall meet in joint sessions and consider the various questions and problems and work out plans for reorganization of such districts in harmony with the provisions of the act. Many of our counties are adjacent to four other counties. All are adjacent to at least two. Thus, in operation the reorganization committees may be concerned with questions involving the creation of school districts and the means of raising revenue for the support of schools in districts extending beyond the county boundaries and into other counties.
In addition, it must be noted that section 6 of the act (G. S. 1945 Supp. 72-5606) provides that if the committees fail to perform their duties the state superintendent of public instruction shall perform such duties, subject to the'supervision of the state board of education. Therefore, the involved statutes cannot be considered as pertaining only to local legislation concerning the county business by the county tribunals. The éxtended and comprehensive brief filed by the office of the attorney general in behalf of the defendants concedes that the legislature was proceeding pursuant to section 2 of article 6 of the constitution to establish a uniform system of schools in the state and reaches the conclusion that “This is not a matter of local legislation or administration which can be conferred upon local tribunals transacting the business of the county.” We note, also, that the defendants’ brief states that “The duty to establish a uniform system of common schools is imposed upon the legislature itself by section 2 of article 6 of the constitution of Kansas. The express affirmative provision of section 2 of article 6 is an implied inhibition which prohibits the legislature from, delegating this legislative power to a local tribunal under section 21 of article 2. (Prouty v. Stover, 11 Kan. 235; State, ex rel., v. Storey, 144 Kan. 311, 38 P. 2d 1090, and Wulf v. Kansas City, 77 Kan. 358, 363, 94 Pac. 207.)” Even if we might be inclined to agree that section 2 of article 6, providing that the legislature shall establish a uniform system of common schools, may by implication prohibit their being established by a county committee, given power to legislate, because the express provision applies to the exact subject matter, that interesting question need not be decided. We are unable by any process of rational reasoning to reacfy the conclusion that the act under consideration can be held valid upon the theory that it vests in a county tribunal only legislative power to pass local legislation. It follows that the constitutionality of the act cannot be upheld upon such a basis. In obedience to the admonition that we must hold the act constitutional, if such can be done upon any reasonable theory, the court turns with hope to consideration of the question whether the act confers upon the school reorganization committees only administrative power as distinguished from legislative.
4. At this point in the opinion it should be noted that all of the preceding part thereof is predicated upon the conclusion that the power vested in the school reorganization committees i's clearly legislative in character. The brief filed in behalf of the defendants consistently asserts that the power conferred upon the committees is only administrative. If such be sound, perhaps 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, “I 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 the 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. Ordinarily the standards must be sufficiently fixed and determined so that in considering whether a section of a statute is complete of incomplete the test is whether the provision is sufficiently definite and certain to enable one reading it to know his rights, obligations and limitations thereunder. For present purposes it may be said that a standard is a definite plan or pattern into which the essential facts must be found to fit before specified action is' authorized. We can be certain of one test — a legislative fiat which provides that an administrative agency shall consider the elements which might affect legislation and then act as it sees fit — does not fix a standard. (See the extensive consideration. of this question by Mr. Chief Justice Hughes in Panama Refining Co. v. Ryan, supra.)
5. We turn next to the context of the act to ascertain if it furnishes a declaration of policy or a standard of action which can be considered as controlling or regulating the delegated power. All references will be made to the sections of the act as they are published in G. S. 1945 Supplement. The first section of the act (72-56Ó1) sets forth definitions and requires no consideration. The next section (72-5602) provides for the creation of a division of school reorganization within .the state department, consisting of the assistant state superintendent and the rural school supervisors. The duty of the division thereby created is to study all factors which affect the determination of proper district boundaries of the elementary school system within the, state, and to counsel and advise with the school reorganization committees. The section provides that the division shall make such rules and regulations as may be necessary to govern its own procedure, subject to the approval of the state department, but it is not authorized to act with respect to any standards fixed by the legislature, or decided upon by the-division of school reorganization, in such manner that its action would be binding upon the county committees. There is nothing whatever in section 72-5602 which in any way fixes standards as a basis for the work of the reorganization committees.
Section 72-5603 provides that there is created in each county of the state a school reorganization committee; that the committee members shall be appointed by the board of county commissioners of each county provided the appointees have certain qualifications therein set forth. According to the provisions of 72-5604, the county superintendent of public instruction is not a member of the committee but shall serve as secretary of the committee. Thus, it appears that one of the constitutional officers is to act only in an administrative or ministerial capacity. Section 72-5605 relates to compensation and expenses. Section 72-5606 provides for meetings of the committee and it also provides, as hereinbefore set forth, that in the event the state superintendent finds that any county reorganization committee has failed to make a comprehensive study of the school system in the manner and within the time required by subsection 1 of section 7 (72-5607, ¶ 1) or if thereafter he finds that such committee is unable or is neglecting or refusing to exercise its powers in performance of its duties for any reason, the state superintendent, subject to the approval and under the supervision of the state board of education, is authorized and directed to exercise all such powers and perform all such duties in accordance with the applicable provisions of the act. It should be noted that the state superintendent of public instruction is given no power to act unless the committee fails to act. Therefore, it is possible under the provisions of the act that school districts throughout the entire state can be reorganized if the committees act promptly without any supervision or controh by another constitutional officer — the state superintendent of public instruction. The next section (72-5607) of the act pertains to the powers and duties of the county committee. The statute reads: “Except as herein otherwise provided, the county committee shall have the general power and authority to reorganize the school districts of the county and in the development, preparation, final consideration and adoption of plans for the reorganization of school districts of a county, each county committee shall be governed by the following powers, duties and restrictions.” We have reached the crucial crux of the question and seek eagerly to find a general outline of policy which sets forth the circumstances and conditions under which the committee may function. The statute continues:
“(1) Within six months after its organization the committee shall make a comprehensive study of the county school system in order to consider and determine: (a) The assessed tax valuation of existing districts and the differences in such valuation under possible reorganization plans; (b) the size, geographical features and boundaries of the districts; (c) the number of pupils attending school and the population of the districts; (d) the location and condition of school buildings and their accessibility to the pupils; (e) the location and condition of roads, highways and natural barriers within the district; (/) the school centers where children residing in the districts attend high school;' (g) conditions affecting the welfare of the teachers and pupils; (h) the boundaries of other governmental units and the location of private organizations; and (i) any factors,concerning adequate school facilities for the pupils.” (Emphasis supplied.)
Subsection (2) reads:
“In cases of school districts containing territory lying in' two or more counties, the reorganization committees of the counties involved shall meet in joint sessions at a place agreed upon by said committees and consider the various questions and problems and work out plans for reorganization of such districts in harmony with the provisions of this section and related provisions of this act.” (Emphasis supplied.)
Subsection (3) reads:
“Change the boundaries of school districts maintaining high schools in cases where the territory is or can be made conterminous, insofar as it is deemed advisable, in order to eliminate the overlapping boundaries of high-school districts and elementary school districts and consider the uniting of such districts under one school board.” (Emphasis supplied.)
Subsection (4) reads:
“The county committee shall not in any of its reorganization plans place any territory in another school district if such territory at the time this act-takes effect is situated within the boundaries of a school district in which is located a city of the first or second class.”
Subsection (5) reads:
“Determine the value and amount of all school property and all bonded and other indebtedness of each school district affected and consider the amount of all outstanding indebtedness, and to make an equitable adjustment of all property, assets, debts and liabilities among the districts involved: Provided, Where, a district at the time any reorganization order becomes effective, has any legally existing bonded indebtedness or outstanding no-fund warrants, then such territory shall continue to be liable therefor in accordance with the applicable provisions of section 10-119 of the General Statutes óf 1935 and any amendments.thereto.”
Subsection (6) relates to a record being kept of proceedings and rehearings and does not set forth any standards. Subsection (7) reads:
“Prepare in writing and by charts the plans for reorganization and submit them to the patrons for hearings as provided in section 8 (72-5608) of this act.”
Subsection (8) reads:
“The county committee shall, before March 1, 1946, adopt an order disorganizing all districts which had no children attending a public or parochial elementary school during the preceding school year and attaching such disorganized territory to an adjoining district or districts. Said order shall become effective on March 1, 1946, and the provisions of sections 8 to 15 (72-5608 to 72-5615), inclusive, of this act shall not be applicable thereto.”
We have exhausted section 72-5607 and pause to ponder the problem whether such section fixes any standards. It is true that the section of the statute sets out a general outline of the various elements which might ordinarily be considered by the legislature in enacting legislation providing for the reorganization of school districts but the general outline contains nothing in the nature of a basis upon which the reorganization committee is instructed to act. Subsection (4) is definite but does not set forth a basis for the reorganization of other school districts. Subsection (8) contains a definite mandatory disorganization order made by the legislature, but the entire act cannot be considered as prescribing a definite standard for establishing other school districts merely because one class of school districts shall be disorganized. Perhaps we will find a standard for action in the subsequent provisions of the act. Consequently, we turn to them for analysis.
Section 72-5608 relates to hearings on reorganization plans. It provides that when any committee has prepared its written plans and charts for reorganization, the committee shall publish' certain notices and hold meetings. At the meetings the committee is authorized to hear all objections, suggestions and testimony offered by any party or school district interested in the reorganization plans. The statute then-continues: “After such hearings, the committee shall make such revisions or modifications in its written plans as it deems necessary and shall thereupon adopt its final reorganization plans. . . .” (Emphasis supplied.) The statute continues: “Provided, Whenever any reorganization plan proposed by: the committee contemplates or provides for the inclusion of any rural territory in a city school district having within its boundaries' a city having a population of more than 15,000, such rural territory shall not be included in the proposed city school district unless a majority of the legal electors residing in such rural territory consent in writing to the inclusion of such rural territory in the proposed school district.” Following such provision is a provision for determining the sufficiency of the consent. Thereafter the statute continues as follows: “If after the adoption of any final reorganization plan and before December 31, 1948? the committee shall find and determine that any final reorganization plan adopted is unsatisfactory, inequitable or needs to be changed for any reason, then said committee may again reorganize the territory involved in such order in the same manner as the original reorganization plan was adopted and the committee shall then meet in the same manner as prior to the completion of the original reorganization.” (Emphasis supplied.)
Section 72-5609 sets forth that after the adoption of its reorganization plans, the committee shall formulate and “adopt such orders as may be necessary to: (1) Properly organize, reorganize, disorganize, number or renumber the school districts affected in conformity with its adopted plans; (2) attach or detach the territory affected by such plans; and (3) properly effect the reorganization as set forth in such plans.” (Emphasis supplied.)
The next section, 72-5610, provides for rehearings upon application being filed therefor by. any party, defined in the act, who is interested in the proceeding. The section provides that the application shall be heard by the committee and be by it determined within thirty days after the date wherein all applications for rehearings may be filed. Such section continues as follows: “Provided, In case any published order of the committee is changed or modified upon any rehearing then any party aggrieved, whether a party to the proceedings or not, may appeal to the district court as provided in section 11 (72-5611) of this act, . . .” We note that the last-quoted section fails to fix any standards upon which the committee shall determine, on rehearing, whether any of its orders shall be changed or modified. Nothing can be gained by a tedious review of the subsequent sections of the act because it cannot be said that therein will be found any provisions in the nature of standards.
The sections of the statute hereinbefore quoted establish a definite plan for the creation of the committees. The statutes also provide for procedure pertaining to meetings, the keeping of records, rehearings and appeals. But nowhere within the four corners of the act can we find a standard upon which the committees are authorized to act or not to act on the question whether a new school district shall be organized They are free to select as they choose from the many and various elements suggested by the legislature or from “any factor” a basis for action, and then, without making any finding with respect to any fact or factor, are “granted the general power and authority to reorganize the school districts of the county” or “in two or more counties” and “Change the boundaries of school districts maintaining high schools in cases where the territory is or can be made conterminous, insofar as it is deemed advisable, . . .” The committees are authorized to “adopt such orders as may be necessary . . . to . . . properly organize, reorganize, disorganize, number, . . .” the districts affected “in conformity with its [the committee’s] adopted plans, . . .” The act does not require the committees to make findings as to any essential fact or circumstance. Not only is such omission evident but we fail to find within the act any specified plan or policy on the part of the legislature which can be construed as an “intelligible principle” or “general rule” in compliance with which the committees are authorized to act. When there is a total absence of a “primary standard” or “broad outline,” it is impossible “to. fill up the details” as was said by Mr. Chief Justice Marshall in Wayman v. Southard, 10 Wheat. 1, 43, 6 L. Ed. 253, 263, because the details are not confined within any definite area or orbit. In such circumstances, the orders which the committees may make are not subordinate rules within the framework of the policy which the legislature has sufficiently defined. A standard cannot be set up. which is so indefinite “as to confer an unlimited power.” (See Federal Radio Comm’n. v. Nelson Bros. Co., 289 U. S. 266, 279, 285, 77 L. Ed. 1166, 1175, 1178, 53 S. Ct. 627, 89 A. L. R. 406.) When such occurs the recognized distinction applies which was pointed out by the supreme court of Ohio in Cincinnati, W. & Z. R. Co. v. Clinton County, 1 Ohio St. 77, 88, between the “delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law.” The difference between a statute which delegates legislative authority to create a law and the right to make regulations for the administering of the law has controlling significance. (See United States v. Grimaud, 220 U. S. 506, 517, 55 L. Ed. 563, 567, 31 S. Ct. 480, and our rather recent case of Russell State Bank v. Steinle, supra.) As was said by this court in the case of Brown v. Illinois Bankers Life Assur. Co., 144 Kan. 670, 63 P. 2d 165:
“. . . This is not a case where the legislature, after announcing a definite. policy, established necessary standards and then delegated to the commissioner of insurance the power to make subordinate rules and regulations whereby the declared policy was to be made effective. The contrary is true concerning the act involved. Here power was attempted to be delegated without prescribed standards and to enact not subordinate rules and regulations, but rules and regulations which would supersede any and all existing laws, or parts thereof, in conflict therewith.
“In Schechter Corp. v. United States, 295 U. S. 495, 55 S. Ct. 837, 79 L. Ed. 1570, a unanimous court held:
“ ‘Extraordinary conditions do not create or enlarge constitutional power, and cannot justify governmental action outside the sphere of constitutional authority.’ (Headnote, ¶ 1.)” (p. 677.)
In State, ex rel., v. Hardwick, supra, the opinion reads:
“Under this delegation, each county may set up its own standard, and this is more clearly discernible from the fact that the remaining portions of the statute set no standard whatever by which the local board of commissioners is bound to act. Boards in adjoining counties may prescribe widely varying standards or no standards at all, for compliance with the act is not mandatory.” (p. 8.)
We have been unable to find in the act under consideration any standard upon or outline within which the legislature has admonished the committees to act in any designated, manner. It seems reasonably clear that the legislature, in passing the act under consideration, has inadvertently ignored the constitutional mandate which reads: “The legislature shall encourage the promotion of intellectual, . . . improvement, by establishing a uniform system of common schools, . . .” (Sec. 2, art. 6.) The legislature does not establish a. uniform “system” by delegating to a committee unlimited authority to “work out plans for reorganization of such districts” and “adopt such orders as may be necessary, ... to: . . . Properly organize, reorganize, disorganize, . . .” schools. The act provides no definite system whatever whereby the respective committees may determine whether school districts shall be organized or reorganized. Restraint against the improper delegation of power long has been recognized as “vital to the integrity and maintenance of the system of government ordained by the constitution.” (See Fields v. Clark, 143 U. S. 649, 692, 36 L. Ed. 294, 12 S. Ct. 495.) It is never proper to assert that constitutional commands should be disregarded because detrimental consequences may follow or because an emergency exists. Such is the rule in times of war. (See Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 40 S. Ct. 106, 64 L. Ed. 194, and Highland v. Russell Car Co., 279 U. S. 253, 49 S. Ct. 314, 73 L. Ed. 688.) The court is forced to conclude that the 1945 act is void because it constitutes an improper delegation of legislative power in violation of section 1 of article 2 of the constitution.
6. The court has considered the question whether the unconstitutionality of the sections of the act which refer to functions by the committees impairs the validity of all other sections and particularly the sections pertaining to elementary school finance. Of course, the court would prefer to uphold the validity of as many sections as possible but we are confronted with the rule of statutory construction which reads:
“The general doctrine is that only the invalid parts of a statute are without legal efficacy. This is qualified by the further rule that if the void and valid parts of the statute are so connected with each other in the general scheme of the act that they cannot be separated without violence to the evident intent of the legislature, the whole must fall. These rules are of everyday enforcement in the courts.” (State v. Smiley, 65 Kan. 240, 247, 69 Pac. 199, and see State, ex rel., v. Stonehouse Drainage Dist., 152 Kan. 188, 191, 102 P. 2d 1017.)
The qualifications set forth in the rule force us to the conclusion that “the whole must fall.” The first section under the heading, “Elementary School Finance,” being 72-5616, refers to functions of the “county committee.” The next to the last section (72-5622) of the article also refers to hearings before the “reorganization committee.” Other sections refer to provisions of “this act.” Apparently the provisions relative to school finance are predicated upon the presumption' that the committees will reorganize the schools. In view of such circumstances we cannot hold that some sections can be separated without violence to the evident intent of the legislature.
Since the act is held unconstitutional for the reasons herein set forth, it is unnecessary to consider the other possible constitutional violations asserted by the plaintiff. There may be those who will think that the entire court should consider all constitutional questions presented and write a treatise covering a substantial part of the constitutional law of Kansas for the guidance of the legislature. Assuming that such a task would be as welcome as any other, nevertheless, its performance would necessitate suspending consideration of all appeals and other proceedings pending in the court. Obviously, the incident delay would be an intolerable imposition upon the rights of many litigants.
7. As stated in the first paragraph in this opinion, the plaintiff contends that House bill 376, which will be printed in the 1947 Session Laws as chapter 374 thereof, is likewise unconstitutional for the same reason, among others, that the 1945 act is.hereby held unconstitutional. Consideration of the contention requires examination of the 1947 amendments. House bill 376 amended sections 72-5603, 72-5604, 72-5606, 72-5607, 72-5608,, 72-5609, 72-5610, 72-5611, 72-5612, 72-5614, 72-5615 and 72-5623, G. S. 1945 Supp., and repealed such original sections.
It is unnecessary to review in detail the various changes made by the amendments. A different method for the creation of a school reorganization committee is provided therein upon an election basis but we are not now concerned with the provisions relative to the creation of the committee, or the terms of the members and other provisions not germane to the question before us for consideration. After providing for the election of the committee, the amended section 72-5604 provides that “All the powers, duties, authority and jurisdiction conferred upon the school reorganization committees under the provisions of chapter 291 of the Session Laws of 1945 or any amendments thereto shall, upon the election and organization of a school reorganization committee under the provisions of sections 1 and 2 of this act, be and are hereby transferred to and conferred upon the committee so elected . . . Said committee so elected shall organize in the manner as prescribed in section 72-5606 of the General Statutes Supplement of 1945 or any amendments thereto and shall proceed to exercise all of the powers, duties, authority and jurisdiction as provided by law.” Section 72-5604 again provides that “The county superintendent of public instruction shall serve as secretary of the committee . . .” Under the provisions of amended section 72-5606 the state superintendent of public instruction is given the same qualified power as was provided in the original act, to the effect that the state superintendent may act for the purpose of reorganizing school districts if any committees established in conformity with the act are unable or are neglecting or refusing to exercise their powers.
The amended section 72-5607 provides:
“Except as herein otherwise provided, the county committee shall have the general power and authority to reorganize the school districts of the county into a convenient number of districts as practicable so as to provide generally accepted minimum elementary school educational opportunities and standards and so that each school district shall have at least ten pupils and in thé development, preparation, 'final consideration and adoption of plans for the reorganization of school districts of a county, each county committee shall be governed by the following powers, duties and restrictions: . . (Emphasis supplied.)
We note that the last-quoted section provides that the county-committee shall have power to provide “standards” but that there is added a definite provision to the effect that each school district shall have at least ten pupils. Subsection (1) of amended section 72-5607 is the same as subsection (1) of the act of 1945. Subsection (2) is the same also but there is added thereto a provision pertaining to procedure in the event one or more county committees refuse to meet in joint sessions or fail to. agree on all. final reorganization plans. The addendum provides for the application to the state superintendent for hearing before him, and also provides that the state superintendent shall render a decision as to the proper solution of any question raised at the hearing, but again the power of the state superintendent is predicated upon a failure of the committee or committees to act. Subsection (3), as amended, provides that the county committee shall not in any of its reorganization plans place any territory in another school district if such territory is situated within the boundaries of the school district in which is located a city of the first or second class. Thus, we find in subsection (3) of the amended act the same restriction which was desigr nated as subsection ,(4) in the original act but no standard upon which school districts may be reorganized in the event the proposed district does not have located within it a city of the first or second class. The amended act omits subsection (3) of the original act, which pertained to the change of boundaries of school districts maintaining high schools. Subsection (4) of the amended act is the same as subsection (5) of the original act- except that there has been added thereto-authority given to the committee to désignate the total expenditure .which may be made by the new school district for the balance of the school year after March first, and another provision relative to the liability of a disorganized school district for any debts bf any district of which it may become a part. ■ The remaining subsections of 72-5607, as amended,- are-practically the same as' those contained in the original enactment and do not pertain to standards.
Several changes were made in amended section 72-5608. The original section read: “When any committee has prepared its written plans and charts for reorganization, it shall fix dates and places for hearings . . .” The amended section reads: “When any committee has considered and determined the various factors as provided in subsection (1) of section 72-5607 of the General Statutes Supplement of 1945, or any amendments thereto, and has prepared its written plans and charts for reorganization, based on such study, it shall fix dates and placesofor hearings . . .” We note that the change only admonishes the committee to consider and determine the various factors provided in subsection (1) which includes “any factors concerning adequate school facilities for the pupils.” The other changes in section 72-5608 are not significant in our search for standards.
Section 6 of the amended act again provides, in much the same' manner as original section 72-5609 that the committee shall adopt the proposed reorganization plans as the final reorganization plans and shall formulate and adopt such orders as may be necessary to “(1) Properly organize, reorganize, disorganize, number or renumber the school districts or territory affected in conformity with its adopted plans; . . .” No limitations or restrictions whatever appear in amended section 72-5609 relative to what kind of plans the various committees shall adopt.
Amended section 72-5610 again refers to rehearings as did the original act. The section provides that “The committee may change, modify or set aside its order.” But nothing is stated in the section which provides the basis upon which the committee may make such changes and we find 'nothing in the subsequent amended sections of the act which provides such a basis. The only provision in the nature of a limitation upon the power of a committee which we find in the amended act which was not in the original act is that herein-before set forth reading: “Each school district shall have at least ten pupils.” But -such definite standard was made indefinite by the subsequent provision in subsection (8) of the same section which reads:
“The provisions of this section which require each school district to have at least ten pupils shall ■ not apply to any case where the county committee' shall find and determine, by reason of geographical isolation or transportation difficulties, it is impracticable to reorganize a district in such a manner that it will have such number of pupils, nor to any case where the county committee shall find and determine, by reason of sparsity of population, the formation or reorganization of a school district in such a manner would make it of such extreme size or area as to work an undue hardship upon the pupils and patrons thereof: Provided, That no such district shall be included in any final order unless the same has been approved by the state board of education.”
Nothing is said in the act as to what may constitute geographical isolation, transportation difficulties, sparsity of population or extreme size. Decision upon all such factors is left to the discretion of the committee but the indefiniteness incident to the section last quoted is not the principal difficulty involved. Even if we assume that the act is sufficiently definite in its provisions pertaining to when a school district, which does not have at least ten pupils, may be organized, we are still unable to find any definite basis upon which the committee must or must not organize school districts having therein more than ten pupils or less than ten pupils. It is true that the amended act also has restrictions prohibiting the attachment of rural territory to a city school district having within its boundaries a city having a population of more than 15,000, and other restrictions, unless a majority of the qualified electors residing in such rural territory consent in writing thereto. It is also true that the committee is restrained in the reorganization of a school district against placing any territory in another school district if such territory at the time is situated within the boundaries of a school district in which is located a city of the first or second class. But in all other instances the county committee is given unlimited power to organize, reorganize and disorganize the school districts of the county “into a convenient number of districts as practicable.” In other words, the legislature has delegated to the committee the duty of determining what is practicable in the organization of school districts without fixing any standards which must be followed by the committee in making such determination. Such a duty involves the exercise of legislative power. We cannot find that the legislature, by the amendments, has cured the fundamental defect in the statutes. Again, we must observe that the legislature’s authority is restrained by the constitution and that legislative power definitely assigned by the constitution to the legislature or to certain constitutional officers cannot be surrendered or delegated by that department to any commission. The express provisions in the constitution, by implication, deny to the legislature the power, to delegate to any other branch or agency of government unlimited legislative power to reorganize school districts. The sections of the 1945 act which were repealed, amended and reenacted as corresponding sections in House bill 376 by the 1947 legislature, therefore, also are invalid because they constitute an improper delegation of legislative power in violation of section 1 of article 2 of the constitution.
In addition to repealing and amending certain sections of the 1945 act, the 1947 legislature enacted, as a part of House bill 376, certain additional sections pertaining to the reorganization of schools. The first entirely new section requiring consideration appears as section 13 of House bill 376. Such section provides, in substance, that if the voters of a proposed reorganized district shall for any reason fail, neglect or refuse to elect a board or if such elected board shall fail to qualify, the county superintendent shall appoint three persons to serve as a school district board and that should the county superintendent be unable to find three persons willing to serve on such board, he shall “with the advice and consent of the county reorganization committee” attach the proposed reorganized district to some adjacent district. There is nothing in section 13 which refers to standards or that gives the county superintendent power independent of the consent of the committee.
Section 14 of the 1947 act (House bill 376) may set forth standards which a court might consider as sufficiently definite. But unfortunately we do not reach for decision the question whether the restrictions and limitations contained in section 14 are sufficiently definite to constitute standards or a constitutional plan within which school districts may be organized. The section reads:
“It shall be the right and privilege of any group of residents within a reorganized district to make a proposal for a new school district to be formed out of territory wholly within said reorganized district by filing with the county superintendent . . .” (Emphasis supplied.)
It is useless to extend the opinion further by quoting the remainder of the section. The powers therein conferred and the possible standards which may be therein set forth cannot be exercised or followed unless a school district first has been reorganized. Unquestionably, the legislature contemplated that the reorganized districts referred to would or could be reorganized by the county committees. This court is holding that such county committees do not have constitutional power to reorganize school districts. Consequently, there is no proper basis for the exercise of the rights and privileges conferred upon a group of residents under the provisions of section 14. As before stated, the powers and duties vested in the state superintendent of public instruction and possibly in the county superintendents by the provisions of the act are contingent upon the county committees’ failure to act. Thus, there is a definite condition precedent to the exercise of power by either of the constitutional officers. It is clear that it was the intention of the legislature that such officers should have no power to reorganize the school districts unless the committees fail to act. It must follow that since the committees cannot act because they are unconstitutionally constituted, there remains no basis for action on the part of the constitutional officers. As a result, it cannot be said that the legislature contemplated that the provisions of section 14 would become operative when a school district was reorganized by the state superintendent of instruction or by a county superintendent even in the event the creation of county committees would be declared to be unconstitutional.
8. The foregoing brings us to consideration of the remaining provisions of the 1947 act. Section 15 simply provides that the act shall become inoperative on March 15,1950. Section 16 reads as follows:
“If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.”
The question is presented: Can any provisions or applications of the act be given effect without the provisions or application which the court has declared to be invalid? In the opinion of the court they cannot. Surely, the legislature anticipated that the county committees should have power to reorganize school districts. The court holds to the contrary. The substance of the entire act is founded upon the assumption that the county committees may function. Since they cannot, the court, is of the opinion that the entire act must be declared unconstitutional.
In conclusion, it should be observed that there is no sound theory of constitutional law which sustains a contention that no general standards whatever are necessary when the subject of administration requires consideration of varying complex elements. And there is no sound theory to the effect that educational problems need not be determined in compliance with constitutional restraints against the unlawful delegation of powers merely because of the intricacy of their details. The constitutional principles involved exceed in magnitude the importance of any one case. If a legislature can delegate its legislative duty to establish schools to a committee of its creation, then a precedent is also created which might permit the delegation of all legislative powers. The principles transcend the present problem and challenge the fundamental concepts of constitutional government in the future. The constitution can be amended or repealed by the people but the foundation of government should never be altered by a court so that the base, upon which all must be built, may conform to a court’s desire or a legislature’s design.
The court is refraining intentionally from giving consideration in this case to certain validating acts passed by the 1947 legislature designated as House bill No. 407 and House bill No. 447 because their validity was not questioned under the issues in the case, and neither counsel for the plaintiff nor for the defendants have submitted briefs upon the question. The acts were referred to in a supplemental brief filed by counsel, amicus curiae, but it would be highly improper for the court to pass upon questions which were not within the issues and consequently not briefed by counsel for all parties.
The school reorganization act of 1945, being G. S. 1945 Supp. 72-5601 to 72-5623, inclusive, and House bill No. 376, enacted by the 1947 legislature, are unconstitutional.
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The opinion of the court was delivered by
Parker, J.
This lawsuit presents another' chapter of the disputatious family affairs of the descendants of Frank Zenger who died in Washington county in 1916 leaving a small farm to his widow and six surviving children. The plaintiff is one of his daughters and the guardian of his namesake, and youngest son, an incompetent person. The defendant, August Zenger, is next to the youngest son, and lived on the farm in the family home with the mother and Frank, the incompetent, until the mother’s death in 1939. He continued to live there with such incompetent until 1942 when the latter was taken from the home by other members of the family.'
The action, consolidated with another in which a bank and an insurance company were included as parties — which we are informed has since been dismissed by the trial court at plaintiff’s cost — Ras had previous consideration by this court. See Wharton v. Zenger, 162 Kan. 69, 174 P. 2d 103. Reference is made to the opinion in that case for a more complete and detailed factual statement of what was then and is now the subject of controversy between the parties.
So far as they pertain to the issues presently involved, the pleadings can be briefly summarized.
Plaintiff’s petition, after reciting facts wliich authorize her to bring the action on behalf of Frank Zenger, charges that since 1936 the defendant had appropriated to himself certain property of her ward consisting of the proceeds of a life-insurance policy, the proceeds from the sale of horses and mules, farm crops and other property, and had not accounted for them. It further charges that the defendant, on all dates in question, was trustee for Frank Zenger and in violation of his trust had secretly obtained such property and its proceeds without the lawful consent of any one authorized to speak for that individual. It then alleges that defendant’s acts were not discovered until the year of 1944, states that the action is brought for the purpose of ascertaining the value of the property wrongfully taken, and pr'ays for an accounting and for judgment for the amount found to be due for such property.
To the petition the defendant filed a lengthy answer the details of which, except for certain allegations presently to be mentioned, appear in the opinion of Wharton v. Zenger, supra, and need not be here repeated.
One of the defenses set forth in the defendant’s answer, barely mentioned in the opinion of the case to which we have referred because not there involved, is that the matters on which plaintiff bases her right to the relief sought by her had be'en fully settled in a previous action between the parties. In connection with that defense the answer contains the following allegations:
“5. On or about February 26, 1944, said Martha Wharton, individually and as guardian of the person and estate of Frank Zenger, an incompetent person, commenced an action against Walter Zenger, August Zenger, et al., in the District Court of Washington County, Kansas, Case No. 11,658, and prayed for a partition of certain real estate and for an accounting from said August Zenger. Said August Zenger filed an answer in said action and pleadings were filed by the other defendants in said action. Thereafter on or about April 13, 1944, the parties in said action, including the plaintiff herein and this defendant, reached an agreement with respect to the matters in dispute, and on May 3, 1944, the District Court of Washington County, Kansas, entered its judgment in said action which is in part as follows:
“ ‘It Is Further Found and Determined by the court, that all matters in controversy herein under the pleadings as between and among the parties hereto relating to rents and profits or other personal claims have been fully settled, adjusted and satisfied and no relief on account thereof is proper or should be granted in this action.
“ ‘It Is Therefore Now Ordered, Adjudged and Decreed by the court, that all of the matters and things hereinbefore recited and set' forth, should be and hereby are, made permanent matters of record as binding upon all and everyone of the parties hereto; . .'
“The cause of action alleged in plaintiff’s petition was in existence at the time of the aforesaid action and is a personal claim such as was determined by the court in said action to be fully settled, adjusted and satisfied. The matters alleged in plaintiff’s petition are now res judicata.
“6. A copy of the pertinent pleadings, orders, judgment and decree, and other proceedings in Case No. 11,668 in the District Court of Washington County, Kansas, wherein Martha Wharton, et ah, were plaintiffs and Walter Zenger, et ah, were defendants is hereto attached, marked ‘Exhibit B,’ and made a part hereof as though fully set out herein.”
Following our décision in Wharton v. Zenger, supra, the plaintiff filed a reply where at great length and in much detail she attempted to meet the numerous defenses set forth in. the defendant’s answer. For reasons which will soon become obvious we are now concerned only with recitals having to do with the defense of res judicata. On that issue the following allegations appear in such pleadings:
“7. Plaintiff admits that Exhibit ‘B’ attached to the Amended Answer and Cross Petition of August Zenger correctly sets forth the proceedings had and the things done and adjudicated in case No. 11,658, but that such suit did not involve nor determine any of the insurance matters involved in this controversy, but such suit did adjudicate all the other claims made herein by August Zenger.
“11. In said case No. 11,658 it was determined that August Zenger’s right as such tenant should terminate on March 1, 1944, and that such real estate should be sold subject to his tenancy, under authority of court up to March 1st, 1945. It was also adjudicated in such suit that all matters in controversy therein, and all controversies as to rents and profits and personal claims growing out of the ownership, use and occupancy of such real estate were determined, and which included all claims by August Zenger, for care and keep of the said Frank Zenger and of his horses, and also all other expenditures made on Frank’s behalf by the said August Zenger.'
“16. When the defendant August Zenger filed his answer in said case No. 11,658, he reasserted his claim then pending in the Probate Court of Washington County, Kansas, in the matter of the estate of Bertha Zenger, deceased, a copy of which claim was attached to the petition filed in such suit. By such claim said August Zenger asserted a contract' with Bertha Zenger whereby he was to provide a home and ordinary care for her and the said Frank Zenger and which claim was still pending in the probate court. In such claim said August Zenger sought the recovery of $1,965.00 for such care and support, and because of the said Bertha Zenger’s breach of contract in respect thereto.
“17. In April, 1944, a settlement of such claim, along with the controversies involved in case No. 11,658 was agreed upon as between the parties to such suit and a full settlement made thereof, whereby said August Zenger received full satisfaction for said claims and it was adjudicated and determined that he had no further claim or claims by reason thereof. For a valuable consideration there has heretofore been a full compromise, settlement and adjudication of any and all claims that the said August Zenger ever has had for the care of Frank Zenger.”
After joining issues on questions pertaining to res judicata the plaintiff filed a motion for a determination of questions of law in advance of a trial on the facts. In this motion she asked the trial court to determine whether there had been any previous adjudication barring her from maintaining the action or precluding the defendant from recovering on the claims made by him in his answer against the incompetent. On its consideration the trial court found that the judgment in a previous action, case No. 11,658 of the district court of Washington county, was res judicata of the controversy between the parties and that by reason thereof the plaintiff was barred from maintaining the present action. Thereupon, pursuant to the defendant’s motion, judgment was rendered in favor of defendant and against plaintiff for costs. The appeal is from such judgment.'
’ From the foregoing factual statement it is apparent the rights of the parties on appellate review must stand or fall on the force and effect to be given the judgment rendered in the partition action and found by the trial court to preclude appellant’s recovery. A decision of that question depends not only upon an examination of the judgment itself, but the record on which it is based.
We turn now to the record in such action for the purpose of ascertaining the issues there involved. In our opinion its examination discloses the following situation: The plaintiff here was a party plaintiff there. She brought the action on behalf of her ward against a number of defendants, including August Zenger. In her petition she asked for partition of certain real estate in which the ward had an interest and which he, along with August, had occupied as a family home for many years. She also demanded an accounting from August for rents and profits and such other relief as might be equitable. August filed an answer claiming an interest in the real estate and otherwise expanding the issues with respect to the accounting phase of the action to the extent it can be said that he asked for a general accounting and settlement between all parties who had or claimed to have an interest in the land. In such pleading he expressly stated there were no legal offsets or claims on the part of any one as against the rights and interest asserted by him thereto, he offered to do equity between the parties, and he asked that he have and recover such equitable relief as was consistent with its allegations. Thereafter, the parties treated the action as one in partition and for a general accounting. They entered into a stipula-' tion for judgment which made provision for partition of the land among, its respective owners, including August, and expressly provided “that all matters in controversy between the parties hereto, as set forth in their pleadings, have been fully settled. . . .” Subsequently, judgment was rendered pursuant to such stipulation. That judgment recites the cause came on for trial uppn the issues as made by the pleadings and stipulation, it finds “that all matters in controversy herein under the pleadings as between and among the parties hereto relating to rents and profits or other personal claims have been fully settled, adjusted and satisfied and no relief or account thereof is proper or should be granted in this action,” and it holds “that all of the matters and things hereinbefore recited and set forth, should be and hereby are, made permanent matters of record as binding upon all and every [one] of the parties hereto . . .” No appeal has ever been taken from the judgment as rendered.
Our interpretation of what is shown by the record to have been involved in the partition action compels the conclusion that the judgment rendered therein on May 3, 1944, must be regarded as having conclusively settled all controversial claims existing between the parties thereto on that date.
This court has always held that where a court has jurisdiction of the subject matter of an action and has jurisdiction of all the parties thereto, its orders and judgments as to all matters involved therein are final and conclusive unless corrected or modified on appeal, and that such matters cannot again be litigated by the parties to that action, or their privies, in the same court or any other court of concurrent jurisdiction upon either the same or a different cause of action (Rennolds v. Guthrie, 103 Kan. 829, 177 Pac. 359; Cross v. Hodges, 124 Kan. 672, 261 Pac. 585; Lodge v. Order of United Commercial Travelers, 125 Kan. 26, 262 Pac. 598).
Likewise in its elaboration of the same principle it has repeatedly held that with all' parties in a court having jurisdiction of the issues involved in an action the doctrine of res judicata not only prevents the relitigation of identical facts and questions a second time but bars the litigation of all matters in a subsequent action which might and should have been determined in the first one (Stimec v. Verderber, 152 Kan. 582, 106 P. 2d 708; Kearny County Bank v. Nunn, 156 Kan. 563, 134 P. 2d 635; Boyles v. Emery 159 Kan. 300, 153 P. 2d 936; In re Estate of Bourke, 159 Kan. 553, 559, 156 P. 2d 501).
Since appellant’s cause of action is predicated entirely upon claims in existence on May 3,1944, it was res judicata under and by virtue of the judgment of record in the partition action. It necessarily follows the trial court’s action in holding the appellant was barred from maintaining her suit and in rendéring judgment in favor of appellee and against appellant for costs must be upheld.
In reaching the conclusion just announced we have not failed to give consideration to appellant’s contention the pleadings in the action held to be res judicata did not specifically refer to or mention the claim for proceeds of the insurance policy now alleged to have been wrongfully appropriated by appellee. So what? That claim was in .existence on the date of the judgment and we have decided it was one of the items involved in the accounting conclusively settled and determined by its terms.
In Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906, we held:
. “Upon a plea of former adjudication a matter will be held res judicata, although not raised as an issue by the pleadings in the former action, if from the record it appears that it formed one of the premises upon which the judgment necessarily rested.” (Syl. ¶[ 2.)
. The legal principle announced in the foregoing decision is well supported by the authorities. It is quoted with approval on page 849 of the opinion in McNergney v. Harrison, 148 Kan. 843, 84 P. 2d 944.
Statements to the same effect are to be found in 30 Am. Jur. 929, § 183, and 50 C. J. S. 209, § 723.
See, also, 2 Black on Judgments (2 ed) 934, § 614, where it is said:
“The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated and tried' — that the parties have had an adequate opportunity to say and prove all that they can in relation to it, . . .” (p. 936.)
And Lee v. Kingsbury, 13 Tex. 68, 62 Am. Dec. 546, holding:
“It is not necessary to the conclusiveness of a former judgment, that issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment.” (Syl. ¶1.)
Neither have we ignored appellant’s argument the court was without jurisdiction to render judgment in the- partition action with respect to claims August Zenger may have had against her ward because under provisions of the probate code (G. S. 1945 Supp. 59-2267) they could only be prosecuted in the probate court. Our code of civil procedure (G. S. 1935, 60-2114) expressly,provides that in a partition action the district court has power to make any order, not inconsistent with provisions of the statute governing partition actions, that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests. Our decisions hold that in administering the provisions of such section of the code the trial court has the same powers as were exercised by chancery courts under equity practice, including full power to settle all questions involved on just and equitable principles. (Johnson v. Burns, 160 Kan. 104, 159 P. 2d 812; Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844; Young v. Young, 148 Kan. 876, 84 P. 2d 916; Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763; Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074; Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096.) We have never held that in an action instituted by a guardian for a ward involving partition and an accounting there is anything to be found in the probate code which deprives the district court of the powers conferred upon it by the code of civil procedure.
In passing, we feel impelled to direct attention to one matter not heretofore mentioned -which,' in our opinion; supports and fortifies our conclusion as'to the disposition of this appeal. By reference to portions of appellant’s reply, heretofore quoted, it will be noted that notwithstanding she asserts none of -her ward’s claims weré there determined she avers — and in fact throughout the entire appeal has argued — there was a complete accounting and determination of all of appellee’s claims in the partition action. The least that can be said for her position is that it is inconsistent. To us it definitely indicates there is sound basis for the trial court’s conclusions, as well as our own, that the claims sfie now asserts inhered in the first judgment.
The judgment of the trial court is affirmed.
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The opinion 'of the court was delivered by
Wedell, J.
The defendants, Homer R. Mosley and Frank Schultz, were charged jointly with maintaining a common nuisance in violation of G. S. 1935, 21-2130, which provides:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances; and 'every person who maintains or assists in maintaining such common nuisance shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months, for each offense.”
Both defendants were convicted and have appealed. The appeal is only from the final judgment. The only specification of error is:
“The verdict of the jury is not sustained by the evidence in this case.”
Appellants filed no motion to discharge them on the ground now alleged as error. They permitted the jury to pass on their innocence or guilt. They made no objection to the instructions given and make none now. The jury returned a verdict of guilty.
The specification of error is a ground for a new trial under the criminal code. (G. S. 1935, 62-1603 [Fifth].) It appears some motion for a new trial was filed and overruled. The motion is not abstracted. Its grounds are not stated. We are therefore not advised whether the complaint now made was included in that motion. Furthermore, there is no contention now that the trial court erred in overruling that motion. Thereafter judgment was rendered on the verdict.
It repeatedly has been held an objection to a judgment of the district court that it is not supported by the evidence cannot be considered or sustained by the supreme court, unless a motion for a new trial founded on that ground has been made and overruled by the district court. (McNally v. Keplinger, 37 Kan. 556, 15 Pac. 534; Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 33, 69 P. 2d 1; Robinson v. Davis, 162 Kan. 44, 46, 174 P. 2d 111, and cases therein cited.) That rule, of course, does not apply where there is an appeal from a previous ruling on a demurrer to the evidence which raises the same question. Here there was no such previous ruling.
G. S. 1935, 62-1605, provides:
“A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a verdict of guilty or finding of the court, and may be granted by the court for either of the following causes: First, that the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; second, that the facts stated do not constitute a public offense." (Our italics.)
The record here also fails to disclose the point now urged was raised on a motion in arrest of judgment. There is no contention such a motion was filed and, if it was, there is no contention it' was improperly overruled.
On behalf of appellants it is argued they are merely presenting a question of law on this appeal. We are not unmindful of the fact that it ordinarily is neither necessary nor proper to file a motion for a new trial in order to obtain a ruling on a pure question of law previously presented and that a ruling on a demurrer to evidence or on a motion tantamount to a demurrer to evidence is an appeal-able order. The difficulty in the instant appeal is that the record fails completely to show the trial court was ever requested, in any manner, to pass on the point urged on appeal. Had the point been presented and ruled at some stage of the proceedings a timely appeal from the final judgment would probably render the ruling open to review on appeal under the present statute of the civil code. (G. S. 1945 Supp. 60-3314a; Arnall v. Union Central Life Ins. Co., 157 Kan. 535, 142 P. 2d 838.) Assuming, without. deciding, the statute is applicable to criminal cases, it manifestly was not intended to permit a reversal of a judgment on a question of law never presented to the trial court.
State v. Bell, 121 Kan. 866, 869, 250 Pac. 281, was a felony case where the state overlooked the matter of proving venue. Counsel for defendant interposed no objections, or none sufficiently clear for the trial court to discern the point. This court said:
“. . . the rule has frequently been announced by this court and should be applied here, that whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court, he must raise that point in such clear and simple language that the trial court can understand it, and if his point is so obscurely hinted at that the trial court quite excusably may.fail to grasp it, it will avail naught to disturb the judgment on appeal.” (p. 869.)
To the same effect are State v. Cary, 124 Kan. 219, 257 Pac. 719; State v. Morris, 124 Kan. 505, 260 Pac. 629; State v. Woodman, 127 Kan. 166, 168, 272 Pac. 132; State v. Pyle, 143 Kan. 772, 782, 57 P. 2d 93; State v. Zeilinger, 147 Kan. 707, 78 P. 2d 845; State v. Owen, 161 Kan. 361, 168 P. 2d 917.
It is -well to be mindful of the results which might follow in other criminal cases if a judgment of conviction may be reversed by this court on the point here involved when it was never presented to the trial court. A materially different situation arises, for example, where a clearly erroneous instruction is given to the jury in a criminal case. In that. situation a reversal with directions to grant a new trial does not release the defendant. But here appellants do not want a new trial. What they want is a judgment of acquittal from this court. If appellants should be correct in their contention they would, of course, be entitled to an absolute and immediate release. The trial court would have no opportunity to rule on the sufficiency of the evidence and the state would be deprived of all opportunity to supplement its evidence, if additional evidence was necessary and available. The criminal code was not intended to be thus circumvented. It was designed to afford full opportunity for the assertion of every right before the trial court and to have its rulings reviewed in this court to the end that justice, and not injustice, should prevail. We think appellants have waived their right to be heard on the question presented.
Having reached the foregoing conclusion it manifestly would be improper to discuss the evidence. In passing we may, however, say an examination of the record convinces us, that if a review of the record were proper, we would be obliged to affirm the judgment.
The appeal is dismissed.
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The opinion of the court was delivered by
Smith, J.
This was a criminal prosecution. The information was in three counts. The first charged defendant with stealing a check drawn upon The Central National Bank of Junction City, Kan., against the account of the Martin K. Eby Construction Company and payable to Ira L. Wheeler in the sum of $75.68; in the second count he was charged with forgery in that he endorsed the name of Ira Wheeler, the p&yee, on the back of the check; and in the third count he was charged with obtaining property under false pretenses by means of the check. The defendant was convicted on the second and third counts. He has appealed.
At the trial the defendant moved to quash the information because it was <(duplicitous”. on the ground that the three counts concerned only one check. The first count was dismissed at that time. The trial proceeded as to the second and third counts. At the end of the trial the defendant filed a motion for a new trial on ten grounds. This motion was overruled. The application of the defendant for parole was denied and the defendant duly sentenced to the Kansas State Industrial Reformatory.
The defendant argues his motion to quash should have been sustained because the information in the first count charged the defendant with stealing the check; and in the third count with using the same check for obtaining money under false pretenses. The trouble about that argument, in the first place, is that just as the trial was about to start the state dismissed the information as to the first count, leaving counts 2 and 3, upon which the defendant was tried. Furthermore, duplicity in an information is generally defined as the joinder of separate and distinct offenses in one and the same count. That is not the case here. Forging the name of the payee on the back of the check was one distinct offense in violation of a particular statute. The commission of that offense could be proved by competent evidence bearing on that question. Obtaining property under false pretenses by means of the check was a separate and distinct offense, a violation of a different statute, and must be established by evidence which might' not of necessity be competent as to the offense charged in the other count. Under such circumstances such offenses may be charged in the same information but in different counts. (See 42 C. J. S. 1112; 27 Am. Jur. 683; State v. Emory, 116 Kan. 381, 226 Pac. 754; State v. Harris, 103 Kan. 347, 175 Pac. 153.)
Defendant next argues that the trial court erred in refusing to permit his counsel to cross-examine a handwriting expert before the expert testified as to a comparison between some admitted writing of the defendant and the writing that appeared on the back of the' check, and that the court erred in connection with the testimony of this expert in permitting the witness to use some enlarged photographs of handwriting for the purpose of demonstrating his evidence to the jury and to testify otherwise than by means of questions and answers. We have examined the testimony of the expert in the record and, outside of a matter we shall notice presently having to do with the manner in which specimens of handwriting for purposes of comparison were obtained, can find no error in connection with it.
In State v. Ryno, 68 Kan. 348, 74 Pac. 1114, we approved the use of a blackboard by a handwriting expert to make his testimony more clearly understood by the jury. (See, also, Ort v. Fowler, 31 Kan. 478, 2 Pac. 580.)
The above are the main points argued by counsel for the defendant and were they the only points in the case we would have no difficulty in affirming the judgment.
On his motion for a new trial, however, the fifth ground thereof was that the court admitted illegal testimony into the record over the objection of the defendant, and the seventh ground was that the courtf committed an error by refusing to permit the attorney for the defendant to examine the chief of police and the sheriff before an alleged statement or confession of the defendant was read to the jury. ■
The defendant calls our attention in his brief to the fact that he was only seventeen years old at the time of his trial; that he was locked in jail and held until late that night without being permitted to talk with his parents or a lawyer but was confronted with the chief of police and others; that they claimed he made a written confession, which he claimed was not a confession and was not made freely and voluntarily and without promise or threats or coercion, and that he was caused to sign his name on blank pieces.of paper without being advised that these specimens of writing would be used against him when the handwriting expert was asked to testify as to the defendant’s admitted handwriting and the handwriting on the back of the check.
No extended argument is made on these points in the brief of appellant; neither is the abstract furnished us by the appellant and the state adequate to enable us to pass upon them. Defendant was, however, only seventeen years old at the time the events referred to transpired, and we have out of an abundance of caution sent for and examined the transcript of the proceedings.
The state proved that defendant brought the check in question into a jewelry store; that he said he was the person who was named payee; that he signed the name of the payee on the back thereof and received some merchandise and some cash in exchange therefor. The state also introduced testimony to prove that defendant was not the payee, and that the signature written on the back of the check by defendant was not his own. The merchant at whose store the check was cashed testified that he saw the defendant at the police station shortly after he was arrested; that the defendant asked that he-be turned loose so that he could earn money and pay for the check. The merchant then testified that while he was there defendant signed his name to a statement admitting that he had written the'endorsement on the check. Counsel for the state then offered this statement in evidence. At this time counsel for the defendant objected to the offer on the ground that before the confession was admitted he desired to interrogate the witness who was being asked to identify it.
Counsel for defendant insisted that he did not have to prove that the confession was made as the result of coercion; he argued that the state had the burden of proving that it was not the result of coercion or threats. On the request of counsel for defendant, the trial court excused the jury. Thereupon there was an extended argument and colloquy -between counsel for both sides and the court as to the admissibility of this writing. Counsel for defendant insisted that the paper showed on its face that it was not in the words of defendant; that defendant had just told him that he had signed several pieces of paper in the office of the chief of police but none had any writing on them. Counsel for defendant argued to the trial court that before a confession may be admissible it must be in the words of the accused; the accused must have been advised of his constitutional rights and the burden was on the state to show that it was freely and voluntarily made without coercion, threats or promises.
The county attorney then made a statement as follows:
“If it please the court, I can well understand counsel’s objection to the introduction of a statement signed by the defendant, of this nature, and he has the full right to show any mitigating circumstances, he has the right to show that that statement is the result of browbeating, the water method, or anything else, and he can do ■ anything within the limits of the law to prove that this statement is not the thought or the word or the deed of this defendant, but he has to make that proof.”
Counsel for defendant then said:
“I don’t have to prove it, and I say the burden of proof is on you and not on me to show that it was freely and voluntarily done.”
With the record about as above, the trial court indicated it would overrule the objection and admit the writing. Whereupon counsel for the defendant offered to show by witnesses that the offered writing was not a declaration' against interest or the confession of the accused. The trial court advised counsel that his offer would be accepted when defendant was putting on his case.. The jury was thereupon called in and the witness was permitted to identify the paper.
The trial court overruled the objection and admitted the confession. This writing was as follows:
“Junction City, Kansas “July 9, 1945
“On May 29, 1945, I, Harry Seward, Jr., age 17, 1417 North Jackson St. this city, did take, steal and carry away from the office of Martin K. Eby Construction Co. C. R. T. C. one check, number 9599, amount $75.68, made payable to Ira L. Wheeler, and endorsed and cashed same at Clint’s Jewelry Store, 903 North Washington St. Junction City, Kansas, the same day.
“I make this statement of my own free will without threat or promise.
“Harry Seward
“Witnesses “B. M. Wolf “Clinton R. Swan”
The witness was permitted to testify that he did not see this statement prepared; that it was signed in his presence while he was there and he signed it as a witness, while on cross-examination he was permitted to testify that he saw the defendant have the statement in his hand but he did not read it aloud.
The chief of police was permitted to testify that he arrested defendant and took him first to the jewelry store so that the clerk with whom he had done business could identify him; that the defendant admitted taking the check and wanted to make a settlement with Mr. Swan, the merchant; that witness had his secretary write the statement which has already been referred to; that he took it and showed it to defendant, and the witness was asked whether any threats were made by him against defendant before the defendant signed the confession. Obj ection of defendant to this question was sustained. Finally after some colloquy the witness was permitted to testify that the defendant wanted to get out of it and go to work for Mr. Swan but that he told the defendant that since Mr. Swan had signed a complaint it would “have to be gone through with.”
The sheriff testified that while defendant was in the office of the chief of police he caused him to write his name a number of times upon slips of paper. These slips were identified as State’s Exhibit “E” through the letter “K.” They were offered and over the objection of defendant that the proper foundation had not been laid, and they would not tend to prove any issue in the case, they were received. The sheriff further testified that he caused the defendant to make these specimens of handwriting at the direction of the county attorney. On cross-examination by the defendant he stated he could not remember whether he told thé defendant these specimens would be used against him. The handwriting expert later used these specimens in his testimony as a means of comparing the handwriting of the defendant with that which appeared on the check when he testified that the endorsement on the back of the check was in the handwriting of defendant.
The defendant’s mother testified that she did not know her son was in jail until she came home from work; that she was denied permission to see him at first but after calling upon the county attorney she was given permission to see him in jail late that night after he had signed the purported confession.
The defendant denied that he signed any confession but he did say he wrote his name on several pieces' of paper. He said, on the witness stand, that it was his name on the confession but when he wrote it there he did not sign any paper that had any writing on it.
The court gave no instruction whatever to the circumstances or the manner in which the jury was to consider the purported confession. The county attorney argued to the jury that the defend ant had signed a confession in the presence of the chief of police and Mr. Swan. There is no question but that defendant was in his seventeenth year at the time of his arrest.
The peculiar circumstances surrounding the making of the so-called confession were called to the attention of the trial court at the time it was first offered. Here we have a seventeen-year-old boy taken to police headquarters and without his being advised of his constitutional rights — that he did not have to talk and that whatever he said would be used against him — and without the advice of counsel and without being advised that he had a right to counsel he was caused to sign a writing which, if it is to be believed, was a virtual plea of guilty.
Counsel for the state argued that the trial court ruled on the objection to the introduction "of the confession as though the defendant had the burden of proving that the confession was not freely and voluntarily made without threats or coercion. That is not the correct rule, however. The burden was on the state to prove that it was freely and voluntarily made without threats or coercion.
In Vernon v. State, 239 Ala. 593, 196 So. 96, the court said:
“Extrajudicial confessions of guilt by an accused on trial for crime are prima facie involuntary, and the burden rests upon the state to overcome this prima facie infirmity by evidence satisfactory to the court trying the case that the confession was voluntarily made, before such confession can be received in evidence.” (p. 599.)
As to the admissibility of evidence as to a confession the court said in Johnson v. State (1941), 242 Ala. 278, 5 So. 2d 632, 635:
“Prima facie, confessions are involuntary, and there must be evidence addressed to the trial judge rebutting that presumption, and showing prima facie that the confession was voluntarily made, unless of course the circumstances attending the confession discloses their voluntary character.” (p. 281.)
In The People v. Ickes (1939), 370 Ill. 486, 19 N. E. 2d 373, it is said:
“For a confession to be received in evidence the burden is upon the people to show that it is voluntary.” (p. 490.)
In Louisiana as pointed out by the court in State v. Henry (1940), 196 La. 217, 198 So. 910, in determining whether the confession was voluntary, the Louisiana code requires that before what purports to be a confession can be introduced in evidence it must be affirmatively shown that it was free and voluntary.
In Lubinski v. State, 180 Md. 1, 22 A. 2d 455, the supreme court of Maryland found the state had sustained the burden of proof as to the confession being voluntary and that the trial court had not erred in the admission. The law as to the burden of proof is stated thus:
“ ‘Where the confession, of the commission of a crime is sought to be offered in evidence, the burden is upon the state to show that the confession so offered was the voluntary act of the accused.’ ” (p. 7.)
And headnote three of Demby v. State (1946, Md.) 48 A. 2d 586, reads:
“The burden of proof is upon the state to show that any confession is freely and voluntarily made, and is not obtained by threats or inducements.”
To the same effectt is headnote one of Taylor v. State (1946, Md.) 49 A. 2d 787, which reads:
“The burden 'is upon state of proving that a confession is fairly and voluntarily made, and not obtained by force, threats, or inducement.”
Syllabus, paragraph thirteen, of State v. Thomas, 250 Mo. 189, 157 S. W. 330, states the law thus:
“The burden is upon the state, in a preliminary examination before the court, to prove that a confession, made and signed by defendant after- his arrest, was secured without the use of threats or violence or the promises of reward or leniency and those words include such prolonged questions or importunities as render the confession involuntary.”
And on page 210 of the opinion we find the following reasons for the above rule of law:
“As to whether a confession is presumed to be voluntary when signed and sworn to by defendant is a matter upon which the authorities are not in harmony. .2 Wharton’s Criminal Evidence (10 Ed.), sec. 622 k; 12 Cyc. 480; State v. Jones, 171 Mo. 401; State v. Armstrong, 203 Mo. 554; but as a party while under arrest is not bound to make any statement regarding his guilt or innocence, even though he be directly accused (State v. Foley, 144 Mo. 600), and as it is a well-known fact that most persons would rather be free and out of jail than under arrest and confined, we think it is only a matter of common sense to assume that a man under arrest would not voluntarily admit his guilt and thereby insure the prolongation of his incarceration without he is encouraged to do so by hope of securing leniency, or to secure relief from physical or mental torture. For these reasons we hold that when it appears that a confession was made and signed by a defendant after his arrest, the burden is upon the state in the preliminary examination before the court to prove that such confession was secured without the use of threats or violence or the promise of reward or leniency.”
This case involved the prosecution of a seventeen-year-old Negro boy for murder in the first degree.
A confession is inadmissible unless accused was advised of his rights under the law and it is shown the confession was made voluntarily. Mr. Chief Justice Whitfield speaking for the court in Daniels, et al., v. State, 57 Fla. 1, 48 So. 747, said:
“Where a person is on trial for a crime, evidence of a confession of guilt of the crime previously made by such person is in general not admissible unless it appears that the confession was entirely voluntary. If such confession is made while the party is under arrest or charged with the crime, evidence of the confession is not admissible on the trial unless it is made to clearly appear that the party was fully advised of his rights and that after being so advised the confession of guilt was freely and voluntarily made under circumstances that afforded no undue influence in procuring the confession.” (p. 4.)
On the other hand, it is said the effect of absence of counsel does not render a confession inadmissible (2 Wharton’s Criminal Evidence, 11th ed., p. 1051, § 628; 20 Am. Jur. 434, § 503), but the fact accused was without counsel when he made a confession is material as showing it was involuntary (20 Am. Jur. 435, § 503).
In State v. Oberst, 127 Kan. 412, 273 Pac. 490, the defendant had been permitted to plead guilty to murder without the advice of counsel. Later, on advice of counsel, he asked permission to withdraw his plea and enter a plea of not guilty. This motion was denied. This court in an opinion containing an extended review of the authorities reversed the trial court. In the opinion we emphasized the fact that the defendant was a seventeen-year-old boy. It is true that in that case the defendant had pleaded guilty without the advice of counsel, while in this case the .question with which we are concerned is the admissibility of a purported confession. The confession here, though, was a virtual plea of guilty. We regard the Oberst case as being highly persuásive on the point we are considering.
The question of whether the confession had been freely and voluntarily made without force or coercion being used, and without promises, should have been in the first instance considered by the trial court in the absence of the jury and before it was offered to the jury. Then if the trial court had been convinced that it was admissible it could have been given the jury under proper instructions.
Even had the court in this case on conflicting evidence admitted the confession, the jury should have been instructed that it should, along with the other evidence, consider it on the question of the guilt or innocence of the defendant. (See Bruner v. People, 113 Colo. 194, 156 P. 2d 111.) In State v. Curtis, 93 Kan. 743, 145 Pac. 858, we said:
“If the jury were bound to believe the evidence of the confession in its entirety, or reject it altogether, the instruction would be easily sustained, but they were not. It is elementary that' jurors are exclusive judges of facts, whether established by evidence of a confession or otherwise. It might be said that there is no good reason for accepting a part of the confession as true and rejecting another part, but that was for the jury to determine. It frequently happens that the statement of a witness, although relating only to a single matter, is believed in part and disbelieved in part, for reasons inherent in the narration or appearing in collateral circumstances, some of the testimony being given ready credence, and some as readily rejected. It is the right of the jury to believe or disbelieve a witness in whole or in part. Not only is the weight of the testimony of any witness for the jury, as they are usually told in the instructions, but the weight of every part is equally for their determination.” (p. 750.)
In State v. Hayes, 106 Kan. 253, 187 Pac. 675, we held a written confession admissible. The opinion is interesting, however, because of what was said in it as to the manner in which the trial court should deal with proffered confessions. We said:
“Of course, if the confession was involuntary or extorted through hopes or fears held out to her by the officers, it was not receivable in evidence. The admissibility of the confession is a question for the court in the first instance, but if it is held to be voluntary and admissible, the weight and credibility of the evidence are to be determined by the jury. In this respect the function of the judge is somewhat like that exercised when he is called upon to determine the admissibility of a dying declaration. There the court must decide as a preliminary question whether the declaration was made under a sense of impending dissolution, but after the evidence is admitted, its credibility is entirely within the province of the jury. (The State v. Reed, 53 Kan. 767, 37 Pac. 174.) The jury may not reject a confession as evidence, but it is to be taken into consideration with the other evidence in the case, and the jury is at liberty to repudiate any part of the confession which they do not believe. (12 Cyc. 482; 2 Wigmore on Evidence, § 1451; 16 C. J., § 2287.) As to the voluntary character of the confession, there was a direct conflict in the testimony of the defendant and that produced by the state. This conflict is to be determined like any other question of fact, and the finding by the court that it was voluntary puts that question at rest. The finding, of course, is open to review, but as the court had a much better opportunity to ascertain the truth than the reviewing court can have, its conclusion, supported as it was by competent evidence, cannot be disturbed.” (p. 255.)
Had the above procedure been followed here the trial court would first have heard in the absence of the jury witnesses as to whether the purported confession was freely and voluntarily made without force or coercion. Had the court found such to be the case the confession would have been admitted and the jury instructed that it should give whatever weight on the question of the guilt of the defendant it deemed the confession entitled to, along with the other evidence in the case. The trial court here admitted the confession without at that time considering the question of whether it was freely and voluntarily made without the use of force or coercion, and failed altogether to instruct the jury as to the manner in which a confession should be considered in its deliberations. This was error.
There is another question in this case which requires our attention since the caséis to be retried. This defendant was only seventeen years old, he was taken to the police station where he was questioned by the chief of police and the sheriff. He was not given the benefit of counsel nor were his parents advised of his whereabouts. At this time his confession was obtained. As a part of this interrogation and examination he was caused by the sheriff to write his name several times at the direction of the county attorney. These specimens of his handwriting were used by the handwriting expert who testified at the trial. On cross-examination when asked the direct question of whether any one advised the defendant that any statement he made or any writing he made would be used against him, the sheriff answered that he could not remember. This under the circumstances is tantamount to an admission that nothing of the sort was told to defendant. Certainly it falls far short of direct proof that any such statement was made. We have concluded that in view of the age of the defendant, the fact that he was held and questioned without his family being informed, and that he was not advised of his right to counsel, and that these specimens of his handwriting might be used against him all rendered these specimens inadmissible and it was error for the trial court to permit their introduction and to permit the handwriting expert to use them in his testimony.
The judgment of the trial court is reversed with directions to grant the defendant a new trial in accordance with the views expressed herein.
Hogh, J., not participating.
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The opinion of the court was delivered by
Thiele, J.
In the above entitled cause, on December 7, 1946, an opinion on rehearing, affirming the judgment of the trial court, a concurring opinion and three dissenting opinions were filed. (162 Kan. 133, 175 P. 2d 133.)
For what seemed to be sufficient reasons, a second rehearing was granted and additional briefs have been filed and the cause has been reargued.
Upon consideration of that rehearing the justices adhere to their respective views as expressed in the foregoing opinions.
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The opinion of the court was delivered by
Harvey, C. J.
This was a workmen’s compensation case. The claimants are the widow and minor children of the workman, M. A. McMillin. It was stipulated the workman died February 28, 1946; that on February 5, 1946, he was employed by the respondent; that the parties were governed by the workmen’s compensation act; that the Maryland Casualty Company is the insurance carrier; ■ that claim for compensation was made within the time provided by law; that the claimants were wholly dependent upon the workman, and ' if they are entitled to recover anything they are entitled to recover the maximum benefits under the law#; that no compensation, medical benefits or funeral expenses have been paid by respondent, and that certain items .of that character have been paid by the claimants, the amount of which was stipulated. It was further stipulated that the questions in issue were; (1) Whether the required notice of accident was given respondent, and if not, whether respondent was prejudiced by the failure to give such notice; (2) whether the workman met with personal injury arising out of and in the course of his employment, as alleged in the claim; and (3) if so, whether his death resulted from such accident. The trial court found the controverted issues in favor of claimants and made an award in accord therewith. The respondent and insurance carrier have appealed.
The record discloses that McMillin did not give notice to his employer of his accidental injury, relied upon by the claimants, within ten days, as required by G. S. 1935, 44-520. However, the statute contains this proviso:
“That want of notice or any defect therein shall 'not be a bar unless the employer prove that he has been prejudiced thereby.”
Early in the hearing before the commissioner, counsel for respondents recognized that the burden was upon them to prove prejudice if they relied as a defense upon lack of notice of the accident. They offered no evidence of consequence on that point. It was not further referred to in the hearing before the commissioner nor in the district court, and respondents in this court make no contention that the plaintiffs are barred for the lack of such notice. The point needs no further discussion.
In this court appellants contend that the record contains no substantial, competent evidence to prove (a) that decedent experienced an accident; (b) that he suffered personal injury as a result of the alleged accident; or (c) that his death resulted from the alleged accidental personal injury. These contentions present questions of law as distinct from questions of fact, which this court may pass upon. (G. S. 1935, 44-556.) In doing so the court does not weigh the evidence. That was the function of the trial court. This court examines the record only to determine whether there was substantial, competent evidence to support the findings of the trial court upon these points, and in doing so considers the evidence favorable to the holding of the trial court, disregarding that which tends to the contrary. (See Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402, where the earlier cases are cited.)
Since much of the same evidence pertains to the question of whether plaintiff sustained an accident and' sustained personal injury as a result of the accident we will consider those questions together, and the evidence relating thereto may be summarized as follows: Mark A. McMillin had been' an employee of the city of Salina, in the service division. of its water department, for about twenty years. Luther Jordan had been employed in the same service about twenty-seven years. The two worked alone or together, as. the work required. Miss Lois Todd was in charge of the office and kept the service records of the men in the service division. Prior to December, 1945, McMillin had consulted a physician for no illness more serious than a cold and had not lost a day of work because 'of illness.
On December- 26, 1945, he laid off work because he was not feeling well and consulted Doctor Schaefer, a reputable physician in the general practice at Salina. The doctor testified:
“At that time he complained of indefinite chest pains, indefinite abdominal pains; he was very nervous, irritable, had a slight cough, and he felt tired, weak, and unable to work.”
The patient thought he had heart trouble of some character. The doctor gave him a fairly complete general physical examination, but made no definite diagnosis. Due to his cough the doctor thought he had a little cold, and since he could find no growth or organic trouble he put him under observation and watched him. This continued until January 11, 1946, when the doctor had him go to the hospital for further study, including X rays. This was done because the patient “was not making any progress, or doing any better.” On January 14 the doctor testified that—
“. . . due to his indefinite chest symptoms we got an X ray of his chest. Due to his indefinite gastro-intestinal symptoms, we had a barium meal on his gastro-intestinal system. Examination of the X-ray plate at that time leads to the belief that there was not anything seriously or organically wrong in that chest. Definitely not, as far as the lung parenchyma itself was concerned. I mean there was not any evidence of residual trouble as we find sometimes from a chronic cold abscess, or fluid, or particularly enlarged peribronchial lymph glands, anything like that. In fact, we didn’t think there was anything wrong with that chest. The barium meal of his stomach at that time left us in doubt whether some defect he had at the pylorus was a true ulcer, or whether it might be a spastic deformity due to a spastic condition, of his general condition, which might cause a spastic condition of his pylorus. He had a lot of symptoms suspicious of an ulcer, but he was highly nervous, very irritable, and consequently it was in doubt; but we felt even so that if he did have an ulcer it certainly was not giving him excessive irritability, nervousness, indefinite chest pain, aches, that he was complaining of. We kept him in the hospital until the 17th of January, at which time we sent him home on a smooth diet, antispasmodics, and some sedatives. He went home, and seemed to do better for awhile. He seemed to improve. He seemed to feel better. He ate better, although he objected to that type of a diet. We watched him along until about the first of February. At that time he was in again. We checked him over. His general condition was apparently good. His hemoglobin was 90 per cent. His red count was five mil lion. We gave him a little more to eat, but there was still something indefinite about the man that we couldn’t exactly put our fingers on.”
Mrs. McMillin prepared the diet outlined by Doctor Schaefer, which' included milk, eggnog, cereals and vegetables, with six feedings a day. McMillin rested about home, ate. heartily, slept well, and by about February 1 he had gained eight pounds. Most of his pain had ceased, he was feeling much better, and was anxious to get'back to work. He and his wife saw Doctor Schaefer and by reason of his improvement the doctor told him it might be beneficial for him to do some work, but to continue his diet and to rest as much as possible.'
On February 4 McMillin returned to work. Jordan saw him that day and was asked:
“ ‘Did he seem to be in good spirits, or felling pretty good as far as you noticed?’ He answered: ‘He didn’t seem quite like he was; nothing so out of the way with him.’ ”
When he came home that evening he told his wife he felt fine. He ate a good supper, as was his custom since he had been on the diet, and apparently had a good night’s sleep. He was feeling well the next morning, ate a hearty breakfast and went to his work. At the office he was given a card to “turn-on” the water at meter box No. 519 on W. Prescott street. The card was later returned with his initials, indicating he had performed the work. Shortly before ten o’clock that morning he went home and from the door called his wife and asked her to bring him clean overalls. She went to the door and saw that his overalls were wet and muddy. They were torn at both knees. When he went to work that morning they were clean and not torn. She asked him what had happened and he said:
“He had slipped getting a reading, and he wanted to change his clothes— getting a reading on this meter. And 'I asked him if he hurt himself, because he was looking bad and feeling bad, he said he didn’t know, but his arm hurt awful bad. . . . He was very pale, and he looked as though he had aged ten years,”
Later in the morning she asked him about it and “He said it was a meter box.” At another time he said, “I must have hit this shoulder when I slipped in the meter box.” An adult daughter, Mrs. Robinson, was present and heard a part of the conversation between Mr. and Mrs. McMillin and testified: “He says he fell in a manhole, the meter box.” She noticed that her father was pale and weak, that he seemed to have no enthusiasm, which was different than she had always known him.
He rested awhile and went back to work. He' came home at noon. Mrs. McMillin testified:
“He just looked like a sick man, very sick, and couldn’t stand up straight. He didn’t want his meal, but he ate part of it. And he was complaining of his shoulder then at noon, hurting him awful bad.”
He ate but little of his lunch and lay down on his bed until one o’clock, a thing he had never been known to do before. He then went back to his work, but returned about four o’clock, very tired' and complaining of pain in his arm and of some pain in his chest.' He lay down for awhile, but got up and ate a very little and retired about six o’clock in the evening, his usual retiring time being nine o’clock or later. His wife telephoned the doctor and related his condition and said something about his having had a fall. The doctor prescribed for him over the telephone. The next morning when he got up he was still weary and weak, ate but little breakfast, then went to his work. He told his fellow-workman. Jordan that he didn’t know whether he could make it, and Jordan volunteered to do the outside work that day. Miss Lois Todd saw him in the office about noontime and testified:
“He looked as though he could hardly stand up, and he took hold of the counter and, said he didn’t believe he would be able to make it, and one eye was drooped quite a little, it hadn’t been before, one eyelid.”
He went home to lunch, but ate very little and lay down again until one o’clock. His chest pains were getting worse and the pain in arm and shoulder continued. His wife wanted him to stay at home and' rest, but he said there was so much to do in the basement that he thought he should go back to work; that he could sit down and help out. About two o’clock he told Jordan that he could not stand it any longer and asked Jordan to take him home. Jordan was asked:
“ ‘What did you observe about his actions there that afternoon when he left work?’ He answered: ‘He just said he couldn’t make it, his chest was hurting him awful bad, and he was just weaving toward me, and he said he wanted me to take him home.’ ”
Jordan took him home and he went to bed. He looked bad and was coughing, and said: -“Just let me rest.”
Later in the evening he drank a glass of milk, and ate a little which his wife took to him while he was in bed. She called the doctor and told him her husband was not getting any better and what had happened. The doctor said he would check through the Xray again, and about an hour later he called and said “there was nothing wrong there, nothing wrong with his chest, not that he could see.” After that McMillin was confined to his bed except to go to the bathroom. He took all his meals in bed, which consisted of a glass of milk, some Jell-O, or crackers, or eggnog, never a full meal. The doctor saw him on the evening of February 9.
“He prescribed some more tablets, but Mark was coughing real hard and spit up blood. The Doctor still thought it was a cold.”
His condition grew gradually worse.
Luther Jordan, called as a witness for claimants, testified that he had worked for the city water department for 27 years as a service man and was well acquainted with M. A. McMillin; that sometimes the two worked together and sometimes alone; that he was familiar with the meter box at 519 W. Prescott street and described it as being situated in the parking and to consist of a meter pit about 3% feet deep, 18 inches in diameter, constructed of tile, on the bottom of which was the meter, which is about three inches in diameter; that in turning on the water it is necessary to start the meter and read it and perhaps to clean it; that to do so it would be necessary to take the screws off the small meter box, which is 34 inches below the surface of the ground, and also off the bottom of it, which is 37 inches below the surface, and to clean out the meter box and start the meter; that in doing so a workman would have to get both arms and his head and shoulders in the meter pit and after he had finished his work in there to put one hand near the bottom, push himself up as far as he could and get the other hand out to the surface and pull himself out of the meter pit, and that sometimes a workman slipped in doing so. Counsel for respondents was objecting to this evidence and counsel for claimants explained that since there was no eyewitness to what occurred they were attempting to prove what the facts wére by the circumstances and by what was necessary to be done. Answering a question the witness testified to the fact that McMillin, when he was out on a job, generally got it done, and the following occurred:
Counsel for respondents: “Object to the answer and ask it be stricken. Nobody denies he was working.”
Counsel for claimants: “If you admit he was on duty at the time we allege — ”
Counsel for respondents: “I will admit that. I will not dispute it. I don’t think there is any use arguing about it.”
We think the evidence above set out shows there was an abun dance of substantial, competent evidence, to support the findings of the trial court to the effect that McMillin, on February 5, 1946, sustained an accident arising out of and in the course of his employment and that he suffered personal injuries as a result of such accident.
Appellants contend that there is no competent evidence that Mc-Millin died as a result of such accident and injuries. In their brief they regard this question as the “crux of this case.” In addition to the evidence previously stated the evidence bearing upon this point may be summarized as follows: The evening of February 6 Mrs. McMillin called "Doctor Schaefer and told him what had happened, that McMillin had slipped getting a reading and that he had pains in his arm and in his shoulder and that “his chest was hurting pretty bad. I thought he hurt himself pretty bad, ... he was coughing pretty hard, too.” The doctor said, “No, it was just a cold.” He sent out some tablets and told Mrs. McMillin to put heat on his chest, a hot water bottle or dry heat, and to rub his arm and shoulder with alcohol, which she did. The next morning McMillin was stooped over and pale and complained particularly of chest pains, which were getting worse. The next day Mrs. Mc-Millin called the doctor and said McMillin was not getting better. The doctor said he would check into the X ray again and see if he could find anything, and later the same day he called and said he had done so, and said “there was nothing there, nothing wrong with his chest, not that he could see.” The doctor called upon the patient the evening of February 9 and “thought he probably was catching more cold in his chest, because he had more cough and more of these indefinite chest pains and discomforts which we were indefinite about.” The doctor then changed the medicine. “He prescribed some more tablets, but Mark was coughing real hard and spit up blood. The doctor still thought it was a cold.” The cough was worse when he sat up. This treatment continued, with some variations, with the patient showing no improvement, but gradually getting weaker. Mrs. McMillin took his temperature every day at four o’clock and found it substantially normal.
Earl Crawford, an employee of respondent, went to see McMillin about the middle of February and observed that he was downhearted, nervous, rather pale, and had lost weight. At that time he complained of pain in his chest. On February 21 Doctor Schaefer saw McMillin and examined his chest with a fluoroscope.
“Then.we found a mass in the chest corresponding to the level of the aortic arch, and we made diagnosis of either aneurysm or possibly malignancy of the mediastinum. . . . So in order to be a little more positive about it we again sent him to the hospital for an X ray, which is more detailed of course than a fluoroscope examination. And he went to the hospital on either the 25th or 26th of February, at which time- we had an X ray of the chest and we felt then on examining this X ray he had definitely, had an aneurysm of the arch of the aorta, so he remained in the hospital. This was the 25th; . . . he w^s under observation again and I felt ... if this was an aneurysm our hands were tied and there was not anything we could do.”
The doctor had made no definite diagnosis of McMillin’s trouble until after the examination of the Xray taken February 25. He advised Mrs. McMillin the result of this examination. “He said he was severely ill, nothing he could do for him.”
An aneurysm was described by the doctor as a “bulge” in the aorta, which indicated a deterioration or partial break of the muscular wall of the aorta, and illustrated it by comparing it to a bulge that might be produced in the inner tube of an automobile tire which was inflated and the wall of the tube had a weak spot which the air pushed out to form a bulge. .Doctor Schaefer had a test for syphilis made by the state board of health, which showed negative. McMillin died suddenly the morning of February 28. Doctor Schaefer had left town. There was no post-mortem examination. The certificate of death recited that death resulted from a bursted aneurysm of the aorta, the basic cause being syphilis. Doctor Schaefer did-not sign the death certificate and had never seen it. He said the basic cause of the aneurysm had been forming for a long time, that the aneurysm such as was disclosed by the Xray eventually would result in death, if there were no intervening cause of death, in one of two ways — the bulge would ultimately burst, or a blood clot would form in it which would pass into the blood stream as. an embolus to the brain, lungs or heart, resulting in death. Which way the death occurred in this case could not be determined since there was no post-mortem.
Doctor Schaefer was asked a' hypothetical question embodying the substance of much of the testimony given, including that of the witness Jordan, as to the work McMillin did on February 5, including a description of the witness. Jordan as to how that would have to be performed, and was asked to give his opinion as to whether that could have aggravated McMillin’s previous condition so as to hasten his death on February 28, and replied: “I think that would be reasonably possible, ... in other' words, exertion, he could have aggravated the condition.” Other portions of his testimony were to the same effect. He was asked if he could tell how much that might have hastened McMillin’s death. He said, “No. Except the two Xrays”; that is, the one taken of the chest on January 14, which did not show the aneurysm, although the basic cause of it was no doubt present, and the one taken on February 25, which showed the aneurysm. Doctor Schaefer made no pretense of being an expert on aneurysms; a doctor in this country sees so few of them. His testimony pertaining to them was given from the pathology. ■
Doctor Brungard, a regularly licensed physician and surgeon engaged in the practice of medicine in Salina for more than thirty years, called as a witness for claimants, testified he was the physician for M. A. McMillin’s parents for about thirty years and for M. A. McMillin and his family since his marriage until March or April, 1945, and was positive that there was no evidence of syphilis in any member of the family, and that up to March, 1945, there was nothing wrong with the heart or circulatory system of M. A. Mc-Millin. He gave it as his judgment that an aneurysm in the aorta may be caused in a normal person, free from disease, purely by heavy strain or extreme exertion. He was handed the picture of the Xray taken January 14 and stated that it showed the chest was normal for a man of his age, that the picture suggested nothing that would tend to show that the person would not live a normal life for many years thereafter. He examined the picture of the X ray taken February 25 and stated it showed a bulge in the aorta not far from where it comes out of the heart. It was an exaggerated, enlarged bulge. Comparing the two pictures he stated he would not have expected to find the aneurysm shown in the later picture in the normal life of a man whose chest showed the earlier picture.
“The aneurysm is caused to show that way by exertion ordinarily. . . . It is a strain that is the exciting cause of these things irrespective of what your primary cause is. . . . It is a weakness there, and 'that weakness (snapping fingers) comes into place whenever you have that exertion.”
He illustrated this by comparing it to an automobile tire which, though weak, could be used safely at twenty miles per hour, but which would blow out at seventy miles- per hour.
“Q. In your opinion then, if a man would have an aneurysm and he had an unusual strain it would be at least aggravated? A. It’s liable to blow out, yes. ...
“Q. If he hadn’t had this accident, or a similar accident, would not he have lived a normal span of life? A. I think so. . . .
“Q. You stated that an extreme exertion or shock or exercise, would cause an aneurysm, or aggravate it? A. I will say exciting cause, yes. Aggravate, yes¡ that’s right; exciting cause. . . .
“Q. If a man has severe or extreme exertion or strain, does that cause extra strain on the aorta? A. It is bound to cause it on the aorta, because of the mechanics of the thing, because the first artery off of the heart is the aorta, and the blood is pumped into the aorta by the ventricles, the two lower chambers, and of course in exertion there, you just push it up. The first one, that catches. That is the first artery, the largest artery in the body, and it comes out of the heart. . ,,
“Q. If a man has a fall on his chest, or a thrust, would that tend to aggravate a condition of aneurysm? A. It could. Not as much as that other, I think. A fall, anything like that, if you get to the thing, to hurt it, if you fall on the chest, and hurt the ribs, usually you ordinarily don’t get deep enough, but it is the strain, the contraction, the contraction of the ventricles that pushes that thing up there and that is the first thing that catches it.”
He was asked if a person was likely to have pain immediately or later and stated:
“I think that varies. I am not expert enough to state' that. It is the nerve that causes the pain. It is not the artery.”
He expressed the opinion that there might be more than one cause for the weakness of the walls of the blood vessels. He testified that if blood were taken from a patient and examined by the Kahn and Comer test and showed negative, “You haven’t got syphilis”; that the Wasserman test was not quite so accurate. A sound artery is not likely to develop an aneurysm from an ordinary strain. Asked a series of questions which brought out some of the principal points of the testimony pertaining to McMillin’s injury and the method of doing the work, as testified to by Jordan, he was asked:
“Could that cause an aneurysm or aggravate preexisting aneurysm? A. It could aggravate it. I don’t know whether that would be just the cause of it.”
The exertion and the mental strain would cause the heart to beat faster, to pump fast, and the brunt of that first would be on the aorta. Usually an aneurysm, or the condition which is likely to produce it, gets progressively worse. The best treatment for it is absolute rest. The coughing and spitting up of blood from the lungs could have come from a leakage of the aorta. Examining pictures of the X rays.the doctor stated it was his opinion that it would have to be a heavy strain at some time between the dates these X rays were taken for the bulge in the aorta to have de veloped. The X ray would not show a weakness of the wall, but it would show an enlargement. The developing aneurysm could have caused the coughing.
While the medical witnesses who testified disclaimed being ex•perts on aneurysms, their testimony, as it applied to the facts disclosed by the evidence, was in harmony with the leading medical authorities upon the subject. In Sajous’s Analytic Cyclopedia of Practical Medicine (10th Rev. Ed. Yol. 1, pp. 650 to 670) the subject is treated by Babcock. We quote or summarize a few statements from this: Aneurysm of the aorta represents the cause of mortality in one-tenth to five-tenths percent of deaths in American cities. He quotes an author who, studying 4,000 reported cases, found pain to be the first and chief complaint in 29 percent; it was felt either in the chest, one of the shoulders or in the back. In the other cases the pain developed later from pressure upon nerves.
“Aneurisms result from conditions weakening the arterial wall and increasing the blood-pressure. The Anglo-Saxon race is most frequently affected; the English more than the American, a condition attributed to the greater consumption of alcohol in England. . . •. It is three times as prevalent in' the American negro as in the white race. Aneurysm is most frequent between the ages of 30 and 50, a period when degenerative changes in the arteries are especially found in those engaged in laborious physical work.” (McMillin was 46 years old at the time of his death.)
Men are affected about ten times as frequently as women. This is attributed to the more laborious occupations of men and their greater tendency to dissipation.
“Soldiers, sailors, athletes, cab drivers, furnace men, and others engaged in violent, but intermittent exercise are especially predisposed to aneurism. It is eleven times more frequent in the English army than in the civilian, and is much more frequent in soldiers than in sailors, a condition attributed to the pressure and strain from poorly fitting clothing and heavy accoutrements. . . .
“Those conditions that produce a weakening of the arterial wall, . . . are important predisposing causes to aneurism. These include syphilis, alcoholism, rheumatism, gout, and the action of mineral poisons like lead.”
An author is quoted to the effect that arterial disease seems to be attributable to syphilis in about thirty-two percent and to tuberculosis in about sixteen percent of the cases.' Another writer obtained a history of syphilis in seventy-seven percent of thirty-four cases of aortic aneurism at the Helsingfors Hospital since 1900. Other diseases are noted as factors. Some cases are congenital. The rupture of an aneurysm may be immediately fatal, or the patient may live for days where there is repeated or continuous leakage. Recovery is rare after the rupture of an aneurysm of one of the large arteries. There may be repeated moderate hemorrhages. Aneurysms tend to dilate progressively and finally to rupture, but may remain substantially stationary for many years. There is much more about diagnosis and treatment.
In “Diseases of the Heart and Aorta” by Hirschfelder there is a more extended article (pp. 631 to 673). The author notes that 59 percent of the aneurysms occur between the ages of 30 to 50 and that those of the-aorta 34 percent occur in the ascending aorta, 34.8 in the arch of the aorta, 17.4 percent in the descending aorta, and 13.8 percent in the abdominal aorta. Syphilis is noted as a cause of weakening of the arterial walls in a large percent of the cases (citing a number of medical writers on the subject) ¡with a percentage of cases shown by the respective study varying from 25 percent to 92. It was particularly noticeable in the cases where the patients were under 30 years of age. In the factors noted are alcohol, hard work, lead poisoning, tobacco, gout, nephritis, and especially the infectious diseases; and it is said:
“The sudden rise of blood-pressure which occurs during lifting and heavy strains is a particularly important predisposing factor, and the patient often notices that his first symptoms occurred at the time of a heavy muscular strain or began just afterwards.”
On page 637 it is said:
“A rupture is especially precipitated by high blood-pressure, such as occurs on exertion.”
In the taking of the evidence quite a little was said about trauma. Doctor Brungard made it clear that trauma, such as might be received from one falling, would not penetrate to the aorta so as to produce an aneurysm: He was asked if an aneurysm could be benefited or cured by a surgical operation and stated that some of them are operated upon in the large hospitals, but no one in this part of the country would undertake it. Those interested in aneurysms caused by trauma and operations upon them can get much information by .reading the following articles: By Penick in the October, 1943, number of “Surgical Clinics of North America”; by Wise in the December, 1943, issue of the same publication; by Greenwood in the December, 1944, issue of the “Texas State Journal of Medicine” ; by Ball in the April, 1945, issue of the same publication; by Dandy in the January, 1946, issue of “Archives of Surgery”; by Lilly in the April, 1946, issue of “Annals of Surgery,” and by Pratt in the June, 1946, issue of the “American Journal of Surgery.” (The medical works mentioned may be consulted or obtained from the medical department of our state library.)
We think the medical evidence fully sustained the finding of the trial court that the personal injuries sustained by McMillin in the course of his employment on February 5,1946, aggravated his existing condition, which resulted in his death on February 28.
From the facts disclosed by the evidence all we know of the existence of the aneurysm was that disclosed by' the X ray of February 25. Perhaps the same result would be reached if that Xray had never been taken. As disclosed by the evidence it may be summarized as follows: Here wa-s a workman who had worked steadily for many years at hard labor, during which time he had enjoyed normally good health. In December, 1945, he developed a cough, with indefinite pains in his chest and abdomen. His idea was' that he had something wrong with his heart. He consulted a reputable physician who, because of his cough and chest pains, treated him for a cold. That treatment was not helpful. An X ray was taken of his chest, which showed a normal condition for a man of his age; also an X ray was taken of his stomach, which showed a defect at the'pylorus, indicating an ulcer. An appropriate treatment for that •condition was followed and under this treatment the patient improved rapidly. In less than three weeks his cough and pains had ceased and he had made a substantial gain in weight. Though not fully recovered, he felt like going to work and did so under the doctor’s permission. On the second day he worked he sustained personal injuries by accident, sufficiently severe that within thirty hours he was completely incapacitated, was forced to take to his bed, where he grew progressively worse until his death about three weeks later. These are things nonmedical witnesses could testify to, and did.
The only legal question submitted to the court in this case was whether there was substantial, competent evidence to sustain the judgment'of the trial court in making the award for compensation. That question must be answered in the affirmative.
The judgment of the court below is affirmed.
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Per Curiam:
The judgments in the above cases are hereby affirmed upon the authority of State, ex rel., v. Hines, ante, p. 300, 182 P. 2d 865, decided June 27, 1947.
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The opinion of the court was delivered by
Smith, J.
This is an original petition for a writ of habeas corpus wherein petitioner asks that he be discharged from confinement in the penitentiary at Lansing, Kansas.
This petition was originally filed in the district court of Leavenworth county. It was heard there and a writ denied. Petitioner attempted to appeal but the appeal was not perfected in time and his motion that his appeal be considered as an original application in this court was granted. On motion of the petitioner an attorney was appointed to present the cause to this court. He has submitted a brief and abstract on petitioner’s behalf. The application as presented by counsel presents three grounds: First, that the district court convicted petitioner upon repugnant and, therefore, void in-formations and that the sentences were, therefore, void; that he was deprived of due process of law and that he was placed in double jeopardy in contravention of section 10 of the bill of rights.and that the court was without jurisdiction to pronounce the sentences; second/ that the pleas of guilty were not binding upon the petitioner because they, were obtained by means of threats and coercion by the county. officials; third, that the alleged pleas of guilty were not binding ;upon petitioner because they were not substantiated by-afiy other evidence. Respondent, thé warden of the State Penitentiary at Lansing, in his return denied all of the allegations of the petition and said that the petitioner was legally confined in the state penitentiary by virtue o.f a valid judgment and sentence under date of November 25, 1936, whereby the petitioner was committed in two separate cases, each charging him with statutory rape and incest, which sentence had not expired at .the time the return was filed.
True copies of the informations, journal entries and commitments were attached to the return. .
Two informations were filed against the petitioner, each in two counts. The first information charged petitioner with statutory rape on the 15th day of April, 1935, upon one Rosa Wiebe,. she being an unmarried female person under the age of eighteen years. The second count charged petitioner and Rosa Wiebe with incest, she being his daughter.
The journal entry for this case shows that the cause came on to be heard on November 25, 1936; that the state was represented by the county attorney and the defendant was present in person and by his counsel, C. C. Wilson; that he was duly arraigned, waived a jury trial and entered a plea of guilty to both counts of the information and announced he was ready' to receive the sentence of the court; that the court sentenced him to be confined at hard labor at' the state penitentiary for a period of not less than one year nor more than twenty-one years on the first count, and on the second count that he he confined at the same place for a period not exceeding seven years, and that the sentences on the two counts run consecutively.
The information in the second case was exactly like that in the first case except that the illicit acts were .charged to have been committed with Opal .Wiebe, who was also an unmarried female under the age of eighteen years and a daughter of petitioner. The sentence in the second case was identical with the one in the first case, but no reference was made' to the sentence in the first case.
The petitioner was sentenced on November 25,1936, and has been confined in the penitentiary since shortly thereafter.
We shall first consider the argument of counsel that the information in each case was void for the reason that each contained repugnant counts.
Counsel argues first that incest can be committed only by the concurrent consent of the man and woman; that in Kansas a female person cannot give consent if under the age of eighteen years — hence if petitioner committed statutory rape on his daughter he could not by the same act commit incest with her.
The court dealt with the general question in State v. Learned, 73 Kan. 328, 85 Pac. 293. In that case the defendant was charged together with his granddaughter with incest in six counts. The defendant filed his plea in bar to the first five counts of the information on the ground that he had been previously acquitted of statutory rape upon the same granddaughter and that the two informations referred to the same acts of intercourse. The state filed an answer admitting the previous acquittal, but alleging that the' two offenses charged were not the same either in law nor in fact and that the only matter involved in the previous prosecution was whether the defendant had intercourse with his granddaughter within the time provided by the statute of limitations. The trial court sustained the defendant’s demurrer to this answer and abated the action as to three of the counts and sustained his motion to quash the information as to the other three. The state reserved the question and appealed. The question raised was whether one act of intercourse could be the basis of two charges — statutory rape and incest — providing the other elements of each offense were present. The court said:
“The distinctive ingredient of the crime of incest is the relationship of the parties, while the distinctive ingredient of the crime of statutory rape is the youthfulness of the female. The evidence necessary to convict of incest would not be sufficient to convict of statutory rape, as there need be no evidence as to the age of the female. On the other hand, evidence that would convict of statutory rape would not suffice to convict of incest, as the relationship is wanting. Hence the crimes, although committed by the same act, are different crimes; and a prosecution for one is no bar to a prosecution for the other. (The State v. Patterson, 66 Kan. 447, 71 Pac. 860.)” (p. 331.)
Our statute on statutory rape is G. S. 1935, 21-424. It provides, in part, as follows:
“Every person who shall be convicted of rape by carnally and unlawfully knowing any female person under the age of eighteen years shall be punished by confinement and hard labor not less than one nor more than twenty one years . .
Our statute on incest is G. S. 1935, 21-906. It provides as follows:
“Persons within the degrees of consanguinity within which marriages are by law declared to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall upon conviction be punished by confinement and hard labor not exceeding seven years.”
In State v. Patterson, 66 Kan. 447, 71 Pac. 860, the defendant was charged with embezzlement while he was city clerk. On his trial he filed a plea in bar and alleged that he had previously been acquitted of forgery of the city’s records and that the two offenses were identical. The trial court overruled the plea. After conviction and on appeal this court made an exhaustive examination of, the subject of identity of offenses. In the course of the opinion it was said:
“The statute defining one crime punishes the falsification of records of business transactions; that is the substantive offense. The statute defining the other crime punishes the conversion of money; that is the substantive offense. Each statute relates to a separate criminal act. The issues to be tried in each case are not identical. Neither offense includes the other offense. In each case some act which constitutes an indispensable element of the crime is necessaiy, which is different from any act required by the other. All the evidence necessary to prove the receipt and conversion of money with intent to defraud would not establish the making of false entries with intent to defraud, and all the evidence necessaiy to prove the forging of entries of accounts would not prove the receipt and conversion of money.” (p. 452.)
In State v. Learned, supra, the defendant made the same argument petitioner makes here, namely that since an ingredient of the offense of incest was consent and since under our statutes a female under the age of eighteen could not give her consent to intercourse, then one could not be guilty of incest and statutory rape with the same female. The court first passed over the question of whether under our statute joint consent of both parties was necessary to constitute the crime of incest. The court then said:
“The inquiry then arises, Can a girl under the age of eighteen years consent to an act of sexual intercourse, with one within the degrees of relationship within which marriage is incestuous and void, and thus become guilty of' incest? If not, why not? There is no statutory provision or common-law rale to the contrary. Section 2016 of the General Statutes of 1901, commonly called the age-of-consent law, simply provides that ‘every person who shall be convicted of rape; either by carnally and unlawfully knowing any female under the age of eighteen years, or,’ etc. This does not disqualify the female under eighteen years from consenting, but provides, in effect, that her consent is no defense; that notwithstanding her consent the act, on the part of the man, constitutes the crime of rape. (The State v. Woods, 49 Kan. 237, 30 Pac. 520; The State v. White, 44 Kan. 514, 520, 25 Pac. 33.) We answer the question in the affirmative. A female under the age of eighteen years may be guilty of the crime of incest.” (p. 332.)
The case of State v. White, 44 Kan. 514, 25 Pac. 33, seems to have been the first prosecution for statutory rape after the statute was amended in 1887 by changing the age stated in the statute from ten years to eighteen. The author of the opinion did not like the change since the result, as he saw it, was to make rape out of a simple act of fornication when the female in the case was under eighteen. He pointed out when the law was first adopted the legislature believed a girl ten years old had capacity to give her consent to intercourse and did not have such capacity at an earlier age, but that in 1887 it would seem that the lawmakers believed the girls of Kansas at that time had no capacity to give any intelligent consent to sexual intercourse until they arrived at the age of eighteen years. This court said:
“In substance, however, the law-makers simply intended to punish any male person by imprisonment in the penitentiaiy at hard labor for a term not exceeding 21 years who might be; guilty of any kind of illicit sexual intercourse with any girl under 18 years of age whether she consented or not, and whatever might be the surrounding circumstances, and although the intercourse might be pure and simple fornication.” (p. 520.) -
From the earliest times in this state the age limit stated in the statute defining statutory rape has been spoken of as the “age of consent.”- Actually,, however,- the word “consent” does not appear in the statute. The real meaning of the statute is that whereas under some of the other statutes the -state must prove the use of force or promise of marriage, the use of a drug or some other element, in a prosecution for a violation (G. S. 1935, 21-424), all the state has to.prove is fornication and that the female was under eighteen. That construction gave us- the term “statutory rape.” The statute makes an. act rape which but for its peculiar provisions as-'to the age of the female would not be rape at all. To'hold as argued by the' petitioner here would be to give G. S. 1935, 21-424, a meaning not intended by the lawmakers and not given it by any court.
As to the practice of charging statutory rape and incest in two different counts of the same information, State v. Odle, 121 Kan. 284, 246 Pac. 1003, is analogous. There one count charged forcible rape and the other incest. After holding that this could be done this court said:
“It is largely a question of procedure, a matter of resting in the sound judicial discretion of the trial court, whether or not the rights of a defendant will be prejudiced by the trial of the several charges at one time. In the instant case, no showing is made that the defendant was prejudiced in- any manner by the joinder of the two- counts. In State v. Goodwin, 33 Kan. 538, 6 Pac. 899, it was held that two distinct and separate felonies — one, taking a female under the age of eighteen years for the purpose of prostitution, and the other, taking the same female for the purpose of concubinage — could be joined in one information in separate counts. (See, also, State v. Fisher, 37 Kan. 404, 15 Pac. 606; State v. Bussey, 58 Kan. 679, 50 Pac. 891; State v. Warner, 60 Kan. 94, 55 Pac. 342; State v. Bell, 107 Kan. 707, 193 Pac. 373; State v. John Handrub, 113 Kan. 12, 213 Pac. 827; State v. Saindon, 117 Kan. 122, 230 Pac. 301; State v. Hamilton, 119 Kan. 564, 240 Pac. 416; State v. Miner, 120 Kan. 187, 243 Pac. 318.)” (p. 286.)
To the same general effect is State v. Toelkes, 139 Kan. 682, 33 P. 2d 317.
We hold that the petitioner was rightly charged with statutory rape and incest in the same information. It will be remembered that two like informations were filed against petitioner except for the name of the female and a like sentence was passed on each information. No reference was made in either case to the sentence in the other. We are not called upon here to pass on the effect of these two sentences. That question may arise when petitioner has become entitled to his release by having served his sentence on either one or the other of the informations. Either- sentence was in the aggregate for twenty-eight years and petitioner has served only about eleven years.
We shall next consider petitioner’s second ground upon which he asks for his release. This is that the alleged pleas of guilty are not binding upon him because obtained by means of threats and coercion of the county officials and his fear of mob violence toward himself and his family. To support this construction petitioner has attached a lengthy affidavit by himself in which he states he was held in jail and refused counsel or an opportunity to talk with his family; that coercion was practiced on him and he did not realize- what was going on. Affidavits of the two daughters upon whom he is charged to have committed the offenses are furnished.. In the affidavits made in 1939, the two girls say their father was not guilty and that they were forced at the time of his trial to sign statements that he was guilty. These affidavits apparently were made to be used in a hearing for a parole. There is also an affidavit of petitioner’s wife that he was not guilty; that the girls were forced to sign the statements against their father.
On the other hand respondent has furnished affidavits of the county attorney and sheriff in office at the time of the prosecution. In these affidavits the affiants deny any coercion or mistreatment, and state that the information was furnished by the petitioner’s wife and the girls voluntarily. They state in addition that petitioner’s counsel, C. C. Wilson, since deceased, a reputable and capable attorney of Meade, was given access to him at all times. In addition, we have an excerpt from the testimony of petitioner himself offered at the trial in the district court of Leavenworth county. It is as follows:
“On direct examination, conducted by Petitioner’s counsel, Benj. F. Endres, defendant testified as follows:
“Q. And preliminary examination was waived? A. This counsel said we waive.
“Q. Mr. Wilson of Meade County appeared for you at the preliminary? A. Yes.
“On cross-examination of Petitioner by Leon W. Lundblade, Assistant Attorney General, defendant testified as follows with reference to threats of mob violence:
“Q. Well, Mr. Wiebe, you say the County Attorney and Sheriff came and talked to you about every day or several times, now how many times would you say they threatened you? A. Well, the chances are a half day two or three times.
“Q. Their threats didn’t scare you? A. Kept me very much on ends.
“Q Did that frighten you? A. No.
“Q. Now about this, about these mobs, what was it 3mu say they did to upset you? A. Threats, threatened my family to be mobbed.
“Q. Now why would your family be mobbed? Did you know? A. I questioned it, I did.”
It will be seen the above testimony falls short- of substantiating 'the claims of petitioner as to what happened. This particular question is a perplexing one in these habeas corpus cases. The petitioners are prone to make extravagant claims as to what happened at their trials. Quite often some of the witnesses are deceased, as is the case here with the lawyer who was counsel for petitioner when he pleaded guilty. It is difficult to believe that men elected to the responsible offices of county attorney and sheriff would be so anxious to send a fellow citizen to the penitentiary for a long time and that they would coerce two little girls into making a false statement of such a revolting crime against their father.
We have concluded that the affidavits furnished by petitioner do not substantiate his allegations as to coercion .at the time he pleaded guilty, so as to entitle him to be released.
The third ground upon which petitioner relies is that he should b.e released because there was no corroborative evidence as to his being guilty other than his plea of guilty. We have heretofore held that the taking of a plea of guilty without corroborat/ve .evidence was at most a nonjurisdictional trial error. It was not subject to corrections and review in habeas corpus. (See Hill v. Hudspeth, 161 Kan. 376, 168 P. 2d 922; Powers v. Hudspeth, 161 Kan. 777, 173 P. 2d 251; and Kneisley v. Hudspeth, 161 Kan. 772, 173 P. 2d 247.)
The writ is denied.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, C. J.
This is an original proceeding in mandamus. In the motion for the writ, filed July 29, 1946, it is alleged that plaintiff is a nonprofit, benevolent and charitable corporation organized and existing under the laws of this state, with its principal office in the city of Cleburne; that its charter was issued in 1895 and amended in 1939; that its purpose, as defined by its charter, is “to establish and maintain an Orphan Home under the care and supervision of said conference” (The Evangelical Lutheran Kansas Conference of the Evangelical Lutheran Augustana Synod of North America); that since its organization it has operated an orphan and receiving home and a home for neglected and dependent children and for children from broken homes in which one or both of the parents are unable or unwilling to provide a home for the children; that it is nonsectarian and has more children living in the home that are not Swedish Lutheran than from homes which profess that faith; that during the past school year there were 21 children at the home, of whom 14 were of common school age, one of .high-school age, and six below school age; that the number varies from time to time and there have been as many as 35 children living at the home; that plaintiff has undertaken the custody, control and support of the children, but only in exceptional cases has been appointed legal guardian of a child; that because of the control and support furnished the children it is responsible under the truancy act (G. S. 1935, 72-4801 et seq.) for compelling the children to attend school; that the cost of support of the children in the home, exclusive of their education, has been about $40 per child per month, of which it has received about one-half that sum from parents or others legally responsible for their support, or from county boards of social welfare from which dependent children were sent to the home; that the home does not provide for and has no funds with which to hire a public schoolteacher for the children, or to pay tuition for them in a public school district in which the home is situated; thr' defendant is the school district in which the home and a farm operated by the home are located; that plaintiff is a resident taxpayer within the district; that from 1927 to the school year of 1945-’46 defendant school district either hired an extra teacher at its own expense to teach the children at the home maintained by plaintiff, or has received the children' in the public school operated by the defendant school district, but that beginning with the school year of 1945-’46 defendant has re.fused to admit the children to the public school within that district, or to hire a teacher for them, or to pay tuition in another district, and that during the last school year the children attended school in the Cleburne grade school district, for which a tuition charge, of a stated sum has been made and for which defendant school district has become liable, but refuses to pay. It is further alleged that all of the children at the home of plaintiff are residents of defendant school district, as defined by G. S. 1945 Supp. 72-1046, and that it is the plain duty of defendant to.furnish tuition-free education to the children within the home operated by plaintiff in the school district. It is further alleged that plaintiff has’no adequate remedy at law. The prayer is for a writ commanding defendant to provide tuition-free education to school-age children in the home maintained by plaintiff in the district and for the payment of tuition this past school year.
Defendant in its answer admits the facts alleged by plaintiff, but denies the legal conclusions alleged by plaintiff, and specifically alleges that plaintiff is not a “person” within the meaning of G. S. 1945 Supp. 72-1046. It further alleges the action is not brought for and on behalf of any specific child or children, but is brought for and on behalf of plaintiff. It is further alleged that defendant is a small school district, with an assessed valuation of approximately $300,000, and that it is financially unable to provide school facilities for the children residing with plaintiff; that plaintiff contributes but little through-taxes for the support of the school'and that none of the children of the plaintiff is a bona fide, actual resident of the defendant school district. It is further alleged that there is no provision under G. S. 1935, 39-331, for the education of the children of plaintiff’s home. The prayer is that the writ be denied.
We turn now to the legal questions argued. Counsel for plaintiff properly point out that under our constitution (art. 6, sec. 2), it is the duty of the legislature to establish “a uniform system of common schools.” In Board of Education v. Dick, 70 Kan. 434, 78 Pac. 812, it was held the term “common schools” as used in our constitution “means free common schools.” It is around this concept that most of our statutes pertaining to schools have been enacted. (See State v. Smith, 155 Kan. 588, 595, 127 P. 2d 518.) Our statute (G. S. 1945 Supp. 72-1107), without stating details not here important, provides that any child from six to eighteen years of age is “eligible to attend the elementary grades in the school district of his residence”; and G. S. 1935, 72-4801, provides “That every parent, guardian or other person in the state of Kansas, having control over' or charge of- any child who has reached the age of seven years and is under the age of sixteen years, shall require such child to attend continuously a public school or a private, denominational or parochial school taught by a competent instructor, . . .” This is one of-the sections of our statutes pertaining to truancy. There is no controversy here about the .constitutional provision or the statutes above cited. The contention, of the parties arises from the interpretation of G. S. 1945 Supp. 72-1046 (being Laws 1943, ch. 248, sec. -36), which reads:
“Any person of school age whose natural or legal guardian resides within the limits of the school .district or city, or whose family home with his father and mother is not available to him by reason of the separation of his parents, or the death of either or both of them, and who is living with a friend or relative or with a person who is a resident within the limits of the school district or city, or when such person is contributing the major portion of the cost of the support of such child, shall be deemed to have a school residence in such district or city, in which he lives.” (Emphasis supplied.)
Counsel recognize this statute as one fixing the residence of children for the purpose of attending school without limiting it to the residence or domicile of the parents, as recognized and appeared in Sulzen v. School District, 144 Kan. 648, 62 P. 2d 880 (1936). The authority of the legislature to do so is not seriously questioned here, and in view of our constitutional and many statutory provisions providing for the education of children we think there is no reason to question such authority.
Counsel for defendant argue that the statute is not applicable here for the reason that plaintiff is a corporation, as alleged and admitted, and hence is not “a person who” is a resident within the school district. We think the point is not well taken. In the early English law a person was defined to be either a natural person oían artificial one, such as a corporation (1 Blackston'e Com. 123). Our statute, in force' since 1868, pertaining to statutory construction (G. S. 1935, 77-201, thirteenth), reads: “The word ‘person’ may be extended to bodies politic and corporate.” The word “person" has been held to apply to a foreign corporation (N. M. R. R. Co. v. Akers, 4 Kan. 453, 470; Williams v. Railway Co., 68 Kan. 17, 21, 74 Pac. 600). Also it has been held to apply to the United States (State v. Herold, 9 Kan. 194) and to cities and counties (Delaney v. City of Salina, 34 Kan. 532, 9 Pac. 271; State, ex rel., v. Comm’rs of Atchison Co., 44 Kan. 186, 24 Pac. 87; State, ex rel., v. Barton County Comm’rs, 142 Kan. 624, 51 P. 2d 33; City of North Newton v. Regier, 152 Kan. 434, 103 P. 2d 873). Counsel for defendant point out that the word “person” is not always construed to include corporations, citing Osborne County v. City of Osborne, 104 Kan. 671, 673, 180 P. 2d 233. In Bouvier’s Law Dictionary it is said of the word “person”: “The term is, however, more extensive than man. It may include artificial beings, as corporations,” citing a number of cases from various states, and the author points out that the word “person,” when used in the statute, generally is held to include corporations," unless the statute uses language which makes it clear that such use is not'intended. It is worth noting that our corporation code (Laws 1939, ch. 152), pertaining to private cor porations organized for profit, or those not organized for profit (G. S. 1945 Supp. 17-3001) in part reads:
“Every corporation created under the provisions of this act shall have the power and capacity possessed by natural persons to perform all acts within or without this state. ...”
Apparently this statute was in force when plaintiff’s charter was amended in 1939. Certainly it was in force when the statute here being considered (Laws 1943, ch. 248, sec. 36) was enacted. In this case it is clear that the corporate powers which plaintiff exercises under its charter, namely to establish and maintain an orphan home, authorizes it to care for children much as an individual might do.
Counsel for defendant point out that chapter 248, Laws of 1943, is quite a comprehensive statute pertaining to schools, and in section 8 deals with who is a qualified resident of the district for voting at any school district meeting, and section 9 sets out the oath which one who attempts to vote at such meeting shall take with respect to his residence. Counsel suggest that the legislature may have used the term “resident” in those sections in the same sense that the term was used in section 36. We think the legislature might very well have used one definition of a resident for a voter at the school meeting and an entirely different test of a resident for a child with respect to its eligibility for attending school. Furthermore, it seems clear that the legislature did make such a distinction.
Counsel for defendant also .point out that the children cared for by plaintiff do not come within the classification of G. S. 1935, 39-331. This is a section of a comprehensive chapter pertaining to insane, incompetent and dependent persons which, among other things, authorizes a board of county commissioners to purchase land and construct an asylum for the poor, to levy taxes for it, and to maintain it. The section cited provides in substance that when there are poor children of the asylum who cannot be bound out the county commissioners may arrange to have the children attend school and pay tuition therefor. We think the statute inapplicable here. Plaintiff is not conducting an asylum for the poor created and maintained by the county.
We feel confident in concluding that plaintiff comes within the definition of the term “person” as used in G. S. 1945 Supp. 72-1046,, and'that the children in its care are residents of the school dis trict in which the home is situated and are entitled to attend school in that district without the payment of tuition.
There are several decisions from other states in harmony with our conclusions, but we deem it unnecessary to cite those since our decision of necessity must rest upon our statutes.
This proceeding was brought to determine the rights of the parties. There is no animosity or ill feeling between them. We understand that they will conduct themselves in harmony with an adjudication of their rights. For that reason no writ will be issued at this time, the court retaining jurisdiction to issue an appropriate writ in the event such becomes necessary.
Hoch, J., not participating.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment under the workmen’s compensation act for $1,690, and the defendant appeals.
The plaintiff was employed by the defendant as a laborer in the defendant’s water and light department, and at the time of the injury which is the basis of this action the plaintiff was engaged in mixing and carrying mortar to other workmen who were repairing boilers in the defendant’s plant. The other workmen were working about twenty feet above the ground. After mixing the. mortar, the plaintiff carried it in a bucket to a hook on the end of a rope and attached the bucket thereto, and William Deeds, one of the workmen, elevated the mortar and delivered it to other workmen who were laying brick. Just before he was injuréd, the plaintiff had taken a bucket of mortar and attached it to the rope, and had then stepped .back about twenty-five feet and looked up toward William Deeds to see when the bucket was returned, and to ascertain if he wanted anything; while thus standing, a piece of green mortar, made of lime, sand, and cement, fell or was thrown into the plaintiff’s eye, which was thereby seriously injured.
On the trial, the plaintiff, in substance, testified that he supposed, but did not know, that Deeds threw the mortar. The plaintiff testified, in part, as follows:
“Q. Did you see Mr. Deeds just before you were hit? A. Yes, sir.
“Q; -What was he doing? A. Standing up on this platform.
“Q. Was he making motions of any kind? A. No.
“Q. Had he made any? A. Well, just before this fell in my eye he got down -on his hands and knees and looked under the platform and made circular swing with his right arm as though reaching for something; might have tossed something out of his hand, I could n’t say.
“Q. Did you see any mortar leave his hand? A. No, sir.
“Q. Did you see any in it? A. I didn’t see any in it.
“Q. You thought at the time he did throw it, did you? A. Yes, I thought at the time he threw it.”
There was abundant evidence; largely in the nature of admissions made by the plaintiff, to show that' Deeds had playfully thrown the mortar.
There was evidence to show that Deeds was playful, sportive, and inclined to play pranks or jokes on his fellow workmen, and that this was known by his immediate superiors at the plant.
The jury answered special questions as follows:
“Question 1: Did the injury to the plaintiff arise out of and in the course of his employment? Answer: Yes.
“Question 2: ■ How many weeks has the plaintiff been totally incapacitated for labor beyond a period of two weeks next succeeding the date of the injury, if any? Answer: Seventeen weeks.
“Question 3: Will the plaintiff continue to be totally incapacitated for labor in the future, and if so, for how many weeks do you find such total incapacity will, in all probability, continue? Answer: Not totally incapacitated.
“Question 4: How many weeks in all do you find the plaintiff has been and will in all probability be partially incapacitated in the future, beyond the period for which you allow him for total incapacity, if any? Answer. 397 weeks.
“Question 5: .What is the average weekly wages received by plaintiff in his employment for fifty-two weeks next prior to the date of the injury? Answer: $12.00'per week.
“Question 6': If you find the plaintiff is partially incapacitated from labor by his injury, state what he would probably be able to earn on an average per week at any suitable employment during the period of such partial incapacity, which period must not extend beyond eight years after the date of the injury? Answer: $4.00 per .week.”
1. The defendant’s argument is principally based on the theory that Deeds, in a spirit of sport, threw the mortar at the plaintiff, and that the mortar hit the plaintiff in the eye. The defendant contends that it is not liable for an injury inflicted on one of its workmen by another workman, when the latter injures the former by some, prank, sport, or play, or even by an assault. The matter now complained of was presented to the trial court in a number of .forms. (1) At the close of the plaintiff’s evidence, the defendant asked that the jury be instructed to return a verdict in favor of the defendant. The request was refused. (2) At the close of all the evidence, the defendant again asked that the jury be instructed to return a verdict in favor of the defendant. The request was again refused. (3) The defendant requested an instruction, substantially, that if the plaintiff’s injury was caused by a fellow employee throwing mortar at the plaintiff, either maliciously or in sport, the plaintiff could not recover for the resulting injury. No such instruction was given. The court instructed the jury as follows:
“You are further instructed that before the plaintiff is entitled to recover he must show by a preponderance of the evidence that the accident complained of is one which arose out of and in the course of his employment, and in this connection you are instructed that if you find from the evidence that one Deeds, a fellow workman of the plaintiff engaged in the same line of employment, and while so engaged either intentionally or accidentally struck the plaintiff in the eye with a piece of mortar, injuring him, you must find that the injury arose out of and in the course of the employment of the plaintiff, and'if such injury resulted in incapacity" to perform labor for a period beyond two weeks from the date of such injury he would be entitled to compensation.”
This instruction did not correctly state the law. The first section of the employers’ liability act, section 5896 of the General Statutes of 1915, reads, in part, as follows:
“If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act.”
A clear and concise statement of the law governing compensation for injuries to employees caused by play is found in Workmen’s Compensation Acts, a Corpus Juris Treatise, by Donald J. Kiser, page 79, and is as follows:
“An employee is not entitled to compensation for an injury which was the result of sportive acts of coemployees, or horseplay or skylarking, whether it is instigated by the employee, or whether the employee takes no part in it. If an employee is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise ‘out of the employment,’ and the employee is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employees.”
The rule there declared is supported by Western Indemnity Co. v. Pillsbury, 170 Cal. 686; McNicol’s Case, 215 Mass. 497; Scott v. Payne Bros., 85 N. J. L. 446; In re Loper, (Ind. App.) 116 N. E. 324; Clayton v. Hardwick Colliery Co., 85 L. J. K. B. 292. Under these authorities the rule is that where a workman, known by his master to be in the habit of indulging in dangerous play with his fellow workmen, is retained in the master’s employ, the danger of injury from such play becomes an incident of the employment of the other workmen, and injury to any of the other workmen, while performing his regular work, caused by such play, comes within the provisions of the workmen’s compensation act.
2. Another matter urged by the defendant is that the plaintiff is not entitled to recover under his theory that he did not know whether the mortar was thrown at him by Deeds, or whether the mortar, by some accident, fell from above. In his brief the plaintiff says:
“It was one of the very few disputed facts in this case as to whether the mortar which hit the plaintiff in the eye and inflicted the injury upon him was thrown by Mr. Deeds from the elevated platform or not. The plaintiff did not admit that Deeds threw it although he stated that it was his opinion at the time that it had been thrown by Deeds. He, nevertheless, stated that he did not see any mortar in Deeds’ 'hands or see any mortar coming from Deeds toward him, and the defendant’s attorney, in his opening statement, said that he thought Deeds denied having thrown the mortar.”
On this phase of the case, the defendant requested the following instruction:
“The court instructs the jury that the burden is upon the plaintiff to show that his injury resulted from an accident which arose out of and in the course of his employment, and if you are unable to determine from the testimony whether or not the accident in question was one which arose out of and in the course of his employment, then, under no circumstances is plaintiff entitled to recover and your verdict shall be for defendant.”
This instruction was not given.
The defendant’s position is not tenable. The plaintiff was engaged in the performance of his labor. If Deeds did not throw the mortar, it fell from the place at which Deeds and the masons were working. It follows, then, that the plaintiff was injured by accident arising out of and in the course of his employment. This brings the injury to the plaintiff within the provisions of the statute, and renders the defendant liable for compensation in this action.
3.' The defendant insists that the verdict was • excessive. Why or wherein it was excessive is not shown.
The jury found the period of total incapacity, the period of partial incapacity, and the wages that the plaintiff will probably be able to earn in some suitable employment during the period of his partial incapacity. If these facts are taken, and the rules for calculating the amount of compensation as given in sections 5905 and 5906 of the General Statutes of 1915 áre followed, it will be found that the amount of compensation fixed by the judgment was correct.
Because of the error in the instructions, the judgment is reversed and a new trial is granted. •
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to enjoin the collection of a paving tax assessed upon plaintiff’s property. On July 6, 1915, the city of Hutchinson passed an ordinance providing for the paving of South Main street from the south line of Avenue' F to the Arkansas river. The following plat shows the portion of the street in question and the situation of the surrounding properties:
On July 30, 1915, a contract was made for the paving, and, as first drawn up, it provided for the paving to extend to the river, but it was afterward changed (and according to the testimony of the city clerk, without authority for the change) to read, from Avenue F to the, south line of Riverside addition and Handy’s addition. On November 17, 1915, appraisers appointed by the city commissioners made an appraisement of lots 275 to 285 in Riverside addition and lots 276 to 288 in Handy’s addition, but nothing south of that was included in the' report. On November 26, 1915, the city commissioners, acting as a board of equalization, made some changes, in the appraisers’ report, ahd then also included an assessment of lots 20 to 32 in Dixon’s addition, tract A, tract C, and Belle Dixon tract; and in an ordinance published February 17, 1916, the assessment for all of the lots and tracts mentioned was made. Plaintiff is the owner of lots 23 to 32 and tracts C and D in Dixon’s addition, and taxes upon this property, except tract D, were certified by the city clerk upon the roll, to be collected. Plaintiff’s action to enjoin its collection was brought December 11, 1916.
The pavement was completed as far as the point where the horizontal lines are shown on the plat, awaiting the completion of a new bridge by the county. The pavement on the approach to the bridge, indicated on the plat ,by the vertical lines, is to be paid for by the county.
The injunction prayed for was granted as to lots 23 to 32 in Dixon’s addition. The defendants appeal.
The only question we need to consider is one of limitation on the right of plaintiff to enjoin or contest the levy of the special assessment. Under a statutory provision, the right to enjoin or contest such a levy can be exercised only within thirty days after the assessment is ascertained. (Gen. Stat. 1915, § 1217.) Plaintiff did not commence this action until ten months after the assessment had been ascertained. It is insisted by the plaintiff that the city acted without authority in that it assessed property not adjoining the street to be improved, and also that the assessmeht attempted was not made in the-manner prescribed by law. The bar of the statute appljes even if the defendants acted without authority in the inclusion of property that was not subject to assessment. It has already been determined that the thirty-day limitation applies to void assessments as well as to irregular ones. (City of Topeka v. Gage, 44 Kan. 87, 24 Pac. 82.) In Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299, and the same case on rehearing, 93 Kan. 1, 142 Pac. 268, it was ruled that the limitation in question cuts off all defenses of every kind and character, including assessments fraudulently made and those which were made without jurisdiction or authority. That holding has been followed and approved in Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Arment v. Dodge City, 97 Kan. 94, 154 Pac. 219; Wyandotte County v. Haskell, 97 Kan. 304, 154 Pac. 1029. No more reason can be found for excepting from the limitation a defense that the assessment is invalid because of including platted and unplatted land or land extending too far from the improved street than there was for excepting a defense that the assessment was fraudulent and void. The legislature manifestly intended to bar an action for every defect, whether it be for irregularity or invalidity, if not' begun within the prescribed time. Within that time the plaintiff might have contested the right of the city commissioners to make an assessment on property which the appraisers had not included in their report, and also where the taxing district had extended beyond the legal limits. The intention of the legislature was, that public improvements should not be long delayed by contests of this character, nor the assessment proceedings interrupted by belated litigation; and so, property owners who propose to challenge an assessment for any kind of defect are required to do so promptly, or not at all. The validity of such a law is beyond question.
It follows that the judgment must be reversed and the cause remanded with instructions to enter judgment for the defendants.
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The opinion of the court was delivered by
Marshall, J.:
This is an original proceeding in this court, brought under section 7603 of the General Statutes of 1915, to remove the defendant from the office of clerk of the city court of Wichita in Wichita City township in Sedgwick county, for failure to pay over to the county treasurer of Sedgwick county, on the first Monday in August 1917, the sum of $401.70, costs that should have been paid to the county treasurer on that day, as directed by section 3310 of the General Statutes of 1915.
1. The petition, among other things, alleges—
“That on the 6th of August, the same being the 1st Monday in the month of August, 1917, said J. B. Fishback, as Clerk of the City Court as aforesaid, had in his possession and under his control, or should have had in his possession and under his control, the sum of $401.70, the same being fees and costs collected by the said J. B. Fishback during the month of July, 1917, and prior thereto in civil and criminal cases in the office of the Clerk of the City Court as aforesaid, and that the same was not fees due witnesses or jurors in said cases; that on the said 6th day of August, the same being the 1st Monday in August, 1917, the said J. B. Fishback had willfully failed, neglected and refused to pay over to the County Treasurer of Sedgwick County, Kansas, the said sum of $401.70, fees and costs collected by said J. B. Fishback, as aforesaid.
“That said sum of money was collected by the said defendant, J. B. Fishback, during the month of July, 1917, and prior thereto, and that on the said 6th day of August, 1917, it thereupon became the duty enjoined by law on the said J. B. Fishback, to pay over such sum of $401.70, then in his hands, and held by him as aforesaid, into the county treasury of Sedgwick County, Kansas.”
The defendant demurs to the petition and moves to quash it, to set it aside, and to hold it for naught on the ground that the petition does not state facts 'sufficient to constitute a cause of action.
Section 3310 of the General Statutes of 1915 reads:
“In all causes, civil or criminal, brought in said court [the city court of Wichita], there shall be taxed therein the same fees as are allowed by law in such cases before justices of the peace in this state, and when the same are collected they shall be paid by the clerk of said court, .on the first Monday in each month, to the county treasurer of Sedgwick county, Kansas, and all such costs and fees shall be collected as is provided by law for the collection of costs in justice courts of this state, and said county treasurer shall credit the same to the county funds, and give duplicate receipts for the same, one of which shall on the same day be deposited with the county clerk by the clerk of said court, together with a detailed statement of the items of costs, the title of the case in which they were paid, and .the name of the parties paying the same: Providing, That no fees of witnesses or jurors shall be so deposited, but shall be paid by the clerk of said court to the parties to whom they are due.”
Section 7603 of the General Statutes of 1915 reads, in part, as follows:
“Every person holding any office of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, who shall willfully misconduct himself in office, or who shall willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state of Kansas, . . . shall forfeit his office and shall be ousted from such office in the manner hereinafter provided.”
The petition alleges facts sufficient to show a legal duty on the part of the defendant to pay to the county treasurer the money in his hands belonging to Sedgwick county, and also alleges the willful failure of the defendant to perform that duty. The petition states a cause of action. The demurrer is overruled and the motion to quash is denied.
2. As an excuse for his failure to pay the money to the county treasurer on the 6th day of August, the defendant, in substance, alleges that because of a misunderstanding of section 3310 of the General Statutes of 1915 and of chapter 133 of the Laws of 1917, confusion arose concerning the time of making payments to the county treasurer, and, in substance, further alleges that the matters and things of which complaint is made in the petition arose out of that confusion.
Section 3310 of the General Statutes of 1915 requires that the money shall be paid to the county treasurer on the first Monday of each month. Chapter 133 of the Laws of 1917 requires that all money received shalbbe deposited with the county treas urer daily, and that all disbursements shall be made by check on the county treasurer. The evidence discloses that the defendant did not comply with either of these statutes. If all money received had been deposited daily with the county treasurer, when the first Monday of the month came all the money then due the county would be in the hands of the county treasurer, and no shortage could aripe. Confusion arising out of a misunderstanding of the operation of these statutes is not an excuse for failure.to pay the amount that was due the county on the 6th day of August, 1917.
3. The defendant in his answer sets' up, as a bar to the prosecution of this action, a judgment rendered in his favor on July 21, 1917, in an action in the district court of Sedgwick county, which action had been commenced on July 2, 1917, and in which the state of Kansas, on the relation of Ross McCormick, county attorney of Sedgwick county, sought to oust the defendant from the office of clerk of the city court of Wichita. The first petition, filed in that action on July 2, 1917, alleged that there was $4,080.65 in the hands of the defendant on June 30, 1917, and that the defendant failed to pay that amount to the county treasurer of Sedgwick county as directed by law. The defendant filed a motion to quash that petition, and the plaintiff, on July 13, 1917, filed an amended petition, and, on July 20, 1917, filed another amended petition. In the last amended petition the plaintiff alleged that on June 30, 1917, there was $4,080.65 in the defendant’s hands which had been' received and collected from various sources prior to June 30, 1916, and which he failed to pay into the county treasury. The court sustained a motion to quash that amended petition. The plaintiff stood on the petition, and judgment was rendered in favor of the defendant for costs.
The evidence taken by a commissioner appointed' by this court shows the following facts:
On the first Monday in August, 1917, $650.85 was due from the defendant to the county, for costs that had been paid in cases that had been closed before that day. Nothing was then paid by the defendant to the county treasurer. On August 8, 1917, J. H. McPherson, county auditor of Sedgwick county, presented a bill to the defendant for the amount then due the county and asked the defendant for immediate payment. Noth ing was paid until August 15, when $249.15 was paid. In September, $900.88 additional was paid. Those amounts covered all that was due the county at the time the last payment was made. After the judgment was rendered in the district court, a large number of persons, witnesses and jurors, who had fees in the hands of the defendant, demanded and received payment of the amounts due them. On August 6, 1917, the defendant did not have in his hands enough money to pay the amount then due the county and to pay those to whom fees were dué. He obtained from outside sources a part of' the money necessary to pay these amounts. The defendant had, to some extent, commingled the funds in his hands as clerk'' of the city court with his individual money.
There is nothing in the evidence to show that the defendant intended to embezzle any of the money in- his hands, but the only conclusion that can be drawn from the evidence is that he did not have sufficient money to pay what was due to the county treasurer and to individuals. Agents, trustees, receivers, guardians, executors and administrators, and public officers must keep the trust money and property in their hands separate and apart from their individual money and property, or abide the consequences.
The judgment in the district court of Sedgwick county is a bar to all matters that were included in the petition in that action, but nothing that occurred after June 30, 1917, was included in that petition or passed on in that action; therefore, that judgment is not a bar to anything that occurred after June 30, 1917.
In the city court, in cases that were closed between June 30 and August 1,1917, the defendant had received more than $100 that he should have paid into the county treasury on the 6th day of August. In cases that were closed between July 21, 1917, the day the judgment was rendered in the district court, and August 1, 1917, the defendant had received more than $45 that should have been paid into the county treasury on the 6th day of August. These amounts were included in the $401.70, which is made the basis of this action, and which the defendant admits was due on the 6th day of August. These several amounts were included in the demand made on the defendant by the county auditor. The defendant’s failure to make payment on the 6th day of August was not caused by any mistake or confusion brought about by a misunderstanding of the' law. From the evidence, the conclusion must be drawn that the failure to make payment was intentional, made so by the fact that the defendant did not have the money with which to make payment, but, whether he had the money or not, payment was enjoined on him by law, and his failure to make that payment subjects him to this proceeding.
When the defendant at the time fixed by law failed to pay the amounts that had been received by him, he was guilty of willful neglect to perform the duty enjoined on him by section 3310 of the General Statutes of 1915.
Under the law, the conclusion is inevitable that the defendant must be removed from the office of clerk of the city court of Wichita City township in Sedgwick county, and it is so ordered.
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered a judgment for injuries received in uncoupling a car at Maramec, Okla. It was alleged that the coach was defective in this:
“That it had no buffer to prevent the same from running up against the next car in front of it, . . . that it was defective in that the brake on said car did not operate properly, . . . that it was further defective in that it was not so constructed that it could be 'uncoupled from the car connected with it without the brakeman going between the cars and uncoupling the air hose and also the safety chain.”
It was averred that in obedience to the direction of the defendant the plaintiff went between the coach in question and the next one in front and attempted to uncouple .the air hose and disconnect the safety chain, but just as he uncoupled the air hose the air locked and the brake on the car released so that the car moved forward and caught his head between projecting bolts on each of the cars, striking him behind the ears and severely injuring him. The answer contained a general denial, and alleged contributory negligence and assumption of risk: The jury found the negligence of the defendant to consist in not properly equipping the coaches with buffers to hold them apart, and that the plaintiff was not guilty of contributory negligence. Also;
“9. Was the equipment of the mixed train . . . usual and ordinary equipment of such trains used and employed by the railroad companies for such service? Ans. According to evidence it was not properly equipped; as [to] being equipped for that particular kind of service we do not know.”
The defendant appeals, and insists that what the jury called negligence is not negligence at all. The plaintiff testified that there was no buffer on these cars, that bumpers were supposed to bump together to keep the cars from coming close together, but did not know that he had ever used one himself. It is said that the list of safety appliances which railway companies are required to keep by virtue of the safety-appliance act and the orders of the interstate commerce commission does not include buffers or bumpers. Further, that buffers might come together as well as the ends of the coaches, and therefore an employee might be crushed between the former as well as between the latter. The court instructed that the law requires all railroads to equip its trains and cars with all reasonable and approved safety appliances and to make such frequent examinations, inspections, and adjustments as would keep the trains and cars and appliances in a reasonably safe condition, and that while an employee assumes the ordinary risks he does not assume that of injury to himself when it occurs by reason of the failure of the companies to furnish reasonable safety appliances and equipment. It is said that this instruction ignored the doctrine that if the plaintiff went between the cars to uncouple them with full knowledge of the fact that they were not equipped with buffers he assumed the risk. The plaintiff testified:
“If the car hadn’t have come forward I would have been perfectly safe in the position I was in. I knew that if it did come forward I would n’t be safe. There have been lots of them caught that way and killed that way. I knew that at the time. I did not have it in mind right at the time I was working there. I knew that was a dangerous feat and that it had to be performed every time I uncoupled cars. I was per-perfectly well aware of the danger of going in there.”
When the plaintiff testified that he knew it was a dangerous feat and was perfectly well aware of the danger of going between the cars, he evidently meant that the danger consisted in the possibility or likelihood of the cars coming together. He knew and could see that there were no bumpers or buffers, and, as he said, if the car had not come forward he would have been perfectly safe. It was the danger of coming forward without warning that attended his efforts, and it was the actual coming forward that caused his injury. It is possible that if bumpers had been placed in the center of the platform in each of the cars he might have escaped injury by keeping his head to one side of the center of the car ends, but it seems about equally possible that he might have been crushed between the bumpers instead of the platforms by raising his head so as to be caught between the bumpers.
His allegation that the air coupling was defective was not sustained by the findings of the jury, who confined the matter of negligence to the failure to equip the cars with buffers, except as indicated by finding 9 already referred to.
The definitions of buffer indicate a contrivance to mitigate the shock caused by cars coming together, rather than a safety appliance, Webster defining it as an elastic apparatus or fender for deadening the jar caused by the collision of bodies. Cases are cited in which cars were provided with buffers which, failing to meet vertically or horizontally, caused injury, and the companies were held liable. But we have, neither had cited, nor have we found, a federal decision or rule requiring buffers or bumpers, although one or two state cases are pointed out which seem to regard them as protectives for the workmen. The following portion of the plaintiff’s cross-examination is the entire evidence touching bumpers:
“There was no buffer or muffler on these cars that I remember' of. I don’t know as I ever used one of them myself. The bumpers are supposed to bump together to keep the cars from coming close together. There was nothing of that kind on these two cars.”
It is claimed that disconnecting the air hose is a part of the process of uncoupling, and United States v. Boston & M. R. Co., 168 Fed. 148, is cited. There the district judge in charging the jury stated that—
“A man engaged in connecting or disconnecting the air hose between the cars is engaged in coupling or uncoupling cars within the meaning of the statute, if it is necessary for him to connect or disconnect that hose in order to connect or disconnect the cars.” (p. 152.)
But we are unable to find any other rule or holding to. this effect. The safety-appliance act and the orders of the interstate commerce commission require a railroad company to have eighty-five per cent of the cars composing a train equipped with air, so that the train can be operated by the engineer. No means appears to have been devised or required for uncoupling the air hose or safety chains without going between the cars, as in case of the coupler itself. Hence, while in uncoupling two cars, connected as these were by a coupler, safety chains, and air hose, it is true in a generic sense that disconnecting the air hose is a part of the process, we are unable to agree that it is a part of the process of uncoupling within the meaning of the safety-applfance act, which has made no requirement concerning the disconnecting of such air hose while remaining clear from the ends of the cars. The operation necessary in the case of cars connected with' chains and air hose was thus described by the plaintiff:
“After the train stopped the first thing I did was to go in to cut the coach off. I turned the angle cock. They are right back on each car. One in front of the car and oné behind on the side of the drawbar. It cuts the air off of each car. That does not release the brake. It has nothing to do with the brake. The brake is still set after that is turned. You have to open the brake hose and open the angle cock to release the brake, let out the air. Have to bleed the car to let the air out of it. I did not do that that day. I did n’t do anything to release the brakes. There is no way to shut off the angle cock without going between the cars to do it. In order to uncouple the cars you have to turn each of the angle cocks. Then we have to unhook the safety chains. We just take out the big hook that hooks into the link of a chain. There is one of these on each side. To unhook the one on the other side we reach over the drawbar. Otherwise you would have to go around the car. It is the customary way to reach over the drawbar. I never did see anybody go around in the two years I worked there. After I unhooked the safety-chains the next step in the process of uncoupling Was to break the air-hose. To do that you catch them in the center and lift up on them. We let them hang down. The next process is to lift the pin. We do that by a lever on the outside of the car. We step back and lift that out with the flever. ... I was standing when I unhooked the safety chains. My head was straight up. That brought the bumper about to my waist. I first unhooked the chain next to me. I was on the east side of the train. Then I unhooked the other chain by reaching over the drawbar. It is easily reached from there. That is the way I always did it. I next turned the angle cocks. You have to turn them off before you break the air hose. If you don’t the hose will fly up and hit you in the face. When you turn the angle cocks you are ready to uncouple the hose. That is all that remains to be done.”
Counsel says that in Schlemmer v. Buffalo, Rochester, &c. Ry., 205 U. S. 1, it was held to be a question for the. jury whether the company was negligent in failing to, provide its cars with buffers. An examination of that decision shows that plaintiff alleged that the coupling was not such as was required by existing laws. The court having directed a nonsuit, the plaintiff moved “to take it off,” one ground being that the decedent “was not deemed to have assumed the risk owing to> the fact that the car was not equipped with an automatic coupler.” (p. 9.) It was said in the opinion that, instead of an automatic coupler, the car had an iron drawbar fastened, underneath by a pin projecting about a foot beyond the car. This drawbar weighed about eighty pounds, and its free end played up and down. On this end was an eye, and the coupling had to be done by lifting the free end possibly a foot so that it could enter a slot in an automatic coupler on the caboose and allow a pin to drop through the eye.
“Owing to the absence of buffers on the shovel car and to its being so high that it would pass over those on the caboose, the car and caboose would crush anyone between them if they came together and the coupling failed to be made.” (p. 8.)
We do not find in the statement or in the opinion anything to indicate that an instruction leaving it to the jury to say whether or not the absence of buffers constituted negligence, was given. In this opinion it was held that assumption of risk as extended to dangerous conditions of machinery obviously shades into' negligence as commonly ufiderstood, the difference between the two being one of degree rather than of kind. From this opinion Justices Brewer, Peckham, McKenna and Day dissented. In 220 U. S. 590, when the case was again before the court, it was unanimously decided that there is a practical and clear distinction between assumption of risk and contributory negligence. Hence, we could not regard the cited Schlemmer decision as controlling, even if in point.
It is said in the defendant’s brief that there was no pretense that the defendant had violated any of the safety-appliance acts of congress. Neither do we find any such claim in the plaintiff’s brief, aside from the one that the defendant was required to equip its cars with bumpers.
This, then, is the situation': The negligence charged consisted of failure to equip with bumpers, of failure of the air brake to act properly, and failure to equip so that the car “could be uncoupled from the car connected with it without the brakeman going between the cars and uncoupling the air hose and also the safety chain.” The .law requires neither the first nor the third, and the jury disregarded the second. Hence, the plaintiff cannot prevail.
The judgment is reversed and the cause remanded with direction to enter judgment for the defendant.
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The opinion of the court was delivered by
Porter, J.:
This is a suit in the nature of a creditor’s bill. The court gave judgment in favor of the defendant, and the plaintiff appeals.
On the 23d of June, 1915, a judgment was rendered in the district court of Morris county in an action on a promissory note against A. R. Kinkel, the plaintiff in the present suit, W. J. Kinkel, and Dyson Jackson, and the court made an order that if the judgment was paid by either of the Kinkels they should be subrogated to the rights of the plaintiff in the action. Later,, on July 17, A. R. Kinkel satisfied the judgment as to himself and W. J. Kinkel by paying the sum of $383.50, and duly filed with the clerk of the court a notice claiming contribution and the right of subrogation under section 474 of- the civil code. (Gen. Stat. 1915, § 7378.) On June 23, 1915, the same day the judgment was rendered against the Kinkels and Dyson Jackson, a judgment was rendered in the same court in another action in the nature of a creditor’s bill brought by J. B. Lamb and S. H. Crowley-against Dyson Jackson, Annie Jackson, his wife, and Samuel M. Jackson, his son, and other defendants. The petition in that case alleged that Dyson Jackson was the owner of 420 acres of land and other real estate in Morris county, and had taken the title in the name of his wife and his son with the intent to hinder and delay his creditors. The judgment sustained all the allegations of the petition, and the court held that Dyson Jackson was the owner of the land and decreed that the title thereto be vested in him for the use and benefit of his creditors, and that his wife and son be devested of any right or interest under the conveyance to them. No journal entry of this judgment was entered by the clerk of the court, but the entries on the judge’s trial docket of that date showed the nature of the judgment rendered.
On the 26th of October, 1915, Dyson Jackson sold the land to Fred F. Chase. The warranty deed recited a consideration of $25,000, and it was executed not only by Dyson Jackson but by his wife and son, in whom the legal title had rested prior to the rendition of the judgment in the suit brought by Lamb and Crowley.
The petition in the present case recited the foregoing facts and alleged that the judgment which A. R. Kinkel had satisfied became a lien on the 420 acres of land, not only by virtue of the judgment rendered in the case of Lamb and Crowley v. Dyson Jackson et al., but for the further reason that the land in fact belonged to Dyson Jackson at that time; and further, that Fred F. Chase, defendant in this case, purchased the real estate with full knowledge that the judgment for $383.50 had been rendered and that it was a valid and binding lien thereon. Incidental to the suit, Kinkel asked the court to “make a nunc pro tunc judgment” in the old case of Lamb and Crowley v. Jackson et al., as of June 23, 1915, devesting Samuel M. Jackson and Annie Jackson of all their title to the real estate and vesting the title thereto in Dyson Jackson for the use of his creditors.
The defendant Chase filed an answer denying that plaintiff Kinkel ever had any lien on the land adverse to his and alleging that he purchased the land and gave full value without notice, actual or constructive, of any lien or claimed lien on behalf of Kinkel.
On the trial the records, papers, and files in the former suits and the various conveyances affecting the title were introduced in evidence. Plaintiffs also offered oral evidence to show that parties representing defendant Chase before the conveyance to him was made came to Kinkel and offered him $60 for a release of his judgment, and told him that if he refused to take that they would recommend to Mr. Chase that he close the deal anyway. There was evidence also that the liens of the other creditors in the former suit were satisfied out of the purchase money paid by Chase. The trial court entered a nunc pro tunc judgment in the case of Lamb and Crowley v. Jackson et al., as of June 23, 1915, setting forth in full the terms of the judgment actually rendered on that date. The defendant demurred to the plaintiff’s evidence, and the court sustained the demurrer.
In a written opinión, the trial court stated the reasons for sustaining the demurrer, which were that inasmuch as the plaintiffs in the first creditors’ bill had not brought their suit for the use and benefit of other creditors that might desire to come in and set up claims, the judgment declaring the conveyance of the real estate to the wife and son of Dyson Jackson fraudulent and void was solely for the benefit of the plaintiffs and other parties to that suit, and that since Kinkel was not a party he could derive no benefit from the judgment. In stating the grounds for sustaining the demurrer the court laid considerable stress on the fact that there was no journal entry of the judgment on record in the Lamb and Crowley case, and held that for this reason Chase, when he desired to purchase the land, would find nothing of record indicating that Kinkel had any interest in or lien thereon, and that therefore he must be held to have purchased without notice of any such lien or claim on the part of Kinkel, and the court further held that there were no judgments which were liens against the land at the time Chase purchased, except those pleaded in the first creditors’ suit.
So far as the judgment sustaining the demurrer rests on the failure to have a journal entry recorded in the first creditors’ bill brought by Lamb and Crowley, the court was in error. The judgment was rendered on the 23d day of June, 1915, and it was no less a judgment because the clerk failed to prepare and file a journal entry. “The omission to enter it does not destroy it, nor does its vitality remain in abeyance until it is put upon the record.” (1 Black on Judgments, § 106.) It was therefore not necessary for the plaintiff in the present case to obtain from the court an order for a nunc pro tunc judgment. The ruling of the court making what is called such a judgment amounts to nothing more, however, than the approval of a journal entry reciting the details of the decree. If Kinkel could predicate any rights by virtue of the judgment in the first creditors’ suit, he is not in any sense deprived of that right because of the failure of the clerk to perform a ministerial duty. If Chase, when he purchased the land, .desired to know the nature and terms of' the judgment that had been rendered against Dyson Jackson in the first case, and could find no journal entry of record, he was bound to examine the pleadings in the case, and finding a judgment in favor of plaintiff against the defendant, he was bound, in the absence of any other information, to assume that every material averment of the petition was found against Dyson Jackson and the other defendants.
The law is well settled that one who is neither a party nor privy to an action is not only not bound by the judgment therein, but he can derive no benefit from it. (Manley v. Debentures Co., 64 Kan. 573, 68 Pac. 31; Ervin v. Morris, 26 Kan. 664.) Where, however, a judgment or decree operates in law as a conveyance, one who is not party or privy to the action may avail himself of the effect of the judgment as a transfer to the same extent that he may rely upon a voluntary conveyance of the title. In Lockwood v. Meade, 71 Kan. 739, 741, 81 Pac. 496, it was said in reference to cases which properly include an order for one party to convey to another whatever interest he may have in the real estate involved, “such a decree would, of course, effect a transfer of title as effectually as a voluntary conveyance. (Woolworth v. Root, 40 Fed. 723, 726.)” The decree in the first creditors’ suit specifically declared that the title to the real estate should be vested in Dyson Jackson. It was not, however, the purpose of the creditors’ suit to vest the title in him; but rather to obtain a decree holding in effect that the title always had been in .him, and that the judgments of the plaintiffs were liens on the real estate, notwithstanding the conveyances. If a judgment in favor of one creditor who brings proceedings in aid of execution, or what is usually termed a creditor’s bill, operates in every instance to vest the title of the real estate in the debtor, it would seem a useless proceeding to invite or permit other creditors to come in and become parties to the suit; and yet much learning of the courts has been brought to bear upon the right of other creditors to intervene and share in the costs of the proceeding. Really, the creditor who brings the suit in his own behalf is interested, not in securing a judgment which shall operate as a voluntary conveyance or transfer of the title, but his sole purpose is to have a decree declaring his judgment a lien on the real estate, notwithstanding the fraudulent transfer. It would seem, therefore, that Kinkel cannot rely on the judgment in the first creditors’ suit as having the effect of a voluntary transfer of the title to Dyson Jackson.
Plaintiff had a cause of action entirely independent of the effect of the decree in favor of Lamb and Crowley, a cause of action based upon the lien of his judgment and the allegations in his petition to the effect that the land belonged in fact to Dyson Jackson when his judgment was rendered. Under the provisions of section 474 of the civil code, by satisfying the judgment and filing notice with the clerk of his intention to claim repayment, Kinkel became entitled to the benefit of the judgment as owner for the purpose of enforcing repayment. (Harris v. Frank, 29 Kan. 200.) A judgment in this state is a lien on whatever equitable interests the judgment debtor has in real estate. (Civ. Code, § 522.) In Poole v. French, 71 Kan. 391, 80 Pac. 997, it was ruled that land held by an equitable title may be levied upon and sold by virtue of a general execution,- and further that the remedy by a creditor’s bill, or proceedings in aid of execution, is merely cumulative to that afforded by a general execution. The judgment which plaintiff owns against Dyson Jackson was a lien upon the equitable interests of Dyson Jackson in the real estate in question from the first day of the term at which it was rendered. It was of record when Chase purchased the land. All that remained for Kinkel to establish was, that when Dyson Jackson repurchased the land he took the title in the name of his wife and son in fraud of creditors. The question of actual notice was not a material one. If it had been the court could not sustain a demurrer on the ground that the evidence .offered to show actual notice was insufficient, because defendant’s demurrer admitted the truth of every fact proved by the evidence and of every reasonable inference that might be drawn therefrom in plaintiff’s favor.
From the statement of the trial court in sustaining the demurrer, it is apparent that the real issues were lost sight of, and that the case was determined, upon the effect of a failure to record a journal entry, of the judgment in the first creditors’ suit, and the necessity of showing that Chase had actual notice of the fraudulent transfers, rather than upon any failure of plaintiff to establish fraud. Proof of actual notice was not necessary, because if, in fact, the real estate belonged to Dyson Jackson when plaintiff’s lien attached, the plaintiff must prevail. In view of these facts, and the further fact that the same court has once held that the transfers were fraudulent, we think justice requires that the order sustaining the demurrer should be reversed, and that the plaintiff should be permitted to try out the question of fraud.
Reversed and remanded.
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The opinion of the court was delivered by
West, J.:
From a condemnation of land for school purposes the plaintiffs, who own separate tracts, joined in an appeal bond signed by themselves only. This obligation recited the appointment of the appraisers, their report, and the desire of the defendants to appeal, and closed with these words:
“That we hereby bind ourselves to pay all costs and expense oi said appeal, should we be adjudged to pay them.”
This bond was approved by the clerk of the district court. A motion to dismiss the appeal contained eleven different grounds, but amounted in substance to the suggestion that the bond was insufficient in form and should' have been separate for each owner. The motion was sustained and the obligors appeal. -
The statute (Gen. Stat. 1915, § 7824) requires the appealing party to enter into an undertaking to the adverse party, with at least one good and sufficient surety, in a sum not less than $50 in any case, nor less than double the amount of judgment and costs, 'one of the conditions being that if judgment be rendered against him he will satisfy such judgment and costs. Such bond need not be signed by the party appealing.
The defendants, after calling attention to the joinder of the parties, rely very largely on St. L. K. & S. W. Rly. Co. v. Morse, 50 Kan. 99, 31 Pac. 676. It was there held that an appeal bond signed by the surety only and by no one else, which did not bind or obligate the surety in any amount whatever, was void and gave the appellate court, no jurisdiction. It was said that the surety bound himself in no amount and did not agree to do anything whatever, which cannot be said of the bond now under consideration.
Of course, each landowner should have appealed separately and filed a separate bond, which should have followed the statutory requirements; but all the owners joined in the one given, and thus became sureties for one another and bound themselves therein to pay all costs and expense of the appeal should they be adjudged so to do.
This gave the court sufficient jurisdiction to permit an amendment. (McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239; St. L. & S. F. Rly. Co. v. Hurst, 52 Kan. 609, 35 Pac. 211; Parker v. Gibson, 78 Kan. 90, 96 Pac. 35; Mercantile Co. v. Wimer, 97 Kan. 31, 154 Pac. 216.)
The order of dismissal is reverséd, and the cause remanded with directions to permit the filing of proper bonds.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs recovered judgment against the city of Manhattan for the death of their three-year-old child who was drowned in a ditch in the street in front of their residence. The city had excavated a ditch the entire length of the block for the purpose of laying a water main. Lateral ditches to the sides of the street had also been made to bring the water supply to the residence property lines. The excavations were four feet deep. The work was about completed on Monday, August 16, 1915, and the two ends of the street block were barricaded against travel. That night a heavy rain fell and a considerable portion of the vicinity drained toward this particular street and block and the ditch excavations were filled with water. The following afternoon the child ran out across the parking into the street “to wade and play” and fell into the lateral ditch in front of her home and was drowned.
The petition charged the city with negligence in allowing the ditch to remain open and unprotected and filled with water, and that the child while wading and playing in the street fell into the ditch and was drowned. It was alleged that the child was too young to know and appreciate the danger, and that her mother was busy and did not know and appreciate the danger, and that the parents used all proper care and diligence in looking after the child.
The jury returned a verdict for plaintiffs for $4,500. Certain special questions were answered:
“First: Did either or both of the parents of Agnes Schaubel know that there were ditches in the street in front of their home, and that these ditches were filled with water prior to the time Agnes Schaubel escaped the custody of her parents and was drowned?
“Answer: Yes, but not the .[particular lateral] ditch in which the child was drowned.
“Second: By the exercise of ordinary care and prudence, could the parents of Agnes Schaubel have restrained her from leaving their custody and control, and thereby have prevented her from going into the street where she was drowned?
“Answer: No.
“Third: Did the city of Manhattan have a large number of workmen at work on the ditches on Laramie street, at Fourth and Laramie and at Third and Laramie, and in the block between Third and Fourth, during the period from noon until the child was drowned?
“Answer: Testimony shows twelve men were at work.
“Fourth: If you answer the third question in the affirmative, state how near you find any of the workmen were to the place, the child was drowned, at the time of the accident?
“Answer: Between seventy-five and one hundred feet.
“Fifth: Did the defendant herein, on the day of the accident have a number of men engaged at work in bailing the water out of the ditch on Laramie in the block where the Schaubels lived?
“Answer: Yes, at work in the main ditch.
“Sixth: Do you find any negligence on the part of the city, and if so, state in what particular it was negligent?
“Answer: Yes, because they left the ditch unguarded and exposed.”
The trial court ordered a remittitur of $1,000 and gave judgment for plaintiffs for $3,500.
The familiar schedule of errors is assigned, but the gist of the city’s complaint is the net result and the excessive verdict. Examining the errors assigned, no error can be discerned in overruling the demurrer to the petition nor in overruling the demurrer to the evidence. Nothing serious can be noted concerning the admission or exclusion of evidence, nor in the court’s instructions so far as presented by the abstract of the record.
The defendant concedes that it was its duty to safeguard its streets for ordinary travel and to effectively close this street to ordinary uses while it was undergoing repairs, but it is contended that the use of a street by a child to “wade and play in” while the street was dug up with ditches for the laying of water mains was not an ordinary use of the street, and that the city was not bound to guard the street against such a use, nor could the city be required to anticipate and prevent the accident. While the street was torn up and the ditches flooded, it was the duty of the city to exercise reasonable care to keep the children off the street, the means for so doing being somewhat a matter of discretion on the part of the city. The city could and should have anticipated the danger and should have made some reasonable effort in good faith to avert it.
The foreman for the city realized the danger to children and had cautioned his workmen to keep them away. But when asked if he had seen plaintiffs’ child before it was drowned he answered:
“No, No, No, I got so accustomed to seeing so many children along the street there that I didn’t hardly pay any attention to who the children were. The main thing I looked out was to try to keep them out of the way.”
This testimony supports the finding of the city’s negligence.
The complaint as to the excessive verdict and judgment requires no discussion. The trial court pared down the verdict a thousand dollars, and the amount of the judgment finally awarded, while large, is not so gross as to justify an appellate court in ordering its further reduction.
The judgment is affirmed.
Marshall, J., dissents.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a judgment sustaining a demurrer to the plaintiff’s petition.
The action was one to recover damages for malicious prosecution. A plea in abatement by Parman, alleging that he acted in the matter as city attorney, resulted in a dismissal of the case as to him, which ruling was affirmed when the case was here before. (Smith v. Parman, 101 Kan. 115, 165 Pac. 663.) The case then proceeded against the other two defendants. The plaintiff filed an amended petition on the 5th day of May, 1916, and the only question involved is whether the demurrer to it was rightly sustained. The petition contains three counts. The first alleges that on September 14, 1914, the defendants maliciously caused the plaintiff’s arrest, whereby he was detained at the police headquarters in the city of Arkansas City without probable cause and compelled to pay a fine of $5.00. This cause of action was barred by the statute which requires actions for malicious prosecution to be commenced within one year from the time the cause of action shall have accrued. (Civ. Code, § 17, Gen. Stat. 1915, § 6907.) Moreover, it shows a judgment of conviction, without even alleging that an appeal had been taken therefrom, and the judgment was conclusive of the fact that probable cause existed.
The second count makes the averments of the first a part thereof, and alleges that on September 14, 1914, the defendants maliciously and without probable cause filed a complaint before the police judge charging plaintiff with operating an automobile through the streets at a rate of speed in excess of six miles per hour contrary to a city ordinance; that plaintiff was arrested,brought before the police judge ¡and forced to give a bond in order to keep from being placed in jail; that after his conviction he appealed to the district court where, on the 6th day of March, 1915, he was acquitted by a jury.
Thus far the averments follow substantially those of the original petition, although there appears some attempt to lay stress upon the existence of a conspiracy between the defendants,- but the original petition charged that the defendants conspired together. The principal amendment consists of a statement that defendants gave false testimony in the police court, upon which the plaintiff was convicted; that having taken an appeal in order to escape the judgment, the defendants gave perjured testimony at the trial in the district court. In the original petition it was alleged in this count that defendant Morhain testified falsely against plaintiff on the trial in the district court; but there was no statement that either of the defendants had testified falsely before the police judge. The plaintiff insists that no new or different cause of action is brought in by the amendment; that it merely amplifies and makes more specific the averments of the original petition, within the rule declared in Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657, and cases cited in the opinion. The plaintiff was confronted with the proposition that his conviction in the police court established the existence of probable cause, notwithstanding his acquittal in the district court. In Cooley on Torts, 2d ed., page 185, it is said:
“If the defendant is convicted in the first instance, and appeals, and is aquitted in the appellate court, the conviction.below is conclusive of probable cause.”
To the same effect is Whitney v. Peckham, 15 Mass. 243; Griffis v. Sellars, 2 Dev. & Bat. (N. C.) 492; Clements v. Odorless Excavating Apparatus Co., 67 Md. 461, where it was said:
“A judgment thus rendered ought to be considered conclusive as to the question of probable cause, although it was reversed on appeal by the supreme court; otherwise, in every case of reversal, an action would lie for the institution of the original suit.” (p. 463.)
(See, also, Adams v. Bicknell, 126 Ind. 210; Boeger v. Langenberg, 97 Mo. 390, and Note to the same case, 10 Am. St. Rep. 322.)
It has been held, however, that an exception to this rule obtains where the conviction was secured by false testimony or fraud.
In Crescent Live Stock Co. v. Butchers’ Union, 120 U. S. 141, it was held that—
“The judgment of the court, in favor of the plaintiff, is conclusive proof of probable cause for the prosecution of the suit alleged to be malicious, notwithstanding its subsequent reversal by an appellate court, unless it is shown to have been obtained by means of fraud.” Syl. § 3.)
In Ross v. Hixon, 46 Kan. 550, 26 Pac. 955, it was said in the opinion:
“Again, while a conviction is generally conclusive of probable cause, yet it may be overcome by a showing that it was procured by fraud, undue.means, or the false testimony of the prosecution.” [Citing authorities.] (p. 554.)
It seems altogether probable that the amendment to the second count was made for the purpose of introducing an element which had been omitted from the original petition, in order to escape the doctrine that the conviction in the police court established the existence of probable cause. It can hardly, be said, therefore, that the amendment merely amplified the statements already contained in the original petition. Our conclusion is that the amendment came too late.
The third count alleges that the defendants on the 3d day of March, 1915, wrongfully, unlawfully, and maliciously arrested plaintiff and took him before the police judge, where, in order to obtain his freedom until the day of the trial, he was compelled to give bond for his appearance and to employ counsel; that he suffered the, humiliation of a public trial, after which he was discharged and now stands fully acquitted. The statement that he was arrested and taken before the police judge on the 3d day of March, 1915, we assume to be a mistake, because the. averments of the other counts in the petition and the exhibits are made a part thereof, and these show that the arrest was, made in September, 1914. No cause of action was stated in this count, because, notwithstanding the acquittal in the district court, the conviction in the police court is conclusive of probable cause.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries inflicted by the defendant, who drove his automobile over the plaintiff at a street crossing. The verdict and judgment were for the plaintiff, and the defendant appeals.
Seventh street in the city of Winfield extends east and west. It is crossed by Andrews street, which extends north and south. The plaintiff desired to go from the northeast corner to the southwest corner of the intersection. She intended to take a diagonal course, but discovered a team and wagon, followed by an antomobile, entering the intersection from the west. She took a course more toward the west than toward the south. As the team and wagon came forward the automobile passed north of them' and south of the plaintiff, who was only two or three feet within the north portion of the intersection. Just at this time the defendant approached from the east. Driving his automobile at a speed of twelve miles per hour, the defendant, without warning and without slackening speed, undertook to dart between the wagon and the plaintiff. He knocked the plaintiff down, ran over her, and seriously injured her. The plaintiff was in plain view, and the defendant could have stopped his automobile within the space of two or three feet. With the verdict, the jury returned special findings of fact, which follow:
“1. If plaintiff on approaching 7th avenue had looked to the east could she have seen the defendant’s car approaching'? A. Yes.
“2. What, if anything, was there to prevent plaintiff from passing straight across 7th avenue from north to south on a line with the sidewalk? A. Wagon and automobile.
“3. As defendant, Miller, approached the intersection of Andrews street with 7th street were there other vehicles in or near the crossing which partly attracted his attention and made it necessary for him to look out for them? A. Yes.
“4. After defendant saw plaintiff in the street and in a dangerous position did he use his best judgment and efforts in trying to avoid the accident? A. No.
“5. After having entered upon the street or intersection of 7th avenue and Andrews in what direction or directions did she move before she was struck by defendant’s car? A. South and west.
“6. After the plaintiff stepped upon 7th avenue or the intersection of 7th avenue and Andrews and before the accident, was she delayed or her direct course obstructed by reason of the automobile and the team and wagon on the intersection? A. Yes.
“7. Did the plaintiff just before going south in her effort to cross 7th avenue look east to see if other vehicles or automobiles were coming from that direction? A. No.
“8. Was the plaintiff guilty of negligence which proximately contributed to her injury? A. No.
“9. If you find the defendant was negligent and that such negligence caused the injury complained of, state what particular act or acts, omission or omissions on the part of the defendant caused the injuries. A. Failed to sound horn, failed to put on emergency brake, and driving too fast.
“10. After the defendant discovered the position of the plaintiff in the street did he use all reasonable means within his power under.the circumstances to avoid the accident? A. No.”
The defendant complains of the introduction of certain evidence.
It is said the plaintiff was allowed to prove the defendant’s wealth. What occurred was this: Shortly after the accident deeds of real estate from the defendant to his children were placed on record. The plaintiff desired to show the transfers, as tending to establish consciousness of liability and a purpose to evade satisfaction of such liability. The defendant was asked a preliminary question, what property he owned at the time of the accident. He answered that he owned 640 acres of land. He was then asked what he did with the land shortly after the accident. He answered that he still owned it, and explained that the deeds which were placed on record were deeds of other land, made long before the accident. No attempt was made to prove the defendant’s wealth. The evidence which the plaintiff expected to obtain would have been proper, the method of examination to obtain it was proper, and the plaintiff simply failed to prove what she desired to prove.
The defendant complains of the introduction in evidence of a letter to him from the pastor of a church, which it is argued tended to create sympathy-for the .plaintiff and resentment toward the defendant. On cross-examination of the defendant the following occurred:
“Q. How many times were you up to see Miss Cusick? A. I never went to see Miss Cusick.
“Q. You received a letter from Rev. Gentry? A. I did.
“Q. Never answered that letter? A. No, sir; I thought he was a meddler and did n’t pay any attention.
“Q. I say, you never answered that letter? A. No, sir.”
At this point counsel for the defendant objected, no ground of objection being stated, and the cross-examination closed. The subject of the cross-examination was outside the scope of the direct examination, was wholly immaterial, and the plaintiff was bound by the answers returned. The defendant, however, reopened the subject by testifying to facts justifying him in not visiting the plaintiff, because of apprehension of bodily harm. The letter, which was a friendly one, was then admitted, and the defendant was asked if he was afraid of 'the preacher. The court instructed the jury that the letter could be considered only as bearing on the question whether or not the defendant was afraid to visit the plaintiff. The issue of fear was raised by the defendant. He might have had the cross-examination stricken out, if he had so desired. Instead of this he chose to enlarge upon it, and must abide the result.*
Complaint is made that an instruction which was requestéd was not given, and of instructions which were given.
The requested instruction authorized the jury to infer contributory negligence from the plantiff’s knowledge of traffic conditions usual to. the place, ■ not conditions as they actually existed, and from her failure to look toward the east. It ran counter to instructions which were given, over objection, and which will now be considered.
The court instructed the jury on the subject of contributory negligence in terms of reasonable and ordinary care, to be determined from all the facts and circumstances. The jury were further instructed that a pedestrian about to cross a city street is not necessarily negligent in not looking and listening for approaching automobiles. The instruction was correct. It is not the law of this state that mere presence of a city street crossing cries danger to a pedestrian, however dangerous a few incorrigible automobile drivers may in fact make the public thoroughfares. (Williams v. Benson, 87 Kan. 421, 423, 124 Pac. 531; Ratcliffe v. Speith, 95 Kan. 823, 828, 149 Pac. 740.) In this connection it may be observed the defendant is quite inconsistent. He asks to be acquitted of negligence in not seeing the plaintiff, who was directly in front of him, because his attention was taken by the team and wagon and the automobile following them. He charges the plaintiff, whose attention was taken by the same objects, with negligence because she did not look backward and discover his approach.
Violation of the statute limiting the speed of automobiles on city streets and at street intersections was pleaded and proved. The court stated the terms of the statute in an instruction to the jury. It is said the court should have qualified the instruction by stating that violation of the statute must be the direct and proximate cause of injury, to authorize recovery on that ground. The qualification was contained in another instruction covering all acts of negligence charged.
Certain portions of the instructions were devoted to the doctrine of last clear chance. They need not be discussed, because the jury eliminated the subject of last clear chance from the controversy by finding the plaintiff was not negligent at all. It is contended the finding was induced by erroneous impressions derived from instructions. The court perceives no sound basis for the contention.
In one instruction it was said the burden of proof respecting contributory negligence rested on the defendant, without referring to the fact that the plaintiff’s evidence might be looked to. The instruction is to be read with another which discussed contributory negligence and directed the jury to consider all the evidence bearing on the subject.
Complaint is made of some of the findings of fact.
It is said the fourth finding is not sustained by the evidence. Leaving out of consideration the defendant’s explanation of his conduct, which the jury may hot have believed, the finding is sustained by the evidence. If, however, an affirmative answer based on the testimony most favorable to the defendant were given to the interrogatory, the verdict would not be affected.
It is said the eighth finding is inconsistent with the sixth and seventh findings. The proposition is not argued, and is not capable of demonstration.
It is said the jury were not really instructed with reference to the plaintiff’s negligence. The record does not support the statement.
It is said there was no.evidence that any of the specifications of negligence contained in the ninth finding contributed to the plaintiff’s injury. The court finds no difficulty in relating the injury to the causes stated.
It is said, with reference to the tenth finding, that there is no evidence the accident would have been prevented had the defendant done any of the things he omitted to do. The evidence was that when the defendant discovered the plaintiff he was far enough from her to have stopped his automobile before striking her, and the inference is this could have been done by using the emergency brake. If the defendant had been driving at a lawful rate of speed, it is clear the accident would not have happened. Very likely the jury believed the defendant discovered the plaintiff at a greater distance from him than he estimated, and, if so, sounding the horn would no doubt have saved her.
Some of the objections to the evidence, to the instructions, to the findings, and to the verdict, have not been discussed. They have, however, been considered, and none of them is deemed sufficient to warrant a reversal.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Richard J. Conroy brought an action against the Grand Lodge of the Brotherhood of Railroad Trainmen, alleging that on January 24, 1915, while a member of that organization, he received an injury which entitled him to the payment of $1,500, according to the terms of a beneficiary certificate held by him. A trial was had without a jury. Judgment was rendered for the defendant, and the plaintiff appeals.
No special findings were made or asked. The language of ■the judgment shows that special reliance was placed upon the fact that the claim'was based upon injuries of a'character that made the defendant’s obligation qualified rather than absolute, but, because of the general finding against the plaintiff, any conflicts in the evidence must be resolved in favor of the defendant. There is little controversy, however, over the fácts.
The rights of the holder of a certificate issued by the defendant are defined by its constitution. It provides that upon proof being furnished thát a member has received an injury of a certain kind, described as constituting total and permanent disability, such as the loss of a hand or foot, or of both eyes, he shall be paid the amount named in his certificate. Such an inj ury as that suffered by the plaintiff, however, is provided for in what is designated as section 70, reading as follows:
“All claims for disability not coming within the provision of, Section 68 shall be held, to be addressed to the systematic benevolence of the Brotherhood, and shall in no case be made the basis of any legal liability on the part of the Brotherhood. Every such claim shall be referred to the Beneficiary Board, 'composed of the President, Assistant to the President and General Secretary and Treasurer, who shall prescribe the character and decide as to the sufficiency of the proofs to be furnished by the claimant, and if approved by said Board, the claimant shall be paid an amount equal to the full amount of the certificate held by him, and such payment shall be considered a surrender and cancellation of such certificate, provided that the approval of said Board shall be required as a condition precedent to the right of any such claimant to benefits hereunder and it is agreed ¿hat this section may be pleaded in bar of any suit or action at law, or in equity, which may be commenced in any court to enforce the payment of any such claims. No appeal shall be allowed from the action of said Board in any case; but the General Secretary and Treasurer shall report all disapproved claims made under this section to the Board of Insurance at its next annual meeting for such disposition as such Board of Insurance shall deem just and proper.”
The constitution also contains these provisions, which may-have, some bearing on the case:
“All right of action upon beneficiary certificates shall be absolutely barred, unless proofs of death or total and permanent disability shall be forwarded to General Secretary and Treasurer, as hereinafter required, within six months after such death or disability occurs.
“A member desiring to present a claim under Section 70 shall petition his lodge in Writing upon the form provided by the General Secretary and Treasurer; said form must be properly executed by the claimant, and a regular practicing physician or surgeon, showing the condition of the brother and the basis of his claim. If approved by the lodge, the secretary shall • forthwith forward them with notice of such approval to the General Secretary and Treasurer, who will at once forward to the lodge necessary blanks and instructions for presenting a claim.
“No suit or action at law or equity shall ever be commenced upon any beneficiary certificate by any claimant until after such claimant by appeal has exhausted all remedies provided for in this Constitution, within the time allowed by this Constitution. ,
“Payment of death and total and permanent disability • claims and claims addressed to the systematic benevolence of the Brotherhood, shall be made from the proceeds of the beneficiary assessments on which such claims appear.”
1. Assuming that the allowance and payment of meritorioús claims'under section 70 is obligatory, and not merely optional, it is clear that the intention is to require the claimant to submit his demand, in the first instance at least, to the tribunal there provided. Whether or not any part of the rules qupted may be objectionable as an effort to oust courts of their jurisdiction, it is competent for the association to compel its members to exhaust the remedies which it has provided, before having recourse to litigation. (19 R. C. L. 1226-1228; Supreme Lodge v. Raymond, 57 Kan. 647, 47 Pac. 533.) The defendant assdrts that the plaintiff is precluded from recovery by the fact that he never presented his claim as required by the rules quoted. To this he responds that on November 6, 1915, his attorneys wrote a letter, demanding payment of his claim, to the defendant’s general secretary and treasurer, who sent an answer saying:
“I find that Mr. Conroy was formerly a member of our organization' belonging to lodge No. 41 at Clinton, Ill., however, he was expelled by that lodge on October 1st, 1914, consequently as- he is no longer a member of the Brotherhood, the Organization would not be liable'for any injury sustained by him.” ’ "
The plaintiff contends that this answer excuses his omission to comply with the rules, and amounts to a waiver of all defenses excepting that specifically referred to. The defendant responds that the officer who wrote the letter had no authority to waive its rights — that such is the law of Ohio, and that the contract by its terms is to be interpreted according to the laws of that state. Out of the rather extensive field of issues thus presented, we select for consideration the one most closely related to the substantial rights of the parties — the question whether the plaintiff was a member of the order at the time of his injury.
2. Dues were required to be paid monthly, in advance, before the first day of each month. The failure to make payment within the time stated automatically effected an expulsion. The plaintiff joined the order in April, 1914. His dues for the following December were not paid. A meeting of the local lodge to which he belonged was held on the evening of December 2, and at that time an entry was made in the record of the proceedings reading: “Treasurer’s report of expelled members. The following members were reported expelled : R. J. Conroy.” . Obviously, the purpose of this was not to show the plaintiff’s expulsion by action of the lodge, but to make a formal record of the fact that his membership had been terminated by his failure to pay his dues. On December 4, he received a. notice, dated December 2,. stating that he had been expelled. On December 14, his sister, who- had been attending to his payments, sent the amount of his December dues to the lodge treasurer, but it was refused. No application for his reinstatement was made. As already mentioned, the injury occurred January 24, 1915. On July 13, 1915, the plaintiff, according to his testimony, mailed a letter to' the general secretary and treasurer stating that his attorney had told him he had not been expelled, and that he was entitled to his money for his disability, and asking for blanks to use in making out his claim. The defendant’s evidence is that no such letter was received. The only other correspondence on the subject was that already referred to — the letter of November 6, and its answer.
The plaintiff’s failure to pay his dues for December, within the time prescribed, worked a forfeiture of his membership, according to the terms of his contract. To avoid this effect he relies upon the establishment of a practice on the part of the defendant of accepting payments after the expiration of the period fixed by the constitution. The scope of the general rule in that regard, and its limitations, are indicated in the following statement of it, a clause having .especial bearing upon the present situation being here italicised:
“Where a mutual benefit association has, in repeated instances, received írom a member the payment of overdue assessments, so as to establish a custom or course of dealing between the parties and lead the member to believe that a strict observance of a requirement as to the time of payment is not required, it is held that the certificate of insurance is not forfeited by failure to pay an assessment at the time when the by-laws of the society or a stipulation in the certificate requires it to be paid provided it is paid within the customary period of extension of the time of payment, lor the association is estopped by its course of conduct from claiming a forfeiture according to the strict letter of its contract.” . . . “But to invoke the doctrine of estoppel under such circumstances, the course of conduct must amount to an actual custom and not consist of occasional acts of indulgence on the part of the association. And it must be shown that the delinquent member had notice of the practice and relied thereon.” (19 R. C. L. 1274, 1275.)
There was evidence that the collector of the local lodge was in the habit of receiving dues after the time fixed, but only within a definite period. He testified: “Our pay day falls on the first, but the dues are supposed to be paid before, but I always accept money between the first and the fifth, because I have five days of grace to send this money away.” There is no evidence of any practice of receiving dues after the 5th. Another witness gave this testimony: “I worked with the financier three or four years I expect and have taken as many as a dozen or fifteen dues between the first and the fifth.” The plaintiff’s sister, who had made all the payments in his behalf, testified: “I always paid the dues for my brother about the first of each month. I never paid them after the second or third of the month.” A practice of the collecting officer to accept past-due payments which are offered before the making up and transmission of his report cannot be regarded as affecting an indefinite extension of the time of payment. Here no tender of the plaintiff’s December dues was made before the 15th. No practice of receiving dues at that date was shown to exist, whether known to the plaintiff or not, and we hold that the belated offer was not sufficient to cqntinue his membership in force.
■ 3. If action by the lodge had been necessary to bring about the expulsion of the plaintiff, and had been taken on the second, it might be regarded as ineffective because contrary to the custom which had been established. But no such action was necessary or was in fact taken.' If the local officers had been offered the money necessary to keep the plaintiff in good standing, before they had made a report — while the record was still within their control — they might have accepted it “nunc pro tunc” and amendéd the entries accordingly. The mere making of an entry showing such a noncompliance with the rules as in itself by the written law worked a forfeiture, although it may have been tentative and subject to recall if compliance should be made within the period of grace allowed by usage, is not tantamount to affirmative action attempting an expulsion in violation of an established custom. No connection whatever is shown between the notification to the> plaintiff that he had been expelled and the delay on the part of his sister in sending the money for his December dues.
4. Assuming that the duties of the general secretary and treasurer were of a character to make the defendant fully responsible for his letter above quoted, and that its statements are such as to cut off all defenses except that based upon the plaintiff’s loss of membership, we think it would be extending the principle of waiver too far to hold that because the letter stated that the plaintiff had been expelled on October 1 the association could not rely upon an expulsion which took place December 1. The situation is quite different from that presented in Mayes v. Knights & Ladies of Security, 92 Kan. 841, 142 Pac. 290. There dues were required to be paid before the last of each month. No payments were made in June or July, 1909, but the dues for June, July, and August were all offered at once, and accepted. In the litigation which followed, the association asserted that this payment was not made until September 4, but the claimant contended, and the court found, that it was made on August 31. The death of the member occurred September 8. In response to a claim against the association, its president wrote a letter denying liability on grounds which were thus stated:
“ ‘The assessment .and dues of Mrs. Mayes, which were due on the first day of August, and which she had until midnight of the' last day of August to pay, were not paid 'to the financier of Free Silver Council No. 198 until September 4. Consequently, the deceased was suspended for nonpayment of the August assessment and dues from midnight of August 31 until September 4, 1909. . . . We are in possession of evidence that can not be questioned showing that the deceased was seriously ill on September 4, 1909. . . . Consequently, no reinstatement could possibly have been had on the date that payment was made by the sister of the deceased', which was September 4, 1909, owing to the physical condition of the deceased when the attempt was made to reinstate her.’ (pp. 843, 844.)
It was held that the defense was limited to the controversy-over the August dues, the court saying:
“With the knowledge of the facts, as we must presume, and as implied in his letter, the president of the association placed its refusal to pay .the certificate distinctly upon the alleged failure to make the August payment, without making any objection or claim because the other payment^ were made without producing a health certificate, thereby apparently adopting the act of the financier in receiving the June and July payments.
“When the demand for the allowance of the claim was made upon the association it could insist upon, or waive,, any forfeiture or forfeitures claimed. It elected to rely only upon the forfeiture claimed by reason of the delay in the August payment, thereby waiving any others it might have claimed.” (pp. 845, 846.)
In the present case the writer of the letter testified that the word October was used in place of December through a mere clerical error, the records showing the latter date. The plaintiff knew that his expulsion was for the nonpayment of dues; that he had paid his October dues, and had not paid those for December; the records of his lodge showed the grounds of his expulsion, and doubtless the notice sent him did also, although it was not produced in evidence. The' defendant’s secretary did not elect to rely upon the effect of one of several delayed payments. There was no controversy or question with respect to any dues other than those for December. The mere unintentional error in indicating the month of the plaintiff’s default is not a just basis for imposing upon the defendant a liability to one who had ceased to be a member of the order.
The judgment is affirmed;
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to compel the specific performance of a contract by which Cornelius Kelly, as alleged by the plaintiff, agreed that if she would live with Cornelius Kelly and Jane Kelly, his wife, as their daughter, all the property owned by Cornelius Kelly should be the plaintiff’s, and that she would be the only heir of Cornelius Kelly, and would receive all of his property at his death. Judgment was rendered in favor of the defendants, and the plaintiff appeals. The trial court made special findings of fact and conclusions of law as follows :■
“1. The plaintiff is the daughter of Jeremiah C. Denny, who died about July 12, 1869, leaving the plaintiff and her three brothers orphans, their mother having died previously. Cornelius Kelly was a sergeant in the United States Army at Fort Leavenworth, Kansas, about that time and about the year 1873 said Cornelius Kelly and his then wife, Jane Kelly, being childless, took the plaintiff and her brother, Jerry Denny, to raise. Where the plaintiff and her said brother were before being taken into the family of said Cornelius Kelly is not shown in the evidence, but in the argument of the case it was conceded that they were taken from a local orphan asylum. On what terms or conditions the plaintiff was taken into the family of Cornelius Kelly or whether there were any conditions whatever is not shown in the evidence. However, Cornelius Kelly and his wife took the plaintiff into their home, reared her, sent her to the parochial school at Fort Leavenworth, Kansas, and later on, after they moved to the city of Leavenworth in 1889, sent her to St. Mary.’s Academy, where she graduated in the year' 1892.
“2. Cornelius Kelly and his wife, Jane Kelly, were kind to the plaintiff and referred to her as ‘Katie’ and ‘our Katie’ and sometimes as ‘Katie Kelly’; but she was also known by the earlier residents of Fort Leavenworth as ‘Katie Denny’ and was sometimes called ‘Katie Kelly’ and sometimes called ‘Katie Denny’ and her brother was called and known as ‘Jerry Denny.’ The plaintiff also referred to and called Cornelius Kelly and his wife ‘father’ and ‘mother,’ and they treated her with considerable kindness and affection, which in her younger years was reciprocated by her.
“3. After retiring from the army, Cornelius Kelly and his wife moved to the city of Leavenworth, Kansas, the exact date not being clearly shown. The plaintiff came to Leavenworth with Mr. and Mrs. Kelly and-lived with them and continued to be treated as a member of the family until about 1889, when Cornelius Kelly sent the plaintiff to St. Mary’s Academy for further education. Upon her entrance into the academy she was registered as ‘Katie C. Denny.’ She graduated from the academy in-1892. During her attendance at the academy she made frequent visits to the home bf Mr. and Mrs. Kelly and continued to treat and regard it as her home and Cornelius Kelly received and signed the reports made by the teachers on printed forms for that purpose and under the line on which his signature was to be written were the printed words ‘parent or guardian.’ He signed these reports but he ,did not write the words ‘parent or guardian’ or either of them, but only signed his name ‘Cornelius Kelly’ on the report sent him by the teachers at. the academy.
“4. After her graduation she returned to the home of Mr. and Mrs. Kelly, in Leavenworth, Kansas, and remained there for several months, living with Mr. and Mrs. Kelly as a member of their family, until about 1893. Up to this time friendly and affectionate relations existed between the plaintiff and Mr. and Mrs. Kelly. She had not been required at any tilne to do any hard or laborious work and both Mr. and Mrs. Kelly had stated at different times that they expected to leave their property to her; that they had no one else to leave it to; that she would get all their property when they were gone — meaning when they were dead.
“5. About 1893 the plaintiff obtained employment as secretary of All Saint’s Hospital, at Kansas City, Missouri, receiving good wages, where she remained for perhaps two or three years, during which time she often visited Mr. and Mrs. Kelly. She then took a course in a business school, learned stenography, and obtained employment in the office of a law firm in Kansas City, Kansas, where she remained until about 1898, when she was married to William McKeown. During her employment in this law firm in Kansas City, Kansas, she often visited Mr. and Mrs. Kelly and their relations were friendly and affectionate. There was no objection on the part of Mr. Kelly or Mrs. Kelly to the marriage of the plaintiff to William McKeown, and after her marriage, the plaintiff and her husband visited at the home of Mr. and Mrs. Kelly, and they expressed and showed a continued friendship and affection for plaintiff and a kindly regard for her husband.
“6. After her marriage, the plaintiff removed with her husband, to Colorado, where she has since resided. In the year 1907, Mrs. Jane Kelly was taken sick. The plaintiff came from her home in Colorado and stayed with Mrs. Kelly about a week, when Mrs. Kelly seemed much better and the plaintiff returned, .to her home in Colorado. In 'a short time thereafter Mrs. Jane Kelly became worse and shortly died. Plaintiff returned to Leavenworth and attended her funeral and remained a few days at the Kelly home.
“At or about the time of the funeral of Mrs. Jane Kelly, some unpleasantness occurred between Cornelius Kelly and the plaintiff because of the plaintiff’s interference with the funeral arrangements and this, incident seems to have caused Cornelius Kelly some embarrassment with his friends and occasioned some resentment on his part towards the plaintiff.
“7. After the funeral of Mrs. Jane Kelly in June, 1907, and before her return to her home in Colorado, Cornelius Kelly gave plaintiff some money and jewelry amounting to the sum of about one thousand dollars and stated to some of his friends that he was done with her. Plaintiff returned to her home in Colorado and continued to write to Cornelius Kelly and he answered some of her letters.
“In one of his letters, dated August 9, 1907, he said, among other things, ‘Made my will, did not forget you.’ In another letter, dated December 12, 1910, he said, among other things, ‘I deeded my property to orphan asylum and willed my other assets to you — have nothing now but my pension; it meets my wants.’
“8. Cornelius Kelly continued to reside in his home on North Eighth Street, in the City of Leavenworth, Kansas, and on the 15th day of November, 1911, he was united in marriage to Margaret Sullivan, one of the defendants in this action. On November 20, 1911, he wrote plaintiff advising her of his marriage and after that time there seems to have been little communication between him and the plaintiff.
“9. On April 27, 1915, Cornelius Kelly made and executed his last will and testament, which has been duly admitted to probate, and in which will and testament the plaintiff was willed one hundred dollars. Various other bequests were contained in said will, some for charitable and religious purposes, and the remainder of his estate was willed to his second wife, Margaret Kelly, one of the defendants in this action.
“At and before the making of his will Cornelius Kelly stated that he had never adopted the plaintiff, that he had raised and educated her and that he was under no obligations to her whatever, and that he did not wish to leave her anything in his will, but his wife, Margaret Kelly, one of the defendants in this action, insisted that he leave her something and he therefore willed her the one hundred dollars above stated.
“10. The evidence does not prove that Cornelius Kelly or his wife, Jane Kelly, ever entered into any agreement of, any kind with the plaintiff or with any other person or persons, by which there was ever any understanding or agreement of any kind or nature, that the plaintiff, under any circumstances, conditions or consideration, was to have or receive any of their property at the time of their death, or the death of either of them, and therefore the allegations in the plaintiff’s petition in that regard have not been proven.”
CONCLUSION OP LAW.
“1. The prayer of the plaintiff’s petition should be denied and judgment entered in favor of the defendants for costs.”
1. The plaintiff presents five specifications of error; three of which are as follows:
“First. The trial court erred in not awarding plaintiff judgment for specific performance’ as prayed for in her amended petition.
“Third.' The trial court erred in refusing to sustain plaintiff’s motion to vacate and set aside the 10th finding of fact and the conclusion of law, made by the court, and to substitute therefor a different finding and conclusion, -as set forth in her motion so to do.
“Fourth. The trial court erred in refusing to sustain plaintiff’s motion for judgment in her behalf on the grounds set forth in her motion therefor.”
The plaintiff states that “these three specifications all have to do with the 10th so-called finding and the sole conclusion of law made by the trial court,” and argues that,
“The trial court evidently based its so-called 10th finding and its sole conclusion of law on the erroneous theory that plaintiff had to prove a specific, express contract between herself and Cornelius Kelly by direct evidence.”
The plaintiff also says:
“The case is brought before this honorable court because it is evident from this 10th finding and its conclusion, of law that the trial court either entirely misconceived or wholly disregarded the law of this state in cases of this character, as laid down by a long) line of decisions of this court entirely in harmony with each other.”
To. support her contention, the plaintiff cites a number of cases decided by this court. In each of these cases a contract was clearly and definitely established.
Under her petition, it was necessary for the plaintiff to prove a contract between herself and Cornelius Kelly; but it was not necessary to prove that contract by direct evidence. Circumstantial evidence would have been sufficient, but the contract should have been clearly and definitely established. (Anderson v. Anderson, 75 Kan. 117, 127, 88 Pac. 743.) The evidence, as abstracted, has been carefully examined, and no evidence is disclosed by which to establish that a contract was ever made. The tenth, finding of fact was correct.
2. Another specification of error is that the trial court erred in refusing to sustain the plaintiffs motion to modify certain findings of fact. These were numbered 1 to 9, inclusive. The plaintiff says:
“A very large portion of nine of the ten findings made by the trial court was favorable to plaintiff, therefore she could not ask that the nine be vacated. She could only ask that they be modified so as to conform and adhere to the material evidence and testimony and .that such portions of them as were not material or were not supported by material testimony, be left out of them.”
It was the duty of the trial court to find the facts from the evidence introduced. The court made complete findings, and those findings were supported by the evidence.. No sufficient reason is advanced by the plaintiff for striking out any portion of any finding, nor for adding, anything thereto. An examination of the evidence does not disclose any such reason. The plaintiff’s motion was properly denied.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued the railway company, the terminal company and the city of Wichita for obstructing the ingress to and egress from his two wholesale houses fronting on Fifth avenue and recovered a judgment for $4,000 against the two companies, the verdict being in favor of the city.
Douglas avenue is intersected by Fifth avenue near the union station, and the plaintiff’s buildings are located on four lots, each 25 feet wide, the southern line of which tract is about 300 feet north of Douglas avenue. In.the construction of the Douglas avenue subway as a part of the union station enterprise, a depression was made which the jury found would have prevented teams and vehicles from passing from Fifth street upon Douglas avenue or from the latter upon the former. The depression was about a foot in depth, and there was a concrete curb put in from the south edge of the sidewalk to the street bed. But the jury also found that but for a certain wall across the south end of Fifth avenue,“It would have been practicable for teams, wagons and other vehicles to pass from Douglas avenue into Fifth avenue and from Fifth avenue into Douglas avenue.”
This wall was of cement, about 19 feet long, one foot thick and five or six feet high and was located against the north side of the sidewalk along the north line of Douglas avenue. Certain railroad tracks along Fifth avenue were rearranged to accommodate the condition brought about by the construction of the union station. The statement of facts in Campbell v. City of Wichita, 101 Kan. 817, is referred to for the general features of the situation.
The petition alleged:
“That the said property was accessible from the east by Fifth avenue, and from the west by an alley in the rear of said building; that on the 4th day of April, 1914, these defendants and each of them did entirely close up Fifth avenue and did erect at a point'where the same intersects Douglas avenue a large blockade, to wit: a cement wall several feet high, and'entirely close the said street and render useless the same as a street or highway,, . . . and that by the erection of the said barricade as aforesaid the same wholly impaired and destroyed said Fifth avenue and rendered it wholly, useless as a public highway and by said-obstruction the plaintiff has been deprived of all means of ingress and egress to and from his said premises from the east end thereof. . . . That by reason of the action of the said defendants and each of them in closing up and permitting the closing of said street, this plaintiff has been damaged in the sum of fifteen thousand ($15,000) dollars. Plaintiff further alleges that ... he filed with the said clerk of the city of Wichita . . . - a claim against said city of Wichita to the specific injury aforesaid.....”
One of the instructions requested by. the plaintiff was:
“The jury are instructed that if you believe from the evidence in this case that the property of the plaintiff described in the petition has been depreciated in value by reason of the erection and construction of the wall or bulwark in question, then you are instructed that the plaintiff is entitled to recover the amount of the depreciation in value so sustained by it to the property aforesaid as shown by the evidence and you will assess such sum as will compensate plaintiff for the depreciation in value so sustained.”
Yet the court below, over the persistent objections of the defendants, permitted the plaintiff to introduce a large volume of testimony as to the damage claimed to have been caused by the rearrangement of the tracks, and this feature is prominent also in the instructions and in the special findings.
In answer to this assignment of error it is suggested, among other things, that the claim filed with the city clerk was set out and made a part of the petition and contained the averment,
“and the street has been entirely filled by said railway companies and the street is entirely blocked, and claimant is entirely shut off from using said property .for said purposes.”
But the entire pleading is susceptible to the one contruction only — that the plaintiff relied on the wall as the sole ground of recovery. It was error therefore to receive the testimony and not to omit the instructions and findings touching the rearrangement of the tracks as an element of damage, for the all-sufficient reason that the plaintiff had not pleaded it. The jury, however, were asked to and did separate the amount of their verdict into $2,500 on' account of the wall and $1,500 for the rearrangement of the tracks, and the error as to that part of the judgment might have been rendered harmless by elimination.
It is complained that the court permitted damages to be proven on the basis of the plaintiff’s right to occupy a part of Fifth avenue with his dock, but by the instructions this was eliminated and the error,- if error it was, thereby lost its sting.
The court is criticised for submitting of its own motion certain special findings concerning which it is said there was no testimony. But if there was no direct evidence there were physical facts from which certain inferences as to the wall (about which most of these questions were asked) might be drawn, and no error in this respect is disclosed.
The terminal company urges, that as the jury found that the tracks were rearranged by the Santa Fe, this of necessity relieved the other company from liability therefor. But they also found that this rearrangement was part of the general scheme of elevation. Hence, no error.
In the motions for new trial each of the defendant companies complained that the special findings were inconsistent with one another. One of the nineteen assignments of error is the overruling of the motions for a new trial. It cannot be possible that the depression in Douglas avenue, as already described, did'and at the same time did not prevent the passage of teams and vehicles from one street into the other, and yet the jury deliberately found both ways on this point. One of two results must inevitably follow: Either the erection of the wall did not destroy the plaintiff’s ingress and egress because they had already been destroyed, or else the two defendants are required to pay $4,000'because they did, although they did not, obstruct the plaintiff’s ingress and egress by the erection of the wall. This sort of Janus-faced findings will not do.
The plaintiff himself testified that for fifteen years before the construction of the wall Fifth avenue was like any other street in Wichita, except that the Santa Fe had one or two tracks extending down the street to a certain point and then veering to the southeast toward the old depot, making the street clear of tracks south of the Potts warehouses and that—
“There was a cement wall built across Fifth avenue at the intersection of Douglas avenue, shutting off all traffic by teams on Fifth avenue.”
“Tracks were set very closely together and extended directly down to Douglas avenue,', cutting out this slant that I have previously described, thereby closing the street entirely.”
In another place, on cross-examination, he testified, when asked as to the depreciated value of his property:
“I think the concrete wall was the last straw. That is what did the business. I think that was the culminating thing that ruined my property.”
As to the depression in Douglas avenue he testified:
“I think it was depressed about a foot or a little more. There was a concrete curb put in from the south edge of the sidewalk to the street bed, and it is in there now. ... If there was no provision made for bridging it would cut off the driving of teams from Douglas avenue up into Fifth avenue. The fact that the curbing was put in from the edge of the sid&walk down to the street bed would indicate there was no provision for a driveway from Douglas avenue up to Fifth avenue. There was no driveway put in there to my knowledge.”
In view of this evidence and one of the findings of the jury, both of which are clear, to the effect that entrance upon Fifth avenue from Douglas avenue with teams and vehicles was completely obstructed, regardless of the concrete wall and regardless of the change in the tracks on Fifth avenue, it is impossible to see how the building of the wall or the changing of the tracks accentuated the fact which already existed or added anything to what was already a complete practical obstruction of ingress and egress. -
The jury found that at the time of the wrongs complained of in the petition—
“There was and has ever since been a public and dedicated street thirty-five feet wide situated between the plaintiff’s property and Douglas avenue, and extending west from Fifth avenue to and intersecting with -an alley or passageway funning north past plaintiff’s property to First street.”
Also that—
“There has ever since been a dedicated and public alley fifteen feet wide, extending north from Douglas avenue to and intersecting with this thirty-five foot street.”
The blueprint set out in the abstract shows plainly that there is a fifteen-foot alley running north about 137 feet from Douglas avenue one-half block west of the wall in controversy, there entering the street thirty-five feet wide running east to Fifth street, and an alley twenty feet wide running north.to First street, so that the only obstruction the wall in question could have caused, aside from the depression in Douglas avenue, would be to divert the travel one-half block west; whence by going 137 feet north there would be access by a street thirty-five feet wide east to Fifth avenue, thence north by the plaintiff’s property. It would seem from the opening statement and from the plaintiff’s testimony that he claims to have been injured by additional tracks being laid in the street east of his property, but it is undisputed that the plaintiff himself built a dock or platform ten feet wide east of his buildings on what would be the sidewalk if there was one in Fifth avenue, no part on his ground, as he testified himself:
“That dock is built of stone and brick and has piers of white oak, I think, in it, and the surface of it is two-inch oak so that it makes a permanent structure there. The Santa Fe tracks are east of this dock. . ; . I did not use Fifth avenue for the purpose of driving teams up.to the east edge of my dock. Just to get the freight out of the cars or to get it into the cars.”
In view, therefore, of the plaintiff’s pwn obstruction of Fifth avenue and the other matters already referred to, it is impossible to see how he can rightly claim damages for the rearrangement of the tracks or the erection of the concrete wall.
The plaintiff appeals from the judgment in favor of the city, but as the jury found on sufficient evidence that the claim for damages against the city had not been filed in time, the judgment in favor of the city must for this reason alone be affirmed. (Campbell v. City of Wichita, 101 Kan. 817, 168 Pac. 833.)
The judgment against the other defendants is reversed with directions to enter judgment in their favor.
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The opinion of the court was delivered by
Thiele, J.
This is an original proceeding in quo warranto, its essential purpose being to obtain a determination of the validity of statutes later mentioned and which purport to validate the establishment of certain school districts. After the defendants had answered, the plaintiff moved for judgment on the pleadings and the cause was briefed and argued on that motion. Upon consideration of the matter, this court on October 9, 1947, made its order that/ judgment should be rendered in favor of defendants and that its written opinion should be filed when it could be prepared.
Stated in a summary way, the petition alleges that pursuant to Laws 1945, chapter 291 (the school reorganization bill) appearing as G. S. 1945 Supp., chapter 72, article 56, the duly appointed reorganization committee of Brown county, following proceedings had under the above act, on December 5, 1946, made its order disorganizing then existing common school districts numbers 18, 35, 61 and 65 in Brown county and purporting to create a new district designated as common school district No. 87, and. filed that order with the county superintendent df Brown county, and caused it to be published and served in time and manner provided by the above statute; that the school patrons and school districts affected by that order did not apply for a rehearing as authorized by the above statute and the order became final on January 18, 1947; that for the purpose of making the final order effective and to comply with the above statute, the county committee designated a time and place for the election of a school board and duly posted notices thereof and on February 18, 1947, the individual defendants were duly elected and qualified. It is also alleged that at a purported annual meeting of common school district No. 87, held on April 11, 1947, the defendants were reelected to their respective offices and qualified. Plaintiff then alleges that on June 27, 1947, this court, in an action entitled State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865, held all provisions of the above statute unconstitutional and void, and, in brief, that the acts of the committee, in the attempted disorganization of common school districts numbers 18, 35, 61 and 65 were wholly void as was its purported attempt to create the new common school district No. 87, but notwithstanding, defendants called and held an annual meeting for common school district No. 87 on April 11, 1947, at which meeting the electors of the district attempted to reelect defendants to their respective offices, to adopt a budget, to employ a teacher, and to provide other necessary functions of the purported district. Plaintiff further alleges that at the 1947 session the legislature enacted bills now appearing as Laws 1947, chapter 375, and Laws 1947, chapter 377, purporting to validate all orders of the county committee which organized a new district, quotation being made of a part of the last statute, and that each statute is unconstitutional, void and of no effect for the reason that said statutes purport to validate acts done and school districts created pursuant to a law which has been declared by this court to be unconstitutional and void. Unconstitutionality of Laws 1947, chapter 377, is further asserted on three other grounds: (1) That the statute contains more than one subject, thus violating article 2, section 16 of the constitution of this state; (2) that the statute amends G. S. 1945 Supp. 72-301 and 72-5616 without containing the sections amended and repealing them, thus violating the last-mentioned section of the constitution; and (3) that section 2 of the statute purports to vest legislative power in the county superintendent and the county reorganization committee, in violation of article 2, section 1 of the state constitution. The prayer is that defendants be compelled to show by what authority they exercise their powers, as officers of the district and that they be ousted from usurping purported authority attempted to be conferred upon them by the above mentioned statutes; that purported common school district No. 87 be set aside and dissolved; that com mon school districts numbers 18, 35,' 61 and 65 be adjudged valid and existing and that Laws 1947, chapter 375, and Laws 1947, chapter 377, be declared unconstitutional and void.
Defendants in their answer do not deny the facts pleaded as outlined above, but do deny the legal conclusions pleaded with respect thereto. They allege that the legislature, under article 2, section 1 of the state constitution, has power and authority to validate matters legislative in character sought to be exercised by Laws 1945, chapter 291, and to establish and make valid school districts created thereunder by orders which became final on or before March 1,1947, and that the enactment of Laws 1947, chapter 375, and Laws 1947, chapter 377, created new school districts which the legislature is authorized to establish pursuant to article 2, section 1, and article 6, section 2 of the state constitution. Defendants also deny that Laws 1947, chapter 377, is unconstitutional for any of the reasons asserted in the petition. Allegations as to the number of school districts created under G. S. 1945 Supp., chapter 72, article 56, where orders become final on or before March 1, 1947, and which are validated by the 1947 acts, amounts of bonds issued, and such allegations need not be repeated. The prayer of the answer is that the validating acts mentioned be held to be constitutional, and that proceedings complained of be adjudged to be proper and lawful.
In reviewing the pleadings we have-not set forth allegations that an actual controversy exists as to the rights of the various parties, nor their requests for a declaratory judgment.
Preliminary to a discussion of the propositions of law involved, it may be said in addition to the briefs filed by plaintiff and defendants, six briefs have been filed by amici curiae. In these briefs are citations of many authorities, many of the authorities cited being cumulative in character. For that reason no attempt will be made to refer to many of the decisions and texts mentioned in the briefs.
In presenting his contentions that Laws 1947, chapter 375, and Laws 1947, chapter 377, are invalid, plaintiff states four propositions, which will be treated in the order presented.
I
It is first contended the above acts are unconstitutional and void for the reason the legislature cannot validate a statute that has been declared unconstitutional. As a preliminary to this contention plaintiff directs attention to the fact that the creation of a school district is a legislative function, and that may be conceded. See State, ex rel., v. Hines, 163 Kan. 300, 302, 182 P. 2d 865, and cases cited. After stating it is settled that the legislature can enact curative statutes and validate errors or irregularities in legal or administrative proceedings except such as are jurisdictional or do not impair vested rights, he quotes substantially what is said in Beeler & Campbell Supply Co. v. Warren, 151 Kan. 755, 100 P. 2d 700, where at page 761 of our reports this court deals at some length with the nature and effect of curative legislation. Reference is made to the statement there contained which will not be repeated.
Plaintiff then says that although cognizant of the above decision, his contention is that the legislature cannot enact a curative act validating a law which has been declared unconstitutional because of unlawful delegation of legislative power, and in support of that contention quotation is made from 6 R. C. L. 321,11 Am. Jur. 1210, 16 C. J. S. 876, 877 and 878, ’as well as from certain cases as the same are digested in an annotation appearing in 70 A. L. R. 1436 et seq., on the constitutionality of curative statutes purporting to validate prior unconstitutional statutes or statutes not enacted in the manner prescribed by the constitution. For present purposes it may be conceded that if that is the purpose of the statute, the weight of authority supports the contention. The same annotation however states that if the legislature had the power to authorize the acts in the first instance, it may, in the exercise of that power, subsequently ratify the action taken by its agents. The decisions of this court are in accord with the last statement.
In Beeler & Campbell Supply Co. v. Warren, supra, where a review of authorities and some of our decisions was made, it was held:
“Curative statutes are necessarily retrospective in character, and may be enacted by the legislature to validate any proceeding which it might have authorized' in advance or have dispensed with altogether, provided such legislation does not impair vested right but only confirms rights already existing.
“Statutes curing defects in acts done, or authorizing and confirming the exercise of powers, by a domestic corporation are valid where the legislature originally had authority to authorize the acts done or to confer the powers exercised, so long as contracts are not impaired or vested rights disturbed thereby.” (Syl. Uff 2, 3.)
Other cases not cited in the above decision, but where the same rule was announced or recognized, include State, ex rel., v. Comm’rs of Pawnee Co., 12 Kan. 426; City of Emporia v. Norton, 13 Kan. 569; City of Emporia v. Bates, 16 Kan. 495; State, ex rel., v. Stevens, et al., 21 Kan. 210 ; Sullivan v. School District, 39 Kan. 347, 18 Pac. 287; State, ex rel., v. Hamilton, 40 Kan. 323, 19 Pac. 723; State, ex rel., v. Robertson, 41 Kan. 200, 21 Pac. 382; Newman v. City of Emporia, 41 Kan. 583, 21 Pac. 593; State v. Scott Co., 58 Kan. 491, 49 Pac. 663; James v. Haynes, 79 Kan. 608, 100 Pac. 622; Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016, 22 L. R. A., n. s., 534; Shepherd v. Kansas City, 81 Kan. 369, 105 Pac. 531; State v. Pauley, 83 Kan. 456, 112 Pac. 141; State, ex rel., v. City of Salina, 108 Kan. 271, 194 Pac. 931; Getty v. City of Syracuse, 129 Kan. 106, 281 Pac. 883; City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937; Piper v. Moore, 163 Kan. 565, 183 P. 2d 965.
We examine the statutes under consideration in-view of the rules above stated.
Insofar as Laws 1947, chapter 375 is concerned, we note that in the case before us after the new district No. 87 was created on December 5, 1946, an election of a school board was had on February 18,1947. The above statute, by its terms, purports to validate only where the election was held after February 28, 1947, and therefore this particular act is not involved under the facts before us.
Insofar as Laws 1947, chapter 377 is concerned, reference to its title and discussion thereof is reserved for-later consideration. By reason of the time fixed therein, the provisions of section 1 are not of present importance. On the point for present consideration we are concerned only with that part of section 2 which for our purposes reads as follows:
“That where the county school organization committee of any county . ’. . has organized a new school district' . . . and the order of the county committee . . . became final on or before March 1, 1947, such order organizing such new school district ... is hereby declared to be operative and effective and validated as of March 1, 1947, even though all preliminary steps necessary to make such order operative and effective were not complied with.”
It may be observed the statute last referred to is broader than and covers much of the same matter included in Laws 1947, chapter 375.
In State, ex rel., v. French, 111 Kan. 820, 208 Pac. 664, it was held that school districts, like many other municipalities, are purely creatures of the legislature and subject not only to its power to create but its power to modify or dissolve.. In School District v. Board of Education, 110 Kan. 613, 204 Pac. 758, it was held there-are.no vested rights in the existence of a school district, and that the legislature has authority to extend or limit their boundaries, consolidate two or more under one, or to abolish a district altogether. Other authorities to like effect could be cited, but the above are deemed sufficient to show that under the facts pleaded no contracts are impaired nor vested rights disturbed by the legislation under consideration.
Bearing in mind the rule that constitutionality of a statute is presumed, and that if there is any ambiguity in its language, the statute is to be interpreted as constitutional rather than unconstitutional (Hunt v. Eddy, 150 Kan. 1, 90 P. 2d 747), we examine the statute under consideration in view of the attack made upon it.
It may be observed that there is no language in the statute susceptible of interpretation that the legislature was attempting to validate any law, particularly the school reorganization law enacted as Laws 1945, chapter 291 (G. S. 1945 Supp., chapter 72, article 56). The validating statute under consideration refers specifically to acts done, as the quotation made shows, and if those acts done resulted in an order organizing a new school district, ’ and the order became final on or before March 1, 1947, that order was declared by the legislature to be operative and effective and validated.
Under the authorities above noted, the legislature could have fixed the boundaries of every common-school district in the state— it could have delegated that duty to the state superintendent or the county superintendent, but it need not have done so. Having power to authorize in advance or to dispense entirely with any intermediate action, it was within its competence to adopt the result of an unauthorized act, and to declare that act operative, effective and valid, and that we think it did.
In one brief some reference is made to the latter portion in the language of the statute as quoted and it is argued that the validation extends only to those cases where all preliminary steps necessary to the final order were not complied with. We think that construction untenable, and that on the contrary the legislature intended that all districts were validated where the order became final on or before March 1, 1947, notwithstanding there might have been some defect in the preliminary proceedings.
II
Plaintiff contends that Laws 1947, chapter 377, contains more than one subject which is not clearly expressed in its title, thus vio lating article 2, section 16 of the state constitution. The title of the act reads:
“An act relating to schools and the reorganization of school districts, validating the organization of certain school districts, validating certain school boards and certain acts performed by such boards, providing for appointment of school boards in certain cases, and providing for the disorganization of certain school districts.”
Reference is made to the act for a full and complete statement but it is noted that section 1 of the act purports to validate districts where the order of the committee became effective on or before March 1, 1946. Section 2 purports to validate districts where the order became final on or before March 1, 1947, and contains four provisos. Of these provisos the effect of the first is to declare a school board elected on or before February 28, 1947, the legal board; the effect of the second is to provide for appointment of a board where the election was not held on or before February 28, 1947, and until the annual school election on April 11, 1947; the effect of the third is that where the county superintendent is unable to find three persons willing to serve on the board he may attach the proposed -reorganized district to some adjoining district, and the fourth refers further to the school board and its election. The last sentence of the section directs the school board to prepare a budget, to post notices of the school meeting and to have charge and control of the funds and property of the district. Section 3 provides for the disorganization of certain districts comprising parts or all of new districts and that their treasurers shall transfer funds in their custody to the treasurer of the new district.
The gist of plaintiff’s argument is that validation is one subject; that appointment of a school board is another subject; that attachment to an adjoining district where the county superintendent is unable to find three persons willing to serve on the board of a reorganized district is another subject; that disorganization of districts is another subject and that transfer of funds is still another subject. In support our attention is directed to authorities holding that the provisions of an act must correspond with fhe subject expressed in the title and that the subject matter must not be broader than the title (59 C. J. 811, 812), and to our decisions in Cashin v. State Highway Comm., 137 Kan. 744, 22 P. 2d 939, and Shrout v. Rinker, 148 Kan. 820, 84 P. 2d 974. Both of these decisions involved construction of Laws 1931, chapter 80, which is the uniform operators’ and chauffeurs’ act. In both of these opinions, to which reference is made, the title of the act is set forth. In the Cashin case we held that section '23 of the act 'fixing liability of municipal and other corporations, under conditions stated, constitutes a subject “wholly incongruous with, independent of and disconnected with the rest of the act and constitutes a separate subject, thus making the act contain more than one subject.” (p. 746.) That section was held unconstitutional, but that it did not affect the remainder of the act. In the Shrout case we held that section 22 of the above act was not unconstitutional. Plaintiff relies or the following language of that decision:
“The reason for the constitutional provision that an act shall not contain more than one subject, which shall be clearly expressed in its title, is to prevent two or more unrelated subjects being covered in an act so that members of the legisláture would feel that they should vote for a bill which contained a provision to which they were opposed in order to secure the enactment of the bill with some provisions they considered important.” (I. c. 822.)
In discussing the question of double subject matter of an act this court said in State, ex rel, v. Howat, 109 Kan. 376, 198 Pac. 686, 25 A.L.R. 1210:
“In a certain sense, the act embraces two subjects: Regulation of public utilities, and regulation of those industries which have to do with supplying the people with necessaries of life. In the same sense, the second subject is doubly triple. It embraces food, clothing, and fuel, and it embraces production, manufacture, and distribution. According to the same method, the act might be conceived as divided into as many subjects as a carefully prepared index of its contents would disclose. That, however, is not the method by which to determine the scope of a statute. The question in any case is, Are the particulars so diverse that they may not be connoted in a single generic concept? In this instance the general concept is enterprise affected with a public interest, and the grouping is not only natural, but consistent and harmonious.” (1. c. 391.)
In State, ex rel., v. Beggs, 126 Kan. 811, 271 Pac. 400, it was held:
“Where the subject of the legislation in question is assimilated to- the other provisions of the act and is germane and pertinent thereto it cannot be said to be in violation of sectipn 16 of article 2 of the constitution.” (Syl. U 1.)
In City of Wichita v. Sedgwick County, 110 Kan. 471, 204 Pac. 693, it was said:
“Look at the general act of 1876 relating to public education (ch. 122). Its title is, ‘An act for the regulation and support of common schools.’ Under this simple title there lies the entire statutory foundation of our public-school system, covering not only such matters as schools and school districts, and school officers and their duties, but matters so distantly related thereto as the disposition of the federal, land grants for school purposes, and including such details as the mode of settlement and acquisition of school lands, duties of the state auditor and governor in relation to the issue of land patents, criminal proceedings and penalties for waste or trespass on school-land properties, etc. But though the title to this act gives no hint of these far-reaching details, yet because they are mere details of the general scheme of the act for the effective regulation and support of common schools, and are germane and pertinent to the principal purpose of the act, they are not subject to constitutional infirmity under section 16 of article 2.” (1. c. 473.)
Many years ago this court said that the lawmaking power of the legislature must be upheld unless its action was manifestly in contravention of the constitution (State v. Barrett, 27 Kan. 213), and some years later said that when a statute is attacked as being in violation of article 2, section 16 of the constitution for the reason it was not within the title, the title would be liberally interpreted for the purpose of upholding the law. (State v. Topeka Club, 82 Kan. 756, 109 Pac. 183.)
A study of the act under question leads to the conclusion that the various provisions of the act, which it is contended are different subjects, all pertain to the general subject and principal purpose of the act, that is, the validation of certain acts growing out of attempted school reorganizations, that the several provisions all have a definite relation to one another, are germane to the general purpose, and do not constitute separable, incongruous, independent or unrelated matters. The title of the act,.although perhaps more detailed than necessary, covers the single field of the subject matter of the act. The contention of plaintiff that the act is unconstitutional for duality of subject matter cannot be sustained.
Ill
The third contention made by the plaintiff is that Laws 1947, chapter 377, violates article 2, section 16 of the constitution in that it amends G. S. 1945 Supp. 72-301 and -72-5616, which respectively refer to when a common-school district shall be deemed to be organized, and to the time when an order of a reorganization committee shall become final, and other matters. It may be observed the last section is section 15 of Laws 1945, chapter 291, and that it ever had any potency for any purpose may be doubted in view of our decision in State, ex rel., v. Hines, supra. No extended argument is made in support of this contention, plaintiff contenting himself by stating that under the principles laid down in four decisions cited, the act violates the constitutional provision. The same contention has been made with respect to many previous acts of the legislature, as the annotations in the general statutes to the particular section of the constitution will disclose. A review of these decisions to show their applicability or lack of it would unduly lengthen this opinion.
A contention similar to that now made was before this court in Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, where it was said:
“It is argued that the act of 1905 amends various specific. sections of the statutes relating to cities of the first class, the language of which is closely followed in the corresponding sections of the new act, only such alterations being made as are necessary to accomplish the object already indicated — a change in the method of paying for public improvements in cities having a population of over 50,000; that the new act contains no reference to the old one, does not accomplish its repeal, and is therefore within the letter and spirit of the prohibition quoted. It is needless at this time to go into a discussion of the purpose and effect of the provision of the constitution referred to. That it has no application to amendments by implication is well settled. (Cooley, Const. Lim., 6th ed., 182; 26 A. & E. Encycl. of L. 708.) The act of 1905 in a sense amends various sections of the earlier act, but it does so by implication; it does not cover their entire subject-matter, and hence does not supersede them, but merely restricts the field of their operation; it is a complete and in a sense an independent enactment, which requires no reference to any other statute to make its meaning clear. The objection made to it in this respect is therefore not well taken.” (1. c. 723.)
The same thought was stated and followed in Miltonvale Rural High School v. Community High School, 153 Kan. 756, 113 P. 2d 1095, where a number of our decisions are refered to and comments made.
In Harkrader v. Whitman, 142 Kan. 186, 46 P. 2d 1, this court had before it the question of general and specific laws covering shareholders’ rights in a building and loan association, and stated that all statutes are to be construed so as to sustain rather than defeat them, and are to be given effect if the language will permit, and that if there is any conflict between the general and specific statutes, the specific statute controls in a proper case.
The act now under consideration does not cover all school districts, only certain ones are within its purview, and the provisions of the act can have no effect on other districts. There is a field of operation for the sections which plaintiff says have been amended and should be repealed. If there is any amendment or repeal at all, it is only partial and purely by implication, in which event it does not offend the constitutional provision. It also seems clear the legislature had no intention or desire to amend the general school law; that the provisions of the act attacked are special in their nature and apply only to districts within the act, and that there is a field of operation for both the act attacked and those sections allegedly amended and not repealed. Plaintiff’s third contention cannot be sustained.
IV
Plaintiff’s last contention is that there is an unconstitutional delegation of legislative power in Laws 1947, chapter 377, in that it purports to direct the county superintendent, with the advice and consent of the county committee, to attach the territory of a reorganized school district to an adjoining district if three persons of the reorganized school district are not willing to serve on the school board of that district.
After directing attention to State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1090, where it was said that the establishment of a school district is legislative in character, and to State, ex rel., v. Hines, supra, where it was held that such power could not be delegated to a county reorganization committee and Laws 1945, chapter 291 (G. S. 1945 Supp., art. 72, ch. 56), was declared unconstitutional, plaintiff argues that the attachment provisions are legislative in character, and constitute an invalid delegation of power. Conceding for present purposes that such a conclusion might be reached, we are confronted with the proposition that no such situation as is contemplated by the statute exists under the facts of the case before us. Under many authorities the court ought not to consider constitutionality unless necessary to a decision. Therefore, we shall not' consider the defendants’ arguments, nor the possibility that even though the particular provision is unconstitutional, the remainder of the statute can be upheld (see, e. g., Cashin v. State Highway Comm., supra, syl. ¶ 2).
The relief sought by the plaintiff is denied. Judgment is ordered for the.defendants.
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The opinion of the court was delivered by
Harvey, C. J.
This was an action for damages for personal injuries sustained by plaintiff, who tripped and fell over a coco fiber door mat on a sidewalk in front of the entrance to defendant’s hotel, alleged to have resulted from defendant’s negligence in placing and maintaining the mat on a public sidewalk. The trial court sustained a demurrer to plaintiff’s evidence. Plaintiff filed a motion for a new trial, which was considered and overruled, and judgment was rendered for defendant. Plaintiff has appealed and contends the court erred, (1) in sustaining the demurrer to his evidence, and (2) in overruling his motion for a new trial and rendering judgment for defendant.
In Salina the 100 block of North Seventh street is in a business section of the city. It is paved and on the west side there is a level cement sidewalk 12 feet wide. Defendant owned a business property which abuts the sidewalk facing east. The first floor was used by the U. S. Treasury Department. Defendant operated the Marquette Hotel on the second floor. The entrance to the hotel was from the sidewalk, where there was a storm door, the top half of which was glass, a small vestibule, and a stairway leading to the second floor. The first floor of the adjoining building on the north was used as a recreation parlor known as “The Catón Tap Room.” The first floor of the adjoining building on the south was used as a similar recreation parlor. There is no contention that defendant owned the adjoining buildings or had anything to do with the businesses conducted therein. In the sidewalk near 'the curb was an iron plate, perhaps two feet wide by four feet long, the surface of which was level with the top of the sidewalk and the north end of which was about even with the south side of the entrance to the hotel.
Plaintiff, fifty-five years of age, lived in Salina and was employed as the foreman-janitor of a large office building in Salina known as the United building. His hours of work began at 10 o'clock p. m. Usually, in going from his home to his work, he did not'go along the 100 block on North Seventh street, but occasionally did so, and then usually along the east side of the street. On the evening of December 16, 1944, he left home about 9:40 p. m. and started to walk to the United building and in doing so went south on the sidewalk on the west side of Seventh street. As he approached the Catón Tap Room some persons were on the sidewalk, some, going in the building and some coming out. There were also people walking toward him who were further south on the sidewalk, and he walked south on the west side of the sidewalk near the buildings. As he passed in front of the Marquette Hotel he tripped on something and fell straight forward on the sidewalk, face downward, catching himself somewhat with his hands. He felt a twinge of pain and turned over. Persons gathered around and offered aid. An ambulance was called and he was taken to the hospital. It developed he had a broken hip and was seriously injured.
In the petition as amended the above facts are stated more in detail and it was alleged that on the evening in question, immediately in front of the main entrance to the stairway of the Marquette Hotel, plaintiff walked into and against and tripped and stumbled over a fiber door mat which extended about two feet out from the entrance on the public sidewalk, which “mat had been negligently and unlawfully placed and permitted to remain in such position by the defendant or by his agents, servants and employees engaged and employed by defendant in operating and maintaining said hotel, and with his knowledge, permission and consent”; that the sidewalk at the place was not properly lighted and that plaintiff had no warning and could not see the mat on the sidewalk; that when plaintiff struck the mat “the edge théreof folded up and caught plaintiff’s foot, thereby causing plaintiff to be thrown to the sidewalk”; that there was a large sign over the doorway to the hotel, but that the same was not lighted, and that the street light, about 80 feet north, and another about 30 feet south of the entrance to the hotel, did not illuminate the mat sufficiently to call plaintiff’s attention to it; that the catching of plaintiff’s foot by the mat tripped him, causing him to lose his balance and to fall; that the mat was located immediately in front of the entrance to the hotel, which entrance protruded about 13 inches from the face of the building onto the public sidewalk, and the mat was against the doorway and extended about 19 inches to the east and about 29 inches north and south; that the mat is the property of defendant and had been negligently and unlawfully placed and allowed to remain in its position in front of the doorway and on the public sidewalk by defendant in violation of a described ordinance of the city of Salina, and that the placing of the mat on the public sidewalk and permitting it to remain there constituted a public nuisance. There were further allegations pertaining to plaintiff’s injuries.
The answer contained a general denial, also a specific denial that defendant, or any of his agents, servants or employees, placed the door mat described in the petition on the sidewalk in front of the entrance to the hotel, and specifically denied that prior to the accident the defendant, or his agents, servants or employees, knew the door mat was in front of the entrance to the hotel on the night of plaintiff’s injuries prior to the time of the accident; that the mat was ordinarily kept in the vestibule, and that if it was on the sidewalk in front of the entrance at the time of the accident it had been placed there by parties unknown to defendant and without his knowledge and consent; that the door mat in question is an ordinary fiber door mat 18 inches wide, 24 inches long and one inch thick, and that if the' same were on the sidewalk in front of the-hotel it did not create an obstruction to the use of the sidewalk, nor did it create a nuisance; that no act of the defendant, his servants, agents or employees, was the proximate cause of any injuries or damage to plaintiff; that if plaintiff sustained injuries and damage described in his petition then plaintiff’s negligence contributed to and caused such injuries and damage, and that any injuries or damage sustained by the plaintiff, so far as defendant is concerned, was the result of an accident which defendant could not have foreseen and avoided.
The reply was a general denial.
At the trial plaintiff called defendant as a witness. He testified that he owned the property, as above stated, and that he employed a manager to operate it. The manager also was called and stated that he had been managing the hotel for a year and a half prior to the date of plaintiff’s injury. No question was asked of either of them about the door mat. A photographer, who had taken pictures of the location a few days before the trial in September, 1946, explained the photographs, showing the location of plaintiff’s building, the stairway to the hotel and the recreation parlors adjoining on the north and south.
Plaintiff testified that he had resided in Salina 27 years and had been employed for 12 years as a janitor of the United building; that on thé evening of December Í6, 1944, he was going from his home to his work and walking on the west side of the 100 block on North Seventh street; that when he got down in front of the Catón Tap Room there were quite a few people in front; that he was working his way through them and “kicked and tripped and fell over something and lying down there saw it was a door mat on the sidewalk directly in front of the door of the Marquette Hotel”; that he observed what he fell over. “It was an ordinary door mat. A coco fiber mat. ... I looked to see what I fell over. I seen the mat lying there. It had moved some on the sidewalk and then the people gathered there.” Someone called an ambulance. In a few minutes officers McMickell and Wickersham came, also the superintendentv of the building where plaintiff worked. He noticed that the sign of the Hotel Marquette over the entrance was not illuminated; there was nothing which called the mat to his attention. Before he reached the place in front of the tap room he had been walking in the middle of the sidewalk, six or seven feet from the building, but when he reached there he got over to the right and moved closer to the building. There were people on the sidewalk south of the hotel; some of them were walking toward him. He was watching where he was going. There was a storm door on the front of the entrance to the hotel, the top part of which was glass. There was a light in the hallway, high and back from the door; it did not illuminate the mat. There were lights in the recre ation parlors adjoining the hotel building on the north and on the south and the window blinds were up and each had a lighted sign in front. The White Way street lights were on. After plaintiff had fallen and looked to see what he had fallen over he had no difficulty seeing the mat. He estimated it was “about two inches thick.” He “was in intense pain at that time.” He did not see the mat before he fell; he “was watching the people.” After he fell he had no trouble seeing the mat. None of the people who gathered about him and who were called as witnesses had any trouble seeing the mat. Two of the witnesses measured its length and width and found it to be approximately 29 inches long and 19 inches wide. No witness measured its thickness. It was lying on the sidewalk up against the entrance to the hotel, the long way north and south. The evening was chilly and damp. The mat was wet and matted down with mud and sand. One witness kicked it and it did not move. He kicked it again and it moved a little. .It was picked up and found to be heavy and under it the surface of the sidewalk was discolored. Several witnesses testified it was the kind of fiber coco mat in common use about homes and rooming houses. The witnesses who had knowledge of the fact testified a mat was kept in the vestibule. Mr. Wickersham, the captain of police, testified he had seen a mat in the vestibule and had seen a mat on the sidewalk in front of the entrance; that it was a regular household coco fiber mat frequently seen in different places. There was other evidence as to the extent of plaintiff’s injuries. The court sustained defendant’s objection to plaintiff’s offer to introduce in evidence the city ordinance pleaded.
Appellant contends the court erred in not admitting in evidence the city ordinance pleaded. Omitting provisos not pertinent here, the ordinance reads:
“That every person, who shall obstruct or encroach upon any sidewalk, street, avenue, alley or other public property in said City shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not exceeding $100.00; provided that wherever any obstruction may be found upon any sidewalk, street, avenue, alley or in other public places in the City, it shall be the duty of the Marshal immediately to notify the owner or occupier of the premises fronting thereon or the person placing the same thereon to remove the same without delay, arid upon failure so to do the Marshal shall have the obstruction removed at the expense of the owner or occupiers of the property and such expense, if not paid, shall be a valid claim in favor of the City against such persons, . . .”
The trial court likened the ordinance to the one before the court in Dixon v. Railway Co., 104 Kan. 404 (opinion on motion for rehearing, p. 787), 179 Pac. 548, 180 Pac. 733, where it was held:
“An ordinance which requires the abutting owner to repair sidewalks which become dangerously defective, and authorizes the city to make such repairs at his charge if he fails to do so within ten days of the receipt of an official notice of what has been determined to be necessary, does not render such owner liable to a pedestrian who is injured by reason of a defect in the walk.” (Syl. If 2.)
There the ordinance related to construction of sidewalks; the one here relates to obstructions on sidewalks. There the ordinance provided that the city marshal, upon learning where there was a defect in the sidewalk, reported it to the city council, upon which notice to the property owner was given, and if he failed to make necessary repairs the city could do so and charge it to him. Under the ordinance here, when there is an obstruction on the sidewalk, the city marshal notifies the owner or occupier of the adjoining premises, or the person placing the same thereon, to remove it, and upon failure to do so the marshal is authorized to remove the obstruction at the expense of the other party. In the opinion (p. 406) it was said:
“Whether or not an absolute obligation of the owner to repair the walk arises before he receives an official notice, his duty in the matter is one owing to the city, and not to individuals.”
This conforms to the general law upon the subject as shown by the citations made in the opinion. In short, a city ordinance such as this is not designed to create a personal liability for damages upon the owner of the adjoining property or the person who placed the obstruction upon the sidewalk. In addition to authorities cited in the opinion in that case see 25 Am. Jur. 657; 43 C. J. 1104 and 52 C. J. 438, where many cases are collected. The Dixon case is also cited in Schaefer v. Lenahan, (Cal. D. C. App.) 146 P. 2d 929, where it was said (p. 930) that such a statute or ordinance “does not impose liability upon such (abutting) owners, either to travelers or to the city, for injuries incurred by reason of the defective sidewalk,” citing a large number of cases from many states.
In this respect it is much like Sheldon v. Wichita Railroad and Light Co., 125 Kan. 476, 264 Pac. 732, where it was held:
“In attempting to cross a city street, a girl ten years old walked into the side of a passing automobile after she had emerged from behind a standing street car, and was injured. In an action for damages prosecuted against the street-car company by the girl’s mother, the jury found the negligence of the company consisted in violating an ordinance of the city forbidding the street car to remain at the place where it was standing. The ordinance was a traffic ordinance, enacted to facilitate movement of traffic, and was not enacted to provide pedestrians and automobile drivers with opportunity for observation. Held, the street-car company is not liable to plaintiff.”
It is well settled, of course, that one injured through the defect in a sidewalk has no ground of action against an abutting owner merely by reason of his ownership. (Spear v. City of Sterling, 126 Kan. 314, 267 Pac. 979, and authorities there cited, and Moore v. Winnig, 145 Kan. 687, 66 P. 2d 372.)
Counsel for appellant frankly concede that if plaintiff had been injured by a defect or obstruction upon the sidewalk which had not been caused or created by defendant, then the defendant would not be liable, and cite cases to the effect that one who-places an obstruction or causes a defect in a sidewalk might be liable for injuries resulting to pedestrians. Counsel also concede there is no direct evidence that defendant owned the mat in question, or that he or anyone for whose conduct he was responsible placed the mat upon the sidewalk. Counsel refer to defendant’s answer to the effect that the mat was kept in the vestibule, to the fact that one of the witnesses saw a mat on the sidewalk before the time of plaintiff’s injury, to the established fact that there was a mat on the sidewalk at the time of plaintiff’s injury, and the discoloration on the surface of the sidewalk under the mat tended to indicate that it had been there “a considerable time,” as tending to show that defendant was the owner of the mat over which plaintiff tripped, and that the evidence was such that the jury might well have concluded that defendant knew or should have known that the mat had been on the. sidewalk, for some time prior to plaintiff’s injury. This view is a tenuous one at the best in view of plaintiff’s positive allegations that defendant placed it there and permitted it to remain, especially in view of the fact that there is no evidence in this case that defendant personally knew, or had occasion to know, anything about whether the mat was on the sidewalk. All the evidence about his connection with it is that he owned the building and the hotel operated upstairs and that he hired a manager to look after it. How often or when he was at the hotel.was not disclosed. More than that, plaintiff called as his witnesses the defendant and his manager. By doing so he presented them as trustworthy witnesses. They, are the persons who knew whether they had placed the mat on the sidewalk, or authorized anyone to place it there, or for what length of time, if at all, they knew it was there; yet no question was asked of either of them to bring out any of those facts. Hence, plaintiff is in no position to ask this court to take indecisive inferences in lieu of positive evidence available to him. But we shall not decide the case on this point.
It is well settled in this state, and generally elsewhere, that an abutting property owner is not liable for personal injuries sustained by pedestrians injured by stumbling or falling over defects in the sidewalk unless the defect was created by such owner and is such a defect as amounts to a nuisance. (See Dixon v. Railway Co., supra; Spear v. City of Sterling, supra; Moore v. Winnig, supra, and Kansas Gas & Electric Co. v. Evans, 100 F. 2d 549.). As to cities, the rule is well established that the city’s duty in respect to sidewalks is to maintain them in a reasonably safe condition for use. It is not an insurer of the safety of pedestrians. It is not required to maintain perfect sidewalks. (Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919; Blankenship v. Kansas City, 156 Kan. 607, 135 P. 2d 538.) The same rule applies in actions against an individual or private corporation alleged to have created and maintained a defect or obstruction in a sidewalk. (See Moore v. Winnig, supra; Slaton v. Union Electric Ry. Co., 158 Kan. 132, 145 P. 2d 456; Kansas Gas & Electric Co. v. Evans, supra.) Where the defect in the street is slight, or the unevenness is inconsiderable in the surface of the sidewalk or because of objects lying upon it, the court can say, as a matter of law, that it does not constitute an actionable defect. (Ford v. City of Kinsley, 141 Kan. 877, 44 P. 2d 255; Taggart v. Kansas City, 156 Kan. 478, 134 P. 2d 417, and other cases above cited.)
The allegation in the petition respecting inadequate light is not' sustained by the evidence. There was an abundance of light. Every witness who was about there that evening had no difficulty in seeing the mat on the sidewalk; in fact, plaintiff saw it aftér he had fallen. Something is made of the fact that there was no light on the sign over the hotel, but there is no evidence that the sign was equipped so it could be lighted.
The evidence is" clear that under the authorities above cited the mat in question here did not constitute an actionable defect in the walk. Counsel for appellant have been diligent in citing many authorities, all of which have béen considered, but we deem it unnecessary to prolong this opinion. Under our own well-considered cases above cited, which are in harmony with the great weight of authority, we feel confident in holding that the court did not err in sustaining defendant’s demurrer to plaintiff’s petition or in overruling the motion for a new trial.
The result is the judgment of the court below must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.
The question before this court for decision arises on a motion and an amended motion of the appellee, to dismiss the ap peal for the reason that the appellant has satisfied the judgment. In view especially of appellant’s contention that notwithstanding he may have satisfied the judgment, nevertheless he may prosecute his appeal from an order and judgment of the trial court sustaining a demurrer to his cross petition, it is necessary to review the record. In our review of the pleadings filed in the district court of Marion county and the judgment appealed from, we shall eliminate so far as may be done, all matters not necessary to our decision.
It was alleged in the petition that on June 14, 1943, in the United States District Court for Oklahoma, the Associated Indemnity Corporation recovered a judgment for $8,027.65 and interest and costs against H. A. Edmonston, and that the same remained unpaid; that on September 20, 1943, that corporation assigned the judgment to Joe A. Frates, Jr., and thereafter on April 10, 1945, Frates assigned the judgment to Sisk, plaintiff in the present action; that although requested to do so, Edmonston had not paid the judgment or any part and there was due from Edmonston to Sisk the sum of $8,027.65 and interests and' costs, and judgment was prayed therefor. Matters concerning attachment of personal property of Edmonston in Marion and Butler counties need not be detailed.
Edmonston’s third amended answer and cross petition, on which the cause was finally submitted, is long -and detailed and must be summarized. ' " ’
. In his answer, defendant denied all allegations except as were admitted to be true, and admitted that judgment had been secured against him in the United States District Court for Oklahoma. He further alleged that Sisk' had furnished certain bonds for him to guarantee his contract with Illinois Natural Gas Company for construction of certain pipe lines; that Sisk sued him in the Oklahoma court pursuant to an oral contract later mentioned; that in performance of his contract with Illinois Natural Gas Company difficulties arose respecting final payment and he brought suit against that company in the Circuit Court- of Peoria County, Illinois, to obtain judgment for sums allegedly due him; that while the last mentioned suit was pending Sisk approached him and advised him that-he desired to sue him for $8,057, being the amount due for premiums on the bonds arising out of his contract with Illinois Natural Gas Company; that at that time the exact amount due for premiums was uncertain as the bonds weré to secure workmen’s compensation and depended on pay rolls and was subject to final audit, and de fendant did not know and could not ascertain the amount due without a final audit; that for purposes known to him, Sisk desired to have the judgment against defendant become a matter of record at an early date and proposed to defendant that he forego final audit and permit Sisk to take judgment on the unliquidated claim so that Sisk might have the benefits of the judgment in a final settlement arising out of the Illinois suit above mentioned, and it was then and there agreed between Sisk and the defendant that in consideration of the defendant’s waiving the right to a final audit and to plead in the Oklahoma action, Sisk would take judgment in that action but would make no effort to collect the same in any manner until final termination of the Illinois action; that in.full reliance on the agreement defendant did forego final audit and determination of the amount due for premiums and did permit Sisk to obtain the judgment; that Sisk was bound to await final determination of the Illinois action before proceeding to collect the judgment on which the instant suit was brought; that defendant, except for his agreement with Sisk, would not have allowed Sisk to obtain the judgment and would have defended the action; that defendant entered into the agreement with Sisk in good faith and upon Sisk’s representation that he would not enforce or attempt to enforce the Oklahoma judgment until final determination of the Illinois action; that he relied upon Sisk’s representations and did not defend the Oklahoma action, all to his prejudice and detriment, and Sisk was estopped, barred and precluded from now asserting that his oral contract with defendant was invalid or without effect. Defendant alleged the present suit was prematurely instituted in violation of the contract and shoud be dismissed, and the attachment, which had been levied, should be dissolved.
In his cross petition, Edmonston made part thereof all of the matters, allegations and things contained in his answer and alleged further that Sisk in violation of the oral contract filed the present action in Marion county, Kansas, and caused an' attachment to be levied upon the property of defendant (contractor’s equipment) in Marion and Butler counties, knowing that defendant had entered into a contract with Socony-Vacuum Oil Company for construction of a pipe line, and that by reason of the attachment defendant would be unable to carry out that contract and would sustain substantial damages; that defendant tried to induce Sisk to release the attachment and Sisk wrongfully refused to allow defendant to carry out his contract with Socony-Vacuum Oil Company, although Sisk knew that defendant was able and willing to carry out that contract providing he could have the use of the attached equipment. Defendant further alleged that Sisk was not the sole owner of the judgment sued on, but that it was owned jointly with one J. A. Frates, Jr., who had never consented to the suit, and Sisk was without right, as a part owner of the judgment to institute attachment proceedings. Then follows an allegation that defendant is informed and believes that the judgment sued on belongs to Sisk and Frates and that they made an oral contract for the benefit of defendant whereby it was agreed that no action would be taken on the judgment by Sisk which would affect defendant in his performance of his contract in Marion county, and on this information and belief defendant alleges the present action was instituted and attachment obtained in direct violation of that contract, to defendant’s damage as later set out. Then follow a series of allegations as to damages sustained by defendant by reason of the alleged wrongful attachment, and amounts thereof. Defendant prayed for judgments against Sisk totaling $79,525.
For present purposes we need note only that the cause came on for hearing on June 14, 1946, on Sisk’s demurrer to defendant’s answer and cross petition, and his motion for judgment on the pleadings. The trial court, after hearing argument, found the demurrer to the answer and cross petition should be sustained and defendant announced in open court that he elected to stand on his pleadings and did not desire to plead further. The court further found that plaintiff’s motion for judgment on the pleadings should be allowed, and that the attachment should be sustained. In accordance with its findings the court rendered judgment for plaintiff Sisk against defendant Edmonston for $9,870.47 and interest and costs, and ordered that the attached property be sold and the proceeds arising from the sale applied to the payment of taxes, costs and plaintiff’s judgment, any amount remaining to be paid according to the further orders of the court. ✓
Following rendition of the judgment there were sheriff’s sales of the attached property in both Marion and Butler counties, details of which need not be set forth.
Under date of August 12,1946, the defendant perfected his appeal from the judgment of June 14, 1946, the appeal being lodged in this court on August 15, 1946.
Thereafter, and on September 3, 1946, defendant filed in the office of the clerk of the trial court, a document reciting that judgment had been rendered, against him on June 14, 1946, and that on June 18, 1946, the sheriff of Marion county had sold certain personal property of the defendant for the sum of $7,530, which sum was ' deposited with the clerk, and that Joe A. Frates, because of his interest as a creditor and pursuant to his agreement with the plaintiff, with the consent of the defendant, had paid to the clerk of the district court the sum of $4,400 to be applied toward'payment and satisfaction of the judgment, and the defendant agreed that the moneys from the sale, and the moneys deposited by Frates should be applied in satisfaction of the judgment, interest and costs, and that defendant had no objection to such payment,
“• . . for the reason that it is represented that-upon such payment, plaintiff will release assets of the undersigned, now impounded, which will minimize and reduce the undersigned’s loss and damage.
“Dated at Tulsa, Oklahoma, this 19 day of August, 1946.
“H. A. Edmonston, Defendant;
“Paul Pinson,
His Attorney.
“The terms of the above Consent are hereby agreed and consented to by the undersigned.
“F. A. Bodovitz, Attorney for Joe A. Frates.”
It may be noted that on September 3, 1946, the trial court heard motions to confirm the sheriff’s salé held "in Butler county, Kansas, on July 10, 1946, and objections thereto, and found the sale price was grossly inadequate, also that it appeared that assets, of the defendant had theretofore been sold by the sheriff of Marion county and the proceeds were in the hands of the sheriff and that a sufficient sum had been paid the clerk by Frates for the satisfaction of the judgment with consent of the defendant and further that defendant and Frates announced in open court they were without objections and consented to such application, and further that upon such payment the attachment heretofore issued should be discharged. It made its order and judgment holding for naught the sale of July 10, 1946; in Butler county, and ordering the sheriff to repay the purchaser at that sale, ordered payment to the plaintiff of the judgment and costs from the proceeds of the sale by the sheriff of Marion county and the moneys paid to the clerk by J. A. Frates, and that upon payment of the judgment and costs the attachment issued to the sheriff of Butler county be discharged.
Commencing October 28, 1946, there have been filed in this court a series of motions by the appellant for additional time to file abstracts or for a continuance, and by the appellee that the appeal be dismissed for the reason that appellant had satisfied the judgment against him, with objections to each by the adverse party. The matter eventually came on for argument on the motion to dismiss, and in addition to oral presentation, each party has filed extensive briefs, which will be noted insofar as the same is necessary to a decision.
In a preliminary way it may be noted that attached to the motion to dismiss are sworn statements showing payment of $9,913.24 on the money judgment and satisfaction of the judgment, and payment of the costs of $368.50, which is a proper practice in the circumstances (Paul v. Western Distributing Co., 142 Kan. 816, 52 P. 2d 379). Further than that, the appellant does not deny that the judgment was satisfied in the manner indicated by his consent and by the order of the trial court of September 3, 1946. There is therefore no question that the judgment has not been satisfied.
It may also be observed that there is no question between the parties but that the general rule is that a judgment debtor, who satisfies a judgment against, him, may not appeal therefrom. In view of the situation disclosed, we examine appellant’s reasons why the appellee’s motion to dismiss the appeal should not be sustained.
Although the matters are not entirely- separable, as will be discussed later, appellant, in his brief, presents an argument which is divisible into two main heads. Appellant states that notwithstanding his general .denial, at no time during the trial did he deny, liability on the-judgment rendered in the United States District-Court of Oklahoma, but that he did set forth in his- cross petition Sisk’s agreement not to start proceedings on that judgment; that the attachment levied on his property was -an act he could not prevent as he was unable to give bond to discharge the-attachment; that he could not prevent the sale of the attached property nor after judgment was-he able to give a supersedeas bond; that in view of the allegations of his cross petition charging appellee with wrongdoing to his damage, it became his duty to do whatever he could to mitigate those damages and therefore he did not consent to the judgment in such manner as to waive or forego any right to prosecute his appeal.
Appellant also contends that none of the above matters affect his right to be heard on the ruling and judgment sustaining appellee’s demurrer to his cross petition; that the cause of action stated in the cross petition, alleging breach of contract and resultant damages, is an independent action, and that satisfaction of the judgment has nothing to do with the disposition made of‘that cause of action. Most of his argument centers around this last contention.
In support of his first proposition, appellant cites no authorities: We think there is no need to dwell separately upon it. It is clear that whether appellant could or could not give bond to discharge the attachment levied on his property, or whether after judgment rendered he could or could not give a supersedeas bond, he did satisfy the judgment and the costs.
It has been repeatedly held that anything that savors of acquiescence in a judgment cuts off the right to appellate review and that payment of costs by an appellant falls in that category. (See e. g., Anderson v. Carder, 159 Kan. 1, 5, 150 P. 2d 754, and Round v. Power Co., 92 Kan. 894, 142 Pac. 292, and cases cited. See, also, Miltimore v. City of Augusta, 140 Kan. 520, 527, 38 P. 2d 675, and cases cited as bearing on the question.)
In support of his second proposition that he is entitled to be heard on the ruling on the demurrer to his cross petition, notwithstanding the judgment has been satisfied for the asserted reason it is an independent cause of action and unrelated to the judgment, appellant relies principally upon four of our decisions, namely Amos v. Loan Ass’n., 21 Kan. 474; Wollard v. Peterson, 145 Kan. 631, 66 P. 2d 375; Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113; and Maore v. Smith, 160 Kan. 167, 160 P. 2d 675. We note these cases only briefly.
In the Amos case, supra, this court held only that where a plaintiff dismissed his action without prejudice to a future action, a defendant who had filed an answer amounting to a counterclaim had a right to the trial of his 'claim regardless of the dismissal. The case is in no sense decisive of the question before us.
In the Wollard casp, supra, it was held that where a judgment against a defendant consisted of two or more distinct parts, acquiescence in and payment of one of those separate parts, except costs, will not ordinarily constitute an estoppel or waiver of the defendant to appeal as to the other separate part.
The Dickey Oil Company case and the Moore case, supra, deal with the question of a judgment being moot, but are not closely analogous to our present question.
The analysis heretofore made of appellant’s answer and cross petition shows that as an ainswer to the petition appellant alleged a contract, the violation of which was urged as a defense to the action being maintained at the time, and by express inclusion as a part of the cross petition was the identical contract, the violation of which was alleged a ground for damages. Appellee’s motion for judgment on the pleadings covered all, not a part of the pleadings, and his demurrer.alleged that the answer did not state facts sufficient to constitute a defense and the cross petition did not state facts sufficient to constitute a cause of action. The trial court sustained both the motion for judgment and the demurrer, and rendered the judgment subsequently paid. At the moment we are not concerned with whether either or both rulings were correct — for correct or not, appellant paid the judgment, including the costs, and the costs covered all matters.
Can it be said there may be a separation, or that the judgment rendered on the Oklahoma judgment had nothing to do with the contract not to maintain an action on it until certain things had occurred? Can it be said the alleged oral contract could be adjudicated adversely to the appellant as a defense to the cause of action alleged in the petition but retain its vitality for the purposes of appellant’s cross petition? We think not. The ruling on the motion for judgment on the pleadings and the demurrer to the answer, as distinguished from the demurrer to the cross petition, adjudicated the merits of the alleged oral contract between appellant and appellee, and when appellant satisfied the judgment and costs, he acquiesced in that ruling, and he may not again litigate the matter. See Lyon v. Harrison, 127 Kan. 318, 273 Pac. 429, and Shelley v. Sentinel Life Ins. Co., 146 Kan. 227, 69 P. 2d 737, and cases cited. Both answer and cross petition were objects of attack by the appellee, and both were adjudicated, resulting in the judgment for money and costs. Those costs covered the matter of the demurrer to the cross petition as well as the demurrer to the answer. When appellant paid the costs he acquiesced in the whole judgment, and the Wollard case, supra, on which he relies, does not support his position.
Appellee’s motion- to dismiss the appeal should be and the same is allowed. The appeal is dismissed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Burch, J.
This appeal is from a ruling sustaining a demurrer to the evidence and the plaintiff’s pleadings in a habeas corpus case concerning the custody of children and involves the validity and effect of rulings made in a divorce case by the circuit court of St. Louis, Mo. The children were brought to Kansas following an original custody decree entered in the divorce action, which decree was later set aside in connection with the granting of a new trial by the Missouri court. The trial court ruled that the Missouri court lost jurisdiction of the children after they were brought to Kansas prior to the granting of the new trial and that evidence of misconduct occurring prior to the original custody decree could not be introduced for the purpose of showing that the defendant was an improper person to have custody of the children.
The pleadings set forth most of the essential facts. The plaintiff’s petition seeking custody of the children alleges: That he is the father of the children; is a resident of St. Louis, Mo.; the defendant, who is the mother of the children, lives in Council Grove, Kan.; that she unlawfully detains the children in such place by reason of a judgment rendered by the circuit court, city of St. Louis, Court of Domestic Relations, state of Missouri, on September 12,1946, which judgment granted the plaintiff a divorce from the defendant and also granted the plaintiff the care, custody and control of the children; that such judgment is entitled to full faith and credit in the state of Kansas. In addition to such facts, the petition alleges the plaintiff is a proper person to have the custody of the children and that the defendant is unfit to have their custody.
The defendant’s answer and return to the writ sets forth that she is devoting her full time, energy and efforts to the welfare of the children; that she brought them to Kansas pursuant to the original custody decree entered in the same action referred to in the plaintiff’s petition, on May 10,1946; that such decree granted the defendant the custody of the children and the privilege of taking them to Council Grove, Kan.; the court, making such order on May 10,1946, then had jurisdiction of the plaintiff and the defendant and their minor daughters. Answering further, the defendant alleges the plaintiff was divorced forever from the defendant upon his answer and cross-petition in the divorce action on May 10, 1946; that the defendant brought the children to Kansas with the plaintiff’s full knowledge thereof and under authority of the Missouri court for the purpose of establishing a permanent home for herself and the children in Council Grove, Kan., wholly without any intention of ever returning to the state of Missouri; since May 10, 1946, she has no legal representative in Missouri and has lived with the children in Kansas. The defendant’s answer also alleges that she had no notice .or knowledge at the time thereof of the plaintiff’s having filed a motion for a new trial in the divorce action on May 20, 1946, after the defendant had moved to Kansas; that she is now informed the plaintiff filed such a motion and the motion admits that the defendant was permitted by the court to bring the children to Kansas, outside of the jurisdiction of the court, and that such admission'is binding and conclusive upon the plaintiff ,and estopped him from asserting that the Missouri court had not lost jurisdiction of the children. The defendant’s answer continues by alleging that on June 14, 1946, the plaintiff filed in the divorce action a second amended answer and cross-bill; the defendant did not plead thereto, or appear upon the hearing thereof; on May 31,1946, in the divorce action the court on its own motion set aside the decree of divorce and the custody order but that such action of the court had no validity or effect insofar as the minor children were concerned because they were permanently domiciled in Kansas on such date and the Missouri court had lost jurisdiction’ of them and had no jurisdiction on September 13, 1946, to award the plaintiff the custody of the children as set forth in the plaintiff’s petition; that no inquiry was made on such date as to the general welfare of the children and the decision granting the plaintiff custody thereof was based on false testimony, without any regard for the best interests of the children. As a second defense and answer, the defendaiit denies all the plaintiff’s allegations which are not admitted, and sets forth: “Defendant further alleges and states that the circumstances and conditions have changed since September 13,1946, even if the Missouri court should be found to have jurisdiction, to the extent that the general welfare, health, and best interests of the minor children demand that they be permitted to remain in Council Grove, Kansas, in the custody of their mother.” In addition, the defendant alleges that she has married James Ailworth, who has steady employment and that she is financially able to care for the children in her home which she and her husband and the children occupy by themselves in Council Grove. Copies of all orders of the Missouri court referred to the defendant’s pleadings are attached thereto and all orders and rulings of such court apparently were considered by the Kansas trial court without objection.
At the time, of the trial in the Kansas district court the plaintiff testified as to circumstances indicating that he was a proper and fit person to have custody of his children and as to his having learned of certain improper conduct on the part of the defendant which occurred prior to May 10, 1946, and which induced the plaintiff in the present action to file a motion for a new trial in the action which had been filed in Missouri. After the introduction of testimony of such general nature the plaintiff was asked the question relative to the defendant’s present husband, Mr. Ailworth, having been indirectly involved in the divorce case in St. Louis. An objection was sustained to the question, whereupon counsel for the plaintiff made an offer of proof. The proffer, in substance, set forth that for the purpose of showing who was a proper person to have custody of the children counsel for the plaintiff proposed to prove that Ailworth had broken up the plaintiff’s home and that the marriage of the defendant to Ailworth was preconceived and calculated before she filed her petition for divorce in St. Louis and that Ailworth and the defendant were improper persons to have any part in the control of the children. The court’s ruling was as follows:
“The ruling is that so far as the fitness of the party to have the custody of the children is concerned we are limited to matters which have occurred since the divorce; for that reason the offer is refused.”
Examination of the record discloses that the trial court ruled that all testimony pertaining to conduct of the parties which occurred prior to May 10,1946, should be excluded because the uncontradicted evidence disclosed that the defendant had been awarded the custody of the children by the first decree in the Missouri court, and that therefore she had a right to bring the children to the state of Kansas and that when a party having the rightful custody of children takes them to another state for the purpose of, establishing a domicile in that state, the custodian thereby transfers the domicile of the children. As a result the trial court ruled 'that the Missouri court had lost jurisdiction of the children after they were brought to Kansas and that therefore the Missouri court was without jurisdiction at the time the second custody decree was entered. The plaintiff in the present case relied upon the validity of the second custody decree and contended in the trial court that the first custody decree was not a final decree. The trial court took the position that it made no difference whether the first decree was a final decree; that since the defendant had rightful custody of the children at the time she brought them to Kansas, a lawful transfer of the domicile of the children was made at that time and that therefore at the time the other proceedings relative to the custody of the children occurred in the Missouri court, such court had no jurisdiction over the children. The position of the trial court was that the Missouri court may have retained jurisdiction of the plaintiff and the defendant but that it could not and did not retain jurisdiction over the children after they were brought to Kansas for the purpose of having a new domicile established for them in such state.
After such ruling additional testimony was introduced in behalf of the plaintiff relative to his being a proper person to have custody of the children and the care and attention they would be given if the plaintiff were awarded their custody. Testimony of a witness who had lived in the same apartment house in which the defendant and the plaintiff had lived in St. Louis was introduced and counsel for the plaintiff offered to prove by such witness that the defendant had neglected the children; had left them alone for periods of hours at a time; that the witness had heard the children screaming and crying vdien the defendant was far away from them; that the witness had observed the defendant and her present husband prior to their marriage embracing in the hall of their apartment while the defendant was clad only in negligee and that the witness had observed the defendant in company with James Ailworth many times in taverns and saloons drinking together when the children were left alone in the apartment. In connection with the offer, counsel agreed that the conduct referred to had occurred prior to May 10, 1946. The court thereupon refused to hear the proffered evidence. Counsel then offered to prove the reputation of both parties among their friends and neighbors; that the reputation of the plaintiff was good and that the reputation of the defendant was bad. Counsel for the defendant admitted that witnesses for the plaintiff would testify that his present reputation for veracity, morality and industry was good. Thereafter plaintiff offered the testimony of many named witnesses as to the claimed improper activities of the defendant and Mr. Ailworth in Council Grove, Kan., and in St. Louis, Mo., all of which conduct also occurred prior to the time the divorce and custody decree originally was granted on May 10,1946. The court again refused to hear any evidence of such character and counsel for the plaintiff thereupon rested. The defendant demurred to the evidence and the pleadings of the plaintiff. After hearing argument upon the demurrer, the-court sustained it upon the theory that the case was controlled by the decision of this court in Kruse v. Kruse, 150 Kan. 946, 96 P. 2d 849. In connection with the ruling, the court commented that a transfer of a minor by the party who has the legal custody of such minor, with the intention of making the latter state the custodian’s home, carries with it the transfer of the domicile of the child.
With reference to the question whether the defendant was a fit or an unfit person to have custody of the children, the court ruled:
“We now come to the question of the charge that the present custodian of these minors, the defendant in this ease, as to whether or not she is a fit person to have that custody. The only evidence which is pertinent to that question, she having the legal custody at the time that she brought them into the state, is as to what has transpired since that time; as to whether or not anything has transpired which would justify a change. It is true that, as has been intimated here, that the court in Missouri made some findings, however there has been introduced in evidence here nothing [which] in my judgment'would be sufficient to justify this court in saying that the defendant was not a fit person to have the custody of the two' children.”
The court denied the writ. A motion for a new trial was filed and overruled.
Before giving consideration to the questions presented it should be noted that the defendant no longer contends that any action taken or ruling made by the Missouri court was void because of any failure to give the defendant in this case proper notice. The abstract of the record is not clear but apparently notice of the motion for a new trial on the part of the defendant in the Missouri action was served upon her attorney of record, who afterwards resigned, and she was notified by registered mail of the filing of and the hearing" upon the amended answer and cross-petition which the plaintiff had filed in the Missouri divorce case. Whatever the case' ■may be, there is no contention advanced in this court that the proceedings in Missouri were void because of lack of due process.
The first question for consideration is the effect which must be. given the final decree of divorce and the custody decree entered by the Missouri court on September 12, 1946. The plaintiff’s petition is predicated primarily upon such decree. The decree entered by the Missouri court on such date provided . . that the plaintiff’s petition be dismissed for failure to prosecute, and that this cause be submitted to the court, upon the cross-bill of the defendant, and upon the pleadings and proof, and the court after hearing the evidence herein, and being satisfied that the defendant is an innocent and injured party, and entitled to the relief prayed for in his cross-bill, doth order, adjudge and decree that he is absolutely and forever divorced from the bonds óf matrimony existing between him and the plaintiff, and that he be restored to all the rights and privileges of an unmarried person, and that he have the care, custody and control of Andrea Jeanne, born January 29, 1944, and Jill Kathleen, born November 19, 1945, the minor children of the parties mentioned in the cross-bill, until the further order of the court, and ...”
As hereinbefore set forth, the Kansas trial court took the position that such decree was valid insofar as it granted the plaintiff a divorce' from the defendant in the present action but that it was void insofar as it attempted to determine the proper custody of the children because the children had been removed to Kansas.by a parent who had lawful custody of them and a new domicile had been established for the children in Kansas prior to the time the Missouri court entered the custody decree of September 12, 1946. The case of Kruse v. Kruse, supra, is strong authority in support of the reasoning followed by the trial court. Such reasoning also is given judicial approval in cases cited and analyzed in Wear v. Wear, 130 Kan. 205, 285 Pac. 606. Paragraph one of the' syllabus in the Wear case reads:
“It is the general rule that in an action for divorce a court does not-have jurisdiction to adjudicate the custody of a minor child domiciled in another state.”
The opinion in the last-cited case quotes, with approval, from many cases and texts, including 2 Bishop on Marriage and Divorce, 189, .§ 1189, from which the following is quoted:
“‘At least this jurisdictional fact — dominion over the legal situs — must be present before a court can presume to adjudicate a status, and in cases involving the custody of children it is usually essential that their actual situs as well be within the jurisdiction of the court before its decree will be accorded extraterritorial recognition. . . (p. 221.)
And see texts and cases cited in Kruse v. Kruse, supra.
Our consideration of the question will not be further extended herein because it is the opinion of the court that the defendant in the present case cannot raise the question of the Missouri court’s possible lack of jurisdiction over the custody of'the minor children even though they may have been domiciled in Kansas.
The record clearly discloses that the defendant in the present action was the party who invoked the jurisdiction of the Missouri court when she filed her petition therein praying for a decree of divorce from her husband and seeking the custody of their children. In so doing, she asserted that such court had jurisdiction and authority to consider and pass upon her right to the custody of the children. She sought affirmative relief in such court. She obtained some relief from it when the original decree of divorce was granted and she was given the custody of the children in connection therewith. As soon as she obtained that relief, she attempted to abandon the action and come to Kansas and thereby deprive the Missouri court of further jurisdiction concerning the custody of her children. Even if it may be conceded that the Missouri court had lost jurisdiction by reason of the children having acquired a domicile in Kansas, nevertheless, under the law in this state the defendant cannot be heard to assert such fact.
In the case of Kirby v. Kirby, 143 Kan. 430, 55 P. 2d 356, a wife brought an action in the supreme court of the District of Columbia, in which she sought a divorce a mensa et thoro from her husband and the custody of their children. She was awarded certain alimony pendente lite and custody of the children until the further order of the court. The wife took the children and came to Kansas. The court had denied her permission to do so but such point is of no significance in the present case. The defendant husband in the cited case filed an answer and cross-bill in the District of Columbia court and also therein sought custody of the children. He was granted a divorce and the custody of the children. Later he came to Kansas and filed an action in habeas corpus to recover possession of the children. On the day before the hearing in the habeas corpus case the wife filed a cross action in Kansas against her former husband and asked for alimony and custody of the children. Shortly before the cross action was finally passed upon by the foreign court, the wife had filed a petition to dismiss the bill for divorce which she had originally filed in the District of Columbia court. The opinion reads as follows:
“When that court on final hearing dismissed her bill of complaint it did not deprive itself of jurisdiction to tiy the cause on the defendant’s cross bill. ... In effect, the trial court held that Mrs. Kirby could start an action for divorce in a court of competent jurisdiction in the District of Columbia, obtain some relief from it, then abandon that action and come to Kansas to start another action, and because she got personal service on her husband she was not bound by what the D. C. court did. Such a holding is not proper. . . . On that petition, she asked for and received an order for custody of the children, and she asked for alimony pendente lite. A somewhat analogous situation was involved in Bledsoe v. Seaman, 77 Kan. 679, 95 Pac. 576, where plaintiff sought to avoid the force and effect of a decree of divorce rendered in South Dakota. She and her husband were residents of Kansas. Her husband went to South Dakota and brought suit for divorce. She followed him there and filed a cross petition alleging she was a resident of that state, and on her cross petition a decree was rendered in her,favor, as well as a judgment for alimony and the custody of her minor child. In denying her contention that she was not bound by the South Dakota decree,'this court said: ‘She has retained the exclusive possession and control of the child during that time. The judgment for alimony still stands in her favor. A party cannot invoke the jurisdiction and power of a court for the purpose of securing important rights from bis adversary through its judgment and, after having obtained the relief desired, repudiate the action of the court on the ground that it was without jurisdiction. The question whether the court had jurisdiction, either of the subject matter of the action or of the parties, is not important in such cases. Parties are barred from such conduct, not because the judgment obtained is conclusive as an adjudication, but for the reason that such a practice cannot be tolerated. People who invoke the action of a court, and, through negligence or falsehood, mislead the court as to the existence of the facts upon which its jurisdiction depends, and obtain a judgment for relief, .will not afterwards be heard to deny the validity of such judgment. (16 Cyc. 795-800; Ogden v. Stokes, 25 Kan. 517.)’ (p. 684.)
“It must be held that plaintiff, by reason of the institution of the action in the District of Columbia, and the allegations of her petition, could not be heard to say, on the trial in Edwards county, that the 'supreme court of the District of Columbia was without jurisdiction of the parties to the action and oj the subject matter oj the action. [Emphasis supplied.] •
“In many cases where there has been controversy over the binding force of a decree of divorce, the crux of the controversy has been over the question of whether the service on the defendant was constructive or personal. Here we are not confronted with that difficulty. Mrs. Kirby invoked the jurisdiction of the supreme court of the District of Columbia. Even though she were a resident of Kansas, even though our statute did not recognize the binding force of a decree rendered on publication service, she could not collaterally attack the decree rendered. If it is to be set aside, it must be in a direct action in that court. It is not claimed there was any fraud on the part of the defendant in obtaining the decree in his favor on his cross bill. Were that true, still Mrs. Kirby’s relief would have to be obtained in a direct attack. As bearing on this feature of the case, as well as on the general question of the binding force and effect of the decree, see McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546. (See, also, Phillips v. Phillips, 69 Kan. 324, 76 Pac. 842.) Even though the decree had been obtained as a result of constructive service upon Mrs. Kirby, in an action brought by her husband, it would not have been subject to collateral attack. (See Miller v. Miller, 89 Kan. 151, 155, 130 Pac. 681.)” (p. 436.)
From page 439 of the opinion the following is quoted:
“It thus appears that the decree of the supreme court of the District of Columbia was entitled to full faith and credit and the failure t-o so recognize it was error. Giving it such recognition, it must be held that at the date of its rendition it settled all matters between the parties up to 'its date.” (Emphasis supplied.)
See, also, Wible v. Wible, 153 Kan. 428, 434, 110 P. 2d 761.
From the foregoing it must follow that the defendant in the present action is estopped from questioning the jurisdiction of the Missouri court to render its decree of September 12, 1946. As we read the Missouri law, a party to a divorce suit in that state is presumed to know that a decree entered therein is unstable in character during the term in which it is entered. In Cherry v. Cherry, 225 Mo. App. 998, 35 S. W. 2d 659, the opinion reads:
“. . . she must be presumed to have known that the decree was in the breast of the court during the term and that it was subject to be set aside at the discretion of the court (a discretion, though not absolute, very broad), and, therefore, she knew of the unstable character of the decree.”, (p. 1002.)
The defendant in the present case did not have the right to consider the decree of May 10 as final as soon as it was entered. In Missouri a judgment apparently is not considered as rendered until a pending motion for a new trial is overruled. (Lusk v. Kansas City Seed & Grain Co., [Mo. App. 1918] 204 S. W. 742; 34 C. J. 67, 68, 69, citing Sterling v. Parker-Washington Co., 185 Mo. App. 192, 208, 170 S. W. 1156; Romine v. Haag, [Mo.] 178 S. W. 147, 151; State, ex rel. Scott, v. Smith, 104 Mo. 419, 423, 16 S. W. 415, and St. L. D. and S. Loan Ass’n v. Augustin, 2 Mo. App. 123.)
In 1943 Missouri enacted a new code of civil procedure which took effect on January 1, 1945. Section 116 thereof reads:
“A motion for a new trial shall be filed not later than 10 days after the entry of the judgment. The judgment shall be entered as of the day of the verdict. If a timely motion is filed the judgment is not'final until disposition of the motion.”
Section 119 of such code reads:
“Not later than 30 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.”
There is no contention on the part of the defendant that plaintiff’s motion for a new trial was not filed within ten days or that the order of the Missouri court granting a new trial was not made within thirty days after the original order was entered but it is vigorously contended by the defendant that the order granting the new trial was made by the court of its own initiative and that the order granting the same did not specify the grounds therefor. Counsel for the defendant, therefore, contend that the granting of a new trial was void. Examination of the record in the Missouri divorce case discloses that 'the Missouri court, on its own motion, “set aside, vacated and for naught held” the decree and judgment rendered on May 10, 1946. The order reads: “It is further ordered by the Court that plaintiff’s petition and defendant’s crossbill heretofore filed herein, be reinstated on the docket of this Court.” Nothing is contained in the order granting a new trial which, in any manner, specifies the grounds therefor. Counsel for the defendant have cited a recent'textbook published by Charles L. Carr, in which the author calls attention to the rule promulgated by the Supreme Court of Missouri under authority granted to it by the legislature, namely, Rule 1.10, which is as follows:
“When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of, supporting such action is placed on the respondent.
“If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on. any discretionary grounds.” (2 Carr’s New Work Missouri Civil Procedure, p. 1, 37.) (p. 476.)
• We note that the text states when a new trial is granted without specifying of record the grounds therefor, the presumption shall be that the trial court erroneously granted the motion for a new trial. The text does not go to the extent of inferring that such an order is void. If the order was erroneous, only the burden was upon the plaintiff in the Missouri case, who is the defendant in this case, to have the possible error considered by the Missouri court either in further proceedings in the trial court or by timely appeal. The second presumption commented on by the author to the effect that in the present circumstances it shall never be presumed that the new trial was granted on any discretionary grounds is indicative only of another presumption which might be rebutted by proper proceedings in the Missouri court. It is unfortunate that we do not have a decision from Missouri to aid this court upon the result which must follow from the failure of the trial court to .specify the grounds upon which a new trial was granted. After the new Missouri code was passed but before it went into effect, the Springfield Court of Appeals of Missouri, on May 9, 1944, in Spickard v. McNabb, 180 S. W. 2d 611, held as follows:
“It is well settled law that the Circuit Court has the inherent power to set aside a judgment during the term at which it is. rendered, whether upon a motion timely filed or of its own motion, and without stating the grounds upon which its action is based, since the entire proceeding remains in the breast of the court throughout the term in which the judgment is rendered. Beer v. Martel, 332 Mo. 53, 55 S. W. 2d 482; Taylor v. Cleveland, C., C. & St. L. Ry. Co., 333 Mo. 650, 63 S. W. 2d 69. And this court, in a Very recent case, has held that under such circumstances the trial court ‘had the undoubted right to grant a new trial for any reason that he saw fit, on his own motion.’ Merchants & Planters Bank of Homersville v. Brewer, 177 S. W. 2d 540, 543.” (p. 613.)
The citation, however, is not convincing authority upon the ques tion before us because the new code was not referred to in the opinion . and the circumstances of the case occurred before the adoption of the new code. We note in considering the question that section 115 of the 1943 Missouri code reads:
“A new trial may be granted for any of the reasons for which new trials have heretofore been granted. A new trial may be granted to all or any of the parties and on all or part of the issues after trial by jury, court or referee. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment. Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence. Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.”
Apparently one purpose, at least, sought to be attained by requiring the specification of the grounds on which the new trial is granted is to ha,ve the record disclose that two new trials were not granted because the verdict was against the weight of the evidence. Consequently, the protection intended by the legislature to be afforded is not involved when only one new trial has been granted. Until the Missouri court has held to the contrary, this court is constrained to hold that the failure of the Missouri court to specify the grounds for granting a new trial was only an irregularity which could not be attacked in a collateral proceeding. A failure to specify the grounds , upon which a new trial is granted ordinarily will not divest a court of further jurisdiction of the cause. (See In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501, 157 A. L. R. 1107.)
It follows from the foregoing that the defendant in the present action as plaintiff in the Missouri divorce action, was required to continue as a party thereto and to exhaust her remedies therein, which remedies included her right to correct by appeal or by supplemental proceedings any ruling which she might have contended was erroneous on the part of the Missouri trial court. She did not do so but sat idly by and permitted the judgment of September 12, 1946, to be entered by the Missouri court. One of the issues determined by such court, in compliance with the petition she had filed, was the right to the custody of her children. Since the defendant invoked the jurisdiction of that court for the purpose of having that court determine the question, she cannot now be heard to say, in an independent action, that the judgment of the Missouri court was incorrect or induced by fraud. (Kirby v. Kirby, supra.) Consequently, the decree of the circuit court of Missouri became final and was en titled to full faith and credit under article 4, section 1, of the federal constitution. The ruling of the trial court to the effect that the plaintiff in the present action could not introduce evidence to show misconduct on the part of the defendant which might indicate her unfitness to have custody of her children because such conduct occurred prior to May 10, 1946, was clearly erroneous. The custody decree entered on such date was set aside. A vacated judgment cannot be the basis for a claim of res judicata. When a judgment or decree is properly set aside, nothing remains adjudicated thereby. (See Standard Life Ass’n v. Merrill, 147 Kan. 121, 75 P. 2d 825.) The decree of the Missouri court of September 12, 1946, however, not only was entitled to full faith and credit but it became res judicata concerning any matter properly determined at the time the decree was rendered. (White v. White, 160 Kan. 32, 159 P. 2d 461.).
When the plaintiff in the trial court introduced the decree of the Missouri court dated September 12, 1946, granting custody of the children to the plaintiff, the burden of producing evidence shifted to the defendant for the purpose of establishing her asserted defense thereto that circumstances and conditions had changed since September 12,1946, and that the best interests of the minor children demanded that they be permitted to remain in Council Grove, Kan.
The judgment of the district court is reversed with instructions to set aside the ruling sustaining the demurrer and to hear any proper evidence which may be offered by the respective parties relative to the conditions which may have changed subsequent to September 12, 1946, and pertaining to the best interests of the children insofar as their present and future welfare is concerned. Nothing in this opinion should be construed as prejudicing the rights of the parties insofar as the question whether either party is a fit and proper person to have custody of the children may be involved in further proceedings.
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The opinion of the court was delivered by
Harvey, C. J.
The appeal in this case is from a judgment of the court that defendant is the owner of a certain insurance policy and barring plaintiff of any rights therein.' We will refer to the parties as they appeared in the trial court. The record discloses facts which may be summarized as follows: On April 12, 1912, upon defendant’s application, the Farmers and Bankers Life Insurance Company of Wichita; an old line life insurance company, issued to him a whole life nonparticipating policy in the amount of $2,500, in which plaintiff’s then wife, Lutie B. Matthews, was named as the beneficiary, and which contained a provision which gave to plaintiff the right to change the beneficiary under certain conditions. After the death of the named beneficiary, and on June 24, 1930, upon plaintiff’s re quest, his estate was named as the beneficiary. Thereafter plaintiff married defendant, and on March 4, T931, at his request, the defendant was named as the beneficiary, and is still so named. On August 27, 1945, plaintiff and defendant entered into a written agreement, in which plaintiff was party of the first part and defendant party of the second part, respecting their property rights. We are, here concerned with only the fourth paragraph of that agreement, which reads:
“Fourth : Party of the first party has two life insurance policies, as follows: Policy No. 2079 in the Farmers & Bankers Life Insurance Company of Wichita, Kansas, in the face amount of $2,500.00; Policy No. 1207341 in the Union Central Life Insurance Company of Cincinnati, Ohio, in the face amount of $5,000.00.
“As to such policies of insurance the parties agree: (a) That the beneficiary shall bé and remain irrevocably the party of the second part; (b) That the parties will pay the premiums thereon as long as they are able; (c) That ex- , cept in case of sickness, ill health or actual want, or to pay the premiums due thereon, party of the first part will not borrow upon said policies; (d) In the event that said parties should hereafter cease to live together as husband and wife, party of the second part shall have her choice of said policies as her sole and separate property; (e) First party shall have the privilege of reducing the policy in the Union Central Insurance Company of Ohio, to the sum of $2,-500.00 in order to lessen the annual premiums due and payable thereon; (/) Party of the second part agrees that she will pay the funeral expenses and the expenses of the last illness of first party out of and up to an amount not in excess of one-half the proceeds of said insurance policies if both said policies remain payable to her at the time of the first party’s death.”
The parties continued to live together for several months when plaintiff brought an action against defendant for "a divorce and to have this contract set aside. Defendant filed a cross petition for divorce and asked to have the contract approved. Upon the trial of that action, May 22, 1946, the court denied plaintiff the relief sought, granted a divorce to defendant and approved and confirmed the' contract. No alimony judgment was rendered against plaintiff. No appeal was taken from that decree, and no question respecting its validity is before us. We state it only to show the background of the present controversy. Since this decree the defendant has had the actual possession of the policy issued by The Farmers and Bankers Life Insurance Company.
Thereafter the plaintiff -brought the present action, which was for partition of certain real property and to have the court determine the rights of the parties respecting certain personal property. We are concerned with it only as it applies to the insurance policy. Respecting that the plaintiff in his petition alleged:
“Plaintiff further alleges that plaintiff, W. H. Matthews and Elizabeth M. Matthews, are the owners of a life insdrance policy No. 2079 issued by the Farmers & Bankers Life Insurance Company of Wichita, Kansas, in the amount of $2,500.00 and upon which there is a loan value of approximately one thousand dollars ($1,000) and that said parties own life insurance policy No. 1207341 issued by the Union Central Life Insurance Company of Cincinnati, Ohio, in the amount of $5,000.00 and upon which there is a cash surrender value of approximately one thousand dollars ($1,000); that said insurance policies are affected and controlled by the contract heretofore set 'out as plaintiff’s Exhibit ‘A’ and that Ireine Colson and Marcile B. Senter by reason of said contract claim some right, title or interest in and to said policies or their cash surrender value.
“Wherefore, plaintiff prays that the interests of the respective parties be decreed and determined. ...”
The answer contained the following allegation:
“This defendant alleges that under the contract entered into and attached to plaintiff’s petition as ‘Exhibit A’ it was provided that in- the event plaintiff and defendant hereto should cease to live together as husband and wife, the defendant hereto should have her choice of either of the two policies of life insurance as follows: Policy No. 2079 in the Farmers and Bankers Life Insurance Company in the face amount of $2,500.00 or Policy No. 1207341 in the Union Central Life Insurance Company in the face amount of $5,000.00; that said parties have ceased to live and cohabit together, by reason whereof this defendant now elects to take, and requests- that there be set off to her, as her sole and separate property, as by said contract provided, Policy No. 2079 in the Farmers and Bankers- Life Insurance Company in the face amount of $2,500.00 free of any and all claims.”
The Farmers and Bankers Life Insurance Company was named as a party-defendant, served with summons, and filed a pleading therein.
The pertinent portion of the decree of the court, rendered September 10, 1946, reads:
“The court further finds that the plaintiff, W. H. Matthews, and the defendant Elizabeth M. Matthews by reason of the post-nuptial contract heretofore referred to, are the owners of life insurance policy Np. 2079 issued by the Farmers and Bankers Life Insurance Company, Wichita, Kansas, upon the life of W. H. Matthews in the amount of $2,500.00 and that such policy has a cash surrender value; and that said parties are also the owners of policy No. 1207341 issued by the Union Central Life Insurance Company of Cincinnati, Ohio, in the amount of $5,000.00 upon the life of W. H. Matthews; that by the terms of the post-nuptial contract the defendant Elizabeth M. Matthews is entitled to select one of said policies; that she has selected policy No. 2079 issued by the Farmers and Bankers Life Insurance Company, Wichita, Kansas. . . .
“It is further determined that the defendant Elizabeth M. Matthews is entitled to the benefits of life insurance policy'No. 2079 issued by the Farmers and Bankers Life Insurance Company of Wichita, Kansas, a corporation, as her sole and separate property and that W. H. Matthews is entitled to policy No. 1207341 issued by the Union Central Life Insurance Company of Cincinnati, Ohio, a corporation, upon the life of W. EL Matthews as his sole and separate property; . . .”
In confirming the sale of real property in the partition action on December 2, 1946, by agreement of the parties, the court made an order retaining jurisdiction of the action for the purpose of adjusting any equities or differences which might then exist or which might arise involving the properties in the action.
On December 21, 1946, the plaintiff filed with the Farmers and Bankers Life Insurance Company an application for a change of beneficiary in its policy No. 2079 to his daughters., Marcile B. Senter and Reine M. Colson. There was some correspondence between plaintiff and the insurance company respecting that matter which was introduced in evidence but which is not shown in the abstract. It is safe to say that the insurer hesitated to make the change and that the same has not been made.
Thereafter defendant filed a motion in the action, which is not set out in the abstract, but from the statements of counsel it appears that this motion set out the former litigation between the parties much as hereinbefore stated, recited the application of plaintiff of December 21, 1946, for a change of beneficiary, and asked the court for an order directing plaintiff to execute a written assignment on the policy to defendant, and that if the same should not be done within a stated time for an order of the court which would act as such an assignment.
Apparently plaintiff filed objection to that motion and moved to dismiss it, although the same is not set out in the abstracts, upon the grounds (1) the court had no jurisdiction over the insurer; (2) that the order asked would be in violation of public policy and void; (3) that since the parties are no longer husband and wife, the decree of divorce having become final, insofar as there might be earnings upon the policy or future liability of the insured, defendant carrying the policy and paying the premiums, would be without insurable interest; and (4) that by reason of public policy the court should make no order’ with reference to earnings maturing after the decree of divorce was entered; that the order sought could reach only the cash surrender value of the policy as it existed. on the date of the divorce; and that the order sought would constitute an assignment of the policies to a party having no insurable interest in the life of plaintiff.
Defendant’s motion and plaintiff’s objections thereto came on to be heard before the court on January 17, 1947, the plaintiff and defendant appearing by their respective counsel and the insurance company appearing by its counsel. Counsel in their ^opening statement, adopted later by the court as a stipulation of facts, stated the facts substantially as hereinbefore stated, and brought out the fact that defendant was not attempting to have any modification of decrees of the court previously made, but was endeavoring to get the order sought for the purpose of enforcing the previous judgments of the court; that defendant was the wife of plaintiff at the time she was named beneficiary in the policy; that she has not been his wife since the effective date of the divorce decree; that aside from her interest in the property set off to her by the previous judgments of the court she had no Naim as a creditor against the plaintiff; and counsel for the insurer made it clear to the court that the insurer was appearing in court for all purposes.
The trial court accepted the statement of facts made by counsel as a stipulation of facts and after a further hearing on January 31 made conclusions of law, as follows:
■ “(1) That at the time Elizabeth M. Matthews was named beneficiary to policy No. 2079 she had an insurable interest in the life of W. H. Matthews.
“(2) That under the post nuptial contract entered into August 27, 1945, Elizabeth M. Matthews obtained the equitable right to enforce the designation of herself as an irrevocable beneficiary under said policy of insurance and she then became vested with an equitable interest in said policy. At said time she also had an insurable interest in the life of W. H. Matthews. Her said interest as such continued uninterruptedly to September 10, 1946, at which time she was adjudged by this court to be entitled to the benefits thereof.
“(3) On said 10th day of September, 1946, in this cause Elizabeth M. Matthews was assigned the ownership of said policy of insurance and since said time she has been and is now vested with all the incidents of ownership in and to the same including the right to maintain said policy in force, to pay premiums thereon, and to change the beneficiary thereof which right is exclusive in her, and she is now entitled to an order of this court adjudging her to be the absolute owner thereof to the exclusion of W. H. Matthews and all other persons.
“It Is Therefore Ordered, that Elizabeth M. Matthews be and she is hereby decreed the absolute owner of policy No. 2079 issued by the Farmers and Bankers Life Insurance Company upon the life of W. H. Matthews, and that W. H. Matthews and all persons claiming by, through or under him be and they are hereby barred of any right therein.”
This is the judgment from which plaintiff has appealed. We must first notice defendant’s contention in this court that the judgment appealed from was not reviewable. Defendant’s argument on that point is that the judgment from which the appeal was taken is, in legal effect, a Restatement of the decree of the court with respect to the insurance policy in the partition action, from which no appeal had been taken. This argument overlooks the fact that plaintiff contended in the court below, and now contends, that the portion of the judgment in the partition action, which gave defendant something more in the insurance policy than its cash surrender value, is void as against public policy. It is well settled that a void judgment'may be attacked, even by motion, at any time (G. S. 1935, 60-3009). We think plaintiff, having raised the validity of that portion of the judgment in the trial court, and having had an adverse ruling thereon, is entitled to be heard here.
Plaintiff, as appellant, contends that the judgment appealed from, and also the judgment in the partition action, are void to the extent that they attempted to transfer to defendant any greater interest in the policy than the cash surrender value thereof. • In support of this contention it is argued that when the divorce decree became final and the parties were no longer husband and wife that defendant had no insurable interest in the life of plaintiff, could not have taken out a policy upon his life and pay the premiums thereon, and that an attempt to do so, either by an assignment of the policy or by a decree of the court, is void.
Plaintiff’s position is untenable for the following reasons: When an old-line life insurance policy is issued on the life of a husband or wife in which the other spouse is named as a beneficiary, and thereafter they are divorced, the simple fact that they are divorced does not change the beneficiary. (See Tromp v. National Reserve Life, 143 Kan. 98, 53 P. 2d 831; 19 C. J. 181 n 47; 27 C. J. S. 837 n 78; 29 Am. Jur. 977, § 1309; the annotation in 52 A. L. R. 386; 59 A. L. R. 172, and cases digested in the American Digest System under Divorce, Key No. 585 [3].)
Here there was a contract between the parties for a division of their property and the settlement of their property rights. The , validity of this contract was put in issue in the divorce case, the plaintiff having sought to set it aside, the defendant to have it sustained. The trial court held the contract valid and rendered a decree in harmony with that holding. No appeal was taken from that decree, it became binding upon the parties, has never been set aside, and is still binding upon them.
Later plaintiff brought an action for the partition of real' property and the determination of the rights of the parties to personal property, including the insurance policy in question. This action was predicated upon the property rights of the parties as set forth in the contract and in the court’s decree in the divorce case. The parties-defendant included The Farmers and Bankers Life Insurance Company, upon which summons was served and which filed a pleading. After a hearing the court decreed that defendant is entitled to the benefits of the policy in question “as her sole and separate property.” No appeal was taken from that decree and it is binding upon the parties to the action.
The insured may make an agreement with the beneficiary, or with another, respecting the payment of premiums or the distribution of the proceeds of the policy, which is valid between the parties if made in good faith and for a valuable consideration. (See Tivis v. Hulsey, 148 Kan. 892, 84 P. 2d 862, and authorities cited, p. 895.) This case is cited in support of the text in 46 C. J. S. 64, where other cases to the same effect are noted. It is also cited on this point in Harrison v. Farmers & Bankers Life Ins. Co., 163 Kan. 277, 284, 181 P. 2d 520. See, also, the authorities cited in Sinclair Refining Co. v. Long, 139 Kan. 632, 32 P. 2d 464, and in Geisler v. Mutual Benefit H. & A. Ass’n, 163 Kan. 518, 183 P. 2d 853.
Counsel for plaintiff point out that under the judgment appealed from the defendant may pay the premium on the policy and also be the beneficiary thereof. Plaintiff is not in position to complain of that matter. In the agreement which he executed the two insurance policies are described and it was agreed between them “that the parties will pay the premiums thereon,” and provision was made for separating the ownership of the policies so that each would own one of the policies. The policies were separated as to ownership by the agreement and the decrees of the court.
It is argued on behalf of plaintiff that the agreement to that éxtent is void under the authority of Life Ins. Co. v. Sturges, 18 Kan. 93; Life Ins. Co. v. McCrum, 36 Kan. 146, 12 Pac. 517; Insurance Co. v. Elison, 72 Kan. 199, 83 Pac. 410, and Thomas v. Connecticut Mutual Life Ins. Co., 124 Kan. 159, 257 Pac. 727. . In each of these cases facts were presented which disclosed the fraudulent intent of the parties. Nothing of that kind appears in this case. The cases were relied upon in Tromp v. National Reserve Life, supra, and held (p. 101) as having no application to the facts in that case. They were again relied upon in Geisler v. Mutual Benefit H. & A. Ass’n, supra, where it was held they were not applicable in view of the fact that the contract under consideration was entered into by all concerned in good faith and not for the purpose of speculating on the duration of the life of the insured. The same principle is applicable here.
We note further that in the cases relied upon by counsel for plaintiff the insurer had raised the question of the validity of the transaction. It is the general rule that the insurer is the only party who can raise the question of the insurable interest of defendant, sought to be presented here.
In 37 C. J. 398, it is said:
“Want of insurable interest in an assignee of a policy of life insurance cannot be set up by the assignor or his personal representative.”
In 44 C. J. S. 915, the rule is thus stated:
“Only the life insurance company may raise the questiorkof lack of insurable interest . . .”
This general rule was announced and followed in Obrist v. Grand Lodge, 123 Kan. 616, 256 Pac. 955, and in Kansas City Life Ins. Co. v. Wilkinson, 125 Kan. 305, 264 Pac. 37.
In the case before us the insurer was made a party-defendant,' was served with summons and filed a pleading. It took no appeal from the judgment of the court to the effect that defendant was the sole owner of the policy of insurance. At the hearing of the motions, which resulted in the judgment from which this appeal w.as taken,. the insurer was represented by counsel, who ma'de it clear to the court that the insurer was appearing in the case for all purposes. The insurer did not appeal from the judgment rendered by the court, it is not now complaining of the judgment which was rendered, and plaintiff has no authority to take over that burden for the insurer.
.The result is that the judgment of the trial court should be af- . firmed. It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment awarding-damages to plaintiff for injuries sustained through the alleged negligence of defendant in the maintenance of its telephone wire across a public road. ' .
The plaintiff was riding on a low iron-truck wagon and hay-rack with a large steel grain bin loaded thereon. He carried a loaded rifle and was standing on the right front end of the hayrack. Plaintiff’s servant was driving the team of horses at a walking pace. The telephone wire across the highway hung so low that it caught the grain bin and caused the wagon to upset, and the plaintiff was thrown to the ground. The bin struck the rifle and it was discharged; the bullet entered plaintiff’s chest, and he was severely wounded.
Defendant’s answer was a general denial and contained an allegation that the telephone wire was properly maintained so as not to incommode the public in the ordinary and reasonable use of the highway. Defendant’s answer also contained a plea of contributory negligence.
The jury’s general verdict was for $3,000, and a remittitur of $1,000 was conceded by plaintiff. Two special questions submitted by the court were answered:
“1. Q. At the time of the injury complained of was the plaintiff exercising ordinary care for his own safety? A. Yes.
“2. Q. At the time of the injury complained of did the telephoné wire interfere with the use of the highway for ordinary phrposes of travel? A. Yes.”
The plaintiff’s evidence tended to prove all the allegations of his petition. The facts were simple. The -level of the hayrack was about three feet above the ground. The height of the bin was about eight feet at the eaves where the telephone wire caught the bin. Therefore the wire hung down or sagged to about eleven feet from the ground. It was shown that the hauling of threshing machines and loads of hay is a common use of public roads, and such machines and loads with their drivers riding thereon reach to a height of eleven feet or more. It was also shown that the hauling of steel grain bins on the highway is common. The stringing of telephone wires across highways at the low height of eleven feet is prima facie negligence. (37 Cyc. 1645, 1646.)
It is contended by defendant that there was a total failure of proof that the telephone company knew that-its wire was hanging so low as to endanger the use of the highway, and a total failure of proof that it so hung for such a length of time that -the company should have known of its negligent' condition. The proof did fail in that respect. Will that exempt the defendant from liability? If so, it will seldom avail one injured on a public highway through the negligent hanging of wires to seek a'recovery for damages, for unless the injured person was acquainted in the neighborhood it would be,impossible for him to find witnesses to show that the negligent or dangerous hanging of the wires had existed for some length of time. If his mishap occurred on a lonely and unfrequented highway there would be no witnesses to prov-e the condition or negligent height of the wires prior to his accident. On the other hand, it is always the duty of a telephone company to maintain its wires at a safe height, and it is the duty of the company to make repairs promptly if through wear and tear, or storm, or vandalism, the-wires come down to a dangerous level. In other words, a telephone company must look after its property. If this company did look after its property at reasonable intervals, it knew when its wires were last seen in a safe situation, and could have readily shown the facts. Then, of course, if it had proved that shortly before the plaintiff’s accident the wires were hanging safely and properly, it would not ordinarily be liable for an injury growing out of a sudden disrepair of its wires which it did not know of, and could not reasonably have known of in time to repair before the plaintiff was injured. The court holds, therefore, that when the plaintiff proved the negligent condition of the wire, and that it caused his injury, his prima facie case was established, and the burden of proof then passed to the defendant to show that the negligent condition had not .existed a sufficient length of time for the company to learn of its defective condition, or to charge it with notice thereof. This imposed no unreasonable burden on defendant. It is simply an incident among the many responsibilities attaching to those privileged persons and corporations who obtain and enjoy sp'ecial rights of occupancy in the public highway.
That the plaintiff establishes his prima facie case when he shows the dangerous situation and condition of defendant’s property which caused his injuries is supported by the philosophy and reasoning of the following analogous cases: O’Connor v. Mennie, 169 Cal. 217, 146 Pac. 674; Chenall v. Palmer Brick Co., 117 Ga. 106; Armour v. Golkowska, 202 Ill. 144; American Exp. Co. v. Terry, 126 Md. 254; Thomas v. Western Union Telegraph Company, 100 Mass. 156; 37 Cyc. 1644, 1645. (See, also, Weaver v. Dawson County Mutual Telephone Co., 82 Neb. 696.)
That the burden then shifts to the defendant to. show' that the dangerous situation had not existed so long as to charge the defendant with notice of it is supported by the reasoning of the following cases: The Joseph B. Thomas, 81 Fed. 578; Cincinnati, etc., Ry. Co. v. South Fork Coal Co., 139 Fed. 528; Jacks v. Reeves, 78 Ark. 426; Ligon’s Admr. v. Evansville R. Co., 165 Ky. 202; Talge Mahogany Co. v. Hockett, 55 Ind. App. 303; Gibler v. Railroad, 148 Mo. App. 475; May v. Railroad Co., 75 W. Va. 797; 37 Cyc, 1644, 1645.
Á curious contention was made in the oral argument, and slightly mentioned in the brief, that the plaintiff could not recover because he did not have a hunter’s license at the time he was injured. Plaintiff admitted that he had no license, and that shortly before the accident he had jumped off the wagon to get a shot at a rabbit, and that he planned to shoot some wolves in a field towards which he was going. There is no merit in this contention. The want of a hunter’s license and the breach of the hunter’s license law did not contribute in tfye slightest degree to plaintiff’s injuries. (Clark v. Powder Co., 94 Kan. 268, 279, 146 Pac. 320; Oplotnik v. Mining Co., 95 Kan. 545, 547, 148 Pac. 616.)
Touching the carrying of the rifle, the court sufficiently instructed the jury:
“9. It is the claim of the defendant that plaintiff was negligent in the manner in which he was using and holding his rifle at the time of the accident and that such negligence contributed to his injury; and the jury are instructed that if you find from the evidence that the plaintiff was negligent as claimed by the defendant and that such negligence contributed to his injury, then your verdict should be for the defendant.”
The plaintiff’s evidence was that he was carrying the rifle at “half notch” or “safety,” and that the steel bin struck the rifle, causing it to be discharged. .The jury’s first special find ing is a determination that plaintiff was not guilty of contributory negligence in his manner of carrying the rifle.
A number of criticisms are made touching the instructions given and refused, but little cam be discovered therein which would warrant discussion. Some fault is found with the court’s definition of negligence, but it was sufficiently clear and simple to serve the purpose of this action, and no error can be traced to it. Certain instructions asked were sufficiently covered by those given, and no prejudicial error can be noted in the refusal of the others requested.
Another quéstion in this case concerned the proximate causal connection between defendant’s negligence and the consequences of that negligence. pThe defendant was negligent in the maintenance of its telephone wire. Was that negligence the proximate cause of the plaintiff being shot? That some mishap was likely to occur to people riding and driving with customary loads on the highway, through the negligent manner of stringing the wire could have been anticipated. Damage of some sort was natural and probable, almost inevitable. That somebody would be- shot through defendant’s negligence would not have been anticipated. But the law does not say that if the particular injury arising from the negligence cannot be anticipated a recovery cannot be had. That some damage, some injury, would probably arise from the existing negligence and that it could reasonably have been expected is all that the law requires to justify a recovery. (Railway Co. v. Parry, 67 Kan. 515, syl. ¶ 2, 73 Pac. 105; Hill v. Railway Co., 81 Kan. 379, 382, 105 Pac. 447; Hartman v. Railway Co., 94 Kan. 184, 189, 146 Pac. 335.)
The judgment is affirmed.
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The opinion of the court was deliverd by
Mason, J.:
In this case (ante, p. 447) it was decided that an agreement by the plaintiff’s grandfather, based upon a valuable consideration, that she should receive at his death the share of his estate which she would inherit should he die intestate, is not brought within the statute of frauds by the circumstance that he died owning real property, In a petition for a rehearing, various matters are urged which we regard as warranting further discussion.
1. Counsel for the petitioners contend that this court has erred in its construction of the provision of the statute of frauds which forbids the enforcement, without a writing signed by the party to be charged, of “any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them.” (Gen. Stat. 1915, § 4889.) Their contention is that this should be interpreted as though, it read:
“No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands, tenements, or hereditaments, upon any contract for any interest in lands, tenements or hereditaments or upon any contract concerning lands, tenements or hereditaments.”
We do not accept this view, although language is used in Becker v. Mason, 30 Kan. 697, 2 Pac. 850, tending to support it. The statute does not apply to all contracts which in any way concern real estate. For instance, it does not apply to certain boundary agreements, although they concern lands. (Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019.) It does not apply to contracts employing an agent to buy or sell realty. (29 A. & E. Encycl. of L., 2d ed., 892.) The distinction is discussed in Rose v. Hayden, 35 Kan. 106, 10 Pac. 554, and the rule announced in that case is applied in Robinson v. Smalley, ante, p. 842, decided by this court at the present session. However, this question is not controlling here. The word “sale” is doubtless broad enough to cover any agreement by which the passing of any interest in real estate is to be accomplished. A promise to devise a specific tract of land is within the stat ute. This case was decided upon thé theory that the contract involved did not necessarily concern real estate — that at the-time it was made it was possible that it might be fully carried out without the passing of title to any realty whatever. Our judgment was and is that that view is in accordance with reason and not out of harmony with the effect generally given to the statute of frauds, although expressions and decisions to the contrary may be found. In Renz v. Drury, 57 Kan. 84, 45 Pac. 71, the enforcement of a contract to make a foster child an heir was denied upon the ground that it was within the statute, but the point that the acquisition of no specific property was involved was not touched upon in the briefs or opinion, the court merely following Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591, where the agreement was to devise a specific tract of land.
2. In the original opinion one reason given for not reversing the judgment on account of the exclusion of certain evidence, was that it was not within the pleadings. It is now suggested that in ejectment any defense may be made under a general denial. The action was not ejectment. Comment is made upon the statement in the opinion that “the action is for the recovery of a third of the specific property.” This was not intended to mean that the action was a possessory one — for the recovery of the possession of specific property — and we-do not regard it as fairly open to that interpretation. Moreover, even in ejectment, where a defendant elects to set out specifically the facts on which he relies, his pleading is governed by the same rules as in other actions. (Wicks v. Smith, 18 Kan. 508.) Another reason why a reversal should not be ordered by reason of the rejection of evidence of a claim by the defendants based upon a contract with the grandfather, is that the questions asked of the witness did not suggest .any inquiry into that subject, and during the trial no offer of proof appears to have been made relating thereto. Time was taken to put in writing what was intended to be proved by the witness, but neither the abstract nor the transcript shows that any such statement was presented to the court until the motion for a new trial was heard. The rule requiring the presentation of excluded evidence at the hearing of that motion does not excuse the offer of proof at the trial. (Jones v. City of Kingman, 101 Kan. 625, 168 Pac. 1099.) We should be reluctant' to allow the final disposition of the case to turn upon any technical rule of practice, but we are impressed with the belief that the evidence in question was not vital. As mentioned in the original opinion, the court offered to permit the witness to testify if he would disclaim interest. But, while it was stated that he had no interest and claimed none, no disclaimer was made. This course does not indicate that .the defendants themselves attached great importance to the testimony.
3. The defendants assert that, upon the theory adopted by the court, the plaintiff’s remedy lay in an action for damages for breach of the contract. There is a well-recognized power in a court of equity to give relief in such cases. The equitable proceeding is sometimes spoken of. as one for specific performance, but where verbal accuracy is aimed at it is described as one for relief analogous to specific performance,, “by fastening a trust on the property in the hands of heirs” and others. (36 Cyc. 735, 736.) The defendants insist that, regarded in this light, the action must fail because the plaintiff is compelled to rely upon an express trust in real estate created without a writing, which is rendered void by the statute (Gen. Stat. 1915, § 11674), and a case is cited which seems to adopt that view. (Dicken v. McKinley, 163 Ill. 318.) It is our judgment, however, that the trust relied upon by the-plaintiff arises by implication of law. No interest in the property then owned by the plaintiff’s grandfather was created by their agreement, and no trust then arose with respect to any of that property. He might have given away or lost all the property he then had without a violation of his contract. But when he died leaving a will giving to others everything he owned at the time of his death, equity was empowered to impress a trust upon it for her benefit, as a means of giving her relief to which she is entitled in good conscience —a trust which we regard as resulting by implication of law from the conduct of the testator and the relation of the other claimants to the property.
“Express trusts are those which are created by the direct and positive acts of the parties, by some writing, or deed, or will; or by words either expressly or impliedly evincing an intention to create a trust.
“Implied trusts are those which, without being expressed, are deductible from the nature of the transaction as matters of intent, or which are superinduced upon the transaction by operation of law as matters of equity, independently of the particular intention of the parties. Express and implied trusts therefore differ chiefly in that express trusts are created by the acts of the parties, while implied trusts are raised by operation of law, either to carry out a presumed intention of the parties or to satisfy the demands of justice or protect against fraud.” (39 Cyc. 24, 25.)
4. A final contention of the appellants is that a contract of the plaintiff with her grandfather that she was to receive a third of the property hé owned at his death would be testamentary in character and unenforceable because not executed in accordance with the statute in relation to wills. In support of this are cited Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, and other like cases, ’ holding that an instrument' undertaking to become effective as a conveyance of title at the death of the grantor is testamentary and not contractual, and therefore is revocable. We do not regard that principle as applicable here. If a will were formally executed devising property in accordance with a contract between the testator and the devisee, the will would be revocable as a will, but the contractual rights of the beneficiary would not thereby be abrogated. Here there was no attempt to vest title to specific property in the plaintiff at the time of her grandfather’s death, but an undertaking on his part so to adjust his affairs that she should receive a third of his estate. The title which it was contemplated the plaintiff should receive was not to be created directly by the contract, but by her grandfather’s will, or by the statute of descents and distributions in case of his intestacy. The contract in this aspect does not appear to be substantially different from others by which the obligator undertakes that provision shall be made at his death for the obligee. Such agreements are not required to be executed as wills. (Winne v. Winne, 166 N. Y. 263; In re McIntosh’s Estate, [Iowa] 159 N. W. 223; White v. Winchester, 124 Md. 518.)
The petition for a rehearing is denied.
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The opinion of the court was delivered by
West, J.:
The defendant, a constable, holding an execution against S. A. Townsend, undertook to levy it on an automobile which the plaintiff claimed and claims to own, and for the alleged forcible and malicious taking of which the plaintiff brought this action. She recovered and the defendant appeals.
The plaintiff testified in substance that the constable came to her husband’s livery barn and said he was going to levy on the Ford automobile, and was told by plaintiff that it belonged to her and she did not want him to levy on it, that there was another automobile in the shed that he could levy on but that the Ford was the only thing “we have to make a living for the family.” : .
“I saw the switch key to the car, and got it into my possession; after getting the switch key I had it in my hand; my hand in my apron pocket; I had on a big kitchen apron, and I just ran my hand 'in the pocket and rolled my hand up this way (indicating) in the apron, and stayed there; I think it was my left hand. Seefeld then asked me for the switch key, and I did not give it to him. After refusing to give it to ,hhn, he kept talking to me, and asking me for the switch key. He said, give me the switch key, and I said, No, I won’t, and he looked awful and grabbed hold of me and . . . threw me down toward the ground, and my hands came out of the apron, and he grabbed the switch key.”
On cross-examination she testified:
“I did not fall, did n’t step forward, I did not move my feet. I was just scared. He did not throw me out of balance. Mr. Seefeld got the key, and I was standing there yet, and just as soon as he could get the switch and cranked the car he took it.”
She testified that a miscarriage followed.
The jury returned a verdict for $500 actual and $300 exemplary damages, and made among others the following special findings:
“3. If you answer question two, yes, then did the defendant use any more force in taking possession of the automobile than was reasonably necessary to accomplish his purpose? Ans. Yes.
“4. If you answer question number three, yes, then state in what particular such force was excessive? Ans. In.the violent manner in which he took the switch key.
“5. Did the defendant, C. A. Seefeld, in whatever he may have done, in the taking of the automobile in question, act in good faith, believing that he had' a right to do what he did do? Ans. No.”
Further, that the defendant had no reasonable ground for believing that the Ford was the property of the husband, that he was guilty of fraud, malice, gross negligence, or oppression by reason of not investigating the ownership of the car after being informed by the plaintiff that it belonged to a third party. Also that the $500 was allowed for severe nervous shock, great physical,,and mental agony and for injured health, that the levy had not been made when the. switch key was taken by the husband, and that the plaintiff suffered injury by the act of the defendant in forcibly wresting the switch key from her.
Assignments of error call attention to permitting the cross-examination of a witness, to certain instructions, to the matter of damages actual and exemplary, and to the denial of the motion for a new trial.
The first question presented in the brief is the failure of the court to instruct without request that the miscarriage alleged to have been suffered by the plaintiff was the proximate result of the defendant’s conduct in taking the automobile, and it is complained that the court did not give any instructions whatever upon the material issues in the case or what was necessary for the plaintiff to prove before she was entitled to recover. An examination of the charge given, none being requested by the defendant, shows that the claims of the parties as set forth in their pleadings were stated to the jury, the duty of the defendant in making the levy, and that the jury were told that if they found from the evidence that he was acting under a valid execution but with malice, gross negligence, fraud, or oppression and without regard for the rights of the plaintiff they would be justified in awarding her exemplary damages if they should find her entitled to any actual damages. Detailed instructions were given touching the rights of the parties regarding the switch key, the authority of the constable under his execution, and even the validity of the judgment back of it, and the jury were charged that the burden was oh the plaintiff to make out her case by a preponderance of the evidence. Indeed seven pages of the abstract are taken up with the thirteen instructions given, and it is not strange that with this prolixity no additional instructions were requested. Those given fully comply with the statutory requirement to give general instructions upon each material issue. (See Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 648, and cases cited.)
The second complaint in the brief is that neither the evidence nor the findings sustain the allowance of . $300 exemplary damages, although the jury found the defendant guilty of fraud, malice, or oppression in not investigating the ownership of the car after being informed that it belonged to a third party. The plaintiff testified that after the key was taken away from her she suffered some pain and felt deadly sick for a few minutes as if she were going to die, which feeling continued until she miscarried, and that the sufferings during this time were much greater than at natural childbirth, • she having borne six children. The findings, as already, indicated, are in no wise inconsistent with this evidence, but are supported thereby as tó the physical and mental shock and suffering. (See Whitsel v. Watts, 98. Kan. 508, 159 Pac. 401, and cases cited.)
It is plausibly argued that as the jury limited the fraud, malice, and oppression to the failure to investigate the ownership of the car, this amounts to a repudiation of actual fraud, malice, or gross negligence, but under the familiar rule requiring the findings and evidence to be harmonized if reasonably possible, the view must be taken that the jury deemed the constable to have proceeded maliciously and oppressively to take the car from the plaintiff regardless of her claim of ownership and after being informed thereof, and this, including “the manner in which he took the switch key,” was such conduct as merited punitive damages.
It is suggested that according to the testimony of one witness the constable had been informed that the license for the car was in the name of the husband, and that we should take judicial notice that this implied an application previously made by him to the proper officers for such license with the sworn statement to them that he was the owner of the car. But whatever application or affidavit may have been made .by some other person, the plaintiff was on the ground claiming ownership and had possession of the key by which the car could be operated, and ’ overruling and overcoming such claim and possession the constable, instead of calling upon his judgment creditor for indemnity, proceeded on his own responsibility to act in the way he did, with the disastrous results indicated by the evidence and evidently believed by the jury.
It is next contended that the allowance of $500 actual damages cannot be sustained, for the reason that severe nervous shock appears to be one of its elements, and that unless accompanied by physical injury such shock cannot be the basis of such recovery. While under some circumstances at least the rule contended for is enforced, the jury in this case properly concluded from the evidence that the physical and mental shock and suffering were both the result of the defendant’s conduct. It is said to be absolutely clear from the record that there was no physical injury of any kind accompanying the so-called nervous shock by taking the switch key. It is true .there was no wound or bruise on the body of the plaintiff caused thereby, but according to her testimony severe miscarriage pains immediately' ensued, and it will not do to say that these were mental and not physical.
Lastly, complaint is made because the court received testimony on cross-examination of the defendant as to his financial worth. Counsel say that damages should not be figured upon the basis of what the defendant is worth, but upon the basis of what the plaintiff has been injured. But the theory on which smart money is allowed is that in addition to responding for actual damages the defendant, on account of the maliciousness of his conduct, ought to be punished. (8 R. C. L., p. 581, § 129.) It is entirely logical that in order to know what amount would really cause a smart to the defendant his financial condition .should be somewhat understood, because what would be the merest annoyance to one might mean bankruptcy to another. Hence, it is the rule that in cases of this kind the financial standing of the- defendant may be considered. (White v. White, 76 Kan. 82, 90 Pac. 1087; 8 R. C. L., p. 607, § 152.)
In view of the foregoing, no error is perceived in the ruling of the court denying a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This aetion was brought by E. S. Seapy against R. V. Smart to recover rent upon a farm lease. At the trial both parties moved for judgment upon the pleadings." Judgment was rendered in defendant’s favor for costs, and the plaintiff appeals.
The lease in question was originally entered into between E. J. Votaw and the defendant,and was for a term commencing January 1, 1912, and ending February 28, 1915. The rent agreed upon was one-half of the nuts and crops raised, one-half of the milk sold, and one-half of the increase from certain stock. The lease contained a covenant by the landlord “to stock the farm with cows and brood hogs, to the value of $1,500 to $2,000, or what the farm will carry properly, this to be done within the first year.”-
The petition, filed in January, 1915, alleged that the plaintiff in June, 1912, became the owner of the land, and through an assignment of the lease became entitled to the rentals due under it; that since plaintiff’s purchase of the land and lease defendant had continued to occupy and cultivate the farm, but had refused to pay plaintiff any rent; and that the value of the nuts and crops raised on the farm for the years 1913 and 1914 amounted to $4,400, of which amount plaintiff was entitled to one-half.
Defendant’s answer admitted the execution of the lease, plaintiff’s ownership of the farm and his own occupancy thereof, but he alleged that the value of the crops raised on the farm for the time mentioned was not $4,400 as stated by plaintiff, and did not exceed $2,000. The defense alleged was the failure to stock the farm with'cattle and hogs as provided in the lease, resulting in defendant’s inability to carry out the terms of the lease on his part. It was further alleged as a counterclaim that he had been damaged in the sum of one-half of $6,240, being the aggregate total of various items of profit that defendant estimated he would have realized had the land- \ lord performed his covenant. There was also an allegation to the effect that at the time plaintiff purchased the farm he knew of the lease, of Votaw’s failure to fulfill his covenant, and of the fact that defendant had made claim for damages from Votaw and brought suit against him because of his failure to comply with the agreement; and that by reason of plaintiff’s having succeeded to Votaw’s interest in the lease he took the place burdened with the obligations of Votaw and was indebted 'to defendant in the sum of $3,120, less whatever sum plaintiff might be entitled to by reason of the crops raised on the premises.
Plaintiff’s reply admitted the failure to furnish the stock as the lease provided, and further alleged that defendant was not entitled to recover anything by reason thereof, because he had already set up his claim for damages in the suit against Votaw; that the damages sought were too remote; and that a recovery, if any, could only be had against Votaw.
The grounds of the ruling awarding judgment in favor of the defendant upon the pleadings are not shown by the abstract arid, no brief or argument having been presented in behalf of the defendant, his theory of the case has not been brought to the attention of this court. As the pleadings stood, the plaintiff was entitled to recover from $1,100 to $2,200 as his share of the crops grown on the farm, unless the breach of the stipulation in the lease, that the landlord should furnish cattle and hogs, relieves the tenant from paying rent. It did not have that effect. The agreement to provide live stock which should remain the property of the landlord, the profits to be divided on a specified basis, was independent of that providing for the growing of corn and other crops and the payment to the landlord of a share of the crops. The tenant continued in possession and use of the farm after' the landlord had made default. We need not decide whether the nonperformance of the landlord so affected the rights of the defendant and diminished his enjoyment that it might have been treated as an eviction and to have warranted him in surrendering the premises, since he continued in the occupancy of the farm after the landlord had broken his agreement. It has frequently been decided that the failure of the landlord to perform a part of his agreement will not relieve the tenant in possession from the payment of rent, but that he may recoup the actual damages resulting from the landlord’s nonperformance. (Long v. Gieriet, 57 Minn. 278; Lewis & Co. v. Chisolm, 68 Ga. 40; Association v. Company, 67 N. H. 450; Partridge v. Dykins et al., 28 Okla. 54; Rubens v. Hill, 213 Ill. 523; 1 Taylor’s Landlord and Tenant, 9th ed., § 265; 18 A. & E. Encycl. of L., 2d ed., 230.)
The plaintiff, who had succeeded to the rights and duties of Votaw, was entitled to the rent due, diminished by the amount of any damages- sustained by the defendant by reason of the landlord’s breach of the agreement. Under the pleadings it was necessary to introduce evidence as to the amount of rent due from the defendant, and also as to the loss which the defendant had sustained through the landlord’s fault. The fact that defendant had a suit pending against Votaw for nonperformance does not preclude the setting up of the defense against the plaintiff. The latter had stepped into the shoes of Votaw hnd assumed the obligations and liabilities of Votaw; but, of course, if the defendant proceeds against them separately only one satisfaction pan be obtained.
The judgment is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by '
Hoch, J.
The sole question presented by this appeal is whether under the facts presently to be stated, a trial court has jurisdiction subsequent to the decree in a divorce action, to modify an order for support and education of a minor child upon proper showing of changed conditions. Facts material to the issue may be briefly stated. .
In October, 1944, the appellee Robert S. Phillips, Jr., filed an action against Ella Mae Phillips, the appellant, for divorce and for an equitable division of the property. The defendant filed an answer and cross petition. While the action was pending, the parties entered into a stipulation in which they agreed that, in the event the court should- grant the defendant a divorce upon her cross petition, the property should be divided in the' manner set forth in the stipulation; that the defendant should bé awarded $750 as permanent alimony and should also be awarded “the sum of $40 per month to be paid from and after the date of the decree,- to the defendant, for the support and maintenance and education" of a minor child then about three months old. The case went to trial on the petition and cross petition, at the conclusion of which, on November 2, 1944, the defendant was granted a decree of absolute divorce from the plaintiff and was given full custody and control of the minor child with .right of reasonable visitation on the part of the plaintiff. The court also found, upon evidence, that the terms of the stipulation were fair, just and reasonable, and entered judgment accordingly, awarding alimony and directing the plaintiff to pay $40 per month for support and education of the minor child.
On August 10, 1945, the appellee filed a motion for a reduction of the amount- of $40 per month which he had been directed to pay for the support of the minor child, alleging that he had complied with the provisions of the order but that his financial condition had been changed to such an extent that he was no longer able to pay that amount. After a hearing duly held, the amount was reduced from $40 to $25 per month. It is conceded that the appellee paid $40 a month up until the effective date of the order reducing the amount to $25, from which order the instant appeal was taken.
Appellant does not contend that in making the reduction to $25 the court abused its discretion, and nothing in the récord discloses any such abuse. She simply contends that'the stipulation in which the parties agreed that the defendant should receive $40 a month for the' child’s support was a contract, and that having been duly approved .by the court,' the court thereafter had no jurisdiction to modify it.
G. S. 1935, 60-1510, provides:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage,. and may modify or change any order in this respect whenever circumstances render such change proper.” (Italics supplied.)
Appellant takes note of this statute, but argues that when the parties entered into the stipulation including the provision for' payment of $40 a month, they in effect “waived” the statute and became bound under the contract. The contention is not good. Even though the stipulation should be construed as an attempt to “waive” the statute, the parties of course had no power by agreement among themselves or otherwise, to deprive the trial court of the jurisdiction which it has under the statute.
In an unbroken line of cases from Kendall v. Kendall, 5 Kan. App. 688, 48 Pac. 940, down to the recent case of Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127, it has been held that the jurisdiction of district courts over the custody and support of minor children in a divorce action is a continuing jurisdiction and that the court may on proper motion and notice modify or change any order previously made providing for such custody and support whenever circumstances are shown which make such modification proper. (Teegarden v. Teegarden, 155 Kan. 195, 199, 124 P. 2d 464; In re Petitt, 84 Kan. 637, 643, 114 Pac. 1071; Dague v. Dague, 126 Kan. 405, 407, 267 Pac. 988; Conway v. Conway, 130 Kan. 848, 850, 288 Pac. 566; Sharp v. Sharp, 154 Kan. 175, 176, 117 P. 2d 561; Davis v. Davis, 145 Kan. 282, 287, 65 P. 2d 562.
Appellant cites Kroenert v. Mead, 59 Kan. 665, 54 Pac. 684; Engels v. Amrine, 155 Kan. 385, 125 P. 2d 379; Hudspeth v. McDonald, 120 F. 2d 962; Amrine v. Tines, 131 F. 2d 827; Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586; Cowle v. Cowle, 114 Kan. 605, 220 Pac. 211; Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437; 147 Kan. 134, 75 P. 2d 1023; 149 Kan. 643, 88 P. 2d 1035. We find none of them persuasive on the issues here. In Kroenert v. Mead, it was held that a tenant might waive in writing the benefit of exemption laws as to debts contracted for rent without the joint consent of' his wife. The case had nothing to do with the court’s jurisdiction. Cowle v. Cowle involved a property settlement which had been fully executed and did not relate to payments for child support. In Hyde v. Hyde, the court refused to modify its decree, but nothing was said to indicate that the court was without power to do so. The other cases cited are criminal cases in which it was held that the defendant might waive certain rights like that of representation by counsel. They do not deal with modification of an order such as the one here in question which was made under specific provision of the statute.
Appellant calls special attention to the fact that in Hyde v. Hyde, supra, the trial court in the original decree and order had specifically retained jurisdiction of the case for the purpose of modification if changed conditions justified, whereas in the instant case the original decree contained no such provision. The absence of such specific provision in the original decree is immaterial, since the statute itself specifically provides for 'such retained and continuing jurisdiction.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.
This is an original proceeding in quo warranto brought by the state on the relation of the attorney general asking that the defendant, The Consumers Cooperative Association, be dissolved and its charter be forfeited and that a receiver be appointed. The state corporation commission was also made a party defendant at its request. The defendant, The Consumers Cooperative Association, 'filed an answer to which the state filed a reply. The corporation commission filed an answer and cross petition in which it asked for the determination of certain questions and for a declaratory judgment as to its power and authority and jurisdiction over certain securities issued by defendant, The Consumers Cooperative Association. The state and The Consumers Cooperative Association also entered into an agreed statement of facts. The entire matter has been submitted for final adjudication.
This original proceeding in quo warranto and a companion proceeding in mandamus filed by the defendant association in this case against the state charter board were the culmination of considerable agitation before at least the last two sessions of the legislature. The complaints seemed to center in the main about the fact that the cooperative societies were engaged in general business activities and did not have the tax burden borne by ordinary business.
For the benefit of all concerned, it must be stated at the outset of this opinion that the question of taxes is not in this case. The question to be decided in this case is solely a question of the power of the defendant cooperative society. The decision on that question turns upon the construction to be given two articles of chapter 17 of the Statutes of 1935. One is article 15. This statute is denominated “Cooperative Societies” in the General Statutes of 1935. it covers G. S. 1935, 17-1501 to 17-1515. The other is article 16 of chapter 17. This is denominated “Cooperative Marketing” in the General Statutes of 1935. It covers G. S. 1935, 17-1601 to 17-1631. In the pleadings and briefs of this case reference is sometimes made to the statute as article 15 or article 16 of chapter 17 and sometimes by the section numbers. It will be helpful to note that in cases where the latter designation begins with 15 the section is a part of article 15 and refers to cooperative societies, while in cases where the designation begins with 16 the section is part of article 16 and refers to cooperative marketing.
After the formal allegations, the petition alleged that the defendant, The Consumers Cooperative Association, which will be hereafter referred to as CCA, was a Kansas corporation and originally organized under G. S. 1935, ch. 17, art. 15, and was originally chartered with purposes as follows:
“To deal in, handle and distribute petroleum and various products, and by-products, thereof; also such commodities as are essential and necessary in the operation of the business of this association; to purchase, lease, build, construct, maintain and operate warehouses, filling stations, pumping plants, compounding plants, refineries, and all other appliances, and conveniences for use in connection with the manufacture, purchase and sale of gasoline, petroleum, lubricating oils, and all other petroleum and oil products; hold, lease, mortgage, encumber, sell, exchange and convey real estate and personal property as the business of the association may require; and it shall have the power and authority, either for itself or its individual members and patrons, to do and perform every act and thing necessary and proper to the conduct of the business of this association permitted by the act under which this association is organized.”
The petition alleged further that this charter was amended in 1937 by the addition of the following language:
“Including the buying, selling, processing, manufacturing, warehousing and transporting of tires, auto accessories, groceries, paint, farm machinery, farm supplies and other consumers goods; lease, own or operate facilities for these purposes; buy, sell, lease, mortgage, encumber or convey real estate or personal property as required in the operation of this business, as approved by the Board of Directors of the Association.”
The petition alleged further that in 1938 the CCA by amendment of its charter purported to adopt the provisions of article 16, chapter 17, G. S. 1935, known as the cooperative marketing act, allegedly under the particular provisions of G. S. 1935,17-1621.
It should be stated here for the sake of clarity that article 16, chapter 17, provided two methods by which any cooperative society organized under another statute might place itself under the provisions of that statute.
These are G. S. 1935, 17-1603, subparagraph (c), and G. S. 1935, 17-1621. It is now conceded that the defendant followed both these methods. There is no question but that it is properly organized and operating under the provisions of article 16, chapter 17 of G. S. 1935.
In the difference between these two statutes lies the real import of this cause.
The petition then alleged that the first section of the act under which defendant purported to act was G. S. 1935, 17-1601, which is as follows:
“In order to promote, foster, and encourage the intelligent and orderly marketing of agricultural products through cooperation and to eliminate speculation and waste; and to make the distribution of agricultural products as direct as can be efficiently done between producer and consumer; and to stabilize the marketing problem of agricultural products, this act is passed.”
The petition then made the following allegation, which because of its importance will be set out verbatim. It is as follows:
“That the business activities and industrial pursuits of the defendant CAA are and have been at all times mentioned herein, substantially as follows:
“(a) International trade including shipping of petroleum products overseas to the extent that during 1946 approximately 3,000,000 gallons of motor oil were shipped to some 10 different foreign countries;
“(b) Enters into exchange agreements with all major and independent oil companies in connection with the transportation of oil and gasoline;
“(c) Owns huge oil refineries at Coffeyville, Kansas, Phillipsburg, Kansas, Scottsbluff, Nebraska, where it has a total annual production of more than 130 million gallons of refined fuels and can handle approximately 6 million barrels of crude oil per year; this in addition to one-third interest in a large refinery at McPherson, Kansas, which itself has a capacity of 6,000,000 barrels of crude oil per year;
“(d) Owns canning plants, lumber mills, printing plants, paint factories and other industries;
“(e) Buys, owns and holds extensive oil and gas leases and royalties and oil producing properties;
“(f) Drills, operates and produces approximately 450 oil wells-with annual oil runs of nearly one and three-fourths million barrels;
“(g) Owns and operates a vast oil pipe line system;
“(h) Auditing management services and insurance agencies as well as many other business and industrial pursuits.
“That the aforesaid business activities and industrial pursuits and enterprises conducted by the defendant CCA extend far beyond the authority of said ‘Marketing Act’; that said defendant has usurped and assumed corporate powers not delegated to it by the State of Kansas, and to which it is not entitled under the laws of the State of Kansas; that said defendant CAA at all times herein mentioned, was carrying on its industrial pursuits involving among other things oil refineries, oil production and vast system of oil pipelines under the guise of marketing agricultural products as a ‘Marketing Association’; that said defendant was in these respects exceeding its corporate statutory powers.”
The petition then alleged that the above business activities were carried on by defendant CCA through certain other associations, naming them. The officers of which associations were the same as those of defendant CCA and that the acts of these subsidiary companies were really the acts of the CCA. The petition then alleged that the CCA had been abusing its power and exercising corporate powers not conferred upon it by law, and these acts were contrary to law and to the purpose of the marketing act and in excess of any powers that could be conferred upon any corporation under the cooperative marketing act in question. Because all these activities were not carried on in order to promote, foster and encourage the intelligent and orderly marketing of agricultural products and to make the distribution of agricultural products operate as efficiciently as'could be done between producer and consumer; that the purpose of the CCA was not one of the purposes named in G. S. 1935, 17-1604; that the CCA was exercising powers in excess of those of an association organized under the provisions of G. S. 1935, 17-1605; that the CCA was violating G. S. 1935, 17-1606, and that under G. S. 1935, 17-1606, the members of the CCA were limited to either (a) persons engaged in the production of agricultural products, or (b) to any other association organized under section 17, article 16, G. S. 1935; that defendant CCA had as members at least 950 corporations which were not organized under that statute and were not eligible as stockholders or members and that this act of the CCA was contrary to the provisions of- chapter 17, article 16, G. S. 1935, and constituted an unauthorized usurpation of power and authority. The petition next sets out the amount of preferred and common stock that defendant CCA had issued and sold as of February 28, 1947, and alleged that as of that date it had issued $958,570 of preferred stock in excess of its authority. The petition next alleged that CCA had sold $2,707,170 of capital stock that was not registered with the state corporation commission, as required by G. S. 1935, 17-1226, and had sold other securities as defined by G. S. 1945 Supp. 17-1223, that is, deferred patronage refund certificates in the amount of $4,398,674 and certificates of indebtedness in the amount of $14,800, all without having been registered with the state corporation commission, a!s required by G. S. 1935, 17-1226; that CCA had advertised the sale of its securities without these securities having been registered and without submitting these advertisements to the corporation commission; that CCA in its industrial pursuits had dealt with nonmembers in violation of G. S. 1935, 17-1604; that G. S. 1935, chapter 17, article 16, designated as “The Cooperative Marketing Act” was enacted to foster and encourage the marketing of agricultural products for which purpose hundreds of properly organized marketing associations had come into existence in Kansas, and that G. S. 1935, chapter 17, article 15,. known as “The Cooperative Societies’ Act” was enacted to authorize the organization of cooperative associations for general business or industrial, purposes but that CCA carried on an expansive industrial pursuit involving oil refineries and oil production and a system of oil pipe lines under the guise of marketing agricultural products under chapter 17, article 16, G. S. 1935. The petition then alleged that by reason of these acts CCA had breached its corporate duty toward the state of Kansas and assumed corporate powers not delegated to it. The prayer of the petition was as follows:
“That the defendant, the Consumers Cooperative Association, be dissolved; that its charter be forfeited and cancelled and its corporate existence as a ‘Marketing Association’ annulled; that it be enjoined from doing business and acting as a ‘Marketing Association’ and from any illegal usurpation of authority or powers under the provisions of Chapter 17, Article 16, G. S. 1935, and acts amendatory thereof; and that a receiver of its property be appointed at such time as this Court may deem proper and for such other and further relief as may be appropriate; and for the costs of this action.
“Plaintiff further prays that the State Corporation Commission of the State of Kansas be instructed and directed by the Court as to its duties and jurisdiction in the premises, and in harmony with the judgment rendered herein.”
The answer of the defendant will be set out rather carefully because therein lies the crux of this case.
In paragraph III of the answer OCA admitted the organization of the corporation commission and in paragraph IV defendant, CCA admitted the allegations of paragraph IV of the petition but alleged that the plaintiff failed to inform the court fully of section 2 of article IV of defendant’s articles of incorporation which is quoted as follows:
“The common stock of this association may be purchased, owned and/or held only by producers of agricultural products and associations of such producers, who shall patronize the association in accordance with uniform terms and conditions prescribed thereby and only such producers shall be regarded as eligible members of the association.”
In paragraph V of the answer defendant admitted the existence of G. S. 1935, 17-1601, which was set out therein, but alleged that plaintiff failed to inform the court that G. S. 1935, 17-1604, set out the purposes for which a cooperative marketing association could be formed. It quoted G. S. 1935, 17-1604, which provides as follows:
. “An association may be organized to engage in any activity in connection with the marketing or selling of the agricultural products of its members, or with the harvesting, threshing, milling, preserving, drying, processing, canning, packing, storing, handling, shipping, or utilization thereof, or the manufacturing or marketing of the by-products thereof, or in connection with the manufacturing, selling, or supplying to its members of machinery, equipment, or supplies; or in the financing of the above-enumerated activities; or in any one or more of the activities specified herein. Nothing in this act shall authorize such association to engage in the banking business. Corporations organized under this act primarily for the purposes aforesaid may also, unless prohibited from so doing by their articles of incorporation, deal in the products of nonmembers, and render any of the services above named to nonmembers in connection with their products: Provided, That such associations shall not market, handle, process, store, or deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.”
Paragraph VI of the answer refers to paragraph VI of the petition. This is the paragraph where plaintiff set out the various incidental pursuits in which it alleged defendant was engaged.
As to paragraph VI («) defendant admitted that it made some foreign sales but alleged that these sales consisted principally of surplus products necessarily obtained by the defendant in obtaining the supplies required by its members. It constituted less than ten percent of the defendant’s business and was wholly incidental thereto.
‘ As to paragraph VI (b) defendant answered that it did enter into exchange agreements but alleged that these agreements were with major or independent oil companies for the purpose of eliminating unnecessary or transportation costs.
As to paragraph VI (c) defendant admitted that it owned oil refineries but alleged that these refineries were maintained only for the purpose of manufacturing the products needed to supply its members and their requirements.
As to paragraph VI {d) defendant admitted that it owned and operated canning plants, lumber mills, printing plants, paint factories and other industries, but alleged that these were operated for the purpose of enabling it to furnish supplies required by the members.
As to paragraph VI (e) and (/) defendant admitted that it owned and operated oil leases and royalties and drilled and operated oil wells but alleged that the ownership and operation of a reasonable number of oil wells was the only means by which it could maintain a crude oil supply sufficient to opérate its refineries and manufacture refined products for the use of its members.
As to paragraph VI (g) defendant admitted it owned and operated a pipe line system but alleged tha1¿ the pipe lines were maintained for the purpose of transporting crude oil to its refineries.
As to paragraph VI (h) defendant admitted that it operated the auditing service for its members but alleged that this service was maintained for the benefit of the different member associations. Defendant also admitted that it operated an insurance .agency for the purpose of serving the insurance needs of defendant and its member associations. It denied the conclusions of law contained in paragraph VI and denied it was carrying on its business under the guise of marketing agricultural products and alleged that it was a farm purchasing cooperative association engaged in the business activities authorized under G. S. 1935, 17-1604.
In paragraph VII defendant admitted the general import of the allegations of paragraph VII of the petition and further alleged that these subsidiary corporations were authorized by G. S. 1935, 17-1603, subparagraph (b), which reads as follows:
“Any corporation organized under this act may unite with four other persons who are members or stockholders of said corporation, and form a corporation under the provisions of this act, for the purpose of acting as a subsidiary of the original corporation and conducting any part of the business of the original corporation.”
Defendant denied the allegations of paragraph VIII with the exception it admitted some of its corporate members were not organized under article 16, chapter 17, G. S. 1935.
In paragraph IX of the answer defendant admitted the general import of paragraph IX of the petition with reference to its having issued excess stock and alleged that prior to the issuance of this stock it duly adopted an amendment to its charter increasing its authorized corporate stock and duly submitted a proper certificate to the secretary of state on July 3, 1946, for filing, accompanied by the proper fees, and alleged that defendant was not advised until January 27,1947, of any objections to the filing of this amendment, when it received a letter from the secretary of state advising it of the charter board’s disapproval of this stock for the reason that the board thought defendant should not be organized under the cooperative marketing act but 'should be incorporated under the cooperative securities act; that the defendant had previously filed certificates of amendments increasing its authorized capital stock without objection and assumed that the amendments would be filed as a routine matter; had not since issued any such stock' and would not do so until the amendment of its charter had been filed.
In paragraph X defendant admitted it had issued and sold capital stock and certificates of indebtedness and that it had issued deferred patronage refund certificates but denied that these capital stock certificates of indebtedness and deferred patronage refund certificates were required by law to be registered.
In paragraph XI defendant admitted the allegations of paragraph XI of the petition with reference to the advertising merits but denied that these were required to be approved by the state corporation commission.
In paragraph XII defendant denied the allegations of paragraph X except it admitted that it did transact a limited amount of business with nonmembers.
In paragraph XIII defendant denied that it was carrying on an expansive industrial program for itself under the guise of marketing agricultural products.
In paragraph XIY defendant further denied it had breached its corporate duty toward the state of Kansas or had assumed powers not delegated to it and alleged if it had to any extent exceeded its powers it stood ready, able and willing to correct the same when informed by this court that it had done so.
In paragraph XY defendant further alleged that the only controversy existing between the attorney general and the defendant was whether or not defendant might operate under the “cooperative societies’ act” rather than the “cooperative marketing act.”
Defendant in its answer quoted from an answer filed by plaintiff herein to the petition of defendant herein filed in the case of Consumer Cooperative Ass’n v. Arn, post, p. 489, as follows:
'“Defendants also deny the allegations contained in paragraph seven of Plaintiff’s petition and allege and state that if the Plaintiff Association (present defendant) is not legally entitled to exist as a ‘Marketing Association’ under Section 17-1601 et seq., G. S. 1935, it can properly carry on its present business operations either as a ‘Cooperative Society’ under Section 17-1501 et seq., or as a corporation under the General Corporation Laws.”
Defendant further alleged that the request for dissolution of the defendant corporation was without support or foundation.
The prayer of the answer was as follows:
“WHEREFORE, Defendant having fully answered, prays that the Court deny all of the relief prayed for by the Plaintiff and that if the Court find that Defendant has, through a misunderstanding of the law, exceeded any of its authority or breached any of its obligations to the State of Kansas, the defendant be so informed by the Court and given an opportunity to correct the same.
“Defendant further prays that the Court instruct all parties as to their rights and duties in the premises, and that Defendant recover its costs in this action.”
For a reply to this answer the plaintiff referred to Exhibit “B” which was attached to the reply and denied the allegations of the answer particularly those words with reference to paragraph VII.
The reply also denied the import of the allegations of paragraph VIII of the answer that merely some of CCA’s corporate stockholders were not organized under article 16, chapter 17, G. S. 1935, and alleged that approximately 950 of the CCA’s corporate members were not so organized.
The reply also contained the following allegation:
“Plaintiff admits that said Defendant, Consumers Cooperative Association could be chartered under the Cpoperative Societies Act (ch. 17, art. 15, G. S. 1935), and as a cooperative society could then conduct any business or industrial pursuit; but that said Defendant CCA must then comply with said chapter 17, article 15, G. S. 1935, with reference to the residence of members, payment of dividends, voting rights, stock ownership, and in all other respects.”
The plaintiff and defendant executed an agreed statement of facts, as follows:
“In order to eliminate all issues of fact existing between the plaintiff and the defendant, the Consumers Cooperative Association, it is hereby stipulated and agreed as follows:
“I
“Exhibit B, attached to Plaintiff’s Reply, is the 18th Annual Report of CCA to its stockholders; and Exhibit C, attached to Plaintiff’s Reply, is a 1947 publication by CCA to its members and stockholders; that the facts, statements and references contained in said Exhibits B and C pertaining to the business activities and pursuits of the CCA are accurately stated and hereby admitted.
“II
“The defendant CCA has approximately 1,035 common stockholders or members; that 22 of said common stockholders are individuals and are directors of CCA; that 63 of said common stockholders are Kansas Cooperative Associations organized under chapter 17, article 16, G. S. 1935; that the other 950 of said common stockholders own approximately 93% of the CCA common stock, and are other cooperative associations not organized under chapter 17, article 16, G. S. 1935. Of the 950 asociations last mentioned, approximately 200 are Kansas cooperative societies organized under chapter 17, article 15, G. S. 1935, and 750 are associations organized in several other states and Canada, and in six European countries.
“Ill
“The Articles of Incorporation and Bylaws of the CCA on file in the office of the Secretary of State are set forth in full and attached to this Stipulation.
“IV
“When a purchaser or patron of the defendant CCA (either member or nonmember) purchases commodities from CCA, said purchaser is delivered annually a Deferred Patronage Refund Certificate, which certificate represents said purchaser’s share of profit or savings in CCA. A photostatic copy of one of said certificates issued by CCA is attached hereto.”
Exhibit “B” to which reference is made in the reply and the agreed statement of facts is the 18th annual report of the defendant CCA to its stockholders. Exhibit “C” is a 1947 glossed brochure publication. They have both been available to us during the consideration of this case. They contain rather full and complete statements as to the activities and business enterprises carried on by the defendant CCA.
The issues made by the answer and cross petition of the state corporation commission and the answer of CCA thereto will be dealt with later in this opinion.
In the quo warranto action, the state asks first whether the provisions of article 16, chapter 17 of G. S. 1935 authorize the business activities and industrial pursuits being conducted by the defendant. It will be remembered that chapter 17, article 16 is the “Cooperative Marketing Act.” It is conceded that CCA was and is engaged in international trade, including the shipping of petroleum products overseas to the extent that during 1946 approximately three million gallons of motor oil were shipped to some ten different countries; that it has entered into exchange agreements with all major and independent oil companies in connection with the transportation of oil and gasoline; that it owns and operates oil refineries at Coffey-ville, Kan., Phillipsburg, Kan., and Scottsbluff, Neb., where it has a total annual production of more than 130 million gallons of refined fuels and can handle approximately six million barrels of crude oil a year, in addition to a one-third interest in a refinery at McPherson; it owns and operates canning plants, lumber mills, soy bean plants, paint factories and printing plants; it is engaged in manufacturing and owns and operates retail service stations and food stores; buys, owns and holds extensive oil and gas leases and royalties and oil producing properties and drills, operates and produces some 450 or more oil wells with annual oil runs of nearly one and three-fourths million barrels; owns and operates a system of oil pipe lines and publishes a biweekly paper; operates auditing management services and insurance agencies. ' The state includes in its brief and attaches great significance to a quotation from Exhibit “C” as follows:
“It (CCA) is building good will internationally by membership in cooperative organizations all over the world, by exporting petroleum products to cooperative wholesales overseas, and by acting as host frequently to visiting deputations of overseas cooperators who come to Kansas City for a close-up of the largest petroleum co-op in the United States.”
The state first argues that courts must seek simply to ascertain the legislative intent. The rule is stated in American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468, about as well as anywhere. There we said:
“Reasons which prompt legislSion are within the province of the lawmakers. When the intent and purpose of a law is clear, the statute is a sufficient reason for requiring compliance with its provisions.” (p. 25.)
No one questions the correctness of that rule. The trouble arises where courts being composed of ordinary fallible men are confronted with the duty of interpreting what the legislature meant at the time it acted, when ofttimes the court is speaking at a time far removed.
The state next points out what was stated by us at the outset of this opinion that Kansas has enacted legislation for the creation of two types of cooperatives, that is, cooperative societies, article 15, chapter 17, G. S. 1935, which may conduct any business or industrial pursuit, and agricultural cooperative marketing associations, article 16, chapter 17, G. S. 1935, which are for the disclosed purpose of marketing of agricultural products. The state .quotes from an article by Mr. John Hanna in his discussion of constitutional questions pertaining to agricultural cooperatives in 29 Michigan Law Review, 148, as follows:
“It will be remembered that a cooperative corporation need have nothing to do with agriculture. While this article is concerned with agricultural associations, it may be noted that many states have general cooperative association laws besides the law known popularly as the standard agricultural marketing act.”
It should be stated here that CAA concedes the correctness of the above statement and argues that there may be selling cooperatives and purchasing cooperatives and both functions may be joined in the same*ociety and are so joined in article 16, chapter 17, G. S. 1935.
The state next points out that CAA is carrying on its activities as an “agricultural marketing association” so we are concerned here now only with article 16, chapter 17, G. S. 1935. The state points out and quotes G. S. 1935, 17-1601, and argues that it sets the pattern. for the entire act. The state first quotes the title of the act as it appears in chapter 148 of the Laws of 1921, which is as follows:
“An Act to promote, foster and encourage the intelligent and orderly marketing of agricultural products through cooperation, and to eliminate speculation and waste; and to make the distribution of agricultural products as direct as can be efficiently done between producer and consumer; and to stabilize the marketing problems of agricultural products.”
The state then quotes the first section of the act, which is now G. S. 1935,17-1601, as follows:
“In order to promote, foster, and encourage the intelligent and orderly marketing of agricultural products through cooperation and to eliminate speculation and waste; and to make the distribution of agricultural products as direct as can be efficiently done between producer and consumer; and to stabilize the marketing problem of agricultural products, this act is passed.”
The state attaches great significance to the fact that the title to the act and the first section of it are identical and argues that all subsequent sections dealing with purposes, powers, members and organization procedure must be carried out in accordance with the “Title” of the act and with the declaration of policy contained in the first section just quoted. The state calls.attention to subsection (d) of section 17-1602, in which it is provided that marketing associations are not organized to make a profit for themselves but for their members as producers, with emphasis on the words “members as producers.”
The state next quotes section IY of the original act, which is G. S. 1935, 17-1604:
“An association may be organized to engage in any activity in connection with the marketing or selling of the agricultural products of its members, or with the harvesting, threshing, milling, preserving, drying, processing, canning, packing, storing, handling, shipping or utilization thereof, or the manufacturing or marketing of the by-products thereof, or in connection with the manufacturing, selling or supplying to its members of machinery, equipment, or supplies; or in the financing of the above-enumerated activities; or in any one or more of the activities specified herein. Nothing-in this act shall authorize such association to engage in the banking business.”
The state then argues that the purposes outlined in that section must be carried on in such a way as to put into effect the policy and purposes of G. S. 1935,17-1601, and that the additional powers conferred on cooperative societies by the amendment of 1931 must be exercised pursuant to the title and declared policy of the act, as set out in G. S. 1935, 17-1601. Stated succinctly, the state contends :
“For example, under section 17-1604 a Cooperative Marketing Association may engage in the business of processing or shipping — but it must do so in connection with agriculture and with agricultural products. Such an ,Associaton could process an alfalfa crop for its members into alfalfa meal as an agricultural product for its members — but Plaintiff submits that such a Cooperative Association could not drill oil wells or mine ores and process and refine such mineral products under section 17-1604. Neither can such an Association under that section engage in the operation of a vast oil pipeline system or trans-ocean shipping because the word ‘shipping’ appears in the statement of purposes although such Association probably could ship and transport grain, cattle, and other agricultural products for its farm members.”
It should be stated here that defendant contends that the foregoing is such a narrow construction of the statute as to defeat its obvious purpose and that the latter portion of G. S. 1935, 17-1604, reading “or in connection with the manufacturing, selling, or supplying to its members of machinery, equipment or supplies” confers much broader powers on cooperatives organized pursuant to the act than the state is ready to admit. Around the two points of view just expressed revolves this lawsuit.
The state next argues that there is no connection between the pursuits carried on by defendant and the marketing of farm products and contends that if- the CCA can carry on the business in which it is engaged then it could manufacture and sell clothing, furniture, automobiles or engage in other business in which it wished to engage. In support of this position the state cites and relies on Baldwin County Producers’ Corporation v. Frishkorn, 17 Ala. App. 84, 81 So. 862; Rockingham Bureau v. Harrisonburg, 171 Va. 339, 198 S. E. 908; State ex inf. Huffman v. Show-Me Power Cooperative, 354 Mo. 892, 191 S. W. 2d 971. Great reliance is placed on the case of Rockingham Bureau v. Harrisonburg, supra, on account of a definition of the word “supplies” as used in the Virginia statute, contained in that opinion. We shall discuss that opinion later.
The state next asks the question — Can an association such as CC'A conduct the activities and industrial pursuits it is now conducting as a cooperative under any Kansas law? CCA answers that it could if it was organized and doing business under article 15, chapter 17, G. S. 1935, instead of under article 16, chapter 17, G. S. 1935, as it now is.
The foregoing rather fully states the position of the state on the question of whether defendant is unlawfully usurping corporate powers on account of the business it is carrying on.
To avoid confusion we shall finally consider that question and dispose of it before stating other matters raised in the pleadings.
Counsel for CCA at the outset of their brief make the following statement:
“In our opinion, this litigation will serve no useful purpose unless it is first determined whether or not an agricultural cooperative may be organized under the Cooperative Marketing Act .for the single purpose of supplying its members with machinery, equipment or supplies, and if so, are any of the activities in which the Defendant is engaged, beyond the scope of the powers granted it by the Cooperative Marketing Act.
“Then if any of the Defendant’s activities are beyond the power and authority granted it by the Cooperative Marketing Act, both the State and ■ the Defendant will be properly informed as to what activities must be discontinued, or such services rendered the farmer members through some other form of organization. We can not therefore depart from the questions of law presented for the Court's determination in Defendant’s original motion. These questions are as follows:
“Does the Defendant operating under the Cooperative Marketing Act, have authority to engage solely in the business of obtaining and furnishing supplies to its members, who consist of individual producers of agricultural products .and associations of such producers?
“(a) If the defendant does have such power and authority, does it have the power and authority to manufacture such supplies?
“(h) If the Defendant does have power and authority to manufacture supplies, does it have', the power and authority to manufacture crude oil refined products?
“(c) If the Defendant does have the power and authority to manufacture crude oil refined products to supply its members, does it have the authority to own and operate such oil wells and pipelines as are necessary to the existence of its refinery operations?
“(d) Does the Defendant have authority to engage in the activities set out in subparagraphs (d) and' (h) of Paragraph VI of the petition?
“2. Does the Defendant, whose chief purpose is obtaining, manufacturing and furnishing supplies for its members, have the authority under the Cooperative Marketing Act, to furnish supplies to nonmembers?
“(a) Does the Defendant have authority to dispose of by-products from its manufacturing plants to nonmembers?
“(b) Does the Defendant have authority to dispose of surplus, caused by the seasonal operations of its members, to nonmembers?
"3. Does the Defendant have authority to enter into agreements for the exchange of refined products in order to reduce transportation costs?
“4. Does the Defendant have authority under the Cooperative Marketing Act, to accept as members, associations of agricultural producers which are not organized under the Cooperative Marketing Act?
“5. Is the Defendant, while operating as an agricultural cooperative association, required to register its securities with the State Corporation Commission under the Speculative Securities Act?
“(a) Is the evidence of a patronage refund due a member, an exempt security within the meaning of the Kansas Securities Act, even though the other securities of a cooperative association are or are not exempted?”
It will be noted the questions as stated above broaden somewhat the scope of the inquiry, as stated in the brief of the state. However, the difference is not so great as might at first appear. If the arguments advanced by the state are good or if only some of them are good there might arise a situation where only a limited ouster would be ordered or perhaps defendant might be ordered to correct such corporate abuses as are found to exist.
Defendant first calls our attention to the rule stated in Craig v. Craig, 143 Kan. 624, 56 P. 2d 464. There we said:
“In determining the intent of the legislature the court is not limited to a mere consideration of the words employed but should look to the existing conditions, the causes which impelled the enactment, and to the objects sought to be attained.” (p. 628.)
It will be remembered the state called our attention to what we said in American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468, as follows:
“Reasons which prompt legislation are within the province of the lawmakers. When the intent and purpose of a law is clear, the statute is a sufficient reason for requiring compliance with its provisions.” (p. 25.)
Somewhere between these two rules lies the path along which the feet of justice must be guided.
Defendant first makes the point that the courts have recognized the economic' necessity of agricultural cooperatives. Cited are, Northern Wis. Co-operative Tobacco Pool v. Bekkedal, 182 Wis. 571, 197 N. W. 936; Minn. Wheat Growers Co-op. Market Assn. v. Huggins, 162 Minn. 471, 203 N. W. 420 and Nebraska Wheat Growers Ass’n v. Smith, 115 Neb. 177, 212 N. W. 39. In the latter case the supreme court of Nebraska said:
“The legislatures of more than 30 of our states, including our own, have enacted substantially similar legislation to the Kansas act before us. These evidences of uniform opinion disclose that by universal consent it is now conceded that the basic economic condition of agriculture at the present time requires the remedies contained in the acts referred to, and that their application is deemed reasonable and just, and to operate for the good of the entire nation and every citizen thereof.” (p. 189.)
The defendant contends that all the statutes recognize two types of agricultural cooperatives, the marketing cooperative and the purchasing cooperative. It points out the evil that flowed from a situation where agricultural products were sold at a low price during the harvest season and retailed to the consumer at a high price after they reached the middleman, and contends that the creation of a marketing cooperative was the remedy created for this distressing situation and that equally necessary and inevitable was the creation of cooperatives for the purpose of purchasing their supplies. Defendant says:
“We must then have agricultural cooperatives which serve two very distinct purposes:
“1. Marketing cooperatives, which market the products of the farm.
“2. Purchasing cooperatives, which furnish their members with supplies.
“A single agricultural cooperative may perform either or both of these functions. All of the statutes which we have examined so provide.”
It will be easier to follow the argument of defendant if we read the following statement from its brief:
“It was therefore necessary that the individual agricultural cooperatives furnishing supplies to the farmers, pool their resources for the purpose of acquiring the supplies at the most advantageous price, and at the same time, assure themselves of a definite source of supply. In order that a source of supply be assured, it was equally necessary that to some extent they enter into manufacturing. This type of organization was presented by Nourse as follows:”
Defendant makes the point that agricultural cooperative legislation should be liberally construed. It cites: Wheat Growers Association v. Schulte, 113 Kan. 672, 216 Pac. 311; Nebraska Wheat Growers Ass’n v. Smith, 115 Neb. 177, 212 N. W. 39; The State v. Standard Oil Co. et al., 130 Tex. 313, 107 S. W. 2d 550; Texas C. C. B. Assn. v. Aldridge, 122 Tex. 464, 61 S. W. 2d 79; State v. Hardin County Cooperative, 226 Iowa 896, 285 N. W. 219.
In Wheat Growers Association v. Schulte, supra, we said:
“In such a case, the general rule that the language of the statute will be liberally construed for the purpose of upholding and promoting its object, and that strained and technical interpretations of its provisions for the purpose of impairing and defeating its manifest purpose will be avoided, is applicable.” (Syl. If 4.)
Among the purposes of the Kansas Cooperative Marketing Act was the purpose to make possible the organization of societies by which the individual farmer could maintain some control over the prices of his products and maintain some control over the purchase price of his supplies. We must give it such an interpretation as to enable cooperative societies organized under its provisions to carry out such a purpose if we can do so by any reasonable interpretation of the language used. In the manner in which this court follows the above lies, in a large measure, the difference between the state and the defendant. The plaintiff stoutly argues that the sole purpose of the Kansas Agricultural Cooperative Act, article 16, chapter 17, G. S. 1935, has to do with marketing the farmer’s products, nothing more. The defendant argues just as stoutly that it has that purpose and the further purpose of exercising some control over whatever the farmer buys and uses in the operation of his farm.
It will be remembered that the state placed great reliance on G. S. 1935,17-1601, and argued that all the powers and purposes conferred on a cooperative society by the following sections were limited by this general policy section. The soundness of the position of the state depends in a large measure on the soundness of that argument.
We must also consider G. S. 1935,17-1604. The provisions o'f that section are as follows:
“An. association may be organized to engage in any activity in connection with the marketing or selling of the agricultural products of its members, or with the harvesting, threshing, milling, preserving, drying, processing, canning, packing, storing, handling, shipping, or utilization thereof, or the manufacturing or marketing of the by-products thereof, or in connection with the manufacturing, selling, or supplying to its members of' machinery, equipment, or supplies; or in the financing of the above-enumerated activities; or in any one or more of the activities specified herein. Nothing in this act shall authorize such association to engage in the banking business. Corporations organized under this act primarily for the purposes aforesaid may also, unless prohibited from so doing by their articles of incorporation, deal in the products of nonmembers, and render any of the services above named to nonmembers in connection with their products: Provided, That such association shall not market, handle, process, store, or deal, in the products of nonmembers to an amount greater in value than such as are handled by it for members.”
These provisions may be more graphically set out as follows:
1. Marketing or selling agricultural products.
2. Threshing, milling, preserving, or in any manner handling or utilizing the products.
3. To either manufacture or market by-products.
4. Or to engage in any activity in connection with the manufacturing, selling or supplying to its members of machinery, equipment or supplies.
5. And to engage in any one or more of the activities specified.
Special attention is called to the provisions of the fourth purpose, as set out above.
The defendant points out the oft-repeated rule that in construing a statute courts should attempt to give effect to every word and clause. Cited are, Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328; Wyandotte County Comm’rs v. Adams, 155 Kan. 160, 123 P. 2d 818; Bridge Company v. K. P. Ely. Co., 12 Kan. 409; and Gardenhire v. Mitchell, 21 Kan. 83.
It is worthy of note that G. S. 1935, 17-1604, was section 4 of chapter 148 of the Laws of 1921. This chapter authorized the organization of marketing cooperatives. It, amongst others, was amended and reenacted by chapter 150 of the Laws of 1931. The following language was added:
“Corporations organized under this act primarily for the purposes aforesaid may also, unless prohibited from so doing by their articles of incorporation, deal in the products of nonmembers and render any of the services above-named to nonmembers in connection with their products: Provided, That such associations shall not market, handle, process, store, or deal in the' products of nonmembers to an amount greater in value than such as are handled by it for members.”
Section 1 of chapter 148 of the Laws of 1921, now G. S. 1935, 17-1601, was not reenacted nor was the title to the 1921 act used in the 1931 act. Surely had the legislature intended the entire act to be limited by the language of G. S. 1935,17-1601, that section would have been reenacted.
This argument especially is persuasive in view of the fact that by section 3 of chapter 150 of the Laws of 1931, same being now G. S. 1935, 17-1605, the legislature amended section 5 of chapter 148 of the Laws of 1921. This was the section which stated the powers the cooperative society organized under it should have. Section 5 of chapter 148 of the Laws of 1921 provided as follows:
“Each association incorporated under this act shall have the following powers: (a) To engage in any activity in connection with the marketing, selling, harvesting, threshing, milling, preserving, drying, processing, canning, packing, storing, handling or utilization of any agricultural products produced or delivered to it by its members; or the manufacturing or marketing of the by-products thereof; or in connection with the purchase, hiring, or use by its members of supplies, machinery, or equipment; or in the financing of any such activities; or in any one or more of the activities specified in this section.”
Section 3, chapter 150, Laws of 1931, provided as follows:
“That section 17-1605 of the Revised Statutes of 1923 be and the same is hereby amended to read as follows: Sec. 17-1605. Powers of association. Each association incorporated under this act shall have the following powers:
“(a) To engage in any activity in connection with the marketing, selling, harvesting, threshing, milling, preserving, drying, processing, canning, packing, storing, handling, or utilization of any agricultural products produced or delivered to it by its members; or the manufacturing or marketing of the byproducts thereof, or in connection with the purchase, hiring, or use by its members of supplies, machinery, or equipment; or in the financing of any such activities; or in any one or more of the activities specified in this section.
“(b) To borrow money without limitation as to amount of corporate indebtedness or liability; and to makd advances to members.
“(c) To act as the agent or representative of any member or members in any of 'the above-mentioned activities..
“(d) To purchase or otherwise acquire; and to hold, own, and exercise all rights of ownership in, and to sell, transfer or pledge or guarantee the payment of dividends or interest on, or the retirement or redemption of shares of the capital stock or bonds, of any corporation or association engaged in any related activity, or in the warehousing or handling or’marketing of any of the products handled by the association.
“(e) To establish reserves and to invest the funds thereof in physical facilities, stock of subsidiary corporations or bonds or in such other property as may be provided in the bylaws.
“(f) To buy, hold, and exercise all privileges of ownership over such real or personal property as may be necessary or convenient for the conduct and operation of any of the business of the association or incidental thereto.
“(g) To do each and everything necessary, suitable, or proper for the accomplishment of any one of the purposes or the attainment of any one or more of the subjects therein [herein] enumerated; or conducive to or ex pedient for the interest or benefit of the association; and to contract accordingly, and in addition to exercise and possess all powers, rights, and privileges necessary or incidental to the purposes for which the association is organized or to the activities in which it is engaged, and in addition, any other rights, powers and privileges, granted by the laws of this state to ordinary corporations, except such as are inconsistent with the express provisions of this act; and to do any such thing anywhere.”
It will be readily noted that ten years after the enactment of the original act of 1921 the legislature saw fit to confer or at least to confirm the fact that it had already conferred much broader powers upon a society created pursuant to its terms than a reading of G. S. 1935, 17-1601 would appear to have intended. Special attention is called to Subparagraph (a) and to subparagraph (S')-
It is also worthy of note that G. S. 1935, 17-1604 after enumerating the purposes for which a society might be organized provided: “Nothing in this act shall authorize such association to engage in the banking business.” This was in the original act. Had the legislature intended to limit by the terms of G. S. 1935,17-1601, the activities in which the society would be empowered to engage it is difficult to see why it would think it necessary to especially provide that such a society could not engage in the banking business. A reasonable inference to be drawn is that the legislature contemplated that such a society could engage in any business necessary in furnishing supplies to a member but the banking business.
With reference to the argument that the whole act must be circumscribed by the provisions of the policy section in 50 Am. Jur. 297, sec. 309, the rule is stated as follows:
“The preamble is especially helpful when the ambiguity is not simply that arising from the meaning of particular words, but such as may arise in respect to the general scope and meaning of a statute. The preamble is not, however, conclusive. Where the language of a statute is plain and unambiguous, the courts may not resort to the preamble of the act. It has also been held that the necessity of resorting to the preamble in order to ascertain the true intent and meaning of the legislature is fatal to any claim which by ordinary rules of interpretation can be sustained only by clear and unambiguous language. The preamble is not an essential part of the act, and cannot confer or enlarge powers. Express provisions in the body of the act can not be controlled or restrained by the preamble. Hence, it has been stated by some courts as the general rule that if there is a broader proposition expressed in the act than is suggested in the preamble, the body or enacting part of the law will prevail over the preamble.”
We shall next consider what is included in the phrase “engage in any activity in connection with the manufacturing, selling or supplying to its members of machinery, equipment or supplies.” The first question is — If an agricultural cooperative association has authority to engage in the activity of furnishing its members with machinery, equipment and supplies, does it have authority to manufacture them? In making an affirmative answer to this question we have considered the language of G. S. 1935, 17-1604, which has been quoted two or three times already in this opinion, where there is conferred upon the cooperative society authority to engage-in an activity “in connection with manufacturing, selling or supplying to its members of machinery, equipment or supplies.”
We must also consider the provisions of G. S. 1935, 17-1605 (g), which has already been quoted in this opinion.
The act had already, in G. S. 1935, 17-1604, provided that such a society could be organized for the purpose of engaging in any activity in connection with “manufacturing, selling or supplying” to its members of “machinery, equipment or supplies.” Then G. S. 1935, 17-1605 (g) provided it might “do each and everything necessary, suitable or proper.” Broader terms would be difficult to imagine. Then it says “or conducive to or expedient for the interest or benefit of the association.” These are all-inclusive terms. Then it says “and in addition, any other rights, powers and privileges, - granted by the laws of this state to ordinary corporations, except such as are inconsistent with the express provisions of this act.”-
There is really not much more to be said in answering this question. The statute either me-ans what it says or it does not. It would be difficult in view of what we have said in the cases heretofore cited about giving meaning to all the words used in the statute to say the statute did not confer that power upon the society created pursuant to it.
The next question is — If the defendant does have power and authority under the act to manufacture equipment, machinery and supplies, does it have power and authority to manufacture refined products of crude oil or in other words, gasoline and lubricating oil? This is really the question that brought on this lawsuit. If the CCA had not engaged in operating its refineries and kindred activities it is doubtful if the other activities in which the state alleges it was engaged would have brought on as drastic a pro-ceding as an ouster suit. In other words, there-was no particular attack on agricultural cooperatives as long as they confined their activities to the furnishing to their members of a few incidental supplies, such as binding twjine or axle grease or perhaps an occasional roll of barbed wire. This court will take judicial notice of the fact that in the present state of the art of farming, gasoline or the somewhat broader term “farm motor fuel” is one of the costliest items in the production of agricultural commodities. The writer has no doubt there are young farm boys who have never experienced the delight of guiding a team of mules along a furrow, but their agricultural operations have been confined to what fun they could get out of driving a tractor. Perhaps to the writer of this opinion, about 30 years removed from his operations as a farm hand, this delight appears more vivid than it did at the time he was going through it. However, there is still a bond between a farm hand and a good team of horses or mules. Cultivating corn with a team and a tongueless cultivator when an eighteen-year-old 'boy could reach back with his foot and kick the dirt off of an unfortunate stalk of corn was at the same time an art and an applied philosophy. Anyway, gasoline and tractors are here and this court is not going to say that motor fuel oil is not a supply necessary to the carrying on of farming operations within the purview of the terms of G. S. 1935, 17-1004 and related sections. Indeed it is about as well put as can be on page 18 of state’s Exhibit “C” where defendant says:
“Producing crude oil, operating pipe lines, and refineries, are also part of the business of farming. It is merely producing synthetic hay and oats for iron horses. It is ‘off-the-farm-farming’ which the farmer, in concert with his neighbors, is carrying on. Frequently it determines whether he makes or loses money in any given year on his 'fenced-in’ farm. Production of power farming equipment, then, is logically an extension of the farmers’ own farming operations.”
After disposing of the question of the operation and authority to manufacture crude oil and refined products the next question is— Does CCA have authority to own and operate such oil wells and pipe lines as are necessary to the existence of its refinery operations? The fact that this question has arisen demonstrates the truth of the doctrine that once.a step is taken in a certain economic direction 'the end lies along a path which perhaps was not contemplated at the outset when the step was first taken. It is easy to see what happened when this agricultural cooperative started a refinery. One could not have been in touch with public events in the state and not have been aware of it.
The defendant calls our attention to the fact that when cooperative associations first organized their refineries for the purpose of manufacturing tractor fuel and their refined products a movement was immediately started to eliminate them from the industry, by control of the crude oil supply. This, of course, is one phase of the old fight that has always ensued when some new movement first gets under way. The experts at weaving hand looms were just as provoked when machinery for weaving began to displace their efforts. The cotton pickers of the south see that the cotton picking machinery invented will displace many hand cotton pickers in that industry. The same cooperative effort which caused the society to buy and take over a refinery caused it to drill wells and lay pipe lines. Once we reject the narrow construction the state asks us to place upon the act due to G. S. 1935, 17-1601, we have no difficulty in reaching the conclusion that the defendant did not exceed its corporate authority in laying the pipe lines and drilling oil wells. (See Cooperative Assn. v. Jones, 185 N. C. 265, 117 S. E. 174.) There the supreme court of North Carolina said:
“It is common knowledge that two years ago the cooperative marketing of peanuts in northeastern North Carolina and southeastern Virginia was paraded because the cooperative associations did not own cleaning establishments. They were dependent on their enemies to do the cleaning for them, and those enemies easily imposed such terms as absorbed all profit. Now the peanut corporations, like the cotton and tobacco, are provided with all facilities.
“The enemies of the cooperative system would be delighted if the courts were to hold that a cooperative association is not permitted to use its own money in establishing warehouses, prize houses, redrying and processing plants, and were forced to depend for these facilities upon such terms as the association could make with its competitors. The latter would be in the position of an army well armed meeting in battle another army with no arms at all.
“The cooperative association is merely granted by the statute the privilege of building or constructing the necessary instrumentalities for carrying out the purposes of the association, and of using its own money therefor, under terms and conditions specified in the contract and agreed to by all its members.”
In subparagraphs (d) and (h) of paragraph VI of the petition the state charged the defendant exceeded its corporate authority in owning canning plants, lumber mills, printing plants,, paint factories and other industries and in furnishing auditing managing service and insurance agencies.
The argument of defendant is that these activities are carried on to furnish supplies to the members of the cooperative societies, the manufacture of which makes it necessary to the carrying on of a successful enterprise. About the only authority upon which the state relies is State, ex inf. Huffman v. Show-Me Power Coöperative, supra. The opinion is really not authority for the state’s position.
That was a quo warranto action to test the power of the cooperative society to engage in the electric utility business. The statute under which the cooperative is organized was not nearly as broad and did not confer nearly as sweeping powers on the society as does our statute. About all the case holds is that an electric utility business was neither a mercantile business nor one for the purpose of purchasing or selling to shareholders and others groceries and other articles of merchandise.
The state also relies upon Rockingham Bureau v. Harrisonburg, supra. That case turned upon the definition of the word “supplies” in the Virginia statute. That language was as follows:
“And the term ‘supplies’ shall include seed, feed, fertilizer, equipment and other products used in the production of crops and livestock and in the operation of farms and farm houses.” (p. 343.)
Under the rule of ejusdem generis, the court held:
“This rule means that when a particular class of persons or things is'spoken of in a statute and general words follow, the class first mentioned must be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class. The effect of general words when they follow particular words being thus restricted.” (p. 344.)
The Kansas Cooperative Marketing Act we are discussing does not define or restrict the meaning to be given the word “supplies.” Furthermore our act also uses the word “equipment” and “machinery.” We have demonstrated that.
We now proceed to another phase of this case. It is expressed in the following question: Does the defendant have authority under article 16, chapter 17, G. S. 1935, to furnish supplies to nonmembers? For the purpose of this discussion that question might be better stated as follows: If the defendant has authority to manufacture and furnish supplies for its members would the fact that it furnishes supplies to nonmembers be sufficient grounds upon which to base an order of ouster against the defendant or to appoint a receiver for it?
The argument of the defendant on this matter is purely a practical one. They state it is not their purpose to furnish machinery, supplies or equipment to nonmembers. They point out that the cooperative marketing act prohibits such association from dealing with nonmembers to an amount greater in value than with members, and that the requirements of the federal government permit the doing of business with nonmembers to 15 percent of the business done with members. There are some instances when it becomes necessary to do business with nonmembers, such as in a small farming community, when the cooperative store is the only source of supply for the farmers in the community who do not belong to'the cooperative society; that any manufacturing plant whether it deals in the manufacturing of farm products or machinery, equipment or supplies, necessarily has some by-products such as ordinarily are produced at a soy bean mill or similar plant. They point out that their agreements for the exchange of refined products are made with other companies to avoid transportation costs and that their shipment of oil products to foreign countries was to dispose of a surplus production and purely incidental to the operation of these refineries.
In this connection we note the 'provision of G. S. 1935, 17-1604, as follows:
“Corporations organized under this act primarily for the purposes aforesaid [one of these purposes would be manufacturing, selling or supplying to its members of machinery, equipment or supplies] may also, unless prohibited from so doing by their articles of incorporation deal in the products of nonmembers, and. render any of the services above named to nonmembers in connection with their products.”
Surely the provision with relation to supplies should be construed in connection with the above provision providing for dealing “in the products of” and rendering service to nonmembers. Furthermore, there is subparagraph (f) of G. S. 1935, 17-1605. This subparagraph gives the society power to exercise all privileges of ownership over such personal property as may be necessary or convenient for the conduct and operation of any of the business of the association or incidental thereto.
It would be a useless gesture to hold that the defendant could own a refinery and still could not dispose of some of the by-products of a refinery, such as asphalt or the heavier oils, just because a farmer could not use it, or to hold that because there was not as much demand for gasoline during the winter months as in the summer a refinery must then shut down or run at a greatly reduced scale. To so hold would be in effect to hold that .the society could not operate a refinery. Such a holding would require that we give to the statute a narrow, strict construction to defeat its purpose rather than a broad liberal one to insure the accomplishment of its purpose.
This does not mean that the defendant can engage in any industry or pursuit wholly or principally for the benefit of nonmembers. TRe business with nonmembers must be such as is incidental only to the principal purpose of any of defendant’s activities.
This brings us to the end of the argument of parties as to whether the defendant has been guilty of exceeding its corporate powers.
We shall now proceed to a consideration of another question raised by the state, which has to do with the membership of the CCA.
This is a phase of the action distinct from those we have treated so far. It involves the actual organization of the defendant. ■ It will be remembered the state pleaded that defendant was violating G. S. 1935,17-1606 because its members were limited by that section under “ (a) ” either persons engaged in the production of agricultural products to be handled by or through the association, or under “ (c)” to any other association organized under article 16, chapter 17, G. S. 1935, and that CCA had as members at least 950 corporations which were not organized unc^er that chapter and these 950 corporations owned at least 93 percent of defendant’s stock. The state alleged that this practice of defendant constituted a usurpation of power and authority.
In its answer the defendant denied the foregoing allegations except it admitted that some of its members were not organized under article 16, chapter 17, G. S. 1935. What this amounted to was a denial of the legal conclusion pleaded.
In the stipulation as to the facts, the parties agreed that CCA had-approximately 1,035 common stockholders or members; that 22 of these stockholders were individuals and directors of CCA; that 63 of them were Kansas cooperative associations organized under article 16, chapter 17, G. S. 1935; that 218 were cooperative associations organized under article 15, chapter 17, G. S. 1935, and that the other 732 of the common stockholders were cooperative 'associations organized under the laws of other states and six European countries.
To sustain its argument on this point, the state first refers to G. S. 1935, 17-1606. This is the same as the original section of chapter 148, Laws of 1921. It provides as follows:
“(a) Under the terms and conditions in its bylaws, an association may ad mit as members, or issue common stock only to persons engaged in the production of the agricultural products to be handled by or through the association, including the lessees and tenants of lands used for the production of such products and any lessors and landlords who receive as rent part of the crop raised on the leased premises, (b) If a member of a nonstock association be other than a natural person, such member may be represented by an individual, associate, officer or member thereof, duly authorized in writing, (c) One association organized hereunder may become a member or stockholder of any other association or associations organized hereunder.”
The state argues that the above provisions mean just what they say and that the 22 individuals, assuming that they are producers, are proper members and stockholders as are the 63 agricultural cooperative marketing associations organized under article 16, chapter 17, Laws of 1935, but the other cooperatives not organized under that section are not proper members and this is a violation of G. S. 1935, 17-1606.
The state argues that the intent of the legislature to limit memberships to associations organized under article 16, chapter 17, Laws of 1935, is further indicated by the fact G. S. 1935, 17-1621, sets up the procedure which a corporation must follow in changing its status to come under article 16, chapter 17, G. S. 1935, and provides that such an association may come under the marketing act by limiting its membership and adopting other restrictions such as a policy of dealing only in agricultural pursuits, as provided by G. S. 1935, 17-1601.
In reply to this argument of the state, the defendant first states a fact, which is not disputed, that all its members are either individual farmers or associations made up of individual producers of agricultural products. It points out section 2 of article 6 of its articles of incorporation, which is as follows:
“The common stock of this association may be purchased, owned and/or held only by producers of agricultural products and associations of such producers, who shall patronize the association in accordance with uniform terms and conditions prescribed thereby and only such producers shall be. regarded as eligible members of the association.”
G. S. 1935, 17-1603, provides for the organization of agricultural cooperatives as follows:
“(o) Ten (10) or more persons engaged in the production of agricultural products may form a nonprofit, cooperative association with or without capital stock, under the provisions of this act.”
The defendant calls our attention to the fact that there is' no restriction placed on residence or citizenship. The statute has a section directed to the definition of words as they are used in the act. G. S. 1935,17-1602, subparagraph (d) provides as follows:
“(d) the term ‘person’ shall include individuals, firms, partnerships, corporations and associations.”
Construing these two sections together the defendant argues that G. S. 1935, 17-1603 (a) should be read as though it provided: ten or more individuals, firms, partnerships, corporations or associations engaged in the production of agricultural products may form a nonprofit cooperative association.
So read the section means that the legislature thought that corporations or associations could engage in farming. Since this practice is generally known to be forbidden by law, however, the only conclusion is that the legislature thought the association took on the status of its individual members. (G. S. 1935, 17-1606, provides in part:
“(a) Under the terms and conditions of its bylaws, an association may admit as members, or issue common stock only to persons engaged in the production of the agricultural products to be handled by and through the association ...”
Here again we must construe the word “person” to mean “an individual, firm, partnership, corporation or association,” and the legislature must have intended that such associations would be identified by the fact that they were made up of producers of agricultural products. This conclusion is fortified by a further provision of G. S. 1935, 17-1606. Subparagraph (b) of that section provides as follows:
“If a member of a nonstock association be other than a natural person, such member may be represented by an individual, associate, officer or member thereof, duly authorized in writing.”
The use of this language is a definite indication that the legislature expected those would be members of nonstock associations organized under the cooperative marketing act other than “natural persons.” The provisions of G. S. 1935, 17-1606 (c) was actually a definite grant of authority to one association organized under article 16, chapter 17, G. S. 1935, rather than a restriction.
The provisions of G. S. 1935, 17-1613, are of interest to us here. That section provides in part:
“No stockholder of a cooperative association, except another cooperative association shall own more than one twentieth of the common stock of the association . . .
“The bylaws shall prohibit the transfer of the common stock of the association to persons not engaged in the production of the agricultural products handled by the association and such restrictions must be printed upon every certificate of stock subject thereto.”
If the theory of the state as to the construction to be given G. S. 1935, 17-1605 were sound, then the first of the provisions set out above would forbid the transfer of stock to other cooperatives organized under the provisions of article 16, chapter 17 of G. S. 1935. The other provision set out, however, is a clear indication of the intention of the legislature to provide that one cooperative society may own stock in another. G. S. 1935,17-1617a provides as follows:
“Any association may have an interest in or own the preferred or common stock of, or become a member of any cooperative association.”
It will be noted that the above section uses the words “any association” not “any association organized under this act.” That provision was enacted ten years after the' enactment of G. S. 1935, 17-1606, in which it was provided that one association organized under article 16, chapter 17, G. S.T935, could become a member of any other association organized under the act. The only apparent reason for the enactment, of G. S. 1935, 17-1617a would be to clearly provide that one agricultural cooperative association could own stock in another cooperative association regardless of whether or not such association was organized under article 16, chapter 17, G. S. 1935. As has been said heretofore in this opinion, the act should be liberally construed so as to enable it to accomplish the purpose for which it was enacted, to enable the members to better their conditions by bettering their method of disposing of their products and acquiring their supplies. In support of the proposition that a cooperative association takes on the nature of its members the defendant cites and relies on California E. Com’n v. Butte County Rice Growers’ Ass’n, (Cal.) 146 P. 2d 908; Big Wood Canal Co. v. Unemployment Comp. Div., 61 Ida. 247, 100 P. 2d 49; Wheat Growers Ass’n v. Sedgwick County Comm’rs, 119 Kan. 877, 241 Pac. 466; Georgia Milk Producers C. v. City of Atlanta, 185 Ga. 192, 194 S. E. 181; Allen v. Commercial Casualty Ins. Co., 132 N. J. L. 269, 39 A. 2d 447; Wilson v. Israel, 185 App. Div. 816, 173 N. Y. S. 842; Yakima Fruit Growers Asso. v. Henneford, 182 Wash. 437, 47 P. 2d 831; Industrial Commission v. United Fruit Growers Ass’n, 106 Colo. 223, 103 P. 2d 15.
There, is no contention in this case but that the members of the co^ operative societies which are members of CCA are all engaged in farming or the production of farm products. The regional cooperative society is a natural outgrowth of the cooperative movement generally. There is nothing in the entire act to indicate that it was the intention of the legislature to limit the activity of a cooperative society to the confines of the state. In fact, the very opposite is only a reasonable inference from all the provisions. It is the clear intention of the legislature that locally ten or more farmers could organize to help each other and that on a larger scale these groups could unite for the same purpose. So long as it is farmers helping themselves and each other it matters not whether they accomplish this by an association of individuals or an association of societies. Of only one thing we may be sure — they must all be engaged in the production of agricultural products. The last provision of G. S. 1935, 17-1605, dealing with powers of a cooperative society is “and do any such thing anywhere.”
This ends one phase of this case. We hold that the defendant should not be ousted or a receiver appointed for it.
The matter we shall now consider is in the main a controversy between CCA on one hand and the corporation commission'of the state on the other. It involves the question of whether CCA is obliged to register its securities with that department of the corporation commission commonly called the “Blue Sky Department.”
It will be remembered the state in its petition. alleged that the corporation commission had no interest that was antagonistic to the state’s interest but was an interested party and should be made a defendant because it had certain regulatory powers over all corporations with reference to their securities and particularly CCA. Later on in its petition the state alleged that CCA had by February 28, 1947, issued and sold $7,120,644 in securities including stock, both common and preferred, deferred patronage refund certificates and certificates of indebtedness without having registered them, as re-, quired by G. S. 1935,17-1226.
In its answer to the state’s petition, defendant admitted that it had sold capital stock and certificates of indebtedness and that it had issued patronage refund certificates without having registered them with the corporation commission, but denied the other allegations in the last paragraph of the petition.
In its brief the state sets out G. S. .1935,17-1628, to the effect that the general corporation láws of thé state shall apply to cooperatives organized under article 16, chapter 17, G. S. 1935, and argues that that section brings the securities of CCA under G. S. 1945 Supp., 17-1223.
The corporation commission filed an answer in which it admitted generally the allegations of the state. It then filed a cross petition against the defendant CCA in which it asked a declaratory judgment as to certain controversies that had arisen between it and CCA. In this cross petition after the formal allegations the commission alleged that CCA was first organized under the cooperative societies act, being article 15, chapter 17, G. S. 1935, and that in 1938 it purported to adopt the provisions of article 16, chapter 17, G. S. 1935, known as the cooperative marketing act, but did not change its charter.
That the charter board on January 25 and March 5, 1947, disapproved of the application of CCA to amend its charter from $2,-000,000 to $12,000,000; that in 1938 when CCA was permitted by the charter board to amend its charter and by proceeding under article 16, chapter 17, the charter board assumed CCA would proceed as a lawful corporation.
The cross petition then alleged that as of February 28, 1947, CCA had sold $958,570 of preferred stock in excess of its authority; that it had sold $2,707,170 of its capital stock without first having registered it with the corporation commission, as required by G. S. 1935, 17-1226, and in addition had sold other securities including deferred patronage refund certificates in the amount of $4,398,674 and certificates of indebtedness in the amount of $14,800 without having first registered them with the corporation commission. The cross petition further alleged that for eighteen months the officers of CCA had circulated advertisements for sale of its securities, which advertisements had not been approved by the commission.
The cross petition then set out certain applications and amended applications wherein CCA asked for the registration of its stock. The cross petition then alleged that notwithstanding Case No. 36,911 post, p. 489, whereby CCA was plaintiff and the members of the state charter board were defendants there existed an actual controversy between the corporation commission and CCA. The cross petition then contained the following statement of this controversy :
“The State Corporation. Commission contends:
“a. That such securities cannot now be registered for the reason that the same were sold in Kansas without having been registered and in violation of section 17-1226, G. S. 1935, and for the reason that there has vested in each and every purchaser within three years from the date of such purchase of securities, the election to declare said contract for the purchase thereof voidable and this answering and cross petitioning defendant alleges that there are more than 2,000 of such purchasers of such securities within the State of Kansas, and this answering and cross petitioning defendant has no power or jurisdiction to do' or perform any act or issue any order that would in any manner interfere with the enforcement of such vested rights by such purchasers.”
“The defendant CAA contends:
“a. That as, if and when the amendment to the Charter is made that then and in that event the State Corporation Commission has the power and jurisdiction to register the issue of common and preferred stock and certificates of indebtedness without regard to the violation of section 17-1226, G. S. 1935, and without regard to the fact that Preferred stock had been issued in excess of authority previously granted in the charter.”
The cross petition then proceeded to set out the actual controversy which it claimed existed between defendant corporation commission and CCA and in its prayer propounded some seven questions of law upon which it prayed to be enlightened.
We will not burden this opinion by setting out all these controversies because the conclusion we have reached with reference to the first one will not require an answer to the others.
In answer to the cross petition of the corporation commission, CCA alleged many of the facts heretofore discussed herein. It alleged further it was organized in 1931 and came under article 16, chapter 17 of C. S. 1935 in 1938; that both the charter board and the state corporation commission had been fully informed at all times of the business that was being carried on by it; that the matter was brought to their attention again in 1939 and 1940 when some subsidiary corporations were organized and the corporation commission knowingly permitted the defendant, the Consumers Cooperative Association, to issue and sell common stock, certificates of indebtedness and other alleged securities in the state of Kansas without objection and without requiring them to be registered under the Kansas Securities Act; that such action on the part of the defendant was in accord with the long-established policy of permitting farmer cooperative societies to sell securities in the state of Kansas without requiring their registration and that the defendant, the Consumers Cooperative Association, promptly filed the application referred to in the cross, petition upon the re quest of the corporation commission, to retain its good will notwithstanding that it was the opinion of the defendant that it was not required by law to register its securities and that notwithstanding such an opinion CCA had indicated its desire to meet the requirements of the corporation commission and that any controversies which might exist between the corporation commission arid CCA, with the exception of the contention of the corporation commission that the deferred patronage refund certificates of CCA were securities within the meaning of the Kansas Securities Act would be eliminated by the approval of the state corporation commission of the applications heretofore filed with it by CCA for the registration of its securities; that the defendant was informed and so alleged the fact to be it had long been the established practice of CCA to register securities following the issuance and sale of part of such securities prior to their registration, in those instances in which the issuer’s failure to comply with the registration provisions of the Kansas Securities Act first came to the attention of the state corporation commission after portions of such unregistered issues had been sold and that this case was the first oné in which this question had ever been raised by the corporation commission. Attached to this answer was a statement of the value of the CCA’s property and the volume of business done by it during the fiscal year ending August 31, 1946; also a list of investments and securities of CCA. It may be stated parenthetically that there was no contention by anyone in this action that CCA is not sound and solvent and in a flourishing condition. No financial reason is advanced by the state or the corporation commission why these securities should not be registered.
We have heretofore stated in this opinion what the state alleged with reference to CCA’s selling its stock without it being registered with the corporation commission. The state did not allege directly that the selling of this unregistered stock was a corporate misdeed. It did, however, just before the prayer in the petition, state that by reason of all acts and omissions herein alleged CCA had breached its corporate duty to the state.
If that question were before us probably we would hold such was sufficient allegation of violation of law that if sustained, and no legal explanation advanced for it, would support a judgment of ouster. However, in its brief the state has not asked that CCA be ousted from doing business for that reason nor does it argue that is one of the reasons why a receiver should be appointed.
The question of sale of securities that were not registered, in violation of G. S. 1935, 17-1226 is raised in the main by the cross petition of the corporation commission. The corporation commission does not ask that CCA be ousted from doing business in the state or that a receiver be appointed. It only asks for a declaratory judgment answering certain questions of law as to its rights and duties with reference to the present situation and the rights and duties and obligations of CCA and its obligation toward people' who have bought its unregistered stock. In its original brief in this case, in answer to the brief of the state, CCA states that the question whether or not CCA should register its securities under the Securities Act does not present an actual controversy. between any of the parties. It contends that the law does not require the registering of its securities and that position was accepted by the corporation commission until sometime in 1946, when the corporation commission suggested to the defendant that its securities should be registered and that for the purpose of cooperating with the state officials the CCA did present its securities for registration and does not now and never has raised any objection to the registration.
In such a situation it is doubtful whether an actual controversy exists so that a proper situation is presented for us to decide under the declaratory judgment act. However, this is a public matter. Orderly transaction of the business of the state requires that some of the questions propounded should be answered as expeditiously and with as- little dislocation of the business of the parties as possible even though the proceedings are a little irregular in the manner in which the question is brought to us.
We shall proceed therefore to settle such of the legal propositions raised by the corporation commission as we deem necessary to settle the controversy between the corporation commission and CCA.
The question whether or not the stock of CCA is required to be registered should be first settled. We shall proceed to answer that question now. CCA first point's out that it is only required by our statute to register such of its securities as are spld in the state of Kansas and that the amount so sold is much smaller than that alleged in the petition of the corporation commission, that is, the amount of $1,197,827. It points out there is no dispute but that it was not required to register those securities sold prior to 1935, since up to that time a statute was in effect which expressly exempted its securities from the necessity of being registered. CCA also points out that no one knows how many of the above securities were sold prior to 1935.
CCA points out that section 2 (11) of chapter 140 of the Laws of 1929 exempted the securities of cooperative associations from the necessity of being registered and that this section was repealed by chapter 129 of the Laws of 1935. It argues that the above section was repealed because all parties thought the exemption was otherwise provided by law. It contends that its securities are exempt by the language of article 12, chapter 17, G. S. 1935, known as “The Securities Act” and also by the provisions of article 16, chapter 17, G. S. 1935-
CCA first quotes subsection (6), G. S. 1945 Supp., 17-1224, as follows:
“The provisions of this act . . . shall not apply to the following securities: . . . (6) Any security issued by a corporation organized exclusively for . . . benevolent, fraternal . . . purposes, and not for pecuniary gain, and no part of the net earnings of which inures to the benefit of any private stockholder or individual.”
It then quotes in part G. S. 1935,17-1602, as follows:
“Associations organized hereunder shall be deemed nonprofit, inasmuch as they are not organized to make profit for themselves, as such, or for their members as such, but only for their members as producers.”
CCA argues that under these two sections it is a nonprofit society and hence under G. S. 1945 Supp. 17-1224 (6) it is exempt. We cannot agree. It is true G. S. 1935, 17-1602, does provide that societies such as this shall be deemed nonprofit. However, G. S. 1945 Supp., 17-1224 provides that two conditions must exist before the securities are exempt under its provisions. One is the corporation must not be organized for gain. Granted for the sake of argument that such condition does apply tó CCA the other condition is that it must be organized exclusively for “religious, educational, benevolent, fraternal, charitable or reformatory purposes” as well. We have just used several pages demonstrating to our own satisfaction, at least, that CCA was not organized for any of those purposes even though the statute does say it shall be nonprofit.
CCA next quotes G. S'. 1935, 17-1624, as follows:
“Each association organized hereunder shall pay an annual license fee of ten dollars ($10), but shall be exempt from all franchise or license taxes.”
Also G. S. 1935, 17-1619, is as follows:
“Any provisions of law which are in conflict with this act shall not be construed as applying to the associations herein provided for.”
CCA then points out that G. S. 1945 Supp., 17-1234, provides for fees on the registration of securities and argues that since the registration of the securities would require the payment of a fee and since G. S. 1935, 17-1624-exempts it from all franchise or license taxes, then it must be exempt from registration. . To sustain the position that the tax provided by G. S. 1945 Supp., 17-1234 is a license tax, CCA quotes from 37 C. J., pp. 168 and 169, as follows:
“A ‘license fee’ or as it is otherwise called a ‘license tax,’ the two terms generally being regarded as synonymous, since the requirement of payment for a license is only a mode of imposing a tax on the licensed business, ia the sum exacted for the privilege of carrying on a particular occupation or business.
“The object of a license is to confer a right of power which does not exist without it; and the object of a statute or ordinance requiring such license and in connection therewith a license fee or tax is to regulate and control the occupation or privilege for which the license is granted, so as to sub-serve the public good or prevent its being conducted in a manner injurious to the public welfare, or to raise revenue, and in its popular meaning, a license fee or tax includes any charge imposed for a license, whether the object is regulation or revenue, or both regulation and revenue.
“If the fee is exacted for the primary purpose of regulating or restraining an occupation or privilege deemed dangerous to the public or to be specially in need of public control, and compliance with certain conditions is required in addition to the payment of the prescribed sum, such fee is a license fee or license tax proper imposed in the exercise of the police power and is not strictly speaking an ordinary tax, especially where the fee does not exceed and is intended to cover the actual expense of issuing the license and inspecting and controlling the occupation; nor,does it lose its character as a license fee because it is called a tax in the legislation which imposes it.”
This quotation instead of sustaining the position of defendant refutes it. The fee exacted by G. S. 1945 Supp., 17-1234, is not a fee for a license permitting the company to do business. The requirement with reference to the registration of securities bears no relation to the actual business of the company. If it had the capital to carry on its business without selling securities to the public it could have engaged in its regular corporate business without regard to the securities act. Article 12, chapter 17, G. S. 1935, was written to prevent fraud in the sale of worthless securities, not to regulate the business of the company nor to raise revenue generally. (See Daniels v. Craiglow, 131 Kan. 500, 292 Pac. 771.)
G. S. 1935, 17-1226, provides:
“No securities, not exempt by section 2 [17-1224] hereof, shall be sold within the state of Kansas except in a manner exempted by section 3 [17-1225] hereof, unless or until such securities have been registered as herein provided.”
We have already demonstrated that the common and preferred stock and the securities called certificates of indebtedness were not exempt by G. S. 1935, 17-1624. CCA does not argue that its securities other than its deferred patronage refund certificates are sold in such a manner as to bring the transactions within the exemption of G. S. 1945 Supp., 17-1225. . The regulation of securities such as described in article 12, chapter 17, G. S. 1935, is a matter within the police power of the state and the exemptions will be strictly construed.
CCA does not contend that the fact the corporation commission permitted it to sell its stock without having it registered confers on it the right to sell it without registering it regardless of the law. It only relies on what it argues was such a practice of the commis- , sion as a reason why it should be freed from some of the consequences of having sold some stock without registering it.
We proceed to that question now. We have a situation where we have held that the stock of CCA was required to be registered. There are now pending before the corporation commission applications^ register this stock. The corporation commission asks us what are its rights, powers and duties in the premises.
The corporation commission contends that it now has no power, authority or jurisdiction to register the securities of CCA because in the first place it argues to do so would violate G. S. 1945 Supp. 17-1229. That is a long section consisting of some ten subparagraphs with subdivisions of these paragraphs. It has to do with the duties of the commission in granting, denying and canceling authorization to sell securities tendered to it. It covers the process of investigations and inspection of physical assets of corporations which tender securities to be registered, examination of their books and manner of doing business and other details. Subparagraph 2 provides in part:
“If the corporation commission shall find ...”
Then we find several conditions which the legislature thought would render a security not a proper security to be sold to the public in this state. Finally in subparagraph 11 of subparagraph 2 we find the following provision which refers back to the provision just mentioned:
“That there has been a violation of any of provisions of this act or of the orders of the corporation commission, of which such issuer has notice . . . (12) . . . it shall reduce its findings to writing and refuse an authorization to sell to the applicant of the sale of such securities, and it shall thereafter be unlawful for any person to sell or offer for sale any of said securities in this state.”
The corporation commission takes the position that it is strictly bound by the above statute that since all parties admit that CCA did sell some securities without having them registered and this was a violation of one of the provisions of the act, which forbids such’ sale, the only course it can take is to reduce its findings to writing and refuse the permit to sell for which CCA has applied.
In this ease there has been no contention on the part of anyone that there was anything wrong with the fiscal structure or the practices of this company with reference to the sale of its stock or with the manner in which CCA conducts its business other than those that have been dealt with heretofore in this opinion, so that none of the other conditions set out in G. S. 1945 Supp. 17-1229 requiring the denial of a permit exist.
If the position of the corporation commission be correct, then two alternatives would be presented to CCA, either it could cease the sale of stock altogether and curtail its operations and activities accordingly or as a second alternative it could make arrangements to bring out a new issue of stock and make application for permission to sell it. In that case the corporation commission would not find that any of that issue had been sold in violation of law as far as this record discloses and no reason for denying the new issue to be sold would appear.
We do not wish to be regarded, however, as prejudging what the result would be if the commission should on the new application proceed to have investigation of the CCA made, which is provided for in G. S. 1945 Supp. 17-1229.
This proceeding was instituted as a quo warranto action wherein a judgment of ouster against the defendant and appointment of a receiver was asked. We have demonstrated that none of the other reasons advanced for ouster of CCA by the state are go.od. We have pointed out that if other conditions warranted it the p'etition would sustain a judgment of ouster on account of a violation of which we have spoken. However, all parties agree and it is generally acknowledged that officials of the state, including the corporation commission and the charter board, did have knowledge through applications that have been made to the corporation commission and 'the charter board that for several years prior to the institution of this action CCA was selling its securities without having them registered. There is no dispute but that the matter was the subject of conferences between representatives of CCA and these officials and it was concluded that the statute did exempt such securities from the necessity of being registered. Up to the time this case was finally submitted to us and received our final determination there was grave doubt as to whether the statute did require the registration of these securities. After the judgment of this court is entered it will be finally settled for the first time. This court does not always decree ouster of a corporation and appointment of a receiver when evidence has been presented to it that the corporation has violated the law or is guilty of some corporate misdeed of usurping power. We have on several occasions only decreed a partial ouster or we have announced the law and directed the corporation to mend its illegal practices or take whatever steps were necessary to bring it within the law as we announced it. (See Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P. 2d 584, and State, ex rel., v. Sage Stores Co., 157 Kan. 404, 141 P. 2d 655, rehearing denied, 157 Kan. 622, 143 P. 2d 652.)
The position with which we are confronted is somewhat analogous to this. The violations of law upon which the charter board bases its argument were not found as a result of any investigation carried on by the commission. The sale of this stock without registration was openly and notoriously done and it was not a surreptitious violation of the law which the commission unearthed by means of the detailed investigation G. S. 1945 Supp. 17-1229 provides for. We think it would be a strained and strict construction of the statute not called for under the circumstances for us to hold under all the surroundings facts and circumstances that G. S. 1945 Supp. 17-1229, subparagraph 11, should be given the construction for which the corporation commission contends.
In, connection with this argument the corporation commission also calls our attention to G. S. 1945 Supp. 17-1240. The section reads as follows:
“Every sale or contract for sale made in violation of any of the provisions of this act shall be voidable at the election of the purchaser; ... in an action at law in any court of competent jurisdiction upon tender to the seller in person or in open court of the securities sold or of the contract made, and of any income from such securities or contract, for the full amount paid by such purchaser, together with all taxable court costs and reasonable attorney’s fee in any action or tender under this section: Provided, That no action shall be brought for the recovery of the purchase price after three years from the date of such sale or contract for sale . . . Provided further, That no purchaser otherwise entitled shall claim or have the benefit of this section who shall have refused or failed within thirty days from the date thereof to accept an offer in writing of the seller to take back the security in question and to refund the full amount paid by such purchaser, together with interest on such amount for the period from the date of payment by such purchaser down to the date of repayment, such interest to be computed: . . . less, in every case, the amount of any income from said securities that may have been received by such purchaser.”
The corporation commission contends that when any person bought stock or other securities from CCA which had not been registered that under the provisions of the above statute he became vested with the right to tender that stock back, together with the income it had received from it, to obtain a judgment for the amount paid for it, together with a reasonable attorney’s fee. The corporation commission asks us to decide the rights of the purchasers of this stock with reference to that statute. There is no purchaser of stock before us in this case. We do not know whether any purchaser of this stock will ever seek to take advantage of the provisions of the statutes. No matter what we concluded we would not at this time adjudicate the rights of some purchaser of stock in the absence of his being a party. We have reached the conclusion that the stock should be offered for registration, however, and that the commission should proceed to hear the application and decide whether or not it would permit it to be registered and sold. We further wish to state with reference to the provisions of G. S. 1945 Supp. 17-1240, that we do so without prejudice to the rights of any purchaser of these securities under that statute.
The remaining question in this case is whether the deferred patronage refund certificates must be registered before they can be sold. These certificates are issued pursuant to article III, section 1, subsection (c) of the bylaws of CCA. This section provides as follows:
“The remainder of the said net savings of the wholesale department, if any, shall be paid on a patronage basis to all patrons who have done business with the association. In order to provide for capital, the payment of all or any part of the patronage refunds may be made in deferred patronage refund certificates: provided, however, the patronage refunds of patron associations shall be paid in stock until the total amount of stock so paid shall be equal to at least five (5) percent of the capital each uses in departments supplied by the association.”
And subsection (d) of these bylaws provides as follows:
“Patronage refunds of the retail department shall be paid out of the savings of the retail department to all .its patrons, provided the patronage refunds of non-shareholders shall be set up to their credit. When said credit equals $10 a participating membership certificate shall be issued to such patrons.”
The provisions of G. S. 1935, 17-1226 apply to the sale of securities. It is the sale of that which is forbidden by the act. There are two questions to be determined here: First — Are “deferred patronage refund certificates” securities? Second — Is the method by which those certificates are distributed a “sale” of them? We find it unnecessary to answer the first question. We choose to place our conclusion upon an answer to the second question. These certificates are 'the means of passing on to .members the savings made through trading with the society. Occasionally one of these certificates is issued to a patron who was not a member, but such, as we have seen, was only incidental. The certificate bears on its face the statement that the amount for which it was issued will be payable at a time and in a manner to be determined by the board of directors and shall be such a rate of interest as shall be determined by members at the annual meeting. Matters of this sort are by statute left to the discretion of the society. G. S. 1935, 17-1609, provides as follows:
Each association incorporated under this act must, within thirty (30) days after its incorporation, adopt for its government and management a code of bylaws, not inconsistent with the powers granted by this act. Each association under its bylaws may also provide for any or all of the following matters:
“(;') The amount of annual, dividends which may be paid on the common or preferred stock, which shall in no case exceed eight percent, and the manner in which the remainder of the association’s profits shall be prorated in the form of patronage dividends to its several stockholders or members upon their purchases from, or sales to, the association of upon both such purchases and sales.”
These certificates are distributed on the basis of the year’s busi ness. The bylaws passed in conformity with the statute require that some such distribution be made. The only 'thing left to be determined is the amount and the terms of payment. Such a transaction is not a sale. Furthermore, subparagraph 4, G. S. 1945 Supp. 17-1225, excludes from sales coming under the act:
“The distribution by> a corporation of . . . securities, to its . . . security holders or their respective assigns, as a . . . distribution out of earnings or surplus . . .”
The issuance of the deferred patronage refund certificates is such a transaction as was excluded by the above statute.
As to the prayer for ouster of the defendant CCA from the state, judgment will be for the defendant.
As to questions propounded by the corporation commission we hold that the common and preferred stock and certificates of indebtedness of defendant are required to be registered with the corporation commission before they can be sold in this state; the commission has jurisdiction and power and it is its duty to proceed to hear and determine the application of CCA for permission to register these securities; the securities sold in Kansas without being registered should be registered if the commission on final hearing determines that the issue should be registered; this registration, however, is not to prejudice the rights of any buyer of this stock under the provisions of G. S. 1945 Supp. 17-1240; the deferred patronage refund certificates are not required to be registered.
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The opinion of the court was delivered by
Thiele, J.
This is an appeal from a judgment of a trial court setting aside and holding for naught a petition for a new trial.
On March 11, 1946, Nathan Marks instituted an acton against his wife Lillian Marks, for divorce on the grounds of cruelty and gross neglect of duty and for division of property. On June 8,1946, she filed an answer admitting the marriage and accumulation of property and denying other matters,’ and a cross-petition under which she sought separate maintenance. The action was tried on June 18, 1946, both parties being represented by counsel. The trial court found the defendant' was guilty of extreme cruelty and gross neglect of duty and that plaintiff was entitled to a divorce; that their real property was worth $9,000, subject to a mortgage indebtedness of $4,000 and that’ the equity was worth $5,000, and that the furniture was worth $500. The plaintiff was given the option to purchase this property by paying defendant one-half of the net' value or $2,750, plus $200. If he did not so elect, the property was to be .sold subject to the mortgage and the proceeds equally dividéd. Judgment was entered accordingly. Without filing any motion for a new trial the defendant perfected an appeal to this court from the judgment. That appeal was dismissed for want of prosecution.
Thereafter the defendant changed counsel and, during the next succeeding term of the Sedgwick county district court, filed her petition for a new trial, in which she asked the court to grant her a new trial on grounds which we summarize: (1) From the time of the filing of the petition, .plaintiff and defendant lived together and cohabited at their home. (2) Plaintiff threatened defendant in that he stated to her that being of. the Jewish race they were not divorced religiously and she had to live with him and the civil action had no effect on their relationship as husband and wife. (3) Under a temporary order of the.court of March 9, 1946, plaintiff threatened to dispossess her of their home and gave her no money to live on and by reason of her poverty she was forced to live in the home. On May 16, 1946, the court gave both parties temporary occupancy of the home pending the action and with knowledge of the court the parties lived on the same premises, and pending the action plaintiff by his conduct and remarks forced the defendant to cohabit with him up to November 7, 1946. (4) Plaintiff knowingly, fraudulently and intentionally withheld from the court information concerning their relationship when the action was tried. (5) Defendant was under the influence, will power and domination of plaintiff, was unable to exercise her free will in the judgment and division of the property, and that plaintiff, concealed from the court information concerning the true value of his property. (6.) The value of the property was of certain stated amounts (these amounts are higher than as found by the court). (7) At the time of their marriage plaintiff was worth nothing financially and the parties by their joint efforts saved what they had. (8) Her former attorney had not advised her that she had to have witnesses to corroborate her testimony and did not give her reasonable opportunity to prepare her defense. (9) Plaintiff committed a fraud on the court by failing to disclose the fact of the cohabitation of the-parties but she was unable to state whether he had informed his counsel of the* facts. (10) She made part of her petition for a new trial the allegation of her answer and cross-petition in the action and she could prove plaintiff had been guilty of extreme cruelty and that he had condoned the offenses which he claimed the defendant had committed; and (11) she had never accepted the $2,950 in the hands of the clerk of the district court under the judgment.
Summons was duly issued and served upon the plaintiff and he filed his answer and motion to set aside the petition for a new trial for the asserted reasons that the petition did not state facts sufficient to warrant the relief sought; that there were no allegations of extrinsic fraud,- and that if any facts as to fraud were alleged they were all intrinsic in the orders and final judgment and did not entitle the defendant to the relief sought. On December 11,1946, the trial court heard the matter upon the plaintiff’s answer and motion, and rendered its order and judgment setting aside and holding for naught the defendant’s petition for a new trial. Thereafter the defendant again changed counsel and perfected her appeal from the last mentioned order and judgment. We shall refer to the parties as they appeared in the lower court.
In this court the plaintiff has questioned the sufficiency of defendant’s specification of errors as presenting anything for review. We shall not discuss the question further than to say though the specification may be a borderline one, the doubt will be resolved in favor of the defendant and the appeal considered.
In her brief defendant dwells at length on the difference between extrinsic and intrinsic frauds and their effects in proceedings for setting aside judgments and for new trials, and directs our attention to some of our decisions. She also cites Brooks v. National Bank of Topeka, 153 Kan. 831, 113 P. 2d 1069, and Johnson v. Schrader, 150 Kan. 545, 95 P. 2d 273, as holding that duress is a species of fraud.
In our view of the situation as disclosed by the petition for a new trial, and the judgment sought to be set aside, it is not necessary that we discuss at any length the character of the alleged fraud, for whether it was intrinsic or extrinsic is immaterial to a decision. It is clear from the allegations that all that is alleged with respect to cohabitation between the parties was as well known to the defendant as it was to the plaintiff. We need not discuss whether condonation is an affirmative defense, but certainly if plaintiff’s testimony either on direct or cross-examination did not disclose facts which would have proved condonation, defendant as a witness in her own behalf, and under her allegation she was such a witness, could have testified fully with respect to such facts. If she elected not to do so, she too deceived the court about a matter she now insists is so important. We do not place any stamp of approval on a party to an action not fully apprising his own counsel and the court of the facts, but 'where the other party knows of those facts and fails to disclose them in a timely place and manner, she is hardly in a position to later assert that her adversary is guilty of fraud.
Neither do we find any facts pleaded to justify her pleaded conclusion that she was under duress. At the trial of the divorce action she was represented by her own counsel, she had filed an answer, and'she testified. If there was any reason why she did not fully plead and prove her defense, it is not alleged in her petition for a new trial.
The allegations with respect to the value of the property are not sufficient to charge fraud. It is dedueible from the divorce decree that evidence of the value of the property was before the court for it made specific findings thereon. That plaintiff’s testimony as to the value of that property is not in agreement with defendant’s estimate of value, does not constitute facts showing that plaintiff was guilty of fraud in testifying. We do not know just what testimony as to value may have been adduced by defendant at the trial of the divorce action, but we do know that she then had her opportunity to offer testimony as to what she now alleges was its value.
Defendant also charges that her then counsel never advised her that she should get witnesses to corroborate her testimony, and that she was not given reasonable opportunity by her counsel in order to prepare her defense and prosecute the action. Giving this allegation the fullest force and assuming its entire truthfulness, there is not the slightest sort of allegation that plaintiff was in any way or manner responsible.
In our opinion the ruling and judgment of the trial court, of which complaint is made, was not erroneous, and the judgment is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Parker, J.
This is an injunction proceeding wherein the plaintiff seeks to restrain the defendants, officials of the city of Salina, from enforcing the original zoning ordinance enacted by the governing body of that municipality in November, 1925. Under the pleadings plaintiff contends the ordinance is void and, in the alternative, that if it be adjudged valid the business he is conducting in a garage located upon property owned by him, and conceded to be within the limits of the zoning district on all dates in question, is not within its prohibition. Defendants claim such ordinance is valid and that plaintiff has been violating its provisions. By cross petition they pray that plaintiff be enjoined from using such garage 'in violation of its terms.
With issues thus joined the cause came on for trial. After hearing the evidence the trial court, having been requested by the parties.' to do so, made findings of fact and conclusions of law.
The findings of .fact, which we have' examined and approve as; supported by substantial competent evidence, set forth the material facts to be gleaned from a somewhat cumbersome and tedious record, in the most concise manner possible under the circumstances and will suffice for a statement of the factual situation upon which the issues depend when quoted in toto. They read:
“1. The plaintiff, Gilbert Piper, first became a resident of the City of Salina, in January, 1936, and has resided there ever since.
“2. The defendants, James H. Moore, Jr., Lloyd Price, B. A. Breon, H. CSimpsón and A1 Noyce are the members of the Board of Commissioners of the City of Salina, Kansas, a city of the first class, operating under the Commissioner-Manager form of Government; and the defendant E. J. Allison is the City Manager, and the defendant Edgar Heyl is the Chief of Police of said city.
“3. The plaintiff, Gilbert Piper, is the owner of Lots Seventeen (17) and Nineteen (19) in Block Twenty-three (23) of Episcopal Military Institute Addition to the City of Salina, he having acquired the title to Lot Seventeen (17) on May 4, 1943, but had been the owner of an equity, therein since May,, 1937. For a number of years prior to July 11, 1944, he had occupied Lot Nineteen (19) as a tenant, and acquired the title to said lot on the latter date. These two lots are contiguous and constitute one tract of land eighty by one hundred and forty feet, with an eighty foot frontage on Seventh Street and. 140 foot frontage on Otis Street. Plaintiff’s dwelling house is located on Lot Seventeen (17). On Lot Nineteen (19) plaintiff has constructed a garage 25.5 feet by 31.5 feet and 13 feet high. This garage is located .to the rear of said lot and more than fifty feet from the front of said lot on Seventh Street, and occupies less than 30% of the rear yard of the main building.
“4. The plaintiff, Gilbert Piper, has entered into an oral arrangement with the management of the' Salina store of Sears Roebuck and Company whereby plaintiff installs reconditioned motors in Ford, Chevrolet and Plymouth automobiles,' for customers of the Sears Roebuck and Company. Such motors are sold by the Sears Roebuck and Company to their various customers on both cash and credit bases, and when such sales are on a cash basis, the customer pays plaintiff direct for his services in installing such motor in the customer’s automobile, but when the sale is on a credit basis the Sears Roebuck and Company pays the plaintiff for his services in making such installation. Plaintiff receives the sum of $27.50 for installing a Ford motor block and $30.00 for installing a Chevrolet or Plymouth motor block. All of the work is done in the garage described in Finding No. 3 above. Plaintiff has on several occasions employed other persons to assist him in the work in such installations.
“5. Plaintiff has been regularly employed at the Smoky Hill Army Air Base, having civil status, and during the Spring and Summer of 1946 had made the installations described in Finding No. 4 during, the evenings and at such time as he was not required to be on duty at the Air Base, but at the time of the trial he wás no longer employed at the Air Base, but expected to be recalled.
“6. All sales of reconditioned motor blocks by the Sears Roebuck and Company are made with a guarantee of performance of the said motor block on condition that the said blocks are installed by a mechanic approved by the Sears Roebuck and Company. Plaintiff is the only mechanic in Salina who has been approved to do such work by the Sears Roebuck and Company.
"7. On March 2nd, 1925, the Governing Body of the City of Salina, Kansas, passed ordinance No. 3083, which provides for the creation and the appointment of the members.of a Planning Commission. This ordinance is in evidence marked, Exhibit 'No. . .
“8. On October 19, 1925, the Governing Body of the City of Salina, Kansas, passed ordinance No. 3174, which was an ordinance providing- for and requiring the recommendation'by the City Planning Commission to the Board of Commissioners of the City of Salina of the boundaries of certain zones or districts into which such city shall be divided for the regulation and restriction of the location of trades and industries and the location, erection, alteration and repair of buildings designed for specified uses, and the uses of land within each such district or zone; providing for the submission of a tentative report by said Planning Commission and for public hearings thereon and for the submission of a final report thereafter. This ordinance is in evidence, and printed copy attached to defendant’s Answer.
“9. Such ordinance required the submission of a tentative report of the City Planning Commission on or before the 26th of October, 1925, and directed the holding of public hearings before the said Planning Commission at the public meeting room of the' Board of Commissioners at the City Hall of the City of Salina on October 29th and 30th, 1925, commencing at the hour of 5:00 o’clock P. M. of each of said days, having first given public notice of the time and place of such hearings by notice published in a newspaper of general circulation in the City of Salina, such notice to be published at least three days before the date of the first hearing, and that final report be filed by said Planning Commission with the said Board of Commissioners on or before November 2, 1925.
“10. On October 26, 1925, the said planning Commission met and authorized the submission to the Board of Commissioners of the City of Salina of a tentative report, as provided in Ordinance No. 3174, and ratified and approved the action of its chairman in' giving notice by publication in the Salina Journal of public meetings of the City Planning Commission to be held at the City Hall on October 29th and 30th at 5:00 P. M. on each day for the purpose of hearing objections to said proposed ordinance, pursuant to the requirements of said Ordinance No. 3174.
“11. The only notice of the hearings of the City Planning Commission on its tentative report, which were held on October 29th and 30th, 1925, was published in the Salina Journal, a newspaper of general circulation in the City of Salina, on October 27, 1925, and no other notice was at any time published concerning said hearings.
“12. On October 29th and 30th, 1925, at the time and place specified in said ordinance No. 3174, the Planning Commission met for the purpose of hearing objections to said proposed ordinance, and no one appeared to protest or present objections or recommendations to the tentative report. The Planning Commission thereupon made certain changes and amendments, adopted their final report and recommendation to the Board of Commissioners, and the same was filed with the Board of Commissioners.
“13. On the 23rd day of November, 1925, the Governing Body of the City of Salina enacted Ordinance No. 3188, submitted by the Planning Commission as its final report and recommendation, which was duly published in the official city paper on December 1, 1925. A copy of said ordinance is attached to defendant’s answer and cross-petition.
“14. Since December 1, 1925, the defendants and their predecessors in office have treated said ordinance as valid, and the same has not been attacked.
“15. Ordinance No. 3188 defines a private and public garage as follows:
“Private Garage. A garage with a capacity for not more than four (4) steam or motor-driven vehicles, of which not .more than one (1) may be a commercial motor vehicle or (of) not more than two (2) tons capacity.
“Public Garage. Any premises used for housing or care of more than four (4) steam or motor driven vehicles, or where any such vehicles are equipped for operation, repaired, or kept for remuneration, hire or sale; not including exhibition or show rooms for model cars.
“16. The garage described in Finding No. 3 has a capacity for not more than four steam or motor vehicles.
“17. The plaintiff does not sell or keep for sale on the premises described in Finding No. 3 any goods, wares or merchandise of any kind or character, except the motors sold by Sears Roebuck and Company, which are delivered to plaintiff’s garage by Sears Roebuck and Company, installed in customer’s automobiles by plaintiff, and' the old motors removed from customer’s cars are crated by the plaintiff and removed from plaintiff’s garage by the carrier for shipment; all of which is done at the garage of plaintiff described in Finding No. 3. Plaintiff has nothing to do with the sale of said motors, other than as described in this finding.”
The trial court’s conclusions of law, based upon its factual findings, read:
“1. The plaintiff is and has been conducting a public garage as defined by Ordinance No. 3188, Section 1.
“2. The defendants would be entitled to an injunction in their cross-petition, and for finding N0.. 3 following.
“3. By reason of failure to comply with the ordinance fixing time for hearing, the subsequent proceedings were void and ordinance No. 3188 is void.
“4. The plaintiff is entitled to an injunction as prayed for.”
Following the filing of its findings of fact and law, subsequently by specific reference made a part of its decree, the trial court ren dered judgment holding the zoning ordinance in question void and enjoined the defendants from enforcing its terms and provisions as against the plaintiff. The defendants appeal from the general judgment, including the action of the trial court in making conclusions of law 3' and 4. The plaintiff has cross-appealed, his contention being that conclusions of law 1 and 2 are erroneous.
Hereafter, for purposes of convenience although contrary to our usual practice, we shall refer to the appellee and cross-appellant as the plaintiff and to the appellants and cross-appellees as the defendants.
A careful and painstaking examination of the record reveals there are actually but two decisive questions raised by the appeal. They can be stated thus: (1) Is zoning ordinance No. 3188 of the city of Salina void? (2) If such ordinance is enforceable was the plaintiff, on the date of the filing of the action, violating its terms and conditions by using the garage located on his property for the purposes and in the manner found by the trial court in its findings of fact?
At the outset it should be stated there is no question but what the city of Salina had power and authority under the statutes of this state to enact a valid zoning ordinance on the 23d day of November, 1925, and conceded that when it first attempted to legislate upon that subject by passing ordinance No. 3188, the statutory provisions then in force and effect, with respect to all matters here material, are now to be found in G. S. 1935, ch. 12, art. 7. On the date in question Salina had a city planning commission and R. S. 1923, 13-1102, now G. S. 1935, 12-708, prescribing the procedure necessary for the lawful establishment of a zoning district in that city, read as follows:
“In a municipality having a city planning commission created pursuant to law, the governing body shall require such commission to recommend the boundaries of districts and appropriate regulation to be enforced therein. Such commission shall make a tentative report and hold public hearings thereon at such times and places and upon such notices as said governing body shall require before submitting its final report. The governing body shall not determine the boundaries of any districts nor impose any regulations until after the final report of such city planning commission. In any municipality where there is no city planning commission in existence, the governing body may appoint either a committee or special commission, which ever it deems most suitable, to exercise the powers given to the city planning commission under this section. After such final report is-submitted to the governing body, and final adoption of regulations by the governing body, the governing body may from time to time amend, supplement or change the boundaries or regulations contained in such final report: Provided, Such proposed change shall first be submitted to the city planning commission or special committee of commission, for recommendation and report: And provided further, That not less than thirty dayfe’ notice of any such proposed change shall first be published in the official newspapers of such municipality and a hearing be granted to any person interested at a time and place specified in such notice. If, however, a protest against such amendment, supplement, or change be presented,-duly signed and acknowledged by the owners of twenty per cent or more of any frontage proposed to be altered, or by the owners of twenty per cent of the frontage immediately in the rear thereof, or by the owners of twenty per cent of the frontage directly opposite a frontage proposed to be altered, such amendment shall not be passed except by at least four-fifths vote of the council or board of commissioners.”
Likewise, it should be pointed out that here the plaintiff makes no-claim of fraud, or bad faith in the enactrhent or administration of the challenged ordinance and does not argue or contend that any of its provisions, as applied to his specific property are unreasonable, oppressive or arbitrary.
Baldly stated, plaintiff’s contention the zoning ordinance is void is based solely upon the proposition that failure of the city planning commission to give three days’ notice by publication of the public hearings conducted by that body on October 29 and 30, 1925, as required by the terms of ordinance No. 3174, made ordinance No. 3188, when enacted by the governing body (the board of commissioners) of the city of Salina on the 23d day of Novembr, 1925, wholly void and unenforceable, notwithstanding it was duly published in the official city paper on December 1, 1925.
It must be remembered that under the requirements of G. S. 1935, 12-708, the governing board of the city was not required to give any directions to the planning commission of the kind of notice to be given of hearings preliminary to the -adoption of an original zoning ordinance. We so held in Moore v. City of Pratt, 148 Kan. 53, 79 P. 2d 871. There a contention public notice of the hearings on a proposed zoning ordinance were not held as required by law was definitely- rejected under circumstances and conditions, affording far less protection to property owners, so far as notice was concerned, than is to be found in the case at bar. At page 57 of the opinion in that case we said:
“. . . the statute above quoted makes it discretionary with the city commission what, if any, directions it shall give to the planning commission. A careful reading of the statute discloses that it is not specifically required to give any-directions to the planning commission on this point.”
In fairness to plaintiff it should be stated he concedes that in the enactment of the section of the statute just cited the legislature did not make any definite requirement as to publication of notice of hearings prior to the adoption of an original zoning ordinance but left that matter to the discretion of the governing body of the city and reposed in it the right to determine what notices should be given and what hearings should be held by the planning commission. His point is that since the governing body, prior to the enactment of the ordinance in question, exercised its discretion by requiring three days’ notice of the planning commission’s hearings strict compliance with that requirement was not only an. essential prerequisite to t^ie commission’s right to hold public hearings and make its final zoning report but a condition precedent to the power and authority of the governing body itself to enact the involved ordinance.
Plaintiff’s position cannot be upheld for a number of. reasons.
In the first place his contentions with' respect thereto overlook the fact that under the provisions of G. S. 1935,12-708, it is the holding of public hearings, not the length of time notice of such hearings is published, that confers jurisdiction on a city having a planning commission to enact a valid original zoning ordinance. Support for this conclusion is to be found in the opinion in Moore v. City of Pratt, supra, where we said: “From this record it cannot fairly be said there, were no public hearings respecting the proposed ordinance by the planning commission.” (p. 56.) Conceding as we must, the planning commission failed by one day to give notice of its hearings for the length of time directed by the governing body of the city what was the situation on the date the ordinance in question was enacted. By ordinance No. 3174, duly published in the official city paper on October 24, 1925, more than three days prior to the date of the first public hearing of the commission, the public had been notified that body would hold public hearings for the consideration of objections on its tentative zoning report at the public meeting room of the board of commissioners in the City Hall in the City of Salina on October 29 and 30, 1925, commencing at the hour of 5 p. m. on each of said days. A similar notice was published by the planning commission on October 27. Public hearings were held by the commission at the time and at the place stated in each such notice although but two days had elapsed between October 27, the date of the commission’s publication, and October 29, the date of its first hearing. Notwithstanding, no member of the public appeared to protest or make objections to its tentative report on either October 29 or 30. Thereupon, the commission promptly submitted its final report and thereafter, on November 23, the governing body of the city enacted ordinance No. 3188, published as heretofore stated on December 1, the very preamble of which ratifies and approves the public notice of the public hearings afforded the public by the commission.
In view of the foregoing conditions and circumstances, with an undisputed record clearly showing public hearings respecting the proposed ordinance were actually held by the planning commission,, pursuant to the notices heretofore mentioned, and disclosing that interested parties not only had approximately three weeks in which to challenge the validity of the proceedings on which the ordinance as enacted was based, but at least one week in the interim between its enactment and its publication, to attack the validity of the ordinance itself before it became effective (see G. S. 1935,13-1419), we find no solid basis for holding the defect in the notice of hearings published by' the planning commission was sufficient to vitiate its proceedings or deprive the city governing body of power and authority to enact the zoning ordinance in question or render such ordinance invalid. In so holding we do not overlook plaintiff’s argument that under our decisions (Ford v. City of Hutchinson, 140 Kan. 307, 37 P. 2d 39, and cases there cited), construing the force and effect of G. S. 1935, 12-708, thirty days notice of a hearing before the planning board is a prerequisite to the enactment of valid legislation amending or otherwise changing a zoning ordinance, already in force and effect. Quite true. However, it is to be noted, such decisions are based upon the proposition that an express legislative fiat as to the giving of notice of hearings of a proposed change in zoning controls city officials in the enactment of municipal legislation on that subject and are not decisive of a situation where, as here, the legislature has vested the city governing body with discretionary power in the matter of giving notice preliminary to the adoption of an original zoning ordinance.
A second reason for refusing to uphold plaintiff’s position is to be found in the early case of State, ex rel., v. Comm’rs of Sherman County, 39 Kan. 293, 18 Pac. 179, and our recent decision in City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937. Heretofore we have referred to the fact that notice of the meetings to be held by the planning commission was given by the city through publication of ordinance No. 3174. That notice was followed by publication of the commission’s notice, sufficient in all particulars except for the fact it gave but two full days’ notice of its first public hearing instead of three as directed by the city governing body. The notice given by the city through publication of its ordinance and the commission’s official notice were each signed by appropriate city officials and were official city publications. Reasoning analogous to that to be found in the two decisions just cited compels the conclusion that publication of the ordinance followed by the official planning commission publication, irrespective of its deficiency, constituted at least three days’ notice prior to the date of the commission’s first hearing and was sufficient compliance with- the directive of the city governing body to withstand any claim that lack of legal notice by the planning commission rendered the subsequently enacted zoning ordinance void and inoperative.
Indeed, when the entire record is analyzed, we are of the opinion the doctrine of ratification in and of itself is a third ground for holding the plaintiff’s position untenable. That power to take action includes the right to ratify was determined early in the history of jurisprudence in this jurisdiction.
In State v. Comm’rs of Pawnee County, 12 Kan. 426, we held:
“It is a general principle of almost' universal ■ application that whenever a state, county, corporation, partnership, or person has power originally to do a particular thing, it also has the power to ratify and make valid an attempted effort to do such thing, although the same may have been done ever so defectively, informally, or even fraudulently in the first instance.” (Syl. ¶ 5.)
And at page 439 of the opinion in that case said:
“. . . This principle is so elementary in its nature that it requires no citation of authorities to uphold it.”
Our decision the challenged zoning ordinance was valid requires consideration of the question whether its terms and provisions permitted plaintiff to use his garage for the purpose for which the trial court found he was using it in findings 4, 5, 6 and 17, heretofore quoted. Plaintiff’s contention is that his activities in connection with the installation o£ motor blocks in automobiles for customers of Sears Roebuck and Company is a home occupation within the meaning of that term as used in Section 8 “A” of the city zoning ordinance. Pertinent portions of that section read:
“Section 8. ‘A’ Residence District Uses. That in the ‘A’ Residence District as defined by Section Two hereof, no building or premises shall be used, and no building shall be hereafter erected or altered, unless otherwise provided in this ordinance, except for one or more of the following uses:
“1. One Family Dwellings.
“7. Accessory buildings incidental to the above uses and located on the same lot (not involving the conduct of a retail business) including one (1) private garage, private stable or community garage when located not less than fifty (50) feet from the front line or in a fireproof compartment as a part of the main building, and including also home occupations engaged in by the occupants of a dwelling not involving the conduct of a retail business on the premises. ...”
We are not impressed with plaintiff’s contention. Neither are we inclined to labor the issue. It will suffice to say that in our opinion the installation of reconditioned motor blocks in automobiles in the manner and under the conditions' and circumstances described in the findings to which we have referred is not a home occupation under the provisions of Section 8 “A.” On the contrary, in the carrying on of that business in his garage, plaintiff was using it as a place where motor driven vehicles were not only equipped ,for operation but repaired for remuneration. He was therefore using such building for purposes of a public garage as that term is defined in the ordinance (see finding 15), a use not permitted by its terms and provisions.
What has just been said, since that question is an issue, necessarily compels an additional conclusion that plaintiff’s use of the garage was in violation of the city ordinance, as claimed by the defendants, and requires the rendition of judgment restraining him from further violation of that enactment.
It may be noted and become the subject of silent inquiry that many matters, such as good faith in the enactment of the zoning ordinance, laches, estoppel, and others of a similar character suggested by examination of the trial court’s finding have not here been mentioned or discussed. As we bring this opinion to a close it should perhaps be pointed out that such questions have no bearing on our decision of the issue whether failure of the planning commission to give notice for the full period of time directed by the governing body of the city vitiated the challenged zoning ordinance and it is for that reason we have purposely refrained from referring to them throughout the course of this opinion.
The judgment of the district court holding ordinance No. 3188 of the city of Salina void and enjoining the defendants from enforcing its terms and conditions is reversed with instructions to render judgment against the plaintiff enjoining him from further violations of its provisions.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, C. J.
On December 13, 1945, proceeding under G. S. 1935, ch. 79, art. 28, as supplemented and amended in G. S. 1945 Supp., ch. 79, art. 28, plaintiff sued to establish and foreclose liens for taxes upon 151 lots or tracts of real property in Sumner county, respectively described in separate causes of action. Among these were lots 2, 3, 4, 5, 6 and 7 in block 11, First Addition to Geuda Springs, being causes of action Nos. 110 to 115, inclusive. The record title to these lots stood in the name of H. C. Moore. On March 22,1946, the case came on for hearing and trial. The court found that the defendants were duly and regularly served with summons and that the defendants were the owners of the respective lots or tracts of land set forth under their names, found the amount of taxes due upon each lot or tract of land, and that the same was a first and prior lien thereon, and ordered the property sold as provided by law. The order of sale was issued April 2, 1946, notice of the sale was duly given, and the sale was held on May 13, 1946. At the sale it appears that R. P. Mitchell and C. E. Karnes were competitive bidders for the Moore lots, with the result that Mitchell bought lot 2 for $1, lot 4 for $600 and lot 7 for $12.50, and Karnes bought lot 3 for $25, lot 5 for $30 and lot 6-for $20. Other purchasers bought other property at the sale, but we are not concerned with those matters. The county attorney, acting for plaintiff, filed a motion to confirm the sale as to each of the lots and tracts sold.- R. P. Mitchell filed a motion “to set aside the judgment and stay an order of sale and confirmation thereof insofar as the same pertains to lots 3 and 4 in block 11, First Addition to Geuda Springs,” upon the grounds of the death of one of the parties before judgment was rendered and for unavoidable casualty or misfortune preventing the party from prosecuting or defending, and "as a matter of equity and good conscience, movant offers and will pay into court a sum equal to all delinquent taxes, interest, penalties and costs assessed and chargeable against said lots 3 and 4 as soon as the same may be ascertained and fixed in an appropriate order.” Later he filed a supplemental motion adding additional grounds (1) that the owner of the real estate, Lettie J. Moore, was an actual resident of Sumner county and that no personal service was made or attempted to be made on her, and (2) mutual mistake.
On May 22, plaintiff’s motion to confirm the sale, and also the motion and supplemental motion of Mitchell, came on for hearing. After examining the files in the action, and particularly the journal entry of judgment, order of sale, publication notice, affidavit of the printer an$ the return of the sheriff, the court found "that said sale has in all respects been made in conformity with the statutes of the state of Kansas, in such cases made and provided and with the previous orders of the court herein.” The court further found that the sheriff had caused proper notice of the sale to be published and that “said notice and the proceedings of the sheriff in the conduct of said sale pursuant to said notice are hereby approved and confirmed,” except as -to the property described in the causes of action Nos. Ill and 112, being respectively lot 3 and lot 4 of block .11, First Addition to Géuda Springs. The court made an appropriate order approving the sale, except as to those two lots, and continued the hearing as to them until a later date. There were further hearings on Mitchell’s motions on June 4, 11 and 15. The court found “that the motion and supplemental motion of R. P. Mitchell should be and the same are hereby overruled insofar as they seek to set aside the judgment herein, but that the supplemental motion of the said R. P. Mitchell is sustained only insofar as the order of sale and proceedings thereunder in connection with causes of action numbers as follows, to wit: 111 and 112 are not in substantial compliance with statutory procedure therefor and that the purported sale thereof should be and the same is hereby set aside and the owners thereof are hereby given the right of redemption as provided by law.” It was further ordered that the clerk of the district court should refund the purchase price of those properties, as shown by the sheriff’s return.
The plaintiff appealed from the order of the court refusing to confirm the sheriff’s sale to the properties described in causes of action 111 and 112 and from the order of the court setting aside the sheriff’s sale as to those properties, and C. E.- Karnes, the purchaser of the property described in cause of action 111 appealed from the same rulings of the court.
Counsel for appellee argue that C. E. Karnes had no capacity to appeal from the order refusing to confirm the sale for the reason that he was not a party to the action and had not intervened so as to become a party. The point is not well taken. In Cowdin v. Cowdin, 31 Kan. 528, 3 Pac. 369, it was held:
“A purchaser at a sheriff’s sale acquires such an interest and becomes so far a party, that he may make a motion to confirm the sale, or, no matter by whom such motion is made, maintain, proceedings in error to reverse an order overruling it and setting aside the sale.” (Syl. ¶ 1.)
This was followed in Jones v. Carr, 41 Kan. 329, 21 Pac. 258, and in McDonald v. National Bank, 58 Kan. 461, 49 Pac. 595, where, in the opinion it was said:
“The purchaser, by his bid, the payments of the purchase money, and the sheriff’s return of the sale, becomes a party to the record. ... his interests may be adverse to those o'f both the plaintiff and the defendant. He is not obliged to depend on either of them to protect his rights, nor has either of them authority to speak for him unless he gives it.” (p. 462.) 1
The case was cited with approval in Sherman County Comm’rs v. Alden, 158 Kan. 487, 493, 148 P. 2d 509. The rule is in harmony with the general law upon the question. Obviously, Mitchell was prompted to file his motion and supplemental motion to set aside the sale of the two lots for the reason that he thought the improvements on the property were on lot 4, and after- the sale discovered that a part of them were on lot 3, and that he paid more for lot 4 than he would have paid had he known the true location of the improvements. The court had found plaintiff’s tax lien upon lot 3 to be $24.77 and on lot 4 to be $234.44, and rendered a judgment against the respective lots accordingly, plus the cost as determined by the court. There is an argument on behalf of appellee that- the assessments were inaccurately made in that the value of all the improvements was assessed on lot 4 when a part of it should have been assessed on lot 3. However, there is no proof of that in the record, and in any event this is not a proceeding to revise the assessment. The court overruled Mitchell’s motion to set aside the judgment, and there is no cross-appeal; hence the judgment stands as the correct amount of the county’s lien upon lot 4.
Mitchell was personally present at the tax sale and there is evi dence that he knew the amount of the lien upon lot 4 before the sale, and he had the actual competition at the sale inasmuch as Karnes bid $575 for lot 4. So, neither the question of the exact location of the improvements nor whether the property was properly assessed is before us. Neither do we have the correctness of the judgment of the trial court before us.
The only legal question before us is whether the trial court was justified in setting aside the sheriff’s sale as to lots 3 and 4 and in refusing to confirm the sale as to those lots. The only reason the court gave for its ruling upon those questions is that the sales of those lots “are not in substantial • compliance with statutory procedure therefor.” There is no statement in the judgment of the court as to what was lacking in the regularity of the proceedings. They were in fact the same as the proceedings upon the sale of other lots, with respect to which the court found “that said sale has in all respects been made in conformity with the statutes of the state of. Kansas, in such cases made and provided and with the previous orders of the court herein.”
The controlling portion of the statute (G. S. 1945 Supp. 79-2804) pertaining to what should be done after the sheriff’s sale, reads:
“The sheriff shall make return, to the clerk, and the same shall, as soon as practicable, 'be examined by the court, and if found by the court to be regular, it shall be confirmed, and the sheriff ordered to forthwith execute to the purchasers at such sale a good and sufficient deed therefor.”
Counsel for appellee cite and rely heavily upon the case of Atchison County Comm’rs v. Wright, 151 Kan. 325, 99 P. 2d 857. That case was distinguished in Sherman County Comm’rs v. Demaree, 157 Kan. 478, 481, 142 P. 2d 722, and it was specifically overruled in Sherman County Comm’rs v. Alden, 158 Kan. 487, 148 P. 2d 509, where it was held:
“In proceedings under section 79-2804, G. S. 1945 Supp., general equity powers may not be invoked to refuse confirmation and invalidate a tax sale' shown to have been fairly held, with ho element of fraud and in every way regular under the statute.
“In an action to confirm a sale of real estate in foreclosure of a tax lien, all proceedings were found 'to have been regular under the statute, but confirmation was refused and the sale set aside on the principal ground that the owner of the property had mistakenly believed that if the sale were held he would be relieved of a personal debt secured by mortgage upon the property, held, the court erred in refusing to confirm the sale.” (Syl. Ufl 5, 6.)
The Alden case is reported in 152 A. L. R. 881, followed by an annotation upon the question, and it has been cited approvingly in Wyandotte County Comm’rs v. Ferguson, 159 Kan. 80, 86, 151 P. 2d 694, and in Kucera v. State, 160 Kan. 624, 626, 164 P. 2d 115, and Cherokee County Comm’rs v. Barnard, 162 Kan. 500, 503, 178 P. 2d 189. We adhere to it now.
R. P. Mitchell, in his motion to set aside the sale of lots 3 and 4, offered to pay the taxes in a sum which might be determined to be a lien upon the property, and the judgment of the court permitted him to do so. The only statutory right Mitchell'had to redeem the property is found in G. S'. 1945 Supp. 79-2803, which fixes the time for redemption as before the sale; hence,- his request was made too late (Sherman County Comm’rs v. Demaree, supra), and the judgment permitting him to do so was erroneous. At the time of the sheriff’s sale both Karnes and Mitchell paid the amount of their respective bids to the sheriff. The court in its decree directed that the clerk of the court refund the respective amounts to purchasers at the sale. Counsel for appellee advise us that the clerk has complied with that part of the court’s order by mailing the checks to Karnes and Mitchell. It is not contended, and there is nothing in the record to show, that the county commissioners or Karnes ever approved such payments; in fact, they are appealing from the judgment of the court. We find the judgment to be erroneous in that respect.
The result is that the judgment of the court below should be reversed with directions to the court to approve the sheriff’s sale of lot 3 to Karnes and of lot 4 to Mitchell and to direct sheriff’s deeds to be made to them accordingly. It is so ordered.
Hoch, J., not participating.
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Per Curiam:
On July 26, 1976, William Joseph Brady voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is by order of the court considered and accepted.
The Clerk of this Court is ordered and directed to mark the certificate void and to strike William Joseph Brady’s name from the roll of attorneys.
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ORDER OF PUBLIC CENSURE
Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by John R. Elmborg, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that John R. Elmborg, Blue Rapids, Kansas,' after accepting employment in a legal matter, neglected the matter and refused to discuss the same with his client and thereby violated DR 1-102 (A) (6), DR 6-101 (A) (1), (2) and (3), and DR 7-101 (A) (2) of the Code of Professional Responsibility (214 Kan. lxxv, Ixxxvi, Ixxxvii), and
Whereas, The State Board of Law Examiners has made a written recommendation to this Court that said John R. Elmborg be disciplined by “Public Censure” as provided by Rule 207 (n) (2) (215 Kan. iv [Adv. Sheet No. 2]), and
Whereas, A copy of the Findings, Conclusions and Recommendations of the Board, along with the citation, was mailed to John R. Elmborg by certified mail and since more than twenty (20) days have elapsed and no response was received, the matter stands submitted on the merits in accordance with Rule 207 (o) (215) Kan. iv [Adv. Sheet No. 2]), and
Whereas, Upon consideration of the record and being fully advised in the premises, the Court accepts the findings and recommendations of the State Board of Law Examiners.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said John R. Elmborg be and he is hereby disciplined by public censure and that he pay the costs of this proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas Reports.
By Order of the Court, dated this 11th day of June, 1976.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by defendant Michael A. Lewis from convictions of rape (K. S. A. 21-3502), aggravated sodomy (K. S. A. 21-3506), two counts of aggravated robbery (K. S. A. 21-3427), and two counts of aggravated battery (K. S. A. 21-3414). At the time these crimes were committed defendant was over sixteen but under eighteen years of age. Because the juvenile court in Wyandotte County waived its jurisdiction, Lewis stood trial as an adult in the district court. Defendant’s points on appeal which merit discussion are:
I. Defendant was improperly certified to stand trial as an adult.
II. Defendant was denied a speedy trial.
III. Defendant was incompetent to stand trial.
IV. Defendant was prejudiced by the prosecutor’s closing remarks.
I. Certification as an Adult
While the facts of the crimes are not set forth in the record and are not necessary to dispose of this appeal, it appears defendant was arrested on October 24, 1974, by the Kansas City, Kansas, police. He and two other juveniles over sixteen were charged with the above, and other, offenses. Subsequently, a waiver hearing was held in juvenile court and defendant was certified to stand trial as an adult pursuant to K. S. A. 1976 Supp. 38-808 (b). Certification was appealed to the district court. In conformity with the statute and our case law, a de novo hearing was held. (In re Templeton, 202 Kan. 89, 92, 447 P. 2d 158; In re Long, 202 Kan. 216, 217, 448 P. 2d 25; K. S. A. 38-834 [c].) After hearing the evidence, the trial judge set forth an extensive set of reasons for rejection of the appeal:
“This case was tried to the court on March 20, 1975, and- was taken under advisement. I have now examined the exhibits and reviewed the evidence.
“It is conceded that Michael is over the age of 16 and that the charges against him involve offenses which fall within the classification of delinquent acts under K. S. A. 38-808. Thus the only issue is whether or not Michael would be amenable to the care, treatment and training program available through the facilities of the juvenile court. In order to sustain the waiver of jurisdiction of the juvenile court in this case, the burden is upon the State to show by substantial evidence that Michael is not amenable to such a program through the facilities of the juvenile court.
“Michael’s record was introduced showing that he has had a history of difficulty with the law dating back to age 14. At least two of the offenses for which he was found to be a delinquent involved crimes of violence, i. e.; rape and armed robbery. Michael is a drop out from school and the records show that in his last year he had 105 absences out of 180 days of school. Prior efforts at counseling have proved unsuccessful, and efforts were being made to place him in the Kansas State Vocational and Technical School in Topeka when the latest series of offenses were committed.
“Michael was examined by three eminently qualified psychiatrists. Dr. Virgil Harris gave as his opinion that long term, institutional treatment might help Michael, but his opinion was guarded. He did not know of any such facilities available to Michael.
“Both Dr. Burgess and Dr. McKnelly evaluated Michael as an anti-social psychopathic personality with a potential for explosiveness under stress and with little regard for the welfare of others. Both considered him as dangerous and were of the opinion also that any treatment would have to be in an institution. Both ruled out any type of out-patient treatment.
“Most striking of all, both Dr. McKnelly and Dr. Burgess gave as their opinion that in the present state of knowledge, there is no effective, known treatment for a person with the type of pathology such as Michael has, in medicine or psychiatry — anywhere.
“After consideration, it is my opinion that Michael would not be amenable to the care, treatment and training available through the facilities of the Juvenile Court. The appeal from the order of the Juvenile Court relinquishing jurisdiction over Michael for trial of the offenses charged against him is, therefore, overruled.”
Defendant launches three attacks against the trial court’s judgment. First, he argues he has been prejudiced because a record of the hearing does not exist. The record discloses that a court re porter recorded and transcribed the proceedings, but for some reason both the transcript and notes were lost or misplaced. When diligent search failed to uncover the notes, the judge prepared an extensive affidavit from his personal notes. Both the affidavit and his notes are in the record.
While it is true a transcribed record does not exist, we cannot accept appellant’s argument. This court has long recognized and approved the use of reconstructed records. (State v. Jefferson, 204 Kan. 50, 52, 460 P. 2d 610; Addington v. State, 198 Kan. 228, 424 P. 2d 871; State v. Allen, 111 Kan. 3, 206 Pac. 340.) The judge’s notes cover a substantial portion of the hearing. They appear to cover the essential testimony of all witnesses and the introduction of exhibits. Further, there is no allegation that his affidavit or notes are inaccurate.
Defendant next challenges the trial court’s finding that he was not amenable to the juvenile process. While he recognizes that he was charged with an offense against persons, committed in a violent and aggressive manner, defendant insists there was no evidence adduced at the hearing to indicate that juvenile placement was not available or worthwhile.
In order to affirm, this court must find the trial court’s decision was supported by substantial evidence. (State v. Green, 218 Kan. 438, 443, 544 P. 2d 356; In re Patterson, Payne & Dyer, 210 Kan. 245, 250, 499 P. 2d 1131, and cases cited therein.) The record contains abundant evidence to support the trial court’s ruling. Defendant had a long history of trouble with the law. He was a school dropout and habitually truant while in school. Prior attempts at counseling had failed. All four witnesses disapproved outpatient-type treatment. Dr. Harris ruled out the Niles Home in Kansas City, Missouri. Dr. Burgess ruled out Osawatomie, Hutchinson and Prairie View as places for appellant. In addition, Dr. Robert A. Haines, of the State Department of Social and Rehabilitation Services, ruled out Lamed. Steve Guss, Wyandotte County probation officer, ruled out the Boys Industrial School. The witnesses could not come up with a suggestion for placement within the juvenile system.
The search for a facility need not be endless. As this court said in State v. Green, supra:
“. . . [S]uch a burden should not be placed on the district courts by counsel who cannot otherwise affirmatively suggest any facilities for his client. Based on the large number of juvenile crimes and the homicide involved in this case, the probability that available facilities exist for the appellant is very remote.
“. . . [I]t cannot be said the district court must endlessly search for every possible disposition short of waiver.
“K. S. A. 38-808 (b) requires substantial evidence that the juvenile is not amenable to the care, treatment and training programs available through the facilities of the juvenile court. It does not simply require a finding the. child is not amenable to care, treatment and training, but refers to the existing facilities of the juvenile court. . . .” (p.445.)
Finally, defendant argues he has been denied equal protection of the laws by virtue of the fact he was tried as an adult while his two cohorts remained in the juvenile system. To support his position he relies on In re Patterson, Payne & Dyer, supra, and State v. Green, supra. Both cases stand for the proposition that in juvenile cases where multiple youths are involved, each should be considered separately in a waiver proceeding. In Patterson, all three youths had been certified by the juvenile court to stand trial as adults. On de novo review the district court affirmed the decision. We reversed for further proceedings because both lower courts had failed to consider the boys and their records individually.
In the instant case defendant was certified to stand trial as an adult and the other two participants were dealt with in the juvenile system. It appears our admonition in Patterson was followed. Furthermore, counsel for the state informed the court that Michael’s companions had no juvenile records prior to the instant offenses. In addition, counsel indicated that Michael was armed with a gun and the other two boys were not armed. Thus, we are disposed to treat this case as we did the case of State v. Green, supra.
II. Speedy Trial
As previously stated, defendant was arrested on October 24, 1974, and juvenile jurisdiction was waived. Arraignment was held in district court on December 20, 1974. A plea of not guilty was entered. Pretrial conference was set for January 6, 1975. On that date defendant’s attorney, J. W. Mahoney, made a motion to withdraw as counsel. Defendant also made a motion to determine his competency to stand trial. Both motions were granted. In addition, the judge’s minutes indicate the defendant requested the pretrial conference be continued. This was done. The court then appointed Clifford Cohen as defendant’s counsel.
On January 29, 1975, defendant’s newly appointed counsel ad vised the trial court he was filing an appeal on the juvenile court’s waiver of jurisdiction. At the time the notice of appeal was filed the defense attorney requested a delay of some thirty days so he could become familiar with the files and prepare the appeal. The hearing on the appeal took place on March 20, 1975. A formal ruling was entered on March 24. On March 25, the district court again set the case for pretrial on April 10, and it was held on that date.
On April 24, 1975, defendant was heard on several motions. Three counts were severed from the present convictions. Investigative fees were provided. A motion to determine competency was denied. Motions to suppress were continued due to unavailability of a material witness.
On April 30, 1975, the case was set for trial. The next day defense counsel requested a continuance because he would be in Ft. Lee, New Jersey, for military training on that date. The trial was specially set for June 23, 1975, and it began on that date, resulting in the convictions from which defendant appeals.
The time from arraignment to trial was 186 days. Defendant contends the trial court erred in not discharging him, as he was denied statutory and constitutional right to a speedy trial.
Defendant was unable to post bond and was incarcerated pending trial. Therefore, under K. S. A. 22-3402 the state was required to bring defendant to trial within ninety days after arraignment unless the time was extended for reasons authorized in the statute. Statutory exemptions from the ninety-day rule include delays which “shall happen as a result of the application or fault of the defendant.” This court has assessed time against a defendant for requested continuances (State v. Sherman, 217 Kan. 326, 536 P. 2d 1373; State v. Welch, 212 Kan. 180, 509 P. 2d 1125); for delays caused by obtaining investigators (State v. Brown, 217 Kan. 595, 538 P. 2d 631); for delays in obtaining new trial counsel (State v. Welch, supra, at p. 185; State v. McCollum, 211 Kan. 631, 507 P. 2d 196); and for delays caused by bond forfeitures (State v. Sherman, supra; State v. Welch, supra). In addition to the initial delay, the trial court has been given a reasonable amount of time to re-docket the case, assessing it to the defendant. (State v. Sherman, supra; State v. Welch, supra.)
Defendant first asserted that his right to a speedy trial had been denied when he filed a habeas corpus action on May 23, 1975, approximately 154 days after arraignment. The trial court rejected his motion, stating a substantial portion of the delay was caused by defendant. After trial, the court computed a time span of 186 days from arraignment to trial, with only 76 days charged against the state.
Defendant submits the trial court erred because it assessed the delay caused by the appeal against him. He argues that for this reason he was forced to forego one right (speedy trial) to exercise another (appeal). While the argument has superficial appeal, it must be rejected. Were defendant allowed to assess his appeal time against the state, he could delay the appeal until 90 days had been charged against the state and go free. For purposes of a juvenile appeal to district court, we deem speedy trial to be waived just as it is waived under K. S. A. 22-3402 (4) when an appeal is taken to this court.
In determining the number of days chargeable to the state, defendant will be assessed for the delay caused by change of counsel, the motion to determine competency, and the appeal from the juvenile court. These had the effect of delaying pretrial from January 6 to April 10, or 94 days. He should also be assessed for the continuance granted when defense counsel was on military training, or 21 days. Our computation of the time chargeable to the state discloses defendant was brought to trial within the time required by K. S. A. 22-3402 (1).
III. Competency to Stand Trial
Defendant contends he was not competent to stand trial. The record indicates that defendant was examined by order of the trial court and was determined to be competent to stand trial. Defendant offers no evidence to rebut the court’s findings other than an assertion that it was difficult for client and counsel to relate to one another. The duties of a trial judge in determining competency are well established in this state (State v. Holloway, 219 Kan. 245, 254, 547 P. 2d 741; Taylor v. State, 208 Kan. 189, 490 P. 2d 363; Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197), and, absent a showing of abuse of discretion, will not be disturbed on appeal (State v. Hamrick, 206 Kan. 543, 479 P. 2d 854; Van Dusen v. State, supra).
IV. Closing Arguments
Finally, defendant asserts he has been prejudiced because of a comment made by the prosecutor in closing arguments. The district attorney referred to defendant as a “poor little sixteen year- old juvenile or animal.” While this court has historically allowed wide latitude in comments of counsel, it has been recognized that on occasion comments may be so gross and flagrant as to deny an accused a fair trial and require reversal. (State v. Crowley, 220 Kan. 532, 536, 552 P. 2d 971, and cases cited therein.) While the comment made here is certainly not one which this court condones, it does not require reversal. There was no objection of counsel and no request for an admonition. (State v. Fleury, 203 Kan. 888, 457 P. 2d 44.) The trial court did instruct the jury that remarks of counsel were not evidence and should not be so considered.
Other points of error not presented in defendant’s brief are waived.
The judgment is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Mark Mims, was convicted of first-degree murder under K. S. A. 21-3401. The homicide occurred during the commission of a robbery. The facts involving the commission of the robbery and homicide were undisputed and were essentially as follows: At approximately noon on October 28, 1974, three black males entered an automobile repair garage in Kansas City, Kansas. The owner of the garage, Elbridge Young, was working on the premises along with an employee, Donald Hunt. Also present was Mr. Young’s brother, Robert Young, the deceased victim in this case. The three black males inquired about a transmission for a certain automobile. Young advised them that he did not have one but gave them the telephone number of an automotive parts business where they might inquire as to obtaining such a transmission. Shortly thereafter Donald Hunt was picked up by his wife and left the premises to have lunch. Both Mr. and Mrs. Hunt observed the three black males present in Young’s garage prior to their leaving the premises. After the departure of the Hunts, the three black males proceeded to the repair area of the garage and began to assault Elbridge Young and his brother, Robert Young, with a hammer. One of the robbers proceeded to empty the cash register. The three men then ran from the garage with Robert Young in hot pursuit. At some point outside the garage one of the three men shot Robert Young twice causing his death.
The only disputed issue in the case was the identity of the robbers. The record discloses that three days after the homicide Elbridge Young identified the defendant Mark Mims as one of the three men who had robbed him and killed his brother. Donald Hunt and his wife, Georgia Hunt, also identified the defendant Mims in a lineup. At the trial the in-court identification of the defendant by these three witnesses was positive and certain.
In addition to these three witnesses the state called to the stand Rufus Bolden. Bolden, a fifteen-year-old student, was then confined in the Kansas Industrial School for Boys at Topeka. He testified that he and Mike Young and Mark Mims went to Young’s garage on October 28, 1974, for the purpose of obtaining money by robbery. Bolden stated that the robbery was initiated by informing the persons present in the garage that “this is a holdup.” He described the ensuing struggle which culminated in the two fatal shots and the subsequent rendezvous of the trio near a Seven-Eleven store. He closed his testimony by stating that Mark Mims was the robber who took the money from the garage cash register and that the money was later counted at his sister’s house. Rufus Bolden had previously pled guilty to this offense in juvenile court and was sentenced to confinement in the Boys Industrial School.
The defendant Mims took the witness stand in his own behalf and testified in substance that at the time of the shooting he was at home with his mother helping her reupholster a couch. The defendant’s mother was also called by the defense and told the jury that on the morning of the robbery her son had helped her prepare some couches for upholstering and that at about 12:00 noon on October 28 the defendant was watching an outer space program on the color television in the Mims home. The record also discloses that she testified that he was home at 1:00 having picked his brother up at an address in Kansas City. The jury found the defendant guilty of felony murder and he was subsequently sentenced to life imprisonment. The defendant brought a timely appeal to this court claiming trial errors.
The defendant raises three points of claimed error on this appeal, all pertaining to the refusal of the trial court to grant a mistrial as the result of three incidents which occurred during the trial. The appellant first contends that the trial court erred in not granting a mistrial following an unsolicited statement made on the stand by Detective Homer S. Simmons. Simmons was asked on direct examination by the prosecutor to identify several photographs which he had exhibited to Mr. and Mrs. Hunt for the purpose of identifying the robbers. Simmons stated before the jury, “These are photographs of known offenders that I had shown to Mr. and Mrs. — Donald and Georgia Hunt.” Counsel for the defendant immediately moved for a mistrial contending that this voluntary statement by Detective Simmons amounted to the introduction of evidence of prior crimes in violation of K. S. A. 60-455. Defense counsel argued that the use of the term “known offenders” characterized the defendant Mims as a criminal and had a prejudicial impact on the jury. It is clear from the reading of the record that the statement of Detective Simmons was inadvertent and was not deliberately solicited by the prosecutor. Furthermore the witness did not specifically mention the name of the defendant Mims, nor was any specific crime referred to. The trial court denied the motion for a mistrial but cautioned the prosecutor to proceed very carefully in this area. The subject was not mentioned again before the jury.
This court recently dealt with a similar situation in State v. Robinson, 219 Kan. 218, 547 P. 2d 335, where a witness made an inadvertent, unsolicited and vague reference to a prior criminal case involving the defendant. We held that the reference constituted harmless error under the circumstances of the case. In our judgment the statement in this case might well have been stricken by the trial court although such action would have had the effect of emphasizing the statement in the minds of the jurors. Under all of the circumstances we cannot say that the inadvertent reference of the witness to the photographs as being those of known offenders required the court to declare a mistrial.
The defendant’s second point is that the trial court erred in denying defendant’s motion for a mistrial as a result of the prosecutor’s reference to defendant’s silence at the time the defendant was arrested. On direct examination of the defendant Mims by his counsel he was asked to tell the jury what happened on October 31st, the day he was arrested. His answer was as follows:
“A. The day I was arrested they sent an officer out to my mothers house, and they took me uptown, told me, said, ‘You was wanted for first degree murder.’ And Detective Simmons told me, said, ‘Now, I know you didn’t do it, tell me who did it.’ And so I told him, I said, ‘I don’t know who did it,’ you know, ‘because I was at home helping my mother reupholster a couch, I don’t know what happened.’ ”
The defendant then was asked by his counsel to tell the jury what happened on October 28 the day the murder occurred. He testified that he was at home the 28th when the murder occurred looking at television. He had just finished helping his mother upholster a couch. He denied that he was ever in the garage on October 28 or that he held anybody up. On cross-examination Mims testified that he was working at his mother’s house upholstering a couch and that his mother was paying him one-half of what she got for the work. The prosecutor then propounded to defendant the following question:
“Q. Okay. Tell me this, Mr. Mims, how come you didn’t tell this to the police about where you were on this particular day?”
Counsel for the defendant immediately moved for a mistrial. The basis of the motion was that the prosecutor’s question in which he referred to the defendant’s failure to tell the police his alibi violated defendant’s constitutional rights.
The defendant in support of his position relies upon Doyle v. Ohio, 426 U. S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, which holds •that the use for impeachment purposes of a defendant’s silence at the time of his arrest and after receiving Miranda warnings, violates the due process clause of the Fourteenth Amendment to the United States Constitution. Prior to Doyle there was a conflict of decisions of the United States Courts of Appeals on the question whether a prosecutor may properly cross-examine the defendant on the fact that he remained silent and did not tell the police an exculpatory explanation at the time he was arrested as he did at the time he testified at the trial. We had the question before this court in State v. Bly, 215 Kan. 168, 523 P. 2d 397. In Bly we held that when a defendant testifies he may be impeached like any other witness and that the use of pretrial silence for impeachment depends on whether, in the circumstances presented, there is such inconsistency between silence and testimony as to reasonably permit the use of silence to impeach the defendant’s credibility. In Bly the court relied primarily upon State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. den. 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019.
We interpret the decision of the United States Supreme Court in Doyle to settle the question so as to make it constitutionally impermissible for a state prosecutor to impeach a defendant’s exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the warnings required by Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974. We specifically overrule syllabus eight and corresponding portions of the opinion in State v. Bly, supra, insofar as they are in conflict with Doyle v. Ohio, supra. Also to the extent they conflict with Doyle and our decision in this case we overrule State v. Jackson, supra; State v. Schroeder, 201 Kan. 811, 443 P. 2d 284; State v. Wade, 206 Kan. 347, 479 P. 2d 811; and State v. Crowe, 207 Kan. 473, 486 P. 2d 503.
Rut that does not settle the matter in this case. The difficulty with the defendant’s position here is that the record shows without question that the defendant did not remain silent at the time of his arrest but, in fact, told the police the same alibi which he testified to at the time of the trial. The defendant’s story was consistent at all times — he was not present at the time of the robbery and homicide on October 28 because in fact he was home helping his mother reupholster a couch. After defendant testified in some detail where he was at the time of the robbery and that he had so informed the police detective Simmons at the time he was arrested, the prosecutor came forward with a question which was pointless and completely contrary to the defendant’s previous testimony. The question as pointed out above was essentially: “How come you didn’t tell this to the police about where you were on this particular day?” After the motion for mistrial was made by defendant’s counsel, the prosecutor stated to the court that there had never been one iota of testimony that the defendant ever refused to tell the police. The prosecutor admitted that he may have misphrased the question. The trial court denied the motion for a new trial but sustained the objection to the question and the matter was not pursued further or mentioned again.
We have concluded that it was improper for the prosecutor to ask the question and that he should not have done so. In asking the question the prosecutor entered a field of inquiry which he should have carefully avoided. We have concluded, however, that the single question asked by the prosecutor under all the circumstances does not justify a reversal of this case. As pointed out above it was undisputed in the evidence before the jury that the defendant did not remain silent at the time he was arrested but in fact gave a story of an alibi which he consistently asserted from the time of his arrest until the conclusion of the trial. The objection to the question was sustained although a mistrial was denied. In our judgment the single question propounded by the prosecutor which was never answered and to which an objection was sustained constituted harmless error beyond a reasonable doubt in view of the overwhelming evidence of the defendant’s guilt disclosed in the record. For this reason we decline to reverse the case and grant a new trial on the basis of this point.
The defendant’s third point is that the trial court erred in denying defendant’s motion for a mistrial when the state introduced into evidence the fact that an extra-judicial statement had been made by one of the robbers, Michael Young, implicating the defendant in the robbery. At the time of the trial in this case Michael Young had been convicted of the same crime charged here and had previously made a confession which implicated the defendant, Mark Mims. After the trial had commenced the prosecution proposed to call Michael Young to testify against the defendant Mims. The court ruled that Young could not be called because the state had not previously endorsed his name on the information. In compliance with the order of the court the state did not call Michael Young to the stand. It should be noted that the fact that Michael Young had made a statement to the police was first brought out on cross-examination of Rufus Bolden by defense counsel. Bolden testified that at the time he was being questioned by the police he was advised that Mark Mims and Michael Young had told them about Boldens participation in the crime. Following this Bolden proceeded to make a full confession to the police. The existence of a statement of Michael Young which implicated the defendant Mims was first brought to the attention of the jury during the cross-examination of the defendant by the prosecutor in the following series of questions to the defendant:
“Q. You know Mr. Young, also, don’t you?
“A. Yes.
“Q. Are you aware Mr. Young was convicted of this same crime last week?
“A. Yes.
“Q. All right. And are you also aware — you are, are you not, that he gave a statement to the police naming you as one of the co-perpetrators of this crime?" (Emphasis supplied.)
Counsel for the defendant immediately moved for a mistrial. He argued vigorously that the prosecution had injected before the jury hearsay testimony incriminating the defendant by the same witness who the court had ordered could not testify in person. He contended that such a statement was hearsay and that its introduction violated the defendant’s Sixth Amendment rights to confrontation of witnesses and his right of cross-examination. The prosecutor argued to the trial court that defense counsel had opened the door to the admission of the statement by defense counsel’s cross-examination of Bolden. The trial court denied the defendant’s motion for a mistrial and overruled the objection to the question. When the question was again propounded to the defendant he answered that he was aware that a statement had been made by Young to the police implicating him in the crime. In his summation the prosecutor referred to Young’s statement incriminating the defendant.
We agree with defense counsel that it was error for the trial court to permit the prosecutor to get into evidence the fact that a statement was made by Young incriminating the defendant and especially so after the court had previously ruled that the state could not call Young to the stand to testify in person. In Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the United States Supreme Court held that an accused’s right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated where a codefendant does not testify and his extra-judicial confession inculpating the accused is admitted into evidence, notwithstanding jury instructions that the codefendant’s confession must be disregarded in determining the accused’s guilt or innocence. In Bruton the United States Supreme Court stated that under the traditional rules of evidence, a co-defendant’s confession inculpating the accused is inadmissible against the accused as hearsay and that the major reason underlying the confrontation rule is to give a defendant charged with crime an opportunity, to cross-examine the witnesses. The rule of Bruton has been well recognized by this court. (State v. Greer, 202 Kan. 212, 447 P. 2d 837; Cantrell v. State, 206 Kan. 323, 478 P. 2d 192; State v. Oliphant, 210 Kan. 451, 502 P. 2d 626.) The question remains, however, for us to determine whether the admission of this statement was harmless error as is contended by the state. The United States Supreme Court has held that the admission of evidence in contravention of the rule of Bruton may be held harmless error where an independent examination of the record leads to the conclusion that the testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. (Brown v. United States, 411 U. S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565; Harrington v. California, 395 U. S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726; Schneble v. Florida, 405 U. S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056.) It is the settled rule, however, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. (Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; Harrington v. California, supra; Milton v. Wainwright, 407 U. S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174.) We applied that test in State v. Carpenter, 211 Kan. 234, 505 P. 2d 753.
We have concluded from an independent examination of the entire record that the prosecutor’s improper question which brought out the fact that Michael Young had given a statement implicating the defendant resulted in harmless error beyond a reasonable doubt. As noted above defense counsel had previously during Bolden’s cross-examination brought out the fact that Michael Young had given a statement implicating Bolden. It is also significant that no detailed statement of Michael Young implicating defendant was actually introduced into evidence. It was merely brought out by the prosecutor that such a statement had been given. In this case the evidence of the defendant’s guilt was over whelming and largely uncontroverted. The defendant Mims was positively identified by three eyewitnesses who were on the premises either at the time or just prior to the commission of the robbery. Furthermore there was the testimony of Rufus Bolden, a participant, who testified in great detail as to the defendant’s involvement in the crime. Under all of the circumstances and in view of the overwhelming evidence disclosed in the record we have reached the conclusion that the admission into evidence of the fact that Michael Young had given a statement incriminating the defendant was harmless error beyond a reasonable doubt. In our judgment the claimed trial errors urged by the defendant in its three points on this appeal could not have changed the results of the trial.
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Foth, C.:
Thomas Orive Laubach was convicted of aggravated robbery and has appealed.
Shortly after three in the morning of February 25, 1974, Henry Quick, the 85-year-old night clerk at the Wareham Hotel in Manhattan, was approached by a man requesting change for a quarter. When Quick opened the cash drawer he was struck in the head with a desk name plaque. The assailant then leaped over the counter and began choking Quick who, after scratching his assailant on the neck, feigned unconsciousness. The thief turned his attention to the cash drawer and fled with approximately $100 in ones and fives.
A description of the robber was sent out to various motels and at approximately 6:15 a. m., about three hours after the attack, a suspect (appellant Laubach) was located at the Ramada Inn, where he had just asked for a room. The investigating officers noticed a scratch on the suspect’s neck; when asked if he had money for a room, he produced a roll of bills. He was placed under arrest and his money — fifty-four ones and eight fives — was seized. Quick identified him at trial, and a jury convicted him.
Three errors are alleged. Appellant first alleges that the complaint should have been dismissed since he was held for a unreasonable time without a first appearance before a magistrate.
Laubach was initially arrested on February 25, 1974. While they do not appear in the record, apparently charges of aggravated robbery and felony theft were filed. He was taken before a magistrate and bond was fixed, which defendant was unable to post. A succession of three retained defense attorneys participated in plea negotiations over a period of several months, resulting in dismissal of the felony theft charge and reduction of the aggravated robbery charge to simple robbery. The defendant then waived a preliminary hearing, bond was fixed for his appearance in district court, and an information charging simple robbery was filed.
On June 4, 1974, the defendant apparently changed his mind and refused to enter a plea. That Friday the county attorney filed a new complaint in county court charging aggravated robbery; the following Monday, June 7, the information charging simple robbery was dismissed.
The June 4th complaint and subsequent information form the basis for the conviction now appealed. Because of the county judge’s temporary absence from the city, and to save defense counsel a separate trip from Topeka, the attorneys agreed to put off the first appearance on the new charge until June 18, the day set for the preliminary hearing. When the parties appeared at that time the county judge remarked on the lack of first appearance, and the defendant for the first time objected that his right to bail had been infringed. By agreement the court proceeded with the preliminary hearing before dealing with the bond issue. Defendant was bound over, and bond set for his appearance in district court. We are not told whether defendant was able to post the bond set.
Appellant’s complaint does not go to the four-month period from February 25 to June 4, during which he was unable to make the bond set on the first charge. He complains only of the two-week period from June 4, when the new charge was filed, to June 18, when his preliminary hearing was held. During the latter period there was no bond set. Of course, undue delay in bringing an accused before a magistrate is not to be condoned, but this court has consistently held:
“Undue delay in bringing one accused of crime before a magistrate is not, of itself, a denial of due process. It is only where a preliminary delay in some way deprives an accused of a fair trial that there can be a denial of due process.” (Cooper v. State, 196 Kan. 421, 411 P. 2d 652, Syl. 1.)
Cooper has been followed in State v. Dobney, 199 Kan. 449, 429 P. 2d 928; State v. Nading, 214 Kan. 249, 519 P. 2d 714; State v. Giddings, 216 Kan. 14, 531 P. 2d 445. We are urged to overrule this line of cases; we decline to do so.
Appellant alleges no prejudice caused by the delay. No incriminating statements were taken, for example. See, State v. Nading, supra. From the time of his first arrest and throughout the period he complains of he had counsel of his own choosing. While not determinative we note that he had been unable to post bond from February 25 until June 4. It is difficult to imagine that he would have fared any better during the last two weeks had there been a bond order in effect. We find no denial of due process necessitating dismissal.
Appellant next asserts that he should have been allowed to accompany, or at least consent to, a view by the jury of the hotel lobby. K. S. A. 22-3418 provides that when the jurors view a place where some fact occurred they “may be accompanied by the defendant, his counsel and the prosecuting attorney.” Neither the defense nor the prosecution was consulted before the court ordered the view. Under the statute whether a view will be had and whether the parties shall accompany the jury are both questions entrusted to the discretion of the trial court. No prejudice is alleged or appears from either the fact of the view or the fact that defendant did not accompany the jury. State v. Zakoura, 145 Kan. 804, 68 P. 2d 11. Further, no objection was made, either during the trial or in defendant’s motion for a new trial. Questions not presented to and determined by the trial court will not be considered on appeal. In re Johnson, 210 Kan. 828, 504 P. 2d 217.
Finally, appellant alleges error in the admission of testimony of Officer William Helfferich which is alleged to be hearsay. The officer testified that he examined the scene of the crime but did not talk with the night clerk, Mr. Quick. He then testified:
“Q Did you receive any information about a possible name or any further information about the description?
“A Later on Officer Roy Kidd had gone to the Red Onion and received some information.
“Mr. Hill [defense counsel]: We object to what Officer Kidd may have said.
“The Court: He hasn’t said anything yet. He said what he did. Go ahead.
“A He contacted back down to the hotel stating that a suspect — a subject there had let a suspect off at the Wareham Hotel.
“Mr. Hill: I object to this—
“The Court: He is stating a chain of circumstances and it doesn’t pertain to the guilt or innocence of the defendant. It shows what the officer did in this investigation. I think it comes under an exception to the hearsay rule. Go ahead.
“A At this time he stated one of the employees there had dropped a white male off, approximately six foot tall, 200 hundred pounds, had obtained a ride from the Red Onion and was dropped off at the Wareham Hotel. He indicated— the only thing that he could tell me in the way of a name was a Tom, the first name only. Shortly after this Mr. Wilkinson stated that he did not know whether it would be important or not but he had a guest card he would like to show me of a subject that might fit the description and the card — the guest card showed the name of Tom Foote.”
The description was then circulated about town, resulting in a call from the manager of the Ramada Inn which led to defendant’s arrest.
It is argued that this was double hearsay (Red Onion employee to Officer Kidd to Officer Helfferich) which placed the defendant at the scene of the crime without allowing him to confront the absent witness. We disagree.
Hearsay is defined as “a statement which is made other than by a witness while testifying at the, hearing offered to prove the truth of the matter stated.” (K. S. A. 60-460.) The trial oourt, in considering defendant’s new trial motion, found the testimony in question to have been introduced not to prove that the defendant was at the scene but that it “tended more to show what he [Officer Helfferich] did and what happened and why he came to the hotel where he. checked the register and saw the name of Tom Foote, which the evidence later developed that Tom Foote was the man who was identified by Mr. Quick as the defendant here, Thomas Laubach.” We agree. The statement did not place the defendant at the scene of the crime, but rather an unidentified man, whose description was then used in the investigation of the crime.
In State v. Trotter, 203 Kan. 31, 453 P. 2d 93, this court upheld the admission of a dispatcher s report:
“The trial court also properly admitted the testimony of Officer LaMunyon in regard to a conversation which he overheard between the police dispatcher and a detective immediately prior to the defendant’s apprehension. The testimony was not inadmissible as hearsay evidence for the reason it was not offered to prove the truth of the matter asserted. At most, the evidence provided some explanation of the officer’s action in proceeding to the location where defendant was subsequently taken into custody. (See, State v. Rhoten, 174 Kan. 394, 257 P. 2d 141, and Mills v. Higgle, 83 Kan. 703, 112 Pac. 617.)” (pp. 36-37.)
Similar statements of dispatchers or informants, offered only to explain the course of action of an investigating officer, were held admissible as nonhearsay in State v. Crowley, 220 Kan. 532, 552 P. 2d 971; State v. Ritson, 215 Kan. 742, 529 P. 2d 90; and State v. Hollaway, 214 Kan. 636, 522 P. 2d 364. The information conveyed to Officer Helfferich was not significantly different from the statements considered in those cases.
The state argues that even if the testimony were hearsay it would not be prejudicial error in view of the other evidence of guilt. It points to Quicks identification of the defendant, the scratch on defendant’s neck, his possession of bills matching those taken just a few hours before, and direct testimony that defendant had left a Manhattan pool hall just a few minutes before the 3:00 a. m. robbery. While we would agree with the state on this argument, we need not consider the question of prejudice in view of our finding that the officer’s testimony was not hearsay.
The judgment of conviction is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Foth, C.:
This is an action by beneficiaries of spendthrift trusts to compel their trustee to do their bidding in the management of the trust assets. Specifically, the plaintiff beneficiaries sought orders in the probate court and in the district court requiring the defendant bank as testamentary and inter vivos trustee, to vote corporate stock held in the respective trusts in accordance with their wishes. For its failure to do so plaintiffs also sought in each court the removal of the trustee and the surcharge against it of their expenses (largely their attorney fees) in this litigation.
All together plaintiffs filed four petitions: in the probate court, one for directions to, and one for removal and surcharge of, the bank as executor and testamentary trustee; in the district court, one for directions to, and one for removal of, the bank as inter vivos trustee. In due course all four cases were consolidated in the district court for trial. The trial court held in substance that the trustee was required to comply with the beneficiaries’ wishes unless it could show good cause for not doing so, but refused to remove or surcharge the bank as executor or trustee. The beneficiaries have appealed from the order refusing removal and surcharge, and from that part of the order allowing the trustee its expenses. The trustee bank has appealed from the order requiring it to follow the dictates of the plaintiff beneficiaries, and from the order allowing plaintiffs their expenses and attorney fees from the corpus of their respective trusts.
This is the second acrimonious chapter of the on-going dispute over the assets of the late Marcellus M. Murdock of Wichita, who died on March 10, 1970. The first chapter is to be found in In re Estate of Murdock, 213 Kan. 837, 519 P. 2d 108 (hereafter Murdock I). In that case this court upheld an antenuptial agreement between Marcellus and his widow Paula Murdock, limiting Paula to a one-fifth or “child’s” share of his estate rather than the one-half she claimed as a widow who had not consented to her husband’s will. Murdock I is referred to by the parties as the “widow’s election” case, or simply as the “widow’s” case. The dispute in the present case is over control of his chief asset, stock representing the balance of power in Wichita’s daily newspaper, the Wichita Eagle and Beacon. Hence, this case is referred to as the “voting rights” case. Two more appeals in the Murdock estate (Nos. 48,058 and 48,067, consolidated) are docketed in this court awaiting decision.
In Murdock I we encountered for the first time Marcellus’ family and his plan for the distribution of his assets after his death. In addition to his widow Paula, when he died at age 87 Marcellus left surviving three adult children (Victoria Murdock Bloom, Marsh Murdock, and Janet Murdock Jennings) and two adult grandchildren (David Colwell and Vici Colwell McComb), chil dren of a predeceased daughter (Jane Murdock Colwell). All of these offspring were the result of his previous marriage to Ma-belle Murdock; none were related by blood to the widow Paula. His plan, to be detailed later, was to divide his assets into five equal parts. In due course, one was to go to his widow, one to each of the three surviving children, and the last equally to the children of the predeceased child. The plan was to be accomplished through a combination of an inter vivos and a testamentary trust.
Marcellus’ chief asset was a one-third interest in the Wichita Eagle and Beacon Publishing Company, represented by 20,000 shares of stock, inherited from his father. Of the other two-thirds, one part (20,000 shares) had been inherited by his sister Pearl, and through her descended in 1962 to her grandson Harry B. (Britt) Brown. The other one-third had been inherited by Marcellus’ brother Victor, and through him descended to Victor’s daughter Katherine Henderson (10,000 shares) and Victor’s grandson Victor Delano (10,000 shares).
The long-time internal strife in the Murdock family does not control the legal issues here, but it serves as the backdrop against which the present drama was played. During his lifetime Marcellus’ one-third represented the balance of power over the newspaper. While Britt Brown’s mother was alive part of her stock was in trust and was voted by Marcellus, giving him undisputed control. After she died Marcellus’ stock stood between the competing one-third interests of Brown on the one side and the Henderson-Delano faction on the other. Marcellus had devoted his adult life to the newspaper and was its general manager for many years.
Under Marcellus’ tenure Britt Brown served for a time as advertising director, but was fired from that position in the early 1960’s when it came to light that he had been trading advertising space for merchandise without accounting to the paper. (He was later convicted of income tax violations based on these transactions for the years 1959, 1960, and 1961. His first conviction was reversed, United States v. Brown, 411 F. 2d 1134 [10th Cir. 1969], but he was again convicted on the same counts and the second conviction was affirmed in United States v. Brown, 446 F. 2d 1119 [10th Cir. 1971].) At about this time Brown came into control of his one-third of the Eagle stock as the result of the death of his mother in 1962. Shortly after his firing he combined the voting power of his stock with that of Katherine Henderson and Victor Delano to force Marcellus out of the active management of the paper.
In 1963 Marcellus and Britt Brown reconciled their differences and entered into an agreement covering the management of the newspaper. An outside editor-publisher — John Colburn, of Richmond, Virginia — was to be hired under a ten year contract to be in active charge of the papers operations. Marcellus was to be president and chairman of the board, and to serve in a consulting and advisory capacity. His name was to appear on the masthead to take advantage of his reputation as the long-time power behind, the paper. Brown was to be vice-president and to receive training in all phases of the business with an eye to his becoming publisher after Colburns contract expired. Marcellus, Brown and Colburn were to constitute a management committee to assist the publisher in his duties. The truce effected by this arrangement lasted until Marcellus’ death seven years later.
Long prior to 'these events, on December 27, 1941, Marcellus had established the inter vivos trust, naming the defendant bank and himself as trustees. In the trust he placed 10,000 shares of Eagle stock, representing one-half of his one-third interest in the paper. The trust was to continue until two years after Marcellus’ death. During his lifetime the income was to be accumulated or paid to him in the discretion of the bank. In practice it was accumulated, and in 1960 Marcellus renounced any right to income. In 1963, encountering a claim by income tax authorities that the trust income should nevertheless be taxed to him personally, Marcellus renounced all claim to either principal or income and resigned as co-trustee. His son, Marsh, named in the instrument as successor trustee, accepted the trust and served as co-trustee with the bank from then until the time this case was tried. (Marsh Murdock was originally a defendant in these actions, but resigned as co-trustee of the inter vivos trust on the day trial began and never qualified as executor or testamentary trustee. The trial court dismissed all claims against him, there is no appeal from that order, and no liability is now asserted against him.)
The inter vivos trust instrument after the habendum clause, paraphrased in part and emphasized where of particular significance, provided as follows:
Article One: Provided in part that “[t]he trust hereby created shall terminate two years after the death of the Donor.”
Article Two: The donor reserved the right to add to the trust corpus.
Article Three: "The Donor hereby declares that his purposes in creating this trust are 1) to create a present interest in the beneficiaries herein named in the Wichita Eagle, to the end that they will desire to perpetuate the same in the Murdock family; 2) in recognition of certain understandings long since had with the beneficiaries and 3) for business reasons.”
Article Four: Gave the bank the right to accumulate income, and went on to provide: “Upon the death of Marcellus M. Murdock the Trustee shall forthwith divide the trust estate into five equal parts or shares, which for identification are hereinafter referred to as ‘Trust A’, ‘Trust R’, ‘Trust C’, ‘Trust D’ and ‘Trust E\ Each of said parts shall be administered as a separate trust fund."
Each of the five parts 'was set aside for a named beneficiary who was to receive the income for the two years the trust would continue after Marcellus’ death, and then the principal. The beneficiaries were the donor’s wife Paula, whom he had married the year before, and his four children. (Alternative provisions were made in the event any of the named beneficiaries should die before the trust terminated, and it was under such a provision that David Colwell and Vici McComb succeeded to the interest of their mother Jane.)
Article Five: Prescribed the “rights and powers” of the trustees:
(a) investment and sale powers
(b) to invest without regard to statutory restrictions
(c) to allocate receipts between principal and income
(d) releases those dealing with the trustees from any duty to inquire
(e) to bind the estate contractually without personal liability and to employ “agents, brokers and attorneys.”
(f) “All costs, charges and expenses of the trust estate and of the management thereof, and of their agents, brokers and attorneys, and all taxes, assessments and charges thereon shall be repaid and allowed to the Trustees from the trust fund.”
(g) “In making distribution of the principal of the corpus of the trust estate, or of any part thereof, the Trustees in their uncontrolled discretion may make distribution to all or any of the beneficiaries hereunder in money and/or property of the trust estate. In making distribution in property the Trustees shall not be required to distribute to any beneficiary an aliquot part of security or property comprising the trust estate at the time of distribution, and the judgment of the Trustees as to what shall constitute a proper division among them, and their selection and valuation shall be binding and conclusive upon all beneficiaries hereunder.”
(h) “The Trustees are hereby given full and complete power and authority, without limitation or condition, over the trust estate and property, and each and every part thereof, as fully and to the same extent as any individual might, could or would have owning similar property in his own right.”
(i) to retain indefinitely any assets placed in the trust by the donor without liability for any losses in value, although the trustees were to be subject to a standard of reasonable care in making other investments. This subsection concludes:
“In depositing hereunder an interest in the newspaper known as the Wichita Eagle, the Donor expects that this interest in this family owned institution will be retained in the trust until such time as the family may dispose of the property, in which event the Donor desires that the Trustees hereunder join with the other members of the family and dispose of the interest in the property which may be held under the terms hereof at 'such time.”
(j) “The Trustees are further authorized and empowered, in their discretion, to vote in person or by proxy upon all shares of capital stock held by them; to unite with other owners of similar property in carrying out any plan for the reorganization of any corporation or association whose securities form a portion of the trust estate or any part thereof; to assent to the consolidation or merger of any corporation or association whose securities are held by them, with any other corporation or association; to pay all assessments, expenses, and sums of money as they may deem expedient for the protection of their interest as holder of the stocks, bonds, or other securities of any corporation or association and generally to exercise in respect to all securities held by them, all the same rights and powers as are, or may be, lawfully exercised by persons owning similar securities in their own right.”
(k) to exercise general control over the corpus, concluding:
“It is the intention of the Donor that the Trustees shall not be restricted as to the manner of handling of the trust estate or the forms of investment of the corpus of the trust and the enumeration of the foregoing rights, powers and privileges shall not be so construed.”
Article Six: In case o£ misfortune to or for the education of any beneficiary “the Trustees may invade the principal of the fund then under administration for the benefit of such beneficiary requiring such assistance and make such suitable provision in accordance with the circumstances as the Trustees may consider to be wise, suitable, proper and expedient. Nothing in this paragraph contained shall create any legal or equitable rights in any beneficiary or any other person.”
Article Seven: “During the entire term of the trust, or trusts, as herein created, the whole title to the trust fund or funds, both legal and equitable, in fee, and all parts of any of them, is and shall be vested solely and absolutely in the Trustees, and no interest therein whatsoever is or shall be vested in any of the beneficiaries thereunder, it being the intention of the Donor that the only interest which the beneficiaries hereunder shall have is personal property only, consisting of the right and power to enforce the due performance of the provisions of this trust agreement. Each beneficiary under the trust created under the terms of this indenture is without privilege or power to sell, transfer, assign, pledge, mortgage, hypothecate, alienate, anticipate, or in any manner encumber or affect his, her, or their claimed beneficial or legal title, interest or estate in, or to the net income or principal of the trust herein created, nor shall such claimed interest or estate be subject to his or her liabilities, nor to execution or other legal process, including attachment and garnishment, bankruptcy proceedings or claims of creditors or others, and shall not pass or descend by operation of law. In the event any beneficiary hereunder shall attempt to transfer, or in any manner affect his or her claimed interest in the trust by vóluntary act or by operation of law, or in the event any attempt is made to levy upon, or otherwise subject to legal process, any such interest in the income or principal, the payment of such beneficiary’s income or principal shall thereupon, in the sole discretion of the Trustees, be made either to such beneficiary personally or the Trustee shall use same for the support and maintenance of such beneficiary.”
Article Eight: Authorized distribution in kind upon termination of any trust.
Article Nine: Requires accountings and dispenses with bond.
Article Ten: Provides for Marsh as successor trustee to Marcellus, but makes the bank sole trustee if Marsh fails or ceases to act.
Article Eleven: “This trust shall be known as the Marcellus M. Murdock Trust.” (The trust was familiarly referred to 'as the “childrens Trust.”)
In 1966, after the inter vivos trust had been in existence for almost twenty-five years, Marcellus executed the will discussed in Murdock I. After providing for the payment of debts and funeral expenses and a gift of the homestead and appurtenances to Paula, the will went on:
“All of the rest, residue and remainder of my property of whatever kind and wheresoever situated, I give, devise and bequeath to my trustees in trust for the uses and puiposes hereinafter set forth. This trust fund shall be divided, held, administered and disposed of as follows:
“(1) The trust hereby created shall terminate 15 years after my death.
“(2) My trustees shall divide the trust property into equal separate shares, which, for identification, are hereinafter referred fo as ‘Trust A’, ‘Trust B’, ‘Trust C’, ‘Trust D’, and ‘Trust E’. Each of such parts shall be administered as a separate trust fund.”
“Trust A” was designated for the widow Paula. In Murdock I we held this attempt to impress a trust on her one-fifth share was ineffectual in the light of the parties’ antenuptial agreement, and that she was entitled to one-fifth of the residue outright. The other four shares were to follow the same plan of distribution as the corresponding shares of the inter vivos trust, except that “Trust E” was designated for the children of Marcellus’ daughter Jane M. Colwell, who had died in 1963, rather than for Mrs. Colwell herself.
In paragraph (3) of the will the powers of the trustees were substantially identical to those granted under the inter vivos trust Article Five, described above, with subparagraphs “a” through “k” being those of the trust instrument almost verbatim. Paragraph (4) of the will is verbatim Article Six of the trust; paragraph (5) is Article Seven; paragraph (6) is Article Eight; paragraph (7) is Article Nine with this addition:
“If for any reason any beneficiary or any of the trusts shall be legally entitled to the legal as well as equitable title of said beneficiary’s share of the trust corpus, then this will shall be construed so as to give, devise and bequeath the full legal and equitable title to such share of the trust corpus directly to such beneficiary and otherwise the provisions herein with respect to the trust created shall remain in full force and effect.”
Paragraph (8) of the will, corresponding to Article Ten of the inter vivos trust, names Marsh and the 'bank as co-trustees, with the bank to be sole trustee if Marsh failed or ceased to act. The will, in place of the article identifying the trust by name, appointed the bank and Marsh as co-executors, with the bank to act as sole executor if Marsh failed to act.
As may be seen, the only substantial difference between the trust provisions of the will and those of the inter vivos trust was that the testamentary trust was to continue for fifteen years after Marcellus’ death, rather than the two years for the inter vivos trust. Additionally, the testamentary trust contained no statement of the testator’s “purposes” in establishing it.
Upon the death^of Marcellus the seven year truce within the Murdock family gaye way to open hostilities. The widow Paula instituted the litigation which reached this court in Murdock I, claiming one-half of Marcellus’ estate outright. She was supported in that position by her co-plaintiffs here, Marcellus’ daughter Janet and his grandchildren David Colwell and Vici McComb, children of the deceased daughter Jane. She was opposed by Marcellus’ two older children, Victoria Bloom and Marsh Murdock.
At the same time fire also broke out on a second front, resulting in the present struggle for control over the newspaper. This battle involves the collateral Murdock relatives as well as Marcellus’ immediate family. Paula, Janet, David and Vid, the plaintiffs, are informally allied with Britt Brown and 'are represented by his personal attorney; opposing them again are Marsh and Victoria, who are allied in interest with Victor Delano and Katherine Henderson.
Immediately prior to Marcellus’ death the board of directors of the publishing company was divided among three factions: Victor Delano and Katherine Henderson’s husband Forrest represented the Delano-Henderson one-third; Britt Brown and his nominee Paul R. Kitch (counsel for plaintiffs here) represented the Brown one-third; and Marcellus and his son Marsh represented Marcellus’ one-third. John Colburn, editor-publisher selected in the MarcellusBritt Brown compromise of 1963, occupied the seventh seat. Less than ten days after Marcellus’ death Britt Brown expressed an interest in becoming president and chairman of the board. Delano and Henderson had misgivings about the effect of such a move on the paper in view of Britt’s pending federal tax prosecution; Marsh apparently shared their sentiments. On April 9, 1970, at the first board meeting after his death, the remaining board members filled Marcellus’ seat on the board with Sidney J. Brick, who had been Marcellus’ personal attorney during his lifetime and who became attorney for the bank as executor of his will. Britt Brown and Paul Kitch opposed the election, voting for Janet Jennings instead. At the same meeting Marsh Murdock was elected chairman of the board and Victor Delano president; Brown and Kitch opposed both those selections as well.
When Marcellus’ will was admitted to probate the bank qualified as executor and trustee, so his one-third stock interest was effectively controlled by the bank. Marsh Murdock and Sidney Brick became' for practical purposes the bank’s representatives on the board, carrying the balance of power between the Delano-Henderson faction on one side and the Brown-Kitch faction on the other. Colburn’s vote, obviously, couldn’t carry the day on any contested issue.
So matters stood as the scheduled annual shareholders meeting of November 5, 1970, approached, at which directors would be elected for the following year. In early October, 1970, Willard Hill, senior vice-president and trust officer of the trustee bank was approached by Paul Kitch, on behalf of Paula Murdock, Janet Jennings, David Colwell and Vici McComb. It was Mr. Kitch’s position that his clients were the beneficial “owners” of the stock held in their respective trusts and that the trustee was obligated to vote such stock in any manner his clients might dictate. As he put it in a follow-up letter of October 13,1970:
“It is the position of each of the above named stockholders that the stock owned by them be voted solely in their own individual interests in conformance with designations to be given you prior to the stockholders meeting.” (Emphasis added.)
Upon receipt of this letter the bank promptly sought independent advice from its own attorney, Lawrence E. Curfman. Mr. Curfman, on October 20, 1970, rendered an eleven page opinion in which he analyzed the trust provisions and the law deemed applicable. He concluded in part:
“We are of the opinion that the Bank may, acting together with the co-trustee, vote the shares of stock held by it under the inter vivos trust in its discretion. We are further of the opinion that in so doing the trustees are not obligated to vote such shares in accordance with the desires of the trust beneficiaries, provided that in so exercising their discretion the trustees remain subject to their general fiduciary obligation to impartially administer the trust in the best interests of the trust estate and the beneficiaries.”
The opinion went on:
“. . . [I]t is the Bank’s fundamental duty as a fiduciary to exercise its discretion for the ultimate benefit of the trust estate and the beneficiaries. It is to be noted that the ‘best interests of the beneficiaries’ do not necessarily coincide with what these same persons regard as their best interests as individuals. It is for the Bank to administer the trust impartially as among the beneficiaries, and it is their common interests as beneficiaries which must serve as the Bank’s guide. Certainly it is contrary to generally recognized trust principles to say that a trustee must follow the dictates of the trust beneficiaries in making such a determination. The beneficiaries’ desires and opinions are clearly a factor which the trustees should consider and evaluate, but cannot be regarded as conclusive.”
Upon receipt of the Curfman opinion and its consideration by the bank’s trust committee the bank wrote all trust beneficiaries on October 23, 1970. After referring to the Kitch request and the Curfman opinion, the bank’s letter said:
“This bank as fiduciary currently intends, although we reserve the privilege of changing our position, to vote such shares as we control in the exercise of our best discretion for the interests of the trust, its beneficiaries, and for the stability of the corporation. With this in mind, at this time we intend to vote the shares in favor of the existing Board of Directors except that, in place of tire current representative of the Murdock estate and trust shares as held by this bank, we propose to submit the name of our President, Director, and Trust Committee Member, Paul H. Woods.
“We believe that this is evidence of our intent to vote the shares in our discretion for the best interests of the trust, its beneficiaries, and for the stability of the corporation.”
Copies of the letter were sent to all counsel and to the officers and directors of the newspaper company. It evoked an immediate reply from Mr. Kitch. On October 28, 1970, he addressed a nine page letter to the bank, once again asserting that the beneficiaries were the “owners” of the stock in their respective trusts:
“You will note that our representation on this matter is on behalf of a substantial majority of the beneficiaries in the Childrens’ Trust, all of the beneficiaries in the Janet M. Jennings Trust, all of the beneficiaries of the Jane Colwell Trust and all of the interest of Mrs. Paula Murdock. It is the opinion and position of Mrs. Jennings, Mrs. McComb and Mrs. Colwell that Mrs. Murdock is the true owner of an undivided one-half interest in the Murdock estate, so that in truth and reality we are representing the true owners of the three-fourths of all of the stock in the estate being administered by you. We do not feel that the wishes of these people should be so easily and obviously ignored by you to their detriment and to the possible advantage of you, your co-trustee and stranger stockholders and officers of the Eagle. In order to make the record crystal clear I wish to put in writing the following so that you can not claim any misunderstanding in the event of subsequent developments.”
There followed an expression of dissatisfaction with the present status of the paper, both as to “the quality of its product” and its “earning record,” which were said to be at the “lowest ebb” of the paper’s history. This was alleged to be attributable to its present “top management,” although the present manager (Mr. Colburn) was thought to be “salvageable” if subjected to firm control by the board of directors. The letter proposed as directors John McComb, husband of Vici and a young Hutchinson banker, and Richard Jennings, son of Janet Jennings and a young Los Angeles attorney. The letter included a demand that all stock in the trust and the estate allocated to Paula, Janet, David and Vici be voted for their two nominees.
The Kitch letter went on to allege a conflict of interest on the part of the bank, in part because as executor it was defending the will, which meant opposing Paula’s claim to half of the estate — a “shameful course of events” designed to deprive her of her “rightful property rights.” It also alleged that a conflict of interest was inevitable because the desires of the various beneficiaries were in conflict and because Marsh, co-trustee of the inter vivos trust, was also a beneficiary.
As threatened in the letter, when assurances were not forthcoming that the bank would comply with its demands the first petitions herein were filed two days later, asking that the executor and trustees be directed to vote for plaintiffs’ nominees. Voting of the shares was restrained by the court, and the question of the bank’s right to vote them was effectually put over to the next annual stockholders’ meeting, scheduled for November 4, 1971. The second two petitions, asking for removal, were filed in January, 1971.
The following year was consumed in extensive pre-trial discovery, culminating in a pre-trial conference on September 15, 1971. In the pre-trial order the four cases were consolidated. The court, through the administrative judge, found as a matter of law that on Marcellus’ death five separate trusts came into being under the inter vivos trust instrument, and that “the corporate stock in the Wichita Eagle and Beacon Publishing Company, Inc., shall be voted in each individual trust for the best interests of the beneficiary of such individual trust.”
The pre-trial order directed the trustees to furnish to the beneficiaries a breakdown of their proposed method of voting the trust shares, and the beneficiaries were directed to respond with their proposals. If there was disagreement, the following issues were to be determined by the trial judge to whom the case would be assigned:
(a) Whether the trustees have the power to vote the shares of the individual trust in accordance with their own discretion as to what the trustees believe to be for tire best interests of the beneficiary. The plaintiffs contend that the provisions of K. S. A. 58-1205 (b) apply while the defendants contend that the conflict contemplated by that section is not present in the instant trust;
“(b) Whether the trustees have the power to exercise such discretion in view of the conflict alleged by plaintiffs between the various beneficiaries;
“(c) If the trustees are held to have the right to vote the stock, then is their proposed action an abuse of discretion under the evidence to be offered;
“(d) If the trustees are disqualified from voting the stock without Court authorization, then how should the stock be voted in each trust in order to serve the best interest of each beneficiary.”
As to the stock held in the estate, the pre-trial order directed that “[t]he trial court shall determine in advance of trial whether the voting of the Eagle stock by the executor is governed by the terms of the testamentary trust or whether until distribution of the estate the Eagle stock is to be treated as a common asset of the estate with power in the executor to vote said stock without reference to the term of the trust . . .” If the stock was to be voted as part of separate trusts, the same procedure was to be followed as in the case of the inter vivos trust. If the bank was entitled to vote the stock as executor, then the issue would be whether the bank’s voting proposal constituted an abuse of its discretion.
In the meantime the bank undertook an investigation into the affairs of the paper through the bank’s president, Paul H. Woods. In his opinion of October 20, 1970, Mr. Curfman had advised the bank:
“As the foregoing suggests, the course of action indicated for the Bank is clear, regardless of the manner in which it finally determines to vote. Every necessary and appropriate action should be promptly undertaken by the Bank to advise itself fully as to the affairs of the corporation, and as to every aspect thereof which may bear upon the interests of the trust estate. Under the circumstances, we recommend that this be as rigorous and thorough as time permits. Such actions might include, for example, examination of corporate books and records, review of recent audits, tax returns and other financial information, interviews with key personnel, and the like. Each of the trust beneficiaries should be consulted, and any further steps suggested by them should be pursued, if possible. In short, the Bank should undertake every action which may be of possible assistance in the sound and impartial exercise of its discretion.”
After completing his investigation Mr. Woods submitted a memorandum to the bank’s trust department dated November 9, 1970, tracing the paper’s financial progress from 1963, when Colburn was first employed as editor-publisher, through fiscal year 1970. In the memorandum Woods noted raw figures for the Eagle showing an increase in net worth for the eight years of 109.7%, despite payment of dividends of $3,428,000. Long term debt was reduced from $1,030,000 in 1963 to $286,000 in 1970, and sales increased 37%. He compared this performance favorably to that of Stauffer Publications, Inc., a midwest newspaper chain, and to that of another closely held midwest newspaper whose data were obtained through confidential sources. He also compared Eagle figures to published profit and sales ratios of 15 newspapers with assets of $1 to $10 million. He observed, “The Eagle shows up well above average on all of these ratios and is the highest of any on Profit Before Taxes to Total Assets. I must conclude from these comparisons that the Eagle is achieving above average performance.”
The memorandum concludes:
“Mr. Kitch, in his letter to Mr. Hill under date of October 28, 1970, says in part:
‘Our clients . . . are of the opinion that the newspaper in the last year has reached the lowest ebb that it has ever occupied in the quality of its product, in the top management position and in its earning record.’ The ‘quality of the product’ is a matter of personal opinion and I doubt if it can be measured objectively. Likewise the ‘top management position’ if viewed by factors other than financial performance is opinion unless a question of honesty and integrity is concerned and I do not believe Mr. Kitch has made any such accusations. The matter of ‘earning record’ has been covered by this memorandum and Mr. Kitch’s statement is obviously incorrect.
“It would seem that Mr. Kitch should advise his clients, all of our beneficiaries and ourselves what his proposal is for replacing the present management before that step is taken. Certainly our Trust Committee has taken no irreversible stand on management of the Eagle, but all of us should be fully advised how Mr. Kitch proposed to improve the present situation. Our beneficiaries have every right to raise this question, as do we.”
The result was a determination by the bank’s trust committee to maintain the status quo at the Eagle until the opposition group came forward with concrete suggestions for improvement.
The following April, 1971, David Colwell met with the bank’s trust officer, Willard Hill. At that meeting David suggested as a potential board member his father, Ward Colwell, a Texas newspaperman. Hill was receptive to the idea, and wrote to David on April 23, 1971 that “our bank has understood that Ward Colwell is experienced in the newspaper field and we are favorable to the possibility of voting estate shares for him rather than Paul H. Woods [president of the bank].” Woods, it appears, had been suggested by the bank as a substitute for Sidney Brick in Marcellus’ old board seat. As to substituting Richard Jennings for Marsh Murdock, Hill could not be so optimistic. Although saying the bank had “no prejudice for, or against” Jennings as a director, Hill observed that Marsh had been a director for many years, and further, “[h]e is a co-trustee of the inter vivos trust and any voting decision is necessarily a joint matter between Mr. Murdock and this bank and it does not seem likely that he would vote to remove himself.”
In the letter Hill reiterated the bank’s position on maintaining the status quo:
“Our bank follows the financial progress of the paper and we are aware that some stockholders feel that management has not been meeting its responsibilities; however, we do not fully concur but, in any event, no specific substitute for existing management has been suggested to us. We, therefore, would be reluctant to support any move to oust present management unless, and until, other management was suggested to us which we felt would be better able to cope with the problems of the newspaper.”
This was the position of the bank when, on September 21, 1971, it was required by the pre-trial order to advise the beneficiaries how it proposed to vote the shares in the estate and in each of the inter vivos trusts. The bank and Marsh, as co-trustees, proposed to vote for Ward Colwell all shares held in the inter vivos trusts of Paula, Janet, David and Vici. Under cumulative voting, with each share casting seven votes, this would give him 42,000 votes. The shares in the trusts for Marsh Murdock and Victoria Bloom were proposed to go to Marsh, for 28,000 votes. As executor, the bank proposed to divide the vote of the estate shares, 60,000 for Sidney Brick and 10,000 for Marsh.
On October 19, 1971, the day the case came on for trial, Marsh resigned as trustee and stated he would not stand for reelection to the board. The bank as sole trustee then notified the beneficiaries that it intended to cast the votes originally intended for Marsh for Paul Woods. As executor, it proposed to shift to Mr. Woods an additional 10,000 of the votes originally designed for Sidney Brick. Votes controlled by the bank would then go 42,000 to Ward Colwell, 50,000 to Sidney Brick, and 48,000 to Paul Woods. Obviously if Mr. Colwell were to be elected he would have to secure some votes from either Victor Delano, Katherine Henderson, or Britt Brown.
The trial court at that point required the bank to break down its proposed vote of the shares in the estate according to the interests of the individual beneficiaries. Dividing the estate into five parts (including one for David Colwell and Vici McComb together) the bank proposed to vote Tfths (i. e., 4,000 votes) of each part for Woods and Yrths (i.e., 10,000 votes) of each for Brick. The net result would be the same as under its first proposal of October 19th.
Victoria Bloom and Marsh Murdock expressed satisfaction with the bank’s proposal. Accordingly, under one of the provisions of the pre-trial order, they were dismissed from the lawsuit in their capacities as beneficiaries. Since they were found to have no interest in how the executor-trustee voted shares in the estate or in any of the inter vivos trusts other than their own, they were excluded from participation in the trial.
As the case went to trial, then, the positions of the parties were essentially these: Plaintiffs contended they were in effect the owners of the stock in both three of the inter vivos trusts and in three of the testamentary trusts; the trustee was bound to vote the stock as they demanded. The bank contended that under both the inter vivos trust instrument and the identical trust provisions of the will it was ultimately required to exercise its own independent judgment as to what was in the best interest of each trust and each beneficiary; and further, that until administration was complete, and particularly until the “widow’s election case” (Murdock I) was resolved, it was impossible to establish separate testamentary trusts because there was no way of knowing how much would be in the residuary estate.
The case was tried at length. At the conclusion of the plaintiffs’ evidence the court dismissed the action as to Marsh as co-trustee, on the ground that his resignation had made the matter moot. The bank then put on its evidence and in due course the court entered its findings of fact and conclusions of law. The most significant of the latter (as amended) were these:
“1. The Irrevocable Trust Agreement known as Marcellus M. Murdock Trust (inter vivos trust) is clear and unambiguous.
“2. It was the intention of the settlor that the beneficiaries participate in the administration of their trust although the trustee was the one who was to control and disseminate the wishes of the beneficiaries for their own best interests.
“3. The trustee cannot be ordered to do every bidding of the beneficiaries nor can it ignore the wishes of the beneficiaries.
“4. The provisions of Article Three of the inter vivos trust clearly sets out that the trust should be so managed as to keep' the Wichita Eagle and Beacon in the Murdock family and the trustees must cooperate with the beneficiaries to that end.
“5. That so long as a majority of the beneficiaries desire to participate in the workings of the Wichita Eagle and Beacon the trustee must strive to serve that end.
“6. When the trustee votes or threatens to vote shares in a manner which would alienate the interest and participation of a majority of the beneficiaries in the affairs of the Wichita Eagle and Beacon, then the beneficiaries have an absolute right to maintain a suit to enjoin the trustee from such action.
“7. The trustee must consider the wishes of the beneficiaries of each trust and if those wishes are not destructive of the purposes of the trust as elsewhere herein enumerated then that request must be followed by the trustee.
“8. The plaintiffs have no adequate remedy at law.
“9. The trustee shall not, during the continuance of the trusts, act contrary to the wishes of the beneficiaries in so far as the voting of shares is concerned except under order of a court of competent jurisdiction and on application must set forth a full disclosure as to the reasons for denying the wishes of the beneficiaries and the reasons why such denial is in the best interests of the beneficiaries.
“10. [as amended] The trustee shall not vote the shares in the inter vivos trust and in the testamentary trust held for the benefit of the same beneficiary differently as the purposes as set out in the inter vivos trust are also the purposes of the testamentary trust.
“11. The trustee is to vote the shares of the beneficiaries in both trusts as requested by them unless upon proper application good cause is shown why such procedure would defeat the purposes of the trust and would be injurious to the trust estate and the rights of each beneficiary.
“12. The commercial account of the Wichita Eagle and Beacon is a source of profit to the trustee and therefore presents a constant opportunity to weigh questions involving the trust. Because of the possibility of conflict the trustee must be above any question of compromise and in the event of disagreement between the management and control of the Wichita Eagle and Beacon and the beneficiaries, if the trustee refuses the request of any of the beneficiaries as to how his or her shares should be voted, then said trustee must relinquish either the commercial account or the trust.
“13. The removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property. Such is not the instant case and the trustee has not breached its duties in such a way as to warrant removal.
“14. The trustee shall advise all beneficiaries of all aotions taken in each trust and shall ladvise the beneficiaries as to any persons with whom the trustees have counseled or discussed matters pertaining to the administration of the trust.”
As may be seen, the net effect of the decision was to put control of the voting in the hands of the beneficiaries. If the trustees’ discretion would dictate a contrary course, the burden was put upon it to convince a court that the beneficiaries’ wishes would be injurious to the trust estate. The bank in its cross-appeal urges that these conclusions reverse the proper roles of trustee and beneficiary and this we view as the primary issue on appeal.
Looking first to general principles, we find: “The accepted rule is that where the instrument creating a trust gives the trustee discretion as to its execution, a court may not control its exercise merely upon a difference of opinion as to matters of policy, and is authorized to interfere only where he acts in bad faith or his conduct is so arbitrary and unreasonable as to amount to practically the same thing.” (Elward v. Elward, 117 Kan. 458, 459, 232 Pac. 240.) In that case the trustee was directed to furnish to the beneficiaries “a comfortable maintenance and support in keeping with their habits and condition in life.” An order increasing a beneficiary’s monthly allowance was affirmed on a record containing none of the evidence. It was presumed that the trial court’s implied finding of bad faith was supported by the evidence, thus meeting the requirement of the rule that “a court will not ‘at the instance of interested parties, interfere with the performance of his duties by the trustee and the exercise of the discretionary powers conferred upon him, unless there is shown bad faith on his part, or a gross and arbitrary abuse of discretion’.” (Ibid. See also, In re Estate of Gustafson, 178 Kan. 230, 284 P. 2d 615; Henshie v. McPherson & Citizens State Bank, 177 Kan. 458, 280 P. 2d 937.)
The American Law Institute puts the rule this way:
“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion.” (Restatement of Trusts, Second, § 187.)
Generally speaking, the duty to administer a trust and to exercise the discretion vested in him rests on the trustee, and cannot be delegated by him to others. Restatement of Trusts, Second, § 171; Scott on Trusts, § 171.
The beneficiaries have no right to demand that the trustee’s discretion be delegated to them. In re Sullenger’s Estate, 2 Ariz. App. 326, 408 P. 2d 846. In that case the heirs requested the executor bank to retain the testator’s assets, including some $70,000 worth of stock. The executor nevertheless sold the stock for about $4,000 less than its appraised value. When the stock’s market value increased some $30,000, the heirs sought removal and surcharge. The trial court dismissed the action after hearing the heirs’ evidence. On appeal the judgment was affirmed, the court finding that the executor had been given discretionary authority to sell and had not abused its discretion. As to the expressed wishes of the heirs the court said:
“We are further convinced that the appellee did not breach an existent duty by failing to abdicate its own judgment in favor of the wishes of the heirs. By will the testator cloaked die executor with discretion in the disposition of estate assets, and although cooperation between executors and beneficiaries is sufficiently desirable that several courts have held that a representative has the right to follow the wishes of heirs, . . . this court knows of no rule which imposes upon the representative a duty to acquiesce in such wishes.” (2 Ariz. App. at 328.)
The rule was put more strongly in Estate of Talbot, 141 C. A. 2d 309, 296 P. 2d 848. There one of the income beneficiaries — a competent and experienced businessman — suggested to the bank trustee that it should sell the trust’s common stock portfolio at a substantial profit, invest the proceeds in municipal bonds, and look for a more favorable time to get back into the market. The beneficiary (Frederick C. Talbot) was the only one who bad taken much interest in the administration of the trust, and assured the trustee he would secure the consent of the other beneficiaries. The trustee followed the advice, causing the trust to pay substantial capital gains taxes and reducing the overall yield on its portfolio. The securities sold thereafter increased in value. At the suit of a nonconsenting beneficiary having a one-third interest in the trust the trustee was surcharged one-third of the capital gains taxes paid. The court observed that from the evidence it could be concluded that “the trustee did not exercise an independent judgment or discretion in these transactions, but simply followed the suggestions and desires of Frederick C. Talbot upon his assurance that the other beneficiaries would consent. This was a breach of the trustee’s duty.” (141 C. A. 2d at 319.) The court held:
“Under the general law and the ‘prudent man rule’ of [the California code] controlling investment of funds by a trustee, he must exercise his independent discretion and judgment in reference to investment of funds, even where broad discretionary power of investment is given.” (Id., Syl. para. 1.)
“A trustee breaches his duty by failing to exercise his independent judgment and discretion in selling trust securities.” (Id., Syl. para. 4.)
As to a claim that the trustee should be surcharged for the subsequent appreciation of the stock, the court observed, “[t]he breach was not of the duty to retain the stocks, but of the duty to exercise an independent judgment. The two duties are obviously separate and distinct.” (Id. at 326.) On this issue the court held:
“Where a trustee has broad powers of sale of trust securities, a beneficiary has no right to compel retention of any specific stocks in the trust.” (Id., Syl. para. 6.)
The duty of a trustee to exercise judgment independent of the wishes of the beneficiaries, especially of a spendthrift trust, was recognized in Loud v. Union Trust Co., 313 Mo. 552, 281 S. W. 744. There, failure to consult with trust beneficiaries before selling trust assets was held not to indicate bad faith. The fact that the trust was in the nature of a “spendthrift trust” indicated to the Missouri court that “it was the intention of the testatrix to substitute the judgment of the trustee for that of the beneficiaries in the management and sale of the trust estate.” (313 Mo. at 609.)
A similar rule was applied in In re Equitable Trust Co., 26 Del. Ch. 203, 26 A. 2d 241, the court finding no requirement that the trustee consult with the beneficiaries before selling trust property, where the will granted broad powers to the trustee and contained no notice requirement.
It was also applied to a clause authorizing a discretionary invasion of principal for the benefit of an income beneficiary in Murray, Appellant, 142 Me. 24, 45 A. 2d 636. It was there contended that the trustees were entitled to rely on the good faith of the testator’s widow in making a modest request — one which her late indulgent husband would surely have granted. The contention was rejected: “There can be no delegation of discretion to the beneficiary, and the trustees are bound by the instructions of the testator in his will, rather than by an assumption that he would not expect them to be so bound.” (Id. at 30.) The trustees were surcharged for their reliance on the beneficiary, the court saying:
“Here, the trustees did not use their own discretion. They left the determination to the beneficiary, and thereby surrendered their own discretion to her. They did not use their own judgment.” (Ibid.)
Voting stock, as we see it, is no different from the purchase or sale of assets, the invasion of principal, or 'any other aspect of the administration of a trust. Where discretion is vested in a trustee, it is the trustee’s discretion which must govern and not that of the beneficiaries. Scott on Trusts § 193.1, puts it this way:
“Where shares of stock are held in trust, the trustee may attend meetings of the shareholders and vote at such meetings as holder of the shares. In voting the shares he is under a duty to vote in such a way as to promote the interests of the beneficiaries. The trustee has discretion whether and how to vote, and if he does not abuse his discretion the court will not interfere.” (See also, cases noted therein.)
Illustrative of this principle and strikingly parallel to the present litigation are two Alabama cases involving an intrafamilial struggle for control of the Ingalls Iron Works Company. The company was founded in 1909 and grew into a multi-million dollar, multicorporate structure under the guidance of its founder, Robert I. Ingalls, Sr. Over the years some 40% of the company’s stock was placed in seven different family trusts. The trustees of each differed, but together included Mr. and Mrs. Robert I. Ingalls, Sr., Robert I. Ingalls, Jr., the First National Bank of Birmingham and M. F. Pixton (an unrelated individual). The income beneficiaries of six of the trusts were the minor children of Robert, Jr., and these trusts were involved in Ingalls v. Ingalls, 357 Ala. 521, 59 So. 2d 898. Robert, Jr., was the beneficiary of a seventh trust, involved in First Nat. Bank of Birmingham v. Ingalls, 257 Ala. 536, 59 So. 2d 914. He also owned some 30% of the company’s stock outright.
The two Roberts worked together in the company (including its subsidiaries) for several years, as officers and directors. In 1948, however, they had a falling out and Robert, Sr., as chief executive officer, discharged his son from all positions in the company except that of director. The directorship was subject to vote of the stockholders, including the family trusts. Robert, Jr., in an effort to regain his position in the company and acquire control over it, instituted a number of suits. One of them was Ingalls v. Ingalb, supra, in which he sought to remove the other trustees of six of the trusts on allegation that they wrongfully withheld income from his daughters, wrongfully invested and used trust assets, and exhibited hostility towards Robert, Jr., their co-trustee. The withholding of income and wrongful investment charges do not concern our issue here, except for the tests laid down for removal of a trustee:
“It has been said that a court should be more reluctant to remove a trustee appointed by the settlor than one selected by itself. In re Bailey’s Estate, 306 Pa. 334, 159 A. 549; Shelton v. McHaney, 343 Mo. 119, 119 S. W. 2d 951; Willson v. Kable, 177 Va. 668, 15 S. E. 2d 56. See Scott on Trusts, § 107.1.
“The removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property. In re Crawford’s Estate, 340 Pa. 187, 16 A. 2d 521; In re Hodgson’s Estate, 342 Pa. 250, 20 A. 2d 294; Chambers v. Mauldin, 4 Ala. 477; Satterfield v. John, 53 Ala. 127. This is especially true where the trustee is named by the settlor. In re Crawford’s Estate, supra; Taylor v. Errion, 137 N. J. Eq. 221, 44 A. 2d 346, affirmed 140 N. J. Eq. 495, 55 A. 2d 11.” (257 Ala. at 527.)
One of the charges made against the trustees was that they voted trust shares in favor of directors nominated by Robert, Sr., at his instigation. Of this charge the court said:
“The Bank, Mrs. Ellen Gregg Ingalls and M. F. Pixton, as trustees, were confronted with the problem of so voting the stock of Ingalls Iron Works Company held by the several trusts of which they were trustee as to best insure the proper conduct of the business of that company, inasmuch as in some of the trusts the entire corpus consisted of its stock and such stock constituted the most valuable part of the corpus of all of them. The Ingalls Iron Works Company must continue to prosper and pay dividends on its stock or the very lifeblood of the trusts will be lost. In voting to continue the management which unquestionably had led the company into its strong financial position, we do not think it can be said that this course was pursued under the domination and control of Mr. Ingalls, Sr., to the detriment of the trust estates.” (Id. at 532-3.)
In the second case, First Nat. Bank of Birmingham v. Ingalls, supra, Robert, Jr., sought removal of the bank as trustee of the seventh trust on grounds which included its allegedly malicious agreement to vote him out of his directorship. The court noted that “[t]he bank was confronted with the necessity of determining whether it was to the best interest of Ingalls Iron Works Company and accordingly of the trusts to have Robert I. Ingalls, Jr., serve on the Board of Directors of the company. The bulk of the assets of the trusts consisted of shares of capital stock of Ingalls Iron Works Company.” (257 Ala. at 545.) The bank explained its vote by saying that it thought the welfare of the company, and hence of the trusts, would be best served by retaining the present management under which the company had prospered, and the removal of Robert, Jr., who was a source of dissension. The court observed of this:
“The foregoing statement has been considered with care. We see nothing in it to indicate any malicious or willful disregard of duty. The concern of the bank as trustee appears to have been what was in its sound judgment for the best interest of the trust estate. Conceding for the sake of argument that it should have reached another conclusion, we do not think that its action in this matter should be imputed to bad feeling or improper motive. ... It was the duty of the bank to determine in its best judgment what was for the best interest of the trust estate in all its aspects rather than what one beneficiary might conceive to be his personal interest. And this was especially true when in the judgment of the bank accordance with the personal wishes of one beneficiary might result in loss to the trust estate as a whole. In view of the opinion of the bank that the presence of Robert I. Ingalls, Jr., on the Board of Directors of Ingalls Iron Works Company would not be for the best interest of the trust estate, it would have been a violation of the bank’s duty as trustee to have voted to place him on the board.” (Id. at 545-6. Emphasis added.)
The result in each case was a reversal of the lower court’s order removing the trustees. Their job was to see to the best interests of each trust estate. In voting stock held in the trust, they were to vote for management which would in their best judgment best serve the company. And this was so despite the fact that their decision ran directly contrary to the personal wishes of a beneficiary of one of the trusts, who was also a co-trustee. As the court there said, “[t]he best interests of the trust estates must not be confused with the personal welfare of Mr. Ingalls, Jr.” (257 Ala. at 535.)
How, then, in the face of this universally accepted rule, did the trial court in this case come to the conclusion that the trust beneficiaries should be able to tell their trustee how to vote stock in their trusts? The only basis suggested is the language found in Article Three of the inter vivos trust in which Marcellus declared that one of his purposes in creating it was “to create a present interest in the beneficiaries herein named in the Wichita Eagle, to the end that they will desire to perpetuate the same in the Murdock family.” The trial court apparently took that language to mean that anything a beneficiary proposed which indicated an interest in the operations of the paper was ipso facto in furtherance of the purpose of the trust, and must therefore control. We think such a construction puts altogether too much emphasis on an isolated, and to us ambiguous, portion of the instrument.
The parties are in severe disagreement as to what the phrase “present interest” in the Eagle means. The bank suggests that the phrase is used in a legal sense of conveying a present financial interest. Marcellus’ motivation in using the phrase, it suggests, was to express a purpose connected with life so as to avoid the estate tax consequences attendant upon making a gift in contemplation of death. The beneficiaries, on the other hand, put their emphasis on the word “interest,” and urge that Marcellus used it in the sense that he wanted his beneficiaries to be “interested” in the affairs of the Eagle.
Although, as will be discussed, we do not think it necessary to resolve this particular semantic struggle, we think on balance the bank has the better of it. The argument of the beneficiaries, it seems to us, leaves too many unanswered questions. In the first place, if this phrase was to be the touchstone of intent and the light guiding all the trustees’ actions in administering the trust, why was such cryptic language employed? It would have been a simple matter for the expert draftsman of the inter vivos instrument to have spelled out such an intent in unambiguous language. At the very least the instrument could have suggested means by which the beneficiaries’ “interest” in the paper was to be cultivated by the trustees.
Secondly, the will contained no comparable expression of purpose. If such an expression was to be the dominant clause and ultimate guide to those administering his assets after he died, why was it omitted from those trust provisions which would outlive him by a full fifteen years? In the inter vivos trust it was almost surplusage as a guideline, since he himself was originally a trustee, and after resigning was nevertheless in a position to furnish personal guidance as to his intention. Under that instrument there would be only the two years after his death during which the trustee would be required to look to the trust instrument to find out what Marcellus’ intentions were. We find it hard to believe that he would insert a provision intended to express an overriding puipose for that limited period, yet omit any such provision for the fifteen years of the testamentary trusts.
Thirdly, the trust was drawn in 1941, and any intended “present interest” of the beneficiaries must have come into being at that time. If he really expected in 1941 that his beneficiaries should take a present “interest” in the Eagle, why did he take no personal action to encourage their participation? Yet the record shows that none of the beneficiaries took any active part in the affairs of the Eagle except Marsh, who served only as a director. Other members of the family may have displayed an academic interest, or held jobs briefly while in school, but none, so far as the record shows, exhibited any inclination toward a newspaper career. The only member of the Murdock family who was really active was Britt Brown, who of course was not a beneficiary. By 1966, when Marcellus drew his will, his family’s “interest” in the Eagle for the past twenty-five years must have been abundantly clear.
The reason we do not think it necessary to determine what Marcellus meant by the disputed phrase is that the intent of a donor or testator is not to be determined from a single clause standing alone, but from the four comers of the instrument. We have but recently reiterated our long-standing rule:
“The paramount rule of construction in the interpretation of provisions in a will, to which all other rules are subordinate, is that the intention of the testatrix as garnered from all parts of the will is to be given effect, and that doubtful or seemingly inaccurate expressions in tire will shall not override the obvious intention of the testatrix. (Schauf v. Thomas, 209 Kan. 592, Syl. para. 2, 498 P. 2d 256; In re Estate of Truex, 205 Kan. 169, Syl. para. 1, 468 P. 2d 237.) In construing a will the court should place itself as nearly as possible in the situation of the testatrix when she made the will, and from such a consideration and from the language used in every part of the will the court should determine as best it can the purposes and intentions of ,the testator as gleaned from the language used.” (In re Estate of Hannah, 215 Kan. 892, 897, 529 P. 2d 154.)
In an earlier day we said that the rule was that “to ascertain the character and extent of a devise of real property all the provisions of a will pertaining thereto must be read and construed together, not by giving controlling significance to one of the terms of the devise and ignoring the others.” (Hinshaw v. Wright, 124 Kan. 792, 262 Pac. 601, Syl. para. 1.)
Putting aside, therefore, the troublesome “present- interest” clause, we look to the balance of the two trust instruments. We find in each, among the trustee’s powers recited above: § h, giving the trustee an owner’s control over the 'trust property; § j, giving the trustee the right to vote stock in the trust; and § k, giving the trustee the broadest possible authority in handling the trust estate in general.
By contrast, the beneficiaries’ interest is strictly limited:
“During the entire term of the trust, or trusts, as herein created, the whole title to the trust fund or funds, both legal and equitable, in fee, and all parts of any of them, is and shall be vested solely and absolutely in the Trustees, and no interest therein whatsoever is or shall be vested in any of the beneficiaries thereunder, it being the intention of the Donor that the only interest which the beneficiaries hereunder shall have is personal property only, consisting of the right and power to enforce the due performance of the provisions of this trust agreement.”
This provision is followed by conventional “spendthrift” language, making -the beneficiaries’ interest unassignable either by voluntary act or by operation of law. The bank, in its discretion, is authorized to invade the principal of the trust for any beneficiary, but the paragraph authorizing such invasion goes on to say, "Nothing in this paragraph contained shall create any legal or equitable rights in any beneficiary or any other person.”
All such provisions are wholly inconsistent with the concept that the beneficiaries are to have any control at all over the man agement of the trust estate. As pointed out in Loud v. Union Trust Co., supra, the whole idea of a spendthrift trust is to substitute the judgment of the trustee for that of the beneficiary.
It is true that Marcellus expressed a hope that the paper would be continued as a family institution. Yet in giving directions to his trustee he employed only precatory language, both as to retention of Eagle stock and its disposition:
“In depositing hereunder an interest in the newspaper known as the Wichita Eagle, the Donor expects that this interest in this family owned institution will be retained in the trust until such time as the family may dispose of the property, in which event the Donor desires that the Trustees hereunder join with the other members of the family and dispose of the interest in the property which may be held under the terms hereof at such time.” (Emphasis added.)
The language employed, appearing in substance in both the trust and the will, reflects Marcellus’ realization that his family — including his collateral relatives — might well decide to dispose of the paper before the trusts ended. (In fact, the paper was sold in the spring of 1973.) We cannot read his intention to create a “present interest” in his beneficiaries in 1941 or his “expectation” that the paper might be retained in the family as overriding the express provisions of both instruments conferring the broadest possible discretionary powers on the trustee.
We think, therefore, that plaintiffs misconceived their position when they made their original demands as “owners” of the stock held in their trusts. It is true that the inter vivos trust would terminate two years after Marcellus’ death, but the testamentary trusts would go on for fifteen years. Under either document the income beneficiaries would receive the corpus of their respective trusts only if living on the termination date. Alternative dispositions were made in case of death, and contingent beneficiaries were named. The uncertainties of life in our society being what they are, none of the beneficiaries could be assured that they would ever be “owners” of any trust assets until the trusts terminated.
If the beneficiaries could not, as “owners,” control the trustee’s discretion in voting, were they entitled to enjoin its proposed vote as an abuse of discretion? They place heavy reliance on the pretrial order of the administrative judge, directing that as to the inter vivos trust the stock “shall be voted in each individual trust for the best interests of the beneficary of such individual trust.” The same concept was incorporated into an order by the trial judge dealing with the stock in the estate.
They interpret “for the best interests of the beneficiary” to mean “as the beneficiary wishes.” That, as we have seen, misconceives the respective roles of trustee and beneficiary under a spendthrift trust. Marcellus could, of course, have provided that the beneficiaries’ personal wishes should control; but he did not. By the same token he could have made the inter vivos trust terminate on his death and given the beneficiaries immediate control of the stock; again he did not. The whole purpose of a trust is to put control of the corpus in the trustee, and not in the beneficiaries.
There can be no quarrel with the pre-trial order below requiring the stock in each trust to be voted in the “best interests” of each beneficiary. But, as was so aptly pointed out in First Nat. Bank of Birmingham v. Ingalls, supra, “[i]t was the duty of the bank to determine in its best judgment what was for the best interest of the trust estate in all its aspects rather than what one beneficiary might conceive to be his personal interest.” (257 Ala. at 545.)
Here, as in the Ingalls cases, the chief asset of each trust was stock in a large, closely held corporation. It was in the best interests of each beneficiary, as a beneficiary, that the corporation prosper, so that the stock might grow in value and the company might pay dividends. Anything promoting this end was in the best interests of each beneficiary; anything detracting from it was contrary to the best interests of each beneficiary. Regardless of what they conceived to be their personal interests, as beneficiaries all the objects of Marcellus’ bounty were united in interest. Hence we find inapplicable K. S. A. 1975 Supp. 58-1205 (b), which deals with situations where a trustee’s duties with respect to one trust conflict with duties owed to another.
The bank appears to have recognized this fact throughout. Asked at trial why the trust committee “arrived at a consensus opinion of what was best for all beneficiaries instead of what was best for the beneficiary of a specific trust,” the bank’s representative replied:
“We are still of the opinion that what is best for all is likewise of benefit to each specific trust and each specific beneficiary.”
As previously recited, when Mr. Kitch attacked the current management of the paper in his letter of October 28, 1970, the bank through its president made a study of the paper’s condition and concluded that it was making more than satisfactory progress. While it remained receptive to suggestions for improvement, the bank took the position that such suggestions should be specific before it would vote to alter the status quo. Whether the bank’s conclusions as to the financial position of the paper were right or wrong is immaterial. The important point is that it took steps to make an informed and independent decision as to what course was best for the paper, and therefore for each trust and each beneficiary. It thereby fulfilled both thé spirit and the letter of its fiduciary obligation.
We therefore hold that the trial court erred in enjoining the voting of stock held by the bank, and in requiring it to vote as requested by the beneficiaries. It was authorized and required by the trust instruments to vote the stock in its discretion. The trial court should not have interfered with that discretion without a showing of an abuse which would result in injury to one or more of the trusts. No such showing was made.
What has been said largely disposes of the plaintiff-appellants’ arguments that the trial court should have removed the trustee for breaches of trust “implicit in the Court’s findings.” Whether a trustee should be removed is a question addressed to the sound discretion of the trial court. K. S. A. 1975 Supp. 59-1711; In re Estate of Osborn, 179 Kan. 365, 295 P. 2d 615; Achenbach v. Baker, 151 Kan. 827, 101 P. 2d 937; 90 C. J. S., Trusts, § 231.b; Scott on Trusts, § 107.
As was said in Ingalls v. Ingalls, supra, “[t]he removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property. Further, “[t]his is especially true where the trustee is named by the settlor.” In addition to the authorities cited in Ingalls, see, Beichner Estate, 432 Pa. 150, 247 A. 2d 779; Sternberg v. St. Louis Union Trust Co., 163 F. 2d 714 (8th Cir. 1947), cert. den. 332 U. S. 843, 92 L. Ed. 414, 68 S. Ct. 267; Hartt v. Hartt, 75 Wyo. 305, 295 P. 2d 985.
This was the standard adopted by the trial court in its conclusion of law No. 13: “The removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property. Such is not the instant case and the trustee has not breached its duties in such a way as to warrant removal.” In their brief before us the plaintiffs concede that “[a]pplying these standards we would have to agree that this Court should not attempt to override the discretion of the trial court.” Their whole argument is that the standard is wrong, and therefore this court should exercise its own discretion independently of the action of the trial court. This we cannot do. The trial court applied the correct standard. Even though it found a breach of duty in the trustee’s voting proposal (which this court finds erroneous) it nevertheless refused to remove it. We cannot find an abuse of the trial court’s discretion in so holding.
Other claims of breach of trust urged upon us we find even less substantial. E. g.: (1) As explained above, the voting proposal violated neither the terms of the trust nor the court’s order that the trustee vote the stock in each trust in the best interests of each respective beneficiary. (2) A letter to all beneficiaries and their counsel advising them of the bank’s intention to vote for existing management was also sent “blind” to the officers, directors and shareholders of the paper. We are unable to attribute any sinister motive to this procedure or find any breach of trust. Management had a legitimate interest in knowing whether upheavals were ahead, and the smooth operation of the paper was in the interest of all trusts. The trial court went no further than to require that future “outside” contacts of a like nature be made known to the beneficiaries. There was no abuse of discretion in refusing to impose more severe sanctions. (3) The bank continued to carry the paper’s commercial account, as it had during Marcellus’ lifetime. Any “conflict of interest” from this routine relationship was minimal; there was no trafficking in the assets of the trusts as there was in the cases cited by plaintiffs. Further, the situation was certainly contemplated when Marcellus drew the trust in 1941 and the will in 1966. Conflicts known to the settlor when he names the trustee are generally regarded as not affording grounds for removal. See Scott on Trusts, § 107.1; Restatement of Trusts, Second, § 107, comment †; Shelton v. McHaney, 343 Mo. 119, 119 S. W. 2d 951; Rosencrans v. Fry, 12 N. J. 88, 95 A. 2d 905. The trial court, in its conclusion No. 12, saw a potential for conflict but not enough to warrant removal. We cannot say this decision amounted to an abuse of discretion. In addition, even if this ground had been good it is now moot, since the trusts no longer own any stock in the paper and the bank no longer has the paper’s account.
A word needs to be said about efforts to sell the newspaper. Plaintiffs contend that the bank violated its alleged duty to keep the paper in the family by neglecting to restrain its co-trustee Marsh from his sales efforts, and by urging a sale of the paper. There is no doubt that after Marcellus’ death Marsh was anxious to sell— and he was not alone. Victor Delano, in fact, solicited and in March, 1971, received a firm offer from a newspaper chain to buy the paper for $24,200,000 in cash, stock and notes. This offer was communicated to all stockholders, including the bank. Marsh urged acceptance. The bank relayed the offer to all beneficiaries without recommendation and polled them as to their views. Upon meeting objections, the bank refused the offer.
There were, in fact, many negotiations for sale of varying degrees of seriousness. Britt Brown testified that in 1962 Marcellus himself had solicited three offers for the paper, all of which were placed in the minutes of the corporation and rejected. Since Marcellus’ death Brown had received at least three unsolicited inqúiries from newspaper chains. Representatives of newspaper chains apparently put out feelers at every publisher’s convention. Mr. Kitch, plaintiffs’ counsel, indicated by questions asked in a deposition in January, 1971, that he himself had already ascertained by “an exposure of this property for sale” that $12,000,000 would be a top price for the paper, and had so informed his clients. (This was some two months before the $24,200,000 offer secured by Delano.)
We are, frankly, unable to see how the bank’s participation — if it can be called that — in these activities constituted a breach of trust. The paper was a prime target for chain acquisition and offers and negotiations were in the air, so to speak. The bank would have been hard pressed to have stopped them even if it had felt obliged to do so. The fact remains that the record does not show that the bank initiated any negotiations or that it urged a sale. The most it did was to relay to the beneficiaries the one firm offer made to it, and it would have been derelict in its duty had it not done so.
In short, even if this court were now faced with the task of determining de novo whether the bank should be removed as trustee we could find no grounds for doing so.
The plaintiffs’ claim that the bank should be individually liable for their attorney fees is disposed of by our holdings above. The trial court on this issue found:
“After examining the briefs of counsel, it is the finding of the Court that the First National Bank in Wichita, Trustee, did act as Trustee for many years without complaint from any of the parties to the trust and that upon complaint the Trustee did seek legal advice from a reputable law firm. In accordance with said advice the Trustee continued to maintain the trust and no evidence was presented at the trial which warranted removal of the Trustee for breach of its duty. Different avenues of approach were certainly open to the Trustee but its choice of action was not so arbitrary and capricious as to warrant a surcharge of fees against it. The matter of surcharge is a drastic remedy and should only be applied when there has been a willful disregard of trust duties and [this] certainly was not the case in the instant action. The petitioners’ motion for surcharge is overruled.”
Surcharge is a remedy designed to make the trust estate whole, primarily where losses have been incurred through the negligence or bad faith of the trustee. Scott on Trusts, §§ 201-205; 90 C. J. S., Trusts, § 393. Here, first of all, there was no breach of trust. Secondly, no loss to the assets of the estate is alleged; appellants seek only to recover their attorney fees. Surcharge is thus inappropriate since, even if a breach is committed, a trustee “is not subject to a surcharge for a breach of trust which results in no loss.” (Scott on Trusts, § 205.) Moreover, attorney fees are not generally allowed unless authorized by statute (In re Estate of Murdock, supra, Syl. para. 7), and have been denied under similar circumstances. See, Moser v. Keller, 303 S. W. 2d 135 (Mo. 1957); Wanamaker's Trust Estate, 340 Pa. 419, 17 A. 2d 380; Gavin v. Miller, 222 Ind. 459, 54 N. E. 2d 277.
Our holding on the primary issue also disposes of the beneficiaries’ claim that the trustee should have been denied its compensation and expenses. The trustee is entitled to an allowance for those items under K. S. A. 59-1717 and under the express terms of both the inter vivos trust and the will. See, Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899; In re Estate of Gustafson, supra; Henshie v. McPherson & Citizens State Bank, supra.
In Murdock I we disposed of the question of the executor’s expenses in that case, directing a remand for determination by the probate court. We specifically said that “the executor properly appeared throughout in defense of the estate.” (213 Kan. at 853.) In this case the bank successfully defended itself against plaintiffs’ efforts to have it removed as trustee of plaintiffs’ trusts under both instruments. It is entitled to its expenses in making such a defense. Ingalls v. Hare, 266 Ala. 221, 96 So. 2d 266; In re Trust Created Under Will of Freeman, 247 Minn. 50, 75 N. W. 2d 906; 90 C. J. S., Trusts, § 284.
The allocation of those expenses presents another problem. Plaintiffs repeatedly disavowed any attempt to remove the bank as trustee for- Marsh Murdock or Victoria Bloom, and as noted above, Marsh and Victoria were not allowed to participate in the trial below. Victoria has nevertheless been required to appear as an appellee in this court to urge that no part of the expenses of litigation in this case be assessed to her trust’s share of the residuary estate. We think she is right in her position, and that neither her share nor that of Marsh Murdock is properly chargeable with such expenses. Counsel for plaintiffs conceded as much on oral argument. Although the record is somewhat unclear on this issue, we read the trial court’s orders as achieving this result.
A related issue is the right of plaintiffs to have their own attorney fees paid out of their respective trusts. The bank urges that such an allowance would defeat the spendthrift provisions of the trust, and is not authorized by statute. While the argument has much merit, the court has concluded such fees are allowable.
In Murdock I, we disallowed attorney fees for those prosecuting and defending the widow’s claim against this estate (except the executor), but we did recognize:
“In a meritorious action brought to construe a will, attorney fees are allowable under the provisions of K. S. A. 59-1504 as costs of litigation where the services of the attorney have been beneficial to the estate or are necessary for proper consideration of the will.” (In re Estate of Murdock, supra, Syl. para. 8.)
In this case the initial petitions revealed a controversy over the parties’ respective rights and duties under the will. The defendants’ response to the first petition asserted that it “involves construction of the Last Will and Testament of decedent” as well as the inter vivos trust instrument. By way of counterclaim Marsh and the bank requested “the advice and instruction of the Court as to the duties and rights of the parties under the Will and inter vivos trust instrument.” The primary issue litigated was where discretion was vested under the instruments. This involved construing the instruments — including the will — and would seem to come under the rule recognized in Murdock I, quoted above. It is true that plaintiffs hoped to reap personal benefit from their suit, but that does not mean that the construction of the instrument conferred no benefit on their respective trusts. See, In re Estate of Showers, 207 Kan. 268, 485 P. 2d 299; Singer v. Taylor, 91 Kan. 190, 137 Pac. 931. Here, the action has settled the respective roles of the trustee and beneficiaries, and for such benefit the plaintiffs should be allowed their fees, payable out of their respective trusts or share of the estate.
Finally, the bank urges on its cross-appeal that the trial court erred in holding that it held the estate shares as trustee rather than as executor. In view of our holding that the bank should not in any event have been required to vote the shares except as dictated by its own sound discretion, this issue may seem moot. In fact, the main issue in this case has to some extent become moot, through the passage of time and through the results which flowed from the order below. The inter vivos trust terminated by its terms in 1972, and the assets were distributed to the beneficiaries. Under the decree below the bank voted the estate shares allocated to plaintiffs for their nominees. Plaintiffs, in conjunction with Britt Brown, thereby acquired control of the paper and by early 1973 they had sold it. The bank joined in the sale and therefore no longer holds any Eagle stock. Hence the right to vote that particular stock, the primary issue which precipitated this suit, is no longer a matter of active concern. Nevertheless, that issue will govern the future administration of the trusts, and is clearly relevant to the issues of removal, surcharge, and the trustee’s compensation and expenses, and for that reason had to be decided.
As to whether the bank held the estate shares as executor or trustee, the trial court’s actual holding is unclear. Its order on the primary issue of voting power, however, assumed that the estate shares were subject to the trust provisions of the will. (By extension they were held to be also subject to the provisions of the inter vivos trust.) As a subsidiary of the main issue this question likewise bears on the issues of removal, surcharge, etc., and likewise requires determination.
When the same person is named executor and trustee it is often difficult to determine when the fiduciary shifts roles. As one observer noted, “it invariably [takes] place in the dead hours of the night.” Birrell, The Duties and Liabilities of Trustees 13 (1896). Despite fine distinctions made, the general rule is:
“. . . The normal orderly procedure would seem to be that the executor account and be discharged, and that thereafter the same party qualify as trustee and begin the trust administration. This would make the break between administration as executor and as trustee distinct. But in many cases the trust property consists of a part only of the estate, or for other reason it is desirable' to set up the trust before the estate accounting. It should be possible for the executor to cease to hold given property as such and to begin his administration of it as trust property, if the intent to bring about this effect is clearly indicated in any way. Something more, however, than a mere mental decision by the executor-trustee should be required. He should in some unequivocal way set apart and mark the trust res.” (Bogert, Trusts & Trustees, 2d Ed., § 583 at 229-30.)
See also, In re Warren's Estate, 74 Ariz. 319, 248 P. 2d 873; Jones v. Broadbent, 21 Idaho 555, 123 Pac. 476; Monk v. Everett, 277 Mass. 65, 177 N. E. 797; In re Schield’s Estate, 250 S. W. 2d 151 (Mo. 1952).
Under Marcellus’ will, the “rest, residue and remainder” of his estate was left to the trustees. The rationale of the general rule is apparent: it is impossible to determine the amount of a residuary estate until the liabilities of the estate are determined. One of the prerequisites of a trust is, of course, a definite corpus. Shumway v. Shumway, 141 Kan. 835, 44 P. 2d 247.
That determination was unduly complicated in this estate by the questions resolved in Murdock I; the size of the residuary estate could not be determined until the executor knew whether Paula would take one-fifth, one-half, or nothing. Indeed the trial court recognized the dilemma in ruling on a related matter:
“. . . The assets of the trust created in the above-referenced estate have not been finally determined and until the said assets have been determined the administration of the separate and individual trusts is hampered. The main issue before the Court and the only one to which this matter is being directed is whether or not the Executor failed in its duties to apply to this Court to proceed with litigation in the Federal Court. By reason of the fact that the trusts have not been definitely ascertained and by reason of the fact that the Executor has a duty to amass assets in the estate, the bank was acting properly and with the advice of its counsel in proceeding to ask directions from the Probate Court. When the matters in the trust have been finally determined, then each trust is to be separately administered and any disputes insofar as the separate trusts are concerned are to be brought to this Court for directions.”
Within slightly over a month after our opinion in Murdock I, the bank filed a petition for qualification as trustee and on April 8, 1974, less than three months after Murdock I, the probate court ordered the trusts partially funded. We fail to see how the transfer could have occurred much sooner.
Appellant beneficiaries misread K. S. A. 1975 Supp. 58-904 as establishing the assets of the trusts at the date of death. Subsection (a) of that statute provides:
“(a) An income beneficiary is entitled to income from the date specified in the trust instrument, or, if none is specified, from the date an asset becomes subject to the trust. In the case of an asset becoming subject to a trust by reason of a will, it becomes subject to the trust as of the date of the death of the testator even though there is an intervening period of administration of the testator’s estate.”
Thus the trust arises for income purposes at the date of death. That does not mean that during the period of administration the asset itself is held by the trustee as such. The clear implication of the statute is that the matter is one of bookkeeping until the estate is actually settled. It is in accord with the general principle that assets remain in the probate estate until the residue is determined and a transfer to the trustee effected. See, Phair v. Federal Deposit Ins. Corporation, 74 F. Supp. 693 (D. N. J. 1947).
Matter of Bird, 241 N. Y. 184, 149 N. E. 827, relied on by plaintiffs, is not contrary to our views on this issue. That was a dispute between life tenants and remaindermen, the question being whether an extraordinary dividend declared during the period of administration should go to income or principal. The court held it was income, applying the general rule (reflected in our statute). In so holding, however, the court recognized that where a residuary estate is to be appraised and divided in kind the trusts so determined would come into being only after the division was made, citing United States Trust Co. v. Heye, 224 N. Y. 242, 120 N. E. 645.
Here we think it significant that under the will (as under the trust) the trustees were not necessarily required to allocate any Eagle stock to any one of the trusts. Under Article Third of the will Marcellus provided that “[m]y trustees shall divide the trust property into equal separate shares. . . .” Under paragraph (g) he further provided that “[i]n making distribution in property the Trustees shall not be required to distribute to any beneficiary an aliquot part of any security or property comprising the trust estate at the time of distribution, and the judgment of the trustees as to what shall constitute a proper division among them, and their selection and valuation shall be binding and conclusive upon all beneficiaries hereunder.”
Thus it was theoretically possible for one or more of the trusts to have no Eagle stock at all. Such a result was, of course, not practical because of valuation problems, coupled with the fact that the Eagle stock constituted the bulk of the estate. Ease of administration, if nothing else, would dictate a pro rata division of the estate’s chief asset when the time came. Nevertheless, the possibility points up the fallacy involved in saying that the Eagle stock passed into the trusts immediately upon the death of Marcellus, and even more the error involved in saying that the beneficiaries became “owners” of any Eagle stock by virtue of his death.
We therefore conclude on this issue that even though the beneficiaries may have become entitled to income from the Eagle stock upon the death of Marcellus, until the residuary estate was deter mined and the trusts were funded the bank held the stock in its capacity as executor, rather than as trustee.
In accordance with what has been said, the judgment below is affirmed (a) insofar as it refused to remove or surcharge the trustee; (b) insofar as it determined that all parties should be allowed fees and expenses; and (c) in its allocation of those fees and expenses. It is reversed insofar, as it required the trustee to comply with the dictates of the beneficiaries, and insofar as it held (at least by implication) that title to any Eagle stock passed from the bank as executor to the bank as trustee before the testamentary trusts were funded.
approved by the court.
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The opinion of the court was delivered by
Fromme, J.:
This is an interlocutory appeal by the prosecution pursuant to K. S. A. 22-3603 and Rules of the Supreme Court, Rule No. 17 (214 Kan. xxxiii). The appeal is from an order suppressing the use of quantities of marijuana and cocaine as evidence in the prosecution of William Arles Youngblood for possession of such controlled substances after having been previously convicted of the possession of marijuana. These controlled substances were suppressed by the district court on a finding that they were illegally seized in an unlawful general exploratory search of a house without first obtaining a search warrant.
The state contends these controlled substances were lawfully seized without the necessity of a search warrant. The reasoning employed to reach this conclusion is that the officers were lawfully in the house to execute an arrest warrant on Youngblood, that while in the house they perceived the controlled substances which were in plain view and that the officers were justified in seizing the drugs at that time because of exigent circumstances.
The appellee Youngblood accepts the premise that the officers were lawfully on the premises to execute a warrant for his arrest. However, he asserts the drugs were not in plain view of the officers making the arrest and were discovered and seized in a general exploratory search of the house without a search warrant and without exigent circumstances to justify a failure to obtain a search warrant.
The trial court in suppressing this evidence did not make a finding that the drugs were in plain view of the officers making the arrest. Indirectly it found that the drugs were not in plain view by holding:
“. . . I do feel that the search was unlawful. Especially, in respect to the house and going through and picking up this evidence. I think, as I understand the evidence, Youngblood was arrested immediately after the Officer Donaldson entered the house, and he was under control and they were searching him. Anything that happened after that time, in so far as inspecting the house, I do feel is unlawful in the holding of the Chimel case and the cases following it. . . .”
The testimony as to the location of the drugs and whether they were in plain view of the officers was conflicting. There was testimony that the pan of marijuana was under a living room chair with four inches of clearance and not in plain view. The testimony was that the balance of the drugs was found in an unlighted bathroom located some distance from the room in which the arrest was made. There was much additional evidence which raises an inference that the time and place of the arrest were arranged to enable the six or seven officers, who participated in the incident, to make a general exploratory search of the house. The warrant for the arrest of Youngblood was issued on the basis of a complaint of a narcotics agent that Youngblood had given the agent a quantity of marijuana. This was a non-violent crime and Youngblood was not in possession of a dangerous weapon when he was arrested. The execution of such an arrest warrant would hardly justify the display of force and manpower apparent from the evidence in this case. The arrest was made at the home of Janie Thompson, a lady friend of Youngblood. Officers Bash, Lyerla and Duncan of the Galena Police Department took up positions in the alley behind the house. Deputy Sheriff Donaldson who made the arrest was assisted by K. B. I. narcotics agents Santiago, Teeslink and Jones. Agent Santiago did not enter the front door with Donaldson and Jones but went around the house and entered the back door. The three persons in the house when the arrest was made were in the living room. None resisted arrest or had weapons in their possession. The arresting officer knew before the search of the house was conducted that the single shot, heard on entering the house, was fired in the alley behind the house by a member of the Galena Police Department who had stopped and arrested a person fleeing from the back door of the house.
The permissible extent of a search without a search warrant which is incident to a lawful arrest of a person is set forth in K. S. A. 22-2501 as follows:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
In the present case the search of the house went far beyond the area within the arrested person’s immediate presence. It was beyond what was necessary to protect the officer making the arrest from attack. Youngblood made no effort to escape once he was discovered in the living room of the Janie Thompson house. The only fruits, instrumentalities or evidence of the crime for which Youngblood was being arrested was in the possession of the narcotics agent Santiago prior to the issuance of the arrest warrant.
In State v. Garcia & Bell, 210 Kan. 806, 504 P. 2d 172, this court examined the above statute in the light of Chimel v. California, 395 U. S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034. The law setting forth the permissible scope of a search without a search warrant in Kansas, when made incidental to a lawful arrest, is patterned after quoted portions of Chimel. (See State v. Garcia & Bell, supra.) A general exploratory search of a house under such circumstances is not considered reasonable.
The state relies heavily on Ker v. California, 374 U. S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623; State v. Wade, 206 Kan. 347, 479 P. 2d 811; and State v. McClelland, 215 Kan. 81, 523 P. 2d 357. It distinguishes State v. Schur, 217 Kan. 741, 538 P. 2d 689; State v. Boyle, 207 Kan. 833, 486 P. 2d 849; and State v. Yates, 202 Kan. 406, 449 P. 2d 575, cert. dis. 396 U. S. 996, 24 L. Ed. 2d 461, 90 S. Ct. 496.
However, it would serve little purpose to discuss these cases in the light of the facts of our present case. On a motion to suppress illegally seized evidence the judge shall receive evidence on any issue of fact necessary to determine the motion, and the burden of proving that the search and seizure were lawful shall be on the prosecution. (K. S. A. 22-3216 [2].) The trial court in the present case found the officers conducted a general exploratory search and it refused to find that the evidence of the additional crime was in plain view of the arresting officers. The argument of the state on appeal is based upon the premise that the evidence was in plain view. Such a premise is not sound in view of the finding of the trial court. If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court. (1-3 Hatcher’s Kansas Digest, Perm. Supp [Rev. Ed.], Criminal Law, § 438, pp. 326, 327.)
The judgment is affirmed.
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Per Curiam:
On July 28, 1976, Peter James Farabi, II, voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is by order of the court
CONSIDERED AND ACCEPTED.
The Clerk of this Court is ordered and directed to mark the certificate void and to strike Peter James Farabi, II’s, name from the roll of attorneys.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by Diane Parish (plaintiff-appellant), from the trial court’s order in a divorce action which awarded custody of the parties’ two children to W. Scott Parish (defendant-appellee), divided the parties’ property but denied alimony to her. The appellant alleges the trial court abused the exercise of its power of discretion in these three areas.
W. Scott Parish (hereafter Scott) and Diane Parish were married on July 30, 1962. Two sons were bom to this marriage; Brad, age twelve and Bart, age six. When the Parishes were first married, Scott was a pharmacy student and Diane was the main breadwinner of the family. For the lást six years Scott has worked as a pharmacist in Chanute and Diane has not been employed outside the home for quite a long time.
Problems developed in the marriage. The major difficulty was Diane wanted to live an active social life and Scott did not. Scott described himself as a homebody who pretty much liked to stay home. The Parishes would go out maybe one time a week which was not enough for Diane.
In August of 1974, Diane became so dissatisfied with the family life-style that she began a course of nurses training. Communications between Diane and Scott broke down. Diane filed for divorce, but the parties reconciled.
On April 8, 1975, Diane again filed for divorce, on the grounds of incompatibility, requesting custody of the children, an equitable division of property and alimony.
The trial court after hearing the evidence agreed the parties had become incompatible and granted a decree of divorce. Scott was given custody of ¡the two children, subject to reasonable visitation by the appellant. The property was divided. Diane was not awarded alimony.
The appellant has duly perfected this appeal contending the trial court abused its discretion in making these decisions.
The appellant first contends the trial court abused its discretion in awarding the children to the appellee. This court has always recognized the value of maternal love and care where children are of tender age, and absent a finding of unfitness, a mother is ordinarily entitled to the custody of children of tender years. (Schreiner v. Schreiner, 217 Kan. 337, 342, 537 P. 2d 165; Lewis v. Lewis, 217 Kan. 366, 369, 537 P. 2d 204; and St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206.) This rule is applied because in most cases the mother is more available in the home. (Patton v. Patton, 215 Kan. 377, 379, 524 P. 2d 709.)
However, no fixed rule requires that custody of minor children be awarded to their mother rather than to their father. (Lewis v. Lewis, supra at 369; Hardenburger v. Hardenburger, 216 Kan. 322, 532 P. 2d 1106; Moudy v. Moudy, 211 Kan. 213, 505 P. 2d 764; and Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746.) Thus, while the appellee’s answer to the appellant’s divorce petition admitted the appellant was a fit and proper person to have custody of the children, the appellant is not automatically entitled to their custody.
In determining the right of custody of children between parents, the primary consideration is the best interest and welfare of the children, and all other issues are subordinate thereto. (Schreiner v. Schreiner, supra at 342-343; and Lewis v. Lewis, supra at 369.) Which parent will do a better job of rearing the children and providing a better home environment is highly relevant. (Patton v. Patton, supra at 379; and Hardenburger v. Hardenburger, supra.)
No witness testified Scott would not be a good father for the boys. After working nine or ten hours a day, Scott found time to coach baseball, play golf with Brad and take the boys horseback riding and fishing.
On the other hand, the trial court found the appellant was frequenting taverns or private clubs in the absence of her husband, keeping extremely late hours away from home, and leaving public places in the company of other men. On these occasions Scott was home with the boys.
The judgment of the trial court, who is in the most advantageous position to judge how the interest of the children may best be served, should not be disturbed without an affirmative showing of abuse of discretion. No abuse of discretion is shown in the court’s custody award under the facts and circumstances involved.
The appellant next contends the trial court abused its discretion in dividing the parties’ property between them,. Scott’s financial statement showed he had a 1974 income of $32,000. When first arriving in Chanute, the Parishes had nothing in the way of material wealth. When the divorce was filed, the Parishes had a net worth of $75,318. Diane was not awarded alimony, but was given the following items:
“Any cash on hand now in her possession; Items of personal furniture obtained by her as keepsakes from her family;
“Sewing machine, and furniture ordinarily used by the wife;
“Her dishes, china, silverware, and such items as a woman ordinarily brings into a marriage through savings or gifts;
“1972 Buick automobile;
“General obligation bonds of approximate value of $26,000.00;
“Certificate of deposit, approximate value of $5,309.00; and including the diamond ring of the plaintiff.”
The value of this award is well over $33,000.00.
Scott was awarded the family home valued at $38,000, but subject to a $17,298.18 mortgage. He was also awarded the “cash on hand now in his possession,” the household furnishings except those specifically set over to the appellant, his business inventory and equipment, an older automobile, some pharmaceutical stock valued at $320, and a Keough Plan and annuity and mutual funds valued at $7,300. The appellee was further ordered to pay the sum of $650 for the appellant’s attorney fee.
K. S. A. 1975 Supp. 60-1610 (b) directs the court to divide the parties’ property in a just and reasonable manner. The division of property made by the trial court in a divorce proceeding will not be modified or set aside absent a clear abuse of discretion. (Wofford v. Wofford, 214 Kan. 450, 452-453, 520 P. 2d 1278; and Downing v. Downing, 218 Kan. 549, 542 P. 2d 709.)
In determining a just and reasonable division of property, the trial court should take into consideration the following factors: (1) The ages of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source and manner of acquisition of property; (6) family ties and obligations; (7) the question of fault when determined; and (8) the allowance of alimony or lack thereof. (LaRue v. LaRue, 216 Kan. 242, 250, 531 P. 2d 84; and Downing v. Downing, supra at 550.)
In a divorce case, a decision as to care of the minor children, maintenance of the parties, and division of property cannot be made intelligently without regard to the others. (Wofford v. Wofford, supra at 451.) Here the trial court gave the appellee custody of the children, and therefore set over to him the home and furnishings. The appellant was given her personal belongings, a car and the rest of the “liquid” assets the parties had accumulated. The value of the property awarded was about equal. This is within the trial court’s discretion.
The large property award to the appellant was given so she could complete nursing school and begin a job. It is not mandatory a wife be awarded alimony. (K. S. A. 1975 Supp. 60-1610 [c]; Lavery v. Lavery, 208 Kan. 603, 492 P. 2d 1311; Wofford v. Wofford, supra; and McClaren v. McClaren, 214 Kan. 217, 519 P. 2d 720.) The trial court has wide discretion when it comes to matters relating to alimony, and its judgment in awarding alimony will not be disturbed absent a clear abuse of discretion. (Wofford v. Wofford, supra at 452-453.) No such abuse of discretion is shown here.
In Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, abuse of judicial discretion was described as:
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the .action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” (p. 562.)
(See also, LaRue v. LaRue, supra at 249-250; and Trompeter v. Trompeter, 218 Kan. 535, 542, 545 P. 2d 297.)
After a careful review of the entire record we cannot say the trial court abused its discretion in its custody award, in dividing property, or in refusing to award the appellant alimony.
Two evidentiary matters remain to be resolved. Two witnesses testified on behalf of the appellant. They stated they found nothing to criticize in her conduct. The trial court then stated:
. . It really disturbs me to hear wives and mothers testify that they could find nothing to criticize in the conduct of the plantiff that she testified to this morning. They weren’t asked to condemn her but they simply said they found nothing to criticize in her conduct. And to me that substantially destroys the weight of their testimony in their opinion evidence. . . .”
The trial court as the trier of fact is the sole judge of the credibility of witnesses and of the weight to be given the evidence presented at the trial. (LaRue v. LaRue, supra.)
In Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1, it was said:
“A trial court cannot arbitrarily or capriciously refuse to consider the testimony of any witness, but it is not obliged to accept and give effect to any evidence which, in its honest opinion, is unreliable, even if such evidence be uncontradioted.” (Syl. 3.)
(See also, Beard v. Montgomery Ward & Co., 215 Kan. 343, 348, 524 P. 2d 1159; and Jensen v. Jensen, 205 Kan. 465, 470 P. 2d 829.) No abuse of discretion is shown in the trial court’s ruling.
The appellant argues the trial court heard evidence concerning activities subsequent to the filing of the divorce action, but it refused to hear evidence of a fight between the parties after the filing of the divorce action. The trial court admitted evidence of the appellant’s activities subsequent to the filing of the divorce action for the purposes of awarding custody. Parental misconduct, even after filing of the divorce action, may be relevant in awarding custody. (24 Am. Jur. 2d, Divorce & Separation, §788, p. 895; McClaren v. McClaren, supra; and Dalton v. Dalton, 214 Kan. 805, 522 P. 2d 378.) The evidence the appellant attempted to introduce concerning the parties’ fight was not related to the custody question, and the trial court properly ruled it immaterial where the divorce action was based on incompatibility.
In view of our decision, other points raised on appeal become immaterial and need not be discussed or decided.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This is an action by a real estate broker for a commission for selling an apartment complex. The trial court gave the plaintiff judgment on a theory of quantum meruit, and defendants have appealed. Since the property was sold to purchasers admittedly produced by the plaintiff broker, the primary issue is whether the broker has somehow forfeited its commission.
The apartments were owned by the defendant El Matador Apartment Company, a Missouri limited partnership. The defendant Patrick T. Hayes is a general and limited partner of El Matador, and is a resident of Johnson County, Kansas. The other general and limited partner is C. Frederick Brave, a resident of Louisiana, who was not served with process.
Hayes and Brave formed El Matador in December, 1972, to take title to the apartments. Their plan was to buy the complex, lease it to full occupancy, and then sell it. Hayes, the man on the scene in Kansas City, took charge of the partnership’s operations. He was a Missouri licensed real estate broker, and a self-employed real estate investor and mortgage broker. His experience included putting together four limited partnerships (including this one) for investing in commercial real estate in Texas and Missouri.' Brave, the other partner in El Matador, was an architect and developer in New Orleans. He took no active role in the management of the property or in the negotiations for its sale.
Beginning in March, 1973, Hayes attempted to sell the complex. His first efforts consisted merely of placing ads in the Kansas City Star and talking to prospects. As the year wore on his efforts intensified, and he listed the property with at least two brokers. In the fall of 1973 a contract of sale was signed with a potential purchaser, but the deal fell through for reasons not disclosed in the record.
In January, 1974, Hayes was approached by Bill Fitzsimmons, a salesman for the plaintiff corporation, Campbell-Leonard Realtors of Prairie Village. The result was a written listing agreement calling for a 6% commission on a sales price of $355,000. Hayes signed the letter agreement as “Seller.”
Hayes testified that the $355,000 selling price in the written agreement was “unrealistic” and “inflated,” as he had learned from his own efforts to sell at that figure in early 1973. What was important to Hayes was to secure an assumption of first and second mortgages totalling $272,000, to pay the broker’s commission, and to realize net cash for himself and Brave. According to Hayes he told Fitzsimmons in January, when the listing agreement was signed, that his net cash requirement was $55,000. According to Fitzsimmons, Hayes’ figure was $35,000. (That is essentially the only disputed fact in the record, and is not regarded as material by the parties or the court.)
On this basis Fitzsimmons set out to sell the property. He advertised it and showed it to a number of prospects over the next two and a half months, devoting by his account more than 100 hours to promoting the property and negotiating the sale. On March 21, 1974, he showed the property to the eventual buyers, Mr. and Mrs. Robert P. Schwermann.
On April 3, 1974, Fitzsimmons presented to Hayes an unsigned contract prepared by the Schwermanns’ attorney calling for a purchase price of $340,000. Hayes interlineated some changes in the contract and then signed it as a general partner of El Matador Apartment Company. The contract was returned to the Schwermanns’ attorney, who redrafted it, secured Mr. Schwermanns signature, and gave it back to Fitzsimmons for resubmission to Hayes.
On April 11, 1974, the revised contract was submitted to Hayes. He made two additional changes at that time and returned it to Fitzsimmons unsigned. At this meeting Hayes and Fitzsimmons discussed the broker’s commission and at least tacitly agreed to a flat $15,000, rather than the 6% called for in the listing agreement. Hayes was unwilling to pay the full $15,000 in cash on closing, and there was an inconclusive discussion as to how much of it the broker should carry and on what terms.
On April 15, 1974, the contract with Hayes’ latest amendments was signed by the Schwermanns and given to Fitzsimmons for resubmission to Hayes. This was done the same day. Hayes at that time signed the final version of the contract as a general partner. During the conversation he mentioned to Fitzsimmons that he had another prospective buyer interested in the property, and also that he would need to obtain Brave’s signature on the contract.
Hayes signed the contract of April 15 in either three or four counterparts. Despite saying he needed Brave’s signature he delivered at least two signed contracts to Fitzsimmons. Fitzsimmons testified there were at least three:
“Q. One for the Defendant Hayes, one for the Schwermanns, and one for yourself?
“A. Right.”
Fitzsimmons thereupon delivered a signed copy to the purchasers. He testified:
“Q. Did Defendant Hayes understand your going to take this contract to the Schwermanns?
“A. Oh, yes.”
Hayes did not deny this in his testimony, nor is there any claim that he instructed Fitzsimmons not to deliver the signed contract.
Between April 15 and April 24 Fitzsimmons made several attempts to meet with Hayes to settle the matter of the brokerage fee. An appointment on the 18th was broken by Hayes because of another appointment.
On April 24 Hayes informed Fitzsimmons that the Schwermann deal was off — that he had signed a contract to sell to another purchaser. Fitzsimmons relayed this information to the Schwermanns, who promptly recorded their contract.
The end result was that Hayes and his partner Brave, on the advice of counsel, decided to close the contract with the Schwermanns rather than litigate its validity. This they did on May 28, 1974, giving the Schwermanns a warranty deed signed by both Hayes and Brave. In return they received from the Schwermanns; an assumption of the first and second mortgages totalling $272,000; a note for $18,000 secured by a third mortgage; cash of $45,000; and an assignment of $5,000 earnest money previously paid by the Schwermanns and held in escrow by the broker.
When Hayes and Brave refused to pay the brokers commission this suit followed. At trial plaintiff relied on both express contract and quantum meruit theories. The trial court made findings of fact which included those recited above; it rejected plaintiff’s express contract theory but found an implied contract to pay the reasonable value of the services rendered. This it fixed at $15,000, including the $5,000 held in the broker’s escrow account, and rendered judgment accordingly.
The general rule of quantum meruit is set forth in Brakensiek v. Shaffer, 203 Kan. 817, 457 P. 2d 511:
“Where the minds of the parties did not meet as to some of the essential terms of a contract, a party thereto who furnishes material or renders services to the other party, relying on the terms as he understood them and thinking there was an express contract, is entitled to recover what the labor furnished was reasonably worth.”
“Where parties agree for the performance of certain work, and the work is done and accepted, and it appears that there was a misunderstanding as to the price to be paid for it, the law rejects the understanding of each and awards reasonable compensation.” (Syl. 1, 2.)
That was a case in which the seller agreed that the broker would be paid for his services if he obtained a buyer, but no agreement was ever reached as to the amount of the broker s fee. This court held that when a sale was completed to a buyer produced by the broker, the broker was entitled to the reasonable value of his services under a theory of quantum meruit. In the course of the opinion the court observed, “[w]here there is no evidence showing that the services were to be gratuitous the law implies a promise to pay for services performed by one person for another which are known to and accepted by the latter.” (p. 821.)
In this case Hayes, on behalf of the partnership, engaged the services of the broker. There is no contention that he lacked authority to do so. The partnership, knowing of the broker s services, accepted them with Brave’s full participation. There is no suggestion that those services were to be gratuitous — the trial court even found an agreement as to the amount of compensation, with only the time and terms of payment undetermined. Brakensiek, and the cases cited and discussed therein, would appear to be applicable here a fortiori.
Specifically, the long accepted rule with respect to commissions for real estate brokers was recently restated in Winkelman v. Allen, 214 Kan. 22, 519 P. 2d 1377, Syl. 1:
“The general rule is that a real estate agent or broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consummated deal. The latter is subject to a qualification where failure in completion of the contract, or closing title, results from the wrongful act or interference of the principal.”
In this case, of course, there was no “failure in completion of the contract” — the Schwermann contract was closed — so the qualification referred to above has no applicability. The broker produced a buyer who was ready, willing and able to purchase on terms which were ultimately acceptable to the seller, and it was the efficient and procuring cause of a consummated deal. Under the criteria of Winkleman the broker was entitled to a commission; under the rule of Brakensiek the amount of the commission was the reasonable value of the services rendered. Such was the judgment of the trial court.
On what theory, then, do defendants claim that no commission was due? They argue first that they received no “benefits” from plaintiff’s labors for which they should be compelled to pay in the absence of an express agreement. (The trial court, it will be recalled, rejected the express agreement theory.) The argument is based on the fact that the contract they signed on April 24 with Hayes’ other prospect would have netted them $20,000 more in cash, in lieu of the $18,000 note and third mortgage they received under the Schwermann contract. They contend that because they would have preferred the other deal, which was economically more advantageous to them, this one conferred no benefits upon them.
We cannot accept this proposition. Granting that $20,000 cash in hand is worth more than $18,000 payable over a period of years, the fact remains that defendants received gross consideration through plaintiff’s efforts of $340,000. It strains all sense of semantics to say that this was of no “benefit” to them. The benefits they chose to accept were tangible and substantial; that they might have received more elsewhere cannot change that fact.
Their second argument against a quantum meruit recovery is that they didn’t accept the benefits of the bargain “voluntarily,” but did so only under “duress.” The trial court, however, specifically found that plaintiff made no effort to enforce the Schwermann contract, and exercised no duress over defendants to close that contract. Defendants point to no evidence to the contrary, but say that they closed under duress caused by the recording of the Schwerman contract. This could not have occurred, they say, had Fitzsimmons not breached his duty to them by delivering the executed contract to the Schwermanns.
Hayes, however, returned the executed contract to Fitzsimmons with no instructions. He didn’t tell him not to deliver it, and Fitzsimmons understood that he was to deliver it. Had Hayes wished to withhold delivery pending Brave’s approval, it would have been a simple matter for him to retain all copies of the contract until Brave signed, or at least give instructions to Fitzsimmons. He did neither. The trial court found no breach of duty, and we do not believe a finding of breach is compelled by the evidence. (The same analysis disposes of defendants’ “unclean hands” argument. There is no showing here of any willful misconduct, as called for under that defense. See Green v. Higgins, 217 Kan. 217, 535 P. 2d 446.)
More importantly, we are unable to ascertain in this case any element of “duress” as it has been generally recognized by this court. The only duress claimed arose from the simple fact that the Schwermanns recorded their contract. By doing so they made public their claim to an interest in the property. Whether they in addition threatened to sue for specific performance we do not know and do not care. “It is not duress for one to threaten to take such legal proceedings as the law affords to recover damages for claimed injuries.” (Riney v. Doll, 116 Kan. 26, 225 Pac. 1059, Syl. 2.)
The fact remains that defendants, on the advice of counsel, decided to close the contract by deeding the property and receiving the consideration provided for therein. That they decided to do so rather than litigate the validity of the contract is of no moment— it was still the exercise of a free choice.
We have recognized that “[w]hat constitutes duress or business compulsion must depend upon the circumstances of each particular case.” (Evans v. Aylward, 166 Kan. 306, 314, 201 P. 2d 1044.) That was a suit to set aside a release given by one partner to another, and for an accounting. The plaintiff claimed the release was involuntarily given under duress because it was demanded when he was ill and in dire financial straits. This court first observed that plaintiff’s illness was not such as to deprive him of the ability to exercise his free will. As to the alleged financial distress, the court quoted Starks v. Field, 198 Wash. 593, 599, 89 P. 2d 513:
“Contracts, sales, or compromises, made under stress of pecuniary necessity, are of daily occurrence, and if such urgency is to affect their validity, no one could safely negotiate with a party who finds himself in difficulty by virtue of financial adversities.”
We concluded:
". . . Summed up, all plaintiff’s evidence established was that he preferred the immediate settlement on the terms made than the hazard of a lawsuit. Parties are confronted with that problem every day.” (166 Kan. at 317.)
Likewise here, there was no compulsion on the defendants to close the Schwermann contract beyond their business judgment that it was the most advantageous course of action available to them. In the eyes of the law it was a voluntary act. That being so, their acceptance of the benefits of plaintiff’s services was voluntary, and the trial court properly found they should pay the reasonable value of those services.
What has been said largely disposes of this appeal. Defendants, however, devote a considerable portion of their brief to the proposition that the sale of the partnership’s chief asset was not in the ordinary course of business, and that the trial court erred in finding it was. The argument goes to whether Hayes, acting alone, had authority to bind the partnership to the Schwermann contract. It would be a pertinent field of inquiry if Brave had repudiated the contract and plaintiff had then sued on the theory that it had produced a buyer on terms agreeable to the seller. It is not relevant here because, regardless of Hayes’ initial authority, Brave participated in the deed and thereby ratified Hayes’ actions. Cf. Bank v. Schulman, 89 Kan. 182, 131 Pac. 559; Corbett v. Cannon, 57 Kan. 127, 45 Pac. 80. Once the contract was consummated the commission was earned, x-egardless of the contract’s validity while it was still executory.
Finally, plaintiff has cross-appealed from the trial court’s finding that there was no express contract for a $15,000 fee as a result of an oral modification of the written listing agreement. It contends that the time and method of payment was a mere detail which could be supplied by the court under the rule, of reason.
The only purpose of the cross-appeal is to secure prejudgment interest from the date of closing, and that purpose points up the difficulty in plaintiff’s position. Prejudgment interest is payable on money “due.” (K. S. A. 16-201.) The missing element in the commission contract was an agreement as to when and how the commission was to be paid — i. e., when it would be “due.” Hayes was unwilling to pay the full amount in cash, so there was talk of $10,000 in cash and a note for the balance, and even talk of an assignment of the $18,000 third mortgage. Fitzsimmons himself testified that the matter of financing the commission was one he was not fully authorized to settle for his employer (the plaintiff). Two appointments were made but not kept to resolve this one question.
The missing element, then, was one to which both parties obviously attached a good deal of importance; it was more than a mere detail to be supplied by the court. We agree with the trial court that there was an essential element on which there was no meeting of the minds, and therefore no express contract. Hence, prejudgment interest was properly disallowed.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Foth, C.:
Despite a maze' of procedural complexities which tend to obscure it, we think the dispositive issue in this case is whether default judgment was properly rendered in favor of plaintiff at a time when the defendant had pending an undetermined motion questioning the validity of service and the court’s jurisdiction over his person. We hold that it was not.
The action arises out of an altercation which occurred near Coffeyville, Kansas, in December, 1972. The original petition alleged that the defendant, Gary Lewis, maliciously shot the plaintiff, Gary Lewis Goldsberry, causing serious permanent injuries. The petition sought $592,600 in compensatory damages.
Also as a result of the altercation, felony charges were filed against the defendant in the city court of Independence. Defendant, a resident of Broken Arrow, Oklahoma, made bond for his ap pearance on those charges. On February 6, 1973, while he was in Montgomery county, Kansas, for the sole purpose of attending his preliminary hearing, he was served with a summons and the original petition in this action.
On February 23, 1973, the defendant filed a motion to quash service:
“Comes now the defendant, Gary Lewis, appearing specially, and moves the Court to quash the service of summons, same not being served, issued and returned according to the Statutes of the State of Kansas.”
The ihotion was signed by one Charles Pope, an Oklahoma attorney.
On February 26, 1973, plaintiff filed a “motion to quash” defendant’s “motion to quash,” on the ground that defendant’s attorney did not have a Kansas attorney associated with him as required by K. S. A. 7-104 and Supreme Court Rule No. 109.
Neither motion was ever ruled on by the trial court.
In October, 1973, plaintiff’s original counsel withdrew. In January, 1974, present counsel entered the case and filed an amended petition, adding a claim for $50,000 punitive damages to the original claim for $592,600 compensatory damages. The amended petition was served by mailing a copy to defendant and to his Oklahoma attorney.
On July 2, 1974, plaintiffs counsel wrote the following letter to the clerk of the district court:
“Please set the above matter for trial on July 19, 1974, at 9:00 a. m. or as soon thereafter as the matter may be heard. We are sending copies of this notice to attorneys of record for the defendant.”
Copies were sent to defendant’s Oklahoma counsel, and also to his present Kansas counsel. The latter promptly wrote the clerk pointing out that he had never appeared in the case to that time, and was not counsel of reoord.
No notice of a trial setting was ever given by the court or clerk, and no notice of intent to enter a default judgment (other than the foregoing letter to the clerk) was ever served on the defendant or his attorney. Nevertheless, on July 19 (the journal entry recites July 22), plaintiff introduced evidence and the court entered a default judgment in his favor for the $592,600 compensatory and $50,000 punitive damages prayed for. The journal entry was filed July 23, 1974, without submission to defendant or his counsel. Neither were they notified o.f the entry of judgment as required by Supreme Court Rule No. 115.
On November 7, 1974, defendant filed a “renewed” motion to quash service. At the hearing on the motion on November 22, the trial court and both parties recognized as applicable certain basic principles firmly established in our decisions: A nonresident of this state who is here solely to appear in a criminal action against him is immune from service of process in a civil action; Such immunity has its origin in public policy and the common law, and not in any statutory provision; Service on a person who is immune is not void, but is irregular only; The immunity is a privilege which may be waived if not claimed, and failure to assert the privilege until after judgment constitutes a waiver. See Baker v. Erbert, 199 Kan. 59, 427 P. 2d 461; Phoenix Joint Stock Land Bank v. Eells, 158 Kan. 530, 148 P. 2d 732; Eaton v. Eaton, 120 Kan. 477, 243 Pac. 1040; and cases cited therein.
The trial court found that the original motion to quash service was inadequate to raise the privilege because it spoke only of noncompliance with the “Statutes” of this state, whereas the deficiency in service lay in noncompliance with the common law of this state. Since the latter ground wasn’t specifically raised until after the default judgment was entered, the court found that the privilege wasn’t asserted in a timely fashion.
The court further found that defendant’s Oklahoma counsel was not entitled to notice of the default judgment because he had appeared specially for the sole purpose of challenging service. The renewed motion was therefore overruled.
After this ruling defendant moved to set aside that portion of the judgment awarding $50,000 in punitive damages on the ground that the amended petition, asserting that claim for the first time, had not been served on him. The argument was that if the appearance of Oklahoma counsel was insufficient to entitle him to notice, it was insufficient to make mere mailing of the new demand to him valid service. That is to say, if labelling his appearance a “special appearance” constituted a “failure to appear,” then under K. S. A. 60-205 (a) any new claim against defendant had to be served in the same manner as a summons. This motion was also overruled, on the basis that defendant was “represented” by the Oklahoma attorney so as to make mailing good service under K. S. A. 60-205 (b). For the purposes of this motion the trial court recognized that the distinction between special and general appearances has been abolished by K. S. A. 1975 Supp. 60-212 (b).
The defendant has appealed from the overruling of both motions.
As indicated at the outset, we think the result here is controlled by whether the case was properly one for default judgment.
We would suppose it to be elementary that before a default judgment may be rendered there must be a default. Here defendant timely served and filed a motion to quash service. We take this to be a motion under 60-212 (b). It raises the defense of “lack of jurisdiction over the person,” under (2), the defense of “insufficiency of process” under (4), and the defense of “insufficiency of service of process” under (5). Under 60-212 (a), the service of such a motion “alters” the time otherwise fixed for responding to the petition as follows:
“. . . (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (10) days after notice of the court’s action . . .”
In this case the trial court neither denied the motion nor postponed its disposition until trial, and obviously never gave defendant “notice of its action.” The result is that defendant’s ten days to answer never started to run. The further result must be that his answer day never arrived and he was never in default.
A few further comments are in order. Plaintiff points out that in March of 1974, when defendant was in the Montgomery district court for sentencing on the criminal case, the status of this civil case was discussed at some length by court and counsel. All concerned agreed at that time that if it were properly worded defendant’s motion to quash would be good. Plaintiff now argues that defendant, knowing of the deficiency in his motion, should have amended at that time, rather than after the judgment was entered.
There is much force in the argument. We cannot condone conduct on the part of defendant which can only be characterized as dilatory; his motion could have been overruled at any time. The fact remains, however, that it was not overruled. Moreover, the conference also demonstrates that the court and plaintiff’s counsel were fully aware of the real thrust of defendant’s motion, and of the fact that it lay in the court’s file undecided. Plaintiff could have brought the matter to a head by noticing the motion for hearing, having it overruled, and thereby starting the answer time running. Had it been, for example, a meritless motion to dismiss for failure to state a cause of action, that is surely what plaintiff would have done.
An alternative for plaintiff would have been to notice for hearing his motion to “quash” defendant’s motion because filed by Oklahoma counsel. The failure to have Kansas counsel did not make defendant’s motion a nullity, but did subject it to being stricken if Kansas counsel did not appear in due course. See Thornburg v. McClelland, 186 Kan. 20, 348 P. 2d 617.
Plaintiff also complains, with some justification, that defendant’s Oklahoma counsel admittedly received a copy of the July 2, 1974, letter to the clerk, yet did nothing to forestall the entry of- default judgment. The trouble with that argument lies in the ambiguity of the letter itself. The letter merely asks the clerk to set the case for trial; it says nothing about taking a default judgment, and therefore cannot be construed as the notice required by K. S. A. 1975 Supp. 60-255 (a). Neither can it be construed as a trial setting; by its terms it requests the clerk to set the case for trial. If the case were to be considered a “contested” case, subject to trial rather than default judgment, a local rule (No. 11) would require the clerk to give “at least 15 days advance notice” of the trial setting. No such notice was given. (The difficulty arose, of course, because until the answer day came and went there was no way of telling whether the case would be a “contested” or a default matter.) Granting that Oklahoma counsel demonstrated a remarkable lack of curiosity, we think even Kansas counsel who received plaintiffs letter might well have sat back and waited for further word from the court or clerk. This would be particularly true where counsel knew that by virtue of his undetermined motion the case was not at issue and his answer day had not yet passed.
The net result is that the “default” judgment was entered at a time when there was no default. We think defendant’s postjudgment motions, liberally construed, fairly raised the propriety of the entire judgment. Accordingly it must be and is hereby vacated. The case is remanded to the trial court to rule on the prejudgment motions (as they may be amended) and to proceed with the action from that stage.
APPROVED BY THE COURT
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The opinion of the court was delivered by
Fromme, J.:
Defendant-appellant Theodore Maurice Jordan, a former probation officer, brings this appeal from a jury conviction for requesting and receiving a bribe (K. S. A. 21-3901 [b]).
The charge against Jordan arose from his conduct as a probation officer while employed by Wyandotte County. Witnesses for the state testified at the trial that in October and November, 1973, Jordan sought and received the sum of $400.00 from Veralee Massey to assure her probation following a marijuana conviction. Massey testified that she applied for probation at the Wyandotte County probation office. After an interview with probation officers she was approached by appellant who questioned the truth of certain statements contained in her application. Jordan informed her that her chances for probation were slim but that he might be able to help. He asked her to telephone him at his home the following day. Massey made the phone call and was instructed to meet with Jordan to discuss terms for probation. Massey and Jordan met and at the meeting Jordan stated that he could insure her probation if she would pay him $500.00. It was agreed she should pay $300.00 to appellant through a friend Phillip White.
Phillip White testified that soon after Massey fold him about Jordan’s request for money, he (White) reported the extortion scheme to Jack Balias, a federal treasury department agent. White had worked for Balias as a paid informer on previous occasions. Balias advised White to meet with Jordan and discuss plans for payment of the bribe money. On October 31, White and Jordan met and $300.00 was agreed as the sum required to secure Massey’s probation. They were to arrange a date for payment later. Subsequently White and Balias advised state and local law enforcement officials about Jordan’s activities. The law officers advised White to carry out his role as an intermediary and pay the bribe requested by Jordan. It was understood the meeting would be monitored by police who would arrest Jordan upon culmination of the illegal acts.
Pursuant to this plan, telephone conversations were recorded between White and Jordan on the 16th and 20th of November. In the conversation of November 16th, White told Jordan that he would soon have the money. Jordan insisted that the payment must be made before November 30. On November 20, White agreed by telephone to meet Jordan and pay an installment of $150.00. The following day White kept his rendezvous with Jordan at a local parking lot and $150.00 was handed to Jordan. This meeting was observed and photographed by police. It was also monitored by means of radio equipment concealed in White’s clothing. On November 30, White made a second payment of $250.00 to Jordan. Again police observed and recorded the transaction.
Subsequently Jordan was arrested and charged with requesting and receiving a bribe. At his first trial the jurors were unable to reach a verdict. A second trial was commenced 45 days later. At this second trial the jury returned a verdict of guilty. Jordan was sentenced to a prison term of one to ten years.
On appeal Jordan contends that he was denied constitutional equal protection of the laws when the trial court refused to grant his request for a free copy of the transcript of the first trial. The trial court denied appellant’s motion for transcript. It should be noted that both trials were held before the same judge with the same counsel and the same court reporter. The court reporter was available during the entire second trial and could have made portions of the first trial transcript available to defense counsel if such had been requested.
The question of whether it was necessaiy to furnish appellant a free transcript of his first trial to protect his constitutional right of equal protection is controlled by the decision in Britt v. North Carolina, 404 U. S. 226, 30 L. Ed. 2d 400, 92 S. Ct. 431. In Britt the accused’s first trial for murder in a state court resulted in a hung jury. Upon retrial he was convicted. Between trials his request as an indigent for a free transcript of the first trial was denied. The high court considered the equal protection arguments advanced by the defendant and held that indigent defendants must be provided with the basic tools for an adequate defense when these tools are needed and available for a price to other defendants.
In Britt it is said:
“In prior cases involving an indigent defendant’s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript. . . .’’ (404 U. S. p. 227.)
The Britt court pointed out that both trials were conducted in a small town before a single judge and court reporter. Defense counsel in the second trial had conducted the first trial. The reporter was available to read back notes of the first trial in advance of the second trial had he been asked to do so. In these circumstances it was held that alternative devices were available to adequately protect the defendant’s constitutional rights to a fair trial and furnishing a free transcript was not required.
This court has followed Britt and has held that in determining whether an indigent defendant in a criminal proceeding is entitled to a transcript of a trial or other proceeding prepared at state expense, the court may consider the availability of alternative devices that would fulfill the same functions as a transcript. (State v. Wheeler, 215 Kan. 94, 523 P. 2d 722; State v. McVeigh, 213 Kan. 432, 516 P. 2d 918; and State v. Kelley, 209 Kan. 699, 498 P. 2d 87.) An indigent defendant in a criminal proceeding on proper showing of need is entitled to have a transcript of portions of previous trial proceedings prepared at state expense, subject however to a determination by the trial court that such transcript is necessary for the indigent to present his defense adequately.
Appellant argues that the present case is distinguishable from Britt because in the present case the court reporter did not live in the town where the trial took place. It has been held that limited access to a court reporter does not suffice as an alternative to a transcript of prior proceedings. (See United States ex rel. Wilson v. McMann, 408 F. 2d 896 [2d Cir. 1969].) However, it must be noted that in McMann the reporter was not present at the second trial and was not available to consult with defense counsel except under limited circumstances. In the present case it appears that the reporter was generally available for consultation before and during the second trial. Furthermore appellant did not explore other available alternatives. The record discloses that the prosecution had a copy of the transcript from the first trial which might have been shared by defense counsel upon request and order of the court. (See Wade v. Wilson, 396 U. S. 282, 24 L. Ed. 2d 470, 90 S. Ct. 501.)
The appellant makes no showing in this court to support a claim that he was surprised or unduly hampered in conducting his defense at the second trial. He did obtain a transcript of the testimony of the witnesses at his preliminary hearing and he does not contend that he was surprised by changes in their testimony. Appellant’s right to a fair trial was not prejudiced under the facts and circumstances of this case. The matter lies within the sound discretion of the trial court. We find no abuse of discretion.
It should be noted that a request for transcript to process an appeal or other post-conviction remedy occupies a somewhat different position. Need of a transcript to process an appeal is more urgent and provision for the same is made in K. S. A. 22-4509. Appellant was furnished a transcript of his second trial to process this appeal.
Appellant next contends that he was denied a fair and impartial trial because the method of jury selection utilized in Wyandotte County failed to include a sufficient number of members of the Negro race on the jury panel. He also complains that the prosecution by exercising peremptory challenges stripped the jury of the few black members who had been on the panel.
Appellant does not argue that a discriminatory method of jury selection was utilized in his case nor does he allege or show that the method used systematically excludes Negroes from, jury panels. Appellant simply asserts that the percentage of Negroes on this jury panel did not correspond with the percentage of Negroes in the general population of Wyandotte County. Thus he reasons it must be presumed that the method of jury selection used was constitutionally infirm.
Although the law requires that a jury panel be a representative cross-section of the community in which a defendant is to be tried, a Negro defendant in a criminal case is not constitutionally entitled to be tried by a jury on which there is a member, or members, of his race, and he is entitled to relief only upon proof presented by him which discloses a purposeful discrimination to exclude members of a class from the jury panel. (State v. Clift, 202 Kan. 512, 449 P. 2d 1006, cert. den. 396 U. S. 910, 24 L. Ed. 2d 186, 90 S. Ct. 225.)
When a challenge is made to the entire jury array, systematic or purposeful exclusion of members of a particular race or group may not be presumed. Such exclusion must be established by proof. (Roth v. State, 218 Kan. 413, 543 P. 2d 939; State v. Walker, 217 Kan. 186, 535 P. 2d 924; and State v. Reed, 214 Kan. 562, 520 P. 2d 1314.)
Appellant in the present case has offered no proof of systematic or purposeful exclusion in the method of jury selection.
In Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, it was argued that constitutional equal protection of the law was denied a defendant where the prosecution utilized peremptory challenges to remove members of the Negro race from the jury panel. After examining the history, nature and purpose of the peremptory challenge the court refused to hold that striking members of a particular race or group by peremptory challenge results in a denial of equal protection. The court said it must be presumed that the prosecution has used the state’s challenges to obtain a fair and impartial jury to try the case.
The rule announced in Swain was approved and adopted by this court in State v. King, 219 Kan. 508, 548 P. 2d 803. The observations in King are applicable to the present case.
The fact that the state by exercise of peremptory challenges has excluded all members of a race or class from the jury does not alone deprive the accused of his right to a fair trial.
Appellant next contends that his Fourth Amendment right to be free of unreasonable searches and his Fifth Amendment protections against self-incrimination were violated by the admission into evidence of tape recorded conversations between himself and Phillip White. Appellant argues that White was acting as a police agent at the time the conversations were recorded.
Assuming that White was acting as a police agent, it is settled law that an agent may tape record conversations with a criminal suspect prior to arrest without violating the suspect’s Fourth Amendment rights if the agent is a party to the conversation or has the consent of a party to the conversation. (Hoffa v. United States, 385 U. S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408, reh. den. 386 U. S. 940, 951, 17 L. Ed. 2d 880, 87 S. Ct. 970; State v. Daniels, 215 Kan. 164, 523 P. 2d 368; and State v. Wigley, 210 Kan. 472, 502 P. 2d 819.)
Similarly there is no merit to appellant’s contention that his Fifth Amendment privilege against self-incrimination was violated by the admission of the tape recordings. If prior to indictment a defendant makes incriminating statements or admissions to a government agent, is not in police custody and the statements are not a product of any sort of coercion, no right protected by the Fifth Amendment is violated by admitting the agent’s testimony and the accompany ing tapes. No protection is afforded a wrongdoer in his misplaced belief that a person to whom he confides his wrongdoing will not reveal it. (Hoffa v. United States, supra; United States v. White, 401 U. S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122, reh. den. 402 U. S. 990, 29 L. Ed. 2d 156, 91 S. Ct. 1643; and State v. Daniels, supra.)
Finally appellant contends that it was error for the trial court to refuse his request for an instruction on the defense of entrapment.
This court has held that an accused can rely on the defense of entrapment when he is induced to commit a crime which he had no previous disposition to commit. The defense is not available when a predisposition for commission of the crime is shown and an opportunity to consummate the crime is afforded by law enforcement officers. (K. S. A. 21-3210 [a]; State v. Williamson, 210 Kan. 501, 502 P. 2d 777; and State v. Reichenberger, 209 Kan. 210, 495 P. 2d 919.)
The error in appellant’s position is that in this case there is no evidence of entrapment. The defense of entrapment arises when a law enforcement officer, or someone acting on his behalf, generates in the mind of a person who is innocent of any criminal purpose the original intent or idea to commit a crime which he had not contemplated and would not have committed but for the inducement of the law officer. (State v. Hamrick, 206 Kan. 543, 479 P. 2d 854.) A defendant can rely on the defense of entrapment when he is induced to commit a crime which he had no previous intention of committing, but he cannot rely on the defense or obtain an instruction on entrapment when the evidence establishes he had a previous intention of committing the crime and was merely afforded an opportunity by a law officer to complete it. (State v. Wheat, 205 Kan. 439, 469 P.2d 338.)
In the present case the evidence shows that applicant, a probation officer, upon his own initiative approached Veralee Massey and offered to secure probation for her in exchange for a price. The police participation which followed merely provided an opportunity for defendant to consummate the crime with the aid of Phillip White. Appellant was not entitled to an instruction on entrapment under these circumstances.
No reversible error is found on the points raised. The judgment is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Appellant Billy Barnes brings this appeal from jury convictions on three counts of aggravated robbery (K. S. A. 21-3427) and one count of robbery (K. S. A. 21-3426).
Appellant contends that he was arrested and searched by police without a warrant and without probable cause, and that all evidence obtained at the time of his arrest was improperly admitted by the court during his trial.
A brief recitation of the facts will suffice as a background for examination of the points raised on appeal. On December 4, 1974, three separate robberies took place in Wichita. Shortly after 2:00 a. m. two men appeared at the Town House Motel, confronted Rodney Hurt, a night auditor, and demanded money. One robber brandished a pistol and threatened Hurt’s life. Hurt turned over motel receipts totaling $215.00. He was told to lie on the floor while the robbers departed. Hurt subsequently telephoned the Wichita Police Department, reported the robbery and described the culprits to the officer in charge of the police department. One robber was described as a twenty-four year old black male, approximately five feet seven inches in height, wearing a black hat pulled down over his face and a three-quarter length dark-colored coat. Hurt also noted that his assailant had a gold tooth.
The second robbery took place 40 minutes later at the Sheraton Motor Inn. A night clerk, Joe Henderson, was approached by a lone gunman and cash was demanded. Henderson gave the robber $417.00. Henderson’s description of the robber was similar to that given by Rodney Hurt. In addition he advised the police that the man had patches of adhesive tape covering his cheeks.
At 9:50 p. m. of that same day the Woodland Food Market was robbed by two men. Money totaling $1,024.90 was taken from cash registers and $10.00 was taken from Frank Luttrell who was visiting the store at the time of the robbery. The police who investigated the crime obtained a description of one of the robbers. He was a black male about five feet seven inches to six feet in height with tattoos on his cheeks and a gold tooth.
Sometime later Wichita police officer Pate heard a police radio report of these robberies. The report included a description of the man with a black floppy hat, dark three-quarter length coat, tatoos on his cheeks and a gold tooth. The “pick-up order” included a further description of the man as being black, height around five feet eight, weight about one hundred twenty-five pounds and wearing blue jeans.
At 2:00 a. m. on the morning following the last robbery officers Pate and Blevins stopped in a restaurant adjoining the Wichita bus depot. Pate noticed appellant seated at a table. As Pate approached, appellant arose, hurried out of the restaurant, and in doing so appellant attempted to conceal his face with the collar of his coat. Pate and Blevins followed and located him in a parking lot nearby. When discovered, appellant was holding the collar of his coat over his face. The officers asked appellant his name and when appellant answered the officers noticed he had tattoos on his cheeks and a gold tooth. His clothing, weight and height fit the description which had previously been broadcast. Officer Pate recalled that broadcast.
Pate then frisked appellant for weapons and discovered a large wad of paper money in his pants pocket. Pate returned the money to appellant, arrested and handcuffed him and advised him of his rights under Miranda. Pate then thoroughly searched appellant. A black floppy hat was discovered in appellant’s coat pocket. Currency totaling $299.16, a pair of handcuffs and a one-way bus ticket to Dallas, Texas, were obtained in the search. Appellant was transported to a Wichita police station and subsequently charged with the four robberies.
On appeal appellant argues that the trial court erred when it refused to suppress physical evidence taken from him at the time of his arrest. Appellant contends his arrest was invalid and the evidence obtained incident to the arrest was inadmissible under the rules announced in Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684. He states that the “frisk” conducted by Pate to discover weapons was unreasonably broad in its scope and constituted a general exploratory search beyond the limits defined in Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and its progeny. Appellant claims that Pate had no probable cause to believe appellant had committed the robberies until he discovered the money during the “frisk.” Appellant concludes that the evidence supporting the search was illegally obtained from the “frisk,” this tainted the arrest transaction and rendered it invalid.
In appellant’s view the initial “frisk” was conducted under K. S. A. 22-2402 which provides:
“(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may search such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”
Appellant argues that the “frisk” under the foregoing statute should have been limited to what was minimally necessary to learn whether he was armed, and to disarm him if weapons were discovered.
It is fundamental that a search incidental to an arrest may not precede the arrest where the evidence discovered during the search forms the basis of probable cause for the arrest. (Sibron v. New York, 392 U. S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889.)
In the present case, however, it can be said that officer Pate had probable cause to arrest appellant prior to the “frisk.”
It has been held that probable cause to support a warrantless arrest exists prior to the arrest if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested. (State v. Walker, 217 Kan. 186, 535 P. 2d 924; State v. Little, 201 Kan. 94, 439 P. 2d 387.) It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the evidence leads the officer to believe that guilt is more than a mere possibility. (State v. Curtis, 217 Kan. 717, 538 P. 2d 1383.)
The permissible extent of a warrantless search during an arrest made on probable cause is set forth in K. S. A. 22-2501 as follows:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
Where there is probable cause for an arrest, a search of an accused’s person incidental to arrest may either precede or follow the formal arrest if the events closely follow. (Henderson v. United States, 405 F. 2d 874 [5th Cir. 1968], cert. den. 395 U. S. 906, 23 L. Ed. 2d 219, 89 S. Ct. 1747; United States v. Skinner, 412 F. 2d 98 [8th Cir. 1969], cert. den. 396 U. S. 967, 24 L. Ed. 2d 433, 90 S. Ct. 448; United States v. Brown, 463 F. 2d 949 [D. C. Cir. 1972]; People v. Simon, 45 Cal. 2d 645, 290 P. 2d 531; Jones v. People, 167 Colo. 153, 445 P. 2d 889; Cannon v. State, 235 Md. 133, 200 A. 2d 919, cert. den. 379 U. S. 883, 13 L. Ed. 2d 89, 85 S. Ct. 152; and State v. Murphy, 2 Or. App. 251, 465 P. 2d 900, cert. den. 400 U. S. 944, 27 L. Ed. 2d 248, 91 S. Ct. 246.)
In an analogous factual situation in United States v. Riggs, 474 F. 2d 699 (2nd Cir. 1973), cert. den. 414 U. S. 820, 38 L. Ed. 2d 53, 94 S. Ct. 115, Judge Friendly reviewed the narcotics conviction of a defendant who had been searched prior to formal arrest. The court found that the U. S. marshals had probable cause to arrest at the time of the search and they had a reasonable suspicion the defendant was armed. Under these circumstances a search of defendant’s person was held valid and evidence obtained from the search was admissible at trial. The justification for such an intrusion is the probable cause to believe that the individual has committed a crime and the need for immediate action to prevent the use of weapons against the arresting officer or destruction of evidence of the crime. (Chimel v. California, 395 U. S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034.) Postponement of the further instrusion of arrest does not remove the justification for the search and in no way prejudices the individual’s Fourth Amendment rights. (United States v. Riggs, supra.)
In the present case the police officers had probable cause to arrest appellant at the time of the initial limited search. Appellant possessed the physical attributes of the robber being sought, including tattooed cheeks and a gold tooth. Appellant’s appearance matched the description the officers had previously obtained by police radio dispatch. He was dressed in clothing similar to that reportedly worn by the robber. Finally, appellant’s furtive behavior when the officers entered the station restaurant fortified a reasonable belief that appellant had committed the armed robberies the previous day. The search which disclosed the currency was valid, because it was predicated upon probable cause for appellant’s arrest. The fruits of that search, the hat and other items discovered in the search, were properly admitted as evidence by the lower court. The search was properly made in connection with a valid arrest.
Appellant next argues that a line-up conducted by police, at which he was identified by his victims, was impermissibly suggestive and raised a substantial likelihood of irreparable misidentification. Appellant complains that he was the shortest individual in the line-up and that the descriptions given to the police did not in all respects conform to his physical stature. He therefore contends the line-up identifications were suspect and that subsequent in-court identifications by the victims were tainted and untrustworthy.
In State v. Clark, 218 Kan. 726, 735, 544 P. 2d 1372, this court found that a photographic line-up in which the defendant was the only heavy-set person not wearing glasses was not impermissibly suggestive. Similarly in this case the fact that defendant was the shortest individual in the line-up did not suggest that he should be identified by those who viewed it. The actual variances in height were only a few inches. All of the victims had an opportunity to view the robber for several minutes at the time the crimes were committed. Their subsequent identifications of appellant were positive. Appellant does not contend that anyone suggested to the victims whom they should identify. Although line-ups that are unnecessarily conducive to mistaken identification are forbidden by the due process clause of the federal constitution, under the totality of the circumstances in this case it may be said that the line-up was not so suggestive as to give rise to a substantial likelihood of misidentification. (See State v. Colin, 214 Kan. 193, 519 P. 2d 629.)
Finally appellant complains that the trial court improperly admitted a statement that he made to the police following his arrest regarding his whereabouts at the time the crimes were committed. Defense witness Kenneth Stanford testified that he and appellant were together at the Grand Hotel on the evening of December 4. On rebuttal the state produced the testimony of detective Harlie Puckett, who stated that appellant had previously told him that he was playing pool at the Golden Bell Restaurant that evening. The trial court admitted Puckett’s rebuttal testimony following a hearing out of the presence of the jury in which the court determined that appellant had made his alibi statement to Puckett voluntarily following a waiver of his constitutional rights.
Voluntary statements made to police officers by a defendant who has been given warnings as to his constitutional rights are admissible as evidence at his trial. (State v. Melton, 207 Kan. 700, 486 P. 2d 1361; State v. Foster, 202 Kan. 259, 447 P. 2d 405.)
Trial courts have broad discretion in determining the use and extent of relevant evidence in rebuttal. (State v. Norwood, 217 Kan. 150, 535 P. 2d 996; State v. Neff, 169 Kan. 116, 218 P. 2d 248.)
As a general rule any relevant evidence is admissible to refute alibi testimony in a criminal action. (See 22A C. J. S., Criminal Law, § 619, p. 435; and 2 Underhill’s Criminal Evidence, 5th Ed., § 444, p. 1120.)
Evidence which could have been admitted in the prosecution’s case in chief, but which was not, may be admitted in rebuttal to contradict some new fact or circumstance brought forth by the defendant’s evidence. (State v. Nirschl, 208 Kan. 111, 490 P. 2d 917.)
The precise question raised by appellant is: When the defendant does not take the witness stand is a voluntary statement made by him after Miranda warnings are given admissible to impeach the testimony of another alibi witness?
In State v. Davis, 67 N. J. 222, 337 A. 2d 33, the New Jersey court held a statement by defendant was inadmissible for that purpose when no Miranda warning was given. It is not necessary for us to examine the soundness of that decision for in our present case the Miranda warning was given. We note in passing that in Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643, it is held a non-Miranda statement made by defendant may be used to impeach the credibility of defendant if he takes the stand as a witness. It is difficult to understand why a non -Miranda statement would be admissible to impeach the credibility of the defendant as a witness and not be admissible to impeach an alibi witness sponsored by defendant. However, we do not reach the question for the proper warning was given in this case.
We hold the voluntary in-custody statement to police officers made by a defendant is admissible to rebut the testimony of an alibi witness even though the defendant does not take the witness stand at his trial.
In the present case the appellant’s statement was made after full Miranda warnings and after a written waiver was signed by appellant. Although the evidence was conflicting as to whether appellant voluntarily made the exculpatory statement, this court has repeatedly pointed out that in determining the admissibility of a statement of the defendant obtained during custodial interrogation the trial court must weigh any conflicting evidence and make find ings that the defendant voluntarily, knowingly and intelligently waived his Fifth and Sixth Amendment rights. When this is done the court’s findings will not be disturbed on appellate review. (See State v. Soverns, 215 Kan. 775, 777, 529 P. 2d 181, and cases cited therein.)
In this case officer Puckett’s testimony regarding appellant’s exculpatory alibi statement, made after proper Miranda warnings and waiver of rights, was properly admitted by the trial court to refute the testimony of appellant’s alibi witness.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Patrick Mahkuk, was convicted of burglary (K. S. A. 21-3715) and felony theft (K. S. A. 21-3701). The facts in the case are really undisputed. The defendant was charged with breaking into a house in Atchison owned by Philip Bridges and stealing a- .22-caliber Remington rifle valued at more than $50. At the trial Philip Bridges testified that his residence was broken into on October 23, 1974. At the time the break-in was discovered Bridges observed a black dust, similar to that found at his place of employment, all over his bed. The defendant and Bridges both worked for the same company. After discovering that his rifle was missing Bridges notified the police. Police investigation revealed that a silver van similar to one owned by defendant had been parked in front of Bridges’s residence at approximately the time of the burglary. When the van departed the scene it proceeded for some distance without headlights. Bridges suggested to the police that the defendant knew he owned the gun. Upon investigation the police found Bridges’s rifle in ‘the defendant’s van. The defendant was questioned by the police and admitted that he had entered the Bridges home and had taken the rifle. The defendant’s confession was admitted into evidence without objection. Its admission is not one of the claimed errors on this appeal. Following his conviction by a jury the defendant Mahkuk appealed to this court claiming trial errors.
The defendant’s first point on this appeal is 'that the trial court erred in failing to remove for cause from the jury panel the Atchison county sheriff, Ernie Hansen, during voir dire. The sheriff did not actually sit on the jury, but the defendant was required to use a peremptory challenge to dismiss him. Sheriff Hansen was questioned by the county attorney and his responses indicated that he could try the case impartially. He had just recently assumed the office of sheriff. Challenges for cause in criminal cases are governed by K. S. A. 22-3410 which contains a number of specific grounds for challenges of a juror for cause. Here the defendant relied upon two subsections of the statute which he contends required the court to dismiss the sheriff from the jury upon challenge. These sections are as follows:
“22-3410. Challenges for cause.
“(2) . . . (h) He occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted.
“(t) His state of mind with reference to the case or any of the parties is such that the court determines there is a doubt that he can act impartially and without prejudice to the substantial rights of any party.”
The defendant maintains that the sheriff owes a fiduciary duty to the complaining witness and that his position as a law enforcement officer and his indoctrination in law enforcement would so affect his state of mind as to raise a doubt of his ability to act impartially. It should be noted that there is no specific exclusion from jury service granted to a law enforcement officer under K. S. A. 43-159, nor does 22-3410 specifically require that a law enforcement officer or other governmental employee be dismissed by the trial court on that ground alone. Challenges for cause are to be tried to the court and decided in the discretion of the trial court. (State v. Nix, 215 Kan. 880, 529 P. 2d 147.) It is clear that the trial court is in a better position than this court to view the demeanor of prospective jurors as they are questioned. (State v. Carpenter, 215 Kan. 573, 527 P. 2d 1333.) The sheriff is a major law enforcement officer of each county in this state and the reluctance of a defendant in a criminal case to have a sheriff serve on his jury is quite understandable. In fact, we believe that it is better policy for a district court in its discretion to excuse a sheriff from a jury panel on challenge for cause. In the case before us, although the trial court could and probably should have dismissed Sheriff Hansen for cause on challenge by the defense counsel, the failure of the court to do so in this case in our judgment was not so prejudicial as to require a reversal of this case. The situation presented here was unusual since Sheriff Hansen had just recently taken office by defeating John Hawk, the previous sheriff, in a contested election in November 1974. The defendant had not been in the sheriff’s custody during any of the time Sheriff Hansen had assumed his duties. At the voire dire Hansen testified that he bad no specific knowledge of the case, that he could try the case impartially, and he knew of no reason why he could not serve fairly. In fact, counsel for the defendant did not question Sheriff Hansen on voir dire at all. There clearly was no evidence of Hansen’s bias other than such possible bias and prejudice that might arise from his position as a sheriff. The general rule in other jurisdictions is that absent specific statutory provisions law enforcement officers need not be dismissed ipso facto for cause. (See cases collected in the annotation at 140 A. L. R. 1183.) There is some earlier case law to the contrary. However, the general trend of recent decisions seems to require a showing of some actual bias beyond a juror’s occupation or profession. (Walter v. United States, 386 F. Supp. 309 [W. D. Okla.]; Cavness v. United States, 187 F. 2d 719 [9th Cir.]; State v. Reese, 250 La. 151, 194 So. 2d 729; and Commonwealth v. Colon, 223 Pa. Super. 202, 299 A. 2d 326.) There is another important reason why the defendant’s conviction should not be reversed on this point. Sheriff Hansen did not actually sit as a juror in the case since he was removed by a peremptory challenge of the defendant. Under those circumstances where a challenged juror does not sit, the burden is upon the accused to show that in some way he has been prejudiced by the ruling of the trial court refusing to excuse the prospective juror for cause. (State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44.) From our consideration of the entire record before us we have concluded that the defendant has failed to show that he suffered any prejudice as a result of the trial court’s refusal to excuse the sheriff from the jury for cause.
The defendant’s next two points in substance raise a contention that the trial court abused trial counsel during the voir dire examination. Defendant complains that defense counsel was not granted the same leniency during voir dire as was granted to the prosecutor and further that the trial court reprimanded defense counsel in front of the jury. Defendant argues that the trial court erred by continuously interrupting his counsel and not allowing certain questions to be asked. Of necessity a trial court is vested with a wide latitude in its control over voir dire. K. S. A. 22-3408 (3) specifically provides that the trial court may limit the voir dire examination by the defendant, his attorney, or the prosecuting attorney if the court believes such examination to be harassment or is causing unnecessary delay or serves no useful purpose. Here the interruptions of defendant’s counsel by the trial court on voir dire were largely in response to objections by the state to obviously irrelevant or improper questions. The major confrontation occurred when defense counsel attempted to ask the veniremen if they would convict the defendant with a confession as the sole evidence. The trial court stated that without the jurors’ knowing what the confession stated, such questions were meaningless and unfair. We have carefully read the entire voir dire examination contained in the record and have concluded that no prejudicial error has been shown. In our judgment the trial court was acting within the proper ambit of its discretion in its control of the voir dire examination by defense counsel.
The defendant next maintains that the trial court erred in limiting the cross-examination of Philip Bridges by defendant’s counsel. Specifically, defense counsel desired to introduce evidence of Bridges’s past criminal activities to challenge his credibility pursuant to K. S. A. 60-420 and 60-421. Defendant was permitted to introduce evidence of a prior conviction of Bridges for the offense of forgery. However, the trial court excluded evidence of a previous conviction of Bridges for the offense of encouraging juvenile misconduct. The defendant presented no evidence which indicated that the prior conviction involved dishonesty or false statement. Apparently it was a charge involving a sex offense. Under the circumstances we cannot say that the trial court erred in excluding such evidence since it has not been shown that dishonesty or false statement was involved. Defense counsel also sought to introduce evidence that Bridges had been convicted of theft while a juvenile. On objection the trial court excluded this juvenile conviction. A juvenile theft conviction involving dishonesty or false statement is admissible to attack the credibility of a witness following a sufficient proffer. (State v. Deffenbaugh, 217 Kan. 469, 536 P. 2d 1030; State v. Wilkins, 215 Kan. 145, 523 P. 2d 728.) Although the prior juvenile conviction for theft was admissible in this case we have concluded that in this case its exclusion did not constitute reversible error. The prior conviction of Bridges for forgery was admitted into evidence. Furthermore the witness Bridges testified only to the unlawful entry into his home, the theft and disappearance of his rifle and the value thereof. The rifle was discovered in defendant’s van. The defendant admitted to the police officers that he had broken into Bridges’s house and taken the rifle. Under these circumstances we cannot say that the refusal of the trial court to admit into evidence Bridges’s prior juvenile conviction of theft constituted prejudicial error.
The defendant next contends that the trial court erred in refusing certain requested instructions offered by the defendant. It was not error for the trial court to deny the requested instruction on circumstantial evidence. (State v. Wilkins, supra.) Defendant further argues that there should have been an instruction on the lesser included offense of theft of lost or mislaid property. There is a total lack of any evidence in the record to warrant such an instruction, since the undisputed evidence was that the rifle was taken from Bridges’s residence during the course of a burglary. As we have pointed out on a number of occasions, the duty to instruct on lesser included offenses arises only where there is at least some evidence on which the jury might reasonably convict the accused of a lesser offense. (State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967.) The requested instruction on the theft of lost or mislaid property was properly refused.
The defendant’s final point is that the evidence was insufficient to convict him of the crime charged. Here the evidence was undisputed that the burglary occurred at the Bridges home and that it was defendant who entered the Bridges home and took the rifle. The evidence as to the value of the rifle is contained in the testimony of the owner Bridges, who testified as to the price he had paid for the rifle and stated that in his opinion the rifle was worth $77 on the date it was stolen. Bridges was thoroughly cross-examined on this testimony and no contrary evidence was introduced. There was nothing to have prevented the defense from having the rifle appraised by an independent expert, if counsel had deemed it desirable to do so. Here the jury by its verdict found the value of the property stolen to be in excess of $50 and such verdict is binding on this court. For the reasons set forth above the judgment is affirmed.
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The opinion of the court was delivered by
Miller, J.:
This is a workmen’s compensation proceeding. The claimant, Jacob A. Gross, sustained a “scheduled” injury, a permanent partial loss of the use of his left lower leg, during the course of his employment as a mechanic for Lungren Chevrolet. From an award basing his compensation on a 20% loss of use of the lower leg, he appeals, contending that the award is improperly based on functional rather than work disability.
The issue before us is the meaning of “loss of the use,” as that phrase is used in K. S. A. 44-510d (21), now K. S. A. 1975 Supp. 44-510d (a) (21).
While at work on September 23, 1973, claimant poked and twisted his left knee. A tom cartilage was diagnosed; this necessitated surgery. Claimant was off work for several months. He then attempted to resume his duties as a mechanic, but was unable to do so because of pain, and because the knee swelled. He has since retired. His treating physician expressed the opinion that claimant lost 20% of the normal function of his left lower leg. Another orthopedic physician agreed, but he also stated that, considering claimant’s occupation as an auto mechanic, he would in his opinion assign a 75% permanent partial disability to the extremity as work disability.
The Examiner found that claimant sustained a 75% work related loss of use of the left lower leg, and awarded compensation accordingly. The employer and its insurance carrier, Federated, sought a review by the Director. He determined that the correct test was the functional impairment of the scheduled member, not the work related impairment. The Director found a 20% permanent partial loss of the use of the lower leg. This finding substantially reduced the compensation awarded by the Examiner. The district court affirmed the Director, and claimant appeals.
Claimant contends that the rule set forth in Davis v. Winchester Packing Co., 204 Kan. 215, 460 P. 2d 617, applies to scheduled injuries and should have been applied here by the Director and the district court. We disagree. Winchester involved a permanent partial bodily disability compensable under K. S. A. 44-510e, and not a scheduled injury.
The Winchester rule is as follows:
“The correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured. (Citing cases.)” (Syl. 1.)
This rule has been applied exclusively in cases involving general bodily disability, not scheduled injuries. See Gray v. Beller, 199 Kan. 284, 428 P. 2d 833; Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457; and Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414.
The statute here involved is K. S. A. 44-510d. It provides in applicable part that:
“. . . [CJompensation is to be paid for not to exceed the number of weeks allowed in the following schedule:
“(15) For the loss of a lower leg, sixty percent (60%) of the average weekly wages during one hundred ninety (190) weeks.
“(21) Permanent loss of the use of a . . . lower leg . . . shall be equivalent to the loss thereof. For the permanent partial loss of the use of a . . . leg . . . compensation shall be paid at sixty percent (60%) of the average weekly wages, not in excess of the maximum as provided for in K. S. A. 44-510c as amended per week during that proportion of the number of weeks in the foregoing schedule provided for the loss of such ... leg . . . which partial loss thereof bears to the total loss of a . . . leg . . . but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such . . . leg, . . . exclusive of the healing period.”
The statute applicable to nonscheduled injuries, where the disability is partial, provides for payment as compensation, a percentage of the difference between the claimant’s average weekly wages before the accident and the average weekly wages he is earning or is physically able to earn after the injury. K. S. A. 44-510c; 44-510e. Compensation for scheduled injuries, however, is not dependent upon the difference between wages earned before and after; instead, compensation for scheduled injuries is a fixed percentage of the average weekly wages earned at the time of injury, payable for a fixed period pursuant to the schedule set forth in K. S. A. 44-510d. We have long held that a workman sustaining a scheduled injury is entitled to the compensation provided by the schedule notwithstanding the fact that he may earn as much or more after the accident as before. Smythe v. Western Star Milling Co., 136 Kan. 416, 15 P. 2d 419. This is the general rule. See annotations in 175 A. L. R. 725, 745, and 84 A. L. R. 2d 1108, 1125, 1126.
Compensaton for scheduled injuries is payable in the scheduled amounts, regardless of the type of work being performed and regardless of the wages the workman earns, or is capable of earning, after the injury. Claimant would have loss of use computed on the basis of work disability, i. e., the percentage loss of use to depend upon the peculiar employment of the workman. This would increase claimant’s compensation, but it would reduce or eliminate the compensation of those who sustained partial loss of use of scheduled members, but who do not sustain substantial disability in connection with their particular employment. This is not the intent of the statute.
We hold that “loss of the use” as that phrase is used in K. S. A. 44-510d (21) means the impairment of function: the lessening of the ability of an injured member to perform fully those functions which like uninjured members are ordinarily able to perform. Loss of use does not depend upon, nor is it related to, the type of work the employee is called upon to perform in his employment.
Both of the orthopedic surgeons who testified in this case were of the opinion that claimant has a 20% permanent partial impairment of function of the left lower leg. Under these circumstances the Director and the district court were correct in fixing the partial loss of use at 20%.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an action for a money judgment by three individuals engaged in the cattle business against a bank and one of its officers, based upon their guaranty of payment for cattle sold by plaintiffs to a cattle buyer and misrepresentation as to the cattle buyers financial ability. Plaintiffs appeal from the rendition of summary judgment against them (summary judgment was not granted as to one transaction and that claim is still pending in the trial court).
Appellants Gerald P. Timi and Tom Timi are sons of appellant Pete Timi, all of whom live near Girard where they are engaged in general farming and livestock operations. In 1973 Gerald and Tom entered into a partnership called Timi Brothers for the purpose of investing in the hog futures market and purchasing cattle to feed and sell. This suit arises out of a series of cattle purchases by one Mike Mangum from Timi Brothers and each appellant individually. Mangum, who had been a feed salesman, ventured into 'the cattle business with funds advanced by one Clyde Al-bright, a Fort Scott cattle dealer. Mangum had a checking account at appellee Prescott State Bank in which he deposited a check for $71,500 given him by Albright. Mangum bought cattle from appellants and paid for them with checks drawn on this account. He resold the cattle to Albright. Appellee R. G. Murrow, who was thirty-two years of age, was a vice-president of the Prescott State Bank, its loan officer and managing officer. When summary judgment was entered the 'trial court had before it the depositions of all principals in the case.
Commencing January 12, 1973, and ending February 4, 1973, appellants sold and delivered to Mangum in ten separate transactions 347 cattle fox which they were given checks on the Prescott bank. These checks, totaling $126,600, were honored and paid and these sales form no part of this lawsuit.
On February 8, 1973, Gerald Timi sold Mangum forty-seven head of cattle and received therefor Mangum’s two checks totaling $25,000 drawn on the Prescott bank; when presented several days later these checks were dishonored for insufficient funds and have never been paid. Also on February 8, 1973, Tom Timi sold eighteen head of cattle to Mangum for which he received a $7,700 check on the bank which was similarly dishonored. On February 13, 1973, Timi Brothers sold 100 head of cattle to Mangum and received two $17,000 checks on the bank, each of which was dishonored (this is the transaction pleaded in paragraph VII of appellants’ petition upon which summary judgment was not sought or granted because of facts peculiar to it alone which will be stated later). On February 13, 1973, Gerald Timi sold fifteen heifers to Mangum for $4,500. No check was given on this transaction and the agreed price was never paid. On February 14, 1973, Timi Brothers sold forty-four steers and heifers to Mangum. A price was never agreed upon by the parties as to these heifers; these cattle had just been purchased by Timi Brothers for $15,147.53 at the Parsons stockyard. The last transaction was on Thursday, February 15, 1973, when Tom and Pete Timi sold Mangum fifty-two heifers for $31,000; again no check was given and this purchase was never paid for (by way of explanation it may be noted Mangum testified he frequently picked up cattle from the Timis and they would agree on a price later; when he gave the Timis checks they were to hold them until told the checks would clear).
Everything went serenely with appellants’ and Mangum’s business relationship and appellants were pleased with the profit they were making from the quick turnover of cattle bought and then sold to Mangum until Saturday, February. 17, 1973, at which time Mangum telephoned Gerald Timi and advised he was broke and had no more money. (The Timis testified they had not deposited the checks for the two February 8th sales because of a death in the family; they had previously deposited the two $17,000 checks because they needed the money.) Mangum told Gerald the two $17,000 checks would go through all right.
During midafternoon on Sunday, February 18, 1973, Mangum telephoned vice-president Murrow and told him he was broke. At that time Murrow had in his pocket two uncashed checks given him by Mangum totaling $27,000, tire balance due for 106 cattle which Murrow had personally sold on his own account and delivered to Mangum on Thursday, February 14th. On Sunday eve ning, February 18th, Murrow went to the bank. There he found the two $17,000 checks written by Mangum to the Timi Brothers on February 13th which had been received by the bank on Friday, February 16th. Murrow deposited his two checks for $27,000 and changed the bank’s penciled records, which would later be machine-posted, to show that his two checks had been received by the bank on Friday prior to those of the Timi Brothers. Murrow marked the Timis’ checks as dishonored for insufficient funds and mailed them back on the night of Sunday, February 18th. With his checks from Mangum he purchased a draft which he owed on 'the cattle. (Murrow’s position at the bank was terminated about August 1, 1973.)
Appellants’ basis for their contention of guaranty of payment by the bank and fraudulent representation as to Mangum’s ability to pay for cattle purchased by him consists of five separate contacts between them and Murrow — three by Gerald, one by Tom and one when both Gerald and Tom were present. The first contact was in January, 1973, on the first occasion appellants sold cattle to Mangum. Gerald Timi testified that at Mangum’s instance he telephoned Murrow and asked if Mangum had enough money in the bank to pay for $9,600 worth of cattle; Murrow said “Yes”; Mangum’s check for this amount was subsequently paid. Another contact occurred sometime later in January when Gerald and Tom went with Mangum to Prescott. They had coffee with Murrow in a local restaurant. Timis as individuals had already made a few sales to Mangum at this time. Gerald testified as to the conversation:
“Q. All right. Now, what was the conversation you had in the restaurant?
“A. Oh, just kind of everyday talk about the weather and this and that, and then we asked Murrow about Mike’s bank account and told him that Mike wanted to buy cattle from us and how good was he? Was he good enough to go ahead and deal with? And that was about it, other than just general BS.
“Q. This was all while you were in the restaurant having coffee?
“Q. Did Murrow indicate the amount of money he had in his account on that occasion?
“A. No, sir.
“Q. Was there any discussion about Albright?
“A. No, sir.
“Q. Just general shooting the breeze or shooting the bull; is that it?
“A. That is all, and more or less just my brother and I wanting to know how good Mike was, you know, if he was — had enough money to go ahead and pay for these cattle.
“Q. Which cattle?
“A. Well, any cattle that we would sell him. Because by this time we were —I mean, I had sold him quite a few, my brother had sold him a few head and we told him we were going to go back and buy some more cattle to put in the feed lot and [he] said, T might want to buy them if you get them.’ He said, T might buy them from you if you buy any more cattle.’
“Q. Mike said this while you were in the restaurant?
“A. Yes.
“Q. What else was said?
“A. That is about it, and we asked Murrow if he wants to buy them, is he good enough to buy them, has he got the money to buy them? He said, ‘So far as I know he has.’ Didn’t say how much he had or anything.”
Another contact was in the latter part of January on the occasion of the third sale when at Mangum’s suggestion Gerald again telephoned Murrow. Gerald testified:
“Q. What was the conversation you had with Murrow at that time?
“A. Told Murrow that Mike was wanting to buy some more cows from me, and would it be all right, is he good? And he asked me how much and I told him and he said yes — and he says, ‘Yes, we will back him up all the way.’
“Q. Did you tell him how much you were talking about?
“A. Yes.
“Q. How much was it?
“A. $6,500.
“Q. What did Murrow say about it?
“A. He just said he was good, that he would back him.
“Q. Well, now, were you asking him about backing him or were you asking him about the $6,500?
“A. I asked him if he had enough money in the bank, and he says, ‘Yes, go ahead.’
“Q. To pay the $6,500?
“A. Yes.
“Q. Okay. What else was said in that conversation?
“A. That is about all.
“Q. All right. Let me just ask you and you listen and if this is not correct, you tell me; that the substance of the conversation that you had in the early morning of January 29 with Murrow was whether or not Mangum could pay $6,500 for what, ten head of cattle? Is that correct?
“A. It was—
“Q. And he said yes?
“A. He said yes. Now, this was the early morning of the morning we loaded them, Now, what day that was, I don’t remember, if it was on the 1st and 29th or not. It was the morning we loaded the cattle. . . .”
Mangum’s $6,500 check was honored and paid.
Gerald further testified:
“A. The one [conversation] we were sitting up there drinking coffee at the — when we were buying these cattle. Okay, there was two conversations before that that I talked to him on the phone. He knew Mike, he said, ‘We are real friends.’ I knew they were real good friends. And I got the general— the idea that, hell, he was — as far as what the banker told me, Mike was good, and he had the money to pay for the cattle. . . .
“A. Okay. The two telephone calls that I made to R. G. [Mnrrow] were at Mike’s suggestion that I call and ask if Mike had the money in the bank to pay for the cattle. I did that and R. G. said yes, he was good, his checks would be paid, which they were.
“Q. (By Mr. Tucker) On the third occasion when you visited with R. G. Murrow, I believe you testified that you had this visit over coffee. On that occasion did you — what did you discuss?
“A. Mike’s ability to pay for the cattle that we were selling.
“Q. And what specifically did R. G. Murrow tell you?
“A. That so far as he knew, he had the money and that he was good.
“Q. Was this for a specific set of cattle?
“A. No, this was for any future cattle that we bought and sold. We were kind of wanting to know how good Mike was. We were wanting to look at his background a little bit, to find out a little bit about the man.
“Q. So this was your impression, then, from this conversation with Mr. Murrow?
“A. Yes.
“Q. Can you tell in any more specific detail what specifically Mr. Murrow said to you to give you this impression?
“A. Yes. Well, like I said, I can’t remember everything we said or everything we talked about, but Mr. Murrow said that Mike had been banking with him for quite awhile, had never had any trouble with any financial problems, that he always made his — well, he always had the money — seemed to have enough money for us to go ahead. He said, T don’t think you have any problem.’ That was about the general — (pause).”
The fourth contract was by Gerald Timi on February 15 at Tom Timi’s farm on the occasion of the last sale of cattle. Murrow was there helping Mangum load the cattle. Gerald testified:
“Q. What conversation did you have with Murrow on that occasion?
“A. Just some more straight BS-ing at him because he didn’t know how to load cattle, he kept slipping and falling down on ice and I got to laughing at him and I finally asked him, I said, ‘Hey, has this guy got enough money to pay for all these cattle?’ He said, ‘Yes, he is good so far as I know.’
“Q. Is that all the conversation you remember on that occasion?
“A. Yes.
“Q. And on that occasion Murrow said, ‘He is good so far as I know’—
“A. He just said he is—
“Q. Good?
“A. I don’t remember if he said so far as I know, he just said he was good enough for them. He said, ‘Yeah, he has got the money.’
“Q. Well, what did he say?
“A. I don’t remember exact words. I asked Murrow, ‘Is this guy good enough to pay for these cattle? Has he got money enough to pay for these cattle, in a joking way, I was just joking with him, just shooting the breeze with him, and I don’t remember his exact words, but it was enough to make me realize, or think that, well, we have got nothing to worry about, the banker is here loading them, he has always been good before, his money has always been good, there has never been any trouble collecting any checks from him.”
Gerald also testified that when the cattle were being loaded at Tom’s place “. . . they were shooting the breeze, and he asked in a joking way if Mangum could pay for the cattle, and Murrow said he was good as far as he knew; that there had been no mention of the purchase price that day, and no one asked if there was $31,000 in Mangum’s account.” He further testified he did not discuss with Murrow the two checks for $25,000 for cattle sold on February 8 and there was no conversation as to a guaranty that those checks were good.
The fifth and last contact relied upon by appellants was also on February 15 when Tom Timi met Murrow and Mangum on the road in the afternoon after the cattle bought that day had been loaded into trucks. Tom gave this testimony:
“A. Yes, only except when he left, after he loaded them when he was out there, I met him on the road and he stopped and I asked R. G. if he had money to pay for them heifers and he said yes.
“A. They had the cattle loaded and they was leaving.
“Q. (By Mr. Lowe) Which, now, is this the last day?
"A. That is the last 52 heifers, and Mike and R. G. was coming down the road and I stopped — or I stopped and they stopped and Mike said, ‘We got the cattle loaded,’ and I asked R. G. if he was all right to pay for them and he said yes.
“A. I just asked him if Mike had the money to pay for the heifers, and he said yes.
"Q. How much money was that?
‘‘A. $31,000.
“Q. Weren’t there 44 other head of cattle shipped that same time?
“A. That morning, yes.
“Q. But you didn’t have any conversation about them?
‘‘A. No, I didn’t.
“Q. Why was that?
“A. I guess maybe I just didn’t think about them.
“Q. You didn’t think about them?
“A. No. At least I didn’t ask him about them.
“Q. But you just asked about the $31,000?
‘‘A. Yes.
“Q. Well, you hadn’t even gotten a check, had you?
“A. No.
“Q. Never did get a check, did you?
“A. No, sir.
“Q. Why didn’t you get a check from him while you were out there on the road?
“A. Mike said, ‘I’ll be down in the morning to pay for them.’
“Q. You mean that in that conversation you didn’t even discuss the price of those 44 head of cattle that were shipped that day?
“A. No, sir.
“Q. Just so I understand you, in that conversation you made specific inquiry of Murrow if Mangum could pay $31,000 for the 52 head of Charoláis; is that right?
“A. Yes, sir, that’s right.
“Q. What did he say?
“A. He said yes.
“Q. Could he have said, ‘As far as I know’?
“A. I don’t believe he said that.
“Q. He just flatly said yes; is that correct?
“A. That’s right.
“Q. Did he tell you that he would stand good for them or anything of that kind in addition to saying yes?
“A. No.”
Tom stated he made no mention of this conversation in answers to interrogatories he had previously given although one question would have called for it. He further testified that when they were starting to deal with Mangum, Mangum had shown him a bank deposit slip for seventy some thousand dollars; the Timis’ banker in Girard, Jim Sturtevant, visited with Murrow about Mangum’s account; on one occasion Sturtevant called Murrow and inquired whether Mangum had enough money to cover two checks for a little over $20,000 which would be in and Murrow said Mangum had $46,000 in the bank that day (this conversation referred to January checks which were later honored by the Prescott bank). Tom further testified Mr. Sturtevant told him to be careful in his dealings with Mangum.
In addition to his testimony concerning his Sunday night check manipulation appellee R. G. Murrow testified concerning his contacts with the Timis. On two occasions when asked if Mangum’s check for a certain amount would olear, he advised each would; at the coffee conversation in Prescott the Timis made no inquiry as to Mangum’s financial stability and he gave no assurances as to it; in the conversation with Gerald on February 15 there was no business conversation — Gerald jokingly asked whether Mangum’s check was good; he replied that as far as he knew it was; he had no intent of making a guaranty; he had no conversation with Tom that same day on the road — Tom and Mangum did talk about a future deal; he never told Tom he was backing the deal or that Mangum had plenty of money.
Mike Mangum testified that the discussion over coffee in Prescott was in a kidding or joking mood; the Timis wanted to know if he was any good and Murrow replied that he was; he could recall no guaranties by Murrow at that time or later when Murrow was helping load cattle; when they met Tom on the road there was no conversation regarding guaranty of checks or payment.
In its journal entry rendering partial summary judgment the trial court ruled:
“■ • ■ the pleadings, depositions, and answers to interrogatories on file show that there is no genuine issue as to any material fact and that the defendants’ motion for summary judgment with reference to paragraphs numbered 6, 8, 9, and 10 of the plaintiffs’ petition be, and the same is hereby sustained. The court further advises counsel that in making this ruling the court is assuming as stated in the oral argument presented on October 3, 1974, that the plaintiffs’ petition contemplates an action against defendants based upon fraud and misrepresentation as well as upon a contract or guarantee, and the court has not placed any reliance whatsoever upon the testimony of the defendant R. G. Murrow as reflected in his deposition, but has considered only the testimony in the other depositions most favorable to the plaintiffs’ alleged cause of action.”
Appellants’ two-fold contentions here are interrelated: First, that the court erred in rendition of summary judgment because there were material issues of fact in dispute, and second, it erred in failing to place any reliance upon R. G. Murrow’s testimony. Appellants seem to be arguing in this last point that the court failed to consider all the evidence before it and that some of Murrow’s testimony raised factual issues' which cannot properly be resolved by way of summary judgment. We do not interpret the trial court’s ruling so as to reach that result. It is true Murrow denied making specific statements as asserted by appellants. This is the testimony the trial court disregarded, and properly so, in reaching its decision. Instead, as stated, it considered only the testimony most favorable to appellants’ position, as it was required to do: “Generally before a summary [judgment] may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact, and that the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case . . . The manifest purpose of a summary judgment is to obviate delay where there is no real issue of fact. A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reasonable doubt as to their existence, a motion for summary judgment will not lie. ... A court, in making its determination, must give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration” (Lawrence v. Deemy, 204 Kan. 299, 301-302, 461 P. 2d 770). . . A popular formula is that summary judgment should be granted on the same kind of showing as would permit direction of a verdict were the case to be tried. ... If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied.’ ” (Hastain v. Greenbaum, 205 Kan. 475, 481, 470 P. 2d 741.)
We cannot say the trial court erred in its treatment of Murrow’s testimony.
Most of appellants’ argument on their first contention — that material factual issues existed which made rendition of summary judgment improper — is based on the denials contained in Murrow’s testimony. These contradictions are to be ignored in considering the propriety of summary judgment and those contained in Mangum’s testimony as well. The real issue is whether appellants can recover on any theory when full credence is given to the evidence most favorable to them (here discovery was complete and there is no contention other favorable evidence exists which was not before the trial court).
Appellants’ petition was framed on the theory of oral guaranty by the bank and Murrow that Mangum’s checks would be honored and further that payment of Mangum’s cattle purchases would be guaranteed (appellees did not at trial level raise the defense of the statute of frauds with respect to an oral promise to pay the debt of another [K. S. A. 33-106] as required by K. S. A. 60-208 [c] and it may not now be considered).
Here there was no formal certification or acceptance of checks by the bank. Under K. S. A. 84-3-410 and 411 these actions by a bank are to be in writing. The Prescott bank never saw any of the checks before they were delivered to the Timis and in three instances checks were never written..
Before the enactment of the Uniform Commercial Code a check could be accepted by an agreement external to it (10 Am. Jur. 2d, Banks, § 578, p. 548). “A drawee bank makes itself liable by a contract of acceptance extrinsic to the check itself whenever the plain import of the words and language used is that of a contract of acceptance” (Id., § 581, p. 551). Assuming, without deciding, that this rule is still viable, the contract of acceptance external to the check must use language which clearly and unequivocally imports an absolute promise on the part of the bank to pay. . . [I]t seems to be a well-settled rule of law that the drawee of a check will not be liable to the holder thereof upon a claimed contract of acceptance external to the check, where the alleged agreement upon the part of the drawee is based upon its statement that the check is ‘good,’ or ‘all right,’ or words of like import. Thus generally, an affirmative response by a bank to an inquiry as to whether the check of a certain person for a named amount is good is nothing more than a statement that the drawer has at that time a deposit sufficient to meet the check, and is not an acceptance of the check by the bank.” (Id., § 582, p. 552.)
This was the holding in Bank v. Bank, 74 Kan. 606, 87 Pac. 746. There the plaintiff bank telegraphed the defendant bank: “Is J. F. Donald’s check on you $350 good?” The defendant bank replied by telegraph the same day: “J. F. Donald’s check is good for sum named”. This court held the telegram only warranted that Donald had that amount in his account at that time and not that the bank would make the check good whenever it was presented for payment. Thus it appears appellants cannot recover on the theory of an agreement of acceptance by the bank under the facts. Their specific inquiries of Murrow were directed to whether Mangum had sufficient funds in his account to cover certain checks given them. There was no request or agreement to accept certain checks and pay them anytime they might be presented.
What about the bank’s liability as guarantor of the checks and of payment of purchases where checks were not given? “A guaranty is a contract between two or more persons, founded upon consideration, by which one person promises to answer to another for the debt, default or miscarriage of a third person, and, in a legal sense, has relation to some other contract or obligation with reference to which it is a collateral undertaking” (Trego WaKeeney State Bank v. Maier, 214 Kan. 169, Syl. para. 2, 519 P. 2d 743). Like any other contract, its formation is governed by principles of mutual assent, adequate consideration, definiteness and a meeting of the minds (38 C. J. S., Guaranty, § 8, p. 1143).
Appellants do not suggest how the bank stood to benefit from its alleged guaranty to pay for cattle purchased from them by Man-gum and the evidence reveals nothing supporting the element of consideration. More importantly, the conversations between appellants and Murrow, taken in the light most favorable to appellants and disregarding any denials by Murrow or Mangum, simply do not amount to a mutual meeting of the minds that Murrow on behalf of himself or the bank would stand as guarantor for Man-gum’s checks and purchases. Aside from the two telephone calls respecting checks for a definite sum, the conversations concededly were jocular and unbusinesslike, they were indefinite and vague both as to amounts of money and cattle and scarcely went beyond wishful thinking on appellants’ part that everything would turn out all right. Murrow’s responses were qualified and equivocal and amounted to no more than statements that Mangum was sound financially so far as he knew. The guaranty contract was not shown.
Neither the record on appeal nor appellants’ brief is clear as to just what is asserted to have been fraudulently represented to appellants by Murrow on behalf of the bank. Fraud was not pleaded in appellants’ petition either in general terms or with particularity as required by K. S. A. 60-209 (b). Appellants’ brief is not helpful as to the matter relied upon as a false statement of a material fact, either past or present — the first essential to be proven in an action for fraudulent representation (Dreiling v. Home State Life Ins Co., 213 Kan. 137, 515 P. 2d 757). Fraud seems to have crept into the oase in some fashion at the hearing on summary judgment and the trial court encompassed it in its ruling. So far as we can glean any factual misrepresentation by Murrow as to Mangum’s financial condition would have to lie in the statements attributed to him: Man-gum was good; he was good enough to go ahead and deal with; he had money with which to buy cattle; he was good so far as known; we will back him up all the way (this with reference to a $6,500 check which was honored); Mangum’s checks would be paid (referring to checks which were in fact later paid); so far as known Mangum was good and he had the money (this was for future purchases of cattle); he always seemed to have enough money; Murrow didn’t think appellants had any problem; Mangum could pay $31,000 for fifty-two head of cattle; he was “all right” to pay for cattle.
Mere recital of the statements upon which appellants must rely demonstrates the weakness of their position. To constitute actionable fraud the representation must relate to past or present fact, as opposed to mere opinions or puffing or promised actions in the future (Hawthorn-Mellody, Inc. v. Driessen, 213 Kan. 791, 518 P. 2d 446). A fact is material if it is one to which a reasonable person would attach importance in determining his choice of action in the transaction involved (Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P. 2d 198, 205). Here, again as with the alleged guaranty, the statements in question are equivocal, vague and indefinite. Many of them are clearly qualified by the statement, “so far as I know”. There is no indication Murrow was falsifying in this respect — in fact the contrary appears. He was trusting Mangum in a cattle sale he had made with Mangum in which he took checks. There is no showing in the record as to Mangum’s other business transactions or his financial condition at any one time, just what caused him to come up short or that Murrow had any knowledge respecting Mangum’s impending financial shortage. Wrongful concealment on Murrow’s part was not shown. Some of his statements to appellants were patently matters of opinion and some related to actions in the future. False representation requisite to a fraud action was not shown.
Appellants’ situation does not bring them within the ambit of our rulings in Wolf v. Brungardt, 215 Kan. 272, 524 P. 2d 726, in which in a complex situation a bank customer was permitted recovery against a bank ofiicer for fraud (and breach of contract) in connection with the purchase of a business. The banker concealed information concerning a failing business in which he persuaded a nineteen year old boy and his mother to invest, using money borrowed from the bank. Concealed was the fact the business owed the bank a large indebtedness. Here there is no evidence of concealment or withholding of information by one in a position superior to another inexperienced in the particular business.
Of no more comfort to appellants’ case is Sparks v. Guaranty State Bank, 179 Kan. 236, 293 P. 2d 1017, and 182 Kan. 165, 318 P. 2d 1062. In Sparks the plaintiff, a Cloud county resident, sold eggs on two separate occasions to a Topeka egg buyer and in payment received checks drawn on the defendant Topeka bank. Just after the second sale, he received a notice from the bank that the first check had been protested. He immediately drove to Topeka, intending to repossess as many eggs as he could, but he first stopped at the bank. A bank officer represented to and assured plaintiff the buyer was not in financial difficulty but was solvent, without doubt he would be paid the check within a week or two, and that the check was the first one given by the buyer which the bank had protested. The plaintiff was persuaded to leave the check at the bank for collection and to refrain from repossessing any of the eggs or taking any legal action to recover the amount of the check from the buyer. In fact, on the date these representations were made, the bank knew the buyer was insolvent, it had previously protested other checks drawn by the buyer and knew the buyer had a substantial “float” of checks waiting at the bank to be paid. After the representations were made the bank, pursuant to a chattel mortgage and note executed to it by the buyer, took possession of the buyer s inventory, including some of plaintiff’s eggs, sold them and applied the proceeds to reduce the buyer’s indebtedness to it. Later the bank protested plaintiff’s second check and it was never paid. Plaintiff was granted judgment against the bank for the amount of the two checks because of false representations by the bank’s officer in reliance upon which plaintiff was induced to forbear the remedies of self-help and legal action then available, as a result of whioh the bank materially profited. This court affirmed. Again there is no similarity in the facts here, putting aside the pending transaction wherein banker Murrow manipulated the records for his own preference.
Appellants say they should have been notified sooner of Mangum’s financial instability so they could have exercised self-help or legal action in time to recoup at least a part of their losses. They argue Murrow had a duty on the evening of Sunday, February 18, when he discovered Mangum was going broke, to get in touch with them and state the truth. In fact appellants learned of Mangum’s insolvency prior to the time Murrow did and they did immediately attempt, unsuccessfully, by legal action and otherwise, to reclaim their cattle from Albright, who had purchased the last several groups.
Giving appellants the benefit of every favorable inference which can be drawn from the evidence, they did not establish a case submissible to a jury and could not recover on any theory. No genuine issue existed as to any material fact. Trial would have been futile and the matter was correctly terminated by summary judgment.
Judgment affirmed.
approved by the court.
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Per Curiam:
On June 17, 1976, Anthony Raymond Russo voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is By Order of the Court Considered and Accepted.
The Clerk of this Court is Ordered and Directed to mark the certificate Void and to Strike Anthony Raymond Russo’s name from the roll of attorneys.
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The opinion of the court was delivered by
Foth, C.:
Richard L. Nesmith appeals from convictions for aggravated burglary and felony theft.
In the early morning of September 22, 1974, Tanya Ayers returned with her date to the home of her parents in Salina. She observed a person carrying something and walking between her home and that of a neighbor. The stranger disappeared and a car engine soon started; she and her date then followed a car which left from down the street. They observed two persons in that car; the driver appeared to be a man. She later was able to observe the driver, whom she identified as Nesmith, when his car turned a comer and the lights of her vehicle shone on him. After making a U-tum she was also able to observe the passenger, the defendant’s wife.
Upon Miss Ayers’ return home her parents were aroused and it was established that property was missing from the house. The police were notified and Officer Ivey arrived about 2:30 a. m. Proceeding to the address to which the suspicious vehicle had been trailed the officer found Nesmith and his wife in the front seat of the car and placed them both under arrest.
The suspects and car were taken to the police station where the couple was booked and searched, and where the car was searched pursuant to a warrant. Mr. Ayers’ lighter, pocketknife and silver dollar were found in the defendant’s pocket and his watch was found hanging from the gearshift of the car. His wallet containing $73 in cash, Mrs. Ayers’ purse containing $30 in cash, an ice bucket, a teapot, and a number of other household items identified by the Ayerses were found near the scene of the arrest.
Later that morning Tanya Ayers was called to the police station to make out reports. At that time she observed a photograph of the defendant lying on a desk, and she also observed the defendant himself seated in the booking cage. She testified that neither the photo nor the defendant were in any way called to her attention, nor was she at that time asked to identify either.
Four trial errors are alleged:
Appellant first claims error in permitting Tanya Ayers to make an in-court identification. The contention is that her identification was tainted by allowing her to view the single photo of Nesmith and to observe him in the booking cage. The test to be applied to the booking cage observation is whether in the totality of circumstances the incident was “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny due process of law. (Stovall v. Denno, 388 U. S. 293, 302, 18 L. Ed. 2d 1199, 87 S. Ct. 1967. See also, Neil v. Biggers, 409 U. S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375; State v. Deffenbaugh, 217 Kan. 469, 536 P. 2d 1030.) Similarly, the test as to the photographic identification is whether it was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States, 390 U. S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967. See also, State v. Colin, 214 Kan. 193, 519 P. 2d 629.)
In Neil v. Biggers, supra, the United States Supreme Court enumerated the factors to be considered in evaluating the likelihood of misidentification: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying those factors, we note that Tanya had clearly seen the defendant in her headlights only a matter of hours prior to the station house identification and that she was unaided in recognizing the photo and the defendant at the police station.
As she further testified, neither the photo nor the defendant in the booking cage were brought to her attention. In the case of the photo it was simply lying on the desk and she picked it up and recognized the man she had seen earlier in her headlights. This case is therefore unlike those cited by appellant: Kimbrough v. Cox, 444 F. 2d 8 (4th Cir. 1971); United States v. Fowler, 439 F. 2d 133 (9th Cir. 1971); Mason v. United States, 414 F. 2d 1176 (D. C. Cir. 1969). In each of those cases the police approached the witness with a single photo and asked if that was the man. It also differs from United States v. Clark, 289 F. Supp. 610 (E. D. Pa. 1968), cited by appellant, wherein witnesses viewed a group of men through a one-way mirror. That identification, much like a lineup, was improper due to lack of counsel under United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.
In State v. Kearns, 211 Kan. 158, 505 P. 2d 676, cert. den. 414 U. S. 841, 38 L. Ed. 2d 77, 94 S. Ct. 96, this court considered a similar situation in which the complainant Zimmerman was called to the station to identify recovered property. While there he saw the men arrested for the crime at the far end of a room he passed through, and was told that the pair was being booked for stealing the items he came to identify. We said:
, . At a pretrial hearing on appellant’s motion to suppress Zimmerman testified that, while his glimpse of the two suspects at the police station may have jogged his memory, his identification of appellant was definitely based on what he saw in his store, and not on what he saw at the police station. . . . In addition, it is clear that such encounter as there was came about inadvertently, and not through any solicitation, ruse or scheme of the police. Zimmerman thought the information that appellant and Roberts were suspects came to him from a non-police connected source — he wasn’t sure. Further, although the exact time of the incident does not appear in the record it does appear that Zimmerman was at the police station ‘that evening,’ following appellant’s arrest at about 6:30 p. m. See State v. Kress, 210 Kan. 522, 502 P. 2d 827; State v. Meeks, 205 Kan. 261, 469 P. 2d 302, and cases cited. These factors — the short interval of time, the inadvertance, the independent in-court identification — together lead us to conclude that Zimmerman’s identification of appellant was properly received.” (pp. 161-2.)
Kearns was followed in State v. Deffenbaugh, supra. There the complainant Menzie was called to the courthouse for a lineup and immediately upon emerging from an elevator recognized the defendant in a crowd and so informed a police officer. This court noted:
“. . . In regard to the confrontation between Menzie and defendant in the hall of the courthouse prior to the lineup the evidence is undisputed that it occurred through mere chance or accident. In State v. Kearns, [supra], we held that the fact a witness may have inadvertently observed the defendant at the police station within a few hours of his arrest does not render inadmissible an independent in-court identification based primarily on the witness’s observations at the scene of the crime.” (217 Kan. at 472.)
Even if it be assumed the station-house procedures were irregular, the in-court identification stands on its own. “If an in-court identification is based on a witness’ observation at the time of the occurrence, the in-court identification is capable of standing even though the pretrial identification procedures may have been deficient [citations omitted].” (State v. Estes, 216 Kan. 382, 386-7, 532 P. 2d 1283. And cf., United States v. Wade, supra at 240.) The witness here had an opportunity to view the defendant in circumstances so suspicious that her attention would have been focused closely on his features. She testified that her in-court identification was based solely on those observations, unaided by anything occurring later. Her observations were sufficient to afford an independent basis for the in-court identification, and it was not error to permit her to make it.
Appellant next contends that his arrest was without probable cause, and thus the trial court erred in refusing to suppress evidence seized both from the defendant and from the automobile. The motion to the trial court went only to items taken from the car and was doubtless denied since the search was made pursuant to a warrant. Since the trial court had no opportunity to rule as to items taken from the person, the point is not properly before us. State v. Jones, 214 Kan. 568, 521 P. 2d 278; State v. Osbey, 213 Kan. 564, 517 P. 2d 141. Nevertheless, the facts as previously stated establish probable cause sufficient to support a warrantless arrest. “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man’s believing that a crime has been committed at or before the time of arrest.” (State v. Curtis, 217 Kan. 717, 721, 538 P. 2d 1383; State v. Brown, 198 Kan. 473, 477, 426 P. 2d 129.) The defendant was observed in the early morning hours carrying something away from the scene of a burglary and was followed to the place where he was arrested. These circumstances furnished probable cause for the arrest. The search, being incident to a valid arrest, was not unreasonable. State v. Clark, 218 Kan. 726, 544 P. 2d 1372; State v. Tygart, 215 Kan. 409, 524 P. 2d 753.
Appellant’s third point is that the conviction for aggravated burglarly is unsupported by the evidence. The contention is without merit. In addition to the facts already stated, Mr. and Mrs. Dallas Ayers, Tanya’s parents, testified that the stolen items had been in the house when Mrs. Ayers retired at 12:30 a. m.
K. S. A. 21-3716 provides:
“Aggravated burglary is knowingly and without authority entering into or remaining within any building ... in which there is some human being, with, intent to commit a felony or theft therein.”
Entry, like any element of a crime, may be proven by circumstantial evidence. State v. Townsend, 201 Kan. 122, 439 P. 2d 70, and cases cited therein. Clearly, human beings were in the house, as well as the objects stolen, when the Ayerses went to bed. Their property was gone when they woke up. This is sufficient evidence from which the jury could have found that someone entered the Ayers house, without authority, while they were there, with intent to steal.
Finally, appellant claims the theft conviction must be reversed because the trial court did not instruct the jury that it had to find the value of the stolen property to be of the value of fifty dollars or more. Below no objection was made to the instruction given, and no request was made for any additional instruction. We therefore cannot review the point unless the omission was clearly erroneous. K. S. A. 22-3414 (3); State v. Smith, 215 Kan. 865, 528 P. 2d 1195.
In State v. Smith, supra, the defendant was convicted of criminal damage to property. Like theft, that crime has two degrees, the demarcation between felony and misdemeanor being $50 in damage. The trial court did not instruct on the lesser degree and denied a motion for a finding of guilty on the lesser offense. This court noted:
“In charging the jury in a' criminal case, it is the duty of the district court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate language of the court.” (p. 866.)
The court went on to quote K. S. A. 21-3107 (3), requiring an instruction on lesser included offenses of which the accused might be found guilty under the charge and “upon the evidence adduced.” Since the evidence in that case did not incontrovertibly establish the amount of the damage, the omission was found to be clearly erroneous. The court therefore set aside the felony sentence and ordered the defendant resentenoed for a misdemeanor.
State v. Piland, 217 Kan. 689, 538 P. 2d 666, presented the same problem in the context of a theft case: the instruction on theft failed to include the element of value. The property stolen was an uncertain quantity of candy, cookies, gum and money from a vending machine. Piland, however, unlike the defendant here, objected to 'the instruction. The trial court had justified its refusal to instruct on value because it found no basis in the evidence from which the jury could have found the value of the stolen property to be less than $50. This court said:
“. . . We do not regard the evidence as quite that conclusive or compelling. The sole testimony of value came from Mr. Criser, who operated the vending machine. He testified there was approximately fifty dollars ($50) lost on merchandise and twenty-five dollars ($25) in nickels, but his figures as to the merchandise loss were obviously estimates. Mr. Criser’s testimony wavered between retail and wholesale value; he had not counted nor did he know how much stock remained in the machine after the theft; and he ‘guessed’ how much stock was held in storage.
“The defendant contended at the trial that the jury should evaluate the testimony given by Mr. Criser, ‘as the jury may not believe all what [sic] the owner of the vending machine . . . testified.’ In view of the equivocal nature of portions of Mr. Criser’s testimony we are inclined to agree that value was in issue.” (p. 692.)
The result was a reversal, consistent with our holding:
“Where, in a prosecution for theft under K. S. A. 21-3701 (Weeks 1974), the value of the property stolen is in issue, the trial court should instruct the jury with respect to the element of value and should require the jury to make a finding as to value.” (Syl. Para. 3.)
Here, of course, there was no issue as to value. Currency in the amount of $103 was recovered, together with the watch, knife, silver dollar, and other property. The defendants testimony was that someone stole his automobile — it was returned, someone ran away, and defendant and his wife got into it shortly before their arrest. The question presented to the jury was not how much was stolen, but who stole the $103.
The instruction given was PIK Criminal § 59.01, before its 1975 amendment by the PIK committee. In its present form the pattern instruction, in an obvious response to Piland, requires the jury to find the value of the stolen property. There is no doubt the present version reflects the better practice.
The question remains whether the omission is fatal to the conviction here. The problem is closely related to that of lesser included offenses. An instruction on such an offense is required only where there is some evidence to- support a conviction of the lesser crime. State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967; State v. Smith, supra; State v. Masqua, 210 Kan. 419, 502 P. 2d 728. Here, with no dispute as to the $103 stolen, an instruction on misdemeanor theft was clearly not required, even if one had been requested. When the jury was instructed on, and found the presence of, all the statutory elements of “theft,” the conviction here was necessarily for felony theft. We conclude the omission of the element of value under these circumstances was not “clearly erroneous” so as to require reversal in the absence of an objection.
The convictions are affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Owsley, J.:
This is a proceeding for a writ of habeas corpus following the arrest of the petitioner, Alan J. Greenbaum, pursuant to a warrant issued by the Governor of Kansas in response to an extradition requisition brought by the Governor of Texas. The Sedgwick district court denied Greenbaum’s petiton for relief whereupon he perfected an appeal to this court.
The facts leading to petitioner’s arrest may be summarized briefly. On or about March 13, 1975, the Tarrant County, Texas, grand jury returned three bills of indictment against Greenbaum. In case No. 3581, Greenbaum was charged in four separate felony counts with various illegal and fraudulent sales of securities to a Mrs. Ida Joe Phelps on March 15, 1972. All of the named offenses were alleged to have been committed in Texas. In case No. 3582, Greenbaum was charged with five felony counts involving the sale of securities in Texas to the same Mrs. Phelps on January 8, 1972. The indictment further alleged that Greenbaum was absent from Texas from January 8, 1972, through March 6, 1975, except for October 2, 1972. In case No. 3583, Greenbaum was charged in five felony counts with violations of the securities law in the sale of securities in Texas to R. Mitchell Baxter on or about March 22, 1972. Nowhere in the indictments was it alleged that any of the acts occurred outside Texas.
As a result of these indictments, the district attorney for Tarrant County, Texas, initiated an “Application for Requisition” with the Governor of Texas, requesting the arrest and return of the petitioner from the State of Kansas. In the application the district attorney stated that petitioner had been charged with violation of the Texas Securities Act, which said crime was alleged to have been committed in Tarrant County, Texas. Alleging that petitioner was a fugitive from Texas and had taken refuge in Kansas, the application acknowledged that “. . . although the said accused was not personally present in the State of Texas at the time of the commission of the said crime that the accused performed acts outside the State of Texas which resulted in the described offense within the State of Texas. . . .”
In response to the application, the Governor of Texas thereupon made demand on the Governor of Kansas for the extradition of petitioner to Texas. The requisition affirmed that petitioner had been charged with the violation of the Texas Securities Act, contrary to Art. 581-29, V. A. T. S., “by intentionally committing an act in the State of Kansas resulting in said crime in this State.”
On September 12, 1975, the Governor of Kansas issued a warrant for the arrest and rendition of petitioner to the Texas authorities. Pursuant to this authority, petitioner was arrested by the Sedgwick county sheriff. Petitioner immediately filed a writ of habeas corpus which was heard and denied by the Sedgwick district court.
Extradition is governed by the Kansas Uniform Criminal Extradition Act (K. S. A. 22-2701, et seq.). Section 22-2703 thereof covers extradition of a fugitive who was “present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state.” It provides, inter alia, that no demand for extradition of a person charged with a crime in another state shall be recognized by the governor of this state unless the accompanying indictment, information affidavit or affidavit made before a magistrate substantially charges the person demanded with having committed a crime under the law of that state.
In the instant case, petitioner was not charged with having been in the demanding state at the time of the commission of the crimes. To the contrary, the written requisition demand issued by the Texas Governor alleged that petitioner committed acts in the State of Kansas which resulted in crimes in Texas. This brings into operation K. S. A. 22-2706, which permits the extradition of any person charged with committing an act in this state, or in a third state, intentionally resulting in a crime in the demanding state. That section reads:
“The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 22-2703 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.”
Both 22-2703 and 22-2706 are identical to the corresponding provisions of the Uniform Criminal Extradition Act and the constitutionality of these provisions has been upheld on numerous occasions. (See, 11 U. L. A. Crim. Law and Proc., §§3 and 6, and the cases cited therein.) The problem in the instant case arises from the fact the indictments accompanying the governor’s requisition failed to formally charge petitioner with having intentionally committed acts in Kansas resulting in offenses in Texas. Petitioner argues the Kansas Governor’s warrant was fatally defective because of this omission.
Petitioner urges this court to follow the line of authority which holds that statutes such as 22-2706, which provide for extradition of non-fugitives, should be strictly construed. For cases from other jurisdictions which follow this principle, see Com. ex rel. Spivak, Appellant, v. Heinz, 141 Pa. Super., 158, 14 A. 2d 875 (1940), and Matthews v. People, 136 Colo. 102, 314 P. 2d 906 (1957). Although we are aware of the constitutional limits on the extradition of non-fugitives which must be closely adhered to, it has been the often stated position of this court that the governor’s warrant issued in an extradition proceeding is presumed to be valid and regular in all respects, thus casting the burden of proof upon the petitioner to overcome the prima facie case made by the warrant. (McCullough v. Darr, 219 Kan. 477, 548 P. 2d 1245; Dean v. Sheriff of Leavenworth County, 217 Kan. 669, 538 P. 2d 725; Woody v. State, 215 Kan. 353, 524 P. 2d 1150, cert. den. 419 U. S. 1003, 42 L. Ed. 2d 278, 95 S. Ct. 322; McTigue v. Rhyne, 180 Kan. 8, 298 P. 2d 228; Powell v. Turner, 167 Kan. 524, 207 P. 2d 492, cert. den. 338 U. S. 835, 94 L. Ed. 509, 70 S. Ct. 41.)
in an attempt to meet this burden petitioner attacks the governors warrant on the basis of the insufficiency of the supporting indictments. A careful reading of 22-2706 demonstrates that in order to extradite a person not present in the demanding state at the time of the commission of the crime, the person must be charged “in the manner provided in section 22-2703 with committing an act in this state, or in a third state, intentionally resulting in a crime” in the demanding state. By reference to 22-2703, it is clear that the governor’s demand must be accompanied by an indictment, information affidavit, or affidavit made before a magistrate, substantially charging the person with a crime under the laws of the demanding state. Petitioner contends the language of the two statutes read in pari materia requires that the indictment, information or affidavit charge him with committing an act in this state, or in a third state, intentionally resulting in a crime in the demanding state. Since the indictments against petitioner all charged the acts took place in Tarrant County, Texas, and none of the indictments alleged the illegal acts took place outside the State of Texas, petitioner argues the Governor of Kansas lacked jurisdiction to issue his warrant.
In support of his position petitioner cites the case of Ennist v. Baden, 158 Fla. 141, 28 So. 2d 160 (1946), where under similar facts the Supreme Court of Florida held that a New York indictment was insufficient to warrant the accused’s extradition for failing to charge him with committing in Florida, or in a third state, an -act intentionally resulting in a crime in the demanding state. To the same effect are People ex rel. Butler v. Flood, 29 App. Div. 2d 692, 287 N. Y. S. 2d 150 (1966), and People ex rel. Coryell v. Flood, 36 App. Div. 2d 977, 322 N. Y. S. 2d 162 (1971), from the New York Supreme Court.
While we acknowledge that a strict construction of the statutes involved could lead to the conclusion now urged upon us by petitioner, we believe the better rule is to judge the substantiality of the “charge” for purposes of extradition by consideration of the indictments in conjunction with the supporting requisition documents. A case in point is In Re Cooper, 53 Cal. 2d 772, 3 Cal. Rptr. 140, 349 P. 2d 956 (1960), appeal dismissed and cert. den. 364 U. S. 294, 5 L. Ed. 2d 83, 81 S. Ct. 104. In an appeal from a habeas corpus proceeding wherein petitioner challenged extradition to Pennsylvania, the Supreme Court of California held extradition was proper despite the fact the Pennsylvania indictments alleged only that the petitioner committed crimes in that state. The court noted that along with the demand was an affidavit made before a magistrate by an investigator of the district attorney’s office, which alleged that petitioner did the illegal acts in the State of California and it intentionally resulted in the commission of crimes in Pennsylvania. Relying on these documents the court concluded:
“Since section 1548.2 [counterpart of K. S. A. 22-2703] provides that the essential facts may be charged either by an indictment, an information, or by an affidavit made before a magistrate, it is immaterial that the indictments did not allege the commission of acts in this state intentionally resulting in crimes in Pennsylvania. Such allegations were expressly set forth in the affidavits.” (p. 777.)
The court further reasoned:
“Sections 1549.1 [counterpart of K. S. A. 22-2706] and 1548.2 [counterpart of K. S. A. 22-2703] do not provide that the indictment alone or the affidavit alone must sufficiently allege all of the facts necessary to support extradition under section 1549.1. To add such a provision would exalt form over substance. Protection from unjustified extradition does not lie in reading into the extradition laws purely technical requirements that a forewarned prosecutor could easily meet, but in the sound judgment of the respective Governors charged with the administration of those laws. Their judgment is entitled to great weight. As the United States Supreme Court stated, in reviewing the sufficiency of an affidavit to support extradition pursuant to federal law, ‘When it appears, as it does here, that the affidavit in question was regarded by the executive authority of the respective States concerned as a sufficient basis, in law, for their acting — the one in making a requisition, the other in issuing a warrant for the arrest of the alleged fugitive — the judiciary should not interfere, on habeas corpus, and discharge the accused, upon technical grounds, and unless it be clear that what was done was in plain contravention of law.’” (p.779.)
In a similar situation the Supreme Court of Nebraska held it was immaterial that the complaint attached to the requisition papers did not allege the commission of acts in Nebraska intentionally resulting in a crime in Kansas when the governor’s requisition made such facts clear. (State of Kansas v. Holeb, 188 Neb. 319, 196 N. W. 2d 387 [1972].) The court said:
“Appellee attacks the extradition proceedings on the ground that there is some variance between the complaint and the facts shown in the requisition papers. As mentioned above, the check was actually drawn and made in Nebraska rather than in Kansas as alleged. The requisition does reveal the true facts and is sufficient to apprise appellee of the true nature of the offense charged. It clearly appears that appellee is charged with doing certain acts in Nebraska which resulted in a crime in Kansas. The variance is not fatal. It is immaterial that the complaint did not specifically allege the commission of acts in this state intentionally resulting in a crime in Kansas when the requisition makes such facts clear. [Citations omitted.] In People ex rel. Robert v. Warden of New York City Prison, 114 N. Y. S. 2d 13, it was held: ‘Substantial rights of citizens must be protected, but constitutional and statutory provisions relating to interstate extradition must be liberally construed to effectuate their purpose, and courts of one state must avoid a view of their duties so narrow as to afford permanent asylum to offenders against laws of another state.’ ” (pp. 321, 322.)
For cases from other jurisdictions which have looked beyond the indictment to other requisition papers to determine the adequacy of the “charge” in extradition cases, see: In Re Harris, 170 O. S. 151, 163 N. E. 2d 762 (1959) (where the court considered both the affidavit of the complaining witness and the application for requisition made by the district attorney to establish that the act of defendant was committed in Ohio and intentionally resulted in a crime in Wisconsin), and Ex Parte Arrington, 270 S. W. 2d 39 (Mo. 1954) (where the court looked to all of the requisition papers before the governor to establish the facts required by the statute even though technically the demand did not contain the words “present in the demanding state.”)
In the instant case, the Texas Governor’s demand states that petitioner was charged with violation of the Texas Securities Act by intentionally committing an act in Kansas resulting in a crime in Texas. All of the accompanying indictments charge that the prohibited acts took place in Texas. The indictments, however, point out that petitioner was absent from the State of Texas during the period in which the Texas violations were alleged to have occurred. In fact, the deposition of the complainant, Phelps, which was introduced by petitioner, confirms the prohibited acts took place in Kansas.
The requisition papers also included the district attorney’s “Application for Requisition,” sworn to before a magistrate, which averred that petitioner performed acts outside the State of Texas which resulted in the described offense within the State of Texas. Petitioner does not dispute that the acts complained of were committed in Kansas, nor does he deny they resulted in a crime in Texas. His sole complaint is the failure of the indictments to specifically allege that the acts were done in Kansas. Under these circumstances, we cannot say the failure of the indictments to formally charge petitioner with committing an act in Kansas intentionally resulting in a crime in Texas was fatal to the extradition. Petitioner’s complaint amounts to little more than a techni cality, which should not operate to void an otherwise valid extradition. (McCullough v. Darr, supra; Dean v. Sheriff of Leavenworth County, supra.)
The judgment of the lower court denying petitioner’s writ of habeas corpus is affirmed.
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Per Curiam:
Petitioner, Edward L. Kirk, appeals from a ruling of the trial court denying relief in proceedings under K. S. A. 60-1507.
In 1970 petitioner was convicted of first degree burglary and larceny. This conviction was affirmed in State v. Kirk, 208 Kan. 645, 493 P. 2d 233. On October 2, 1974, petitioner filed a motion pursuant to 60-1507. The motion failed to allege unusual circumstances or an intervening change in the law which would justify reconsideration of points raised in petitioner’s direct appeal. The motion was overruled without an evidentiary hearing and an appeal was taken. While the appeal was pending court-appointed counsel filed a motion for a rehearing. This motion was likewise denied and this appeal from both rulings followed.
On appeal petitioner specifies several points, but briefs only two. The other points must be deemed abandoned. (State, ex rel., v. Unified School District, 218 Kan. 47, 542 P. 2d 664.) The points argued by petitioner relate to his alibi defense and the conduct of his attorney. Roth points were considered and resolved by this court in State v. Kirk, supra. A proceeding pursuant to 60-1507 may not be utilized as a substitute for a second appeal. (Supreme Court Rule No. 121 [c] [3], 214 Kan. xxxviii; Tillman v. State, 215 Kan. 365, 524 P. 2d 772.)
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an action brought by War ren G. Woods (plaintiff-appellant) to recover damages for the wrongful death of his son, Steven Marsh Woods, an employee of Coonrod & Walz Construction Company, Inc. Steven’s death resulted from injuries when he was struck by an aircraft owned by Cessna Aircraft Company and operated by two Cessna employees, Ronnie D. Lowe and Joe G. Couch. The Sedgwick County District Court granted summary judgment in favor of Cessna Aircraft Company, Ronnie D. Lowe and Joe G. Couch (defendantsappellees) finding the Kansas Workmen’s Compensation Act provided the exclusive remedy for the appellant.
The question presented is whether the work of Coonrod & Walz Construction Company, Inc., an independent contractor, was necessarily inherent in and an integral part of Cessna Aircraft Company’s trade or business so as to make Steven Woods, who was an employee of Coonrod, a statutory employee of Cessna under K. S. A. 44-503 (a) (now K. S. A. 1975 Supp. 44-503 [a] and thereby preclude his father from recovering in a wrongful death action against Cessna and two Cessna employees.
Cessna Aircraft Company (hereafter Cessna) is a large airplane manufacturer in Wichita. Ronnie G. Lowe and Joe G. Couch were Cessna employees at all times involved herein. Coonrod & Walz Construction Company, Inc., (hereafter Coonrod) is a large construction company in Wichita which employs union men in the various construction trades. Steven Woods was a college student employed part time by Coonrod as a timekeeper. His duties consisted of keeping track of Coonrod employees’ work hours, bringing paychecks to workers on the construction sites and running errands.
Coonrod has often won bids to do construction work for Cessna. Over the years fifteen to twenty percent of Coonrod’s construction work was performed at Cessna. On January 23, 1973, Coonrod had four construction contracts with Cessna. One contract was for the construction of a hangar with a 150 foot clear span for the Wallace Division of Cessna, manufacturer of Citation jet aircraft. Pertinent to this appeal, the contract provided Coonrod would maintain workmen’s compensation and employer’s liability insurance.
Steven Woods spent most of his time working at the Coonrod projects on Cessna’s premises. On January 23, 1973, Steven brought payroll checks from Coonrod’s downtown office to the Cessna construction site trailer. He then went outside. While standing on a Cessna taxiway Steven was struck by a Cessna airplane being taxied by Ronnie D. Lowe and Joe G. Couch. He died on January 25, 1973.
Steven left neither widow nor surviving children. Warren G. Woods, Steven’s father, is the sole surviving heir-at-law of the decedent. Warren sued Cessna, its employees, and the manufacturer and supplier of aircraft brake components for $50,000 for the wrongful death of Steven and for $4,218 for medical, hospital and funeral expenses and costs.
Cessna filed a motion for summary judgment after the issues were joined by the pleadings. The trial court considered deposition testimony, the contracts between Cessna and Coonrod and affidavits of Cessna’s employees and sustained the motion for summary judgment. It found Coonrod’s construction work was necessarily inherent in and an integral part of Cessna’s business; that Steven was engaged in the execution of the work under Cessna’s contract with Coonrod at the time of his death; that Ronnie D. Lowe and Joe G. Couch were employees of Cessna; and that Steven was a statutory employee of Cessna by virtue of K. S. A. 44-503 (a). Since Steven was a statutory employee of Cessna, the trial court held a wrongful death action could not be maintained. Appeal has been duly perfected.
The relative positions of the parties are apparent by noting the effect of the trial court’s ruling. Because the decedent had no dependents, if the trial court is correct, K. S. A. 44-510b (a) (now K. S. A. 1975 Supp. 44-510b [i]) limits the recovery of a workman who dies without leaving any dependents to $750. Had the decedent left dependents, it is not inconceivable the parties may have taken legal positions directly opposite to those taken here. Nevertheless the same rule must govern a given set of facts whether invoked for the benefit of an employer or an employee. (Shuck v. Hendershot, 185 Kan. 673, 347 P. 2d 362; and Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P. 2d 737.)
The trial court granted the appellees’ motion for summary judgment. We have held that before summary judgment may be granted under K. S. A. 60-256 (c) the record must show that there remains no genuine issue as to a material fact; that when ruling on a motion for summary judgment, the district court must overrule the motion when any doubt exists whether there remains a genuine issue of material fact, and that the evidentiary material presented by the party opposing the motion must be taken as true and given the benefit of all reasonable inferences. (Thompson v. Anderson, 209 Kan. 547, 555, 498 P. 2d 1, 55 A. L. R. 3d 710.)
With this background we now examine the appellant’s claims, looking first to the exclusive remedy provided by the Workmen’s Compensation Act. K. S. A. 44-501 (now K. S. A. 1975 Supp. 44-501) states in part:
. . Save as herein provided, no such employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under this act. . . .”
It is well settled that if a workman can recover workmen’s compensation under the Workmen’s Compensation Act for an injury the remedy is exclusive, and he cannot maintain a common law action for damages founded upon negligence against a party from whom he could have recovered compensation under the Act. (Anderson v. Beardmore, 210 Kan. 343, 345, 502 P. 2d 799; Hanna v. CRA, Inc., 196 Kan. 156, 158, 409 P. 2d 786; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 203, 231 P. 2d 239, and authorities cited therein.)
The appellant attacks the constitutionality of this rule. He contends taking away a statutory remedy for wrongful death without providing some substitute remedy and benefit would be a denial of due process of law.
The appellant’s brief argument cites no authority to support his position. Suffice it to say the Workmen’s Compensation Acts of Kansas and other states have been upheld against similar due process attacks. (Shade v. Cement Co., 93 Kan. 257, 144 Pac. 249; 81 Am. Jur. 2d, Workmen’s Compensation, § 21, pp. 715-716; and 99 C. J. S., Workmen’s Compensation, § 19e [1], pp. 74-75.)
In Spade v. VanSickle, 175 Kan. 557, 265 P. 2d 860, a workman died without dependents. The court held his mother, who filed a common law action for negligence against the employer, was not entitled to maintain the action. Recovery was limited to the Workmen’s Compensation Act. (See also Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, 545 P. 2d 317.)
The Workmen’s Compensation Act is designed to provide broad coverage by covering employees of certain contractors and subcontractors. K. S. A. 44-503 (a) provides:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him. . . .”
Since Cessna, as principal in this case, had undertaken by contract to have the construction work on its premises executed by an independent contractor, the only question we have for determination is whether Steven was a statutory employee of Cessna under 44-503 (a), supra.
In making this determination the court must consider the purpose of 44-503 (a), supra. In Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613, it was held:
“A prime purpose of section 44-503 of the workmen’s compensation act is to give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.” (Syl. 4.)
(See also Hanna v. CRA, Inc. supra.)
The appellant contends since Cessná’s contract with Coonrod required Coonrod to carry workmen’s compensation and employer’s liability insurance, that Cessna had contracted in avoidance of 44-503 (a), supra, and that the trial court erred as a matter of law in granting summary judgment to Cessna, who now claims they are a statutory employer under 44-503 (a), supra.
It is plain that Cessna could not by their agreement with Coonrod do away with liabilities imposed by operation of law even if Cessna desired to do so. (Lessley v. Kansas Power & Light Co., supra at 209.) We attribute no legal significance to the contract between Cessna and Coonrod requiring Coonrod to maintain workmen’s compensation and employer’s liability insurance. This is not avoidance of liability, but rather allows the principal to insist upon the appropriate compensation protection for the contractor’s employees. (1A Larson, Workmen’s Compensation Law, §49.11 [1973].)
The tests to be applied in resolving cases of this nature are set forth in Hanna v. CRA, Inc., supra, where the court stated:
“This court has laid down two rather definite tests by which to determine whether the work covered by a contract is part of the principal’s trade or business, i. e., (1) is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
“If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employees sole remedy against the principal is under the Workmen’s Compensation Act.” (pp. 159-160.)
(See also Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10.)
The appellant argues both of these tests must be met. While there may be some overlapping under these tests, it is clear the alternative is contemplated.
Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? On the record here presented the evidence is inadequate to answer this question in the affirmative. Here there is no evidence to indicate that Cessna employees would ordinarily perform construction work. There is no evidence that Cessna employees have previously constructed any hangars, or that it has the necessary skilled employees and special equipment necessary to perform such construction work.
Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business?
Whether an employee of an independent contractor engaged in construction work for a manufacturer is a statutory employee of the manufacturer under K. S. A. 44-503 (a), because his work is necessarily inherent in and an integral part of the principal’s trade or business, is a question which has troubled both this and other courts. (See, 1A Larson, Workmen’s Compensation Law, § 49.12 [1973].) Because of the closeness of the question, the facts and circumstances are important. (Hanna v. CRA, Inc., supra at 159; and Watson v. Dickey Clay Mfg. Co., supra.)
Cases which support the appellees’ view include Lessley v. Kansas Power & Light Co., supra (workman employed by subcontractor injured while erecting new power plant essential to the production, sale and transmission of electricity held a statutory employee of Kansas Power & Light); and Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219 (employee of independent contractor erecting oil derrick held statutory employee of oil company engaged in developing mineral resources from leased land). But as indicated, the facts and circumstances must be examined. These cases should be compared with two of our more recent Kansas cases.
In Hataway v. Proctor & Gamble Manufacturing Co., 195 Kan. 335, 405 P. 2d 350, a labor foreman employed by a contracting company was injured by the negligence of a Proctor & Gamble fork lift operator during the construction of an extension or addition to Proctor & Gamble’s Tide Department. The trial court held the injured foreman was a statutory employee under the Workmen’s Compensation Act and sustained Proctor & Gamble’s motion for summary judgment. That judgment was reversed on appeal by this court. Our prior decisions, and those from other states, were reviewed. It was concluded the record disclosed the construction of the Tide Building was not work which Proctor & Gamble employees would normally have done. The court stated that it was the construction company’s business to construct the building for the Tide addition on the Proctor & Gamble plant, and it was the latter’s business to operate the Tide addition after its erection. The Lessley case was distinguished on the grounds that the Kansas Power and Light Company was a public utility with the express power to build and construct power plants and powerhouses.
A second case is Hanna v. CRA, Inc., supra. There a contract between a construction company and CRA, Inc., called for the construction of a metal building on the property owned by CRA, Inc., which operated a refinery plant. A workman employed by the construction company was injured while working on the metal building, allegedly due to the negligence of CRA, Inc. CRA’s president submitted an affidavit which stated the building in question was to be used for the storage of barrels, cans and packages of oil pending the sale thereof in the regular course of CRA’s refining business. The trial court sustained CRA’s motion for summary judgment holding the injured workman’s exclusive remedy was under the Workmen’s Compensation Act. On appeal this court reversed, holding it might be possible to rule the construction of the building in controversy was not necessarily an integral part of and inherent in CRA’s trade or business. This court in reversing remanded the case with instructions to receive evidence as to whether the construction of the building in controversy was a part of the appellee’s trade or business.
Turning to the record here presented, the affidavits submitted on behalf of Cessna by E. Duane Stone, plant engineer at the Wallace Division of Cessna, and R. D. Dickerson, general manager of the Wallace Division of Cessna, described the various construction projects between Coonrod and Cessna, stated that the Cessna Citation hangar was designed to be used for the storage and service of Citation jet aircraft and military aircraft, and concluded that all the work was necessarily inherent in and an integral part of the business of the Wallace Division of Cessna.
These affidavits, while using the “magic” words from Hanna v. CRA, Inc., supra, are devoid of a factual basis to adequately explain the trade or business of the Wallace Division of Cessna and its relation to Coonrod. The deposition testimony suggests factual questions are unresolved and when construed against the movants requires that their motion for summary judgment be overruled. (Hanna v. CRA, Inc., supra.)
While the record indicates fifteen to twenty per cent of Coonrod’s business is with Cessna, nothing indicates what percentage of Cessna’s construction business is with Coonrod. Ordinary construction work, such as building a factory structure, is considered outside the trade or business of a manufacturer or mercantile establishment. (See, 1A Larson, Workmen’s Compensation Law, § 49.12 [1973]; 81 Am. Jur. 2d, Workmen’s Compensation, § 128, p. 808; and 99 C. J. S., Workmen’s Compensation, §§ 107-109.) But if the defendant is a business which by its size and nature is accustomed to carrying on a more or less ongoing program of construction, replacement and maintenance, perhaps even having a construction division, or which can be shown to have handled its own construction in the past, a construction job delegated to a contractor may be brought within the Workmen’s Compensation Act. (1A Larson, Workmen’s Compensation Law, §49.12 [1973]; and 99 C. J. S., Workmen’s Compensation, §§ 107-109.)
The judgment of the lower court is reversed.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by the defendant, Donald Alfred Yates, from conviction on two counts of aggravated sodomy, as defined in K. S. A. 21-3506.
On the evening of October 20, 1973, two young boys, ages fourteen and fifteen, were walking down a Kansas City, Missouri, street when they were given a ride by defendant. After driving into Wyandotte County, Kansas, he stopped the automobile in two different secluded locations whereupon he forced the youths to participate in various sexual acts. After a time, the two boys managed to escape and summon police. Defendant’s first conviction was for his assault upon the fourteen-year-old.
The second conviction stems from an assault upon an eighteen- year-old male. This event took place shortly after the first incident. The victim was walking home when defendant pulled alongside in his automobile and asked if the boy would like to “go for a good time.” When the youth declined, defendant stopped his car, got out and said he wanted to speak with him. He then grabbed the boy and threw him into the car. The victim testified that defendant drove a good distance before again stopping. He then told the victim to undress and lie down, threatening to stab the boy if he didn’t comply. The victim complied and anal copulation was performed. The ordeal ended when the victim jumped out of the automobile and caught the attention of a passing police officer. At this time defendant was arrested.
As his main point on appeal, defendant contends the trial court committed prejudicial error in admitting into evidence his ten-year-old conviction for forcible rape. The state introduced evidence of such conviction, providing none of the underlying facts or circumstances. In addition to the statutory limitations in K. S. A. 60-455, case law of this jurisdiction has set forth several procedural steps to be followed before the state may reveal to a jury a defendant’s prior conviction. First,' a trial court must determine whether the prior conviction is relevant to prove one of the facts specified in the statute. Second, the fact to be proved must be a disputed material fact which is substantially in issue. Finally, the court must balance the probative value of the prior conviction against the prejudicial effect on the jury. (State v. Faulkner, 220 Kan. 153, 155, 551 P. 2d 1247.) The trial court allowed the conviction of forcible rape to be introduced and instructed the jury to limit its value, if any, to motive, identity, intent and absence of mistake.
Under similar facts this court has permitted the introduction of prior convictions of forcible rape (see, State v. Gonzales, 217 Kan. 159, 535 P. 2d 988; State v. Hampton, 215 Kan. 907, 529 P. 2d 127), although some members of the court remain steadfast in opposition (see dissent in State v. Gonzales, supra, at 161). That portion of the instructions in this case which relates the prior conviction to identity, motive and absence of mistake appears questionable. We do not believe an application of what we have written on K. S. A. 60-455 to the facts here would result in a clarification of the statute. In our view such a discussion is unnecessary. We conclude the admission of the prior conviction in evidence did not amount to a denial of substantial justice and the harmless error rule should apply. This rule was discussed in State v. Bly, 215 Kan. 168, 523 P. 2d 397. We recognized in Bly that inadmissible evidence creeps into almost every trial, but K. S. A. 60-261 requires the courts of Kansas to disregard any error or defect in a proceeding which does not affect the substantial rights of the parties. This rule must be applied on a case-by-case basis.
Each of the three victims testified that defendant through force and threats required them to engage in various sexual acts with him. Without detailing the sordid events, we can safely say there existed substantial and uncontroverted evidence of guilt. Before the introduction of the forcible rape conviction, evidence of defendant’s prior conviction of sodomy had been introduced without objection. The prejudicial effect of defendant’s prior conviction for sodomy could not have been materially enhanced in the minds of the jurors by the addition of a prior conviction for forcible rape.
Defendant further attacks the use of the rape conviction because it was ten years old at the time it was revealed to the jury. His contention is without merit, since this court has consistently ruled that remoteness in time for a conviction affects its weight, rather than its admissibility. (State v. Finley, 208 Kan. 49, 490 P. 2d 630; State v. Jamerson, 202 Kan. 322, 449 P. 2d 542; State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63.)
Although defendant did not object at trial, he now complains because the evidence reflected that he was charged with aggravated sodomy, but only convicted of sodomy; and revelation of the more serious charge prejudiced the jury against him. The complaint is without merit as the record clearly reflects that the information charging defendant with aggravated sodomy was introduced by defendant. It is well settled that a party cannot predicate error upon evidence which he has elicited or introduced. (State v. Champ, 218 Kan. 389, 392, 543 P. 2d 893, 896; State v. Cantrell, 201 Kan. 182, 187, 440 P. 2d 580, cert. den. 393 U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315.) Furthermore, the record indicates the information charging aggravated sodomy, resulting in a conviction of sodomy, was used by defense counsel as a trial tactic. We have held that conduct of a criminal case rests with the client and his lawyer, and the defendant must be accountable for those tactical decisions. (Winter v. State, 210 Kan. 597, 502 P. 2d 733.)
Defendant’s second designation of error is that an instruction on attempted aggravated sodomy should have accompanied the aggravated sodomy instruction for Count 1. The argument is grounded on the supposition that there was conflict as to whether the act of sodomy was completed. Under K. S. A. 21-3107 (3) the trial court has a duty to instruct on lesser included offenses only where there is evidence under which the defendant might reasonably have been convicted of the lesser offense. (State v. Goodseal, 220 Kan. 487, 553 P. 2d 279; State v. Cameron & Bentley, 216 Kan. 644, 651, 533 P. 2d 1255.) Our examination of the record reveals that the victim of defendants attack testified there was penetration. That fact was not controverted and standing alone was sufficient to establish that the crime was completed. (State v. Kelly, 210 Kan. 192, 195, 499 P. 2d 1040; State v. Hurlbert, 118 Kan. 362, 234 Pac. 945.) The trial court was under no obligation to instruct on a lesser included offense.
Within defendant’s statement of points are two other specifications of error. Since the record reveals no contemporaneous objection to the allegedly improper acts, this court cannot review the issues. (Cook v. State, 220 Kan. 223, 552 P. 2d 985; Baker v. State, 204 Kan. 607, 464 P. 2d 212.)
The judgment is affirmed.
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