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The opinion of the court was delivered by
Allen, J.:
Joseph M. Henry, a single man, and his sister, Mary Shintaffer, a widow, were, in December, 1935, the owners as tenants in common of four hundred acres of land in Brown county, Kansas, fifty-seven acres in Jackson county, Kansas, and one hundred and sixty acres in Ellis county, Oklahoma. They also owned farm implements, cattle and hogs, hay, grain and other personal property in Brown county.
On December 5, 1935, Joseph M. Henry and Mary Shintaffer executed a deed to the land in Brown and Jackson counties, and a bill of sale to the personal property, to one Jasper Sherman Edde. In the deed a life estate was reserved to the grantors. The consider ation specified in the instrument was one dollar and love and affection.
These grantors had no children. Their nearest relatives were their uncles, E. S. Baskett and Joe B. Baskett. The grantee in the deed, Jasper Sherman Edde, was not related by blood or marriage to the grantors, Henry and Shintaffer.
Several days after the execution of the deed Joseph M. Henry, accompanied by his two uncles, the Basketts, appeared at the office of Lloyd Miller, an attorney in Hiawatha, and related the circumstances under which the transfer of the property was made to Edde. Later, on the same day, Miller went to the home of Henry near Sabetha and discussed with him and his sister the matter of bringing an action to set aside the transfers of the land and personal property which had been made to Edde. Miller was employed to bring the necessary action, and the suit was filed December 14, 1935. On December 20, 1935, a letter signed by Henry and his sister was sent to Miller asking that he proceed no further in the action.
On January 8, 1936, a petition was filed in the probate court of Brown county alleging that Henry and Shintaffer were incompetents. Before service could be had on these parties, they removed to Falls City, Neb., where they have since resided. Jasper Sherman Edde, the grantee in the deed, has been a resident of Falls City since 1934.
On January 13, 1936, Paul B. Bailey, an attorney of Hiawatha, on behalf of Henry and his sister filed a motion to dismiss the action brought by Miller. This motion was overruled by the court. The journal entry recites “there is a dispute between the attorneys as to the representation of said plaintiffs, and it further appearing to the court that there is a question as to the competency of Joseph M. Henry and Mary Shintaffer.”
After several continuances, on October 22, 1937, E. S. Baskett, Joe B. Baskett, D. McFall and M. O. Alderfer filed an application stating that Joseph M. Henry and Mary Shintaffer were incompetents, and incapable of prosecuting the action against Edde, and that for the preservation of their property and the protection of their interests the action be prosecuted to a conclusion, and that the applicants as next friends be permitted and authorized to prosecute the action. Objections to the application were filed, a hearing was had, and on November 3, 1937, the court found the parties Henry and Shintaffer were both incompetent, and incapable of prosecuting the action against Edde for the recovery of the property in question, and that it was important and necessary for the protection of their interests that the action be prosecuted to a conclusion. The court made an order directing that the applicants as next friends be permitted to prosecute the action and to file an amended petition.
The amended petition recited:
“Come now Joseph M. Henry and Mary Shintaffer, brother and sister, incompetent persons, by E. S. Baskett, Joe B. Baskett, D. McFall and M. 0. Alderfer, their next friends, and for their cause of action against the said defendant, allege and aver:
“1. That Joseph M. Henry and Mary Shintaffer are nonresidents of the state of Kansas, and are residents of Richardson county, Nebraska, and are incompetent persons having no legally appointed guardian, and bring this action through E. S. Baskett, Joe B. Baskett, D. McFall and M. 0. Alderfer, their next friends.”
The petition is in three counts and sets out at length the fraudulent representations and deceit by which, as was alleged, Joseph M. Henry and Mary Shintaffer were induced to transfer their land and personal property to Edde.
On November 18, 1937, E. S. Baskett et al. made application to the district court setting forth that Henry and Shintaffer are residents of Nebraska; that they are incompetents and incapable of managing their affairs; that they are the owners of real and personal property in Brown county, Kansas, which is in danger of being lost, diminished or destroyed, unless a guardian be appointed to preserve the property, and asked that a guardian of their estate be appointed. Objections were filed, a hearing held, and the court sustained the application, and appointed one Norman M. Saylor as guardian.
On November 2, 1937, the defendant Edde reconveyed the land, and on December 9, 1937, executed a bill of sale transferring the personal property to Henry and his sister.
This appeal is presented to this court by Paul B. Bailey and Joseph C. Reavis, as attorneys for Joseph M. Henry and Mary Shintaffer. The appeal is from the various orders and rulings above set forth and from the order and decision overruling plaintiffs' amended motion for a new trial.
It is asserted that the trial court erred in denying the motion of the plaintiffs to dismiss the action. Our statute, G. S. 1935, 60-3105, provides:
“An action may be dismissed without prejudice to a future action: First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.”
Under the statute the right of a plaintiff to dismiss his action without prejudice, at any time before the final submission of it, is absolute, and a denial of his application to so dismiss is prejudicial error. (Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137; Amos v. Loan Association, 21 Kan. 474; Wehe v. Mood, 68 Kan. 373, 75 Pac. 476; Cott v. Baker, 112 Kan. 115, 210 Pac. 651.)
In Banking Co. v. Ball the court said:
“The plaintiff is entitled to control the disposition of his action, where the application is seasonably made and until the final submission of the cause. It was a common-law right, and, in this state, the statute expressly provides that the plaintiff may dismiss without prejudice to a future action, before the final submission of the case to the jury, or to the court, where the trial is by the court.” (p. 813.)
Under the rule announced in the foregoing authorities, long adhered to by this court, we think the motion to dismiss filed on January 13, 1936, should have been sustained. .
Did the district court have jurisdiction to permit the action to be prosecuted to a conclusion by the next friends of the applicants?
Our statute, G. S. 1935, 39-201 to 39-203, provides a guardian may be appointed for the person or estate of an insane or incompetent person. Section 39-209 specifies it shall be the duty of such guardian to prosecute and defend all actions instituted in behalf of or against the ward. Section 60-408 authorizes suit to be brought against an insane or incompetent person, and in certain cases provides that a guardian ad litem shall be appointed by the court.
Our statute, G. S. 1935, 60-406, directs that an action on behalf of an infant must be brought by his guardian or next friend. But there is no statute that permits an action to be instituted on behalf of an insane or incompetent person by a next friend. It is true that in Talbot v. Wulf, 122 Kan. 1, 251 Pac. 438, it was adjudged that an action on behalf of an incompetent person could be instituted or maintained by his next friend. In that case, however, the action was originally brought by the next friend. In the case now before us the record shows that Henry and his sister employed Mr. Miller to file the suit in their behalf. The action was filed on December 14, 1935. Six days later the plaintiffs, by written letter, notified Miller not to proceed further in the matter, and stated that they had employed Mr. Bailey to represent them'. Thereafter and on January 13, 1936, Mr. Bailey, on behalf of plaintiffs, filed a motion to dismiss the action. It was not until the following October that the relatives of the plaintiffs made application to prosecute the action as next friends of the plaintiffs.
It is not claimed that the mental condition of the plaintiffs was impaired in any degree after the filing of the suit. If the plaintiffs were competent when the suit was filed, they were competent to demand its dismissal. The doctrine of the Talbot case could not be authority for a case like this. We think, therefore, the trial court was in error in sustaining the application of the next friends to prosecute the original action to a conclusion.
Appellants next contend the trial court erred in appointing a guardian for the estate of the plaintiffs. At the time this order was made the plaintiffs had changed their domicile to the state of Nebraska. In Trust Co. v. Allen, 110 Kan. 484, 204 Pac. 747, it was said:
“In this state it has been held that the jurisdiction for the appointment of a guardian of a minor is in 'the county of the minor’s domicile in the absence of any express statute upon that question. (Connell v. Moore, 70 Kan. 88, 78 Pac. 164.) And in Foran, v. Healy, 73 Kan. 633, 85 Pac. 751, it was held that the jurisdiction to appoint a guardian over the person and estate of a lunatic belongs exclusively to the probate court of the county where such lunatic has a permanent residence. By analogy there is every reason to hold that the jurisdiction to appoint a permanent guardian over the person and estate of a lunatic belongs exclusively to the courts of the state where such lunatic has a permanent residence.” (p. 491.)
Trust Co. v. Allen was quoted with approval in Morrissey v. Rodgers, 137 Kan. 626, 21 P. 2d 359. The syllabus in the latter case reads:
“The place of permanent residence of an incompetent person at the time of the appointment of a guardian for him is an essential, collateral, jurisdictional question of fact, and this fact is not conclusively established by the appointment by a court having jurisdiction of the subject matter, and in a proper collateral action or proceeding the true place of the permanent residence of the incompetent may be shown for the purpose of disproving jurisdiction in a court assuming authority to make such appointment.” (Syl. If 3.)
We think it clear that the district court was without jurisdiction to appoint a guardian for the estate of the nonresident plaintiffs.
One further observation must be made. The action was brought to recover real and personal property. During the progress of the litigation the property, real and personal, has been re-transferred to the plaintiffs, Henry and his sister. The object of the suit has been accomplished. When the action was originally instituted it presented an existing controversy. By the act of the parties occurring after the commencement of the action, the question involved has become moot. It is the function of a judicial tribunal to determine real controversies, and not to decide moot questions. (Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; 1 C. J. S. 1012, 1017.)
The cause is reversed with directions to set aside the orders of the trial court hereinbefore mentioned, and to dismiss the action.
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Defendant’s motion for a rehearing is overruled.
Since plaintiff and defendant each has filed a motion for judgment on the pleadings, these motions are set for hearing in open court on oral arguments and briefs, on October 4, 1938, following cases now on the docket for that day. We invite counsel to suggest the form of the decree which might properly be entered, in view of the court’s opinion heretofore rendered in this cause, and, if possible, to agree upon an appropriate decree in harmony with the opinion of the court, and which they deem fair to the parties.
Defendant also has filed a motion for the appointment of a com missioner. There will be no necessity of considering this motion if an appropriate decree on the pleadings can be made. If counsel desire to press this motion it will be heard following the argument on the motions for judgment. If a commissioner is appointed, the court would like the views of. counsel as to the matters to be inquired into by the commissioner, and the scope of the evidence to be taken before him.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment of the district court putting a stop to proceedings instituted by the county director of public welfare before a justice of the peace in Hiawatha to remove Lucian 0. Lange and his wife and their two children to the state of Washington on the ground that they were likely to become a public charge in Brown county.
The statute relied on to justify the proceedings before the justice of the peace is G. S. 1935, 39-313, which reads:
“Upon complaint of any overseer of the poor, any justice of the peace may issue his warrant, directed to and to be executed by any constable, or by any other person therein designated, to cause any poor person found in the township or city of such overseer likely to become a public charge, and having no legal settlement therein, to be sent, and charged at the expense of the county, to the place where such person belongs, if the same can be conveniently done; but if he or she cannot be so removed, such person shall be relieved by said overseer whenever such relief is needed.”
This statute was enacted in 1862 (Comp. Laws 1862, ch. 163, sec. 14), and has been carried along through all subsequent compilations of our general statutes without legislative change, and remains in effect to this day unless it has been superseded by our recent legislation on social welfare (Laws 1937, ch. 327; G. S. 1937 Supp. 39-701 et seq.).
On February 3,1937, a complaint was filed before a justice of the peace in Hiawatha, on which a warrant was issued which read thus:
Warrant
State of Kansas, Brown County, ss:
The State of Kansas to the Sheriff or Any Constable of Brown County:
“Whereas, Complaint in writing, under oath, that Ralph Heatley as county director, in the county of Brown and the state of Kansas, and on or about the 16th day of November, 1937, affiant found Lucian 0. Lange, Lottie Lange, h.is wife, John Lange, his son, and Sarah Jane Lange, his daughter, in Brown county, and that they are a public charge or likely to become a public charge of said county, and have no legal settlement therein. That the legal settlement of said Lucian 0. Lange, wife, daughter and son is in Longview, Wash.
“You are therefore commanded, forthwith, to execute this warrant, and to transport said Lucian 0. Lange, Lottie Lange, his wife, John Lange, his son, and Sarah Jane Lange, his daughter, into Longview, Wash., their legal settlement, and then and there return this writ.
■ “Witness my hand, at my office in Hiawatha, Kan., in said county, this 3d day of February, 1938. F. O. Kroh, Justice of the Peace."
On the following day the justice of the peace apparently made some order staying the execution of the warrant, and set a time for the hearing of a motion filed in behalf of the Lange family to quash the warrant. Such hearing was heard and the motion overruled on February 12, 1938; and an appeal was taken to the district court.
On March 2, 1938, at an adjourned day of the regular February term of the district court, counsel for the parties argued the legal questions involved. The court ordered briefs to be submitted, which was done; and thereafter on April 26,1938, the court disposed of the proceeding by a judgment, the material part of which was as follows:
“. . . R. S. 39-313, now G. S. 39-313, has been repealed, and that R. S. 39-313, now G. S. 39-313, is unconstitutional and void as violating . . . section 18 of the bill of rights of the Kansas constitution, and the fourteenth amendment to the constitution of the United States. . . .
“It is, therefore, by the court considered, ordered and adjudged, that the defendant’s said motion to quash the warrant issued in the above-entitled action to the sheriff of Brown county, Kansas, directing the removal of the defendants to Longview, Wash., and to dismiss the action, be and the same is hereby sustained, and said warrant is hereby quashed and said action is hereby dismissed.”
The state brings the case here for review.
Touching the first point raised for our consideration — that the statute of 1862, now appearing as G. S. 1935, 39-313, has been so completely superseded by the Social Welfare Act of 1937 that it has necessarily been repealed by implication — we quite agree with counsel for the state that repeals by implication are never-favored. But a careful study of the recently enacted statute clearly shows that the legislature intended it to constitute an independent code for the relief of the defective, the aged, and the poor. It does not articulate with the statute of 1862. In the earlier statute the governing body of incorporated cities and all township trustees were the statutory overseers of the poor. In the statute of 1937-there is no mention of an overseer of the poor, nor does the statute vest his powers in another functionary. The new statute creates the office of county director, but even a casual comparison of the duties cast on the overseer of the poor under the statute of 1862 and those imposed on the county director under the statute of 1937 will convince the reader that the latter is not the official successor of the earlier functionary. Under the statute of 1862, children who fell under the care of the overseer of the poor were bound out to service by that officer. It will hardly be argued that the county director created by the statute of 1937 has that power. The proceedings to “deport” defendant Lange and his family to the state of Washington were initiated by an official created by the statute of 1937, designated “county director”; but he is merely the executive and administrative officer of the county commissioners in their new statutory capacity as a county welfare board.
The new statute also covers such details as that of dealing with transient persons likely to become a public charge who have no legal settlement within the county where they may be found. The state board of social welfare is given authority to prescribe requirements for acquiring a legal settlement within the county, and to make rules for the removal of such transients to the county of their legal domicile. Indeed, the new statute goes further and provides that the state board may make agreements with the welfare departments of other states in regard to the manner of returning persons to the place of their legal settlement. It is perfectly obvious that the summary proceedings to remove the hapless Lange and family from Brown county to the distant state of Washington had not the slightest simulation to any proceedings authorized or contemplated by the statute of 1937.
Another point in respect to the statute of 1862 would press for attention if we could find some tenable basis for holding that it was not completely superseded and impliedly repealed by the statute of 1937. That point is this: The warrant of the justice of the peace of Hiawatha could not possibly have any effect beyond the boundaries of the state of Kansas. It would confer no authority on the “sheriff or any constable of Brown county” to be exercised over Lange, his-wife and children the minute they set foot in Nebraska, Colorado, or any of the states that lie between Kansas and the far distant state of Washington. As said in Howell v. Manglesdorf, 33 Kan. 194, syl. ¶ 2, 5 Pac. 759, “The state has full power over all persons and things within its jurisdiction, but cannot extend its process beyond its boundaries.” In cases of interstate extradition, it requires the all-powerful aid of an act of congress to insure that a person charged with a crime will not secure his liberty by writ of habeas corpus issued by any one of the many magistrates authorized to issue such a writ along the interstate route an officer in charge of a prisoner must traverse. But we should not labor the obvious. The removal of a person likely to become a public charge in a county where he has no legal settlement to one where he has such a settlement, contemplated removal from one county to another, not from one state to another. Whether the agreements with the welfare departments of other states contemplated by the act of 1937 will be workable without the aid of a federal statute we need not now consider.
This court holds that the statute of 1862 has been completely superseded by the statute of 1937 and the earlier act has thereby been impliedly repealed.
This conclusion renders it unnecessary to consider any constitutional infirmities in the act of 1862 under which the present proceedings were instituted, although for the convenience of the bench and bar we take space for citations which would have a bearing on the question whether the act of 1862, as attempted to be applied in this proceeding against defendants, was consistent with the guaranties of section 18 of the Kansas bill of rights and the fourteenth amendment. These are Overseers of Limestone v. Overseers of Chillisquaque, 87 Pa. St. 294; Hilborn v. Briggs, 58 N. D. 612, 226 N. W. 737; Settlement of Indigent Persons, 20 D. & C. (Pa.) 94; 1 Beale on The Conflict of Laws, 308 et seq.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from the judgment of the district court, which allowed a claim against a decedent’s estate.
It is the contention of the appellant, S. L. Young administrator of the estate of May Young, deceased, and of the appellant, Frank Young, a devisee under the will of the deceased, that the claim was barred by the statute of limitations and the statute of nonclaim.
May Young, a resident of Neosho county, died testate, April 12, 1936, and left surviving her, S. L. Young, her husband; four sons, and a daughter, Daisy Young Jordan, the claimant. The appellant, Frank Young, is one of the sons. It appears the deceased had drawn her own will on July 25, 1933. On August 5, 1924, she had executed and delivered to her daughter, Daisy, the appellee, a note in the sum of $500, which reads:
“Chanute, Kansas, August 5, 1924.
“Ten years or before date, for value received, I promise to pay to the order of Daisy Young Jordan five hundred — 00—dollars, Chanute, Kansas.
“With interest from date at the rate of 6 percent per annum until maturity and ten percent per annum from maturity until paid.
“The makers, sureties, endorsers and guarantors of this note, hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest.
“The interest is to compound yearly.
“If Daisy should die before paid this note is null and void.
(Signed) May Young.”
The pertinent portions of her will provided:
“You boys Elmer, Frank, Bert and Ray your father S. L. Young gave each of you $500 when you was 21 years old, your Sister Daisy was to have $500 too but it never has been paid. She must be paid. I have given her a note and it is to draw interest from the. time. she was married August 5, 1924. She stayed at home, she worked and paid for her clothes since she was 16 years old, I am giving her her board and room, she deserved it, she did so many things for me while she was at home.
“My farm N. E. 23-27-17 is to go to my childi'en named above, they must keep it up, pay taxes and insurance, they are to get the rent from it, do not give it away but sell it and divide the money after Daisy is paid her SSOO with interest.....
“I am doing what I think is right, I don’t want to do more for one of you children than the other.”
(Italics inserted.) • ■
On May 20,1937, proof of the execution of the will was made and filed in the probate court. On October 7, 1937, S. L. Young renounced the rights conferred upon him by the will and elected to take under the law. The record before us discloses that on October 12,1937, the will was admitted to probate, and letters of administration. were issued to S. L. Young, with will annexed. Proof of publication of the appointment of the administrator was filed in the probate court on October 28, 1937, the first publication date having been October 13, 1937. On December 10, 1937, claimant filed in the probate court her so-called exhibit of demand. Omitting the caption, signature, verification, note and the will, the exhibit of demand was as follows:
“To S. L. Young, administrator with the will annexed of the estate of Mrs. May Young, deceased:
“You are hereby notified that I have a claim against the estate of Mrs. May Young, deceased, as per the provisions of the will of said deceased, a copy of which is hereto attached, marked exhibit ‘A,’ and so much thereof made a part hereof as pertains to the note of claimant mentioned therein of $500 and interest as per its terms, and that a copy of said note is hereto attached, marked exhibit ‘B,’ and made part hereof — amounting to the sum of $1,110.95, for which claimant prays judgment, a true copy of which account or instrument is hereunto attached and is herewith presented as a part of this notice of claim of demand;
“And you are hereby further notified that I will present the said account or demand to the probate court of Neosho county, Kansas, for allowance, on the 20th day of December, 19 — , at the hour of ten o’clock a. m. of said day, or as soon thereafter as the same can be heard.
(Italics inserted.) “Daisy Young Jordan, Claimant.”
The hearing took place in accordance with the notice. The appellant, Frank Young, prior to introduction of evidence, moved to have the claim dismissed on the grounds (1) the probate court had no jurisdiction in the matter, (2) the claim was barred by the statute of limitations, and (3) it was barred by the statutes of non-claim. The motion was overruled. At the conclusion of the hearing the probate court ruled:
“And the court, hearing evidence for and against said claim, duly considering the same, and being fully advised in the premises, finds that said claim accompanied by promissory note, dated August 5, 1924, and identical in import, is just and right and clearly in accord with the will and wishes of May Young, deceased, and should be and the same hereby is allowed in the amount of $500 with six percent interest compounded annually until paid.” (Italics inserted.)
Appeals were duly perfected to the district court. By stipulation the complete file of the administration of the estate of May Young, deceased, was made a part of the transcript. The same issues were raised as in the probate court, and with the same result. The amount of the claim as allowed by the district court was fixed at $969.42 and to draw interest at ten percent from date of the judgment of the district court, to wit: March 16, 1938. The claim was designated as a fifth-class claim and the costs of the proceedings were assessed against the estate of May Young, deceased. From that judgment the appeal comes to this court.
The trial in the district court was, of course, a trial de novo. (G. S. 1935, 22-1107; Darnell v. Haines, 110 Kan. 363, 203 Pac. 712.) Concerning that particular point, however, there is no dispute in the instant case. The sole question is, Was the claim made by appellee barred?
Appellants first direct our attention to the language of the note dated August 5, 1924, that language being, “Ten years or before date.” Obviously, it could not have been intended by the maker the note should be due before it was executed. No specific statute of limitations is cited by appellants as applicable. None, so far as the record discloses, was called to the attention of the trial court. We may, therefore, proceed to the contention which the appellants stress in their brief. The general subject of the application of statutes of limitation to a claim such as that involved in the instant case will be treated in the course of the opinion.
Appellants urge the claim was barred by the statute of nonclaim. (G. S. 1935, 22-702.) Certain pertinent portions of that statute, as amended by section 4 of chapter 218 of the Laws of 1937, need not be considered. It did not become effective until June 30, 1937. The testatrix died April 12, 1936. Appellee’s demand was not exhibited to the administrator until December 10, 1937, or one year, seven months and twenty-eight days after the death of the testatrix. Under the provisions of G. S. 1935, 22-702, all demands against the estate of the deceased are now barred unless so exhibited within one year. G. S. 1935, 22-727, however, provides:
“No executor or administrator, after having given notice of his appointment as provided in this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within one year from the time of his giving bond,” (Italics inserted.)
This statute has been construed to apply to actions against administrators in the district court as well as to actions in the probate court, and that such action is barred unless commenced within one year from the time the administrator gives bond. (Forrester v. Falkenstien, 129 Kan. 485, 283 Pac. 623.) The administrator in the instant case was qualified and appointed on the 12th day of October, 1937. The exhibit of demand was served on the administrator December 10, 1937, and the hearing thereon was had on December 20, 1937. While the records before us do not clearly disclose the exact date the appeal was fully perfected, it appears to have been perfected in accordance with the provisions of G. S. 1935, 22-1107, on March 16, 1938. It thus appears that the exhibit of demand was served on the administrator, the claim was heard in the probate court, and the action was commenced in the district court, all prior to one year after the administrator gave bond. Appellants, however, insist a creditor cannot permit the statutory time to elapse, for the exhibition of claims, without procuring the appointment of a personal representative to whom a claim may be presented and thereafter file his claim when such personal representative is later appointed, citing numerous cases, including Robertson v. Tarry, 83 Kan. 716, 718, 112 Pac. 603; Clark v. Eaton, 109 Kan. 574, 201 Pac. 71, and Sewell v. Miller, 140 Kan. 650, 652, 37 P. 2d 1005, which are especially stressed. That this is the well-established rule in this state relative to ordinary claims of creditors cannot be doubted. Those and similar decisions, however, do not reach the precise issue involved in the instant case.
This was not an ordinary claim against an estate, nor was it a claim of an ordinary creditor. This claim is bottomed on the will of the deceased. It is founded upon the express and unequivocal direction of the testatrix. It is her specific mandate. She did not leave the distribution of this particular portion of her estate open to conjecture or speculation. Even though apparently she drew her own will, her intent as to the disposition of this part of her estate could not have been more clearly disclosed if it had been drawn by the most painstaking lawyer. With reference to this provision for her daughter, Daisy, she said, “she must be paid.” How and when must she be paid? The will supplies the unmistakable answer to each of those questions. How must it be paid? She directed it must be paid out of the proceeds of the sale of her farm, and she described that farm. When must it be paid? After the sale of the land designated. She ordered the proceeds from the sale of the particular land should be divided among the other named children, but only after Daisy had first been paid her $500, with interest. True, a note had been executed as early as August 5, 1924, which evidenced the fact the mother had promised to pay her daughter the amount therein stated. The mother, however, was not willing to pass from this life and leave in the hands of her daughter only a note evidencing her wishes and desires. She therefore made provision in her will for the same principal amount with interest. The will was drawn about eight years after the note had been executed. That, irrespective of any statute of limitations or anything else, the mother still intended when she made her will that such amount must be paid is too clear to admit of argument. That the cardinal rule of construction requires courts to ascertain the true intent of the testator needs no citations of authority. Another rule, just as well established, is that courts must give effect to the true intent of the testator where it can be ascertained. In the instant case that intent is clear. The will was executed July 25, 1933. The death of the testatrix was April 19, 1936. Appellee’s demand was exhibited on December 10,1937. Obviously, her rights under the will were not barred by any statute of limitations, if in fact they could be so barred.
In 24 C. J. 302 appears the following:
“An explicit direction in a testator’s will to disregard the statute of limitations in the payment of his debts authorizes the representatives to pay all just debts, although barred by limitation, and a direction to the executor to pay a specified, debt is clearly a recognition of the debt, and an expression of an intention that it shall be paid regardless of the statute.” (Italics inserted.)
Touching the statute of limitations, it has been held that where the will directs the payment of a specific debt, the will constitutes a recognition of the debt and a direction that it be paid, statute or no statute. (Gilbert v. Morrison, 6 N. Y. S. 491.)
Was her claim based on the provisions of the will? The pertinent portion of her exhibit of demand was:
“I have a claim against the estate of Mrs. May Young, deceased, as per the provisions of the will of said deceased, a copy of which is hel'eto attached, marked exhibit ‘A,’ and so much thereof made a part hereof as pertains to the note of claimant mentioned therein of $500 and interest as per its terms, and that a copy of said note is hereto attached, marked exhibit ‘B,’ and made part hereof, . . . .” (Italics inserted.)
It also will be observed from the pertinent portion of the will heretofore quoted, that before any mention was made of the note the testatrix in all probability intended to make a bequest to appellee. She reviewed the fact each of the boys had previously received $500 from their father, and that appellee was also to receive that amount, but that she had never received it. She then stated, "She must be paid.” Thereafter the will constituted a narrative of the fact that the testatrix had previously given appellee a note, which represented the principal amount appellee was to receive, and that narrative was coupled with the direction the note should draw interest from August 5, 1924.
We think the proper construction to place upon the “exhibit of demand,” considering the will and the note together, is that appellee was claiming her rights, “as per the provisions of the will,” and that the note was essentially evidentiary in character and fixed the rate of interest the note was to draw after maturity.
In this view of the matter, it is evident there could have been no final order of distribution without giving force to the plain provisions of the will which directed the disbursement to appellee. And that is true whether the will be construed to constitute a bequest or whether it be regarded merely as an acknowledgment of a specific debt with a testamentary direction to pay it with interest. For the purpose of this appeal we need, therefore, not decide the provision in question constituted a bequest. Viewing the will merely as a testamentary direction to pay a specific debt, it is difficult to understand the necessity for the filing of a claim therefor, or how the statute of nonclaim could affect it. In 11 R. C. L. 197 the rule is stated thus:
“While ordinarily a claim against a decedent’s estate must be duly presented, proved, and allowed in the manner prescribed by law, where by a will a claim is expressly recognized as a debt and a charge against the estate, it is unnecessary to prove it, because an express trust to pay it is saddled upon the executor; and except in this manner a debt may be incapable of proof. The will may in effect operate as furnishing the evidence of an indebtedness incurred during the lifetime of the decedent.”.
This court early held a general provision in a will to pay all just debts of the deceased did not relieve the creditor from presenting and proving a claim as required by law. (Collamore v. Wilder, 19 Kan. 67.) Here, however, we have not only an express provision for payment of a specific amount, but also a definite direction the payment should be made out of the proceeds from the sale of particular land belonging to decedent. In Black v. Black, 58 N. D. 501, 226 N. W. 485, 65 A. L. R. 852, it was held:
“When a will, in addition to general provisions for the payment of debts, contains a direction for the payment of a particular obligation, it is not necessary to present such claim for allowance.” (Syl. ¶ 1.)
See, also, O’Reilly v. McQuiggan, 91 Miss. 498, 44 So. 986, 15 Ann. Cas. 623.
It is, of course, the duty of the appellant, administrator with will annexed, to carry out the provisions of the will, and he cannot be heard to deny the validity of a claim expressly directed to be paid by the will. (Myron v. Roisland, 63 N. D. 313, 247 N. W. 893.) Neither can the appellant devisee repudiate this testamentary provision. He is taking under the will. He will not be permitted to accept the benefits under the will and reject its burdens. (Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708.)
Appellants remind us the instant claim was allowed only as a fifth-class claim. There is no cross-appeal on the question of proper classification. Obviously, however, appellants are in no position to complain on the ground the claim was relegated to the fifth class.
The judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Dawson, C. J.:
Bert R. Ferris was convicted of the crime of giving a bad check. From a judgment and sentence imposing on him a fine of $125 and costs he appeals.
The controlling facts were these: On or about May 11, 1936, defendant Ferris purchased a laundry property in Mankato from its owner, L. R. Gard, at an agreed price. As part of a requisite down payment Ferris gave Gard a check for $100 drawn on the Deuel County State Bank, of Chappel, Neb., payable to Gard’s order.
Gard accepted the check, endorsed and deposited it to his own credit in the First National Bank of Mankato. That bank passed it through the usual commercial channels to the Nebraska bank, where it was dishonored and returned to the Mankato bank bearing on its face these recitals:
“Not sufficient funds; charge of 25c entered.”
“Protested for nonpayment. Protest fees, $3.36.”
On the reverse side of the check was such a mass of rubber-stamp bank endorsements as to be partially illegible, but certain words thereon could be deciphered:
“Pay to order of any Bank or Trust Co. . . . endorsements guaranteed . . . Federal Reserve Bank, Omaha Branch . . . Kansas City, prior endorsements guaranteed. . . . any bank . . . Federal Reserve Bank of Kansas City . . . Omaha, Nebraska . . . June 22,193 . . . led June 29, 1936 . . . June 30, 1936.”
The prosecuting witness, L. A. Gard, testified that the check came back unpaid to the Mankato bank and was debited to his account. At his suggestion the check was again put into the usual commercial channels, but again it came back unpaid.
Hence this criminal prosecution, conviction and sentence, and appeal.
Defendant assigns ten errors, but with one exception he argues them all together — his general grievance at the net result.
Looking into his brief for such points as may be worthy of comment, it is first suggested that the evidence was insufficient to take the case to the jury. The payee of the check testified concerning the sale of his laundry business to defendant and another person, and that defendant gave him the check as a down payment on the purchase price. He also testified that defendant told him he did not know whether he had funds in the Nebraska bank to meet the check but that he expected to get his “bonus” (presumably as an ex-soldier), and that if he did not have funds sufficient to meet the check he would get them.
The check was offered in evidence over defendant’s objection based on the plethora of notations and endorsements it had accumulated after its execution and delivery to the payee. At first the trial court was inclined to the view that those notations and endorsements were inadmissible, and directed that only the contents of the check at the time it was signed by defendant could be read in evidence. The record reads:
“[Counsel for defendant]: . . . object to any stamps or other notations placed upon the same [check] since then, until they are properly identified. No identification whatever.
“Court: I don’t know how you are going to take them off.
“[Counsel for state]: That shows the condition of the check at the time it came back, and it is all admissible.
“[Counsel for defendant]: It is not admissible. You have got to show where it has been, and who it has been to. You can’t show it by a stamp here.
“Court: The only question is whether it has been paid or not.
“[Counsel for defendant]: Or what the condition was at the time it was given.
“Court: Well, there may be some good reason, there may be some legal excuse for not paying it, but the question in this case is, has it been paid or is there a justifiable excuse for it not being paid. ... I think it will have to be taken care of by instructions, those things are not evidence of certain things, but you can’t take them off the check.”
As the trial progressed, the court came to the conclusion that the notations and endorsements on the check were admissible as evidence that the check had been presented to the Nebraska bank for payment, but that they should not be considered as evidence that there were no funds or insufficient funds in the bank to pay it. One of the court’s instructions to the jury reads:
“17. If you believe from the evidence in this case beyond a reasonable doubt that the defendant made the $100 check in question, and at the time said check was made, in Jewell county, Kansas,.the defendant knew he had no funds or credit in the bank with which to pay said check, and that said check was presented to the bank upon which it was drawn for payment, and was not paid, you should find the defendant guilty as charged in the information; otherwise you should find him not guilty; that is, if you entertain a reasonable doubt as to whether or not said check was made, in Jewell county, Kansas, or that the defendant at the time he made said check knew he had no funds or credit in the bank on which said check was drawn to pay it upon presentation to the bank upon which it was drawn for payment, or that said check was paid, you should find the defendant not guilty as charged in the information.”
After the jury had retired and deliberated for a time they were brought into court, where the following proceedings occurred:
“Court: Mr. Foreman, I understand you have some request to make.
“Foreman: Your Honor, we would like to have the check and the other written evidence, if we may.
“[Counsel for state]: We have no objection.
“[Counsel for defendant]: Comes now the defendant and objects to the submission of plaintiff’s exhibit 2 [the check] to the jury, for the reason that no portion of the same is in evidence, in any respect, except the part that was read in evidence at the time that the offer was made. There has never been an offer made of any part of the check except the part that was read, and all other portions are improper, and should not be considered in any way, because they are not explained in any way.
“Court: I asked them to read it; the court was under the impression at that time that the rest of the check was not admissible in evidence. Right or wrong, I have come to the conclusion that those endorsements are admissible in evidence as a circumstance in showing where that check had been, and if that is the only objection you have. . . .
“[Counsel for defendant]: We further object, if the court is going to reconsider on it, that any . . .
“Court: I am not reconsidering.
“Court: I am going to overrule the objection, and give you a chance to cross-examine on it.”
Counsel for defendant then recalled the prosecuting witness for further cross-examination. Redirect examination followed, and then further cross-examination, following which the court revised one of its instructions to read thus:
“The endorsements on the $100 check in question, except the endorsement on the back, ‘L. R. Gard,’ which is identified, are not positive evidence that the check in evidence was presented to the bank on which it was drawn for payment, but are circumstances tending to show through whose hands the check passed, and may be considered by you together with other evidence and circumstances of the case in determining whether or not the check in question was ever presented to the bank on which it was drawn for payment.”
At the suggestion of counsel for defendant, the court also gave the following instruction:
“19a. You are instructed that you cannot consider the stamps or endorsements put on exhibit 2 after it left the han'ds of Mr. Gard for the purpose of determining whether or not the defendant had funds on deposit in the bank upon which the check was drawn at any time.”
The jury returned a verdict finding defendant “guilty of giving a worthless or no-fund check, as charged in the information.”
We think the notations and endorsements on the check were admissible as presumptive evidence that it had passed through the regular channels of commercial paper. In Evans v. Commercial Trust Co., 76 Pa. Superior Ct. 304, it was said:
“The commercial business of the world has long ago outgrown conditions upon which many of what were once considered basic rules of evidence were founded. Many of the transactions of modern business could not be successfully established if direct and positive evidence of a witness, who personally knew the details of each step of each transaction, were required. On the question as to whether or not a check was presented for payment, it was sufficient to take the case to the jury, for the plaintiff to show that the check was sent in due course through the clearing house.” (Syl. ¶ 2.)
See, also, Ennis-Baynard Petroleum Co. v. Plainville Mill and Elevator Co., and citations, 118 Kan. 202, 205, 235 Pac. 119.
We also think the circumstances attending the deposit of the check in the Mankato bank and of its transmission in the regular course of business by the Mankato bank until its return thereto had competent evidential significance in connection with the fact that at the time the check was given defendant admitted that he didn’t know whether he had funds to meet the check or not. The testimony of the prosecuting witness on this point reads:
“Q. . . . was there any conversation, Mr. Gard, between yourself and Mr. Ferris, as to whether or not Mr. Ferris had any money in the bank at that time with which to meet this check? A. Well, he said, he wanted me to, he made the check out for the 15th day of May, that would give him time [4 days] to get up to the bank up home, get up to the bank and see how he was fixed at the bank, and if he didn’t have money enough in the bank to take up the check, he had a friend that would let him have the .money.”
This court holds that the evidence was sufficient to make a prima facie case against the defendant.
The instructions as finally given were fair, indeed generous, to the defendant, and there is no error in them of which he is entitled to complain.
A point is sought to be made on the verdict, because at the insistence of defendant, the trial court required the state to elect on what phase of the crime charged it would rely for conviction. The record reads:
“Court: I believe I will require them to elect as between delivering and the others, and the other charges, drawing, making or uttering, drawing, making, uttering and issuing.
“[Counsel for state]: We will stand on drawing, making, uttering or issuing.
“Court: Well, I think drawing and making are identical, and uttering and issuing are identical synonyms.
“[Counsel for state]: I think under this evidence that the acts all constituted the crime.
“[Counsel for defendant]: Evidence, if any.
“[Counsel for state]: Of making, drawing, uttering and issuing.
“Court: Well, if they do all mean the same, there isn’t any reason why you shouldn’t elect, if there is no difference in them. . . .
“ [Counsel for state]: I don’t think under the facts of this case it makes any difference. Of course, if the court requires us to elect, we will have to elect, but I can’t see what we are electing between.
“Court: I think so. I would have considerable doubt as to whether there is much difference, but if there is not any difference, in this case . . .
“[Counsel for defendant]: If there is no difference they couldn’t be prejudiced.
“[Counsel for state]: I can’t see that it makes any difference. I think the jury understands those terms. We elect to stand on drawing and' making.”
Since th§ evidence all related to a single transaction, and only a single offense was intended to be charged under the statute (G. S. 1935, 21-554), and the information was drawn in conformity with the language of the statute, that defendant unlawfully did “draw, make, utter, issue or deliver” his certain check, there was no good ground for the motion to require the state to elect; and the verdict contained no prejudicial infirmity, since it contained the vital matter, “guilty ... as charged in the information.”
On the motion for a new trial the defendant put on quite a remarkable showing, but it developed not a shadow of doubt of his guilt. Indeed, it showed that he had no account of his own in the Nebraska bank, that his brother did have such an account, and that his brother sometimes let him check on that account and sometimes he did not; and in this instance the brother would not permit it. Moreover, if such an arrangement with his brother would have sufficed as a defense (which we need not decide) it was certainly an affirmative defense, and there was no showing of diligence. Counsel for defendant suggests that the burden in a criminal case never shifts to the defendant. This is too broad a statement of the rule. It never shifts until a prima facie case is established by the state. (8 R. C. L. 171-174.) Thereafter, if there is an affirmative defense which could or might demolish that prima facie case, defendant assumes the risk of nonpersuasion if he fails to tender it. The most familiar example of this important qualification of the rule relating to the burden of proof arises in cases involving the possession of recently stolen goods. (State v. Bell, 109 Kan. 767, 771, 201 Pac. 1110, and syl. ¶ 6; State v. Earley, 119 Kan. 446, 239 Pac. 981; State v. Close, 130 Kan. 497, 498, 287 Pac. 599.) This rule is quite as pertinent in bad-check cases, especially where the bad check is given on an out-of-state bank.
There is no prejudicial error in the record, and the judgment is affirmed.
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The opinion of the court was delivered by
Smith,-'J.:
This was a replevin action for an automobile and a promissory note and a chattel mortgage securing same. Judgment was for plaintiff. Defendant appeals.
Defendant bought an automobile from Berryman Motors, Inc., on July 7,1934. He gave in payment therefor his old car and a note for $250 secured by a mortgage on the car he had bought. When he signed this note it had written on it the words “optional renewal.” When the motor company took the note to plaintiff bank to sell it, the bank refused to buy it with the above words on it because they made it nonnegotiable. The motor company sent the salesman back to defendant with another note to sign. He did sign it. Out of that note this action arises.
When the motor company offered the new note to the plaintiff it was noticed there was no insurance on the car. An employee of the bank called defendant and told him that the bank had bought the note. Here there is a dispute in the evidence. Defendant testified that he refused to take out insurance on the car but that he knew the bank held the note. The bank employee testified that he told defendant the bank was buying the note and he raised no objection, and that he said he would take out an insurance policy on the car right away. At any rate, the bank bought the note, on July 8, 1934, due on January 7, 1935. Sometime in December, 1934, the bank notified defendant that his note would fall due January 7. In reply to this notice defendant wrote the bank a letter acknowledging receipt of this notice and stating, among other things, the following:
“I am willing to pay the full face value of the note and interest, less $30 that I have been damaged by the violation of this new-car service contract. Please let me hear from you.”
On the witness stand defendant admitted he signed this letter but he said he did not know it contained the statement about the interest. On January 2, 1935, plaintiff answered this letter by stating that it would collect the full amount of the note with interest on its due date. On January 7,1935, defendant appeared at the bank and gave his check on a bank at Valley Falls for the amount of the note with interest from date. Thereupon plaintiff released the mortgage, paid defendant a sufficient sum to cover the fee for recording the release and delivered the note to appellant. On January 9, 1935, defendant stopped payment on the check. Defendant testified that he stopped payment on this check because he had, on January 8, 1935, noticed several alterations on the note which he thought canceled it as an obligation for him to pay and also canceled the mortgage. On January 16, 1935, plaintiff brought this action to replevin the note, the mortgage and the automobile, and to recover judgment for $262.37.
The defendant answered setting out several particulars in which the note had been altered. In the first place he alleged that when he signed the note that in the upper right hand corner it read “Topeka, Kansas,-193 — ” but that when the note was returned to him it read in the upper right hand corner, “Topeka, Kansas, July 7, 1934.” He next alleged that at the time he signed the note it read as to place of payment “at the office of the Interstate Securities Company in Kansas City, Missouri,” but that when the note was returned to him it read as to place of payment “at the office of the National Bank of Topeka.” Defendant further alleged that when he signed the note it read “with interest from maturity until paid” but that when the note was returned to him, “with interest from date until paid.” The answer further alleged that the words “Note draws interest at 8% from July 7, 1934” were added to the note and that the words “Valley Falls, Kans.,” were added beneath his signature, all after he signed the note, and that he did not assent to or authorize any of these alterations. Plaintiff for reply to this answer pleaded a general denial.
The case was submitted to a jury, which returned a verdict in favor of plaintiff of $261.88. The jury also returned answers to special questions as follows:
“1. Did the second note provide for payment of interest from date when the defendant signed it? A. No.
“2. Did the plaintiff, its officers or agents, change the place of payment in the note under a belief it had a right to do so and without fraudulent intent to injure the defendant? A. Yes.
“3. Do you find the plaintiff to be a holder in due course of the note sued upon herein? A. Yes.”
At the close of plaintiff's evidence defendant demurred to it. This demurrer was overruled. At the close of the case defendant also filed a motion for judgment on the answers to the special questions notwithstanding the general verdict. This motion was denied. He also filed a motion for a new trial, which was denied. He then filed a motion to reduce the verdict to correspond to the answers to special questions. This motion was sustained by eliminating the interest, and judgment was entered for $251.65 and foreclosing the mortgage on the automobile. From that judgment this appeal is taken.
The first argument of defendant is that the trial court erred in denying his motion for judgment on the special findings notwithstanding the general verdict. In this argument defendant points out first the fact that plaintiff admitted making the change on the note as to the place of payment and that the jury found in answer to special question number 1 that the note did not provide for payment of interest from date when the defendant signed it. He argues that the first alteration above was a material one and that the plaintiff admitted making it and therefore it could not claim to be a holder in due course so as not to suffer on account of the second alteration, which was a fraudulent one, since the effect was to cause defendant to be bound to pay more than he agreed to pay. In order to maintain this position defendant must needs establish that the circumstances surrounding a material alteration cannot be examined by the courts. To do this he depends on the provisions of R. S. 52-906. That section reads as follows:
“Where a negotiable instrument is materially altered, without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized, or assented to the alteration and subsequent endorsers; but when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof, according to its original tenor.”
Also, R. S. 52-907. That section provides as follows:
“Any alteration which changes: (1) The date; (2) the sum payable, either for principal or interest; (3) the time or place of payment; (4) the number or the relations of the parties; (5) the medium or currency in which payment is to be made, or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration.”
Defendant then points out that he neither made, authorized nor assented to the change in the place of payment of this note — hence the alteration renders it void. He further argues that once the plaintiff admitted making a material alteration in the note that it was prevented from becoming a holder in due course.
Plaintiff meets this argument by maintaining that the change in the place of payment was made by plaintiff under the belief that it had a right to do so and without any fraudulent intent to injure the defendant. Here plaintiff relies on the rule laid down in Edington v. McLeod, 87 Kan. 426, 124 Pac. 163. In 2 C. J. 1181 the rule is stated as follows:
“. . . an alteration of the instrument without any fraudulent intention as a general rule, avoids the instrument only, and the promisee may still recover upon the original indebtedness, as where the alteration was innocently made under a mistaken belief of right and for the purpose of making the writing conform to the real intention of the parties. This principle is applied to make a mortgage available, although the note which it secures has been destroyed by an alteration, . . .”
To the same effect is the rule stated in 1 R. C. L. 1007.
The trial court submitted the case to the jury on proper instructions as to whether the defendant had consented to the change in the place of payment. It is true that defendant denied that he consented to the change in the place of payment. Outside, however, of his statement to that effect the testimony the bank offered and all the circumstances tend to establish that defendant did consent to the change. In addition to this, there is no evidence at all in the record that this change was fraudulent or was calculated to do the defendant any harm. We must hold, therefore, that plaintiff in this case was the holder in due course of the note in question.
We turn now to the charge that the note was altered by changing the time when interest should start from “maturity” to “date.” Such a change as this would be fraudulent because the effect of it would be to cause the maker of the note to pay more than he agreed to pay. Here the jury found in effect that this alteration was made after defendant signed it. It did not find nor was it asked the specific question as to who did make the alteration. By its general verdict, however, and by its finding that plaintiff was a holder in due course, it found in effect that the alteration had been made when the note was offered to the bank. Here plaintiff calls our attention to the provision of R. S. 52-906 that when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment of it according to its original tenor. That is what the plaintiff sought to do in this action and that is what the court held it could do. There are some other questions argued by defendant but they are all settled by what has been said here.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
P. E. Clark brought this action against the Atchison, Topeka & Santa Fe Railway Company to recover damages for personal injuries and loss sustained in an accidental collision at a railroad crossing just west of the railway station at Ashland. The trial resulted in a general verdict for plaintiff awarding him damages in the sum of $6,155, and with the verdict the jury returned answers to special questions submitted by the court. Upon motion the court gave judgment for defendant on the special findings of the jury. From that judgment plaintiff appeals.
In his petition plaintiff alleged that about the noon hour of September 29, 1924, while he was driving a grain binder to which was attached a team, upon a road and over a crossing of the defendant’s tracks, in a cautious and prudent manner, a freight train of defendant negligently operated and running at an unusual and excessive rate of speed approached the crossing without sounding a whistle, ringing a bell or giving other signals and negligently drove the train against the binder on which plaintiff was riding, severely wounding him and injuring his property, for which damages were asked. It appears the railroad runs east and west through Ashland, and that plaintiff was engaged in-driving his team and machine to his home. He drove some distance east along the railroad track and then turned south towards the crossing along the road passing the station house, which is seventy-two feet east of the railroad crossing and nineteen feet to the north rail of the main track, on which the collision occurred. When he was on the crossing the train of the defendant, composed of an engine and twenty-one cars, approached the station from the east, running at a speed of about twenty miles per hour. There were some obstructions to a view of the track towards the east of the crossing. Before going upon the crossing the plaintiff slowed down his team and looked and listened for a train, but did not stop or take any other precaution to ascertain if there was danger from approaching trains. . After the team had passed over the track and the binder was upon it, the defendant’s engine struck the machine on which he was riding. Material findings in respect to the situation on or about the crossing and .the action of the parties follow:
“Q. How far east of the crossing was the engine of defendant’s train when the engineer first discovered plaintiff or his team? A. One hundred and twenty-five feet.
“Q. How far east of the crossing was the engine of defendant’s train when the fireman first discovered plaintiff’s team? A. Front of engine was at east edge of crossing where plaintiff’s binder was hit.
“Q. Where was defendant’s engine when plaintiff first saw it? A. Two hundred feet away to the east.
“Q. Did the engineer set the emergency brakes and use all precautions he could have used immediately after he discovered plaintiff’s predicament? A. No; blew four blasts before applying brakes.
"Q. How far east of the crossing could the engineer have discovered 'plaintiff’s predicament? A. Three hundred and fifty feet.
“Q. Could the engineer, after he could have discovered plaintiff’s predicament, have stopped the train and avoided the collision? A. Yes, if traveling fifteen or twenty miles an hour.
“Q. Could plaintiff after discovering the approaching train have avoided the accident? A. No.
“Q. If you find that defendant was negligent, state in what respect he was negligent.' A. He should have applied brakes before blowing four blasts.
“Q. How far from main track on which plaintiff was hurt was it to the south side of depot? A. Twenty-one feet.
“Q. Did not the railroad track run practically due east in a straight line from the crossing where accident occurred for more than a mile? A. Yes.
“Q. Could not a person see east along the main line track for a distance of at least a mile from any point between the south line of station and the main line track? A. No, on account of bay wind'ow obstructing view.
“Q. Was the ground west of the road smooth and level enough so that the plaintiff should have turned on to it before going on tracks? A. Yes.
“Q. Did plaintiff do so? A. No.
“Q. What precautions did plaintiff- take before going over track? A. Looked, slowed up team and listened.
“Q. Was there not a railroad crossing on a public road a short distance east of station, where an unobstructed view of track each way could be had? A. No, not unless close to main line of track.
“Q. How far back of the heads of his horses was plaintiff sitting on binder? A. Twenty-three feet.
“Q. Did plaintiff stop before driving his team on to track? A. No.
“Q. Was the place where plaintiff drove on a public, laid-out road? A. Yes, for the reason that it has been kept up -and maintained by defendant and used by the public extensively for about twenty years.
“Q. Could plaintiff have seen east along the railroad until he reached a point practically west of the south line of station? A. No.
"Q. At what rate was plaintiff traveling when his horses reached track? A. One mile per hour.
“Q. At what rate was train traveling when it passed the station window? A. Approximately twenty miles per hour.”
While there were several grounds of negligence alleged, the findings of the jury have eliminated all of them except that the engineer blew the whistle before he applied the brakes. The averments of negligence as to the excessive speed of the train, the failure to give necessary signals of the approach of the train to the crossing and in the existence of elevators and other buildings along the track that obstructed the view towards the east from which the train was coming, are negatived by the special findings. (Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Morlan v. A. T. & S. F. Rly. Co., 118 Kan. 713, 236 Pac. 821.) Can the defendant be held liable for the collision because the engineer blew the whistle before applying the brakes? When the plaintiff’s team and binder came within the view of the engineer, the team had not entered upon the track and the engine was only 125 feet from the crossing. It is said.it was not possible for the engineer to have discovered the plaintiff’s predicament until he was within 350 feet of the crossing. Who can say that it would have been more prudent and in the exercise of better judgment to have applied the brakes before sounding a warning? The warning whistle gave the plaintiff an opportunity to stop and turn aside instead of driving on over the track. It appears the team got across and that the binder was on the middle of the track when it was struck. There was an open space and smooth ground on the side of the track upon which the team and binder might have been driven. If the engineer had applied the brakes before sounding the warning and a collision had occurred, the defendant might have plausibly contended that if the warning signal had been first given he could have turned aside and have saved himself and his property. There was only a moment of time for the engineer to consider which was the more prudent course for him to pursue, or, for that matter, for the plaintiff to consider and decide whether to stop, turn aside or drive on. It is well established that a person suddenly confronted with impending danger, without time for deliberation as to which one of two or more acts will be wisest and best, who acts in good faith and takes an action that turns out not to have been the most judicious, cannot be charged with negligence. (Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663.)
In the circumstances of the case it cannot well be said that the engineer chose the wrong means to avoid the collision, and at any rate negligence in this emergency cannot be predicated upon the one chosen by the engineer. It was found that the team and machine were approaching the track at the rate of a mile an hour when seen by the engineer, and it was natural for him to conclude that the plaintiff on hearing the warning signal would stop or turn aside and thus avoid a collision. It is said that the team was frightened by the whistle and was not easily managed, but that does not tend to show that the engineer was negligent in the course of action taken.
It appears that the railroad is laid almost due east and west through the city of Ashland. The plaintiff drove his team and machine a short distance, traveling east along the north side of the track, and then turned south upon a road which passed seventy-two feet west of the station, which was twenty-one feet from the railroad track. The station obstructed his ■ view to the east, and it appears that his position on the binder was twenty-three feet back from the heads of the team. Near by was another crossing over which plaintiff might have driven with reasonable safety. He was familiar with the crossing, had used it many times and necessarily knew its environment and the peril of crossing there with the unusual and unwieldy outfit he was managing. He knew he could not obtain a view of a coming train until the team was about to enter upon the track. It was his duty to use ordinary care in approaching such a dangerous crossing. Ordinary care requires that a traveler approaching a railroad crossing shall take such precaution for his safety as would be used by persons of ordinary prudence under like circumstances and conditions. In some cases it is enough to look, in other cases to look and listen, in other cases to stop as well as look and listen, and in still others he should leave his vehicle and go forward to a point where he can ascertain whether he can cross safely. (Railway Co. v. Jenkins, 74 Kan. 487, 87 Pac. 702; Railway Co. v. Hansen, 78 Kan. 278, 96 Pac. 668; Railway Co. v. Jenkins, 79 Kan. 17, 98 Pac. 208; Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023; Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742; Acker v. Railroad Co., 106 Kan. 401, 188 Pac. 419.) It was not due dili gence for plaintiff to look and listen where he could not see or hear the train. He failed to stop, but drove on the track without taking other precautions than to slow dowh and look and listen, and knowing of the obstructions and that the ordinary means for ascertaining the perils of the crossing were not available, he should have stopped his team and vehicle and gone forward to a point where he could have had a view of the track and of the coming train. If he had done so he woufd have had a view of the track for a mile east of the crossing and could thus have avoided the collision and the injury suffered. It was shown, too, that there were posts near the station to which he could have tied his team, if it was necessary to tie them, while he went forward.
Under the circumstances of the case 'and within the authorities it must be held that the plaintiff himself was negligent. The plaintiff invokes the application of the doctrine of the last clear chance, but the facts make it clear that the doctrine has no. application here. Plaintiff’s negligence continued to the time of the collision, and, more than that, there is no basis for the claim that defendant failed to exercise ordinary care to avoid injury to plaintiff upon discovering his peril. (Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680.)
Finding no error in the record, the judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for injuries sustained on account of the death of the husband of plaintiff alleged to have been caused by a defective state highway. Judgment was for plaintiff. Defendant highway commission appeals.
The scene of the tragedy was a bridge on highway 50 just north of Merriam in Johnson county. William H. Hill, the husband of plaintiff, was driving north on this highway at 7:30 p. m. It was dark and cars were being driven with the lights turned on. The car driven by the husband of plaintiff collided with the steel trestle-work of the bridge. It was a Franklin coupé. It ran up the inclined part of the trestlework onto the top part and then fell over to the left into the road. Hill, the driver, was caught underneath the car. He died soon after it was lifted from him. This action was brought by his widow under the provisions of R. S. 1933 Supp. 68-419, commonly known as the defective-highway statute.
The allegations of the petition as to the defective condition of the highway were as follows:
“That said bridge was defective and there were defects in said highway in the following respects, to wit: That although the paved portion of the highway south and north of said bridge was 18 feet in width, the clear roadway of or on said bridge was less than 16 feet, said clear roadway being only 15 feet 7% inches in width at the south end and 15 feet 10 inches at the north end; that concrete curbings protruding upwardly 4% inches above the pavement and with shoulders projecting inwardly on the ends were placed and maintained by the defendant commission upon the paved portion of the highway across said bridge and extended 13 inches or more inside of the edges of the pavement on each end of the said bridge; that the aforesaid steel trestlework of said bridge was on the exact line of the outer edges of the pavement as it approached said bridge and was no wider than the pavement north and south of the ends of said bridge, so that an automobile entering upon said bridge was in danger of colliding with said trestlework even though all the wheels of the automobile were at all times upon the pavement of said highway; that the bridge was not painted or illuminated, but was dark, dingy and weather-beaten and was permitted to remain of a color similar to that of the foliage, trees, telegraph and electric poles and the terrene on the other side of the highway although it was practicable for the defendants to have painted said bridge NwiÜi a color such as aluminum or white or some other color that would have been readily distinguishable to an automobile traveler from the color of the aforesaid objects and things on either side of said highway, or to have painted the ends of said bridge with alternating stripes of black and white or aluminum so that said ends would have been readily observable to a traveler approaching the same, all as the defendants had done on other bridges located on Kansas state highways. That there were no warning signals, notices or signs posted to indicate the presence of the bridge or that a traveler was approaching the same; that there were no guardrails, fences, or posts painted with a white, aluminum or other light color located on the sides of the pavement as it approached said bridge to indicate to an approaching traveler that there was danger at the side of the highway where said bridge was located or that there were dangerous obstructions upon said highway at said place, although it was practicable for the defendants to have placed and maintained such painted guardrails or posts at said locations as the defendants had done on the approaches to other bridges on the Kansas state highway system; that the bridge and pavement across same were dangerously narrow, forming a bottleneck on the highway; and that the concrete curbings with inwardly projecting shoulders at the ends thereof and within the lines of the outer edges of the pavement north and south of the bridge formed a dangerous obstacle in the path of vehicles traveling upon the pavement of said highway.”
It will be seen that the petition was drawn on the theory that a number of circumstances and surroundings all combined to make this place in the highway a dangerous one to travelers thereon. It did not rest liability on the narrowness of the bridge alone.
The answer of the highway commission to this petition was a general denial and an allegation of contributory negligence on the part of Hill.
At the close of plaintiff’s evidence defendant demurred to it. This demurrer was overruled. Defendant did not offer any evidence and the case was submitted to the jury. The jury returned a verdict for the plaintiff and answered special questions. The defendant filed a motion to set aside certain answers to special questions and for judgment notwithstanding the general verdict. After all these motions were overruled defendant appealed.
The first error argued by defendant is that the condition of the highway as shown by the evidence was not a defect as a matter of law. The position of plaintiff is that the question of whether or not this particular condition constituted a defect was a proper one to submit to the jury and there was evidence to sustain the verdict and it should not be disturbed.
These contentions require a careful examination of the evidence. We will approach the case with the idea that the entire situation— that is, narrow bridge, absence of warning signs and neutral coloring of the bridge, as well as the width of the bridge as compared with the width of the paved portion of the highway — should be considered.
As the highway approached the bridge it was paved with brick with a cement shoulder 2 feet wide on each side. The shoulders offered as smooth a surface upon which the wheels of a car might run as the brick. There was a black stripe painted down the middle of the pavement for the guidance of traffic. The entire width of the paving, including the shoulders, was 18 feet 2 inches. The bridge was an ordinary steel bridge. Its trestlework started at the level of the pavement and inclined up about 5 feet at about 45 degrees and then was flat until the other side of the bridge was reached, when it again sloped down. Running along each side of this bridge and on a level with the pavement was a cement curbing, or what some engineers call a wheel guard. This curbing was not built up flush against the iron trestlework of the bridge, but there was a space about an inch and a half or two inches between the inside of the trestlework and the outside of the curbing. This curbing was about 4% inches high at the south end and east side of the bridge. The width of the curbing was about 8% inches. At each end of this curbing there was a finger, or, as the jury called it, a tab, sloping down from the top of the curbing toward the middle of the bridge. As we have seen, the width of the highway as it approached the bridge from the south was 18 feet 2 inches, including 2 feet of concrete shoulders on each side. Partly on account of the space that intervenes between the outside of the concrete shoulder described and the inside of the trestlework, and partly because the outside edge of the pavement is not quite flush with the inside edge of the trestlework, the distance between the outside edges of the curbing was 17 feet 9 inches, or 5 inches less than the width of the pavement. The distance between the inside edges of the curbing was 16 feet 4% inches. The distance between the concrete fingers or tabs at the end of the concrete curbing was 15 feet 7% inches on the floor of the bridge. Thus it will be seen that the space between the places where the concrete tabs reached the floor of the bridge was 2 feet 6yz inches less than the width of the pavement. These concrete curbings were known as wheel guards when the bridge was built in 1914. They constituted good bridge engineering at that time. Their purpose was to keep traffic from being deflected onto the superstructure of the bridge.
At the time of the Hill accident there was a guardrail which extended from the south end of the east trestle of the bridge south and a little east about 4 or 5 feet. Neither the plank that formed the guardrail nor the parts to which it was fastened were painted. The bridge had been black when it was built, but had become dingy. It was not painted at the time of the accident. There were no aluminum painted posts or rails along the highway at the south end of the bridge. There were no warning signs that the traveler on the highway was approaching a narrow bridge. There was no standard at the side of the bridge with reflector buttons to warn the traveler he was approaching a bridge. Since the Hill accident the trestlework has been painted in broad black-and-white alternate stripes and a post has been put in the ground just in front of the east trestlework of the bridge with reflector buttons on it. The effect of these buttons is to catch the light from oncoming automobiles and to warn drivers that there is an obstruction immediately in the rear of the lights. A stronger, more permanent guardrail leading up to the bridge has also been built. It is painted so as to be more readily seen than the old rail. As has been stated, the bridge was located on state highway 50 just north of Merriam. On the east side of this highway and about 150 feet south of the bridge was a filling station. It was open on the night of the accident.
So that the argument of plaintiff and defendant may be understood, a statement of what happened will be made.
Mr. Hill had lived in the vicinity of the accident for several years. He used the bridge every day and sometimes several times a day. On the evening in question as he approached the bridge he was traveling, according to the only eyewitness of the tragedy, about 20 or 25 miles an hour. He was driving with one wheel on the shoulder just before he hit the bridge. One car had passed off the south end of the bridge just about the time Hill hit the bridge. His car bounced and went to the right, up the banister and tumbled- over. The witness who testified to this was driving onto the north end of the bridge just as Hill hit the south end. The same witness testified:
“Just prior to the time I saw his car bounce I couldn’t describe exactly where it was. All I know it was on the pavement. It was on the east — the right-hand side. It looked to me like he was either blinded, or looking for the bridge or something. He was on the slab on the outside, whatever you call it. The slab of concrete. He was riding on that as well as I could see it and he made a little turn this way (indicating toward the west) before he got to the bridge.”
Immediately after the accident it was noted there were marks and fresh oil upon the slanting part of the bridge.
We shall consider the demurrer to the evidence, the motion to set aside answers to special questions and the motion for judgment on the special findings notwithstanding the general verdict, all together. When thus considered the questions are, Were all the surrounding facts and circumstances such that this court can say as a matter of law there was no defect in the highway? And second, Do all the undisputed surrounding facts and circumstances prove that plaintiff was guilty of contributory negligence as a matter of law? In Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, this court said:
“A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect.” (p. 813.)
In Collins v. State Highway Comm., 138 Kan. 629, 27 P. 2d 216, this court said:
“Where some portion of a public road is defective and the road authorities have had notice of it, it is their duty to set about its repair with reasonable promptness, and until that can be done, suitable warning signs should be placed to caution the public that the road is not in its usual condition of safety for public travel.” (p. 631.)
In the case of Phillips v. City of Wichita, 132 Kan. 102, 294 Pac. 911, the question of liability turned upon whether a cement abutment placed in the street to guide traffic, which was struck by plaintiff’s automobile, had been properly lighted. The court said:
“The city identified the projecting wall with the viaduct scheme, and produced evidence to show the whole scheme was a proper one from an engineering standpoint. ... At the trial the only substantial issue was whether there should have been a proper light on the narrow point of the wall, so that automobile drivers, driving at night in mist and rain, on the south side of the street near the street-railway track, could see the end of the wall, turn to the right and avoid it.
“Absence of a proper light was urged as a ground of negligence on the part of the city. It would serve no useful purpose to detail the evidence relating to that subject, which took a wide range. It is sufficient to say the unlighted point of the wall was a serious menace to eastbound automobile traffic, and the verdict finding the city guilty of negligence was abundantly sustained by evidence. . . .
“The manner in which the structure was lighted was described in detail, and the jury properly found the lighting was insufficient to reveal the dull-gray pointed end of the wall to a driver approaching it on a dark and rainy night. Nobody contended the structure ought to be lighted in a manner that would dazzle and blind automobile drivers. The kind of light which was needed was a blinking light at the end of the wall, such as the city installed after the accident, or a nondazzling red light, such as marked the ends of the street-car loading platforms.” (pp. 102, 105.)
The progress that has been made in the building of hard-surface highways of all types, together with the perfection of the automobile, has presented to the courts many new problems. Not the least vexatious among’them is the oft-recurring one of whether a certain condition constitutes a defect in a highway. Obviously not every trifling imperfection can be held to come under that category. To so hold would make the highway commission the insurer of travelers upon the state highway system. Such was not intended by the legislature. (See Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834.) It would be fine if all the highways were absolutely smooth and devoid of curves and corners and with every bridge and culvert wide and smooth. The situation with which the commission is confronted, however, is a practical one. There are many miles of highway in the state system and it is all subject to the wear and tear of travel, to ordinary occurrences common to all roads and to the natural wear and change due to exposure to .the elements. To require the highways to be kept in perfect condition at all times would place a drain on the highway fund not contemplated by the legislature. This was the reason for the holding of this court in the case of Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102. In that case this court held that'a depression about an inch deep and 4 feet long reaching entirely across a cement highway was not a defect. In that case this court said:
“The highways of the state are intended for travel. The funds of the highway commission are intended for the construction and maintenance of a state highway system. Now, if a condition such as that described here should be held to be a defect all travel across the state would be over detours while the depressions were being repaired and all the money in the state highway fund would be expended in curing such conditions. We do not believe the safety of the traveling public requires any such holding.” (p. 153.)
To the same effect is the holding of this court in Doherty v. State Highway Comm., 140 Kan. 686, 38 P. 2d 95, where it was held that loose sand or chat on a highway was not a defect. There the court said:
“Gravel, or small stone, on a highway, is so common that to hold the highway commission liable for an injury resulting therefrom, as described in this petition, would be to make the maintenance of state highways prohibitive.” (p. 687.)
This court approved the above conclusion and language in Hanna v. State Highway Comm., 141 Kan. 135, 40 P. 2d 472, where it was held that a nail or spike left lying on a state highway was not a defect. This court adopted the rule that in cases where it is claimed that a state highway is defective, the surrounding facts and circumstances should be examined in each case rather than to announce a general rule as to what constitutes a defect. (See Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834.) With these rules in mind we will examine this record.
This court is not called upon to say as a matter of law that where there is a failure to light a bridge out in the country there is a defect-in the highway; nor is it called upon to say that every bridge that is somewhat narrower than the paved highway constitutes a defective highway. The practice, however, of installing warning signs along the state highways to warn of narrow bridges and dangerous curves is so universal and common as to impinge upon the notice of even a justice of this court in his secluded cloisters; nor does it appear so expensive as to be prohibitive. No burning lights were required to render- that part of the highway not defective. The metal posts with the reflector buttons are a godsend to those charged with making the highways safe, but they do not do the traveling public any good unless they are erected. Here three simple changes might have been made to render this highway nondefective — a post with réflector buttons might have been installed, the superstructure of the bridge might have been painted in some outstanding manner and the guardrail to the bridge might have been painted in such manner as to make it easily seen. One thing more might have been done. The commission could have taken a sledge hammer and knocked the cement curbing off the bridge. It would have thereby rendered it 2 feet 6% inches wider. No good reason for this curbing being on the bridge was shown at the trial of the case. We are not called upon to say that the narrow bridge-or the curbing or the lack of warning signs or the narrowness of the bridge compared with the width of the pavement was a defect in the highway. We must consider all these elements together. This court held in the case of Bobbitt v. State Highway Comm., 138 Kan. 487, 26 P. 2d 1115, that the highway commission had authority to change the whole route of a state highway through a county in the interest of safety of the traveling public. We cannot hold that failure to do such a simple and inexpensive thing as painting a bridge, erecting a sign or erecting and painting a guardrail does not make a highway defective where failure to do so causes a dangerous place to exist. There was sufficient evidence introduced by plaintiff that the highway was defective to make it a question for the jury.
The next question is, Did the evidence of plaintiff prove that Hill was guilty of contributory negligence as a matter of law? The jury answered three questions bearing on this. They are as follows:
“6. Had the deceased been exercising due care for his own safety and had his car under control, coiild he have avoided the accident? A. No.
“11. Do you find from the evidence that the accident was caused by a failure to drive carefully along the highway so as to avoid striking the trestle-work of said bridge? A. No.
“12. Was the deceased driving his automobile at such a rate of speed that he could stop the same within the range of vision of his headlights? A. Yes.”
Defendant first argues that the physical facts compel a conclusion that plaintiff was traveling at an excessive rate of speed. The fact that the car ran up on top of the superstructure of the bridge before it stopped is pointed as conclusive proof of this. We cannot agree with this. The only witness that testified as to speed said 20 or 25 miles an hour. The jury evidently believed this witness.
There are other facts, however, which merit a careful examination by this court. It has been noted that Hill had lived in this vicinity for several years. He had used the bridge every day in that time and sometimes several times a day. It is natural to conclude that he knew the bridge was there and that it was somewhat narrower-than the pavement. Indeed the jury answered the following special question:
“If you answered question No. 1 in the affirmative, then state whether the deceased, William H. Hill, knew of such defect prior to the accident. A. Yes, on the assumption of his continued use of road.”
This court has held that failure of a plaintiff to honk his horn just before entering an intersection where a collision occurred was sufficient to establish contributory negligence. (See Martin v. Weigand, 113 Kan. 611, 215 Pac. 1023.) In Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352, this court held that a boy who ran into the street with the intention of crossing without looking for approaching automobiles was guilty of contributory negligence. The reason given for the decision was that the boy was in a place of safety and left it without looking. The conclusion and reasoning in that case was approved in Crowder v. Williams, 116 Kan. 241, 226 Pac. 774.
This case is analogous to those where one enters upon a railway crossing without looking and listening and is injured. In those cases this court has held the plaintiff to be guilty of contributory negligence and has denied recovery on the ground so often as not to require any citation of authorities here.
Plaintiff argues that the question of whether one is guilty of contributory negligence is one of fact for the jury. The answers to special questions 6, 11 .and 12 are pointed out and it is argued that these findings acquit the plaintiff of contributory negligence. Ordinarily this is correct. However, where the facts disclosed by the evidence are not controverted and are such that reasonable minds could reach only one conclusion thereon the question is one of law to be decided by the court and not one of fact to be determined by the jury. (See Lilly v. Wichita Railroad & Light Co., 127 Kan. 527, 274 Pac. 205, and cases cited.)
Plaintiff argues that there was no evidence that Hill had ever used the road at night. It is not necessary that this be proven. The fact that he used it so often in the daytime is proof that he knew he was approaching this bridge. We have then a traveler on the highway who is familiar with it. Located 150 feet south of the bridge is a filling station and garage. It was open on the night in question. The proprietor had just finished servicing a car when the crash came. Hill had passed this filling station less than a minute before the crash. The fact that he had just passed this station and that he had just passed through'the village of Merriam was some notice to him that he was approaching the bridge. He was driving with one wheel on the cement shoulder. When the light of the on-coming car flashed in his eyes, blinding him, he, knowing that he was approaching the bridge, should have stopped and waited. Had he done this he would not have hit the bridge. We have concluded that he was guilty of contributory negligence. We are not holding that every motorist should stop and wait when he is blinded by the lights of an approaching car. We only hold that this driver, who knew he was approaching a dangerous place and that his driving with one wheel on the shoulder made it certain he would hit the bridge, was guilty of conduct amounting to a failure to exercise due care under all the circumstances. (See Ade v. City of Wichita, 141 Kan. 497, 41 P. 2d 734.)
In this discussion we have referred to some answers to special questions. This was because we have considered the motion to set aside answers to special questions and the motions for judgment notwithstanding the general verdict together with the demurrer to the evidence.
What has been said compels the judgment of the trial court to be reversed with directions to enter judgment for defendant. It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is from a judgment denying a preference in behalf of Comanche county for unpaid personal taxes on the assets of a partnership which had made an assignment for the benefit of creditors.
The facts which were developed without dispute were these:
For some years past the Bachman-Wise Motor Company, a partnership, operated a garage and sold motor vehicles and accessories at the town of Protection in Comanche county. In 1930, 1931, and 1932, the partnership failed to pay its personal taxes. Tax warrants were regularly and timely issued by the county treasurer and delivered to the sheriff, but in each instance that officer failed to execute them and returned them without any record of his doings thereon.
On October 14, 1932, the partnership made an assignment for the benefit of its creditors in accordance with the statute. (R. S. 60-1301 et seq.)
In August, 1934, another tax warrant was delivered to the sheriff and returned by him without any recital of his doings thereon. The same warrant was reissued in November, 1934, and similarly returned without service. The earlier tax warrants had been “reissued” at various times and similarly returned without reciting the doings of the sheriff thereon.
On March 21 and 23,1933, the assignee, upon notice, heard claims of creditors. The county treasurer presented a claim in behalf of the county for the aggregate sum of $1,246.45 on account of delinquent personal taxes and accrued penalties against the insolvent partnership. This claim was allowed by the assignee on December 1, 1933; but no claim of priority on behalf of the county had been sought and none allowed by the assignee.
On February 13, 1935, the county attorney filed a motion in the district court that the county’s claim for unpaid personal taxes, interest and penalties, be declared “a first, prior and superior claim (judicial costs and expenses excepted) on the assets and moneys in the hands of the assignee,” and that full payment thereof he made by the assignee before any distribution was made to any other claimant or creditor of the partnership.
This motion was denied and the county brings the matter here for review.
Appellee raises the point that appellant was not entitled to any consideration in the district court, nor here, because the county did not ask a preference on its claim presented for allowance before the assignee, and the assignee’s order allowing the claim without preference was final, under the statute. (R. S. 60-1324.) In National Bank v. Branch, 57 Kan. 27, 45 Pac. 88, this court held that where no appeal was taken from an assignee’s allowance of some claims which he had classified as “unconditional” and others as merely “contingent,” the decision of the assignee “in adjusting and allowing such claims was final and conclusive.” In the course of the opinion in the same case, Mr. Justice Johnston, speaking for this court, said:
“In the matter of the allowance and classification of claims the district court can only acquire jurisdiction to review and .supervise the action of the assignee through a proceeding by way of appeal, but in respect to the condition and distribution of the assets of the estate jurisdiction may be acquired upon the petition of a creditor or other person interested in the estate; and if the petition contains good cause, and is verified by affidavit, the court may cause the assignee to be cited before it to answer the allegations of the petition, and abide any order that may be made by the court in the premises, and upon the hearing the court is authorized to make such order as may be deemed fit and lawful for the enforcement of the statutory provisions concerning assignments.” (p. 33.)
It would appear from both decision and opinion in the case just cited that the court assumed that the statute concerning assignments would warrant a classification of claims in respect to the order of their payment, but a critical scrutiny of the statute itself warrants no such inference. If such an interpretation were given the statute, appellee’s point in respect to the county’s failure to claim a preference before the assignee and its failure to appeal from the assignee’s denial of such preference would be good. In Limbocker v. Higinbotham, 52 Kan. 696, 701, 35 Pac. 783, this court said:
“The assignment proceeding is in the nature of a proceeding in rem, and all who desire to share in the assigned assets must conform to the procedure prescribed by the statute.”
Assuming, however, that no procedural steps were wanting to a complete review of the matter in controversy in the district court on its merits, what basis has the county to support its claim to be a preferred creditor in the distribution of the assets of the partnership? Counsel for the county cite R. S. 79-317, which declares that where a person sells all his personal property after it is assessed and before the tax thereon is paid, the tax shall be a lien on the property and shall be due and payable at once, and the county treasurer shall issue his tax warrant for the collection thereof, and the sheriff shall collect it as in other (personal tax collection) cases.
Such is the statutory mode of collecting delinquent personal property taxes. Certainly it was a better way, simpler, more expeditious, more certain to get results, than the one the county now seeks to pursue. For the delinquent personal taxes of 1930, if the county had pursued the statutory mode of collection it would have had priority — it would have absolute precedence — for the recovery of its due. And similarly it had a statutory preference about which there could be no cavil if it had chosen to pursue it in the succeeding years as the personal taxes of the partnership became delinquent. It seems clear, however, that such more effective method prescribed by the tax laws for the enforcement of the county’s precedent right to their recovery was the exclusive one. The ingenuity of -counsel in devising other methods for the collection of taxes, while commendable, will not serve to give the county a preference not granted by the statute nor fairly to be implied therein. In the interesting case of Ness County v. Light & Ice Co., 110 Kan. 501, 503, 204 Pac. 536, where the county pursued a novel and ingenious course in an effort to collect delinquent taxes, this court said:
“The entire subject of taxation is statutory; the method prescribed for the recovery of delinquent taxes is statutory, and it does not exist apart from the statute.” (Syl. ¶2.)
That simple and understandable rule has been repeatedly affirmed in a variety of 'tax cases. (Sarver v. Sarver Oil Co., 141 Kan. 246, 40 P. 2d 394, and citations.)
We have not failed to notice the cases from other jurisdictions cited by appellant. We doubt not that they were decided in accordance with pertinent local statutes. Counsel suggest that the county ought not to suffer because the sheriff failed to execute the tax warrants which were timely placed in his hands. Quite true. The law books are full of instructive cases concerning various available remedies against derelict public officials, but we have no such case here.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action for damages for wrongful death resulting from alleged defects in a state highway. Defendant appeals.
The accident occurred on U. S. highway No. 54, a sand-and-gravel road, at a point about twelve miles west of Kingman, Kan., and at about 8:45 o’clock in the morning of August 12,1934. The highway runs east and west. Deceased was driving a truck in a westerly direction. His wife accompanied him on the trip. The truck passed over the alleged defects and struck a bridge, resulting in the driver’s death. The jury made answer to certain special questions, which are:
“1. (a) Was there a defect in the highway at the time and place of deceased’s accident? A. Yes. (b) If your answer is 'yes,’ then state the location thereof. A. About one hundred and forty (140) feet east of east end of the bridge.
“2. If you answered question 1 in the affirmative, then describe said defect by stating: (a) The depth? A. About four (4) inches, (b) The length? A. About six (6) feet, (c) The width? A. About five (5) feet.
“3. If you have answered question 1 in the affirmative, then state whether the director of highways, or state highway engineer, or any member of the state highway commission, or any foreman, patrolman or other employee in charge of the construction, maintenance or upkeep of such highway had notice of the existence of such defect. A. Yes.
“4. If you have answered question 3 in the affirmative, then state: (a) His name. A. Earl Parsons, (b) On what date or for how long prior to August 12, 1934, he had such notice. A. At least five (5) days.
“5. Was the deceased at the time of the accident and immediately prior thereto exercising due care for his own safety? A. No.
“6. If you answer question 5 in the negative, then do you find that the accident and resulting injury was caused by his failure to'exercise due care? A. Yes.
“7. How far east from the defect described in question 2 could the deceased have seen said defect on the morning of the accident by keeping a proper lookout over the roadway ahead of him? A. About one hundred (100) feet.”
The jury returned a verdict in favor of plaintiff and assessed the recovery at $1. Defendant moved for judgment notwithstanding the general verdict, for the reason it was entitled to judgment on the special findings of the jury. Plaintiff moved to set aside special findings 5, 6 and 7, upon the ground they were contrary to all the evidence, not supported by any evidence, were in conflict with all of the evidence, and inconsistent with the other special findings. Plaintiff also moved for a new trial. The court overruled defendant’s motion, disapproved special findings 5, 6 and 7, set the same aside,-set aside the general verdict and sustained plaintiff’s motion for a new trial. Defendant had demurred to plaintiff’s evidence. The demurrer was overruled. Defendant appeals from that and all other adverse rulings.
On the demurrer to the evidence two questions are presented: Did the chuckholes or whipped-out places on the sand-and-gravel road constitute defects within the meaning of R. S. 1933 Supp. 68-419? If so, did defendant have five days’ notice thereof? The pertinent evidence of plaintiff on the subject of defects disclosed substantially the following facts:
There existed to the east of the bridge a grade or rise. The top of the rise was about one fourth mile east of the bridge. The decline toward the bridge was gradual. The road was practically level for some distance east of the bridge. The extent of the level portion, according to various witnesses, will be narrated directly. The accident occurred on this practically level portion of the highway. The complaint is concerning two chuckholes or whipped-out places. The larger place was located between 75 and 150 feet east of the bridge. It was described as being from three to five inches deep, and then containing about two inches of loose sand, gravel and dirt. The testimony as to width and length most favorable to plaintiff was it was about four to five feet wide and about eight to nine feet long. The other alleged defect was about 50 feet east of the bridge, about three inches deep, about three feet wide and about three or four feet long. Both chuckholes were a little north of center or on the right side of center to a vehicle traveling west. The weather had been extremely dry. The accident occurred on Sunday morning, August 12. August was in the midst of the drought. The highway was covered with loose sand, gravel and dust. The entire portion of this gravel road, which was nine to twelve miles in length, was generally rough, but there were also good places upon it.
We shall now narrate pertinent testimony particularly concerning the extent of the level portion of the highway on which the accident occurred, such evidence as the record discloses concerning the nature of the grade and the distance of the chuckholes from the top of the rise. The witness Luce, a mailcarrier, who traveled this road, testified substantially as follows: “I travel this highway going east. That puts me on the south side of the highway. The road was rougher there (meaning the east side), than on the west side of the bridge. I mean, it was rougher in this level spot in the bottom. The level place is 100 yards, maybe a little more. The grade from the bridge east began about 200 feet or possibly a little more. It may rise just a small amount from the bridge, but it is practically level for 200 feet or more. I hardly know how to say just what percent grade it would be. It is not a very high hill; it is a long, sloping hill.” He traveled on that road Saturday night, the day before the accident on Sunday morning. He noticed the chuckhole. He drove through it on his way home that night. He had been driving faster on his way home, but slowed up to approximately thirty to forty miles an hour. At that speed he drove right through the chuckholes, with the left wheels. He stated he knew the road was rough down there, but didn’t prepare for this particular chuckhole.
The witness Fall, a brother-in-law of Mrs. Espey, the plaintiff, testified in substance: The road is downgrade before it strikes the bridge, for approximately 300 or 400 feet. East of the bridge it is fairly level. Right at the bridge it was level, then it goes up hill. It was level for about 300 yards, then the road starts on an upgrade and goes up to the east for approximately a quarter of a mile.
The witness Lawson, a farmer who lived about 300 yards east oí where the accident occurred, testified in substance: He heard the crash and went right down there. There was a chuckhole about 150 feet east of the bridge. It was three or four feet wide, six or eight feet long and three or four inches deep. At the bottom was some sand — loose stuff — dirt. “Q. And you did not observe any other depressions between the depression that you describe and the bridge? A. Nothing to speak of, that I remember.” It was approximately a quarter of a mile from the bridge to the top of the rise. The roadway was practically level. “I believe the hill starts up to the east back east of this depression. I can’t say just how far east of the chuckhole the grade starts up toward the east.”
The witness Morris, who was employed by the deceased as a truck driver, testified concerning the level portion: The grade sloped up to the east, began something like 100 yards east of the bridge. It is something like 200 feet from the depression to the beginning of the hill as it goes up to the east.
The witness Gibbons, a farmer who lived about 200 yards east of the bridge and on the north side of this highway, testified: There is about 100 yards of level road on each side of this bridge — it is very nearly level. The chuckhole was a little north of center. It was about thre.e or four feet across. It looked like it was almost as wide as it was long. It was three or four inches deep: It was sand and loose dirt in the chuckhole. That was a sandy highway.
Clara Espey, plaintiff, wife of the deceased, testified in substance: “It must have been 100 feet east of the bridge where the truck struck the first hole. The truck struck the second hole about thirty feet east of the bridge. I don’t just remember. All I remember is the j ar. We were driving along at a moderate rate of speed, and all of a sudden it seemed like the whole front end fell into a big ditch, at the left side. The brakes worked perfectly before that time. The brakes did not work after he struck' the hole — the most I can remember — he tried to put on the brakes and he tried to use the steering wheel to keep it from going into the ditch. He was apparently not able to control the car with the steering wheel after he struck the hole. From the time he struck the hole until he crashed into the bridge he apparently could not control the car in the matter of direction or speed or stopping.”
While various decisions are cited, plaintiff is of the opinion the case ’ is governed by the decisions in Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, and Cheney v. State Highway Comm., 142 Kan. 149, 45 P. 2d 864. Defendant asserts it is controlled by the decision in Douglas v. State Highway Comm., 142 Kan. 222, 46 P. 2d 890. In the Douglas case this court said:
“In the consideration of the ruling on the demurrer to the evidence of the plaintiff the first question that arises is, whether the existence of a defect in the highway under the statute is a question of fact for a jury or a question of law to be determined by the court. Generally speaking, such a question is one of fact for the jury, but this being purely a statutory liability, the question of whether the alleged defect comes within the purview of the statute is a question of law. (Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834; Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102; and Hanna v. State Highway Comm., 141 Kan. 135, 40 P. 2d 472.)” (p. 222.)
A sand-and-gravel highway was involved in the Williams case. In the Douglas case the composition was gravel or chat. The Cheney case involved a bituminous mat which was corrugated and washboardy. In the Williams case there were two holes, near the top of the hill, one four inches, the other five inches in depth. In the Williams case it was said:
“Here there is evidence that the driver in descending the hill could not see the holes until he was practically upon them.” (p. 815.)
In the Cheney case the accident happened at night. The bituminous mat was corrugated and washboardy. The places were one to four inches deep and extended fifteen to twenty feet north and south. The corrugations were one to three feet apart. They were on the north slope of a small hill. It was impossible for one coming from the south to see them more than fifty feet after reaching the top of the hill. The jury found the driver exercised the care and caution that would have been exercised by an ordinarily careful and prudent driver under the same or similar circumstances.
It clearly appears in the instant case' the alleged defects were not directly over the top of a hill. The accident occurred on a practically level portion of the highway, about 75 to 150 feet east of the bridge. The decline from the top of the grade or rise was gradual and the top of that grade was about one fourth mile east of the bridge. Clearly this was not a concealed defect nor one which suddenly appeared over the crown of a hill when the driver was practically upon it. Plaintiff’s witness Morris stated he drove west over this road on Saturday before the Sunday on which Mr. Espey was killed. On direct examination he testified he observed the first hole just when he broke over the hill, a little back. On direct examination he was asked and answered as follows:
“Q. In answer to counsel’s question as to when you first saw the hole I will ask you if you did not say this: ‘I saw the first hole just as I broke over the hill’? A. No. I didn’t say that.
“Q. So you want to say now that it was as you neared the bottom of this hill that you first noticed those places? A. When I got nearer — nearer the big hole, I saw it — see? But I didn’t from the brow of the hill.
“Q. You say now it was when you got down to the bottom of the hill? A. Yes, that is what I mean.
“Q. And the bottom of the hill was, as you state, roughly 200 feet from the hole, approximately? A. Yes.”
Giving this testimony its most favorable construction, it is clear the alleged defects were not just over the crown of the hill, where they could not be observed, but on the contrary were a long distance from the top of the rise, and the witness observed them 200 feet before he reached them. This same witness also testified as follows:
“Q. And as you drove down over that hill, Mr. Morris, as you came do-wn near the bottom of it you could see the roadway ahead of you and determine that it was rough? A. No, you couldn’t. You — that is where they had dragged it in over there — those roads you couldn’t tell it was rough until you got right onto it.”
It will be observed the last answer is not responsive to the question concerning this particular alleged defect, but is descriptive of roads where the chuekholes had been filled in with a drag. That is not the complaint nor the evidence of plaintiff as to this particular alleged defect on this distinct occasion. The very evidence relied upon here is the chuckhole had not been filled and there was a depression of three to five inches. in depth. As to this particular alleged defect, however, the witness testified that he could observe it approximately 200 feet away. Plaintiff’s witness Lawson testified:
“Coming down the grade toward the hole in broad daylight you could see it if you were looking for that kind of a place, I presume you could, but if you weren’t looking for it why you could overlook it until you got pretty close to it.”
This accident occurred in broad daylight. It happened on the level portion of the highway. There was nothing to obstruct the view. Ignoring, for the moment, the evidence of the long gradual slope to the level portion of the road, the evidence most favorable to plaintiff was the chuckhole could be observed from a distance of 200 feet.
In the Douglas case this court carefully reviewed its various decisions on the subject of defects in highways, including the Wil liams and Cheney cases, strongly relied on by plaintiff in the instant case, and pertinently said:
“It will be observed in nearly all of the cases thus far cited herein the defects were obscured from the view of the driver in one way or another, either by standing water or weeds at the side of the road or the ehuckholes or washboardy effect being just over the top of a hill.” (p. 228.)
In conclusion, it was further said:
“It seems from the testimony of plaintiff’s witnesses that the corrugated or washboardy effect, chuckholes and ruts described in this case may have been a little worse than just the common, ordinary graveled-road condition in wet weather, but certainly not enough different from what most of them describe as usual and ordinary to make its condition a defect under the meaning of the statute, unless we say that any and every gravel or chat road is defective and dangerous to the traveling public in wet weather, in level places and where it can ordinarily be seen.” (p. 229.)
In the instant case there had been a long drought. Truck traffic was heavy on this highway. The gravel and sand were easily whipped out of the roadbed. Chuckholes or whipped-out places were the natural result. They were in this highway, notwithstanding the fact the maintainer was perhaps used four or five times a week. Assuming without deciding the conditions in this road would constitute a defect if they existed on one of the highest class roads, such as a concrete road, it does not follow they are defects on an ordinary dirt or sand-and-gravel road. The primary purpose of the latter type of road was simply to provide an all-weather road. In other words, the intention was to get the traveler out of the mud. In that regard and for that purpose it is an advancement. It, however, also has distinct disadvantages. Heavy traffic wears the surface unevenly. The binding character of the material is not of sufficiently high quality to cause its various particles to adhere. It is highly sensitive to the elements. Heavy rains or protracted dry spells affect the surface materially. Chuckholes are common. These are conditions which inhere in this cheap class of road construction. These conditions are commonly known and recognized by the traveling public. Can it then be said they are defects? We think not under the circumstances disclosed in this record.
There was evidence the larger chuckhole was filled Sunday afternoon, the day of the accident. That fact does not establish a defect.
In view of the conclusion reached it is unnecessary to treat the subject of notice. In passing, however, we may say after careful analysis of the record, we find no proof the road was in the same or worse condition five days prior to the accident. That being true, there could have been no notice of a defect. The demurrer should be sustained. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This was a workmen’s compensation case. The question presented is one of dependency. The trial court found claimant to be wholly dependent and made an award accordingly. The employer and its insurance carrier have appealed.
The facts may be stated as follows: The workman, Otto E. Wade, and his wife, Myrtle, were married' in July, 1926. To this union the claimant, Donna Jean Wade, was born December 2, 1931. The parties lived together as husband and wife at Winfield, in Cowley county, until Jufy, 1933, when Mrs. Wade brought an action against her husband for divorce, on the ground of extreme cruelty. Summons in that action was not served on him personally for the reason that he could not be found in the county, and service was obtained by publication. On August 21, 1933, the court rendered a decree in that action, granting the wife a divorce from her husband and awarding to her the custody of their child. Because of the lack of personal service of summons on Otto E. Wade no order was made for him to pay any sum for the support of the child. Mrs. Wade took the child and went to the home of her parents, Mr. and Mrs. Ireton. About two months later she found employment at a tearoom in Arkansas City, and since then has been employed at that work most of the time. Her wages have been from five to seven dollars per week and board. She has been able to provide support for herself, but not for the child, although she sent small sums or articles to her mother for the child from time to time. The amount or value of these is not shown, and they are treated as of no substantial consequence. Since August, 1933, to the time of the hearing in this proceeding the child has been cared and provided for by the grandparents. Mrs. Ireton estimates the actual expense thereof as five dollars per week. Otto E. Wade returned to Cowley county in the summer of 1934. He had just been released from a hospital, was in poor health, and unable to work. He saw Mrs. Wade in August and told her that as soon as he was able he would provide support for the child. He saw her on several occasions thereafter, urged her to remarry him, stated that he wanted to support both her and the child as soon as he could get employment, and because the child was not robust and he thought she might inherit tuberculosis, he wanted to take both of them, or at least the child, to a more suitable climate in Arizona or New Mexico. He also talked to others about his desire and intention of caring for the child as soon as he was in a position to do so. Later in the year he obtained employment and drew his first pay check shortly before Christmas. On January 31, 1935, while in the employ of respondent, operating under the workmen’s compensation act, he sustained an injury by accident arising out of and in the course of his employment, as a result of which he died later in the day. He had made no actual contribution to the support of the child since July, 1933. Soon after the death of the workman Mrs. Ireton was appointed guardian for the child and filed this claim for compensation, contending the child was the sole dependent and was wholly dependent on the father.
After hearing the evidence the compensation commissioner found that the claimant, Donna Jean Wade, had no independent means of her own, was wholly dependent for support and maintenance, that such dependency rested upon Otto E. Wade, and that there was reasonable probability that the obligation would have been fulfilled, “it being specifically found that there was a right to support with some practical value; that is, that the deceased’s legal duty would thereafter have been fulfilled by him, and it may, therefore, be said that there was dependency within the meaning of the compensation act,” and awarded compensation to the claimant in the sum of $3,042, to be paid at the rate of $18 per week. The respondent and the insurance carrier appealed to the district court. The court reviewed the evidence and confirmed the findings and award of the commissioner; hence, the appeal to this court.
Appellants present two questions: (1) Was Donna Jean Wade wholly dependent upon Otto E. Wade at the time of his injury and death so as to be a total dependent within the meaning of the workmen’s compensation act; and (2), if she was not a total dependent, was she a partial dependent, and to what extent? The pertinent portion of our statute (R. S. 1933 Supp. 44-508 [j]) reads:
“ ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means only legal widow or husband, as the case may be, and children; . . .”
Appellants contend the evidence is insufficient to support an award. They argue that to be a dependent of a deceased workman within the meaning of our statute above quoted one must be a member of the workman’s family, as that term is defined in the statute, and also must be actually dependent upon the workman’s wages for support and maintenance at the time of the accident which results in the death of the workman. They point out that this court heretofore has determined (McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071) that whether a claimant is a dependent of the workman is a question of fact, and that the portion of our statute above quoted, having been taken from the English workmen’s compensation act of 1906 (6 Edw. VII, ch. 58), should receive the same construction .as that statute has been given in England. They therefore cite and rely largely on New Monckton Collieries, Ld., v. Keeling, 1911 A. C. 648, decided by the English House of Lords. This makes it necessary for us to examine that case and two other English cases. The headnote in the Keeling case reads:
“Whether a particular person was dependent upon the earnings of a deceased workman so as to have a title to compensation under the Workmen’s Compensation Act, 1906, is a question of fact. At the death of a workman caused by accident his wife had not for more than twenty years lived with or been supported by her husband and had in no sense relied upon him for help: Held, that the wife was not entitled to compensation as a dependent upon her husband.”
The facts were that in 1898 the workman’s wife, claiming he was in the habit of thrashing her, left him, took her children with her, and went first to the home of her parents. He promised to pay her something each week, but never did so. She worked for a time as a domestic, then in a factory, later kept house for two miners, and entirely supported herself for about twenty-two years. In that time her children were all grown and married. She never had seen her husband nor heard directly from him in all that time. He had stayed for a year or two at the place where they had lived, then left there. She wrote a few letters to him and had an attorney write to him, but these were unanswered, and for many years she did not know where he was. The court held she was not a dependent within the meaning of the workmen’s compensation law. Four of the Lords wrote opinions in the case. Pertinent extracts from them are as follows:
Lord Loreburn : “It is a question of fact whether a particular person is a dependent or not. The act was passed to provide compensation for certain people who should be damnified because the workman ceased to earn wages. If thereb}' they were either deprived of actual support or deprived of a source on which they did and would reasonably rely for it, they may- be damnified to a degree' greater or less according to the circumstances. The fact that a legal duty lay upon the workman to provide maintenance is an element to be considered, no doubt, because people usually count upon getting what they are entitled to get. But when, as here, the wife had not been supported for twenty years and in no sense relied upon the workman for any help, I think there was no evidence of dependency.” (p. 648.)
Lord Atkinson: The opinion reviewed the facts, and among other things said: “It is only necessaiy to read the provisions of the statute of 1906 and its schedule to see that the sums to be awarded under it are intended to be compensation for the pecuniary loss sustained by reason of the loss or cessation of the workman’s power of earning. . . It is clear that the word ‘injury’ means damnum, and the main provisions of the statute shew that its object was such as I have mentioned. . . . Now as to this presumption of law upon which the award would appear to be based, no doubt the Court of Appeal have, in many decisions, laid it down that this presumption exists, and have tenaciously adhered to their opinion. (Reviews cases.) .• . .It by no means follows, however, that though there is no presumption of law that a wife is dependent upon her husband’s earnings merely because of his legal obligation to maintain her, this legal obligation is to be ignored in deciding on the fact of her dependency. On the contrary, the existence of the obligation, the probability that it will be discharged, either voluntarily or under compulsion, the probability that the wife will ever enforce her right if the obligation be not discharged voluntarily, are all matters proper to be considered by the arbitrator in determining the question of fact, whether, or not, the wife, at the time of her husband’s injury, looked to his earnings for her maintenance and support in whole or in part. It is one of the many elements to be taken into account.” (pp. 650, 651, 653.)
Lord Shaw: “As to the statute; what does it provide? It provides that compensation shall be given, not to the members of the family of a workman who has lost his life by accident, but to those within.that class (if any) who were dependent. . . . That term means ‘such of the members of the workman’s family as were wholly or in part dependent upon the earnings of the workman at the time of his death.’ It appears to me, my Lords, that any expression . . . which amplifies this dependency so as to make it include a dependency upon the husband’s ‘obligations’ or his ‘legal liability’ is not warranted by the statute itself. What the statute says is that the dependency is to be upon the husband’s earnings. If obligations or legal liability were the tests, then dependency, in fact, at the time of the workman’s death might in many cases be completely absent. The wife might be the possessor of a good going business. ... I think that illustrates the dangers of departing from the language of the statute, which, upon the whole, is simple and clear. Cases involving a certain amount of refinement must occur, as always happens in practical affairs. . . The Act of Parliament seems to say: Among the relatives of the deceased workman, if there be those who depended for support upon his earnings, and who by his death have lost that support upon which they depended, then let them be compensated for that loss. . . . My Lords, what is the value of presumption in relation to the ascertainment and settling of truth in matters of fact? The legal value in such a relation is that it forms a guide where doubt exists; it assists elucidation where inferences might conflict; and it settles in one direction the balance of the judgment in favour of the establishment of truth which is only dimly or partially ascertained. But where the facts are ascertained, where there is no difference as to the inference which flows from them, and where the truth is plain and proved, I am at present at a loss to understand what is the value, or cogency, or appropriateness, of presumptions.” (pp. 656, 657, 659.)
Lohd Robson: “The wife does not necessarily cease to be dependent on the husband simply because the latter refuses to recognize or perform his obligation and succeeds in throwing the burden of her maintenance for the time being on the wife’s parents or friend, or on the State. They may fulfil the husband’s duty for him, but the wife’s legal dependence is still on him and not on them, and his death deprives her of the proper stay and support on which alone she is entitled to rely." (The circumstance of this case, however, does not bring it within that rule.) (p. 662.)
The next case to be considered was decided by the Court of Appeals in 1912 (Lee v. Bessie, L. J. 1912, 81 King’s Bench Div. 114). The facts were the workman, Lee, was a mate on the S. S. Bessie, which went down in October, 1909, with all on board. In March, 1911, his widow commenced proceedings to recover compensation for herself and two minor children, aged eight and ten, at the time of the father’s death. Lee had left his wife in 1903 and gone to live with another woman, and since then his wife had supported herself and children. There was no evidence that Lee had paid anything toward the support of his children since he deserted his family in 1903. The county court judge held that the widow was not, but the two children were dependent upon Lee at the time of his death. The employer appealed from that ruling. It was held, following the Keeling case, that dependency was a question of fact and that there was no legal presumption of dependency in the case of infant children. The county court was reversed. Boulton, L. J., dissented on the ground that since the county court decision was prior to the decision of the House of Lords in the Keeling case, and at a time when the trial courts and courts of appeal had recognized legal dependency, that the proper course was to remit the case to the county court judge to be reheard. In his separate opinion, after discussing the Keeling case and some others, he said:
“In my opinion the effect of this decision [the Keeling case] is that legal obligations to support must not be taken at their theoretic value, but at their practical value. For instance, the mere fact that a husband is bound to support his wife does not establish that she is totally or at all dependent upon him within the meaning of the Act, if the circumstances are such that there is no reasonable probability that her rights would have been practically and effectually asserted. But if on the evidence there is any fair probability that the legal rights would at any future time have been actually and effectually asserted by the wife, then there is evidence of dependency, and the compensation must be regulated by an estimate of her practical loss, subject to the provisions of the act. (Quoting further from opinions in the Keeling case.) ... I have now to consider in the light of this decision the position of the children. Up to a certain age a father is compelable by law to support his infant children. It may well be that the compulsion is indirect, and can only be effected through the medium of the poor law. To my mind this is immaterial. We have to consider the practical value of the existence of this legal duty; and though this may be modified by the indirectness of the machinery by which it is enforced, it is not taken away. Indeed, in certain respects I think that the practical value of the obligation to support infant children is more likely to survive their absence from the father than is the practical value of the obligation to support a wife. The wife’s absence from her husband is often the result of her own choice or of her own conduct; and where she has done nothing to disentitle her to support from her husband it must be more or less by her own choice that she does not compel him to contribute to her support. . . . But no such thing can be said in the case of infant children, at all events so long as they are incapable of work and cannot do anything themselves to decide by whom they are to be maintained or with whom they shall live. One can easily imagine cases in which they ought to be held to be almost wholly dependent on the father — as, for instance, when they are being supported by a mother who is herself too ill to be able much longer to work. In my opinion, therefore, the decision (the Keeling case) although it does not refer to the case of infant children, logically carries with it the result that in their ease the County Court Judge is bound to consider the practical value of the father’s legal obligations to support them, and that if he'comes to the conclusion that there is a reasonable probability that this will be enforced in the future he is entitled and bound to hold them to be dependents and to award compensation accordingly.” (pp. 117, 118.)
The next case to consider is Potts v. Niddrie and Benhar Coal Co., 1913 A. C. 531, decided in the House of Lords June, 1913. The headnote reads:
“The question whether the members of the family of a deceased workman are dependent upon him, so as to be entitled to compensation under the Workmen’s Compensation Act, 1906, is primarily one of fact, and the point for the consideration of the arbitrator is whether the right of support possessed by the applicants is of any actual or practical value. Therefore, where a workman had deserted his wife and infant children, and the wife had obtained a decree for aliment in the sheriff court and had arrested his wages under the decree, and he had subsequently removed in order to avoid further proceedings, and his wife had been unable to trace him, though she had endeavored to do so, held, that there was evidence that the children were dependents within the meaning pf section 13 of the Workmen’s Compensation Act, 1906.”
“New Monckton Collieries, Ld., v. Keeling, 1911 A. C. 648, distinguished.” (82 L. J. P. 1913, p. 147.)
The facts were that claimant was married to Young in June, 1891. There were four children. At the time of Young’s death in April, 1911, one child was eight, another eleven, the other two adults. In 1907 Young deserted his family and went away. Since then the wife and family were maintained out of the earnings of the two older children and small earnings of the wife, hardly sufficient to support herself, and occasional sums which Young gave to the younger children when he met them on the road, such sums amounting to about two pounds during the two years immediately following his desertion. Young later got employment at another place, and then there was nothing received from him for the children. In June, 1909, the wife had an attorney write Young. He promised payment, but never paid. She then brought an action in the sheriff’s court, where it was found that she was entitled to the custody of the two younger children, and an order was made against the father to pay a certain sum quarterly. Under this order she attached seventeen shillings of his wages. To avoid further efforts to get his wages he left that employment, and the wife and family heard nothing more from him until April 22, 1911. After he was hurt he had a card written to his oldest son, who went to where he was, but he was dead when the son reached there. A small sum then due him for wages was paid to the claimant. The sheriff-substitute found that the two minor children were wholly dependent upon the workman, within the meaning of the compensation act, and made an award accordingly. In the alternative he found that in any event they were partially dependent upon him. The employer appealed from this order.
Three opinions were written by the Lords. The Lord Chancellor Haldane, among other things, said:
“The only question is, therefore, whether the two younger children were wholly dependent. It is only if this question is answered in the negative that any question as to partial dependence can arise. I am of opinion that the sheriff-substitute could properly hold that these children were wholly dependent. They had the right to look to their father for maintenance. . . . The children had no other means of support which could render their position one of partial dependence. It was only by assistance from their brothers, assistance which might have ceased at any moment, that they were saved from actual want. . . . (The Keeling case was distinguished.) The true question in the present case is, in my opinion, whether there was, as one of. the facts to be taken into account, an effective and valuable legal right? If there was such a right, and there was no legal difficulty in the way of enforcing it, then the mere fact that a want of opportunity to resort to it, which might have proved only temporary, had reduced the mother and children for the time to living on. charity, cannot affect the conclusion that by the father’s death they lost something on which they could depend.” (pp. 536, 537.)
Lord Shaw observed that it is impossible. —
“to disturb this verdict except upon one of two grounds, either that the learned sheriff misdirected himself in some point of law, or that there was no evidence upon which his findings could. legally rest. I am of opinion that neither ground of attack on the finding is good.” (p. 538.)
He distinguishes the Keeling case, and says:
“Lord Moulton, if I may say so, apprehended with complete correctness the true meaning of Keeling’s Case when he said, in Lee v. Owner of Ship Bessie: ‘In my opinion the effect of this decision,’ . . .” (copying that part of the opinion above quoted.) (p. 540.)
Lord Moulton in a separate opinion stressed the point that in this class of cases the question before the arbitrator is whether the legal right so possessed is of any actual or practical value, this itself being a question of fact. ■ .
We have discussed the English cases at length for two reasons: (1) Appellants argue they constitute the controlling authority on the subject, since our compensation act, particularly the provision here in question, was taken from the English compensation act of 1906. However, they cite the Keeling case only, but that case alone gives an imperfect picture of the English decisions as they relate to the question to be determined in this case. (2) In the case before us the compensation commissioner and the district court, under the facts before them, reached a decision in harmony with the legal principles announced in the English decisions.
In this country, in states having statutes similar to ours, in passing on the dependency of children, when the workman for some reason had not contributed to their support for a time, the courts have followed the principles laid down in the English decisions. (Sweet v. The Sherwood Ice Co., 40 R. I. 203, 100 Atl. 316; Ocean A. & G. Corp. v. Industrial Com., 34 Ariz. 175, 269 Pac. 77 [see 32 Ariz. 54, 255 Pac. 598, for earlier decision in the same case]; McGarry v. Ind. Com., 64 Utah 592, 232 Pac. 1090.) Even in states having a statute which differs somewhat from ours, and where the wife had procured a divorce and the custody of the child, the courts have applied the same principles in determining whether the child was a dependent of the workman at the time of his death.
(State Ind. Acc. Com. v. Downton, 135 Md. 412, 109 Atl. 63; Ninneman v. Industrial Comm., 171 Wis. 190, 176 N. W. 909; R. Sherer & Co. v. Industrial Acc. Com., 182 Cal. 488, 188 Pac. 798; Pacific G. D. Co. v. Industrial Acc. Com., 184 Cal. 462, 194 Pac. 1; Denning v. Star Publishing Co., 94 Ind. App. 300, 180 N. E. 685; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S. W. 2d 1019; McManus v. Commissioner, 113 W. Va. 566, 169 S. E. 172; Shea v. Industrial Comm., 217 Wis. 263, 258 N. W. 779; Panther Creek Mines v. Indus. Com., 296 Ill. 565, 130 N. E. 321; Industrial Comm. v. Drake, 103 Ohio St. 628, 134 N. E. 465; Miller’s Case, 244 Mass. 281, 138 N. E. 254.)
These authorities sustain the view that a dependent of a deceased workman, within the meaning of the workmen’s compensation law, must be within that class of persons named in the statute as dependents, and must be in fact dependent, in whole or in part, on the workman at the time of the accidental injury which results in death. They also hold that whether one who claims to be a dependent is within the class defined by the statute, and if so whether he was dependent on the workman at the time of his fatal injury, and if dependent whether wholly or in part dependent, and if only partially dependent the degree of dependency, are questions of fact to be determined by the commission or court provided by statute for weighing evidence, passing on credibility of witnesses, and determining the facts in compensation cases. In this state, so far as this court is concerned, the fact-finding tribunal is the district court. Our own decisions, insofar as we have treated the questions, are not out of harmony with the authorities above cited.
(Smith v. Sash & Door Co., 96 Kan. 816, 153 Pac. 533; Taylor v. Sulzberger & Sons Co., 98 Kan. 169, 157 Pac. 435; Ellis v. Coal Co., 100 Kan. 187, 163 Pac. 654; Fennimore v. Coal Co., 100 Kan. 372, 164 Pac. 265; McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071; Routh v. List & Weatherly Construction Co., 124 Kan. 222, 257 Pac. 721; Golden v. Wilson & Co., 129 Kan. 100, 281 Pac. 860; Burgin v. Western Coal & M. Co., 132 Kan. 663, 296 Pac. 373; Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276; Baxter v. Chicago, R. I. & P. Rly. Co., 139 Kan. 443, 32 P. 2d 451; 141 Kan. 527, 41 P. 2d 999; Tisdale v. Wilson & Co., 141 Kan. 885, 43 P. 2d 1064.)
The fact that the workman had not used his wages for the support of the one claiming as a dependent does not necessarily defeat the claim; if so, the workman’s child born after his fatal injury would not be a dependent, as they are universally held to be. (Routh v. List & Weatherly Construction Co., supra.) Neither is compensation as a dependent necessarily defeated by the fact that a minor child of the workman for a time prior to his fatal injury had been temporarily cared for and maintained by charity, or by relatives or friends under no legal obligation to do so. (See the English cases, and cases from other jurisdictions in this country, above cited.) The child, being itself helpless, is by nature dependent on its parents, and particularly on the father, if he is the wage earner. The law makes the support of the child the duty of the parents, particularly of the father. The natural dependency is as strong or stronger than the legal dependency, but both exist. They cannot be ignored, but must be taken into account in determining the ultimate fact, namely, was the child a dependent of the workman at the time of his fatal injury? Circumstances may exist, certainly can be imagined, in which the trier of facts would be justified in finding— perhaps forced to find — that this natural and legal dependency had no practical value, in fact was worth nothing; hence, to be of no aid in supporting a claim of dependency. On the other hand, as in this case, the facts may be such as to indicate that this natural and legal dependency would be worth as much to the child, or substantially so, as though the workman, prior to his fatal injury, had been paying from his wages for the support of the child. In effect the commissioner and district court so found. This was a question of fact, and we examine that finding here only to see whether there was substantial competent evidence to support it. Here the evidence is the mother could earn enough to support herself, but not to support the child, and there is no evidence to the contrary. It was found that the child had no independent income or means of support, and there is no controversy on that point; hence, the claimant was wholly dependent. There is an abundance of evidence that the workman planned and intended to support claimant as soon as his health and his employment made it possible for him to do so, and on that point there was no conflicting evidence. We cannot say these facts did not justify the finding that the claimant was wholly dependent on the workman, and that this dependency had a practical substantial value. There is nothing which would justify us in setting the finding aside.
The judgment of the trial court is affirmed.
Hutchison, J., dissenting.
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiffs brought this action to cancel a $300 mortgage on a tract of land which the bank had conveyed to them. The petition alleged that the bank conveyed to plaintiffs by general warranty deed a tract of land which recited a consideration of $10,000 and is a general warranty deed, except “one certain mortgage to the Kansas Reserve Investment Company of $6,000 which the parties of the second part assume and agree to pay as part of the purchase price,” and that the deed was duly acknowledged and re corded on April 2, 1927. They allege they entered into the possession of the real estate and have been ever since that time in the peaceable possession of the same, and are the legal and equitable owners subject to the mortgage of $6,000. Further, it is alleged that the plaintiffs- relied upon the representations and covenants in the deed to the effect that the land was free and clear of liens except the $6,000 mortgage and that they paid a consideration of $10,000 therefor. They then allege that on May 19, 1927, they learned that a former owner, Collins, and wife had delivered a mortgage for $300 which was duly recorded on March 16, 1925; that it was made to secure three promissory notes for the sum of $100 each, due February 1 of each year, beginning with 1926. In the mortgage it was recited that:
“It is distinctly understood that the notes secured by this mortgage are given for and in consideration of the services of the Kansas Reserve Investment Company in securing a loan for said parties of the first part, which loan is secured by the mortgage hereinbefore referred to and accepted, and the said notes do not represent any portion of the interest on said loan, and are to be paid in full regardless of whether said loan is paid wholly or partly before its maturity.”
It recited that it was subject to the $6,000 mortgage of the same date, and it contained an accelerating clause as to any or all of the remaining notes, if default be made on one of them. It was alleged that this mortgage was not released at the time the appellant delivered its deed and that the same casts a cloud upon the title of plaintiff and hinders the right of alienation. The mortgage appears to have been purchased by the bank, and on May 19, 1927, it made a written demand on the plaintiffs to pay the note accruing on the first of June of that year. The plaintiffs then demanded that the bank cancel the $300 mortgage in accordance with the provisions of the general warranty deed, but this was not done, and therefore the action was brought for the cancellation of it and plaintiffs also asked for damages for the refusal to cancel.
The bank filed an answer and cross petition consisting of a general denial and allegations relating to transactions in the exchange of land in Linn county owned by Higgins for land in Allen county owned by the bank. It was alleged that the Collins mortgage mentioned, executed in 1925 to secure the payment of $6,000 borrowed from an investment company, was payable in five years with interest at six and one-half per cent payable semiannually, except that one per cent of the interest should be included in three notes of $100 each, payable on the first day of February in 1926, 1927 and 1928, and the mortgage securing them was spoken of as a commission mortgage. It was then alleged that on January 27, 1927, Higgins and the bank entered into a contract for the exchange of lands in which Higgins agreed and assumed to pay the mortgage for $6,000 upon the Allen county land transferred to him. The deeds were to be executed and placed in escrow, each party to furnish abstracts of title. That when the contract was made it was orally agreed as a part of it that the Allen county land conveyed to Higgins upon which the $6,000 mortgage existed, bearing interest at five and one-half per cent, was also to be subject to the payment of the two $100 notes coming due February, 1926 and 1927, aggregating six and one-half per cent for the time of the loan, the bank to pay the first of the three notes which would become due before possession of the land could be given. It was alleged that through oversight and inadvertence the contract failed to specify the rate of interest, and also failed to state that Higgins took title subject to the unpaid commission notes. It was alleged that Higgins and his wife knew at the time of the execution of the contract that Higgins was to pay the two remaining notes, and that the real estate which Higgins was purchasing was subject to the lien of the second mortgage securing these notes. It was averred that Higgins and his wife well knew that the deed was in fact executed subject to the principal mortgage of $6,000 and the second mortgage to the amount of two commission notes, and that through oversight and mistake in writing the papers, including the deed, the commission mortgage was not mentioned as an encumbrance upon the land, but that throughout the transaction Higgins and the bank both considered the second mortgage and commission notes to be a part of the same transaction, and that the interest on all should be at a rate of six and one-half per cent for the five-year period. It is further alleged that with a full understanding and agreement on the part of each, that the principal note in effect carried a six and one-half per cent rate of interest, except that the payment of one note by the bank made the interest on the principal slightly less than six and one-half per cent per annum, and that Higgins in fact assumed the two remaining notes as a part of the interest due upon the principal note, and agreed to discharge the same.
It was then averred that on March 21, 1926, the bank purchased the two remaining notes, and is the owner and holder of them as well as the mortgage securing them. In addition it is stated that Higgins had in his possession the abstract which showed both the $6,000 mortgage and the $300 mortgage, and that he accepted the abstract and title without objection, knowing that the title was subject to the commission mortgage as well as the $6,000 mortgage. That the transactions culminating in the contract were not completed until about April 21, 1927, and that Higgins carried on the negotiations with full knowledge that he was to pay the second and third commission notes, and that when thege were paid that thereafter the interest on the loan would be but five and one-half per cent. The bank prayed judgment for a reformation of the contract so that the contract and instruments would express the real agreement made between the parties. Added to the answer was a cross petition asking for the judgment upon the two notes and the foreclosure of the commission mortgage. The plaintiffs demurred to the answer and cross petition on the ground that they do not state sufficient facts to constitute either a defense or a cause of action against plaintiffs. The court sustained the demurrer and also refused permission of the bank to amend its answer and cross petition. The bank appeals.
The principal question to be determined is whether the defendant was entitled to reformation of the agreement and instruments by which the exchange of properties was made. On the face of the contract and instruments the $300 mortgage was not a part of the interest charged, and was not assumed to be paid by the plaintiffs. It is alleged by the defendant, however, that through inadvertence and mistake certain provisions agreed upon were omitted in the instruments, and defendant asks that they be reformed so as to recite the real intention and agreement of the parties. The allegations of the answer and cross petition state grounds for reformation. It is urged that the terms of the instruments are plain and unambiguous and defendant insists that this action is an attempt to vary the terms of written instruments by parol evidence contrary to the rule that it is not competent to contradict or vary the terms of written agreements by parol proof, but an equitable action for reformation is one instance in which the rule does not obtain. In that action it may be shown by such evidence that the agreements or writings through mistake or fraud do not express the real contract which was made by the parties and that it is proper for a court of equity to reform them so as to speak the truth whether the agreements express more or less than the parties intended. It has been said:-
“In equitable actions to reform written instruments to accord with the agreement of the parties, such testimony is competent (23 R. C. L. 366), otherwise frequently meritorious reformations could not be made.” (American Nat’l Bank v. Marshall, 122 Kan. 793, 796, 253 Pac. 214.)
In Casten v. Kreipe, 125 Kan. 182, 264 Pac. 55, it was decided that — •
“The nature of the action fqr reformation is such that it is outside the field of operation of the parol evidence rule.” (p. 184.)
Of course there can be no reformation for mistake unless it was mutual, or a mistake on one side and fraud on the other. If it is clearly shown that the written agreement or instrument fails to express the contract actually entered into by the parties, it may be reformed, whether there be omissions in it or stipulations contrary to the intention, agreement or understanding of the parties, so as to make it what the parties intended it should be. The defendant having alleged sufficient grounds for reformation, the demurrer to the defendant’s answer and cross petition was erroneously sustained.
The court refused an application to file an amended answer, of which complaint is made. It may be assumed now that the principal question involved has been decided, permission will be granted to amend the pleading. For the error in sustaining the demurrer, the judgment is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the owner of real property against the lessee of an oil and gas lease thereon for damages for the alleged failure of defendants to comply with the terms of the lease to furnish plaintiff gas for domestic purposes. Several items of damages were claimed. The answer put in issue the allegations of the petition and by cross petition set up several items which defendants sought to recover from plaintiff. A jury trial resulted in a judgment for plaintiff for $3.60, and he has appealed.
The principal point made by plaintiff on this appeal is that the couid misconstrued the provisions of the lease in its instructions to the jury. The lease was on a printed form which contained this provision: '
“Lessee agrees to pay the lessor at the rate of one hundred and no-100 dollars each year, payable quarterly in advance, for the gas from each well where gas only is found, while the same is being used off the premises, but until the gas is marketed lessee shall pay to lessor at the rate of twenty-five dollars per year, payable quarterly in advance, for each gas well drilled on the said premises and capable of producing gas in paying quantities, and the said lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land during the same time.”
At the time of the execution of the lease, and as a condition of its execution exacted by plaintiff, there was written on the margin and as a part of the lease the following:
“The lessee agrees to furnish a good supply of gas for domestic purposes to lessor within 100 feet of the house.”
Appellant argues that the clause last quoted, having been written on the lease, supersedes the printed clause relating to furnishing gas to the lessor and requires the lessee to furnish him gas for domestic purposes whether it is produced from wells on the leased premises or not. Since the printed clause of the lease was not stricken out, the trial court held that the two clauses should be read together, •and when so read required the lessee to furnish to the lessor gas for domestic purposes and to pipe it to within 100 feet of his house in the event only that gas was produced from wells on the leased premises. This holding is correct and practically disposes of the case. The facts are that a number of wells were drilled on the leased premises. About half of them were dry holes. Most of the others produced oil in small quantities. Two or three of them produced gas for a time. As long as gas was produced from the wells on the leased premises the lessee furnished gas to the lessor for domestic purposes and piped the same to within 100 feet of the house. For a time the lessee wanted to use all the gas in drilling on an adjoining lease, and while so using it furnished the lessor gas which was not produced on his premises. But the wells on this lease ceased to produce gas even in sufficient quantities to supply the lessor with gas for domestic purposes. When that occurred the lessee ceased to furnish gas for domestic purposes from an outside lease. Under the trial court’s interpretation of the lease, which we regard as sound, the lessee, under those circumstances, was not required to do so.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiffs, payees of a promissory note for $5,000, dated March 24, 1921, sued the makers thereof, W. L. Tallman and four others, for the balance due on the note, and also sued Charles W. Johnson, as receiver of the Logan County State Bank, upon the bank’s endorsement of a note for $4,800, dated December 31, 1920, executed by a Mr. Simpson and .wife, payable to the bank and secured by a mortgage on certain real property, which note had been endorsed and the mortgage assigned to plaintiffs as collateral security for the $5,000 note; and also sought to foreclose the mortgage executed by Simpson and wife, who, in the meantime, had conveyed the mortgaged property to one Pink, and he to V. A. Tallman, wife of W. L. Tallman, who was made a party defendant. Plaintiffs alleged payments had been made on each of the notes on dates named within the period of the statute of limitations. Plaintiffs recovered judgment against W. L. Tallman on the $5,000 note, and no appeal was taken from that. Plaintiffs also recovered judgment against Charles W. Johnson, as receiver, on the bank’s endorsement of the $4,800 note for the balance due thereon, and against V. A. Tallman for the foreclosure of the mortgage. Each of these parties has appealed.
The receiver filed an answer that the endorsement of the bank on the note was made without authority and without consideration, pleaded the statute of limitations, and pleaded estoppel in that one of the plaintiffs, D. H. Johnston, was a director and president of the bank for a time before the receiver was appointed and had signed reports of the bank’s condition to the state bank commissioner without disclosing the bank’s liability as endorser for the $4,800 note. Plaintiffs answered that plea of estoppel by alleging that the statements so signed were made up by W. L. Tallman, the cashier and active managing officer of the bank, and that its president assumed and believed them to be correct.
The evidence disclosed that when the $5,000 note was executed its makers were directors of the bank; that W. L. Tallman was its cashier and active managing officer; that the bank held the Simpson note and mortgage for $4,800, which it desired to get out of the bank, and offered to sell it to plaintiffs; that they refused to buy the note but offered to loan the bank $5,000 on the note of its directors with the $4,800 Simpson note and mortgage as collateral security; that this was agreed upon; that the directors executed the $5,000 note; that the plaintiffs paid the bank $5,000 therefor, and that the bank endorsed the $4,800 Simpson note and assigned the mortgage securing it to plaintiffs, and that payments of interest had been made upon both notes to within a time so the statute of limitations had pot run.
Judgment was rendered against Charles W. Johnson, as receiver, for the balance due on the $4,800 note because of the bank’s endorsement thereon, and no serious obj ection is now made about that. It was admitted that when the bank failed in March, 1933, and for some time prior thereto, the plaintiff, D. H. Johnston, was a director and the president of the bank, and had signed several statements of the bank’s condition for reports to the bank commissioner which did not disclose the bank’s liability on this endorsement. The question was raised as to whether or not the judgment for plaintiffs against the receiver should be subordinated in payment to the claims of other creditors. It was conceded by plaintiffs that insofar as D. H. Johnston’s interest in the judgment was concerned that should be done. (See Mulligan v. Emmett State Bank, 124 Kan. 699, 704, 261 Pac. 567; Cheney v. Johnson, 135 Kan. 521, 530, 11 P. 2d 709.) But plaintiffs argue that should not be true as to the interest of the plaintiff James Johnston in the judgment, since he was only a stockholder in the bank, was not one of its directors or other officers, and had never signed any of the reports above mentioned. The trial court concluded the judgment, for the purpose of its payment, should be divided into two equal parts, and that one of them, being the part of the plaintiff D. H. Johnston, should be subordinated in payment by the receiver to the claims of all other creditors of the bank, while the other part, representing the interest of James Johnston, should be paid as the claims of other creditors.
The receiver has appealed, and contends the entire amount of the judgment should have been subordinated in payment to the claims of other creditors of the bank. We agree with this view. The liability of the bank on its endorsement of the $4,800 was an entirety. There is nothing in the endorsement to indicate that it was liable thereon in part to one of the plaintiffs and in part to the other. It could have discharged its liability on the endorsement by paying the full amount it was liable for by reason thereof to either one of the plaintiffs. They had no right to bring separate, individual actions against the bank on its endorsement for their claimed respective moieties in the liability of the bank. If such an action could have been framed it was not done by the pleadings in this case, hence there was no issue in the case respecting the separate moieties of plaintiffs in the bank’s liability; nor was there any evidence on this point. Plaintiffs sued here as joint holders of the $4,800 note by reason of the bank’s endorsement. The estoppel pleaded by the receiver permeates the entire claim. The result is the judgment of the trial court must be modified so that the entire judgment in favor of plaintiffs will be subordinated in payment to the claims of other creditors against the bank.
The appeal of V. A. Tallman pertains to the lien of the mortgage given by the Simpsons as security for the $4,800 note upon the land, the title to which she had acquired. She pleaded the statute of limitations and alleged that since she had acquired title to the property on September 9, 1929, she had not, nor had anyone else, with her consent or knowledge, made any payment upon the debt secured by the mortgage. The evidence disclosed she had acquired title by quitclaim deed. She testified the consideration for the deed was her assumption of the mortgage upon the land. She further testified she had received and retained all the income from the property since she acquired title to it, and that she had paid nothing on the debt secured by the mortgage. W. L. Tallman testified that since his wife had acquired title to the land he had collected the rents for her, and with her knowledge and consent had made the payments shown to be endorsed upon the $4,800 note. On her appeal attention is called to plaintiffs’ petition in which it was alleged that the mortgage contained a clause to the effect that if the interest were not paid when due the entire debt became due at once. The note bore the endorsement that interest was paid to the date of December 21, 1929, and a later endorsement that the interest was paid to the date of March 24, 1930, and there was evidence those payments had been made.. The trial court found she had assumed the payment of the mortgage at the time she acquired title, and that the payment had been made, with her knowledge and consent, by her husband, W. L. Tallman, with rents or proceeds from the land. There is evidence to sustain that view. The court rendered no personal judgment against her, but simply decreed the foreclosure of the mortgage on the land. She is in no position to complain.
In this court she raises the point that Fink had not assumed the payment of his mortgage when he purchased the land from Simp son, and hence was not liable for the mortgage debt, and that her assumption of the mortgage created no liability against her. (Bank v. Bales, 101 Kan. 100, 165 Pac. 834.) To bring out the point more forcefully appellant in her reply brief has set out a copy of the deed from Simpson and wife to Fink, which does not show any assumption clause. A sufficient answer to this point is that it was not raised or determined in the court below. More than that, the fact that the deed from Simpson to Fink did not contain an assumption clause is not conclusive proof that Fink did not assume the mortgage. He might have done so in a written contract for the purchase of the land, or he might have done so by an Oral agreement.
The result is the judgment rendered in favor of plaintiffs against Charles W. Johnson, as receiver, must be modified so as to make the entire judgment subordinate to the claims of other creditors against the bank, and the judgment against V. A. Tallman foreclosing the Simpson mortgage must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Hopkins, J.:
This controversy presents the question whether a petition which in effect alleges the..probate of a.will, proceedings in the probate court, including the appointment, qualification and action of an administrator, but which prays for an order setting aside the will, states sufficient facts to give the district court original jurisdiction (no appeal having been taken from any ruling or order of the probate court). A motion and demurrer to the petition were overruled, and the defendants appeal.
The plaintiff alleged substantially that her husband, Thomas H. Correll, since deceased, had executed a will September 21,1922; that thereafter he and she were married; that they were at no -time divorced-, but were husband and wife at the time of his death; that the defendant Vance is the duly appointed, qualified and acting administrator with the will annexed, of the estate of Thomas H. Correll; that there was personal property belonging to plaintiff and her husband at the time of his death valued at approximately $12,000 (enumerating such personal property), also real property in the city of Mankato, and that plaintiff did not consent to take less than a widow’s share under the laws of descents and distributions. She prayed that the will be vacated, set aside and held for naught; that she be allowed the exemptions due a widow, and that the property remaining be used to pay the expenses and indebtedness of the decedent’s estate, and the balance be distributed one-half to her, and on'e-fourth each to Alice G. Turner and Harry J. Correll, who by a former marriage were the daughter and son of the deceased. The defendants filed first, a motion to make the petition more definite and certain, and second, a general démurrer thereto as above stated.
Section 20-1101 of the Revised Statutes defines the jurisdiction of probate courts and provides that they shall have original jurisdiction as courts of record to do all things pertaining to the probate of wills, to administration of estates, and to the distribution thereof. The probate code, and particularly sections 22-101, 22-108, 22-117, 22-118 and 22-222, provide in detail for distribution of estates to widows and heirs. Section 22-1101 provides for appeals from the decisions of probate courts, among other things on all settlements of executors and administrators; on all orders directing the payment of legacies, making distribution or making allowances to the widow, and on all orders for the sale of personal estate because distribution cannot be made in kind.
In Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86, it was said:
“Specific authority is conferred upon the probate courts to settle accounts of administrators, and to order the distribution of the estates of deceased persons, and- having jurisdiction to make distribution of an estate, it follows as a necessary incident to the jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate.” (Syl.)
In the opinion it was said:
“In this state probate courts are given complete jurisdiction of all matters connected with the settlement of the estates of deceased persons, and specific authority is conferred upon thein to settle the accounts of administrators and to order the distribution of estates. (G. S. 1889, 2116, 2952.) Provision is also made for taking an appeal from an order of the court making distribution of an estate. That court having jurisdiction to make distribution of the estate, it follows as a necessary incident to the jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate. The jurisdiction being ample, it must be held that Joseph Dicklow has had his day in court, and that the adjudication there made is binding upon him as against a collateral attack.....
“Although the estate was unsettled, the plaintiff undertook to wrest the matter from the jurisdiction of the probate court at a time when that court had ample jurisdiction over the administratrix and the estate, and to have determined the questions which he undertook to raise by his proceeding in the district court. . . .
“It is true that the district court has jurisdiction of some matters relating to the estates of deceased persons, but it is an equitable jurisdiction, not to be exercised when the plaintiff has a plain and adequate remedy by an ordinary proceeding in a tribunal especially provided by statute, and it is a well-established rule that, in cases where two courts have concurrent jurisdiction, the court which first takes cognizance of the cause retains it to the exclusion of the other.” (pp. 124, 125, 126.)
In Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435, it was said:
“In matters pertaining to the distribution of a decedent’s estate the probate court has exclusive jurisdiction subject to appeal to the district court.” (Syl.)
In Kothman v. Markson, 34 Kan. 542, 9 Pac. 218, it was said:
“While the district court has jurisdiction over certain matters relating to the estates of deceased persons, it is an equitable jurisdiction, and in its exercise thq court will be governed by the rules of equity, and the plaintiff, therefore, cannot successfully invoke the jurisdiction of the district court to enforce the payment of a claim against the estate of an intestate, where the statute has provided that the relief sought may be obtained in an ordinary legal proceeding in the probate court, and no special circumstances requiring the aid of equity are disclosed.” (Syl. ¶ 3. See, also, Johnson v. Cain, 15 Kan. 532; Swayze v. Wade, 25 Kan. 551; Higgins v. Reed, 48 Kan. 272, 29 Pac. 389; Allen v. Bartlett, 52 Kan. 387, 34 Pac. 1042; Hudson v. Barrett, 62 Kan. 137, 61 Pac. 737; Holden v. Spier, 65 Kan. 412, 70 Pac. 348; Osborn’s Estate, 99 Kan. 227, 161 Pac. 601; Parsons v. McCabe, post, p. 847.)
We are of the opinion that the cases quoted and cited sufficiently direct the plaintiff to relief and that further elucidation is unnecessary.
The judgment is reversed and the cause remanded with instructions to sustain the demurrer.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment for damages rendered against O. O. Beatie, a dentist, for the alleged unskillful, improper and negligent treatment of Hazel Nance, in the extraction of a tooth spoken of as an impacted tooth. The principal question involved in the appeal is the alleged insufficiency of the evidence to sustain the verdict and judgment. According to the plaintiff’s testimony she visited defendant’s office, where examinations were made and X-ray pictures taken of her teeth. The defendant advised her that the tooth should be extracted on the theory-that certain severe pains in the head, neck and arm were the result of an infected tooth. An appointment was made for the operation and at that time the doctor proceeded with the operation, drilled and pried for about an hour in an unsuccessful effort to extract the impacted tooth. She testified that defendant then advised that a healthy tooth in front of it should first be extracted, and that if that was done, he could take the tooth out in fifteen minutes. That tooth was extracted, after which the doctor made another effort and worked for about an hour trying to pull the tooth, but failed to take it out. She testified that the operation caused the loss of feeling in her jaw, that she could not open her mouth more than a quarter of an inch, and that she suffered severe pains in her .ear, which extended to her arm and down into her leg, and the further result was that she could not preserve her balance. On account of her condition at the end of the operation, defendant advised her to go to a hospital, where she remained for several days. He treated her several times during that time and several weeks afterwards, when he advised her that the tooth would be all right and that she needed no more attention. Later she borrowed the films taken by the defendant and took them to Doctor Exon, another dentist, who found that there was pus in the jaw, and that the tooth should be drawn. He operated and did extract the tooth with apparently little difficulty, but found infection in the jaw. Shortly after the extraction of the tooth the pains ended and the plaintiff regained weight lost during her suffering.
In the trial, the testimony of the plaintiff, her husband and Doctor Exon, who finally drew the tooth, was produced, and thereupon the defendant filed a demurrer to the plaintiff’s evidence, upon the ground that no liability was shown, but the demurrer was overruled, after which the defendant produced testimony to the effect that the practice pursued by the defendant was the customary one in that vicinity, and that the extraction of the healthy tooth was not unusual and could not be regarded as unskillful. Further there was testimony that it was not unusual for a doctor to consume as much as an hour or an hour and a quarter in removing an impacted wisdom tooth. A verdict awarding plaintiff damages in the sum of $1,000 was returned by the jury and judgment thereon was rendered.
All the objections of the defendant center around the contention that liability „of the defendant was not established by competent evidence. No objections are made to the instructions given, and there is an agreement between parties that in such a case there is an implied agreement that the dentist will use only ordinary care and skill, that degree of care and skill ordinarily possessed and exercised by members of his profession in good standing, practicing in the community, and if he follows the established practice and acts according to his best judgment, there can be no liability although injurious consequences follow. It is conceded that before the plaintiff can recover she is required to show that the defendant did not exercise that degree of care and skill, and that his want of skill and care caused the injury of which she complains. The question whether the operation was unskillfully performed, being scientific in nature, must be shown by expert evidence, that of persons having special knowledge and skill in that line. Nonexperts can testify as to external appearances and manifest conditions open to the observance of anyone, but from the nature of the operation the lack of skill and care must be shown by expert evidence. These principles were fully and fairly stated by the court to the jury, but it is argued that the expert evidence produced by plaintiff was insufficient to show a lack of skill and care on the part of the defendant. After producing the physical facts and conditions about which anyone could testify, plaintiff called Doctor Exon, the dentist who extracted the tooth, and he testified in effect that the methods employed by the defendant were those commonly used by the average general practitioner, but later he was asked the following hypothetical question:
“Q. You heard her testimony yesterday, as to what took place in Doctor Beatie’s office, and the treatment he gave her, and the number of times she was back, and all that; and, from h'er testimony, assuming it was true, would you say that she got the customary and ordinary professional treatment that the dentists of this town and city give a patient? A. No; if it was true, I wouldn’t think that she did; but I don’t believe it is true.”
On an objection the court struck out the last clause of the answer. Doctor Blachly, testifying for the defendant, stated that in his opinion there was no negligence of the defendant as to the methods employed by him in the case. He was asked the question:
“Q. If you disregard Doctor Beatie’s testimony entirely, and take as truthful only the testimony given here by the plaintiff, would your opinion be the same? A. Yes, sir; it would.
“Q. I am not asking you that, doctor; I am asking you, if her testimony is true, disregarding any other testimony in this case — if her testimony is true, is that the usual, customary and standard treatment given a patient in a dental office in an operation of this kind? A. I never knew of a dentist to use a shoe hook to take out a tooth, and she used that statement, ‘used something that looked like a shoe hook’; and, from her testimony, I have no idea of what technique he used, or what instruments he used, or anything.”
Other testimony of the same witness was favorable to the defendant. While the expert testimony supporting the verdict is meager and that much evidence of a contrary nature was given in behalf of the defendant, we cannot say that there is not sufficient evidence to uphold the finding of the jury. Manifestly the jury believed the testimony of the plaintiff upon which the hypothetical questions were founded and believed Doctor Exon when he said that plaintiff did not use the ordinary skill and care exercised by dentists in that community. So far as there were contradictions in his testimony, the jury were at liberty to discard part of it and determine which version of his testimony was entitled to credit. In a* series of cases extending from Acker v. Norman, 72 Kan. 586, 84 Pac. 531, to Gartner v. Williams Oil & Gas Co., 125 Kan. 199, 263 Pac. 778, it has been consistently held that the credibility of witnesses and the weight to be given to their testimony, including that which is conflicting, were questions for the determination of the trier of the facts, and that this court cannot set aside a finding based on conflicting evidence which has been approved by the court. It has been said that:
“The evidence of a single witness may be sufficient to overcome that of a dozen others, and warrant the finding or verdict of a jury. If this evidence is substantial and fairly covers and supports the issue and the finding and verdict based thereon, is approved by the trial court, it is conclusive in this court.” (Gartner v. Williams Oil & Gas Co., 125 Kan. 199, 201.)
The trial court having in view the character of evidence necessary to establish liability and having properly instructed the jury with respect to such proof, approved the finding and verdict of the jury. It may be noted that the defendant, after treating the plaintiff’s jaw for several weeks after the abortive operation, dismissed her, advising in effect that she did not need further professional attention and that her tooth would be all right, and yet when Doctor Exon extracted the tooth a few days later he found the jaw infected and that there was a free flow of pus from the wound in the jaw.
It is argued that the dismissal of the patient while her j aw was in that condition could not be regarded as the exercise of ordinary care and skill on the part of the defendant. On the whole case, however, our view is that the testimony, meager as it is, is sufficient to uphold the verdict of the jury and the approval and judgment of the court.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
A motion for rehearing has been filed in which it is contended that error was committed in permitting the state’s attorney, in his argument to the jury, to read certain parts of the transcript of evidence on the preliminary examination when the transcript was not in evidence. There appears to be some confusion as to whether the transcript actually was introduced. The court and counsel for the state apparently understood it was in evidence and a careful examination of the record convinces us that the transcript was actually received, but was not read to the jury. A portion of the record reads:
“Mr. Davis: We offer in evidence the cross-examination of Violet McVey taken in the case of the State of Kansas v. Floyd F. Snyder, taken at Greens-burg, Kansas, January 20, 1926, before A. N. Reed, justice of the peace in Kiowa county, and we desire to read such pertinent parts of this cross-examination as Violet McVey denied giving when she was on the witness stand in this trial.
“Mr. Underwood: We object to part of this transcript being offered. If they want to offer the entire transcript we have no objection.
“Mr. Davis: We will offer the entire transcript.
“The Court: It will be admitted.”
While a considerable colloquy occurred between court and counsel for both sides concerning what might be read from the transcript to the jury, we are unable to say the transcript was not in evidence.
It is again strongly argued that the court erred in the rejection of other competent testimony. It is a well-recognized rule that in order for error to be predicated on the rejection of evidence that it be offered on the motion for a new trial. It appears that this rule was not-complied with in the instant case. What actually happened was that counsel for the defendant orally offered to show to what absent witnesses would testify. For instance, the record shows:
(Mr. Davis, reading from transcript:)
“Q. On the subject of his doing carpenter work for Campbell & Son, of Mullinville, down on the Rio Grande country of Texas, did you have any talk with defendant that night, Sunday night, August 23d, when he was at your house as you have testified? A. I did.
“Q. Give that conversation.”
(Mr. Underwood) : “To which we object as incompetent, irrelevant and immaterial; self-serving declaration; not tending to prove any issue in this case.
“The Court : Sustained.”
(Mr. Davis) : “We wish to show that if Mrs. Snyder had been permitted to answer that question she would have given the conversation with the defendant; that ghe would have told the jury that the defendant told her that he had made an arrangement with Mr. Campbell to go down to Welasco, Texas, and work for him down there and that he was going right away. We also wish to show that Mrs. Snyder would have testified that the conversation she had with the defendant was that he told her he had made arrangements to go down to southern Texas just as soon or before the schoolhouse at Mullinville was finished and that Campbells were going to leave just as soon as the schoolhouse was finished and that Flo3'd Snyder was going, ahead of Campbell & Son and meet them down there.”
(Mr. Underwood) : “I will admit that if the witness was called here as a witness and questioned she would have given that answer.”
This was not a compliance with the rule. In State v. Ball, 110 Kan. 428, 204 Pac. 701, it ivas said in the opinion:
“Be that as it may, the rejection of this tender of evidence cannot be the basis of error. What the witness would have testified to was never disclosed. It was not produced in evidential form as an affidavit, deposition, nor upon oral examination when the motion for a new trial was presented. The want of this is not supplied by an oral address of counsel to the trial judge, saying: ‘Your honor, ive want to shoiv this, that, or the other thing by this witness.’ The statement of counsel as to what he can prove if permitted to do so will not suffice for the evidence itself. All the rejected proffers of evidence complained of in this appeal are subject to this infirmity. In Elliott v. Oil Co., 106 Kan. 248, 251, 187 Pac. 692, it was said: ‘The evidence was excluded — erroneously, no doubt, but yet excluded. What was the proper course to pursue? It was to produce such proof orally or by affidavits in support of his motion for a new trial.’ ” (p. 432.)
Complaint is again urged of certain language used by the court in one of its instructions. The language singled out by defendant, if standing alone, would undoubtedly be objectionable, but considered as part of the particular instruction, which was only a part of the general charge to the jury, we cannot say that it was unfair or prejudiced the defendant’s rights.
The motion for a rehearing is denied.
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The opinion of the court was delivered by
Dawson, J.:
This action originated as a suit to' quiet title to plaintiff’s leasehold in 80 acres of Marion county land. It developed into a sharp controversy over a cross petitioner’s right to a materialman’s lien on the leasehold for certain articles furnished to a drilling company which had undertaken to drill a prospect hole for oil and gas on the premises. When it first set about this undertaking there was no written contract between the drilling company and the lessee. Later, when failure seemed to be foreshadowed, the status of the parties and their rights and liabilities were defined in a written contract dated August 25, 1927. As then anticipated, the drilling company was unable to go on with its task, and on October 1, 1927, it made a contract with one Earl Frates, who had acquired an interest in this leasehold, whereby he took over the rights and duties of the drilling company under its contract of August 25 and agreed to prosecute the drilling to a completion of the well if that should prove feasible. An excerpt from that contract of October 1 is emphasized on our attention by appellants:
“ . . . party of the second part [Earl Frates] shall pay ... all labor and material liens or accounts contracted by party of the first part in drilling of such well, which liens and accounts party of the second part hereby agrees to immediately pay . .
The appellant, the Continental Supply Company, which had supplied sundry materials to the drilling company while it was engaged in drilling the well, filed a lien statement with the register of deeds, with attached and verified account stated, and served notice thereof to all concerned.
The trial court made findings of fact concerning the indebtedness due from the drilling company to appellant, found that the lien statement was timely filed and in due form, and found that the appellant had a valid lien on the chattels of the drilling company, but held that under the terms of his contract Frates was only bound to pay for such items of material, machinery and oil-well supplies itemized in the lien statement and verified as were subject to become a lien upon said oil and gas lease; and—
“ . That certain articles making up said sum of $988.34, were for tools, machinery and equipment used in sinking of a well for oil and gas upon said premises, which form no part of a well or completed work and are not labor or material within the meaning of the law providing for a lien upon oil and gas leaseholds.”
Accordingly, in the judgment which followed, the supply company’s claim to a lien on the leasehold was denied. This ruling is assigned as error, appellant’s argument in effect being that the interpretation this court has heretofore given to R. S. 55-207 was dictum and unsound. The pertinent language of the statute (R. S. 55-207. as amended by Laws 1925, ch. 197) reads:
“Any person, corporation' or co-partnership who shall under contract . . . with the owner of any leasehold for oil or gas purposes . . . furnish material, machinery or oil-well supplies used in the digging, drilling, torpedoing, completing, operating or repairing of any oil or gas well . . . shall have a lien upon the whole of such leasehold . . . Such lien shall be preferred to all other liens, or incumbrances which may attach to or upon such leasehold for gas and oil purposes. . . .”
In Marion Machine Co. v. Allen, 119 Kan. 770, 241 Pac. 450, this statute was construed thus:
“The tools and equipment used in the sinking of an oil and gas well which form no part of the well or completed work is neither labor nor material within the meaning of the lien statute.” (Syl. ¶ 2.)
The general theory underlying lien statutes is that labor, material and supplies which are devoted to the construction of an improvement to realty, whether building,' oil-and-gas well, or whatnot, add an actual value to the property, and in consequence the property may justly be bound as security to pay for contributions enhancing its value. But it would be an illogical extension of that theory to give a lien for materials and supplies which contribute nothing to the value of the property; and in the present case the court’s finding was that the items for which appellant claimed a lien did not go into the permanent structure of the well. They wére merely chattels constituting the miscellaneous equipment of a drilling company— used on this well to-day and on another to-morrow. We note typical items of the verified account, for the purchase price of which a lien on plaintiffs’ leasehold was demanded:
Bull rope............................................ $40.01
Belt................................................ 21.82
Wrench............................................. .80
Hammer............................................ 1.50
Water pail...........................................62
Sand line reel........................................ 267.75
Drilling line (2,464 feet)......'......'.................. 635.90
Now, it is perfectly obvious that if this well were drilled to completion these articles would not become fixtures of the leasehold. They would constitute no part of the improvement of the property. They will be carried away and used on a second and third drilling job, and so on until they are worn out. Should appellee’s leasehold be subject to a lien for the payment of this rope, belt, wrench, hammer, pail, sand line and drilling line? If so, will plaintiff’s leasehold alone be subject to a lien therefor, or will all the leaseholds in the community on which, these chattels are successively used until they are worn out be likewise subjected to appellant’s lien claim for their payment? Why should a vendor’s lien be granted on an interest in realty for the price of a wrench, a hammer, or a water pail purchased for the use of the driller of an oil-and-gas well when no such lien is granted for the purchase price of a carpenter’s hammer, a plumber’s wrench or a plasterer’s water pail similarly used in the construction of any other improvement on realty? The sufficient answer to these questions is found in the rule announced in Marion Machine Co. v. Allen, supra, and we are bound to hold that in the present case the trial court did not err in following it. Appellants argue that such an interpretation nullifies the statute. On the contrary, we think it gives it a rational interpretation and one in harmony with our other lien statutes, so far as the nature of an oil- and-gas leasehold will permit.
It is contended, however, that by the literal terms of his contract Frates bound himself to pay all accounts contracted by the drilling company, whether they were lienable or not. The excerpt from the contract quoted above, standing alone, might probably justify such interpretation, but the entire contract, which is quite too long for reproduction here, and which includes a pertinent reference to the terms of the earlier contract between Given and the drilling company, is fairly susceptible of an interpretation that Earl Frates did not absolutely bind himself to drill the well, but only to make a whole-hearted attempt to drill it. That was all the drilling com pany itself was bound to do, under the terms of its contract of August 25, 1927. It was there stipulated:
“[The drilling company] Party of the first part does hereby [agree with E. F. Given] within a reasonable time to again commence work upon such test well and to clean out and properly case the hole, if such hole can be cleaned out and casing properly set. And in case it is found to be impossible to clean out and case such hole, then party of the first part shall at once remove' all of his tools and drilling appliances and the liability of both parties shall cease on account of any prior contract or agreement and no liability shall attach to either party on account thereof, party of the first part agreeing to at once remove any casing it may then have in such hole, and second party to pay all labor lien against said leasehold.”
The second contract, of October 1, 1927, provides for the relinquishment of the drilling company’s rights, and continues — •
“And in consideration of such releases, party of the second part [Earl Frates] does hereby agree with said party of the first part 'that he will, within a reasonable time, commence cleaning out the aforesaid test well, that he will cause such work to be prosecuted with due diligence and in a workmanlike manner, at prices customary in such territory, and that when such test well is cleaned out, in condition where drilling can be resumed, then said well shall be measured for the depth drilled by party of the first part and party of the second part shall pay to party of the first part a sum equal to the amount of two dollars and-fifty cents per foot for each foot so drilled by party of the first part, less the cost of cleaning out such hole by party of the second part, and also all labor and material liens or accounts contracted by party of the first part in the drilling of such well, which liens and accounts party of the second part hereby agrees to immediately pay, all moneys which may be due party of the first part to be paid ten days after said well is cleaned out and drilling resumed.”
In the answer of Frates and the other plaintiffs to the cross petition of the lien claimant, the Continental Supply Company, it was alleged that pursuant to this contract of October 1, 1927, exhibit B, plaintiffs—
“Attempted to clean out said well and remove therefrom certain obstructions that were preventing the further drilling of said well.
“That said plaintiffs, in good faith, in attempting to remove said obstructions worked with a force of men for several days, and spent large sums of money, and said plaintiffs, in good faith, reached the conclusion that said obstructions could not be removed, and that said well could be no further drilled, and that plaintiffs abandoned said well.
“That by reason thereof, there is no sum due the Continental Supply Company under said contract shown as exhibit B.”
It is possible to discern a certain basis for appellant’s fault-finding with a certain conclusion of fact and its correlative conclusion of law, made by the trial court. These read:
“The court further finds that on October 1, 1927, the plaintiff, Earl Frates, made and entered into a contract in writing with the said Advance Drilling Company, wherein and whereby he promised and agreed to pay all labor and material liens or accounts contracted by the Advance Drilling Company in the drilling of the well on the aforesaid oil-and-gas lease;
“As a conclusion of law the court concludes that the contract attached to plaintiffs’ petition as ‘exhibit B’ binds the plaintiff, Earl Frates, to pay for only such items of material, machinery and oil-well supplies furnished and used in the drilling of said well as were subject to become a lien upon said oil-and-gas lease.”
Under the issues made by the pleadings, such a conclusion is not manifestly erroneous. The evidence has not been abstracted. What it may have disclosed we do not know. It is not now contended that the judgment is contrary to the evidence; and a painstaking consideration of the record does not permit us to say that manifest error inheres in the judgment. It is therefore affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the board of county commissioners of Jefferson county to enjoin a drainage district of that county and its officers from assessing and levying a tax against the improved county and state highway within the drainage district for the improvements to be made therein. Defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer and the defendant has appealed from that ruling.
The material allegations of the petition are that the defendant drainage district was duly organized under the Laws of 1905, chapter 215 (R. S. 24-401 et seq.); that the petition for the creation of the drainage district embraced by its boundaries a large tract of land and property in the southern part of the county bordering on or in the vicinity of Stonehouse creek, a tributary to the Kansas river, and alleged that all such lands and property are subject to injury and damage from overflow of Stonehouse creek, a natural watercourse; that the improvement of the channel of such watercourse, the construction of levees, drains and other works, are necessary to prevent such overflow, and that such improvements and works will be conducive to the public health, convenience and welfare. This petition was filed with the board of county commissioners September 4,1917, and granted December 4, 1917. The petition herein further alleges that included in the geographical area of the drainage district so created are located certain highways which have been improved by plaintiff and which are described from the Williamstown junction as: (a.) Road north U. S. highway No. 73 W.; (6) road west U. S. [Kansas] highway No. 10; (c) x’oad south to Williamstown; (d) road east U. S. Highway No. 73 W. Kansas No. 10; and (3) Stonehouse creek bridge on Kansas highway No. 10; that road (a) is bituminous macadam and has been built several years; roads (b), (c) and (d) are of concrete surface and were completed in 1926, and that the bridge {d) was built in 1926 at a cost of $16,000, of which $6,000 was made necessary to comply with an order of defendant that it be built with a 90-foot span so as to provide for the improvement of the creek, instead of a 50-foot span; that defendant obtained from its engineer a physical valuation of the bridge and highway improvements above described; that in making such valuation the engineer used the basic cost of the improvements of such highways and bridge after allowing for depreciation; that thereafter and about March 8, 1928, defendant, having assessed the valuation of other property within the district, held a meeting for the purpose of equalization and to hear complaints, protests and suggestions with respect to such valuation and assessments; that at such meeting defendant adopted the valuation of its engineer with respect to the highways and bridge above mentioned, which placed their value, before the improvements contemplated by the drainage district, at $54,000, and after such improvements at $59,400, and the tax assessed thereon was $5,400, being ten per cent of the valuation before improvement; that this was the highest rate levied on any property in the drainage district, the property in the district — but not in the flooded area —being assessed at one per cent, one and one-half per cent and two per cent; that plaintiff appeared at this hearing and objected to the assessment against it, for the reasons: (1) That it was not subject to taxation for such benefits; (2) that the valuation upon road (a) should not be levied at ten per cent, but should not exceed two per cent, because it was not within the flooded area and was benefited indirectly only; and (3) that no assessment should be made against the cost of the bridge over Stonehouse creek for- the reason that the bridge was built for the benefit of the drainage district and was a part of the work incident to the enlargement of the creek. The petition further alleges that the improvements referred to as (a), (6), (c), (<2) and (e) are not upon the tax rolls of the county and are not properly subject to taxation under the law under which defendant was organized and is operating. The prayer was for a permanent injunction against defendant from assessing or levying against plaintiff the tax of $5,400, or any part thereof.
The sole question before us is whether this petition states facts sufficient to constitute a cause of action. The first question to be considered is whether the plaintiff is liable to be taxed by defendant in any sum; and, if'that be answered in the affirmative, second, if the tax levied is so unreasonable that it should be held invalid. The' section of the statute (R. S. 24-407) conferring powers upon the drainage district, created under chapter 215 of the Laws of 1905, provides how money shall be obtained to conduct the business of the district and to pay for. the -improvements made therein as follows:
“Eleventh. To annually levy and collect a general tax not exceeding five mills on the dollar on all taxable property within the district, to create a general fund.
“Twelfth. To levy assessments and special taxes, if deemed expedient by the directors, upon all of the real estate in the district that may be benefited, to defray the costs of the construction and maintenance of levees or other works or improvements to prevent the overflow of natural watercourses, or the drainage of overflowed lands therein, or that may be conducive to the public health, convenience, or welfare.
“Thirteenth. To isspe negotiable bonds to pay the cost of widening, deepening and otherwise improving the channels and constructing embankments, drains, levees and other works along the banks of natural watercourses to pay for the purchase or condemnation of land necessary therefor, to prevent overflow and protect the property situated within the district from damage and.injury thereby; such bonds to be payable by general taxation of all property within the district when it shall be determined that all property situated within the district will be benefited thereby or that such work or improvement is necessary, or will be conducive to the public health, convenience or welfare, and beneficial to all of the inhabitants of such district: Provided, That no such bonds shall be issued until authorized by a vote of the taxpayers, as hereinafter provided.”
It will be observed, first, that the district may levy an annual general tax on all the taxable property in the district to create a general fund. This is levied on personal property as well as real property, and is levied on taxable property only. Since all property owned by a county is exempt from taxation (R. S. 79-201, sixth clause), the property here in question is not subject to levy for this purpose. The district has authority, second, to levy assessments and special taxes “upon all the real estate in the district that may be benefited.” Now the question is whether these highways and the improvements that have been placed thereon by the plaintiff constitute real estate within the meaning of this statute. In Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603, it was held:
“In this state it would seem that by the laying out and establishing of a road or highway the public acquire only an easement in the land. The fee in the land never passes to .the public, but remains in the original owner.”
In the opinion it was said:
“In this state the statutes provide for the establishment of public roads and highways . . . but both the constitution and the statutes are silent as to how much of the land, or what interest therein, shall pass to the public, and how much of the land, or what interest therein, shall remain with the original proprietor. Therefore we would infer that nothing connected with the land passes to the public except what is actually necessary to make the road a good and sufficient thoroughfare for the public. The public obtains a mere easement to the land. It obtains only so much of the land, soil, trees, etc., as is necessary to make a good road. It obtains the right for persons to pass and repass, and to use the road as a public highway only, and nothing more. (Caulkins v. Mathews, 5 Kan. 199, 200, and cases there cited.) The fee in the land never passes to the public, but always continues to belong to the original owner. He continues to own the trees, the grass, the hedges, the fences, the buildings, the mines, quarries, springs, watercourses; in fact, everything connected with the land over which the road is laid out, which is not necessary for the public use as a highway. (Angell on Highways, ch. 7, §§ 301 to 312, and cases there cited.) He may remove all these things from the road, or use and enjoy them in any other manner he may choose, so long as he does not interfere with the use of the road as a public highway. No other person has any such rights. In fact, the original owner has as complete and absolute dominion over his land, and over everything connected therewith, after the road is laid out upon it as he had before, except only the easement of the public therein.” (p. 607.)
In Roberts v. Comm’rs of Brown Co., 21 Kan. 247, it was held:
“. . . the public, by laying out and establishing the road, does not become the owner of the land covered by the road, but acquires only an easement therein, and the landowner himself still remains the owner of the fee and of everything connected with the land not necessarily for the public use.”
In Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 Pac. 913, a deed in fact bounded the land on a highway, but without-mentioning it. Held, the grant, extended to the center of the highway subject to the public easement. In the opinion it was said:
“When the highway was established it constituted an easement for the benefit of the public, and the fee of the land appropriated for the way remained in Baldwin.” (p. 203.)
It is therefore well established in this state that the adjoining landowners own the fee to the highway. We have a statute (R. S. 12-406) relating to city plats which places the fee of city streets in the county, but this has no application to a highway outside of a city. We should note, also, that by R. S. 24-424 it is provided that when special assessments are levied “such special assessments shall, by the secretary of the board, be certified to the county clerk and entered upon the tax rolls and collected as other taxes under existing laws.”
From the above it is clear that the improvements made by the county upon the highways and bridge in question do not constitute real estate owned by the county. There is no contention that these improvements are on the “tax rolls,” neither are any “existing laws” pointed out to us under which such special assessments might be collected. It necessarily follows that these improvements on the highway are not included within the class of property on which special assessments may be levied under this statute.
The third method the drainage district has of obtaining money to pay for improvements is to issue bonds. Since no bond issue is contemplated by the proceedings of the drainage district in this case this provision has no application; but if it were contended that it did, we note that it is provided by R. S. 24-418 that “. . . such bonds are to be paid by a general tax to be levied upon all the taxable property within the drainage district . . .” Since the improvements placed on the highways by the county, if regarded as being owned by the county, are exempt from taxation (R. S. 79-201, sixth clause), they would not be taxable for this purpose.
Appellant calls our attention to language in Roby v. Drainage District, 77 Kan. 754, 95 Pac. 399, where it was said, arguendo:
“The benefits of a highway, a levee or a drain may be so peculiar that justice would require the cost to be levied upon a part of a township or county, or upon parts of several subdivisions of the state.” (p. 757.)
This is true, but it is for the legislature to say how the cost of improvements made in a drainage district shall be paid. In chapter 34 of the Compiled Laws of 1879, relating to drainage, there was a provision in section 15 to the effect that when the improvement made benefited a county or township road the expense of the work should be apportioned and a part of it set off to the county or township. The validity of that provision was sustained in Sargent v. Burch, 26 Kan. 581. A similar provision was made in the drainage act of 1911 (R. S. 24-620). There is no such provision in the drainage act of 1905 under which the defendant district was organized, but, on the other hand, this act provides specifically how moneys shall be acquired for the general fund and for improvements to be made in the drainage district, and omits to charge any part of such expense to the county because of improvements it has placed on highways. Neither can it be said that the matter was overlooked by the legislature when it enacted chapter 215 of the Laws of 1905, for it dealt with the question of right of ways by providing, in section 21 of the act (R. S. 24-422) that the right of way of railroad companies within the drainage district be deemed and treated as real estate. This indicates a clear legislative intent to exclude other right of ways from the cost of the improvements made in a drainage district.
Our attention is called to Cuming County v. Bancroft Drainage District, 90 Neb. 81, in which the supreme court of that state seems to hold that the county is liable for a part of the expense of the work done in a drainage district if it does, in fact, benefit an improved highway within the district, notwithstanding the fact that the statute does not specifically so authorize. We have not examined the statutes and other decisions of Nebraska, with a view of determining the soundness of the opinion referred to in view of the statutes and the previous holdings of that court, but in this state it has uniformly been regarded as the function of the legislature, in creating a drainage district and providing for improvements to be made therein, to determine the manner of raising the money for payment of such improvements. We have been cited to no opinion of this court expressing a contrary view, hence to follow the cited Nebraska case would, in this state, amount to judicial legislation. We regard the question of how the improvements in a drainage district shall be paid for to be a proper subject for the determination of the legislature rather than for the court. If the legislative method provided proves unjust the remedy should be amended legislation.
We conclude it was not error for the court to overrule the demurrer to plaintiff’s petition, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff, Joseph E. Seely, by Coming in contact with a broken high-tension wire of the municipal light and power plant in Kansas City.
In a certain section of Kansas City there is a street named Willard avenue, which runs east and west. It is intersected by Wood land avenue, which runs north and south. In the block immediately east of Woodland and north of. Willard is an alley fifteen feet wide. About forty feet north of Willard, in this alley, on July 6, 1934, there stood an elm tree, whose trunk was about eighteen inches from the alley’s west line. Its foliage extended nearly across the alley. Some ten feet north of the tree stood a garage belonging to one Mar-low, whose residence fronted westward on Woodland avenue. This garage encroached about two feet into the alley. Across the alley to the east and fronting southward on Willard avenue was the cottage home of a family named Phalp, in which was a grown daughter, Margaret, who owned a small dog. Running north and south in the alley and near its west line were poles and wires of the municipal light plant. Two of these wires carried high voltage.
In the night of July 5 or the early hours of July 6, 1934, a storm over the city had broken a number of the wires of the municipal plant. One of the- high-voltage wires in this alley was thus broken. One of its broken ends was lodged in the elm tree and hung within a foot or two of the ground. Several persons in the vicinity had reported the broken wire, but defendant’s linemen had not gotten around to repair it when the accident occurred which gave rise to this lawsuit.
Between 9 and 10 o’clock in the forenoon, the dog belonging to Margaret Phalp was stunned by an electric shock from this broken wire. Perhaps another dog had a similar mishap that m-orning. Miss Phalp’s dog lay near the elm tree for some time, then began to kick and howl, and eventually arose and crossed the alley and concealed itself, still howling, under some bushes near the Phalps’ cottage. A neighbor, Mrs. Marlow, called to Miss Phalp that her dog had gotten into the wire. Miss Phalp came out of her home and called across Willard avenue to plaintiff, who was then coming from his home to enter his automobile. He had heard the dog’s howling, and came across the street. He walked up the alley, peering under the branches of the elm tree to look at the dog. He testified:
“And I saw a dog underneath the bush there, and straightened up; I had been leaning forwards, and as I straightened up it just seemed like a wasp stung me on the back of the head. That is my recollection, just a sting.”
“Next thing I knew I woke up in the hospital.”
Margaret Phalp testified:
“He walked up the alley, ... he just walked right into the wire. He . . . raised his hand up and it seemed like he was just in the wire. . . . He had his back to me. . . . He threw up one of his arms, I don’t know which one, and all at once I just saw him falling back, and he was holding the wire some way. . . . The wire was spitting, and his neck was burning, and his hands were burning. . . . and he was perspiring and was rather a greenish color and he kind of foamed at the mouth. His neck was badly burned. ... I ran into the house and when I came back Mrs. Seely had a pole in her hand; she swung the pole and knocked the wire from his hand.”
Plaintiff’s injuries were various and serious; his arms were so badly burned that both had to be amputated below the elbows; he suffered other painful burns and was confined to a hospital for several months; and was permanently incapacitated to follow either of his several vocations, which were those of a laborer, machinist, and farmer.
There was testimony for defendants that a' Mrs. Marlow was standing near the elm tree when the Phalps’ dog lay there, and that when plaintiff came she warned him not to touch the wire, and that he said, “It is all right. I know how to handle it.” Another witness for defendants, a Mrs. Lloyd, testified that she warned plaintiff not to touch the wire and he answered: “I am an electrician,” and took hold of the wire with both hands. She testified, however, that she did not hear Mrs. Marlow say anything to plaintiff before he took hold of the wire. The testimony of this witness was somewhat shaken on cross-examination. Miss Phalp testified that she heard Mrs. Marlow say something like “Don’t touch it,” but it was about the time that the wire touched Mr. Seely; so it was not established that plaintiff heard any warning before he “mosied up to the wire” as one witness testified. Another witness for defendants, Billy Landry, eleven years old, testified that he was on the scene when the Phalps’ dog was “twisting around on the grass.” He testified on direct examination that he heard Mrs. Marlow say to plaintiff, “Don’t touch it.” But on cross-examination he testified that when plaintiff came to the elm tree Mrs. Marlow said to him, “Hello,” and that he replied, “Hello,” but that later she screamed at him, which might be true, but too late to effect a warning. This young witness failed to remember certain matters which would have tended to test his veracity, and concluded by testifying that he did not wait until plaintiff was rescued from the live wire by Mrs. Seely, and that after plaintiff fell back into the alley he “beat it.”
The foregoing testimony is not set down as a comprehensive summary of the evidence but to throw some light on the jury’s special findings which appear below.
At the conclusion of plaintiff’s evidence both defendants interposed demurrers. The demurrer of the city of Kansas City was sustained ; that of the board of public utilities was overruled.
The jury returned a verdict for $22,000 in favor of plaintiff. Some of the special questions answered were these:
“3. Did Mrs. Marlow see the Phalp dog when it came in contact with and was knocked down by the said wire? A. No.
“4. Do you find from the evidence that Billie Landry came to the rear of the Marlow lot before the said dog left the place where it was lying, after being knocked down by said wire? A. No.
“5. Do you find from the evidence that Mrs. James Lloyd was present at or near the rear end of the Marlow lot before the Phalp dog left the place where is was lying after being knocked down by the wire in question? A. No.
“6. If you find that Mrs. Marlow was present, then state if Mrs. Marlow warned the plaintiff not to touch the wire, not to pick it up? A. No.
“7. Did the plaintiff take the said wire in his hands after being warned by Mrs. Marlow? A. No.
“8. Do you find from the evidence that Mrs. James Lloyd warned the plaintiffe, Seely, not to touch the said wire? A. No.”
The usual post-trial motions were presented and disposed of, and judgment was entered on the verdict.
The board of public utilities of Kansas City appeals. Plaintiff has filed a cross-appeal from the ruling on the city’s demurrer to plaintiff’s evidence.
The principal question in the appeal and cross-appeal is whether the board of public utilities is independently liable for plaintiff’s injuries, or does that liability rest on the city itself, or should it be imposed on both defendants.
But before examining that question, we must consider certain trial errors complained of by the board of public utilities. When the trial was about to start the suggestion was made that all the witnesses be sworn and excluded from the courtroom until their presence was required. As the witnesses arose and held up their hands to be sworn, an attorney for plaintiff in a loud voice addressed his client, saying, “Mr. Seely, stand up and hold up the stump of your right arm.” Counsel for defendants objected to this remark and asked that plaintiff’s counsel be admonished, and suggested that the jury be discharged. Another objection of counsel for defendants to the conduct of plaintiff’s counsel during the preliminaries were his references to the fact that plaintiff was the father of four children. Defendants’ counsel also objected to the presence of the children in the courtroom : The record reads:
[Counsel foe Defendants] : “I move at this time for an order of the court directing plaintiff’s attorneys to exclude the minor children of the plaintiff from the room during the entire trial, for the reason that the presence of the children in the room during the trial will be prejudicial to the rights of the defendants herein, and for the further reason that this action is for damages and injuries to the plaintiff, and not to his children or any member of his family.”
The trial court declined to exclude the children from the courtroom ; ignored the suggestion that the jury be discharged, but after the witnesses were sworn and excluded, said:
“Before we start in this particular lawsuit I want to make this observation to counsel, that because there is considerable involved on both sides of this lawsuit, I am going to request both counsel to be very careful in the conduct of the case so that no prejudicial error will be committed by either side. Now, as to all remarks made by either counsel during the course of the trial, try to limit them only to the propositions involved; and I hope there will be no controversy across the counsel table when objections are made or otherwise. ... I am going to tell you ahead of time I am going to insist that only the legal procedure be followed by both sides.”
We think the trial had scarcely proceded far enough so that the incidents complained of could be characterized as erroneous; and it would seem that the timely admonition given by the court was sufficient at that early stage of the proceedings.
Another complaint of defendants relates to the closing arguments of plaintiff’s counsel in which he commented severely on the testimony of certain witnesses for defendants. This court has no means of determining whether the testimony of plaintiff’s witnesses was true, and that of defendants’ witnesses was false, or vice versa; but certainly the one line of testimony or the other was false. Both could not possibly be true; and counsel committed no error in dealing plainly with what reasonably appeared to him to .have been false testimony deliberately avowed by defendants’ witnesses. (Hausam v. Poehler, 120 Kan. 119, 122, 242 Pac. 449.) In State v. Wilson, 108 Kan. 433, 195 Pac. 618, which was a criminal case, this court discussed the scope within which an argument to the jury may fairly extend:
“Of course, counsel should not introduce or comment on facts outside of the evidence, but reasonable inferences may be drawn from the evidence, and figurative speech which has a foundation in the testimony, is permissible. The argument of counsel for the state included illustration, comment on the effect of the crime charged, some denunciation and some pathos and appeal, but we cannot say that there was no basis in the evidence for these features nor that there was prejudicial error in the limits placed on the argument by the court. Considerable latitude should be allowed in an argument to a jury and unreasonable limitations should not be imposed on counsel. (16 C. J. 893.) It is common and competent for an attorney in presenting a case to a jury to indulge to a reasonable extent in illustration and imagery in denunciation of wrong and crime, in wit and sarcasm in an analysis of the testimony and thus aid in pointing the way to a just and correct result. Many times there are exaggerations in the heat of the discussion, but these are usually taken by the jury at their worth and are rarely deemed sufficient to require the overthrow of a verdict.” (p. 437.)
See, also, 64 C. J. 249, 250, id. 267-269, 274-276.
Complaint is also made because in their arguments to the jury counsel for plaintiff suggested how the special questions should be answered, and the jury did answer them accordingly. The record does not show that defendants interposed any objection to this line of argument. The suggested answers were based on counsel’s view of the testimony of some of defendants’ witnesses — that such testimony was not entitled to credence. Such a line of argument did not transcend the limits of fair debate. (State v. Wilson, supra; Foley v. Crawford, 125 Kan. 252, syl. ¶ 5, 264 Pac. 59.)
Another contention is that plaintiff’s evidence as to how his injuries occurred “is so impossible, unreasonable, absurd and contradictory that it does not constitute a basis for the verdict in his favor, and the trial court should have instructed a verdict for the defendant.” To this court plaintiff’s evidence does not appear open to such emphatic animadversion. Surely it could happen that plaintiff could have “mosied" into the broken live wire if he did not know of its presence in the elm tree, and all that happened after he did come in contact with the wire was inevitable and altogether too quickly for a belated warning to have prevented the accident. Indeed, a good argument could be made that the accident could scarcely have happened except in some such fashion. If plaintiff had been an electrician he would certainly have known that he dare not touch the wire without the necessary equipment for handling it. Defendants’ witnesses, who were a couple of housewives, knew that much. And if he was merely a common workman, what could have been his object in deliberately taking hold of the wire? What could he have intended by doing so? He could not repair it with his bare hands. Being presumably in his sane mind he surely did not intend to take charge of the broken end of the wire and hold it until defendants’ linemen came to repair it. The jury quite rationally could decide that plaintiff’s version of the facts was more credible than defendants’; and this assignment of error cannot be sustained.
Defendants produced as an expert witness a professor of electrical engineering who testified in substance that if plaintiff had a dry cap on his head and if his hair was dry and if his feet and shoes were dry and it was dry underfoot, the accident could not have happened as testified to by plaintiff. He testified that if the electric wire had first come in contact with plaintiff’s head he would have been paralyzed instantly, and would have fallen forward, not backward, and that it probably would have killed him. However, the same live wire did not kill Miss Phalp’s little dog; and if there was another dog shocked that morning by the same wire, as testified to by some of defendants’ witnesses, it was not killed. Moreover the testimony was clear and not disputed that the insulation on the wire was frayed and worn; and this expert witness testified that in such a condition the high voltage might be partly dissipated in the branches of the elm tree, so that plaintiff would not receive the full strength of the current. Be that as it may, the evidence was for the jury to appraise, not for this court — under any rule of appellate review with which we are familiar.
It is next argued that the verdict for $22,000 was a quotient verdict, but that does not appear. Indeed the argument for appellant on this point concludes thus, “That the circumstances almost conclusively show that the jury’s verdict” was arrived at by a quotient of divergent amounts. “Almost,” but not altogether apparently, so this basis of error evaporates.
The foregoing disposes of the run-of-the-mill trial errors, and it is quite clear to this court that prejudicial error in none of them is made to appear.
Coming now to the one serious question invoked in the appeal and cross-appeal, counsel for the board of public utilities contends that it is not such a complete and separate entity from the city of Kansas City that it can be subjected to a judgment for damages for negligence. Counsel for plaintiff’s cross-appeal is a precautionary one, so that if the contention of the court is sustained their client’s judgment will not be imperiled by acquiescing in the trial court’s ruling which relieved the city itself from liability.
The relationship of the board of public utilities of Kansas City to the city itself has been the subject of judicial consideration here tofore. (State, ex rel., v. McCombs, 125 Kan. 92, 262 Pac. 579; State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618; Board of Public Utilities v. Kansas City P. & L. Co., 139 Kan. 842, 33 P. 2d 320; Puhr v. Kansas City, 142 Kan. 704, 51 P. 2d 911.) In these cases the various phases of the statute which creates a separate official board for the management, operation and control of the municipal water and light plant of Kansas City were applied to the particular legal questions requiring decision. The statute, as it now appears, is R. S. 1933 Supp. 13-1220 et seq. In State, ex rel., v. McCombs, supra, in commenting on this statute, this court said:
“Municipal ownership of public utilities is new, the more modern utilities at least; consequently legislation for their management is bound to be empirical, and subject to frequent change as experience dictates; and the transfer of the control of the water and light plants from the general control of the city government to a special board having no other municipal concerns to attend to is quite a proper exercise of experimental legislation. If it succeeds, good and well; if not, the legislature has plenary power to try something else or restore control to the governing body of the city.” (129 Kan. 839.)
Nowhere in the statute do we find a plain legislative declaration which relieves the city of damages to persons or property caused through the negligent operation of the electric-light plant, nor does the statute specifically transfer and impose such liability upon the board of public utilities as a wholly independent legal entity. The nearest the statute comes to this last point is in R. S. 1933 Supp. 13-1233, which provides:
“All other powers and duties under acts and parts of acts relating to waterworks and/or electric-light plants in such cities of the first class insofar as applicable shall be exercised by the board of public utilities.”
In the case at bar it seems that the financial problem of paying the judgment in this case is not serious. It is said that the municipal plant is being operated at a profit and has a handsome surplus — which may or may not have been the legislative purpose in vesting proprietory powers in cities or other local administrative instrumentalities; but the question intrudes: Where would the plaintiff have the right to look for the payment of his judgment, if the municipal light plant had no surplus? — if it were being operated at a loss? It has no power to levy a tax to pay a judgment for damages. In the circumstances of this case, there would be no doubt of the city’s liability if the municipal plant had been operated directly by the city’s governing body as it was operated until a few years ago. (Kansas City v. Gilbert, 65 Kan. 469, 70 Pac. 350; Swayzee v. City of Augusta, 113 Kan. 658, 216 Pac. 265; Webb v. City of Chanute, 118 Kan. 505, 235 Pac. 838. See, also, Ross v. City of Gypsum, 104 Kan. 412, 417, et seq., 179 Pac. 348.) For negligence in the operation and management of such public utilities as are clearly of a proprietary character, the smaller cities of this state have uniformly been held liable. (Emporia v. White, 74 Kan. 864, 86 Pac. 295; Hinze v. City of Iola, 92 Kan. 779, 142 Pac. 947; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312; Bollinger v. Hill City, 116 Kan. 604, 227 Pac. 265; Zumbrun v. City of Osawatomie, 135 Kan. 26, 10 P. 2d 3.)
In the light of these decided cases and many others in our official reports, can this court hold that while all other cities of this state having a municipal light plant are liable for negligence in their operation and maintenance, a city having more than 100,000 population which owns its municipal light plant (R. S. 1933 Supp. 13-1220) is not thus liable — for no better reason than that the legislature has created an administrative agency to operate the plant, free from control of the regular governing body of the city? Such a ruling would bring to the fore constitutional questions of no little gravity, the Kansas bill of rights, § 18; and the guaranties of the fourteenth amendment.
This court holds that the city of Kansas City was both a proper and a necessary party to this action, and that the board of public utilities was and is a quasi-legal entity properly impleaded in this action and sufficiently qualified to participate in this litigation (Board of Library Directors v. City of Fort Scott, 134 Kan. 586, 7 P. 2d 533), and to be guided by the judgment to the extent that it may satisfy the same out of its ávailable surplus, failing which the city must provide for the payment of the judgment as in all cases where liability is judicially imposed on a municipality.
The judgment against the board of public utilities of Kansas City is affirmed, and the judgment in favor of the city of Kansas City is reversed with directions to enter judgment against it on the same terms as those already decreed against its codefendant. It is so ordered.
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The opinion of the court was delivered by
Gar ver, J. :
This was an action brought April 27, 1892, in the district court of Michell county, by the plaintiff in error, as plaintiff, on a note executed by defendants in error, and to foreclose a mortgage given to secure the same. The note was dated June 1, 1888, and made for the payment of the sum of $900 in five years after date, with interest payable semiannually on the first days of June and December in each year. The mortgage provided as one of its conditions :
“If the makers of said note shall fail to payor cause to be paid any part of said money, either principal or interest, according to the tenor and effect of said note and coupons, when the same becomes due, . the whole sum of money hereby secured shall, at the option of the legal holder or holders thereof, become due and payable at once without notice.”
The petition alleges the failure to make the several payments of interest falling due on and after June 1, 1890, and on that ground plaintiff elected to exercise the option to declare the whole sum due, and to foreclose the mortgage. A demurrer to this petition was sustained, on the ground that it failed to state facts sufficient to constitute a cause of action. This ruling of the court is now complained of.
The specific objection which is made to the petition is, that because of the delay of the plaintiff to exercise its option to declare the whole sum due within a reasonable time after the last default in the payment of interest it must be deemed to have waived such right on account of any default preceding the commencement of the action. Did the petition state a cause of action? Crossmore v. Page, 73 Gal. 213, is cited as the principal authority relied upon for this ruling. Tlie construction which the supreme court of California put upon the contract before it in that case does not seem a reasonable one; and what is said by the court as to the legal effect of the delay is much weakened by subsequent decisions of the same court. (Hewitt v. Dean, 91 Cal. 5; Fletcher v. Dennison, 101 id. 292.) The note and mortgage must be considered together as one .contract, and the conditions of the mortgage, as to the effect of a default in the payment of taxes or interest, become a part of the contract for the payment of the sum named in the note. (Muzzy v. Knight, 8 Kan. 456; Meyer v. Graeber, 19 id. 165.) According to the conditions of the mortgage, upon the failure of the mortgagor to pay the interest when due, the holder of the mortgage had a right to declare the whole sum due and foreclose his mortgage, if he so elected. (National Bank v. Peck, 8 Kan. 660; Stanclift v. Norton, 11 id. 218; Darrow v. Scullin, 19 id. 57.)
The rights of the parties in this case grow out of a contract into which they voluntarily entered. It is not like a case of forfeiture, where the party who exercises the option may derive large benefits from it. Forfeitures are not favored by the courts, and slight circumstances 'will often be seized upon to avoid them. But, even in cases of forfeiture, the rule' requiring prompt action is founded upon the presumption of a change in the situation of the 'parties after the time when a forfeiture might have been first declared. In a contract such as that under consideration, the option is for the special benefit of the mortgagee, and for his protection. Two things are its principal purposes : (1) The prompt receipt of the interest by the holder of the note ; (2) the avoidance of any impairment of the security by an accumulation of interest, taxes or other charges upon the property in addition to the original sum secured. The exercise of the option does not affect the rights of the parties in any manner, except merely as to the time of payment. The agreement of the mortgagor to pay the interest at stated times is a continuing obligation, which can be discharged within the terms of the contract only by actual payment. Whether one week or four months have elapsed since the payment should have been made, the default is still as continuous as is the promise to pay; the reason for giving the option has not necessarily lost any of its force by the delay, and the right to exercise it should be secured as long as the reason exists. If, by reason of the delay, the plaintiff should gain any advantage, or the defendant should suffer any detriment or loss, other considerations would enter into the case, and it might then be said that there was a waiver. In this case, nothing of the kind is claimed. The first default on the interest occurred nearly two years, and the last over four months prior to the commencement of the action, with nothing done otherwise by either party to affect their legal rights. We think the controlling question in such a case is, whether the defendant made default and was continuing so, to the prejudice of the contract rights of the plaintiff, at the time he elected to declare the whole sum due and payable? In this particular case the rule applied by the district court might operate to the advantage of the defendants ; but it is of doubtful benefit to mortgagors generally to lay down a rule which would require the holder of a mortgage containing such conditions to foreclose, if at all under such option, immediately upon the happening of anj default, and to hold that no delay or indulgence could be given by the creditor except at the risk of waiving all right to foreclose for such default. We admit our inability to perceive any reason for holding under such circumstances that the petition does not state a cause of action. Authority as well as reason opposes the construction placed upon the terms of this mortgage by the trial court. (M. R. Ft. S. & G. Rld. Co. v. Brickley, 21 Kan. 275, 295; Manufacturing Co. v. Howard, 28 Fed. Rep. 741; Swearingen v. Lahner, 61 N. W. Rep. [Wis.] 431.)
No special notice of the election was required. The commencement of the action was sufficient notice that the plaintiff had elected to exercise the option to declare the whole sum due. (Shattuck v. Rogers, 54 Kan. 266; Hewitt v. Dean, 91 Cal. 5; Buchannan v. Berkshire Ins. Co., 96 Ind. 510; Princeton L. & T. Co. v. Munson, 60 Ill. 371; Johnson v. VanVelsor, 43 Mich. 208.)
The judgment will be reversed, and the case remanded with directions that the district court overrule the demurrer to the plaintiff's petition.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This action was brought in the district court of Washington county by the defendant in error to recover from the plaintiff in error the amount paid by the insurance company to one Frederick Imhoff on account of a loss by fire which he had sustained through the alleged negligence of the railroad company. A trial was-had before the court, a jury being waived by the parties to the action, at the March term, 1891, which resulted in findings in favor of the plaintiff, and judgment was rendered in conformity therewith. The petition in error filed in this court to reverse said judgment contains the following assignments of error :
“1. The said court erred in overruling and refusing to sustain the demurrer of said defendant in said cause to the petition.
“2. The court erred in refusing to render judgment for defendant in said cause upon the pleadings, and for the reasons set forth in the application and motion therefor.
“3. The court erred in receiving testimony offered by plaintiff in said cause over the objection of defendant.
“4. The said court erred in rendering judgment for plaintiff in said cause, for the reason that the same was contrary to law and was not sustained by sufficient evidence, and was contrary to the evidence.
“5. The court erred in rendering judgment for plaintiff in said cause for the sum of $952, that amount being too large, in any event.
“6. The judgment and findings were for plaintiff in said cause, when they should have been for the defendant, according to the law of the land.”
The defendant in error insists that, notwitstanding the record shows that a motion for a new trial was duly filed and overruled, this court cannot review any errors which occurred upon the trial, as the assignments of error do not include the overruling of such motion, and such must be regarded the settled rule of practice in this state. (Carson v. Funk, 27 Kan. 524; Clark v. Schnur, 40 id. 72; Landauer v. Hoagland, 41 id. 520; City of McPherson v. Manning, 42 id. 129; Crawford v. K. C. Ft. S. & G. Rld. Co., 45 id. 474; Binns v. Adams, 54 id. 615.) The only questions then presented by the record are as to whether or not the court erred in overruling the demurrer to the petition, the motion for judgment on the pleadings, and the objection to the introduction of any evidence under the petition.
If the allegations of the petition are true, the railroad company was liable for the injuries sustained by Imhoff, and the insurance company was in equity entitled to be subrogated to Imhoff’s rights to the extent of the indemnity money paid him by it. The railroad company, however, contends that the insurance company could not maintain this action in its own name, as under our statutes, as construed by our supreme court in K. M. Rly. Co. v. Brehm, 54 Kan. 751, a right of action against a party for negligently and wrongfully destroying property by fire is not assignable. We cannot concur with counsel for the railroad company that the decision in that case is applicable to the one now before the court, as the insur anee company did not sue as an assignee, but by right of subrogation. The policy of insurance issued by the insurance company upon the property destroyed was a contract of indemnity, and the insurance company, upon paying to the assured the amount of the policy, became, without any formal assignment or any express stipulation to that effect, subrogated in a corresponding amount to the assured’s right of action against the railroad company, which was responsible for the loss. Under the strict rules of the common law, the right of the insurance company to recover against the railroad company could only be asserted in the name of the assured ; while under our code, which provides that “every action must be prosecuted in the name of the real party in interest,” with certain exceptions therein mentioned, which do not apply.in this case, such right may in certain cases be asserted by the insurance company in its own name. (Railway Co. v. Insurance Co., 139 U. S. 223; 24 Am. & Eng. Encyc. of Law, 306; Insurance Co. v. Railway Co., 73 N. Y. 399; Insurance Co. v. Railroad Co.; 66 Wis. 58; Railroad Co. v. Fire Ass’n, 55 Art. 163; Insurance Co. v. Loud, 93 Mich. 139; Insurance Co. v. Railroad Co., 41 Fed. Rep. 643.)
The railroad company further insists that, as it appears from the petition that the amount of the loss sustained by Imhoff exceeded the amount alleged to have been paid him by the insurance company, the action could only be brought by Imhoff alone, or by Imhoff and the insurance company jointly, and that the railroad company-could not be compelled to meet the insurance company and. Imhoff in separate, actions ; and cites, among others, the case of Insurance Co. v. Railroad Co., 20 Ore. 569, where it is held that while an insurance company, after having paid to the owner under its contract of indemnity a part of the loss sustained by him, thereby acquires a right or interest in the cause of action against the wrong-doer who caused the loss, it has no new and separate cause of action against the wrong-doer who caused the loss, but a joint right or interest with the assured in a single liability, and, united, they are the real parties in interest; and, further, that it is only in cases where the amount paid by the insured exceeded or equaled the value of the property destroyed, and no interest remains in the owner, that the insurer can maintain an action against the wrong-doer in his own name. In Insurance Co. v. Railroad Co., 41 Fed. Rep. 643, Judge Caldwell, in construing a section of the code of Arkansas which provides that all actions must be brought in the name of the real party in interest, asserted the rule to be, that “where the value of the property destroyed exceeds the insurance money paid, then the suit must be brought in the name of the insured” ; but, as it was alleged in the complaint in that case that the plaintiff had paid the insured the full value of the property destroyed, it was held that the latter was not a necessary party, and that the action could be maintained in the name of the insurer.
As it appears from the petition in this case that the amount of the loss sustained by Imhoff exceeded the amount paid him by the insurance company, and that the railroad company had failed and refused to pay the same, and no reason was assigned therein .for the failure to make Imhoff a party to the action, we are of the opinion that the petition was defective in this respect. The defendant demurred to the petition on the ground ‘ ‘ that the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against this defendant.” This demurrer did not raise the question as to the defect of the parties to the action. Our code provides that
“The defendant may demur to the petition only when it appears on its face, either, . . . 4th, that there is a defect of parties plaintiff or defendant; . 6th, that the petition does not state facts sufficient to constitute a cause of action.”
It also provides that
‘‘The demurrer shall specify distinctly the grounds of the objection to the petition, and unless it does so it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action.”
The petition stated an equitable cause of action in favor of the plaintiff for the amount which the insurance company paid to Imhoff, and as no objection was raised to the petition on account of the defect of parties, the demurrer thereto was properly overruled.
The allegation in the answer that “the said Imhoff has no claim against this defendant for damages on account of said fire referred to in said petition and had no claim against this defendant at the time of the bringing of this action ’ ’ cured the defects in the petition, and the railroad company could not thereafter complain that the action was not brought in the name of Imhoff, or that he was not joined with the insurance company as plaintiff. Had not the reply of •the plaintiff put in issue the other allegation in the answer, that “this defendant settled with and paid to the said Imhoff the damages he had sustained by reason of said fire long prior to the time that the plaintiff alleges that it paid the insurance money to the said Imhoff,” the defendant would have been entitled to judgment on the pleadings; but that issue was properly joined by the general denial in the re ply, which also alleged “that the insurance policy was valid and in full force, and a valid claim against the insurance company at the time it paid Imhoff the amount sued for in this action.” We think, under the entire pleadings, a cause of action was stated in favor of the plaintiff, and that the motion made by the defendant for judgment on the pleadings, as well as the objection to the introduction of any evidence, was properly overruled.
No errors appearing in the record of which this ■ court can take cognizance, it follows that the judgment must be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gabver, J. :
The errors assigned and which require consideration in this case are two : The first arises upon the ruling of the trial judge in the admission of certain testimony over the objection of the plaintiff in error, and the second is as to the correctness of the conclusions drawn from the facts and evidence in the case. The decisions complained of were made by the judge at chambers, upon the hearing and sustaining of a motion to dissolve an attachment obtained by the plaintiff in error in an action instituted by it against the defendant in error in the district court of Ellis county. The action was on a claim before due, and was brought for the purpose of obtaining an attachment on the statutory ground that the defendant had disposed of his property with the fraudulent intent to hinder, cheat and defraud his creditors in-the collection of their debts. In the examination of the defendant and others as witnesses for the plaintiff great latitude was allowed, and almost everything made a subject of inquiry which had the least tendency to show fraudulent conduct, or a fraudulent intent on the part of the defendant. The indebtedness sued on was contracted by the defendant and his brother, several months prior to the commencement of the action, by the purchase’of a stock of goods and merchandise from the plaintiff.
The plaintiff claimed, and introduced evidence to show, that the defendant obtained the credit by making a false property statement, and that he was aided and assisted therein by the Bank of Hays City, to which he afterwards executed a mortgage on the goods and other property. This mortgage to the bank was the claimed fraudulent disposal of property by the defendant. When the goods were purchased, the Bank of Hays Oity, being applied to' by the plaintiff for information as to the responsibility of Frank and Watson Zeigler, its president stated that he considered them all right — that the bank had done business with them and it had found them good pay. This recommendation, it was claimed by plaintiff, was not made in good faith, was not believed to be true, and was given for the purpose of aiding Zeigler in the perpetration of a fraud upon the plaintiff which was consummated by the execution of the mortgage. Because of this line of testimony, the defendant was permitted to show, by the president of the bank, the character of some of his dealings with the bank 'previous to the purchase of the goods in question, as tending to show that he was in good credit with the bank as a borrower of money, and that the bank honestly recommended-him as-a man worthy of credit. This testimony was admitted over the objection of the plaintiff on the ground that it was irrelevant and immaterial to any issue being tried, and presents the first ruling assigned for error. In this objection we are inclined to'agree'with ■ counsel for plaintiff in error. The evidence was too -remote to have any legitimate bearing upon any material fact to be tried, and was entitled to no consideration whatever. At the same time, it was probably no more remote than much of the evidence introduced by the plaintiff upon the same line of inquiry, and was quite as relevant in the disproof of the fraud alleged as the ground of attachment as was some of the evidence of the plaintiff in its proof. The fact that the debt was fraudulently contracted might in some cases b'e properly shown for the purpose of characterizing a subsequent disposal of the property which the debt represented. But, in sucli cases, the refutation of the charge of fraud may be as broad as the charge itself. Both parties seem to have been treated with equal liberality in the admission of any testimony that was offered, and the plaintiff has no just reason for complaint if the defendant was permitted to follow -into devious ways which were first entered by it.
The other error complained of requires for its consideration the examination and weighing of the evidence. The witnesses, for the most part, testified orally before the judge who heard the motion, and he had opportunities, in weighing their testimony, which do not come to a reviewing court from the written record. It is contended on the part of the plaintiff in error that there is no conflict in the evidence, and, consequently, that only one conclusion can be drawn therefrom. In all cases of this kind, the main inquiry must be directed to the intent of the party against whom the fraud is charged, the motive which prompts an act being often of more importance than the act itself. A particular disposition of property by a debtor may be properly sustained when made honestly and in good faith, when a like disposition, in another case, would be condemned and held to be fraudulent because of the motive which inspired it. Or an act may be of such a character in itself that the law will conclusively impute the fraudulent intent. This is so when a fraud is perpetrated as the natural and necessary effect of the act. The only ground for the attachment in this case was the alleged fraudulent disposal of the property by the defendant with intent to cheat and defraud his creditors. The disposition of property relied upon to sustain this charge was the execution of a mortgage which purported to secure the payment of several notes, amounting to about $3,000, given by Zeigler to, and owned by, the Bank of Hays City. The actual bank indebtedness was only about $350, the balance of the $3,000 being made up of various sums due to other creditors of Zeigler, for whom the security was demanded and taken in the name of the bank. One mortgage was thus given to secure the several claims due the bank and others, by the advice and direction of the attorney of the bank, by whom the mortgage was prepared. Whatever may be said as to the validity of such a mortgage, it cannot be held as a matter of law that it was made with a fraudulent intent. The fraud alleged must be proved. An attempted preference of creditors, even though futile, if such preference be permissible, is not necessarily fraudulent. (Tootle v. Coldwell, 30 Kan. 125.) The fact that the debt may have been contracted by means of a false property statement lias little direct tendency to show that a mortgage executed four months afterward was made with the intent to cheat and defraud creditors. (Furniture Co. v. Armstrong, 46 Kan. 270.) The judge, hearing the witnesses and having before him all the facts and circumstances surrounding the several transactions inquired into, found that the charge of a fraudulent intent on the part of the defendant, as made in the affidavit for the attachment, was not sustained. We cannot say that in so doing any error was committed.
The order of the court discharging the attachment is affirmed.
Clark, J., concurring.
Gilkeson, P. J., not sitting, having been of counsel.
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The opinion of the court was delivered by
Clark, J. ;
This is an action brought in the district court of Saline county by J. H. Taylor and Robert S. See to recover from the plaintiff in error a commission claimed to be due them as agents for the sale of certain real estate belonging to the plaintiff in error. The plaintiffs recovered a judgment as prayed for, and the defendant has brought the case to this court seeking a reversal of the judgment upon the following assignments of error; The overruling of the demurrer to the evidence, the admission and rejection of certain evidence offered at the trial, the giving of certain instructions to the jury, and the overruling of defendant’s motion for a new trial. The real contention between the parties to this action was, and is, as to whether or not Taylor and See procured a purchaser for the land who was willing, ready and able to pur chase on the terms authorized by Hagler, the landowner. We have carefully examined the record and find that conflicting evidence was submitted to the jury upon the question at issue. The evidence submitted by the plaintiffs below was sufficient, if not uncontradicted, to support a general finding in their favor ; hence the demurrer to the”evidence was properly overruled. The jury returned a general verdict in favor of the plaintiffs, which was approved by the trial court. This verdict must be treated as a finding in favor of the plaintiffs of every essential fact necessary to be established to entitle them to a recovery. This court cannot weigh conflicting evidence or set aside the verdict of a jury solely on the ground that in its opinion the preponderance of the evidence was in favor of the defeated party. The jury are to determine the facts, and, except in the entire absence of competent evidence to support the verdict, their findings are conclusive upon this court. (Elerick v. Braden, 38 Kan. 83; Morris v. Trumbo, 1 Kan. App. 150.) We have been unable to discover from an examination of the record any errors committed by the court in its rulings on the admission or rejection of evidence offered, or in its instructions to the jury, prejudicial to the rights of the plaintiff in error.
It follows, therefore, that the judgment must be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Dennison, J. :
This is an action brought by Howard Gray, as plaintiff, against Jacob Haish, a non-resident of the state of Kansas, as defendant. Service was made by publication, and judgment was rendered by default against said Haish. Said defendant, upon proper proceedings, procured the vacation of said judgment, and permission to answer instanter; whereupon said defendant filed his answer and cross-petition, and the cause was, on February 8, 1894, continued until the next term of the court. On March 1, 1894, the said plaintiff filed a motion asking the court to compel the said defendant to' make his answer more definite and certain. At the May term of said court the cause was continued to the next term of court. No action was had on said motion at said May term. At the October term of said court the motion to make more definite and certain was overruled, and the plaintiff filed a reply to the answer of the defendant, leave of the court having first been obtained. At said October term, judgment was rendered against the said defendant in favor of said plaintiff. There was no appearance of said defendant at said October term of court. Thereafter, on February 5, 1895, said defendant filed a motion to vacate and set aside said judgment, for the following reasons, to wit:
“(1) Because of the rendition before the action stood regularly for trial, and without the presence or knowledge of defendant; (2) because the alleged judgment was taken in the absence of defendant, on the day plaintiff filed his reply to defendant’s answer and cross-petition, viz., October 18, 1894, the last term before the present term of this court.”
This motion was sustained by the court, upon condition that the said defendant, on or before April 1, 1895-, pay all costs which had accrued in said action up to said time. The plaintiff duly excepted, and brings the case to this court for a review of the ruling of said court sustaining said motion to vacate and set aside said judgment.
The defendant in his brief raises a jurisdictional question which we will first consider. It is alleged that the ruling of the trial court by which it vacated and set aside a judgment alleged to have been rendered before the action regularly stood for trial is not such a ruling as is reviewable by this court, or appealable from the district court while the action is still pending therein. The jurisdiction of the supreme court is embraced in paragraph 4641 of the General Statutes of 1889. The jurisdiction of this court is embraced in section 9 of chapter 96 of the Session Laws of 1895. The question of authority to review such rulings as this is very fully discussed in McCulloch v. Dodge, 8 Kan. 476, and cases therein cited. The material difference between that case and the case at bar is that in that case the order set aside a judgment by default, and permitted the defendant to answer, while in the case at bar the order set aside the judgment because it was rendered before the action regularly stood for trial. The plaintiff in error contends that this order is in effect an order granting a new trial.
We are of the opinion that this contention is correct if there has been an examination of an issue of fact in the action. “A new trial is g re-examination, in the same court, of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court.” (Gen. Stat. 1889, ¶"4401.) The effect of the order made in this case will be to grant the defendant a new trial, and, if there has been one trial, this will, be a re-examination of the issues of fact, therefore, a new trial. This is a matter within the knowledge of the trial court. If there has been an examination of the issues of fact in this case, the evidence was not brought to this' court, and the certificate of the clerk is that the record is a full and complete transcript of all proceedings in said case. If the record had affirmatively shown that evidence had been introduced and that an examination of the issues had been had, yet, we do not think this is such a granting of a new trial as would be reviewable until the final determination of the case in the court below. Paragraph 4401 id. sets forth the statutory grounds for a new trial, and paragraphs 4403, 4404 and 4405 id. set forth the manner of procedure to obtain it. The power to review an order of the district court that grants or refuses a new trial, as set forth in paragraph 4641 id., refers to new trials granted on such statutory grounds, and not to orders setting aside judgments because they were rendered before the action regularly stood for trial. An order setting aside a judgment because it is alleged to have been ■ rendered before the action regularly stood for trial is not reviewable by this court while the action is pending undetermined upon its merits in the court below.
If this order had been properly reviewable by us, we must nevertheless have dismissed this case for lack of jurisdiction. The record- discloses the fact that this is an action to quiet title to real estate, and, although not mentioned in the brief of either party, it nowhere appears what the value of the real estate is, or what the amount in controversy is. True, the answer of the defendant sets up a tax deed under which the plaintiff claims title, but the consideration thereof is only $94.75. The answer also sets up a sheriff’s deed under which the defendant claims title, but the consideration thereof is $2,300. Nor does the judge of the district court certify that this is one of the excepted cases, as is required by paragraph 4642 id.
This case will be dismissed at the costs of the plaintiff in error.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
Charles P. Kellogg & Co. commenced this action January 20, 1892, in the district court of •Dickinson county, against Edward E. Hazlett, on a debt not due, and had an order of attachment issued, under section 230 of the civil code. At the same time an affidavit was made and filed for a garnishee summons, on the ground that the defendant had not property liable to execution sufficient to satisfy the plaintiff’s demand. No bond, in addition to the undertaking in attachment, was given in the garnishment proceeding, but a garnishee summons was issued by the clerk of the court and certain persons summoned as garnishees. The order of attachment was not executed by a levy on any property of the defendant, for the reason, as stated in the sheriff’s return, that no property was found on which to make the levy. Thereafter, on motion of the garnishees, the court set aside and quashed the garnishee summons for the reason that it was issued ‘ ‘ without authority of law.” This ruling is assigned for error, and is the only question demanding the consideration of this court.
Can the plaintiff, in an action commenced on a debt not due, avail himself of the provisions of the statutes of 1889 relating to garnishment ? The answer to this question involves a consideration of the changes made in such proceedings by the statutes of 1889. Previous to that year a garnishee summons was issued as a mere aid to an order of attachment, and was only another method of attaching the defendant’s property. The affidavit and bond for attachment furnished the grounds and the authority for garnishment. Nothing more was required of the plaintiff except the showing that he had good reason to and did believe that the person or corporation to be summoned as a garnishee was indebted to the defendant, or had property belonging to him.' Whatever might be the ground laid in the affidavit for the attachment, it was the same ground which justified proceedings in garnishment. A summons in garnishment, like an order of attachment, could, under the statutes of 1868, be had in any civil action brought for the recovery of money, regard less of whether such action was founded upon contract or sounded in tort.. If it was an action for money, and the defendant was charged with conduct which operated as a fraud upon the plaintiff, the latter was afforded a remedy to obtain security for his claim either by a direct seizure of the property of the defendant, or by garnishing it in the hands of a third party. In 1889 the legislature made some radical changes. While the grounds for attachment and the proceedings therefor remain without substantial change, the remedy by garnishment before judgment is no longer available, except in an “action to recover damages founded upon contract, express or implied, or upon judgment or decree.” The statutory grounds for attachment do not authorize the issuing of a garnishee summons before judgment, the only ground therefor now being that the defendant '' has not property liable to execution sufficient to satisfy plaintiff’s demand.” Prior to 1889, fraud was the ground upon which garnishment proceedings were based; since then, it is sufficient that a defendant be merely unfortunate — that he has failed to accumulate property subject to execution. There is also, now, the further requirement, except when the defendant is a non-resident,
1 ‘ That the order of garnishment shall not be issued by the clerk unless an undertaking on the part of the plaintiff has been executed, ... to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of such garnishment, if the order be wrongfully obtained.”
The undertaking for attachment is no longer sufficient for both attachment and garnishment. Thus, garnishment has been made an independent provisional remedy instead of a mere aid to attachment. Each proceeding is based upon its own peculiar grounds, and supported by its own independent undertaking.
Does section 230 of the civil code authorize garnishment at the commencement of an action brought on a claim before it is due? The plaintiff in error contends that it does. That section reads :
“Where a debtor has sold, conveyed or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale, or conveyance, or disposition of his property, with such fraudulent intent, or is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts, a creditor may bring an action on his claim before it is due and have an attachment against the property of the debtor.”
The right to sue on a claim not due is purely statutory. In such a case, a cause of action does not exist independent of the statute. (Rullman v. Hulse, 32 Kan. 598; Wurlitzer v. Suppe, 38 id. 31, 34.) An action can therefore be maintained only as it is expressly authorized. To warrant such an action under section 230, two things must concur : (1) The disposal of property by the defendant, or his intention to dispose of it, with the fraudulent intent to cheat or defraud his creditors ; (2) the attachment of the defendant’s property. If the attachment fails, the action also fails. (Pierce v. Myers, 28 Kan. 364; Voorhis v. Michaelis, 45 id. 255.) If the writ of attachment be not served because there is no property to attach, it cannot be said that there has been an attachment in the case. The mere issuing of an order of attachment, without a levy being made, counts for nothing; the legal effect is the same as if an attachment had been actually made and after ward discharged. It must be observed that this statute does not authorize the commencement of an action on a debt not due upon the mere showing that the defendant has made, or is about to make, a fraudulent disposition of his property; the proceedings are permitted before the maturity of the debt only for a specific purpose — to have an attachment of the defendant’s property. For no other purpose and on no other conditions can such action be maintained. (Buck v. Panabaker, 32 Kan. 466.) The fact that a defendant may not have property subject to execution sufficient to satisfy the plaintiff’s demand has never, in this state, been made a ground for the commencement of an action on a debt not due. As garnishment is a special and extraordinary remedy, it can be used only at the times and upon the grounds expressly authorized by statute. The statutory conditions for its exercise are conclusive, and exclusive of all others. Garnishment is not now, as we have seen, merely incident to attachment; nor is a garnishee summons authorized by a fraudulent disposal of property by a debtor. It follows, therefore, as a necessary conclusion, that proceedings in garnishment are not authorized before judgment, in an action brought on a claim not due, even though proper grounds be laid for attachment.
Upon another ground, also, the decision of the lower court should be affirmed. The record shows that the requisite statutory bond was not given in the garnishment proceedings. This was a fatal omission. A summons issued without such bond should be set aside. (Ballinger v. Lantier, 15 Kan. 608; Rullman v. Hulse, 33 id. 670.)
There being no error apparent in the record, the judgment is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
The defendants in error have moved to dismiss this case, and object to its consideration on the ground that the record attached to the petition in error as a case-made was erroneously settled and signed, and should not be held to be a legal case-made. The decision of the court complained of was made October 9, 1891. The plaintiff in error was given 90 days in which to make and serve a case for the supreme court; the case-made was served on counsel for the defendants in error on December 4, 1891, and settled and signed January 4, 1892. On the hearing of the motion to dismiss, counsel for the plaintiff in error filed his affidavit showing that after the case-made was served upon the counsel for the defendants in error and after it had been examined by them it was returned to counsel for plaintiff in error, with the statement that it was correct, that they had no suggestion of amendment to make, and that they -were satisfied with it as served ; and that, relying upon such statement, the case was settled and signed before the time had expired for suggestions of amendment. No suggestions of amendment were at any time made, nor is there now any objection to the correctness of the case-made. This showing on behalf of the plaintiff in error is not disputed, and should be deemed a waiver of any irregularity in the time of settling the case. Matters touching the jurisdiction of the trial judge may be shown by extrinsic, evidence, the record itself failing to show necessary jurisdictional facts. (Jones v. Kellogg, 51 Kan. 263; Roser v. National Bank, 56 id. 129.)
The questions in this case arose in an action commenced March 31, 1887, in the district court of Dick inson county, by Haseltine against Gilliland and others on a note and mortgage executed in his favor by the Gillilands. Personal service of summons was made on the defendants in that county, ahd a judgment by default rendered June 1, 1887, for the recovery, on the note, of the sum of $1,512.50, and for the foreclosure of the mortgage and sale of the mortgaged premises after six months. On March 30, 1891, an order of sale was issued on said judgment, the premises sold to the plaintiff for $500, and return thereof made, in due form, to the court. At the May, 1891, term of the court, the Gillilands appeared and filed their motion to set aside the sale, for the reason-
“that the property sold is now, and has been since long before the rendition of the judgment in said cause, the homestead of said defendants, and that at. the time of the rendition -of said judgment the title to said premises was in the United States government, and that long after the rendition of said judgment said defendants made final proof under the homestead law of the United States and obtained title thereto. ’ ’
In support of this motion, evidence was introduced, over the objection of the plaintiff, the motion sustained, and the sale set aside. The objection to this motion and to the evidence offered in its support, we think, was well taken. The merits of the motion involved the validity of the mortgage. That was an issue presented by the petition filed in the case, and was confessed in plaintiff’s favor by defendants’ default. The judgment declaring the validity of the mortgage and adjudging the debt secured thereby to be a lien upon the premises had been in force and undisputed for nearly four years. The defendants had ample opportunity to defend in the action by pleading therein the .several matters set up in this motion.; and tlie plaintiff had a right to have such questions determined in the regular course of legal procedure, and by a formal trial in court. The ruling of the court permitted the defendants to avoid a trial when the issue was regularly and properly presented, and to dispose of the entire question affecting the right of the plaintiff to his lien upon the summary hearing of a motion. The law certainly does not contemplate any such procedure. It does not matter that the issue was not made, nor the question raised, in the case proper. It could have been made and determined therein. The defendants were challenged to it by the petition, and their default had the same legal effect as an actual appearance and trial. Parties are concluded not only by what has been actually litigated and determined in a case, but also by what, under the pleadings, might have been litigated and determined. (Hentig v. Redden, 46 Kan. 231; C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 id. 766; Sanford v. Oberlin College, 50 id. 342.) This rule should apply in any subsequent proceedings had in the same case, as well as in subsequent actions. The judgment of the court, once rendered, is conclusive of the rights of the parties respecting matters involved therein until it is set aside. (Elder v. Bank of Lawrence, 12 Kan. 242; Watson v. Voorhees, 14 id. 328.)
It is suggested that the record fails to show that this court has jurisdiction to review this case. We are of opinion that it sufficiently appears that the amount involved exceeds $100 and does not exceed $2,000, and this brings the case within the jurisdiction of this court. As the motion to set the sale aside was made upon only the one ground, it should have been over ruled and the sale confirmed, if otherwise regular and not subject to objection.
The order of the court is reversed, and the case remanded for further proceedings in accordance with this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
GiLiCBSOisr, P. J. :
This case has long been under consideration, not so much on account of any doubts entertained as to the legal principles involved, as to the difficulty in applying them to the circumstances of the case. To make this application, it has been necessary to carefully and thoroughly examine the constitution of the order, so as to place thereon a construction which will as near as' possible reconcile all its provisions and render them consistent and harmonious, and at the same time give force and effect to the plain terms of the application for and the certificate issued; and in this we have no little difficulty, for it is inartistically drawn — its meaning obscure, even apparently inconsistent and contradictory when the language used is only considered. Many things of vital importance are left to be supplied by conjecture, which, if they had been followed up, would have materially lessened our labor, and could have been understood at a glance. Such terms as “hereinbefore provided,” “hereinafter placed,” are used, without a word or even a reference thereto, either before or after, to show how it was provided or placed. The question we are called upon to decide may be reduced to this : Was Frederick A. Rose, at the date of his death, in default upon any assessment lawfully made against him? This we are compelled to answer in the negative.
The application for a beneficiary certificate (section 2, article 10) provides, among other things :
“I further agree, that the certificate to be issued thereon shall have no binding force whatever until I shall have taken the workman degree, and until countersigned by the master workman and recorder of Charity Lodge No. 155.”
Upon the certificate, and forming a part thereof, we find the following :
“We, the undersigned, master workman and recorder of Charity Lodge No. 155, do hereby countersign and attach the. seal of this lodge hereto, rendering this certificate valid and in full force, this'3d day of October, 1888. J. W. Barr, Master Workman.
“Attest: E. W. Wray, Recorder.”
[ Seal of Oliarity Lodge No. 155.]
Now, under the terms of the application, there are two things necessary to entitle Rose or his beneficiary to any insurance, viz., (1) the reception of the workman degree, and (2) the countersigning of his certificate, neither one of which, by itself, would be sufficient; they must both concur, and, until they do, the contract is not complete. True, negotiations have been had, but have they resulted in a contract? This, of course, depends upon the question whether the respective parties have come to an understanding upon all the elements of the contract, so that nothing remains to be done. There is a distinction between a contract of insurance or policy and an agreement to insure. The latter may, and in point of fact does, exist prior to the drawing up and delivery of the policy, and contemplates the delivery of the policy as the consummation of the contract. In general, where the policy provides that the countersignature of an agent is requisite to the validity of the policy, the countersignature must be had. . It is evidence of the completion of the contract. (1 May, Ins. (3d ed.), § 65; Prall v. Society, 5 Daly, 298; Noyes v. Insurance Co., 1 Mo. App. 584; Norton v. Insurance Co., 36 Conn. 503; Hardie v. Insurance Co., 26 La. Ann. 242; McClave v. Association, 55 N. J. L. 187, 26 Atl. Rep. 78; Nibl. Mut. Ben. Soc., p. 280, § 130; Badger v. Insurance Co., 103 Mass. 244.) In the last-cited case it was held : “A policy of life insurance which provides that it shall not be in force until countersigned by Ai P. B. is invalid until so countersigned.” The policy declared upon in this case contained the following provision : “Nor shall this policy be in force until it is countersigned by A. F. Badger, agent at Boston.” A. F. Badger, the agent at Boston, was the assured, and also the agent whose duty it was to countersign it. On his death the policy was found among his papers. Chief Justice Chaplin, in delivering the opinion of the court, said :
“He received the policy, had it in his power to make it a valid contract by countersigning, but he did not do this, and consequently the policy never became in force. We need not inquire into the motives of the company for inserting this condition, nor into Badger’s motives for neglecting to comply with it. It is sufficient that the company had a right to insert it and insist upon it.”
“ Certificates of membership” (as they are sometimes called) issued by mutual benefit associations are, in legal contemplation, policies of insurance, and the courts have, with great uniformity, treated them as such. (Assurance Fund v. Allen, 106 Ind. 593, 7 N. E. Rep. 317; May, Ins. § 550a, and authorities there cited.) Now, if we read in connection with the application that portion of section 2, article 10, which immediately precedes the form given for applications, viz. : “Each member, upon receiving the junior workman degree, and applying for the workman degree, shall make application for the rights and benefits of the order, in substance as follows,” etc. — we find that it is not necessary for the applicant to have received the workman’s degree, but merely to apply for it before he receives the certificate ; nor need he have received the certificate to entitle him to the degree. And section 5, article 10, bears us out in this construction, viz. :
“Upon application for a beneficiary certificate, duly approved by the grand medical director, as provided in section 2, article 3, of this article, the grand recorder shall immediately issue and forward the certificate ' to the subordinate lodge, where it shall be countersigned by the master workman, with the seal of the subordinate lodge attached, and attested by the recorder. The • certificate shall be then delivered to the member, and a record of the same be made in the books of the lodge, and he shall, from and after the date of receiving the workman degree, be entitled to all the rights and privileges of the order,” etc.,
Clearly showing that the certificate may be issued prior to the taking of the degree, but that both must occur before he becomes entitled to the benefit or liable to the burdens. And while the same section provides, “and he shall, from and after the date of receiving the workman degree, be entitled to all the rights and privileges of the order,” it does not say, nor can it be construed to mean, that either one alone made him a full member or entitled to all the rights and benefits, but strongly indicated that each one entitles him to some rights and benefits, and both together, entitle him to all. For instance, one who has taken the workman degree but not received a certificate would, we suppose, have the rights and privileges of meeting with the order, being instructed in the mysteries, given the signs, grips, and password, if any there be, voting at the meetings, etc. ; while he who has received the certificate and not yet taken the degree would only be entitled to the rights and privileges of a junior workman ; but when both prerequisites have met in one and the same person, then he would be entitled to all rights and privileges, including insur anee. It is therefore very clear to us that the rights of a member of a mutual benefit society are twofold : those which arise out of the contract of membership and those which arise under his contract for insurance. The corporate rights of a member are subject to the control of the corporation. His rights as an assured person rest on his contract of insurance with the society. (Rosenberger v. Insurance Co., 87 Pa. St. 207.) And this doctrine is recognized by the defendant in error, and the construction given by us to the constitution is upheld in its agreed statement of facts, article 7, which reads : " On the 31st day of August, 1888, Rose received the workman degree, and he became on that day a workman-degree member of Charity Lodge No. 155, so far as possible to become before receiving the beneficiary certificate.”
We find, by further reference to the constitution, that a valid certificate is necessary to charge the member with any liability. This distinction is very marked whenever the certificate is referred to. Section 5, article 10, provides that the identical fund out of which losses are paid is made up of sums received for each valid certificate, etc. Again, the same section provides that the'recorder shall forward, upon receipt of notice, " $1 for each valid certificate ” ; and section 9, article 10, provides that " the financier shall keep a book wherein all assessments of the beneficiary fund shall be entered against each member holding a valid certificate.” And much stronger is the language used in reference to the forfeiture. It expressly declares that only the holder of a certificate shall be liable to forfeiture, viz. : "Any member holding a certificate of the beneficiary fund having failed or neglected to pay said assessment into the beneficiary fund in his subordinate lodge shall forfeit all his rights under said certificate” — not, as contended for by defendant in error, that any member holding a certificate, or having received the workman degree, who shall fail or neglect to pay, shall forfeit. This, then, brings us to the question the answering of which determines the parties’ rights in this action. When did Frederick A. Nose become a full member of the order, the holder of a valid certificate, entitled to the benefits, and subject to assessment? The only answer that .can be given is.: October 3, 1888, the day the certificate was countersigned and delivered-to him, he having previously to this received the workman degree. This being true, it must necessarily follow that he was not liable to assessment No. 11 of 1888, (upon the death of Ií. B. Daniels, which occurred on September 8, 1888,) and made by subordinate lodge October 1, 1888. “Asociety has no power, in the absence of a provision therefor in its certificate or rules and regulations, to charge a member with losses arising prior to the membership.” (Nibl. Mut. Ben. Soc., p. 511; Evarts v. Accident Ass’n, 16 N. Y. Sup. 27.)
Now, let us for a moment examine the several provisions of the constitution which refer to or throw any light upon the subject of assessment. Section 3, article 10, provides :
“ Each, applicant, upon signing the aforesaid application for certificate, shall pay to the financier the sum of $2, ‡1 of which shall be lenown as the beneficiary fund, and shall be' placed as hereinafter provided, the remaining $1 to be forwarded by the recorder of the subordinate lodge to the grand recorder after the applicant has received the workman’s degree (the same to be placed in the grand lodge fund), together with the. aforesaid medical examiner’s report and application for certificate,” etc.
Howuthe $1 of the beneficiary fund is “hereinafter ” placed, we are unable to find any direct reference thereto, but if we read in connection therewith section 5, article 10, we find :
“Upon the death of any brother lawfully entitled to participate in the beneficiary fund as herein-before provided, it shall be .the duty of the subordinate lodge of which he was a member to officially notify by prescribed form of death notice the grand recorder, who shall on the first day of the following month notify each subordinate lodge in his jurisdiction, when the beneficiary fund on hand in each subordinate lodge (the same being $1 for each valid certificate, and such sums as may have been received for certificates renewed) shall immediately be forwarded to the grand lodge,” etc.
Now, mark the language : What is to be forwarded? There can be but one answer : “ The fund consisting of $1 for each valid certificate” ; not $1 paid upon application for certificate, but for each valid certificate; that is, a certificate properly countersigned and delivered to the applicant. And until the certificate is valid, the $1 paid upon application had no right to be placed in the beneficiary fund, nor has the subordinate lodge any right to forward it with the fund ; but, it should hold it to the credit of the applicant, to be distributed when the certificate became valid and subject to assessment, “as an advance assessment,” and this can be readily inferred from other portions of said section 3, article 10, supra, which provide for the holding of the other dollar paid at the same time until the applicant ha's taken the workman degree; and this is the only reasonable construction that can be placed upon the section, for the applicant may never take the degree, or, having taken it, never receive a valid certificate.
The subordinate lodge is usually the agent of the supreme lodge for the purpose of collecting assessments and transmitting the same, and a member who has paid the same to the subordinate lodge will be protected, although the money was never sent to the supreme lodge. (2 Am. & Eng. Encyc. of Law, 179; Erdmann v. Insurance Co., 44 Wis. 376; Schunck v. G. W. & W. Fond, 44 Wis. 369.) The case last cited was thorougly considered, having been twice before the court, and we think the principles therein declared apply with full force to the case at bar.
It is admitted in this case that Rose was not in arrears of dues, and also tliat he has paid into the subordinate lodge the sum of $5, i. e., on making his application, $1; on assessment No. 11, $1; on assessment No. 12, $1; on assessment No. 1, $1; and on assessment No. 2, $1; total, $5. But the grand lodge claims that he has not paid assessment No. 3, of $1, and, hence, that this certificate is forfeited. Now, if we charge him with what he is legally liable for, viz., on making application, $1; on assessment No. 12, $1; on assessment No. 1, $1; on assessment No. 2, $1; on assessment No. 3, $1; total, $5, we find that he has deposited or paid in sufficient to pay all that is required of him, and that the grand lodge has received every cent it is entitled to, and surely it cannot complain.
“When the money deposited by a member to meet future assessments was sufficient to meet all lawful assessments made before his death, he will not be in default by reason of the fact that the society used the money by applying it on assessments made prior to his becoming a member.” (Nibl. Mut. Ben. Soc., p. 511; Evarts v. Accident Ass’n, 16 N. Y. Sup. 27.)
‘‘Where a society had, under an illegal by-law, retained sick benefits due a member to an amount largely in excess of an assessment on the contract of insurance, it was held that such an assessment should have been paid out of the money so retained, and that a forfeiture for non-payment should not be declared.” (Nibl. Mut. Ben. Soc., p. 510.)
Now, let us look at section 8, article 10. It reads :
“And upon the death of any brother lawfully entitled to participate in the beneficiary fund as herein-before provided, it shall be the duty of the subordinate lodge of which he was a member to notify officially, by prescribed form of death notice, the grand recorder, who shall, on the first day of the following month, notify each subordinarte lodge in his jurisdiction, when the beneficiary fund on hand in each subordinate lodge (the same being $1 for each valid certificate, and such sums as may have been received for certificates renewed) shall immediately be forwarded to the grand recorder, and a record thereof entered upon the minutes. The issuance of the notice of assessment by the grand recorder, as hereinbefore provided for, shall constitute the making of an assessment of. $1, which must be paid to the lodge by each member holding a certificate or having received the workman’s degree (provided such member has received his certificate or workman’s degree prior to the date of the death on which the assessment is made). "Written or printed notices of assessment shall be sent through the mail or delivered in person by the financier, not later than the 8th day of the month in which the notice was issued by the grand recorder ; and not later than the 28th day of said month in which said notice of assessment was given, any "member holding a certificate of the beneficiary fund having failed or neglected to pay said assessment into the beneficiary fund in his subordinate lodge shall forfeit all his rights under said certificate. • Should two or more notices of assessment be received at the same time, the subordinate lodge shall immediately forward the beneficiary fund on hand, as hereinbefore provided, which amount shall pay one notice. On or before the 1st day of the following month, it shall forward to the grand recorder $1 for each valid certificate so held at that time under its jurisdiction for each remaining notice. Any subordinate lodge failing or declining to make returns as above, so as to insure their receipt by the grand recorder during the first week of each month, shall again be notified by the grand recorder, and said second notice shall be mailed to the master workman, the foreman, the recorder, and, if there be one, the district deputy of such lodge in arrears; and should such returns fail to be made within one week from the date of said second notice', all certificates under the jurisdiction of said lodge shall stand suspended until said returns are made.”
Reading this section in connection with other sections of the constitution, we think it must be construed to mean that the amount which the subordinate lodge is required to forward to the grand recorder, as the beneficiary fund on hand, is to be determined by the number of valid certificates in force at the time of the death on which such notice is issued, together with such additional sums as may have been received for certificates renewed prior to the date of the notice, and that the assessment made by such death notice is made upon and to be paid by all members -holding certificates at the date of the notice (the first day of the month following the death), and who had, prior to that day, received the workman’s degree ; but no member is liable to such assessment unless he had received his certificate prior to the date of the death and the workman’s degree between that date and the first of the month, or unless he had received the workman’s degree prior to the date of the death and the certificate after such date, but prior to the first of the month. We- adopt this as the only reasonable and consistent construction, even though it seems to be at variance with a strict literal meaning of some of the language used in section 8. This construction will give force and effect to the next clause of the same section, viz. :
"Any member holding a certificate of the beneficiary fund [on the first of the month in which they receive the subordinate lodge notice] having failed or neglected to pay said assessment [the one made by the lodge] into the beneficiary fund in his subordinate lodge shall forfeit all his rights under said certificate.”
This construction is upheld, and is in accord with the next provision of this section :
"Should two or more notices of assessments be received at the same time, the subordinate lodge shall immediately forward the beneficiary fund on hand, as hereinbefore provided, which amount shall- pay one notice. On or before the first day of the following month, it shall forward to the grand recorder $1 for each valid certificate so held at that time under its jurisdiction for each remaining notice.”
What time? The first day of the month following the one in which the assessment was made.
This case is peculiar in its circumstances, and the determination thereof depends upon the construction to be placed upon the constitution, and the application of general principles to it as a whole rather than to any single provision thereof. As we have said, the constitution is so inartistically drawn that it is difficult to give it a perfectly consistent interpretation. But upon the fundamental and controlling questions, (1) when said Rose became a member of the organization and subject to assessment, (2) whether Frederick A. Rose was in default at the time of his death, we are perfectly satisfied with the conclusion we have reached. Moreover, we have kept it in mind that it is a settled principle of law that forfeitures are not favored ; that they will not be enforced for the alleged violation of the provision of the contract when the provision which, it is claimed has been violated is susceptible of two constructions, unless the act or failure to act violates th,e provisions of the contract when given either of the constructions. ' And this rule has been adopted in Kansas :
“As in all other cases, forfeiture of the ■ insurance provided bjr mutual-benefit associations is not favored by the courts. They, in construing the conditions of membership when a forfeiture is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership.” (Modern Woodmen v. Jameson, 48 Kan. 718.)
And the weight of authority is to the same effect: Miner v. Benefit Association, 63 Mich. 338; Wiggin v. Knights of Pythias, 31 Fed. Rep. 122; Ballou v. Gile, 50 Wis. 614; Mason v. A. O. U. W., 30 Minn. 509; Burkland v. Insurance Co., 102 Pa. St. 262; Society v. Weatherly, 75 Ala. 248; Insurance Co. v. Hazelett, 105 Ind. 212.
And we doubt whether any rule of law is more fully established than this. And while courts should, and will, extend all reasonable protection to the insurers by allowing them to hedge themselves about by conditions and limitations intended to guard against fraud, carelessness, negligence, want of interest, etc., they will, nevertheless, enforce this salutary rule of construction, and take into consideration the fact that as the language of the conditions is theirs, and it is therefore in their power to provide for every possible case, and to make themselves understood with certainty, they are to be construed most strongly against them.
And if a question be equivocal, so that it is. susceptible of being answered in more than one way, and differently from different standpoints, it will not be open to the company, which prepared the question, to object that it is not answered in the true sense. (May, Ins. § 175.)
The judgment in this case will be reversed, and the cause remanded with instructions to render judgment herein in favor of Burnice A. Elliot, plaintiff below, in accordance with the views herein expressed.
All the Judges concurring.
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The opinion of the court was delivered by •
Gar ver, J. :
The controversy in this case is over the ownership of some wheat attached by the sheriff of Ellsworth county as the property of Robert McCall. Samuel McCall, defendant in error, claiming ownership by purchase from Robert McCall, his father, instituted this action against the sheriff for its conversion. Verdict and judgment were rendered in favor of Samuel McCall.
The land upon which the wheat was grown was owned by Robert McCall, a resident of Oklahoma, the premises being occupied by a tenant who farmed the- same for a share of the crop. Plaintiff relied upon a letter from his father as evidence of his purchase and ownership. Upon the trial, it was claimed that this letter had been mislaid or lost; and after the plaintiff testified concerning its receipt and his fruitless search for it, he was permitted to testify to its contents. It is argued at great length by counsel for plaintiff in error that the plaintiff was not a competent witness to testify upon these matters, and also that a sufficient showing was not made of the loss of the instrument to permit the „ introduction of secondary evidence of its contents. No legal reason is suggested, nor do we know of any, why a party to an action should be disqualified as a witness upon such matters. The statute itself answers the objection : “No person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise. . . .” (Gen. Stat. 1889, ¶4414.) No exception is made by the statute, and the plaintiff was as competent to testify to the loss of the letter and to its contents as to any other fact in the case — subject, of course, to his interest in the case being considered for the purpose of affecting his credibility. The evidence as to the search made for the letter was sufficient to justify the court in admitting secondary evidence of its contents. When asked to state what the letter contained, the plaintiff said:
‘ ‘As near as I can recollect it, I was to have the wheat. There was a mortgage on -the wheat of $60 or $65, and I was to pay off that mortgage, and have my money out of what was left.”
There is no other evidence in the case concerning the transaction between father and son which aids in the interpretation of the letter. The evidence shows that at the time it was written, about June 1, 1889, the wheat then being a growing crop, Robert McCall was indebted to his son in the sum of about $178, and that there was a chattel mortgage upon the landlord’s share of the wheat to a bank in the city of Ellsworth for $60 or $65. The value of the wheat remaining after the payment of the chattel mortgage was about $227. All communications between the plaintiff and his father concerning the wheat were by mail. What this correspondence was, except as to the one letter offered in evidence, does not appear. In fact, so far as there is any showing of a sale and transfer of the wheat, this letter stands isolated and alone. There is nothing in the surrounding circumstances, so far as shown, to enable one, with any degree of certainty, to determine the intention of the writer of the letter. The wheat, at the time the letter was written and up to the time when it was attached by the sheriff, remained in the exclusive possession of the tenant; no actual possession had been taken by Samuel McCall, nor any act of ownership exercised by him. Under such circumstances, as against an attaching creditor, the sale of the wheat is deemed to be void, unless it is affirmatively shown to have been made in good faith and upon sufficient consideration. (Gen. Stat. 1889, ¶3163.) It devolved upon the plaintiff to show, not merely the fact of the sale, but also that it was a sale made in good faith and supported by sufficient consideration. When we turn to the letter, the contents of which were presented to the court in such an unsatisfactory way, the transaction is shrouded in doubt. The testimony of the plaintiff was, at best, only his conclusion as to the meaning of the letter; it hardly pretended to be a statement of the substance of the contents. His answer, however, was allowed to stand without objection, and now must be considered as a substantial statement of what the letter contained. Accepting it thus, how does the matter stand? Nothing is said about a sale or transfer of the wheat; nothing as to the effect the transaction should have upon the indebtedness existing between the parties ; nor is there anything to indicate what may have been the writer's understanding as to those matters. The inquiry arises : For what purpose was Samuel McCall to have the wheat? Was it to be in the nature of a purchase or mortgage, or was it intended that he should only act as agent for Robert McCall to dispose of 'the wheat and out of the proceeds to pay the liabilities referred to? If there had not been sufficient wheat to pay both the mortgage and indebtedness to Samuel McCall, was Robert McCall to be released from any further liability on account thereof? Or, if there should be a surplus, as was the case, after paying these liabilities, who was entitled to receive it? The evidence leaves the answers to these several questions to mere conjecture and unfounded supposition. Before it can be said that there was a sale, it must appear that there was mutual consent to giving such effect to the transaction between the parties to it. If we turn to the record, the only other evidence materially bearing upon the transaction is contained in the following testimony given by the plaintiff:
“Ques. Was there any transfer from your father to you of any nature with reference to his interest in the wheat? Ans. Yes, sir.
“ Q. Was that by writing or by word of mouth? A. Writing.
“Q. Did you ever show it to anyone? A. Yes, sir, to you (referring to his attorney, Mr. Lloyd) and Aaron Alder son.
“ Q. Where was it written? A. In Oklahoma.
“Q. How did you receive it? A. By mail.
“Q. Had you written for it? A. I had. .
“Q,. Was you expecting it? A. I was; I wrote twice for it.”
It is very evident that the foregoing questions and answers furnish no aid whatever in construing the contents of the letter. Suppose a similar letter had been written to the tenant directing him to sell the wheat, first to pay the mortgage to the bank, and then to pay Samuel McCall out of what was left, what interest would the tenant have acquired? Certainly it would not have transferred the ownership to him as against attaching creditors. If it could be said that the letter was virtually a mortgage, the plaintiff would be in no better position, for the reason that it was not filed with the register of deeds of the county nor possession of the property taken. In any view we take of this letter, we are forced to the conclusion that it is not reasonable to base upon it alone a presumption that Robert McCall intended to make an absolute sale and transfer of the wheat. There being no dispute concerning the contents of the letter, and the meaning not being affected by surrounding circumstances, its proper construction was for the court, and not the jury. In many cases the facts and circumstances surrounding a transaction have an important bearing in determining the intention of the parties. But the language of this letter must speak for itself, and an effect cannot be given to it which the words used do not justify.
Some complaint is made by the plaintiffs in error because they were not permitted to show upon the trial that the premises upon which the wheat was grown were sold, pursuant to a judgment of foreclosure of a mortgage thereon, to the plaintiff in the attachment proceedings before the wheat was cut. We find no error in the ruling of the court in this respect. The evidence shows that the crop was matured at the time of the sale, and, under the authority of National Bank v. Beegle, 52 Kan. 709, it did not pass with the land. It would seem, also, that the plaintiff in attachment did not regard it as so passing, for the reason that he subsequently attached it as the property of the judgment debtor, and the defendants, below justified their talcing by reason of such attachment.
Because there was an entire failure on the part of the plaintiff below to show a sale and transfer of the wheat by Robert McCall to him in good faith, the judgment is reversed, and the casé remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Garvbr, J. :
Plaintiff, alleging that he is the owner and holder of a note and mortgage executed by Ephraim Sanford and Mary E. Sanford, his wife, in favor of the Guaranty Investment Company and transferred to the -plaintiff, brought this action, seeking a personal judgment against Sanford on the note and a foreclosure of the mortgage securing the same. The petition was filed April 18, 1892. S. N. Coder was made a party defendant, and answered, setting up title in himself by deed of conveyance executed by Ephraim Sanford, Mary E. Sanford being dead, subsequently to the execution of the mortgage, and alleged that the mortgage was invalid for the reason that at the time it was executed the land embraced therein was the homestead of the mortgagor, Sanford, and that the execution of the mortgage by Mary E. Sanford was void because she was, at the time, insane. The case was tried by the court and a jury upon the agreed theory that the plaintiff was vested with whatever rights any one could have under the note and mortgage, and that the only issues to be considered and tried were the homestead character of the land and the insanity of Mrs. Sanford at the time the mortgage was executed. Sanford admitted the execution of the note and mortgage, but denied the other allegations of the plaintiff’s petition, and alleged that the land mortgaged was the homestead of himself and family, and that his wife was insane at the time the mortgage purports to have been executed by her. The jury returned a general verdict and special findings of fact in favor of the defendants, upon which judgment was rendered against the plaintiff for costs.
Various errors are assigned by the plaintiff and urged upon this court, but Ave shall content ourselves with a consideration of only such of them as in our opinion require a reversal of the judgment complained of, passing by such questions as may not arise upon another trial.
Was the plaintiff entitled to judgment against Sanford on the note? The pleadings admitted the execution of the note and mortgage by Sanford, and no defense of any kind was set up to his liability for the payment thereof. True, the petition alleged the transfer of the note to plaintiff, and that he was then the holder and owner thereof; and, in the face of the general denial of the defendants, it devolved upon the plaintiff, in the first place, to prove the truth of this allegation of transfer and ownership. At the commencement of the trial, however, it was admitted that the note and mortgage had been transferred to the plaintiff, and the entire trial was conducted upon the assumption that whatever liability existed upon the note was to the plaintiff, and that he was also entitled to the benefit of any lien created by the mortgage. Without objection the defendants assumed the burden of proof, and the case was submitted to the jury by counsel and by the court upon the theory that the only question to be tried was as to the validity of the mortgage. Under these circumstances we cannot conceive how the jury could find generally against the plaintiff’s right to recover the amount due on the note, or why such a verdict should be sustained. In this there was not only manifest error but great injustice. The record shows that the note in question was executed by Sanford in consideration of a loan to him of $800 ; that he received the money, and that the whole amount thereof is due and unpaid. The only defense offered to defeat the recovery of this sum is that which aims to wipe out the security of the mortgage upon which the loan was negotiated. The. invalidity of the mortgage security, however, cannot affect the maker’s liability on the note.
The jury found that the land mortgaged was the homestead of Sanford and family at the time the mortgage was executed. The evidence upon this question is quite conflicting, and, in our opinion, clearly preponderates against tlie conclusions of the jury. The land was located near the town of Hill City, and had for some years prior to the making of this mortgage been occupied as a residence by Sanford and his family ; but, three or four months before November 1, 1888, the date of the mortgage, Sanford had removed from the land and taken up his residence in Hill City, where he continued to reside until some time in 1890, when his wife died. The defendant, Coder, purchased the land from Sanford about the time or shortly after the mortgage was made, and took actual possession early in 1889, but a deed from Sanford to Coder was not executed until about February, 1893, after the commencement of this action. About January, 1889, Sanford and wife executed a deed of conveyance of the land in which Coder’s mother was named as grantee. For some reason, not clearly disclosed, this deed was afterward either returned or destroyed.
Sanford claims, and testified on the trial, that his removal from the farm to Hill City was occasioned by the ill health of his wife ; that it was a mere temporary absence, and that he intended to return to the farm as soon as her health would permit. The evidence tends strongly to show that prior to November 1, 1888, there was an understanding between Sanford and Coder that Coder would buy the farm for the price of $1,200, and that the obtaining of this loan of $800 by a mortgage of the land was a part of the arrangement, so as to require Coder to pay only the additional sum of $400. The homestead idea seems to be largely an afterthought, and is brought forward at this time for the purpose of avoiding the collection of this debt, an object entitled to no equitable consideration. However, under well-established rules,. whether the homestead claim should be- sustained in any particular case is a mixed question of law and fact, and, upon conflicting evidence, the facts must be determined by the trial court or jury. To have the homestead character, the land must be “occupied as a residence by the family of the owner." When occupancy is actual no difficulty usually arises ; but when it is merely constructive, as in this case, it is a question largely of intention on the part of the owner. Apart from the claimant’s own testimony, this intention must be judged by the facts and circumstances surrounding the removal from the homestead, and the apparent object and conditions of the subsequent residence elsewhere.
Having determined the homestead question in favor of the defendants, the jury further found that Mary E. Sanford, the wife, was insane at the time she signed the mortgage, and that the plaintiff had knowledge of that fact when he became owner thereof. The finding of the jury as to the plaintiff’s knowledge of the insanity was set aside by the Court, and an answer-substituted for it to the effect that there was no evidence to show whether he had such knowledge or not. Error is assigned upon this action of the court in setting aside a finding of the- jury and substituting one of its own. As this case was submitted and tried, we think the court was not concluded by either of the findings of the jury. There was no issue submitted to the jury upon the right of the plaintiff to recover a money judgment. They were simply asked to pass upon the validity of the mortgage. Neither party could demand, as a matter of right, a jury trial for the determination of that question; and when an issue of that character is submitted to a jury, the answers returned to special questions may be accepted by the court as merely advisory, to be approved or set-aside as the court may deem proper. (Woodman v. Davis, 32 Kan. 344; Stickel v. Bender, 37 id. 457; Franks v. Jones, 39 id. 236.) In this case, the court, with great propriety, might have exercised the same authority with reference to other findings of the jury which are inconsistent with each other, and some of them clearly against the weight of the evidence.
It is further claimed that the court erred in admitting incompetent testimony upon the question of the alleged insanity of Mrs. Sanford. No inquisition had ever been had as to her insanity, and this fact was left for determination by the jury solely upon the testimony given by the witnesses upon the trial. Sanford testified that she was insane and wholly unable to comprehend or to understand any business transaction at the time the mortgage was signed by her. Other non-expert witnesses testified to an acquaintance with her and expressed the opinion that she was insane. Some of the witnesses testified to seeing her several times during the period of three or four years prior to her death in 1890, and gave it as their opinion that she was insane, without designating any particular time when, in their judgment, such insanity existed, and without attempting to state a single fact, circumstance or act indicative of her mental condition. Even Sanford does not pretend to mention a single act or word of his wife which would suggest an unhealthy or abnormal mental state, or which he claimed to have led him to consider her insane. She was sick and weak physically, at times being almost helplesss. About June or July, 1888, Sanford, with a view of benefiting his wife’s health, took her on a trip to Utah and was absent for some weeks. After their return and removal to Hill City, a married daughter was with them much of the time. Sanford and Mrs. Sanford signed the note and mortgage together, in the presence of the notary public. The notary testifies that he explained the mortgage to her ; that she seemed to understand what it was, and that he saw nothing out of the way or unusual in her conduct or actions, except that she .was weak physically and needed assistance in moving about the room. The jury were undoubtedly influenced to find that Mrs. Sanford was insane, largely, if not entirely, by the testimony of the witnesses who came before them and said that they knew her, and that in their judgment she was insane, without 'the statement of any facts or circumstances as a basis for such opinions. Such testimony is not admissible. Before the opinions of non-expert witnesses should be received on such a question, they should disclose not only their opportunity for observation, but should also state the facts which they observed and which are the basis of their opinions. (Baughman v. Baughman, 32 Kan. 538; Grant v. Thompson, 4 Conn. 203; Clapp v. Fullerton, 34 N. Y. 190; Rambler v. Tryon, 7 S. & R. 90; Pidcock v. Potter, 68 Pa. St. 342; Insurance Company v. Lathrop, 111 U. S. 612.) The mere opinion of a non-expert witness upon a question of sanity or insanity is, at best, of very uncertain value. When it is unaccompanied by a statement of facts which would enable the trial court or jury to judge of its correctness, and the weight to be given to it, it should not be permitted to rise to the dignity of competent evidence in any case. It can only tend to mislead or to confuse the jury and has no proper place in the just and legal determination of personal or property rights.
The judgment will be reversed and the case remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Cole, J. :
This was an action brought in the district court of Finney county by M. B. Hundley against the board of county commissioners of Finney county upon an alleged, contract. The cause was tried by the court upon an agreed statement of facts, from which statement it appears that Hundley was, during the month of January, 1889, and for some time prior thereto had been, the owner and publisher of a weekly newspaper printed and published at Garden City, in said county, which paper was called The Finney County Democrat; that on the 24th day of January, 1889, said Hundley appeared before the board of county commissioners of Finney county, at a regular session of the board, and requested that the said paper be designated as the official paper of said county for the year 1889, and that he be awarded the county printing for said year. This, proposition,was reduced to writing, and, as appears, by the minutes of the board of said day, a resolution was passed awarding the county printing for that year at legal rates to The Finney County Democrat. It further appears from the agreed statement of facts that Hundley was notified by the chairman of the board and one of the other members of said board of the action which had been taken ; such notification ■was oral, and given at the place of meeting of the board, and no other action was taken by the board in the matter of county printing on that day. On the succeeding day a motion was carried to reconsider the motion of the board taken on the previous day with regard to the designation of the official paper, and said Hundley was present and objected to such reconsideration. On the 8th day of February, 1889, the board being duly in session pursuant to an adjournment had on the 25th day of January, amotion was carried that the county clerk be directed to notify the different publishers of Garden City that sealed bids for county printing would be received up to 2 o’clock of that day, and, pursuant to that order, the clerk notified said publishers, and the bids were presented in accordance therewith. Hundley declined to enter into competition with the other publishers, and continued to claim that he was entitled to the county printing under the former resolution of the board. On the 8th day of February, pursuant to a motion previously carried to let the county printing to the lowest bidder, the.printing was given to The Sentinel. It also appears from the agreed statements of facts that Hundley published in The Finney County Democrat the matter necessary and proper to be published in the official paper of said county during the year 1889, filed proper proof thereof in the office of county clerk of said county, and duly presented his sworn vouchers for the publications sued for in his petition before bringing this ac tion, and that his demand for payment was rejected by said board. It also appears that the account sued upon by Hundley, so far as the items and publications are concerned, is correct, at the maximum legal rate, and that the publications charged for are all matters proper and necessary to be published by the county official paper, except an item of $70. Upon this agreed statement of facts the court rendered judgment for the board of county commissioners, to the entering of which judgment, as well as the overruling of a motion for a new trial, Hundley duly objected and excepted, and brings the case here for review.
It is contended by the plaintiff in error that when the written proposition of Hundley had been made and accepted by the board a contract had been completed, and that no future action of the board, even if taken at the same meeting, could change his rights under the contract, and that therefore he had a right to publish the matters necessary to be published for the county, and bring his action for publishing the same at the maximum rate. Paragraph 1655, General Statutes of 1889, gives the board of county commissioners of each county in this state exclusive control of all expenditures in connection with the county printing, and if a contract was made by the board and no rate specified, there can be no doubt but that the recoveiy could be had at the legal rate, the same as a party might recover the maximum legal rate of interest allowed upon a promissory note where no specific contract had been made for a greater rate. It is the general rule that corporate bodies, unless clearly restrained by legislative enactment, have the right to reconsider a vote as often as they see fit, provided vested rights be not disturbed, up to the time when, by a conclusive vote accepted as such by itself, a de termination lias been reached, and when they adopt rules as to the time when reconsideration may be moved. In the case of Higgins v. Curtis, 39 Kan. 283, our supreme court held under this rule that, in the absence of proof to the contrary, a reconsideration of its action taken on any former day of the same session, on any matter before the board of county commissioners, will be presumed' to have been done in conformity with its rules and regulations. Applying this rule, and the views expressed in the above-cited case, the presumption arises in this case that the reconsideration was had and the subsequent action taken, in the matter of county printing, in conformity with the rules and regulations of the board of county commissioners of Finney county. Such being the case, when Hundley made the proposition, on the 24th day of January, he did so with notice that its acceptance was subject to reconsideration at any time during that session of the board, or at least until some action had been taken by the board which demonstrated that it did not intend to reconsider the matter. He could not have been materially damaged by the subsequent action of the board, for it was taken immediately, and with notice to him. This, however, would be no good reason why he should not recover what he would be legally entitled to, if a contract actually existed. We are, however, of the opinion that the board had a right to reconsider the action taken by it on the 24th day of January. But conceding for a moment that a contract existed, what would be the nature of the action which must be brought by Hundley to permit the recovery under the facts in this case? Whatever matter he printed wras not so printed under the contract, for that had been rescinded by the board, and he received none of the matter published from the board or any of the officers of Finney county. The action, if one existed at all, was not upon contract, which the board absolutely refused to carry out, but was for any damage he might haye sustained by reason of the failure of the board'to perforin its part of the contract.
We are of the opinion that no error was committed in this case by the trial court, and the judgment will therefore be affirmed.
All the Judges concurring.
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Per Curiam:
This was an action of ejectment, brought March 18, 1889, by one James Blood, to whose rights the defendants in error were afterward substituted, in the district court of Douglas county, to recover certain real estate, the title to which was claimed by the plaintiff under a tax deed. The court held the tax deed to be invalid, but allowed judgment to the plaintiff for taxes paid by him and interest thereon, as provided by statute. From this judgment the defendant (plaintiff in error) appealed to the supreme court, where his petition in error was filed August 22, 1891, and the case was subsequently transferred to this court for hearing.
Defendants in error have presented a motion, supported by affidavits, to correct what is alleged to be a clerical error in the case-made, by so changing the recitals thereof as to show that the tax deed introduced in evidence in the court below, as the plaintiff’s evidence of title, was recorded March 19 instead of March 9, 1887, as the record now states. The evidence presented on the motion is not disputed, and shows quite clearly that in the preparation of the case-made, through some error or mistake in copying the indorsements on the tax deed, the date of the recording of the deed was stated to be March 9, 1887, when the actual date, as shown by the certificate of the register of deeds indorsed on the original deed which was introduced upon the trial, was March 19, 1887. Counsel who now appear f<jty’ plaintiff in error do not deny that this clerical error was made, but insist upon standing by the record as it is, and object to any correction being made by this court. In the face of such objection, it is probably true, at least in the absence of any showing of fraud, that the case-made must be accepted by this court as it was settled and signed by the trial judge. It is not within the province of an appellate court, in this manner, to revise and alter a bill of exceptions or case-made, upon an allegation of error and mistake therein committed by the trial judge, who is made by statute the exclusive judge of what should be inserted to make a true record. (Shepard v. Peyton, 12 Kan. 616; M. K. & T. Rly. Co. v. City of Fort Scott, 15 id. 435; Building Asso ciation v. Beebe, 24 id. 363.) At the same time, mere clerical errors should, as far as possible, be disregarded in all judicial proceedings. When errors do inadvertently get into a record, no attorney is justified, either in law or in morals, in deliberately seeking an unfair advantage by reason of them; and in any such attempt, especially when made by a party responsible for the mistake, no favor or encouragement will be given by this court, nor avoidable opportunity afforded for success by such practices.
On examination of the brief of plaintiff in error filed in this case, w.e find no questions presented that were before the ferial court; the only matter now urged for a reversal of the judgment being, that the action cannot be maintained because it was barred by the two-years statute of limitations. Had the facts appeared in the lower court as they do here, this statute, if properly pleaded, would have furnished a complete defense to the action. The alleged error in the record, as to the date of the recording of the tax deed, furnishes the only basis for this contention; and this court is asked to reverse the judgment for a reason which does not exist in fact, which was not in the case in the court below, and which would not be here but for a misstatement of fact for which the plaintiff in error himself is responsible.
To meet this situation, counsel for the defendants in error move to dismiss the case for the reason that the plaintiff in error has not made service of his brief as required by the rules of this court. It is admitted that the brief of plaintiff in error, now on file in this case, was not served on the defendants in error, or their counsel, until some days after the time required by the rules of this court. This case has been pending in the supreme court and in this court over four years; it was on the docket for hearing in this court at the last June term,_ and was continued until the present term, and now it is found not ready for submission. No valid excuse has been presented for this apparent neglect and delay. .The rules of this court with reference to briefs, both as to their form, subject-matter, and time of service, were adopted for the purpose of affording to the court and counsel the fullest opportunities and the best means for the consideration and disposition of cases. These rules should be regarded by the attorneys having business before the court as something more than mere suggestions to be observed or disregarded at their pleasure ; and a failure to comply with their plain requirements on the part of a plaintiff in error, without adequate excuse, is sufficient reason itself for affirming the judgment or dismissing the case.
But, even taking the record as it is, we think the judgment must be affirmed. The pleadings consist of a petition containing general allegations of title and right of possession, without stating how the title was derived, and was such a petition as was sufficient under the statute. (¶4698, Gen. Stat. 1889.) The answer of the defendant was simply a general denial. Neither in the pleadings, nor in any of the objections or motions made by the defendant below, nor in any of the proceedings of the trial, was there any reference to the time that elapsed between the recording of the tax deed and the commencement of the action, nor a suggestion that the action was barred. It is well settled that if a statute of limitations is relied upon by a defendant to bar the prosecution of an action against him, such statute must be specially pleaded, unless it appears upon the face of the plaintiff’s petition that his cause of action is barred. If such question is not in some way presented by the pleadings and properly presented to the trial court, any defense based upon the statute of limitations will be deemed to have been waived. (Parker v. Berry, 12 Kan. 351; Chellis v. Coble, 37 id. 558; Head v. Daniels, 38 id. 1, 5.) So that, even if we accept the record as it now stands, and give full consideration to all that counsel urge in their brief, we are of opinion that nothing is presented which authorizes a reversal of the judgment.
It is only just to state that Messrs. Riggs & Nevison, who were attorneys for the plaintiff in error in the lower court, seem to have no connection with the case in this court.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court ivas delivered by
Gilkeson, P. J. :
This action was brought in the district court of Riley county by Peter Tyson to recover of J. M. Myers various items of personal property, consisting of a stock of agricultural implements, horses, wagons, buggies, and harness. Myers ivas at the time of the commencement of the action sheriff of Riley county, Kansas, and had levied upon the property in controversy by virtue of a writ of attachment issued out of said district court in favor of the St. Joseph Plow Company against the firm of Leach & Tyson, a copartnership consisting of Thomas Leach and P. B. Tyson. Prior to the issuance of the writ, Leach & Tyson had been engaged in business in Randolph in the sale of agricultural implements. The members of said firm, Thomas Leach and F. B. Tyson, were respectively the son-in-law and son of Peter Tyson, plaintiff in the court below. The plaintiff claimed to have purchased the articles of personal property from Leach & Tyson before the levy was made, and was therefore the owner and entitled to the immediate possession thereof. The defendant, acting under the instructions of the St. Joseph Plow Company, upon this suit being brought, gave bond and retained the property, claiming that the sale and transfer by Leach & Tyson to the plaintiff was a fraud on the rights of the defendant and other creditors, and was therefore void. The case was tried by a jury and a general verdict rendered for Peter Tyson, plaintiff below. Motion for new trial was filed and overruled. No special findings were asked by either party or returned by the jury.
Myers brings the case here for review, alleging error in the giving of certain instructions to the jury and in overruling the motion for new trial. The record discloses that for some time prior to the sale to Peter Tyson, which occurred about the 15th day of October, 1890, the firm had been in business in Randolph, and the management thereof had been principally with the partner Leach, Tyson having been engaged in other pursuits ; tb at as a firm and individually they had borrowed money from Peter Tyson, and their indebtedness to him up to the time of the sale had not been paid ; that at about the time this sale was made, or shortly before, the firm, being satisfied' that they could not meet all their obligations, concluded to make a preferred creditor of Peter Tyson, and made a proposition to him to buy their stock of implements, offering to sell the same to him for the sum of $500, which offer was by him accepted. Whether all the property sought to be recovered in this action was included in the sale or not, we are unable to tell from the record, as all of the testimony upon that proposi tion is not preserved, as it is shown that a bill of sale was given, together with an inventory, .neither one of which is incorporated in the record. That is also the case with reference to a certain receipt passed between the parties to the transaction, which was, offered in evidence, but no record thereof made. The value of the property claimed, as shown by the petition, is $963.89, and there is testimony tending to show that some of this property was purchased prior to the date of the sale, so that the testimony shows that the property sold by the firm to Peter Tyson was worth $829.89 ; that the amount agreed upon for the sale of this property was $500, and was paid by surrendering to the firm their note for $300 and giving to them a note for $200 due one day after date ; that this note of $200 was paid by the .cancellation of certain indebtedness of the individual members of the firm, viz., Frank B. Tyson’s indebtedness, $100, Leach’s indebtedness, $200, making the consideration about $600 instead of $500 ; that the indebtedness of the firm to other parties was about $1,500 ; that at the time the sheriff levied upon and took these goods into his possession they were in the possession of Peter Tyson, and the key to the house, or store, in which they were situated was in his possession; that Peter Tyson knew that the firm owed some debts, but there is no evidence to show that he knew the amount or to whom they were owed ; any information that he had on this subject was merely general.
The plaintiff in error complains of the giving of a certain instruction by the court, No. 8, which reads :
“I further instruct you, that if you believe from the evidence that the plaintiff came into the possession of the property in controversy by a sale, or sales, made in good faith and for a sufficient consideration, in payment of an honest debt or debts owed to him by F. B. Tyson and James Leach jointly, or individually, or both, without any knowledge of fraudulent intent on their part (if in -fact such intent existed), was in possession of said property, either in person or by agent, before the defendant levied upon the same by virtue of a writ of attachment under which he claims the right of possession thereto, then jmu should return a verdict for the plaintiff,”
And insists that the rule is: “Partnership creditors have a priority over the separate creditors of individual partners in the payment out of the partnership property, and have a quasi lien upon the property to enforce such payment.” We cannot concur with counsel upon this proposition.
‘ ‘ While the firm is in existence its property may be sold by either partner, and will be followed by no claim, in law or equity, by the creditors of the firm if sold to the purchaser in good faith. ■. . . The law does not provide that partnership debts may be first enforced against the joint property of the firm in preference to the individual debts of the partner, on the ground of any equity held by the creditors, but this relief is granted to tfie creditor on account of the equities of the partners, each one of them having the right to demand that the firm property shall be devoted to the payment, of the firm debt, and shall be first exhausted before the individual estates are taken.” (King v. Sutton, 42 Kan. 600.) See, also, City of Maquoketa v. Willey, 35 Iowa, 323.
In Woodmansie v. Holcomb, 34 Kan. 35, Mr. Justice Johnston, in delivering the opinion of the court, says :
“ While it is true as a general rule that, as between partners, and also as between firm and individual creditors, the partnership debts have priority over individual debts as against partnership property, yet the simple contract creditors of a partnership have no lien upon its property until it is acquired by process of law. They have what has been termed a quasi lien, but this arises and is derived solely through the equitable lien of the partners. Each partner has the right to have the firm assets applied in the discharge of the firm liabilities, and to the payment of whatever may be due him when the firm indebtedness is discharged and the partnership closed up. This equitable claim of the partners may in many cases, with the assent of the partners, be made available to the creditors, but as no such claim or equity exists in the creditors independent of the partners, a bona fide transfer of the partnership property, made with the consent of all the partners, places it beyond the reach of the firm creditors.” '
In support of this he cites Story on Partnership, § 258. While the partnership remains in existence and is solvent, we think it has the right, with the consent of all its members, upon a bona fide consideration, to sell and transfer the firm property in payment of the individual debt of one of the firm. No such circumstances about the transaction can be held to be a fraud upon the firm creditors. The decisions of the courts have gone further than this, and although not unanimous, the weight of authority seems to be that mere insolvency, where no actual fraud intervenes, will not- deprive the partnership of its legal control over the property and its right to dispose of it as it may choose, and where the separate creditor purchases from the firm in good faith (and individual indebtedness is a fair price for the property purchased), such purchase cannot of itself be held fraudulent as against the general creditors of the firm. (Sigler v. Knox County Bank, 8 Ohio St. 511; Schmidlapp v. Currie., 55 Miss. 597; Case v. Beauregard, 99 U. S. 119; National Bank v. Sprague, 20 N. J. Eq. 13; Wilcox v. Kellogg, 11 Ohio, 394; Gwin v. Selby, 5 Ohio St. 96; Allen v. Center Valley Co., 21 Conn. 130; Rice v. Barnard, 20 Vt. 479; Haben v. Harshaw, 49 Wis. 379; White v. Parish, 20 Tex. 688; Schaeffer v. Fithian, 17 Ind. 463; McDonald v. Beach, 2 Blackf. 55; Ruffin, ex parte, 6 Ves. 119; Whitton v. Smith, 1 Freem. Ch. 231; Freeman v. Stewart, 41 Miss. 138; Potts v. Blackwell, 4 Jones [N. C. Eq.], 58.)
We do not think tliat the court erred in giving this instruction. We have carefully examined the record and evidence submitted at the trial of this case, and even were it admitted that there was any fraudulent intent upon the part of Leach & Tyson as against their creditors, Peter Tj^son did not participate therein, or have the slightest knowledge thereof, and in cases of this kind, where the sale made is alleged to be fraudulent, there must be participation in the fraud on the part of the grantee, or at least knowledge of the intended fraud of the grantor must be shown, or the sale will be upheld. This is the doctrine laid down by the supreme court of this state, and we cannot say that.any prejudicial error was committed at the trial. There was evidence submitted tending to prove every material fact found by the jury that authorizes the verdict that was returned, and the question having been passed upon by the jury, and its findings approved by the trial court, this court cannot disturb the judgment. We must hold, in accordance with the established princijfies and repeated decisions, that the general finding and judgment include every material fact necessary to sustain such judgment, and that in legal contemplation there is a finding by the jury that the sale of the property in question was made in good faith, upon a sufficient consideration, and that Peter Tyson was a bona fide purchaser thereof and entitled to its possession. ( Weil v. Eckard, 37 Kan. 700; Morris v. Trumbo, 1 Kan. App. 156.)
The judgment in this case will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
In an action commenced January 6, 1891, in the district court, and afterward transferred to the circuit court of Shawnee county, by R. I. Jones against J. J. Lawrence et al., for the recovery of money alleged to be due the plaintiff on contract, the plain tiff in error, The Kansas Investment Company, was summoned as garnishee. The garnishee answered, denying any indebtedness to Lawrence, and also denying that it had possession or control of any property belonging to him. Upon this answer issue was joined by the plaintiff, which was tried by the court on August 29, 1891, and judgment rendered against the garnishee for the sum of $279. This decision is assigned as error, and is the only matter presented for review by this court.
It is elementary law that proceedings in garnishment do not place the plaintiff in the action in a more favorable position for the enforcement of a claim against the garnishee than was the defendant at the time the summons in garnishment was served. The service of- the garnishment summons operates as a conditional assignment to the plaintiff of any claim which the defendant might have against the garnishee, without otherwise affecting the legal relations or liabilities of the parties. Any matter which the garnishee could urge as a defense to an action brought by the defendant will be equally efficient when interposed in a proceeding in garnishment. (Lumber Co. v. Trust Co., 54 Kan. 124; Drake, Att. §§458, 672.) Applying this rule to the facts in this case as they are disclosed by the evidence, without substantial dispute or controversy, it is clear that the garnishee is not liable. Its answer and supplemental answer, as well as the other evidence introduced upon the trial, show that, in September, 1889, J. J. Lawrence negotiated with the investment company for the loan of $3,600, for which he gave his four separate notes and mortgages upon different properties in the city of Topeka for the sum of $900 each, due in five years, with semiannual payments of interest. The money was loaned upon, the security of the mortgaged premises with a view to the completion of improvements then being made thereon, and with the distinct understanding and agreement that the money was to be paid out therefor by the investment company from time to time, as the construction of the buildings progressed. At the time the garnishee summons was served, the investment company had paid out in the agreed manner all of the said money except $279. Lawrence had failed in his undertaking. The buildings were abandoned in an unfinished condition, and remained so at the time of the trial, so that, as found by the court, it would require more than $500 to complete them in the manner contemplated when the loan was made. The investment company clearly had a right, under these circumstances, to hold the balance of the loan for the purpose of being used in the completion of the buildings, or as an indemnity against loss from the failure of Lawrence to fulfil the contract on his part. The fund was for a special use, and not subject to garnishment. (Lumber Co. v. Trust Co., supra.)
It also appears that three of the $900 notes and mortgages had been transferred by the investment company, with a guaranty of payment, to other parties ; that Lawrence failing to pay, the interest as it matured was paid, according to its guaranty, by the investment company, which was, at the time of the filing of its supplemental answer as garnishee, as set up in such answer, and as shown by the undisputed evidence introduced upon the trial, the holder and owner of the coupons representing such payments of of past-due interest to an amount exceeding $279. These were all matters connected with and growing out of the very contract under which it was claimed tlie investment company owed the $279 to Lawrence, and it cannot affect the question that some of the payments of interest may not have been made until after the service of the garnishment summons.
Under these circumstances, we cannot perceive on what theory it can be held that a creditor of Lawrence can enforce the payment by the investment company of the $279, the amount unpaid on the loan, in order that it may be applied on a claim which such creditor may have against Lawrence. It is too plain for argument that Lawrence himself could no.t do so without making good his own contracts and obligations to the investment company. The creditor stands in no more favored position.
Counsel for the defendant in error raises the objection that the record does not show that it contains all the evidence introduced upon the trial. We think, however, that it fairly appears that it is a full and complete record, so far, at least, as the evidence is concerned, and that everything that could have a legitimate bearing upon the result of the trial is before us.
The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This action was originally commenced before a justice of the peace of Wolf River township, in Doniphan county, 'and was subsequently taken upon, appeal to the district court of said county. In due time the case was regularly called for trial, and a witness was sworn to testify in behalf of plaintiffs, whereupon the defendant objected to the introduction of any evidence in the case, upon the ground that the plaintiffs’ bill of particulars did not state facts sufficient to constitute a cause of action against the defendant. The objection was sustained, and judgment was thereafter rendered against the plaintiffs for costs. They have brought the case to this court for review, and the question for our determination is as to whether or not the court erred in its ruling on the objection to the introduction of any evidence in behalf of the plaintiffs, and this question is fairly presented by the record.
The plaintiffs’ bill of particulars alleges that the plaintiffs are, and have been for more than two years prior to the commencement of this action, attorneys at law, with full power and authority to practice in all the district and inferior courts of Kansas ; that the defendant and one Alice Kauts are, and for more than 10 years last past have been, husband and wife ; that on the 18th day of April, 1890, the defendant and the said Alice Kauts were living separate, and not as husband and wife ; that defendant had possession of all the personal property of his said wife, amounting in value to several hundred dollars, which he withheld from her, and appropriated to his own use; that the defendant refused to live or cohabit with his said wife as her husband, and had long prior to the 18th day of April, 1890, refused to permit her to live with him, or occupy their homestead, but rented out the same without her consent, and appropriated the rents thereof to his own use, and left her in destitute circumstances, and because of her ill health she was unable to provide herself with the necessaries or comforts of. life, and was dependent upon the charity of friends for maintenance and support ; that the defendant had for a long time theretofore been guilty of extreme cruelty to her, and was an habitual drunkard ; that the defendant was the owner of certain real and personal property in addition to their said homestead, in said Doniphan county; that on the said 18th day of April, 1890, she employed the plaintiffs, on the credit of the defendant, to bring an action against him for a divorce and for alimony, and that on said day they did bring such action in the district court of Doniphan county, and thereafter, on due notice to the defendant, procured an order from the judge of said court for the payment by defendant of temporary alimony for the support and maintenance of his said wife during the pendency of said action, which order also provided for the payment by the defendant to the plaintiffs herein the sum of $50 as attorneys’ fees suitably to prepare said action for trial; that defendant refused to pay the greater part of said temporary alimony, and refused to pay the said $50 attorneys’ fee so allowed by the court, or any part thereof, and that such proceedings were thereafter had in said action that the defendant was committed to the jail of said county by the said court for refusing and neglecting to comply with said order ; and that, while defendant was confined in said jail under said commitment, at the solicitation of the defendant, the said case was settled, and, agreeably to the terms of settlement, the said suit was dismissed at the cost of the defendant, and he was adjudged by the court to pay all the costs and expenses of the litigation in that action, and his wife was adjudged to be the owner of certain personal property which was therein ordered to be turned over to her. The plaintiffs further allege that it was necessary to perform said legal services and to bring said suit for the protection of, and to secure to, the said Alice Kauts her rights, and therein to obtain said order for the payment of temporary alimony for her support, and the allowance of said attorneys’ fees to insure a sufficient preparation of her case, and that said services were reasonably worth $100, and were rendered on the exclusive credit of the defendant ; that the plaintiffs had paid out for railroad fare and hotel bills, which were necessary in performing said services, the sum of $10, and that defendant is indebted to the plaintiffs in the sum of $110 with interest, and that the same is just, due, and wholly unpaid ; wherefore they pray judgment.
The defendant in error insists that the plaintiffs’ bill of particulars fails to state facts sufficient to constitute a cause of action against him, as it does not allege that Mrs. Kauts was authorized by him to make any such contract with the plaintiffs in error and to bind him to pay for services rendered in her behalf in the divorce suit; and that such services cannot properly be classed as necessaries for the payment of which she could pledge her husband’s credit; that attorneys’ fees for services rendered his wife in a suit brought by her for a divorce, where the suit is subsequently compromised and dismissed, cannot be recovered in an action against the husband; and that, as the bill of particulars shows on its face that an order for attorneys’ fees had been made and allowed in the divorce suit, it was the privilege' and duty of plaintiffs in error to have their fees taxed as costs against the defendant in that suit and judgment rendered thereon for the same.
We do not feel called upon at this time to decide as to whether or not an action would ordinarily lie in favor of an attorney to recover from the husband for services rendered his wife in a suit against him for a divorce when such services were not specially authorized by him. The issues joined in this case upon the objection to the introduction of evidence do not necessarily involve that question. Section 644 of the code of civil procedure provides that, after the petition has been filed in an action for divorce and alimony, the court, or the judge thereof in vacation, may make such order relative to the expenses of the suit as will insure the wife an efficient preparation of her case. This the court did in that case by making an order requiring the defendant to pay to the plaintiff's in error $50 as attorneys’ fees to enable them suitably to prepare the case for trial. This order was never complied with by the defendant, nor was the order vacated, but by agreement between the parties to that action the suit was thereafter dismissed, and the defendant agreed to pay all the costs and expenses of the litigation ; and in the journal entry of judgment, a copy of which was attached to the bill of particulars, the defendant was adjudged to pay all such costs and expenses, and the case was dismissed at defendant’s cost, and execution was awarded therefor. The order that was made in the divorce suit requiring the defendant to pay the plaintiffs in error the sum of $50 as attorneys’ fees was, in effect, an adjudication that that amount was. necessary in order to ‘ ‘ insure to the wife an efficient preparation of her case.” This allowance should have been entered as part of the costs in the case, but whether in fact it was so entered the record does not disclose. After its allowance by the court, it became in effect a judgment for that amount in favor of the plaintiffs in error, which could be recovered upon execution, or it might be made the basis of a recovery in an independent action against the husband. The bill of particulars stated a cause of action in favor of the plaintiffs for the amount allowed them by the court in the divorce suit, especially as its sufficiency was challenged in no other manner than by an objection to the introduction of any evidence thereunder, and the court erred in sustaining said objection.
Wherefore the judgment will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Judges concurring.
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The opinion of the court was delivered by
Fromme, J.:
The appellant, Gary Dean Gobin, was charged and convicted of an attempt to steal swine belonging to Everett Webb of a value of more than $50.00. One of the points raised on appeal concerns the sufficiency of the evidence to establish both the specific criminal intent and the overt act necessary to consummate such a felony.
The evidence established that on December 2,1973, at 10:20 p. m., Mr. Web'b arrived at his swine farm near Jetmore, Kansas to check his hogs. A dead end graveled road led from the highway to a private driveway at the farm. The swine were confined in farrowing houses and in fattening pens located along this private driveway. When Mr. Webb' drove into the yard using the private driveway, he saw two people sitting in a pickup truck, equipped with stock racks, parked at the other end of the driveway. He stepped from his car, and the pickup truck sped past him and left the premises. Webb' pursued the pickup in his car and was able to obtain the license number during a three mile chase. Webb then drove to Jetmore and reported the incident to the sheriff’s office. The pickup was registered in the name of a Mr. Gerald Smith. The sheriff parked his police car at a likely intersection which led to Dodge City and waited. Subsequently two vehicles approached the intersection, one was the pickup truck seen earlier near the swine pens. The sheriff managed to stop the pickup. The appellant Gobin was the sole occupant. The other vehicle was a large truck driven by Mr. Gerald Smith. Both Gobin and Smith were taken to Jetmore and charged with an attempt to exert unauthorized control over swine belonging to Webb, an attempted felony theft. At the time of the incident there were swine confined in the fattening pens and farrowing houses worth from $20.00 to $300.00 each.
The appellant Gobin excused his presence in the pickup on the driveway at the swine farm by explaining that he and his girlfriend were driving around in the pickup and decided to park in seclusion for a while. When questioned further he refused to give the name of this girlfriend. His explanation was not corroborated at the trial. There was other evidence introduced at the trial which indicated that Mr. Gobin had not been truthful concerning other statements made to the sheriff. However, we are here concerned more with the sufficiency of the state’s evidence to' establish the crime charged than the truthfulness of the accused.
On appellate review of a criminal trial the question is not whether the evidence establishes guilt of the defendant beyond a reasonable doubt, but whether the evidence is sufficient to form a basis for a reasonable inference of guilt on all elements of the crime. (State v. McCollum, 211 Kan. 631, Syl. ¶ 9, 507 P. 2d 196.) Before a verdict of guilty, which has been approved by the district court, may be set aside because of insufficient evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the district court. (State v. Kelly, 210 Kan. 192, Syl. ¶ 3, 499 P. 2d 1040.) In reaching that hypothesis this court will examine the record to determine if, from all of the facts and circumstances disclosed by the evidence, the jury could have reasonably drawn an inference of guilt. (State v. Trotter, 203 Kan. 31, Syl. ¶ 4, 453 P. 2d 93.) Presumptions and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference. (State v. Doyle, 201 Kan. 469, Syl. ¶ 8, 441 P. 2d 846.)
The Kansas Criminal Code defines an attempt as follows:
“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” (K. S. A. 1973 Supp. 21-3301 [1].)
The code defines the particular theft charged as being attempted in the present case as follows:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
“(a) Obtaining or exerting unauthorized control over property; . . .” (K. S. A. 1973 Supp. 21-3701.)
We note that in addition to the general criminal intent mentioned in K. S. A. Supp. 21-3201 (2), the acts of theft proscribed by 21-3701 must be done with intent to deprive the owner permanently of the possession, use or benefit of particular property.
To “deprive permanently” as defined in the general definitions section of the code means:
“Take from the owner the possession, use or benefit of his property, without an intent to restore the same; . . .” (K. S. A. 1973 Supp. 21-3110 [6] [a].)
So it becomes apparent from the foregoing that the specific intent which must be established under the present charge of theft is an intent to take from the owner the possession, use or benefit of his property ($50.00 worth of swine) without an intent to restore the same.
Next let us consider the type of an overt act necessary to support an attempt to commit any crime. The essential elements to establish an attempt have been repeatedly set forth in our cases, the most recent of which is State v. Cory, 211 Kan. 528, 506 P. 2d 1115, where it is said:
“. . . K. S. A. 1972 Supp. 21-3301 still contains three essential elements (1) the intent to commit the crime, (2) an overt act toward the perpetration of the crime, and (3) a failure to consummate it. . . .” (p. 532.)
The comment of the committee on pattern jury instructions covering attempts is:
“A problem inherent in the law of attempts concerns the point when criminal liability attaches for the overt act. On the one hand mere acts of preparation are insufficient while, on the other, if the accused has performed the final act necessary for the completion of the crime, he could be prosecuted for the crime intended and not for an attempt. The overt act lies somewhere between these two extremes and each case must depend upon its own particular facts. . . (PIK Criminal 55.01, p. 105.)
In support of this comment the following cases are cited: State v. Davis, 199 Kan. 33, 427 P. 2d 606; State v. Borserine, 184 Kan. 405, 377 P. 2d 697; State v. Visco, 183 Kan. 562, 331 P. 2d 318; State v. Bereman, 177 Kan. 141, 276 P. 2d 364; and State v. McCarthy, 115 Kan. 583, 224 Pac. 44. We might add to the list: State v. Cory, supra; and State v. Thompson, 118 Kan. 256, 234 Pac. 980.
It becomes apparent from reading the foregoing cases that no definite rule as to what constitutes an overt act for the purposes of an attempt can or should be laid down. Each case must depend largely on its partciular facts and the inferences which the jury may reasonably draw therefrom. The problem should be approached with a desire to accomplish substantial justice. It has been said that mere preparation is not sufficient. The accused must have taken steps beyond mere preparation by doing something directly moving toward and bringing nearer the crime he intends to commit. It is sometimes said there must be some appreciable fragment of the crime committed. In 22 C. J. S., Criminal Law, § 75 (3), pp. 233, 234, it is stated:
“To convict .one of an attempt to commit a crime, it is necessary that the overt act have been done with the actual intent to commit that particular crime. Such intent must be an intent in fact as disinguished from an intent in law, and cannot be implied as a matter of law from the existence of the same facts and circumstances which would, in case tire deed had been accomplished, have furnished conclusive evidence of an intention to commit the substantive crime. . .
In 21 Am. Jur. 2d, Criminal Law § 111, p. 191, it is said:
“. . . In a general way it may be said that preparation consists in devising or arranging the means or measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made. It has been held that even though a person actually intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some further overt act. . . .”
From the foregoing it appears that in order to convict an accused of an attempt to commit a crime an overt act toward consummation of the crime must be established. The overt act necessary must extend beyond mere preparations made by the accused and must approach sufficiently near to consummation of the offense to stand either as the first or some subsequent step in a direct movement towards the completed offense.
Now let us look at our cases on the subject to see where that line has been drawn. In State v. McCarthy, supra, the charge was an attempt to commit burglary of a freight car. There was no question of the intent to commit the burglary for the accused explained his plan to a car inspector who agreed to hold the particular train to be robbed long enough for the goods to be removed. The accused and four confederates arrived at the yards in a car and a truck with a pump gun, revolver, ammunition, lanterns, wrenches, screwdriver and a jimmy. Three of the party remained near the scene of their contemplated burglary where they were later arrested. Two went in search of their supposed accomplice, the car inspector. The car inspector testified that the defendant talked with him on the steps of the station and advised that the others were waiting with their vehicles. The accused then left and was arrested a few blocks from the station. The court on appeal concluded that the acts of the defendants went beyond mere preparation for an intended burglary and were steps toward the accomplishment of the crime which justified conviction of an attempt. We note that the overt acts were not necessary to establish an intent to commit the burglary. The accused’s intent to commit the crime was independently proven by the testimony of the car inspector.
In State v. Thompson, supra, the accused was charged with attempting to assist certain persons in an escape from jail. The accused secured loaded weapons, arranged with another person, who had access to the prisoners, to deliver the weapons to the men in jail and the weapons were actually delivered by the accused to the person having access. An agreement had been made to pay him $500.00 if the weapons were delivered to the prisoners. Again there was no question concerning proof of the intent to assist prisoners to- escape. It was established by the testimony of the person having access to the prisoners to whom the weapons were actually delivered.
In State v. Bereman, supra, the accused was charged with an attempt to commit the crime against nature (G. S. 1949, 21-907). No evidentiary background appears in the opinion. The court merely observes that the state developed some acts of solicitation but that the record was void of any evidence of an overt act on the part of the accused directed toward the commission of the offense charged. Dismissal of the case was affirmed.
In State v. Visco, supra, and State v. Borserine, supra, Visco and Borserine joined in an attempt to obtain money by false pretenses from a Mr. McEndree. There were separate trials and appeals. The intent to commit the crime rested on the testimony of co-conspirators. The overt acts charged were false representations of agency made to the intended viotim under the guise of selling a publication which did not exist. The acts clearly went beyond preparation and involved the intended victim. Further details of the conspiracy would not be particularly helpful for our purposes.
In State v. Davis, supra, the accused was charged with an attempt to escape from the reformatory. He had failed to appear for a customary head count and had been missing for more than 24 hours. He was discovered hiding on the grounds of the reformatory under an enclosed wooden platform. The accused and a confederate had a case knife and a steel file on their persons. Other articles of contraband were found in the hiding place. On appeal this court held an intent to escape was clearly indicated by the evidence and that the acts of hiding and collecting articles of contraband were more than mere preparation. The escape had been initiated and was in progress. The necessary elements of an attempt had been established.
In State v. Cory, supra, the accused was charged with an attempted burglary. He was arrested in an alley behind a jewelry store at night after the store’s burglar alarm had sounded. The tools necessary to break and enter were nearby and one of the bars protecting the rear window of the jewelry store had been cut, the window had been raised and was held open by a crowbar. No question was raised in the appeal concerning the sufficiency of the evidence to sustain an alleged attempt. The accused merely denied taking part in the attempt and claimed he was an innocent victim of circumstances.
In the present case appellant was charged with an attempt to take swine from Webb. There was convincing evidence that the two persons sitting in the pickup in the driveway never departed from the vehicle. The yard surrounding the vehicle had been freshly dragged and there were no imprints on the surrounding surface except the car and pickup tracks. Mr. Webb testified the pickup was parked 90 feet from the loading chute.. A man could have loaded a pig weighing up to 75 pounds without using a chute. The pickup was some distance from both the farrowing houses and the fattening pens. Mr. Webb further testified neither of the persons in the pickup made any movement toward the animals while he was there and that he heard no noise from the swine to indicate that any had been disturbed or lifted. There were no swine in the pickup.
Under such a faotual situation there may have been sufficient circumstances, if you include the flight of the pickup, to infer a general unlawful and criminal intent but there are no facts which point to a specific intent to steal swine. The presence of a strange pickup with stock racks in a private driveway at 10:20 p. m. might well raise a strong suspicion of wrongdoing but its presence and subsequent flight alone does not point to any particular crime intended. The facts are equally susceptible to widely different interpretations, for 'the known circumstances might be attributable to either an innocent or a criminal cause. Flight alone is of such a nature that the jury could reasonably infer only a general criminal intent, not a specific criminal intent to steal pigs.
Similarly when we look for an overt act done in an effort to steal the swine the facts and circumstances surrounding the presence of the strange pickup in the driveway are equally susceptible of widely different interpretations. The known circumstances are attributable to either innocent acts or criminal acts in preparation for some crime, possibly theft of pigs or grain or gasoline or equipment. For a felony theft it would have to be inferred that the accused intended to steal at least $50.00 worth of said swine.
Therefore it appears that if this conviction for an attempt to steal swine is upheld both the criminal intent to steal $50.00 worth of swine and the overt act toward the consummation of that theft must be inferred from the presence of two persons in a strange pickup with stock racks parked at 10:20 p. m. in a private driveway between farrowing houses and swine fattening pens.
Presumptions and inferences may be drawn only from facts established. Presumption may not rest upon presumption or inference on inference and as stated in State v. Doyle, supra, the rule is doubly applicable in criminal cases. This court concludes from all of the facts and circumstances disclosed by the evidence, the jury could not have reasonably drawn a proper inference that the appellant attempted to take from Mr. Webb swine worth over $50.00 with intent to deprive him permanently of the possession, use or benefit of said property. A felony conviction for an attempt to steal swine must be grounded on something more than probabilities, possibilities or suspicions of guilt.
Because of the decision we have reached it becomes unnecessary for us to discuss other points raised on appeal. The judgment of conviction is reversed.
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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, Michael E. Boyd, was tried before a jury on an information charging him with aggravated kidnapping (K. S. A. 1972 Supp. 21-3421), aggravated robbery (K. S. A. 1972 Supp. 21-3427), and first-degree murder (K. S. A. 1972 Supp. 21-3401). The defendant was found not guilty of aggravated kidnapping but was convicted of aggravated robbery and first-degree murder. Following the overruling of his posttrial motions the defendant has appealed to this court alleging trial errors.
The state’s evidence was essentially as follows: At 2:34 o’clock a. m. on September 25, 1972, someone by telephone requested a taxicab be sent to the 904 Club in Wichita. The dispatcher for Best Cab Company by radio thereupon directed Gordon T. Moore in cab 43 to proceed to the 904 Club to pick up a fare. Mr. Moore drove to the 904 Club and picked up Michael E. Boyd who was standing in the parking lot of the club. James D. Thomas testified that sometime between 2:30 and 3:00 o’clock a. m. he had a conversation with the defendant in the parking lot. According to Thomas the defendant told him that he had called a cab and that he was going to hit the driver in the head and get some money. Thomas laughed about the matter thinking that Boyd was only joking. Thomas then saw a Best cab drive into the parking lot, Boyd get into the cab, and the cab drive away. Miss Bobbie Taylor testified that she was at her home at 535 Ohio Street in Wichita at about 3 o’clock a. m. She heard a man yelling outside her house. The man was saying “Please don’t, please don’t”. She went to' the window and looked out and then went and got her mother. Together they went to the front door. She saw a body lying in the street and a cab drive away. The body in the street was identified as that of Moore, the cab driver. He died from loss of blood caused by multiple stab wounds. Carolyn Littlejohn testified that she was sitting on her front porch at about 3 o’clock a. m. when she saw a Best cab being parked on the street. She saw the defendant get out of the cab. Pie had been driving it. She observed defendant walk from the cab to the comer and meet two men; One of these men was William S. Knox. Knox testified that the defendant walked up to him and requested Knox to drive him to the bus depot. Knox saw blood on defendant’s face and clothing and one of defendant’s hands was bleeding. Knox drove defendant to the bus depot where they spent several hours together drinking. At about 8:00 o’clock a. m. defendant went to his girlfriend’s house where he was arrested later in the day.
In conducting its investigation the Wichita Police Department also ascertained the following facts: (1) Gordon T. Moore’s billfold and a knife were found near his abandoned cab; (2) the billfold had a latent fingerprint on it which was. identified as that of the defendant Michael E. Boyd; (3) Michael E. Boyd’s blood type was Group O and Gordon T. Moore’s blood type was Group A; (4) when defendant was arrested he had a out on one of his hands and there were blood stains on his clothing; (5) Group O and Group A human blood was found in Gordon T Moore’s cab. The blood stains on defendants clothing when he was arrested were from Group A human blood.
The state’s medical testimony established from an autopsy performed upon Gordon T. Moore that multiple penetrating wounds were found upon the body. These wounds caused the death of Mr. Moore due to loss of blood.
The only witness called on behalf of the defendant was the defendant himself. The defendant testified in substance that on the evening of September 24, 1972, he was at the 904 Club and called a cab. He recalled seeing James D. Thomas inside the club but denied either seeing Thomas or having any conversation with him outside the club. He specifically denied that he ever made a statement to Thomas that he was going to knock a taxicab driver in the head. Defendant further testified that when he got in the taxicab it contained another passenger. The taxicab driver began talking in a racially discriminating manner. Words ensued and then they came to blows. The driver and the defendant struck each other. At that time a big flash came before the defendant and everything was blank to defendant from that time until he woke up at his girlfriend’s house later that morning. The defendant testified positively that when he got into the taxicab he had no intention to kidnap or rob the taxicab driver. Defendant further stated that he had been drinking beer that evening and had been on drugs. He had never seen the knife which the state produced, had no idea where it came from, and could not remember whether he had had a knife on his person that evening. He explained the cut and blood on his hand as resulting from his outting up a chicken at his girlfriend’s house. He testified that he did not remember doing any of the acts with which he was charged. He did not make any plans or have any intention in advance to kidnap or rob Moore. He is not sure that he killed Moore but believes that he did. The defendant offered no other evidence.
On this appeal the defendant contends that the district court erred in not giving the defendant’s requested jury instructions on the lesser included offenses of kidnapping, robbery, theft, voluntary manslaughter, and murder in the second degree. We have concluded that on the basis of the record before us there was nothing in the evidence to justify an instruction on the lesser offenses of kidnapping, robbery, or theft. We believe, however, that the trial court committed reversible error in failing to in struct the jury on the lesser offenses of murder in the seoond degree and voluntary manslaughter. K. S. A. 21-3107 (3) provides that in cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged, but as to all lesser crimes of which the accused might be found guilty under the information and indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to. This section is essentially a restatement of our decisional law which has been followed in past years. In State v. Clark, 214 Kan. 293, 521 P. 2d 298, we stated that it is the duty of a trial court to instruct the jury not only as to the crime specifically charged in the information but also with respect to such lesser offenses included therein as the evidence may justify, even though such instructions have not been requested or have even been the basis of objections. We further declared that the accused has the right to have his theory of the case presented to the jury under appropriate instructions where there is support in the evidence therefor, even though the evidence may be weak and not conclusive and the testimony of the defendant alone, if tending to show a lesser degree of crime.
Here the state’s evidence presented a strong case to support its theory that the defendant killed the cab driver Moore in the course of a robbery. Nevertheless, the defendant by his testimony offered evidence which tended to show that the homicide oocurred, not with premeditation or deliberation but rather spontaneously during the course of an affray. We note that in its instructions the trial court did not submit 'the case to the jury solely on the theory of a felony murder. Its instruction pertaining to the crime of murder in the first degree was in the alternative, permitting the jury to find the defendant guilty of first-degree murder either on the theory of a malicious, premediated killing, or on the theory of felony murder. As pointed out above the defendant categorically denied that he bad made any statement in advance of his intention to kidnap or rob a taxi driver or that he had any intention whatsoever to kidnap or rob the taxi driver when he entered the oab. His testimony was that he was provoked by 'the insulting remarks of the cab driver, became angry, and after an exchange of blows between himself and the cab driver, a big flash occurred and that is all he remembers until later that day. In view of the state of the record we have concluded that even though the evidence to support the defendant’s theory consisted of his testimony alone, and even though it may have been weak and not particularly persuasive* it still raised a legitimate issue for the consideration of the jury as to whether the killing was done maliciously or with premeditation and deliberation. Under these circumstances it was reversible error to' deny the defendant’s requested instructions covering murder in the second degree and voluntary manslaughter. The failure to give the requested instructions was clearly prejudicial error and the case must be reversed on this point.
The defendant further urges that the trial court committed prejudicial error in allowing the state to introduce into evidence photographs of the body of the deceased taken at the autopsy. He contends they were repulsive, inflamatory, without probative value, and highly prejudicial to the defendant’s right to a fair trial. In State v. Randol, 212 Kan. 461, 513 P. 2d 248, we held that when photographic evidence is used 'by a coroner in describing the wounds in the body and internal organs of the victim, which wounds were received as a result of a crime of violence, such evidence is relevant and admissible to establish material facts, such as the manner and cause of death. In Randol we cited a number of cases where this rule has been applied. We pointed out that the trial court has broad discretion to exclude such evidence if it finds that such photographic evidence is unduly repetitious and offered solely to prejudice the minds of the jurors. In the present case the state offered 14 photographs of the body of the deceased Moore taken at the autopsy. Several of the photographs show the angle at which the deceased’s body was penetrated by a sharp instrument and would seem to be reasonably necessary to explain the testimony of .the state’s medioal witness. We believe, however, that exhibit 39 was so gruesome and repulsive that the trial court abused its discretion in admitting that exhibit into, evidence. In our opinion the offer of this exhibit could be but for a single purpose — to inflame the minds of the members of the jury. This court has gone a long way, perhaps too far, in countenancing the introduction of grisly, gruesome photographs. Here exhibit 39 show the body of the deceased cut open from: chin to' groin and laid out like a disemboweled beef in a packing plant. A flap of chest skin partially covers the deceased’s face and the chest and abdominal organs of the deceased are pre seated in full view. In this case the cause of death of the victim was really not in dispute. The state’s medical expert made it dear that death was due to internal bleeding resulting from stab wounds. Some of the photographs which were admitted could have been helpful to the jury by showing the angle of penetration of the murder instrument into the deceased’s body. We fail to see the necessity, however, of the state’s offering repetitious exhibits to prove the same point. In our judgment the trial court abused its discretion in admitting into evidence repetitious photographs of the deceased’s body taken at the autopsy and especially exhibit 39.
As another point on this appeal the defendant complains that the limiting instruction given by the trial court covering the evidence of the defendant’s prior conviction for robbery was overly broad and in violation of the standards set forth in State v. Masqua, 210 Kan. 419, 502 P. 2d 728, and State v. Bly, 215 Kan. 168, 523 P. 2d 397. The state agrees that the limiting instruction given here was overly broad since it was in the form of a “shotgun” covering all of the eight exceptions set forth in K. S. A. 60-455 but denies that it was prejudicial. We agree that it was error, for this instruction to be given in the form in which it was given. We assume that on a retrial of this case an appropriate instruction will be given which meets the standards of the two cases cited above.
The defendant next complains that the trial court erred in denying him the right to present evidence to support a defense of insanity. The record shows that after his arraignment in October 1972, the defendant on December 11, 1972, moved the court for an order allowing him to file a written notice of his intention to rely upon the defense of insanity pursuant to K. S. A. 22-3219. At that time the defendant was at Larned State Hospital undergoing examination to determine his competency to stand trial. The motion was granted by the district administrative judge on December 29, 1972. On January 22,1973, defendant filed a similar motion to allow him to file the statutory notice of a plea of insanity, if applicable, out of time. Thereafter the court granted the defendant’s motion for a psychiatric evaluation by Dr. C. J. Kurth with respect to the defendant’s sanity at the time the crimes alleged in the information were committed. Dr. Kurth filed a report of the examination with the court on February 13, 1973. On February 17 defendant entered a plea of not guilty to count one of the information having previously entered a plea of not guilty to counts two and three. De fendant’s attorney informed the prosecutor that insanity would not be relied on as a defense. The trial commenced on the three counts of the information on March 5,1973. It was not until March 7,1973, three days after the trial commenced, that the defendant’s attorney filed a written notice that he intended to rely on the defense of insanity. On the morning of March 12 the trial court informed defendant’s counsel that he would not allow any evidence to be entered on the defense of insanity because defendant’s motion was not timely filed and good cause to file late had not been shown. K. S. A. 22-3219 (1) requires a written notice of an intention to rely upon the defense of insanity to be served and filed before trial and not more than 30 days after entry of the plea of not guilty to the information or indictment. For good cause shown the court may permit notice at a later date. Here the notice of intention to rely upon the defense of insanity was not filed until the third day of the trial which clearly did not meet the requirements of 22-3219 (1). Counsel for defendant has not stated any good reason why such notice was not filed previously and such notice was wholly inadequate to enable the state to meet the defense of insanity. We cannot say the trial court abused its discretion under the circumstances in ruling that the defense of insanity could not be relied upon and in refusing a requested instruction on that defense.
The defendant urges that the trial court erred in refusing to allow Dr. C. J. Kurth to testify regarding the effect of alcohol or drugs upon the defendant’s ability to formulate a specific intent at the time of the killing of Gordon T. Moore and in refusing an instruction on voluntary intoxication. The defendant testified that he had been drinking beer on the evening of the killing and was on drugs but he offered no testimony that his mind was affected by either alcohol or drugs. Since the case is to be reversed for a new trial on other grounds we will leave it to the sound discretion of the trial court on retrial to determine whether the evidence submitted at that trial would justify an expert medical opinion as to the effect of intoxication and whether an appropriate instruction on voluntary intoxication should be given.
We have considered the remaining points which have been asserted on this appeal and find them all to be without merit. The judgment of the district court is reversed and the case is remanded for a new trial on the charges of aggravated robbery and first-degree murder as contained in counts two and three of the information.
Fatzer, C. J. and Kaul, J., dissenting.
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The opinion of the court was delivered by
Fontron, J.:
On February 16, 1973, William V. Minner filed a complaint with the Kansas Commission on Civil Rights, herein called the commission, complaining of a discriminatory practice by Sears, Roebuck and Company, hereafter referred to as Sears or defendant, in refusing him credit because he was black, in violation of K. S. A. 44-1009 (c) (1) (Weeks, 1973). Thereafter, and on November 28, 1973, the commission issued a subpoena duces tecum to Mr. Loyd Reynolds, the credit manager of the Sears store in Topeka, directing him to produce the following:
“1. List of persons who applied and received credit thirty (30) days prior to January 6, 1973, and thirty (30) days .after, also any rating your company may have received from any credit bureau on these persons.
“2. List of persons who applied and were denied credit thirty (30) days prior to January 6, 1973, and thirty (30) days after, also any rating your company may have received from credit bureau on these persons.”
Sears did not comply with the subpoena, and the commission filed an action in the district court of Shawnee County, under the provisions of K. S. A. 44-1004 ( 5) (Weeks, 1973), to secure an order directing Mr. Reynolds to produce the subpoenaed documents forthwith or to show cause why he should not be punished for contempt. On December 12, 1973, the district court issued an ex parte order directing Reynolds to produce the records for examination by an authorized representative of the commission or, in the alternative, to show cause why he should not be held in contempt.
Sears responded with a motion to quash the subpoena and to set aside the court’s ex parte order. In its motion Sears alleged (1) it would be unduly burdensome to produce the lists within the time allotted; (2) that records of persons denied credit dining the 60-day period involved had been destroyed; (3) the information was confidential, and could be waived only by the individuals concerned; and (4) the commission had no jurisdiction in the matter.
After a hearing, the trial court sustained the defendant’s motion to quash as to the records of those persons who- were denied credit, but otherwise overruled the motion. Sears has appealed. There is no cross-appeal.
At the outset, mention need be made concerning a matter of appellate procedure. In overruling, in part, the defendant’s motion to quash, the trial court made a finding that its order involved a controlling question of law as to which there was substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation. Sears thereupon applied for leave to take an intermediate appeal pursuant to the provisions of K. S. A. 60-2102 (b) (Corrick, 1964) and Supreme Court Rule No. 5. (214 Kan. xxii.) This court granted permission to take an intermediate appeal, and directed the parties to brief the “jurisdictional question as to whether the Supreme Court can entertain this appeal.” Accordingly, both parties have briefed and argued the jurisdictional question relying on the assumption that the appeal is intermediate in character.
We have come to the conclusion, however, that this court, and the trial court, as well as the parties, were mistaken in viewing the appeal as intermediate. Our error may have been due in part to the caption given the case in district court, i. e., Mr. William V. Minner v. Sears, Roebuck and Company, but the collective eyes of this court should have been keen enough to have detected the misnomer.
This action was initiated by the commission to force compliance with its subpoena. Mr. Minner did not file this lawsuit; he merely filed the complaint which is before the commission. The only relief sought in this lawsuit is to compel Sears to comply with the subpoena. This lawsuit has nothing to do with the merits of Minner s complaint; it is the commission which ultimately must investigate and determine the merits of the complaint in the first instance. The only issue before the trial court was whether Sears, through its credit manager, should be required to comply with the commission s subpoena. The district court ruled on that issue, and that issue alone. The court overruled Sears’ motion to quash, and ordered Sears to comply therewith in substantial part. That ruling, as we see it, is in effect a final order — it effectively disposed of the only issue before the trial court.
Since the court’s order overruling Sears’ motion to quash and directing Sears to produce the records is, in our opinion, “a final decision” within the purview of K. S. A. 60-2102 (a) (4) (Corrick, 1964), it was appealable as a matter of right. Accordingly, we consider the appeal as properly before us and we accept it as such.
Finally, we will gingerly flex our judicial muscle by amending the appellate title to reflect the proper parties to' the lawsuit. In so doing we recognize that we impinge on the mandate of our own rule, 6 (q), (214 Kan. xxvi), that appeals shall bear the same title here as in district court.
Having disposed of the peripheral procedural problems we pass on to matters of substance. Sears presents two basic issues on appeal. The first, in its words, is whether the commission had authority or jurisdiction to issue the subpoena. Or, to< put the question in a somewhat different context, does a complaint such as Minner’s come within the purview of the Kansas Act Against Discrimination (K. S. A. 44-1001 [Weeks, 1973] et seq.), to which we will refer hereafter as the Act.
Sears would give a negative answer to the question, regardless of how it is phrased. It argues that the commission was without statutory authority to accept the complaint or to issue the subpoena; that the complaint does not allege a discriminatory practice within the statute. We will first apply ourselves to determining this issue, leaving for later consideration the defendant’s contention that compliance with the subpoena would violate the rights of privacy of persons not privy to this lawsuit, contrary to constitutional guarantees, and would subject Sears to actions for damages.
We believe it pertinent at the beginning to say that the Act does not reach this forum as a complete and total stranger. In three recent cases, Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. 120, 519 P. 2d 1092; Atchison, T. & S. F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 529 P. 2d 666; and Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 531 P. 2d 455, we considered various aspects of the subpoena powers vested in the commission. In each of those cases the plaintiff employer sought to enjoin the commission from enforcing its subpoena. In each case we upheld the commission’s authority to subpoena witnesses, to compel their attendance and to require production of records and documents during investigation of alleged unlawful employment practices. Taken together they may be said to indicate a tendency on the part of this court to give the statute a broad interpretation.
We have not had occasion, however, to determine the precise question posed by Sears in its first point. Do the provisions of the Act apply to the area of consumer credit practices in a retail merchandising establishment? If such practices are not encompassed by the Act the commission would lack authority to investigate Minner’s complaint or to issue the subpoena. In arguing that the extension or refusal of oredit to' a customer by a retail purveyor of goods does not fall within the purview of the Act, Sears presents two grounds: (1) the area of consumer credit is not covered by the Act and (2) retail establishments are not places of public accommodation, as defined in the Act. Because these contentions are closely interrelated it will be difficult to separate them in the course of our discussion.
It is true the Act does not expressly mention the subject of consumer oredit. Neither have we come across a case which deals with discrimination in the area of consumer credit in the context in which it appears here. We are nonetheless convinced that unfair credit practices violate the spirit and essential nature of the Act “to eliminate and prevent discrimination, segregation, or separation in all places of public accommodations covered by this act.” (K. S. A. 44-1001 [Weeks, 1973].)
The trial court spoke on this phase of the case in clear and lucid language which bears repeating:
“The other question, which constitutes the basis of the complaint, deals with the issue of credit, or the denial of it, to a particular class of the public. Certainly, a denial of credit to one, or a class of the same, based solely upon race or color constitutes an unlawful discriminatory practice. It constitutes discrimination and segregation against persons and falls within the intent and purpose of the Act. A simply [sic] analogy to this question is to suppose a merchant downtown who offers and sells goods and services to the public posts a sign on his door — ‘We do not sell to any person belonging to . . . race,’ Would anyone argue that this would not be an unlawful discriminatory practice by one engaged as a public accommodation?
“Whether it be a sale or denying credit would not alter the fact that this, if proven, constitutes prohibited conduct under the Act.”
Sears calls attention to K. S. A. 44-1017 (Weeks, 1973) which provides it shall be unlawful for banks, building and loan associations, insurance companies and other companies, firms or persons engaged in making real estate loans, to deny a loan or to discriminate against any person in the terms and conditions of a loan on the basis of race, religion, color, sex, national origin ox ancestry. It is to be inferred from this, the defendant argues, that the legislature considered loans an appropriate subject with respect to housing but not with respect to sales of merchandise in public accommodations. In other words, the argument goes, had the legislature intended the matter of credit to be included in the term “unlawful discriminatory practice” it would have said so, as it did in the Act respecting discriminatory housing practices.
The argument is artful but not convincing. Section 44-1017 is an integral part of the Fair Housing Act adopted in 1970, five years after discriminatory practices were proscribed in areas of public accommodations. The 1970 Act added a new dimension to Kansas anti-discrimination laws, i. e., housing and its attendant ramifications. The law relates to the sale and rental of real property as well as to real estate loans, it sets up its own procedures, defines its own unlawful acts and provides its own penalties. It is expressly declared supplemental to and a part of the Kansas Act Against Discrimination and it differs in numerous significant aspects from the earlier legislation in the anti-discrimination field.
In our judgment the enactment of 44-1017 as a section of the 1970 Fair Housing Act provides no basis for assuming a legislative intent to exclude consumer credit transactions from the 1965 law condemning discriminatory practices in places of public accommodations. This is so, we feel, even though credit transactions were not mentioned by name in the 1965 enactment.
It is well known that many retail sales are made on the basis of credit. So commonplace has become the consumer practice of buying merchandise on credit and paying for it later on the installment plan, that we believe judicial notice may be taken of the custom under K. S. A. 60-409 (b) (Corrick, 1964). See cases collected in 4 Vernons Kansas Statutes Annotated, Fowkes, Harvey, Thomas, pp. 220, 221.) Credit has become a very useful tool in the field of retail merchandising; it inheres not only in the pricing structure but in the very process by which goods are moved from retailer to consumer. We would be rash, indeed, to say that discrimination in extending or withholding credit would not be a discriminatory practice of some magnitude in the public market place.
Sears would insist, however, that a retail establishment such as its Topeka store, does not fit within the category of “a place of public accommodation.” To understand the defendant’s position in this respect we must take a look at three sections of the Act. Minner has charged Sears with an unlawful practice within the meaning of K. S. A. 44-1009 (c) (1) (Weeks, 1973), which provides:
“(c) It shall be an unlawful discriminatory practice:
“(1) For any person, as defined herein, being the owner, operator, lessee, manager, agent or employee of any place of public accommodation to refuse, deny, or make a distinction, directly or indirectly, in offering its goods, services, facilities, and accommodations to any person as covered by this act because of race, religion, color, sex, national origin or ancestry, except where a distinction because of sex is necessary because of the intrinsic nature of such accommodation.”
Sears next refers us to K. S. A. 44-1002 (Weeks, 1973), the definitions section of the act, directing our attention specifically to subsections (h) and (i) which read:
“(h) The word ‘hotel,’ ‘motel’ and ‘restaurant’ shall each have the meanings ascribed to them respectively by K. S. A. 36-101 and K. S. A. 1971 Supp. 36-301, and the term ‘public accommodations’ shall include any person as defined herein, who caters or offers his goods, services, facilities, and accommodations to the public, but shall not include a nonprofit fraternal or social association or corporation.
“(i) The term ‘unlawful discriminatory practice’ means any discrimination against persons in a hotel, motel, cabin camp, restaurant or trailer court and the segregation against persons in a place of public accommodations covered by this act by reason of their race, religion, color, sex, national origin, or ancestry. The term ‘unlawful discriminatory practice’ .also means any discrimination against persons in a bar, tavern, barbershop, beauty parlor, theater, skating rink, bowling alley, billiard parlor, amusement park, recreation park, swimming pool, lake, gymnasium, mortuary, cemetery which is open to the public or on any public transportation facility.
“The term ‘unlawful discriminatory practice’ also means .any discrimination against persons in the full and equal use and enjoyment of the services, facilities, privileges and advantages of any institution, department or agency of the state of Kansas or any political subdivision or municipality thereof.”
As we understand defendant’s argument, it goes like this: to determine what is meant by the term “place of public accommodation” as it is used in 44-1009 (c) (1) we must turn to' the definitions of 44-1002 (h) and (i); that taken together (h) and (i) limit places of public accommodations to hotels, motels, cabin camps, restaurants and trailer courts, plus the sixteen facilities listed in the last sentence of subsection (i). We believe the term “place of public accommodation” is far more inclusive than that; in our opinion it contemplates such mercantile establishments as shops and stores, as well. In keeping with the broad public policy of eradicating the cancer of discrimination from our society, we interpret “public accommodations” to mean those places which are held out as open to the general public and which members of the public generally are invited to patronize and otherwise visit.
In an article entitled Commission Enforcement of State Laws Against Discrimination: A Comparative Analysis of the Kansas Act, 14 Kansas Law Review 29, the authors, Richard B. Dyson and Elizabeth D. Dyson, have this to say relative to the scope of present Kansas anti-discrimination statutes:
“Kansas established an ‘Anti-Discrimination Commission’ in 1953 to deal with employment discrimination, although its function was purely .advisory and educative since it had no enforcement powers. In 1961, however, the agency, renamed the Kansas Commission on Civil Rights, was given some enforcement powers, and in 1963 its jurisdiction was extended to cover a limited number of public accommodations. In 1965 further changes were made in its methods of enforcement and new public accommodations establishments were brought within its scope.” (p. 30.)
In footnote 14 the foregoing text is amplified:
“Kan. Sess. Laws 1965, ch. 323, §§ 1-11. The public accommodations coverage of the act, newly defined in 1965, combines two different philosophies of statutory draftsmanship: it uses both an ‘umbrella clause’ and a specific enumeration. Such combinations have often raised the question whether the detailed listing really is exclusive, rendering the broad clause nugatory under the principle of expressio unius est exclusio alterius. Some civil rights statutes have been restricted in this way. See Greenberg, Race Relations and American Law 103-05 (1959). A careful reading of the Kansas act makes it clear, however, that its umbrella clause is not restricted by the enumeration. Section 2 (h) defines ‘public accommodation’ as ‘any person, as defined herein, who caters or offers his goods, facilities, and accommodations to the public.’ That is the umbrella clause. Then the next subsection, (i), defines ‘unlawful discriminatory practice’ as
any discrimination against persons in a hotel, motel, cabin camp, restaurant or trailer court and the segregation against persons in a place of public accommodations covered by this act by reason of their race, religion, color, national origin, or ancestry. The term ‘unlawful discriminatory practicé’ also means any discrimination against persons in a bar, tavern, barbershop, beauty parlor, theater, skating rink, bowling alley, billiard parlor, amusement park, recreation park, swimming pool, lake, gymnasium, mortuary, cemetery which is open to the public or on any public transportation facility. (Emphasis supplied.)
Thus, the unlawful practices consist of discrimination in hotels, motels, etc., and in a public accommodation as broadly defined, and also — the key word— in the long list of enumerated facilities. The legislature probably intended to make sure that the enumerated facilities would be included within the general concept of public accommodations. Discrimination is prohibited, therefore, in all businesses that could reasonably be described as offering ‘goods, facilities, and accommodations to the public.’ ” (pp. 30, 31.)
We concur in the analysis made by the authors Dyson. Moreover, we believe the conclusions they have drawn with, respect to the reach of the Kansas Act are in accord with the modern trend of authority. In 87 A. L. R. 2d Anno: Civil Rights Statutes — Scope, § 2 [b], the writer of the annotation has this to say on the general subject:
“The courts have used a number of well-known rules of statutory construction to help them determine whether a place not specifically listed in the statute is within the coverage of the law. The early cases sought to apply to the words used by the statute the meaning of such words at common law, or they attempted to distinguish between ‘public accommodations’ and private business. The rule most frequently applied was that of ejusdem generis under which only places of a like character to those listed in the statute could be found to be places of public accommodation or amusement. More recently, the question has been raised whether statutes which provide that the term ‘place of public accommodation’ shall be ‘deemed to include’ certain listed places are limited to the places so listed. The answer generally has been that the statute is not so limited.” (p. 128.)
Again, in § 3 [c] of the same annotation we find the following observation:
“As a result of recent amendments, a number of statutes now provide that a ‘place of public accommodation,’ etc., as used in the statute, shall be ‘deemed to include’ certain places, the list usually being quite long. Defendants in a number of cases have argued that only the places listed may be considered within the statute. This argument has not met with much success, (p. 136.)
Supporting case law is not lacking. In Sellers v. Philip’s Barber Shop, 46 N. J. 340, 217 A. 2d 121, complaints were filed against Mr. Gatti, the owner and operator of the shop, for violating the provisions of the New Jersey Law Against Discrimination. Gatti defended on the ground that a barber shop was not a place of public accommodation under the statute. In rejecting this claim, the New Jersey court said:
“. . . He [Gatti] points out that a ‘place of public accommodation’ is not specifically defined in the statute. Instead of doing so, he says, the Legislature listed the business establishments which were to be considered as within the category. And since barber shops were not included, he contends the lawmakers intended to exclude them. We have dealt with the same claim in another context and have held that since N. J. S. A. 18:25-5 (1) ordains that a place of public accommodation ‘shall include,’ and then goes on to list a substantial number of business, occupational, recreational and educational enterprises, the specification is not a limitation but simply a general illustration of the type of enterprise intended to be within the boundaries of the law. Moreover, in light of the type of activity carried on in the places listed as examples of places of public accommodation, we have given the term a common sense definition, which in our judgment clearly portrays and effectuates the legislative intent. An establishment which caters to the public or by advertising or other forms of invitation induces patronage generally is a place of public accommodation, and cannot employ race, creed or color as a basis for refusing to serve members of the public who have accepted the invitation. . . .” (pp. 344, 345.)
A case from Massachusetts, Local Finance Co. v. Massachusetts Commn. Against Discrimination, 355 Mass. 10, 242 N. E. 2d 536, is enlightening. The finance company operated a loan business. The loan application form required the applicant to disclose whether he was white, Negro or of Spanish ancestry. The commission issued a complaint alleging the company was engaging in discriminatory practices. Finance contended its place of business was not a “place of public accommodation” within the meaning of a statute defining the term as including “any place . . . which is open to and accepts or solicits the patronage of the general public . . . whether or not it be [one of several businesses listed].’ The court said that the statutory language,
“. . . [particularly when read in the light of the obviously broad legislative purpose, strongly indicates that the enumerated specific, examples of ‘places of public .accommodation’ do not restrict the preceding general statutory language or provide a basis for applying the principle of ejusdem generis.
“In other jurisdictions, the current tendency of the decisions (although, of course, dealing with statutory language by no means uniform) is to give anti-discrimination statutes, generally comparable to § 92A, a broad, inclusive interpretation. The decisions place no undue emphasis on either the principle of ejusdem generis or the rule that penal statutes must be interpreted strictly. . . .” (pp. 13, 14.)
See, also, Lambert v. Mandel’s of California, 156 C. A. 2d Supp. 855, 319 P. 2d 469; Presley v. City of Monticello, 395 F. 2d 675.
The history of anti-discrimination legislation in recent years appears to have been one of constantly expanding coverage. The Kansas experience illustrates the trend. The first Kansas Act Against Discrimination was adopted in 1961, although an anti-discrimination commission had been created in 1953, and although, also, a penal statute proscribing discrimination in certain limited areas had long been on the statute books.
The 1961 Act pertained to unfair labor practices; it was geared to “eliminate discrimination in all employment practices.” Two years later, in 1963, the legislature amended the Act to apply also to “accommodations in hotels, motels, cabin camps and restaurants.” It was not until 1965 that the Act, through amendment, was made to apply not only to lodgings and eating places but, in addition, to “places of public accommodation.” In 1970 the Fair Housing Act was adopted, extending anti-discrimination legislation to the field of housing. Until 1972 discrimination because of race, religion, color, national origin or ancestry was proscribed in areas covered within the Act. In 1972 the word sex was added to the list and in 1974, physical handicap, giving further sweep to the Act.
Viewing Kansas Civil Rights legislation in the perspective of recent history, we discern a continuing intent on the part of the legislature to strengthen civil rights statutes and to enlarge the areas of their coverage. We harbor little doubt that places of public accommodations were intended to include places where general retail trade is conducted and that in those places, distinctions are now not to be made based on race, religion, sex, physical handicap, ancestry or national origin.
Will compliance by Sears with the commissions subpoena duces tecum impermissibly invade the rights of privacy of parties not privy to this lawsuit and will it subject Sears to actions for damages?
The commissions subpoena called for Sears to produce a list of persons who applied for and received credit 30 days before and 30 days after January 6, 1973, plus any ratings concerning those persons received by Sears from credit bureaus. Obviously none of the persons who received credit from Sears during that time are interested in the Minner complaint nor are they connected with this lawsuit. The same might be said as to credit bureaus.
Questions going to confidentiality and constitutional rights of privacy were given searching examination in the very recent case of Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 531 P. 2d 455. Answers were framed in a comprehensive opinion prepared by Mr. Justice Schroeder, in which we held that disclosure could be compelled under the attending circumstances of that case. The issue of confidentiality raised here approximates in basic concept the privacy issue in Lopez.
Lopez was a Mexican-American. In applying for employment with the Santa Fe as a trackman he was asked to list the crimes of which he had been convicted. His answer showed no more than two. Lopez also consented to being fingerprinted, and he authorized Santa Fe to check his past record. He was placed on the payroll at the time of his application. The check made by Santa Fe disclosed twenty convictions for offenses running from traffic offenses to driving while drunk and assault and battery. On learning of this record Santa Fe disapproved Lopez’ application and terminated his employment. Lopez filed a complaint alleging discrimination.
Santa Fe declined to make arrest and conviction records of its employees available to commission members, whereupon the commission issued a subpoena duces tecum, calling for all personnel records, including arrest and conviction records, of all employees hired as trackmen in the eastern division during the 1972 calendar year. Santa Fe then brought an action in district court to enjoin the commission from enforcing or seeking to enforce the subpoena.
Santa Fe strenuously urged that any disclosure of the arrest and conviction records of its employees would invade their rights of privacy and would subject Santa Fe to damage actions. In the Lopez opinion Justice Schroeder cites and discusses a number of United States Supreme Court decisions including two, Griswold v. Connecticut, 381 U. S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678, and Katz v. United States, 389 U. S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507, in which constitutional rights of privacy were considered and passed upon. Respecting the constitutional shield against the invasion of personal rights, Justice Schroeder wrote:
“. . . The basic requirement of the constitution and the courts is that an intrusion of a constitutional right is permissible if reasonable.” (p. 119.)
After noting that in Katz v. United States, supra, the high court said: “ ‘[T]he protection of a persons general right to privacy — his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual States.’ (pp-. 350, 351.)” (p___), Justice Schroeder proceeded to quote from the concurring opinion of Mr. Justice White in Gris-wold as to what invasions of privacy are constitutionally permissible:
“ '. . . “Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.” Bates v. Little Rock, 361 U. S. 516, 524. See also McLaughlin v. Flordia, 379 U. S. 184. But such [state] statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U. S. 1.’ (pp. 503, 504.)” (p. 121.)
Mr. Justice Goldberg, whose concurrence in the Griswold case is also quoted in Lopez, makes the same point, in saying:
“ \ . . The law must be shown “necessary, and not merely rationally related, to the accomplishment of a permissible state policy.” McLaughlin v. Florida, 376 U. S. 184, 196. . . (p. 121.)
Granting for the moment that disclosure of the credit ratings of customers who received credit may be an intrusion into their private matters, we believe that inspection of the records by the commission, properly safeguarded, is of compelling importance to the state in effectuating a “legitimate and substantial state purpose.”
The conclusion we ultimately reached in the Lopez case was couched in the following words:
“. . . The public policy of this State as declared in the Kansas Act Against Discrimination compels that the interests of the individuals affected by the disclosure be subordinated in order ‘to eliminate and prevent discrimination in all employment relations.’ (K. S. A. 44-1001).” (p. 121.)
Although we deal here with discrimination in places of public accommodations rather than with discriminatory employment practices as in Lopez we deem the language equally appropriate to the present case.
Under K. S. A. 44-1005 (Weeks, 1973) the commisison is enjoined to treat as confidential all evidence gathered in the course of an investigation. This statutory provision has been supplemented by a rule of the commission (KAR 21-43-6), reading as follows: “The commission shall not disclose what has transpired in the course of its endeavors at conciliation and persuasion, per K. S. A. 44-1005. However, when executed, the final terms of a conciliation agreement may be disclosed. No oificer, agent or employee of the commission shall make public with respect to a particular person without his consent information from reports obtained by the commission except as necessary to the conduct of further commission proceedings.” We have no reason to assume that the members of the commission will violate the command of either the statute or the rule.
Sears further argues it would be subjected to damage actions at the hands of its customers under the provisions of 42 U. S. C. A. § 1983, should it supply the subpoenaed records. The federal statute reads:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Santa Fe made the same argument in Lopez, where it was answered in the following fashion:
“A fundamental requirement for sustaining .a suit for damages under 42 U. S. C. § 1983 is that the citizen of the United States or other person within the jurisdiction thereof be deprived of ‘. . . any rights, privileges, or immunities secured by the Constitution and laws. . . .’ Since we have determined that Santa Fe’s disclosure of the subpoenaed information would not violate the constitutional rights of its employees, there is no basis for the employees to maintain a Section 1983 .action against Santa Fe in a federal court. The broad sweep of the Federal Civil Rights Act is for all practical purposes identical to the broad sweep of the Kansas Act Against Discrimination, having as one of its directed purposes the elimination of discrimination in all employment relations. Under these circumstances we find it unnecessary to pursue Santa Fe’s argument that it would not be protected by proceeding ‘under color of state laws.” (p. 124.)
We are satisfied with the reasoning of the above citation as providing an adequate response to the defendant’s argument in this case.
Sears contends, however, it will incur liability for damages under both the federal and state Fair Credit Reporting Acts (15 U. S. C. A. § 1681, et seq.; K. S. A. 1974 Supp. 50-701, et seq.) We believe Sears is unduly alarmed on this score. Both acts contain provisions imposing civil liability on a consumer reporting agency or a user of information for willful or negligent failure to comply with any requirement of the acts. (15 U. S. C. A. § 1681n & § 1681o; K. S. A. 1974 Supp. 50-715 and 716.)
We would find it difficult to stigmatize compliance with a subpoena duly issued by an agency such as the commission, which was authorized by law to issue subpoenas, as either willful or negligent failure to comply with, the requirements of either Act. Particularly would this be so where a court has issued an edict directing that compliance be made with the terms of the subpoena.
Moreover, § 1681b (1) of the federal code and 50-703 (a), the state statute, provide that a consumer reporting- agency may furnish a consumer report in “response to the order of a court having jurisdiction to issue such an order.” In United States v. Bremicker, 365 F. Supp. 701, an agent of the Internal Revenue Service issued a summons requiring the bank of which Bremicker was president, to produce for examination certain deposit, withdrawal and loan records on some of its depositors. On refusal of the bank to' comply, application was made to the district court for enforcement of the summons.
Among other defenses advanced, the bank alleged it was prohibited by the Fair Credit Reporting Act from responding to the summons. As to this contention the court first observed the Act did not apply to' tax investigations conducted by the Internal Revenue Department. The court then went on to say:
“Even if we assume for purposes of this case that the records requested here are covered by the Act, § 1681b (1) allows for their production ‘in response to an order of a court having jurisdiction to issue such an order.’ 15 U. S. C. § 1681b (1). Concededly, by virtue of §§ 7402 (b) and 7604 (a) the district court has jurisdiction to compel production pursuant to .a summons. Again we note that the bank does not assert that it would not respond to a court order.” (p. 703.)
Finally, we think it timely to observe that where records or documents of a confidential nature are produced in court in response to a subpoena or other court order, the court is vested with authority to issue such protective orders as it deems advisable to keep the information from prying eyes and to prevent its misuse. The commission frankly recognizes the court is possessed of that authority.
Protective orders are by no means unknown to the law. “In camera” inspection of proffered documentary evidence occurs with considerable frequency, especially in trials of a criminal nature. Perhaps the most widely known incident of “in camera” inspection occurred in connection with the “Watergate” trials. In United States v. Nixon, 418 U. S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090, a claim of confidentiality was asserted as to certain tapes which had been subpoenaed in United States v. Mitchell, then pending in the United States District Court for the District of Columbia. The President contended the tapes were privileged as being necessary to protect the confidentiality of communications between the President and his advisers. The Supreme Court said:
“. . . [W]e find it difficult to accept the argument that even the very important interest in .confidentiality of presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.” (p. 706.)
We have confidence that the able trial judge who heard this case will make such protective orders as may be necessary to protect the interests of persons whose substantial rights might be affected adversely by production of the subpoenaed records.
No error appears of record and 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 damages for libel. The trial court entered summary judgment for the publisher and the plaintiff appeals.
The plaintiff, Gary Dean Gobin, on June 11, 1973, filed his petition alleging that the defendant, Globe Publishing Company, on or about July 6, 1972, published in its newspaper, The Dodge City Daily Globe, an article and certain accompanying photographs and captions which were false, libelous and defamatory to plaintiff. The petition requested $400,000 actual damages for loss of an auto mobile repair business and $100,000 exemplary damages for publishing the article without adequate investigation of the facts in reckless or malicious disregard of plaintiff’s rights and reputation. Attached to plaintiff’s petition was the publication in question, which stated:
“ANIMAL CRUELTY CASE REPORTED TO COUNTY ATTNY.
“A case of pig starvation has been discovered in Dodge City, county attorney John Fierro reported Friday.
“Gary Gobin, Hollywood Addn. pled guilty in Ford County Court July 6 to cruelty to animals.
“Anyone who knows of a case of animal cruelty in the city or county is asked to report it immediately to the county attorney’s office, Fierro said.
“Probate Judge Camilla Haviland has ordered the Ford County extension agent to check the condition of the pigs. Gobin will be fined pending this report.
“The case was discovered after Pauline Unruh, animal welfare director, received a complaint about starving hogs. She found 40 head of pigs in neglected condition, and signed a complaint.
“The county court has instructed Mrs. Unruh to make frequent visits to check the condition of Gobin’s pig pen Fierro said.”
The three accompanying pictures portrayed hogs in an emaciated condition above these captions:
“Starved Pig — This animal was found still alive when the picture was taken. It had to be shot by a sheriff’s deputy.
“Pigs Fight for Grass — The pigs here fight over a handful of grass thrown to them, showing their starved condition.
“Neglected Animals — These are seen in neglected condition, searching for food in the dirt.”
Defendant Globe filed an answer admitting publication of the material complained of but asserting the news items was within its qualified privilege to publish matter involving open violations of law which justify police interference and matters regarding the commission of crime. Globe denied the publication was false or that it had acted maliciously.
Thereafter Globe moved for summary judgment on the basis of its qualified privilege in making the publication. At the hearing upon this motion the parties filed a written stipulation which provided:
“1. The Globe Publishing Company is a Kansas corporation which publishes the Dodge City Daily Globe at Dodge City, Kansas.
“2. The Globe Publishing Company published in the July 8, 1972, issue of the Dodge City Daily Globe, an article captioned ‘Animal Cruelty Case Reported to County Attorney’. A true copy of such article is attached hereto, marked ‘Exhibit A’ and made a part hereof by reference.
“3. The article was written by Susan E. Shaw, at that time a report[er] for the Dodge City Daily Globe. The statements made in the article are based upon information provided to Susan E. Shaw by John E. Fierro, the county attorney of Ford County, Kansas.
“4. At the time the article was published, Gary Dean Gobin was not acquainted with persons working at the Dodge City Daily Globe who had anything to do with the composition and publication of the article, and no one at the Globe was personally acquainted with Gary Dean Gobin.
“5. There are no facts or circumstances known to either party involved in this action as to ill-will, between Gary Dean Gobin and the officers and employees of the Globe Publishing Company, except that Gary Dean Gobin now resents the publication of the article described above.
“The parties agree that the foregoing are recitals of facts to be considered by the court in ruling upon plaintiff’s motion for summary judgment.”
The parties further stipulated orally that the reporter, Susan Shaw, would testify in accord with a letter written by her December 2, 1973, to Globe’s attorney in which she stated her recollection of events occurring in connection with the publication. This letter stated:
“The first thing I remember was that John Drake (then editor of the Globe) told me that the county attorney had some information for a news item. I can’t remember whether Mr. Drake mentioned starving hogs, but he did tell me to go to the county attorney’s office and get this news that he had.
“I went to the county attorney’s office and John Fierro (the county attorney) gave me pictures of the hogs and information on the case. I must have gone to the county attorney’s office on Friday, July 7, because the story says that ‘Fierro reported (the case) Friday,’ and because the hearing was Thursday, July 6.
“I brought the information and pictures back to the newspaper office that same day (Friday) and gave the pictures to Mr. Drake. I typed up the news item on the case, using the information as I had understood it from Mr. Fierro. I then turned the story in for publication. I don’t remember having anything more to do with it after that. The story appeared in the paper the next day, which was Saturday, July 8.
“I do not mean to imply that the county attorney necessarily gave me incorrect information. I don’t know what happened. Evidently I, or the county attorney, or someone made an error somewhere along the line. I am very sorry this has happened. I certainly did not mean to cause trouble for Mr. Gobin, the newspaper, the county attorney or anyone. It is true that I did not know Mr. Gobin.”
The parties also stipulated orally that Globe’s general manager would testify none of Globe’s officers or employees who had anything to do with the composition or publication of the starving hogs article knew plaintiff or bore any ill will or malice toward him and there was no express intention of anyone connected with Globe to harm plaintiff. The parties agreed the trial court had all the facts before it necessary for decision of the issue of liability as raised in the motion for summary judgment.
Although not explicitly reflected in the foregoing recital, the fact concededly is that plaintiff Gobin did not plead guilty to a charge of cruelty to animals as reported in the news article.
The trial court ruled there were no unresolved issues of fact in the oase and it sustained Globe’s motion for summary judgment.
Appellant Gobin contends the trial court erred in concluding the publication was privileged and not actionable, that any privilege is limited by the requirement it be fair, impartial and accurate, and further the court erred in not making a distinction between libels involving public officials and private citizens as prescribed by recent federal authority.
By way of preliminary we may note that in modem times the law of defamation has evolved primarily as a matter of determining and applying common law tort principles upon a background of the guaranties of free speech and free press contained in section 11 of the Kansas Bill of Rights and the first and fourteenth amendments to the federal constitution. It has been largely concerned with the issue of privileged communications. Certain communications are recognized as privileged and as such not within the rules imposing liability for defamation. “The defense of privilege is a matter of public policy in furtherance of the right of free speech. The underlying idea is that by reason of a public or social interest that is entitled to protection, immunity is granted from liability for defamation that otherwise would be actionable. Privilege does not destroy the actionable character of a defamatory communication, but is available only by way of defense.” (50 Am. Jur. 2d, Libel and Slander, § 192, p. 695.) In Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 340 P. 2d 396, 76 ALR 2d 687, this court discussed the defense as follows:
“The term ‘privileged’ as applied to a publication alleged to be libelous means simply that the circumstances under which the publication was made are such as to repel the legal inference or presumption of malice, and to place upon the plaintiff the burden of affirmatively pleading and proving its actual existence beyond the mere falsity of the charge. A privileged communication is often divided into two classes: absolute privilege, and conditional or qualified privilege. It has been held that absolute privilege is recognized as applying to cases in which the public service or the administration of justice requires complete immunity as in legislative, executive and judicial proceedings, the occasion for the immunity being not so much for those so engaged as for the promotion of the public welfare.
“Generally speaking, qualified privilege exists in a larger number of eases than does absolute privilege. A privileged publication is one made on an occasion which furnishes a prima facie legal excuse for making it unless some additional' facts are shown which alter the character of the publication. It comprehends communication made in good faith, without actual malice and with reasonable or probable grounds for believing them to be true. Briefly stated, a qualifiedly privileged publication is a defamatory publication made on what is called an occasion of privilege without actual malice, and as to such publications, there is no civil liability regardless whether the publication is libelous per se or libelous per quod. The fact that a publication is qualifiedly privileged does not change the actionable quality of the words published, although, as previously indicated, such a publication rebuts the inference or presumption of malice and falsity which would otherwise arise as a matter of law, still leaving, however, the party responsible if both falsehood and actual malice are affirmatively pleaded and proved; that is, actual malice is not inferred or presumed from the injurious character of a qualifiedly privileged communication, and the injured party must allege and prove that the statements were made with malice — actual evil-mindedness or specific intent to injure.” (pp. 64-65.)
Here appellee relies on a qualified privilege stated in Beyl v. Capper Publications, Inc., 180 Kan. 525, 305 P. 2d 817, as follows:
“In the public interest and dissemination of news, within good faith limitations of fair comment, a newspaper has a qualified privilege to publish matters in connection with the prosecution of inquiries regarding the commission of crime, even though the publication may reflect on the individuals involved and tend to bring them into public disrepute.” (Sy. f 1.)
The defamation plaintiff there appealed from an order sustaining a demurrer to his petition. The publication in question purported to be based on an interview by the defendant publisher with the attorney general of Kansas relative to the operations of an alleged grain theft ring. Much of the published article directly quoted the attorney general and the remainder summarized information given by that official. Malice was not charged against the publisher. The rule stated above, following the “fair comment” standard enunciated in the oft-quoted case of Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, was applied in affirming the trial court’s action; it was applied later in Stice, in which the complainant was a public official. The qualified privilege mentioned in both cases would, without more, seem to warrant the grant of summary judgment where, as here, the parties stipulated there was no evidence of ill will. Even though a statement complained of be false, if it is qualifiedly privileged, it must be made with malice before it is actionable (Munsell v. Ideal Food Stores, 208 Kan. 909, 920, 494 P. 2d 1063, 60 ALR 3d 1059). Additionally, where the facts are not in dispute, the question whether a publication complained of is privileged is a question of law to be decided by the court (Beyl v. Capper Publications, Inc., supra). Based upon the foregoing appellee argues the trial court correctly granted summary judgment. However, there is more and a distinction must be mentioned in our present case. The newspaper article in question stated appellant had pled guilty to a criminal charge in the Ford county court. Thus it purports to communicate the result of a judicial proceeding. By contrast Beyl and Stice involved communications made during the course of ongoing criminal investigations rather than reports of court proceedings.
Concededly reports of judicial proceedings are also considered privileged but traditionally a separate, more strict rule has obtained as to them in recognizing a qualified privilege. In 53 CJS, Libel and Slander, § 127, these statements appear:
“The recognition of the right to publish proceedings of the courts of justice is of modern growth. Both at common law, and, in most jurisdictions, by force of statute a full, fair, accurate, and impartial report of a judicial proceeding is qualifiedly privileged, or such report of a judicial proceeding is absolutely privileged. . . . [pp. 204-205]
“The publication, to be privileged, must contain only that which happened in the due course of the proceedings, and any matter added thereto by the publisher defamatory of plaintiff is not privileged. The report must present fully, fairly, and accurately an impartial account of the proceedings. . . . [p. 205]
“. . . The privilege does not extend to protect comments that are unwarranted by the facts shown at the proceeding; and a report of anything said or done at the time and place of the proceeding which was not a part thereof, or the publication of any statement by a newspaper made on its own authority and not purporting to be a report of a judicial proceeding, is not privileged.” (p. 206.) (Emphasis supplied.)
In an annotation entitled “Libel and slander: garbled, inaccurate, or mistaken report of judicial proceedings as within privilege”, at 120 ALR 1236, this rule is stated:
“The rule is well established that while impartial and accurate reports of judicial proceedings are qualifiedly privileged this privilege does not extend to unfair or inaccurate reports. . . . [p. 1236]
“And this is true although the inaccuracy in the publication is unintentional and the result of mistake.” (p. 1237.)
Our own case of Stone v. Hutchinson Daily News, 125 Kan. 715, 266 Pac. 78, is in accord with the foregoing. There an affidavit to obtain a search warrant filed in justice of the peace court was the basis of an allegedly libelous publication. The published report did not follow the language of the affidavit. In considering whether the publication was qualifiedly privileged this court held:
“The publication in a newspaper of an article based upon an affidavit filed in a search and seizure action, showing, among other things, who took the property and the arrangement with the owners for the taking of it, is qualifiedly privileged, even if the affidavit be false, provided the article be fair, honest and reasonably accurate and not disproportionate, exaggerated or sensational.” (Syl. f 3.)
In Prosser, Torts (4th ed., 1971) § 118, we find these statements:
“Obviously swept up and included under the Constitution as a part of the general heading of ‘news’ is the common law privilege of reporting on public proceedings. Since it is clearly to the interest of the public that information be made available as to what takes place in public affairs, the qualified privilege was recognized, under which a newspaper or anyone else might make such a report to the public. The privilege rests upon the idea that any member of the public, if he were present, might see and hear for himself, so that the reporter is merely a substitute for the public eye — this, together with the obvious public interest in having public affairs made known to all. [p. 830]
“. . . But it has always been held that the report must be a fair and accurate one, and the privilege did not cover false statements of fact as to what has occurred, or mistakes in the names of parties, or the interpolation of defamatory matter, or a one-sided account. Neither did it include garbled or partial reports, although it was obviously not essential that the proceedings be set forth verbatim, and a summary of substantial accuracy was enough.” (p. 832.)
And in Restatement, Torts, Second, § 611, Tentative Draft No. 20, April 25, 1974, this statement appears:
“REPORTS OF OFFICIAL PROCEEDINGS AND PUBLIC MEETINGS
“Defamatory matter concerning another in a report of any official proceeding or any meeting open to the public which deals with matters of public concern is published on a conditionally privileged occasion if the report is
“(o) accurate and complete, or a fair abridgement of what has occurred, and
“(b) published for the purpose of informing the public as to a matter of public concern.” (p. 253.)
Reasons given for making a distinction in the law of libel applicable to reporting of judicial proceedings have included the fact judicial proceedings are peculiarly susceptible to exact reporting; an account of that which transpired at trial is not contingent upon fallible or futile modes of investigation; court records are available and insofar as reports of in-progress proceedings are concerned, the threat of libel emanates only from incompetent reporting; moreover, because those participating in judicial proceedings enjoy an absolute immunity from suit for defamation, instances of defamation perpetrated by trial participants might well be compounded if reports of the proceedings enjoyed too protective a privilege (see Jones v. Commercial Printing Co., 249 Ark. 952, 463 S. W. 2d 92).
Next we need notice the impact of recent decisions of the United States Supreme Court commencing in 1964 with New York Times Co. v. Sullivan, 376 U. S. 254, 11 L. ed 2d 686, 84 S. Ct. 710, 95 ALR 2d 1412. There it was held that the federal constitutional guaranty of freedom of speech and press, imposed on the states through the first and fourteenth amendments, prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, that is, with knowledge it was false or with reckless disregard of whether it was false or not; that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact, both defenses being defeasible if the public official proves actual malice; and that the constitutional guaranty of freedom of speech and press precludes an otherwise impersonal attack upon governmental operations being treated as a libel of an official responsible for these operations. This is in accord with prior Kansas law where accurate reports of judicial proceedings are not involved, notably Coleman v. MacLennan, supra, cited approvingly in New York Times.
In 1967 the New York Times standard was extended to voluntary public figures who were not public officials (Curtis Publishing Co. v. Butts, 388 U. S. 130, 18 L. ed. 2d 1094, 87 S. Ct. 1975, reh. den. 389 U. S. 889, 19 L. ed. 2d 197, 88 S. Ct. 11). And in 1971 the federal supreme court in a plurality decision seemed to extend the protection of the Neio York Times rule to defamatory statements relating to private persons where the statements concerned matters of general or public interest (Rosenbloom v. Metromedia, 403 U. S. 29, 29 L. ed. 2d 296, 91 S. Ct. 1811). Also in 1971 the same court decided Time Inc. v. Pape, 401 U. S. 279, 28 L. ed. 2d 45, 91 S. Ct. 633, reh. den. 401 U. S. 1015, 28 L. ed. 2d 552, 91 S. Ct. 1248, a decision thought by Professor Prosser to extend the New York Times standard to reporting of court proceedings even if the report is inaccurate (Prosser, Torts, 4th ed., 1971, § 118, p. 832, footnote 64a.) — a view not shared by other writers on the subject (see Johnson, “Libel: The New York Times Standard in Reports of Judicial Proceedings”, 25 Sw. L. J. 800, 803, footnote 30). We need not struggle with the perplexities posed by these latter two decisions in view of a more recent one, Gertz v. Welch, - U. S.-, 41 L. ed. 2d 789, 94 S. Ct. 2997, decided June 25, 1974. There in a diversity action the person defamed was a lawyer who had been engaged in civil litigation against a convicted murderer. No factual basis existed for much of the defamatory matter published about him by the defendant, an organ of the John Birch Society. The trial court initially denied the defendant’s motion for summary judgment based on the public interest test expressed in Rosenbloom. It submitted to the jury only the issue of plaintiff’s damage. Later the trial court reversed itself and entered judgment for the defendant publisher notwithstanding the verdict. The court of appeals affirmed on the basis of Rosenbloom. After ruling that plaintiff’s past conduct or his part in the particular controversy made him neither a public official nor public figure, the supreme court reversed and laid down broad general rules in its balancing of the competing interests in the law of libel — the need for a free and vigorous expression of first amendment freedoms and the state’s limited but legitimate interest in providing a remedy for defamatory falsehoods. These rules were announced: A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the Neto York Times protection against liability for defamation on the ground the defamatory statements concern an issue of public or general interest; so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent; the states, however, may not permit recovery of presumed or pimitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury.
Thus, under Gertz, our old rule of strict liability applicable to reporting judicial proceedings which permitted recovery on no more proof than that the report was inaccurate, expressed in Stone v. Hutchinson Daily News, supra, is no longer constitutionally valid nor must the private citizen who is the subject of defamatory publication, even though the statement concerns an issue of public or general interest, be required to meet the New York Times standard of actual malice. The question remains as to the standards of liability for injurious defamatory falsehood about private individuals which best serve the wants and needs of our citizenry under the particular circumstances here.
Traditionally, as has been emphasized, a higher standard for reporting judicial proceedings has been required in Kansas, and elsewhere, than for other communications, for reasons already mentioned. Beyond this, persons are generally held accountable for their negligence — the lack of ordinary care either in the doing of an act or in the failure to do something. The whole theory of negligence presupposes some uniform standard of behavior for the protection of others from harm. The norm usually is the conduct of the reasonably careful person under the circumstances. Thus ordinary negligence connotes a degree of fault, as that term is generally understood. The mentally competent person, of whatever calling or station, is usually held accountable under that standard. There have been exceptions, of course, some of which no longer exist as in the guest-host motor vehicle relationship, but as stated in Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362: “, . . in a free society a citizen should be responsible for his tortious acts which injure the person or property of others.” (p. 755.) That the Kansas founding fathers were concerned with preserving a remedy for libel is evident in their provision in section 11 of our Bill of Rights that the liberty of the press shall be inviolate and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights, and their further proviso in section 18 that all persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law. This latter places injury to reputation on the same plane as that to person or property which have always enjoyed protection from negligence.
In reporting judicial proceedings the communication media today can have, as well they should, considerable impact on the life of the individual citizen. There is no reason they should not be accountable for their negligence in the exercise of that function in the same manner as others are in carrying on their affairs. We see little or no societal interest in protecting carelessness in reporting judicial proceedings at the expense of truth in matters potentially defamatory on their face. The damage done by negligent reporting of such court proceedings can be just as devastating to the individual as that resulting from false reporting done maliciously or in reckless disregard of truth and there should be no adverse effect on the first amendment freedoms in supplying a remedy for it — that available under ordinary rules of simple negligence. As said in Gertz:
“. . . there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 U. S., at 270. They belong to that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ (Chaplinsky v. New Hampshire, 315 U. S. 568, 572 [1942]).” (-U. S. -, 41 L. ed. 805, 94 S. Ct. 3007.)
Requiring the news media to use due care in gathering and reporting court proceedings where substantial danger to reputation is apparent from the published material should not prove onerous. Our holding then is, in reporting judicial proceedings a publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure is liable in damages for actual injury to the individual when the assertion of the falsehood is the result of the publisher’s or broadcaster’s negligence and when the substance of the assertion makes substantial danger to reputation apparent; the standard to be applied in determining such negligence is the conduct of the reasonably careful publisher or broadcaster in the community or in similar communities under the existing circumstances; further, when liability for defamation is based solely upon negligence the plaintiff may not recover presumed or punitive damages.
Under these rules, since appellant was neither public official nor voluntary public figure and the publication was one the substance of which made substantial danger to reputation apparent, rendition of summary judgment was premature and remand must be ordered to make the relevant inquiry whether appellee Globe negligently published the false statement. The parties, of course, did not prepare this case for trial in terms of negligence. The little in the record pertinent to the isue of the reporter’s negligence is ambiguous so as to make the matter of appellee’s liability under the doctrine of respondeat superior not presently determinable. The parties stipulated as they did prior to the change in the law rendered by Gertz, the appellant relying for recovery on the inaccurate reporting of judicial proceedings rule laid down in Stone v. Hutchinson Daily News, supra, and other precedent, while appellee relied on the New York Times standard.
The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
APPROVED BY THE COURT.
Kaul, J., dissents.
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The opinion of the court was delivered by
Foth, C.:
After a trial to the court Kenneth Warren Barry was convicted of aggravated kidnapping and sentenced to life imprisonment. He appeals, designating twenty-two points on appeal. Several of these encompass more than one claim, so that in all he alleges sixty-seven trial errors. In particular he complains of allegedly illegal searches and of the use of his confession. We have examined each of defendant’s allegations and find none which warrants reversal, either singly or in combination.
The charge against defendant stemmed from the abduction from Concordia and subsequent rape of a twelve year old girl on May 31, 1972. (The victim is termed “Miss K.” throughout the record and briefs, and we shall also employ that pseudonym.) The defense was aimed first at destroying the state’s evidence identifying Barry as the perpetrator of the crime, and second at showing lack of responsibility because of insanity or diminished responsibility because of intoxication. At the conclusion of the trial the trial court, in addition to a general finding of guilt, specifically found that defendant was sane at the time the crime was committed and was not voluntarily or involuntarily intoxicated, “at least not to the extent defendant was incapable of knowing or understanding the wrongfulness of his conduct or of conforming his conduct to the requirements of law.”
The evidence, which was contested in some instances on grounds of admissibility but was not otherwise disputed, established the following sequence of events:
On the evening of May 30, 1972, John R. Wilson checked into a motel in Riverside, Missouri, a suburb of Kansas City. He was a college student who had just arrived for a summer job in Kansas City, and had virtually all his belongings with him. Shortly after his arrival at the motel he was engaged in conversation by his next door neighbor, a man he described as 50 to 55 years old. Shortly after that the neighbor robbed him at gunpoint. After tying Wilson up his assailant relieved him of his billfold and his car keys. In a little bit Wilson heard him drive away in his car.
The car was a 1969 Chevrolet Caprice, yellow with a black vinyl top, bearing 1972 Missouri tags K4M-950. The front tires were brand new “Colts.” Across the back seat was a travel rod from which hung fifteen or twenty shirts, trousers and sport coats. The trunk contained a vacuum, cleaner, a footlocker, baseball bats and gloves, fishing tackle, and a rifle.
The next day, May 31, at about 10:00 a. m., Miss K. was accosted on the street in Concordia by a man who wanted her to do some modeling — he assured her she could clear it with her mother. She got in his car and he drove to the outskirts of Concordia. There he produced a pistol and told her to get down on the floorboard or he would put a bullet through her head; she complied. He then drove north out of town on U. S. highway 81 and, after crossing the Republican river, onto a country road. There he raped her for the first time in the front seat of the car. It hurt and she bled.
He drove on for a time on dirt roads and then stopped again. He tied Miss K.’s hands with her pantyhose and put her in the trunk, where she observed among other things a vacuum cleaner, a footlocker, a baseball bat and a rifle. He then returned to the highway and continued north into Nebraska. There he removed Miss K. from the trunk and had her ride again in the front seat. At one point he again turned off the highway and again raped her, this time on the grassy ground. After that he drove down the highway again and eventually turned off into an abandoned farmstead. There he put her into an empty shed or corn crib, tying her hands behind her with a tom-up shirt. She was tied in a sitting position, with her hands fastened to a brace wire. He left, and she remained there for, in her estimate, an hour or two.
Eventually her shouts attracted the attention of a farmer who had been cultivating com in a nearby field. He investigated, found Miss K. tied to the wall of the shed, and promptly called the sheriff’s office in Geneva, Nebraska. His call was received at 3:30 p. m.
Sheriff Olson and a deputy proceeded to the scene, arriving 15 minutes later. The farmstead is some 10 miles north of Geneva, the Fillmore county seat, and about 2 miles north of Fairmont. The shed was 150 to 200 feet from U. S. 81. The officers first photographed Miss K. and then released her. They also photographed the only set of automobile tire tracks found in the farmyard, and determined that the automobile which made them had turned north on highway 81. They then took Miss K. to a doctor in Geneva, who in turn took her to the county hospital where he examined her.
In the meantime, on highway 81 just three miles north of Fairmont and just one mile north of the shed, Trooper Albert Wise of the Nebraska state patrol was operating a traffic speed check. At about 2:00 p. m. he clocked a car going north at 72.6 miles per hour in the 65 mile zone. He promptly gave chase with red light and siren in full operation. The car accelerated, and there followed a chase of about 14 miles at speeds up to 110 miles per hour. The pursued car took first to the center and then to the left side of the road, putting oncoming traffic into the ditches.
Trooper Wise radioed for help, and eventually secured the services of two officers from the York county sheriff’s office. These officers met the two vehicles involved in the chase just south of York. Having no time to establish a roadblock, they pulled their car over and stood out in the highway. The lead car began to slide, turned broadside, and went off the road to the left or west side into the ditch.
Trooper Wise pulled up behind the car, jumped out and went around to the right-hand side and covered the driver with his gun. The two deputies came up on the driver’s side with their guns drawn and pulled the driver from the car. As they turned him Trooper Wise saw a pistol in his belt. The officers immediately threw him to the ground, removed the pistol, and handcuffed him. They then searched him and placed him in the patrol car.
Trooper Wise then conducted a search of the prisoner’s car. In the front he observed several items of ladies’ clothing — pantyhose, a bra, a shoe. In the back there was clothing hanging up. In the trunk was a rifle, a baseball bat, and a trunk. The license was a 1972 Missouri tag, K4M-950.
The prisoner refused to reveal his name or say where he was going or what he was doing, but complained of his head hurting him. The driver’s license in his billfold bore the name “John R. Wilson,” the victim of the previous night’s robbery.
Two of the officers transported the prisoner to the sheriff’s office in York, arriving around 2:30 to 2:45. The third officer stayed with the car and supervised its towing to a locked garage in York. At the sheriff’s office the suspect went down on his knees and wouldn’t get up, so the officers carried him into the office. After talking to the county attorney Trooper Wise read the suspect his constitutional rights. He ignored the officers’ questions, his only response being to complain of his head and pain.
After some 45 minutes, on the advice of the county attorney, the officers secured an ambulance and had the suspect taken to a medical clinic. There he was stripped to his shorts, and in his clothes was found an application for a Missouri driver s license with the name “Kenneth Barry” on it. This led in time to the identification of the suspect as the defendant in this case. A check with the National Crime Information Center revealed that Barry was wanted in Missouri for rape and aimed robbery.
The doctor who examined the defendant, Dr. Michael Breiner, found no injuries and no evidence of the presence or use of drugs or alcohol. His blood pressure was normal, although his heart beat was fast (92 per minute). His breathing was at a normal rate but irregular. He was perspiring a bit more than normal, but not enough to concern the doctor. The pupils were slightly dilated but equal, which ruled out “excessive or tremendous amounts of drugs.” The doctor concluded that the defendant was suffering some apparent emotional distress with possibly some hyperventilation as a result. He was not in need of treatment, but the doctor directed the injection of a placebo — consisting of a pure saline solution — to alleviate the emotional condition.
The doctor also found a small spot of dried blood on the defendant’s undershorts. Careful examination of the defendant’s person revealed no possible source of this blood. He revealed no evidence of bleeding.
Dr. Breiner thought Barry should be under medical observation. Since there were no secure medical facilities in York, the officers arranged for the ambulance to take him to the hospital at the state penal complex at Lincoln, some 45 or 50 miles away. He was received there about 4:30 p. m., stripped of his clothing, and put in bed in a locked hospital room.
At about this time, down in Geneva, Sheriff Olson and his deputy were arriving at the doctor’s office with Miss K. The sheriff’s office there had monitored the high speed chase on the radio, and the police mind began to click. Miss K. was positive the car she had been abducted in was a Caprice — the York sheriff’s office reported that the car in their custody was a Caprice. The Geneva officers went to York to examine the car, and particularly the tires. An external examination was made at about 5:15. The Geneva officers then returned to their office, where Miss K.’s statement was recorded. Her father had arrived from. Concordia and was present at that time.
In her statement Miss K. described the car as being yellowish- green with a dark blackish-brownish top. The word “Caprice” was on the glove box. She also described the contents of the car’s trunk where she had been confined as including vacuum cleaner attachments, a footlocker, a baseball bat, and a “shotgun.” The back seat contained around a dozen coats and shirts and ties. She mentioned that some of her own clothing was left in the car, including her pantyhose, bra and shoes.
Investigator Ronald Fink of the Nebraska state patrol had entered the case to assist Trooper Wise just after the defendant was examined by Dr. Breiner. Fink assisted in transporting him to Lincoln, and later in confirming the defendant’s identification. He also traced the owner of the 1969 Caprice through the Missouri state patrol. By 7:00 that evening he was talking on the telephone to John R. Wilson, confirming the identification of the car and securing a rather complete inventory of its contents. Wilson asked Fink to go through the car and see what might be missing.
Armed with Wilson’s permission, his inventory, and the description of the contents given by Miss K., Investigator Fink went around 9:00 p. m. to examine the car. He was accompanied by Trooper Wise, Sheriff Olson, Miss K. and her father. The officers found, sure enough, the pantyhose, bra, shoe, footlocker, baseball bat, and a seat full of clothes.
The following morning, June 1, 1972, Fink accompanied Lt. Lynn V. Parks, also of the Nebraska state patrol, when he interviewed defendant at the Lincoln penal complex hospital. Parks fully advised him of his rights, and defendant said he understood them. He declined Park’s offer to call his wife saying “she couldn’t help him in this situation.” When asked, Parks told defendant he was being held on the Kansas City, Missouri, charges of rape, robbery and auto theft. No Kansas or Nebraska charges had yet been filed, although they would be later that day. Defendant talked freely about his past criminal history, but he made no statements which incriminated him in the present crime or in the Nebraska rape.
Back in Kansas the present case was initiated that day by the filing of a complaint charging defendant with aggravated kidnapping. Agent Raymond D. Macey, of the Kansas bureau of investigation, proceeded to Lincoln to investigate. There, on June 2, 1972, he interviewed the defendant commencing about 9:35 a. m. The first thing defendant wanted to know was which state had precedence, Kansas or Nebraska. As Macey recounted it, “I told him that he was in Nebraska and it had precedence but that I wasn’t positive about this. Rarry asked about what would happen if he were convicted in Nebraska and then went to Kansas. I told him that if the charges still stood in Kansas, he would be brought to Kansas, stand trial and then be brought back to Nebraska. Then he asked if the Kansas charge was a capital offense and how execution was handled. I told him that it was a capital offense and execution was by hanging.” (This, it will be noted, was prior to Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726.)
Macey then explained defendant’s rights to him, read him a waiver form and secured his signature (in two places) at 9:50 a. m. Defendant did not read the form himself because he didn’t have his glasses with him. This fact was specially noted on the back of the form, together with a reiteration that he did understand his rights, and yet a third signature of defendant was affixed to the back. At that interview defendant talked about other troubles he had had, but denied any recollection of Concordia or any dealings with Miss K. The interview terminated shortly after 11:00 a. m.
At 2:00 that afternoon, just as Agent Macey was preparing to return to Kansas, defendant sent word that he wanted to see him again. Defendant was brought to the patrol office where his rights were again read to him and a second waiver signed. What defendant asked was that he be returned to Kansas and that he be treated fairly, with no harassment. The following exchange took place:
“[Macey]: Nobody is going to harrass you, nobody is going to mistreat you. You’re going to be treated as a prisoner.
“Barry: That’s alright, I can handle that.
“[Macey]: A felony, under this specific charge.
“Barry: I can handle that but I’ll get to be, just I’ll be treated fairly as a prisoner, right?
“[Macey]: I’ll guarantee that.”
Defendant then proceeded to confess in some detail to the abduction and rapes described above. This entire conversation was tape recorded and a verbatim transcript was introduced at trial.
On Monday, June 5,1972, defendant was arraigned in the Fillmore county court on Nebraska felony charges of rape, sodomy and fugitive carrying a concealed weapon. A Nebraska attorney was appointed to represent him at that time. On June 28, Nebraska waived its prior jurisdiction, defendant formally waived extradition in court at Lincoln, and was returned to Concordia. He was taken before the county court of Cloud county that morning, where present counsel was appointed.
Defendant’s first point on appeal is that his statements should not have been admitted into evidence. On his pretrial motion to suppress the trial court held an extensive evidentiary hearing and concluded by overruling the motion. That ruling is binding on us if a finding of voluntariness is supported by substantial competent evidence. State v. Wilson, 215 Kan. 28, 523 P. 2d 337. We think it apparent from the foregoing recital of evidence, nearly all of which was produced at the pretrial hearing, that the record amply supports such a finding. He was repeatedly advised of his rights, and the assurance that he would be properly treated as a felony prisoner is surely not an undue inducement to confess. He nevertheless contends that the delay from his hospitalization Wednesday night, May 31, to his presentment to the Nebraska magistrate on Monday June 5, vitiates his intervening confession. He cites no authority to support his contention and we are aware of none. There is no question but that during this period defendant was entitled to the assistance of counsel, but “[a]n accused may effectively waive the right to have counsel present dining police interrogation after, as well as before, formal charges are filed against him.” (State v. Melton, 207 K. 700, 486 P. 2d 1361, Syl. ¶ 3.) Defendant was repeatedly advised of his right to appointed counsel before talking to the officers and he repeatedly waived that right. The final interview with Macey in which he confessed was admittedly at his own request. There is nothing to- show that the confession was involuntary, and the court did not err in admitting it.
His next two points claim illegal searches of the automobile and of his person. These issues were also resolved against him after hearing on his pretrial motion to suppress, and properly so. The high speed chase and the presence of the pistol at defendant’s waist gave the officers ample probable cause to make the arrest (State v. Tygart, 215 K. 409, 524 P. 2d 753; State v. Atkinson, 215 Kan. 139, 523 P. 2d 737; State v. McCollum, 211 Kan. 631, 507 P. 2d 196), to search him (State v. Hazelwood, 209 Kan. 649, 498 P. 2d 607; United States v. Edwards, 415 U. S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234; United States v. Robinson, 414 U. S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467) and to search the car either as an incident to the arrest (State v. Tygart, supra; State v. Atkinson, supra; State v. Moretz, 214 Kan. 370, 520 P. 2d 1260) or wholly independently of the arrest (State v. Colin, 214 Kan. 193, 519 P. 2d 629; State v. Undorf, 210 Kan. 1, 499 P. 2d 1105; State v. Robinson, 203 Kan. 304, 454 P. 2d 527; Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975). Under the cases cited it was proper to search the car out on the highway and after it was towed to York, and it was proper to search the defendant’s person and clothing. None of the information derived from these searches was tainted in any way.
In his next three points defendant contends that all of Miss K.’s testimony, and in particular her identification of him, should have been suppressed and stricken from the record. Further he says, without her testimony there was insufficient evidence at the preliminary hearing to bind him over for trial in the first instance. His general objection to her competence is based on the fact that between the date of the crime, May 31, 1972, and the preliminary hearing on September 27, 1972, she had obviously discussed the case with many people, and in later recounting the events had difficulty in determining whether some details were the product of her independent recollection or the suggestion of family, friends or police. As to the identification, her first descriptions of her assailant were vague and general. Nevertheless she positively identified defendant at the preliminary hearing and at trial. Her in-court identifications were based, she said, on the several horns she spent with him.
This group of arguments, we think, go to the weight and credibility of her testimony, not its admissibility. Miss K., although only 13 at the time of trial, was clearly a competent witness. K, S. A. 60-417; State v. Jones, 204 Kan. 719, 466 P. 2d 283; State v. DeLespine, 201 Kan. 348, 440 P. 2d 572. The fact that there was no line-up before the preliminary hearing does not make her identification at that time fatally deficient. Dunlap v. State, 212 Kan. 822, 512 P. 2d 484; Reedy v. State, 210 Kan. 793, 504 P. 2d 146. Her in-court identifications could stand on their own. State v. Winston, 214 Kan. 525, 520 P. 2d 1204; State v. Lora, 213 Kan. 184, 515 P. 2d 1086; State v. Kelly, 210 Kan. 192, 499 P. 2d 1040. And, of course, quite apart from Miss K.’s identification there was ample other identification evidence. It seems clear 'that her abductor and rapist was the driver of the 1969 Caprice bearing 1972 Missouri tags K4M-950, with the clothes in the back; the footlocker, ball bat and rifle in the trunk; and her pantyhose, bra and shoe in the front. It is also clear from the circumstances of his arrest that defendant was the driver of that car.
In his next three points defendant complains of the deposition testimony of John R. Wilson in which he identified defendant as the person who held him up at the motel in Riverside and took his car, and the testimony of Missouri police officers relating to that robbery. The initial identification procedure through the use of photographs and newspaper articles was unduly suggestive, he says. The state concedes this much, but argues that the rest of his testimony was proper. The record is unclear as to just how much of the identification testimony was admitted and how much excluded, but it is clear that Wilson’s account of the robbery and description of his car and contents were properly admitted, and without objection. That much of Wilson’s testimony was all that was required for the purposes of this case although, as pointed out above, the defendant’s identification was clearly established by other evidence. Any error in admitting identification testimony of Wilson’s, if it was admitted, would have been harmless beyond any reasonable doubt. As to the police officers, their testimony depended on Wilson’s to the extent that they identified photographs of the car defendant was driving as the same car taken from Wilson. We fail to find either error or prejudice in admitting this testimony.
Defendant’s next two points raise numerous rulings on evidentiary matters, involving the scope of cross-examination, the admission and exclusion of opinions or conclusions, and the use of leading questions. We have examined each of these contentions and conclude that none of them approaches prejudicial error, particularly where the trial was to the court and not a jury. Cf., State v. O’Neal, 204 Kan. 226, 461 P. 2d 801; Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 349 P. 2d 931.
Defendant’s twelfth point is that the state failed to show that defendant intended “bodily injury” to his victim at the time he abducted her, as required by K. S. A. 21-3420 (c) (Weeks 1974), or that he in fact inflicted “bodily harm” upon her as is required to make the kidnapping aggravated under K. S. A. 21-3421 (Weeks 1974). The argument, although ingenious, is not sound. We have consistently held that rape supplies the element of “bodily harm” required to make a kidnapping first degree under our prior statutes. See, State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Ayers, 198 Kan. 467, 426 P. 2d 21; Sharp v. State, 203 Kan. 937, 457 P. 2d 14. And cf., State v. Schriner, 215 Kan. 86, 523 P. 2d 703. We think it likewise constitutes “bodily harm” so as to make a kidnapping “aggravated” under our present law. And we think the subsequent events provide ample basis for a ready inference that defendant intended the rape of this little girl when he lured her into bis car with a promise of a modeling job.
He also complains that the trial court did not make a specific finding as to whether defendant’s intent was to inflict bodily injury on Miss K. or merely to terrorize her. The evidence indicates he actually did both. The request for such a finding was made some ten days after the court announced its general verdict of guilt. On this record we fail to see how defendant was. prejudiced. See, State v. Scott, 201 Kan. 134, 439 P. 2d 78.
In point 14, defendant attacks the original arrest warrant, claiming there was an insufficient showing of probable cause to the Cloud county court when the complaint was filed. Assuming that were so, it would not vitiate his conviction. State v. Addington, 205 Kan. 640, 472 P. 2d 255.
In point 15 he claims error because when he first appeared before the Cloud county court at 11:00 in the morning of the day he was returned to Kansas and as his first stop in this state, he was not accompanied by counsel. At this hearing defendant was advised of the charges against him, his indigency was determined, and counsel was appointed. His contention that counsel should have been appointed earlier is groundless.
His next two points go to the specificity of the information and the court’s denial of his motion for a bill of particulars. He wanted to know whether the state claimed his intent was to “terrorize” or to “harm” Miss K., and whether it claimed he “took” her or “confined” her with that intent. The information was in the language of the statute and was sufficient. K. S. A. 22-3201 (2) (Weeks 1974). Defendant had a full preliminary hearing, and a bill of particulars was not necessary to advise him of the state’s claim. The court did not abuse its discretion in failing to require one. Cf. K. S. A. 22-3201 (5) (Weeks 1974); State v. Lora, supra.
In point 18 defendant claims the kidnapping statutes, K. S. A. 21-3420 and 21-3421 (Weeks 1974), are void for vagueness. He professes to be unable to understand what is meant by “bodily harm” or an intent to “terrorize” or to “inflict bodily injury.” We think the ordinary man would have no difficulty in -understanding what conduct is proscribed, and that the statutes are sufficiently definite. Cf., State v. Gunzelman, 210 Kan. 481, 502 P. 2d 705.
His next three points go to the test of criminal responsibility applied by the trial court. He urges us to abandon the M’Naghten rule both on the question of voluntary intoxication and insanity. We have just recently declined to do that, as to intoxication in State v. Seely, 212 Kan. 195, 510 P. 2d 115 and State v. Osbey, 213 Kan. 564, 517 P. 2d 141, and as to insanity in State v. Lamb, 209 Kan. 453, 497 P. 2d 275 and State v. Randol, 212 Kan. 461, 513 P. 2d 248. We are given no reason to depart from that standard now, and as will be pointed out, this case provides no vehicle for doing so if we were so inclined.
His final point is that the evidence fails to support the trial court’s finding of lack of intoxication and sanity. On the intoxication issue he points to defendant’s long history of drug problems, and compares the known symptoms of drug use to the observed condition of the defendant at the time of his arrest. He asserts that the court was required from this evidence to find that he was suffering from the sudden withdrawal of amphetamines. Suffice it to say, the testimony of Dr. Breiner that defendant was not under the influence of drugs or alcohol was sufficient to support the trial court’s findings on this issue. We cannot reweigh the evidence.
On the insanity issue, the expert testimony was not really in conflict. The state’s psychiatrist stated that defendant was not psychotic, that he was sane under M’Naghten, and that his capacity to conform his conduct to the requirements of law was only slightly —not substantially — impaired.
Defendant’s psychiatrist was of the opinion that if defendant had taken the amphetamines he said he had taken up to and including May 30, he would thereafter show incipient signs of withdrawal psychosis, and that assuming that was so, “at the time of the offenses charged, he was mentally disturbed and mentally upset to the extent of being in the early stages of a psychosis.” He went on to say, however, “My opinion is that Barry was aware of what he was [d]oing at the time and that he did know that what he was doing was against the law.” As to whether defendant was substantially incapable of conforming his conduct to the requirements of law, his response was: “I think there is a great deal of doubt about that.” He never came closer to expressing a positive opinion on that issue.
From this evidence it may be seen that even if the trial court had applied a test of criminal responsibility incorporating the element of substantial impairment of capacity to conform as a result of mental illness, as suggested by the American Law Institute and as adopted in a number of jurisdictions, the defendant here would not qualify. Under either M’Naghten or the A. L. I. test this defendant was responsible for his conduct.
We find no prejudicial error and the judgment is affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal by plaintiff-vendors from a judgment denying damages for breach of contract for the sale of real estate. The controlling question presented is the vendors’ measure of damages occasioned by the defendant-vendee’s breach of the contract. A detailed recital of the facts of this case is contained in this court’s opinion in Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442. Briefly, the pertinent facts and the chronology of subsequent events are as follows:
Plaintiffs Duffin and Haas entered into a written contract with defendant Patrick in April 1970, for the sale of seven tracts of land located in Mission, Johnson County, Kansas. At the time the contract was executed, the lots in question were zoned for a commercial office building. The contract price for the lots was $298,750. In Duffin, supra, we held defendant Patrick’s obligation under the contract was contingent only upon the property being rezoned to allow a retirement village building to be constructed; that such rezoning was approved by the zoning authority but rejected by Patrick because of alleged inability to obtain financing; that the contract was not conditioned upon Patrick’s ability to obtain financing to construct the retirement village, and upon his failure to carry out the terms of the contract he was liable in damages for such breach. We remanded the case to the district court for a determination of such damages.
On remand, it was stipulated by the parties that the transcript from the first trial would be entered into evidence and the defendant would be allowed to present additional evidence. No additional evidence was presented by the plaintiffs. The matter was taken under advisement by the district court and the parties were allowed to file suggested findings of fact and conclusions of law. Thereafter, the district court found plaintiffs had suffered no damages and entered judgment which granted plaintiffs their costs and incorporated defendant’s suggested findings of fact and conclusions of law. Plaintiff-vendors have appealed.
When a purchaser breaches a contract for the sale of realty, the seller has several remedies from which to choose. The seller may (1) seek rescission of the contract (Gonder v. Phares, 109 Kan. 322, 198 Pac. 962; Shear v. Helm, 195 Kan. 281, 403 P. 2d 941); (2) sue in equity for specific performance of the contract (Waynick v. Richmond, 11 Kan. 367 [* 488]; Malir v. Maixner, 174 Kan. 26, 254 P. 2d 282; Darby v. Keeran, 211 Kan. 133, 505 P. 2d 710); (3) sue in equity for forfeiture of the purchaser’s rights (Chambers v. Anderson, 51 Kan. 385, 32 Pac. 1098; Reger v. Sours, 181 Kan. 423, 311 P. 2d 996); or (4) sue at law for damages'occasioned by the breach (McCubbin v. Graham, 4 Kan. 340 [*397]; Methodist Episcopal Church v. North, 92 Kan. 381, 140 Pac. 888; McAdam v. Leak, 111 Kan. 704, 208 Pac. 569).
In the instant case, appellee-vendee breached the contract and the appellants Duffin and Haas elected to sue for damages for the breach. The appellants seek as their measure of damages the difference between their cost of acquiring the lots and the contract purchase price for the lots — their lost profit on the transaction — with interest thereon from the stipulated date of the breach, August 18, 1970. To support their position, appellants rely upon the theory underlying recovery of compensation for breach of contract, that is, the awarding of a sum which is equivalent of performance of the contract. (Steel v. Eagle, 207 Kan. 146, 483 P. 2d 1063; Vickers v. Wichita State University, 213 Kan. 614, 518 P. 2d 512; Fisher v. Mr. Harold’s Hair Lab. Inc., 215 Kan. 515, 527 P. 2d 1026.)
Clearly, losses that are a necessary result of a breach of contract are presumed to have been contemplated by the parties and may be recovered in an action for breach of contract. However, it is settled law in this state that where the vendee breaches a contract for the sale of realty, the measure of damages is the value of the vendor’s bargain, that is, the excess, if any, of the purchase price of the land over and above the market value. In Methodist Episcopal Church v. North, supra, we said:
“. . . When a vendee refuses to perform an executory contract of sale the vendor is entitled to the fruits of his bargain and to any damages he may suffer by reason of the nonperformance of the contract. When the title to the property has not been transferred nor possession changed and no part of the purchase price paid the measure of damages ordinarily applied is the difference between the contract price and the salable or market value at the time of the breach. (Citations.)
“It has also been held that in case of nonperformance the vendor is at liberty to resell the property, and if he does it publicly within a reasonable time and exercises due diligence in making the sale he may recover the difference between the contract price and the price at which it was sold in addition to the costs and expenses of the resale, and in such a case the price for which the property has been resold is prima facie evidence of its market value. (Citations.)” (1. c. 383, 384.)
The only evidence presented to the district court as to the market value of the property in question was that proffered by Mr. Kenneth H. Martin, appellee’s witness. The appellants stipulated to Mr. Martin’s qualifications to render an opinion as to the market value of the land, and he testified the value of the property was $333,000, an amount which exceeds the contract price. No evidence of special damages was offered by the appellants. It is incumbent upon the appellants to make it affirmatively appear that error was committed by the court below, and they have failed to sustain that burden. The record discloses the appellants have failed to prove any damages resulted from the breach.
We have considered other points raised by the appellants and find no error to have occurred under the facts as presented.
The judgment is affirmed.
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Per Curiam:
This is an appeal in a postconviotion proceeding under K. S. A. 60-1507.
Petitioner was convicted of rape and sentenced under the habitual criminal statute. No direct appeal was taken from the conviction and sentence.
The sentence was challenged by a pro se motion. The motion alleged: (1) The habitual criminal act as applied denied due process and equal protection of the laws; (2) The habitual criminal act arbitrarily and unreasonably imposed additional involuntary servitude; (3) The title to' Chapter 124, 1970 Session Laws of Kansas was invalid; (4) Counsel did not provide adequate representation.
The trial court denied relief at a summary hearing conducted without notice, in the absence of petitioner, and without appointing counsel to represent petitioner at the hearing. The trial court specifically ruled that an evidentiary hearing and appointment of counsel were unnecessary because no substantial questions of law or fact were raised, that the title to Chapter 124, 1970 Session Laws of Kansas was proper, and that petitioner s counsel provided adequate representation.
In this appeal the appellant has abandoned several of the foregoing contentions. He now contends that sentencing under the habitual criminal act constitutes cruel and unusual punishment and the trial court abused its discretion in applying the habitual criminal act to the appellant. These two issues were not presented to the district court and will not be considered for the first time on appeal. (Young v. State, 206 Kan. 318, 478 P. 2d 194.) Even if these issues were properly raised they have no merit. The argument that sentencing under the habitual criminal act constitutes cruel and unusual punishment has been heretofore rejected. (State v. Collins, 214 Kan. 247, 519 P. 2d 1396.) With regard to appellant’s assertion of abuse of discretion, there is a presumption that a public official will act fairly, reasonably and impartially in the performance of the duties of his office. (Gladen v. State, 196 Kan. 586, 413 P. 2d 124.) There is nothing in the record tending to rebut this presumption. (Cf. Addington v. State, 198 Kan. 228, 424 P. 2d 871.)
Appellant’s final contention is that the habitual criminal statute violates due process and equal protection by failing to provide guidelines for its application. This argument has been considered and rejected by this court. (State v. Troy, 215 Kan. 369, 524 P. 2d 1121; Kowalec v. State, 214 Kan. 779, 522 P. 2d 173.)
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action against the estate of the driver of an automobile by a guest to recover damages for personal injuries suffered in an automobile accident in Oklahoma caused by the alleged negligence of the driver.
The case was here before and the decision therein is reported in 141 Kan. 195, 40 P. 2d 396. The main question determined in the earlier decision was as to the jurisdiction of the Kansas court, which obtained jurisdiction of the parties, to hear and determine the common-law liability of the defendant for injuries sustained in an automobile accident in Oklahoma, which state did not have a guest statute. The case was reversed and sent back for another trial because we thought the verdict was excessive, which was possibly the result of admission of objectionable evidence. In the last trial no evidence of the same kind was introduced nor admitted in the record. The verdict for plaintiff in the first trial was $12,500 and in the last $12,063.55.
A supplemental petition was, by leave of court, filed by plaintiff shortly before the second trial. It alleged as the result of the injuries sustained by reason of the accident and the long confinement of the plaintiff on her back in bed, other developments necessitating two abdominal operations which were recently performed at considerable expense, physical and mental pain, worry and anxiety. The injury set out in the original petition was principally to her right leg, left arm, right ear, disfigurement, strains, bruises and contusions.
Appellant makes seven assignments of error, but embraces them in four questions involved: (1) Did the protest or scream of the plaintiff immediately prior to the collision, after traveling at the same rate of speed for some distance, relieve plaintiff from contributory negligence and make the driver liable? (2) the admission of experimental evidence as to the space in which the car could have been stopped without sufficient preliminary evidence of similarity or identity; (3) the excessiveness of the verdict; and (4) the necessity of a special instruction where there was evidence of probable loss of memory as to facts preceding the accident.
There was evidence introduced in this trial along four lines that was not in the former case, viz., (1) that which went toward proving the allegations of the supplemental petition as above stated, (2) that which showed the time and distance in which a car could be stopped at different speeds, (3) evidence of the appearance, attitude and conduct of the occupants of the car immediately before the accident furnished by-two ladies who passed the car just before the accident, and (4) expert evidence as to the probable loss of memory of facts preceding the accident where the witness has been rendered unconscious by the accident. The first two lines of new evidence were introduced by the plaintiff and the last two by the defendant.
It is unnecessary to go into detail as to the evidence that was introduced at both trials. Our sending the case back for a retrial was a recognition of the sufficiency of the evidence in that case to support the finding of negligence on the part of the driver and the want of contributory negligence on the part of the plaintiff.
Substantially the same evidence, with a few inconsistencies and the additional features and lines above mentioned, induced the jury under the instructions of the court to make the following answers to special questions in addition to its general verdict for the plaintiff for $12,063.55:
“1. What was the rate of speed of the Brady automobile prior to the accident? A. Sixty miles per hour.
“2. For how long a distance had such rate of speed been maintained? A. From one half to three fourths miles.
“3. Was the rate of speed found by you in answer to question No. 1 a careful and prudent rate of speed? A. No.
“4. Were any protests or remonstrances made by Virginia Pool, Sue Chaffee or Chas. Vaughan to James Brady about the speed of the car, and if so who made the said protests? A. Yes, Virginia, at or about second sign from north between sign and impact. Scream. Sue Chaffee after turned down south of Blackwell Junction, stop,' about to blow us out of car. Chas. Vaughan before and after Blackwell Junction. Slow, you are blowing girls’ hair, or words to that effect.
“5. If you find that Charles Vaughan protested, where was the car when the protest was made and what was said? A. At or near Blackwell, and said, slow down, you will blow girls’ hair down, also after turned south of Blackwell Junction, stop, you are about to blow us out of the seat.
“6. If you find that Sue Chaffee protested, where was the car when the protest was made, and what was said? A. Just after turned south of Blackwell Junction and she said, slow down, about to blow us to pieces, or words to that effect.
“7. If you find that Virginia Pool protested, where was the car when the protest was made, and what was said? A. She screamed at some point between second sign from north and point impact.
“8. Of what, if any, negligence was the driver, Brady, guilty? A. Driving fast, not heeding signs of warning on highway, not due regard to traffic, reckless driving.
“9. If you find for the plaintiff and against the defendant, then state how much you allow the plaintiff for each of the following items:
Winfield Hospital ................................................. $407.95
Ponca City Hospital ............................................... 389.10
Dr. H. L. Snyder ) Dr. Howard Snyder Dr. Cecil Snyder ) 1............................................. 395.25
Doctor McElroy................................................... 291.00
Doctor Vance ............ 167.00
Doctor McCue .................................................... 35.00
Nurse Alig ........................................................ 220.00
Two ambulances services, $15 and $3.75.............................. 18.75
Medicine, medical supplies, crutches, electric pad and appliances, not including medical supplies furnished by the Winfield Hospital and Ponca City Hospital............................................ 78.00
Past and future pain and suffering, including embarrassment and mortification, if any, arising from disfigurement.................. 4,500.00
Clothing damaged and destroyed in accident........................ 61.50
Permanent injuries, including therein physical injury and impairment of earning ability resulting therefrom; injuries to nervous system and mental injury and impairment not including any amount for impairment and mortification arising for disfigurement............ 5,000.00
Future medical and surgical expenses................................ 500.00
“10. Was the manner in which James Brady operated and controlled the car a direct and proximate cause of the accident? A. Yes.”
Our attention is directed to the fact that the making of protests was disputed by one witness and called in question by two others from their observation and the appearance of the parties, but such only furnishes a conflict of testimony and leaves the matter to the jury, which found in favor of protests having been made.
Again .it is urged that what the jury found were not protests, and if they were, they occurred too late to be effective. The court in its instruction No. 6 refers to such matters as “remonstrance” or “warning of danger,” which have substantially the same meaning as protests. In the testimony it is found that the attorneys on both sides and the witnesses used the word protest. Counsel for appellant, however, has in mind, as stated in the brief, that the “scream” of the plaintiff was made too late to do anything and therefore should not be classed as a protest. The jury found this scream of the plaintiff was made at some point between the second sign from the north and the point of impact, and the testimony of one or more witnesses fixes the location of this second sign from the north at approximately 135 yards from the cement turn, which is about 50 yards from the underpass where the accident occurred. The answer of the jury is not definite as to exactly where the scream was made in this intervening distance. This answer should be considered in connection with the other answers made by the jury as to “protests” made earlier by others in the party, and the other findings of negligence, such as “reckless driving,” will cover the failure to heed the protests or warnings given by plaintiff and others in the party. The allegations of the petition are such as would plainly come under the head of reckless driving.
This case is unlike the case of Balandran v. Compton, 141 Kan. 321, 41 P. 2d 720, where the jury found the negligence to be' such as was not charged in the petition, which eliminated all the other features of negligence.
Some of these alleged features of negligence, as well as some of those same ones named in the answer to question No. 8, can apply only to the driver.
It was held in the case of Howse v. Weinrich, 133 Kan. 132, 298 Pac. 766, that the petition stated facts sufficient to show the host was negligent and even reckless in operating the automobile, and that upon demurrer to the petition the court was not able to declare that the guest was guilty of contributory negligence because he was asleep at the beginning of the mishap resulting in his injury.
The case of Koster v. Matson, 139 Kan. 124, 30 P. 2d 107, is not quite applicable here because it was under the special guest statute of Nebraska, and although the general verdict and one of the answers to the special questions found the plaintiff not guilty of contributory negligence, yet the other special findings established contributory negligence. That is not the situation in the case at bar, but if her screaming was very late, as appellant maintains, the ruling in the case of Link v. Miller, 133 Kan. 469, 300 Pac. 1105, would be more nearly applicable.
“Where a passenger in an automobile could not see her apparent danger till a few seconds before the collision which caused her injury occurred, and the evidence showed that any efforts which she might have made to avoid the injury would have been unavailing, her failure to do anything to prevent the collision is not such contributoiy negligence as to bar her recovery of damages for injuries sustained therein.” (Syl. If 3.) (See, also, Webb v. Lipperd, 134 Kan. 764, 8 P. 2d 381.)
The argument of the appellant would be more nearly convincing if the only element of negligence found was speed, but that is only one of four.
Appellant urges strongly that there was error in the admission of experimental evidence without a preliminary showing of similarity or identity of condition. The evidence showing the distance at which an automobile could be stopped when traveling at certain rates of speed was based upon experiments made with a car of a different make than the one in which the accident occurred. It was made later than the other car and had the same kind of brakes, but with greater square-inch braking surface. Appellant insists that such evidence is incompetent unless based on similar or identical instrumentalities. This could practically never be found. Even thé same automobile, if repaired, would be different after being repaired than it was when new. Seldom could two cars be found that would be substantially alike in operation. This difference goes to the weight of the testimony rather than to its competency.
In the case of Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P. 2d 33, it was held:
“Error based on the admission of evidence touching the strength of an automobile like that of plaintiff to endure being capsized without serious damage considered, and held nonprejudicial.” (Syl. If 6.)
In 22 C. J. 759 under the heading of Similarity of Conditions it is said:
“It is not necessary, however, that the conditions should be exactly identical, but a reasonable or substantial similarity is sufficient, and the lack of exact identity affects only the weight and not the competency of the evidence, provided always that there is such a degree of similarity that evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented.”
This experimental evidence was met with the facts of difference which would enable the jury to make the proper comparison.
The next proposition submitted is that the verdict is excessive. We said in the former hearing of this case on page 203:
“Without minimizing in any way the seriousness of the personal injury of this plaintiff, we are constrained to hold the verdict is excessive. Counsel for plaintiff cites a larger verdict in a similar case, but many smaller ones can be cited, and the question is, under all the facts and circumstances of the case, is it fair and reasonable or is it excessive? We think it is excessive at $12,500.”
This verdict is $436.45 less, and plaintiff has introduced considerable evidence as to subsequent abdominal operations for two physical troubles, only one of which, however, under the surgeon’s opinion could reasonably be traced to the accident or the prolonged and confining treatment of the patient, keeping her on her back in bed for several weeks.
Appellant raises no question as to any of the items in the long list to which the jury gave answers .in special question No. 9, except the three items near the last of those answers, where the amounts allowed are $4,500, $5,000 and $500. The first amount is allowed for past and future pain and suffering, including embarrassment and mortification, if any, arising from disfigurement. The next is for permanent injuries, including physical injury and impairment of earning ability resulting therefrom, injuries to nervous system and mental injuries. The third is for future medical and surgical expense.
We have had difficulty in trying to locate in the abstract of the evidence the necessary items to make the full amount allowed in the third allowance, but possibly it may not be necessary to have detailed items to make up this amount any more than the others, as all of them refer in part at least to the future. It is difficult to conclude that there is not an overlapping in the first and second items, but strictly speaking there may not be.
We are furnished with numerous citations of decisions in this state and others on the question of excessive verdict, some of them stating the general rule that to be excessive it should shock the conscience of the court, and others giving the amounts of verdicts held to have been excessive and otherwise.
Counsel for appellee cites a rule of life expectancy and another rule based on higher standards of living, increased cost of food products and reduced rates of interest on investments, citing the fact that English history shows a gradual advance in the amounts approved by the courts as being not excessive. Every true citizen should hope for such forward movement in the standards of living, but the real question here is, where are we now? If this verdict is right for this cultured and refined young lady, accustomed no doubt to many superior comforts and privileges of home life and pleasures, what will be the proper amount for an average citizen suffering similar injuries tomorrow? If it is proper to consider the increased cost of food, we may properly think at the same time of the millions of unemployed and also of the ordinary ability of the average citizen to pay a verdict of this size. This case may be more serious and more deserving than many, or most others, but if we think the amount allowed by the jury is more than we sincerely believe we would feel justified in allowing the average citizen for the same injuries, we should hold it to be excessive. We think, as we did before, that the verdict in this case is excessive, and we believe it should be reduced by $2,000. Although the excess is frequently charged as the result of certain passion and prejudice, yet such connection is not necessary, as was held in Leinbach v. Pickwick Greyhound Lines, 138 Kan. 50, 69, 23 P. 2d 449.
The fourth proposition urged as error by the appellant is the refusal of the trial court to give one of the two instructions requested by defendant on the medical and scientific question as to the loss of memory of events which occurred immediately before the witness became unconscious by reason of a concussion. This was called by the medical expert witnesses retrograde amnesia, and it was intended to be made applicable to only one witness in this case, viz., the plaintiff. One witness described this term as a low-grade type of loss of memory due to excitement or shock, and said the time it extended back of the beginning of the unconsciousness depended upon the severity of the concussion. The trial court properly admitted this evidence, and gave the jury the general instruction as to the weight of the evidence, the credibility of the witnesses and their means of knowing the things about which they testified, which in a general way covered the specific matter as to the loss of memory of the plaintiff of events occurring before the concussion. Either one of the instructions on this line requested by the defendant would be singling out the expert evidence as to plaintiff, which is contrary to the rule in this state, where the court is not permitted, as in some other courts, to discuss the details of the testimony. In the case of Smart v. Railway Co., 80 Kan. 438, 102 Pac. 253, it was said:
“The fourth request singled out a particular circumstance, held it up before the jury, told them to take it as evidence, and told them its weight and effect under certain conditions. Of course this request was properly denied.” (p. 439.)
In the case of Hill v. Railroad Co., 113 Kan. 489, 215 Pac. 310, where the physicians said the plaintiff’s brain was severely injured, the court gave the following special instructions:
“ ‘There is some testimony before you gentlemen, produced here by experts. With regard to this testimony, I may say, it is here to help, aid and assist you in arriving at what this man’s condition is or was at the time the examinations were made, and assist 3'ou in determining what, if any, is the damage that he has sustained. . . .’ ” (p. 491.)
The judgment was reversed on account of the same, and the court said in the opinion on page 492:
“The testimony of experts should be considered like any other testimony, not singled out and given special significance. It is subject to the same tests and should receive as much weight and credit as the jury may deem it entitled to when viewed in connection with all the circumstances of the case.”
In Haines v. Goodlander, 73 Kan. 183, 84 Pac. 986, it was held:
“The court should be careful not to mislead the jury by singling out and giving undue prominence to a particular fact in the case, nor by unduly emphasizing the contentions of either party, but it is often necessary and proper for the court to speak of important features in the evidence, and advise the jury as to the rules of law applicable to such facts.” (Syl. If 6.)
We find no error in refusing to give such instructions.
The judgment of the district court is modified, provided plaintiff assents to the modification by reducing the judgment $2,000, the appellee being given the election to accept such reduced amount or a new trial. As modified the judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries sustained in an automobile casualty alleged to have been caused by the negligence of defendant. The jury answered special questions and returned a verdict for plaintiff for $8,000. The defendant has appealed. We shall speak of the parties as they appeared in the trial court.
While several questions are argued on the appeal, we find it necessary to consider but one of them, namely, Was there sufficient evidence to sustain the verdict? The facts may be stated as follows: U. S. highway 81, an arterial state highway, enters the city of Caldwell from the east. It carries a heavy vehicular traffic. It is paved with a cement slab eighteen feet wide, with a black line in the center, and has dirt shoulders four feet wide on each side of the slab. A short distance east of the city limits there is a bend in the highway commonly spoken of as an S curve. Within a mile or so east of the city limits there are a number of residences, a dozen or more, facing the highway, some on the north side and some on the south. There is quite a little pedestrian travel along this highway. Just within the city limits there is a filling station on the north side of the highway. Plaintiff’s home is with his parents in New Mexico, but at the time of the casualty he was staying with relatives who lived a mile east of Caldwell on the south side of the highway, and was attending high school in Caldwell. He ordinarily walked back and forth to high school and frequently “thumbed” a ride with some motorist. The evening of February 15, 1933, he left the place where he was staying to go into Caldwell to attend a meeting of high-school students. He walked across the highway and west along the north shoulder toward Caldwell. He was dressed in a blue serge suit with a dark topcoat, which had a high collar, without a hat, and was carrying a bundle in his hands. The shoulder of the highway was described as being dry, but there had been moisture from rain or snow a few days before and as he walked along the shoulder he got some mud on his shoes. The air was chilly, a breeze was blowing, and to protect himself from it he raised the collar of his topcoat and pulled his head down. He was watching out to catch a ride, and as cars approached him from the rear he turned, faced the south, and stepped up on the edge of the cement slab to “thumb” a ride. As many as three, perhaps five, cars had passed him without picking him up. He had walked to within a quarter of a mile of Caldwell, and was near the S curve when he heard a car approaching from the east. He did not see that it had any lights — in fact, he testified it had no lights. He turned to the south, looked and saw a car approaching from the east within a few feet of him. He was struck and thrown to the side of the pavement and sustained severe injuries. The most serious of these resulted from the fact that his head came in contact with the handle on the door of the car. This appeared to have struck him from in front, near the top of his head, just above the/hair line and a little to the right of the center, breaking a hole in the skull and causing severe injuries, some of which are permanent. The impact broke the handle off the door of the car, which later was found in several pieces near where he lay. This happened about 6:45 o’clock in the evening, which was about an hour after sunset. A few minutes after the casualty a motorist, driving into Caldwell from the east, observed his body lying on the shoulder near the pavement. He went to the filling station and described what he had seen to the attendant there, and-together they went back and found plaintiff, who was then lying stretched out on the shoulder of the highway parallel to the pavement, about six inches from the edge of it. They also found parts of the broken door handle of the car. Plaintiff was asked if a car hit him and he said “Yes.” He was asked which way it 'came from and he said it was coming from the east. Plaintiff was taken to the hospital, where he was treated for his injuries.
Defendant and her husband, who was an employee of the telephone company and whose work had taken him away from home that day, lived in an apartment at Caldwell. A Mrs. Randall and her husband lived in an apartment on the same floor. The two women were good friends and spent much time together. A Mr. Moore also lived in the same apartment house, and was well acquainted and on friendly terms with defendant and her husband and with Mr. and Mrs. Randall. The afternoon of February 15 defendant and Mrs. Randall were spending the time together, and sometime in the afternoon concluded to drive to Wellington, twenty-eight miles, and back, simply for the ride. Defendant had a Buick coupé, 1928 model, which she drove. They drove to Wellington, and without getting out of the car there turned and drove back to Caldwell at a speed of 35 to 40 miles per hour. They got back to their apartments about seven o’clock. As they were coming into Caldwell from the east defendant had the lights burning on her car. Near the S curve they met a car coming from the west. Defendant was driving and kept close watch of the black center line of the highway. Neither the defendant nor Mrs. Randall saw the plaintiff, nor did they notice any impact on their car, or anything else to indicate that they had struck anything or anybody. After being at their apartment perhaps fifteen or twenty minutes they went down to defendant’s car to go to a restaurant for supper. As Mrs. Randall was getting into the car from the right-hand side she noticed the handle was gone from the door and called defendant’s attention to it. This provoked some comment as to its loss. Mrs. Randall’s husband would be home at nine o’clock. After defendant and Mrs. Randall had eaten supper they concluded to drive till near that time. In doing so they drove about town and east on U. S. highway 81 a mile or more to a cross road, where they turned around and drove back into town. In turning at the cross road Mrs. Snyder backed her car too far into a ditch where there was mud and her car got stuck. Passersby helped her to get out. They went to their apartment about nine o’clock. After Mr. Randall came in defendant, Mr. Moore and Mr. and Mrs. Randall played bridge until nearly midnight. Sometime late in the evening Mr. Moore spoke of plaintiff’s having been injured by an automobile and stated the only clue as to the car which struck him was broken pieces of the handle of a car door found near him. This reminded defendant and Mrs. Randall of the fact that the handle was missing from the right door of defendant’s car, and the possibility that her car might have struck plaintiff was discussed. From the evidence this is the first defendant had any intimation that her car had struck plaintiff. The broken pieces of the handle of the car door found near the plaintiff soon after his injury were put together and they fitted defendant’s car. At the trial it was in effect conced-ed defendant’s car is the one that struck plaintiff. Witnesses who examined the shoulder of the highway where plaintiff was found and near there, some of them that night and some early the next morning, were unable to find any tracks of the tires of an automobile on the shoulder of the highway, although the shoulder was sufficiently moist that the tracks of persons who walked there were plainly seen. The tires of the car would have left a track had they passed over the shoulder of the highway.
The jury answered special questions as follows:
“1. At what rate of speed was the defendant’s automobile moving immediately prior to the accident? A. Forty miles per hour.
“2. Did the defendant see the plaintiff immediately prior to the accident? A. No.
“3. Where did the accident occur with reference to the edge of the paved slab?' A. Shoulder close to edge of slab.
“4. Were there two lighted headlights on defendant’s automobile at the time of the accident? A. Yes.
“5. What, if any, negligence do you find as against the plaintiff? A. None.
“6. What, if any, negligence do you find as against the defendant? A. Failure to anticipate presence of pedestrians on the highway and to keep a lookout for pedestrians.”
The answer to the seventh question itemized the amount of the verdict.
Defendant’s motion to set aside the answers to special questions 3, 5, 6 and 7 for the reason that they were not sustained by the evidence was overruled. The answer to special question No. 3 apparently was not construed as a finding that defendant’s car was driven off the slab and onto the shoulder of the highway. If it were so construed there is no evidence in the record to sustain it, and it should have been set aside. If it is construed as meaning that the casualty occurred near the edge of the slab where it meets the shoulder of the highway, it is sustained by the evidence.
Appellant further contends that the answers to special questions 5 and 6 are not founded upon any substantial evidence, but are based upon speculation and conjecture; and further, that the answer to question No. 6, as it applies to the facts in this case, is not a finding of negligence of defendant which will support the verdict. We find no evidence in the record that defendant failed to keep a lookout for pedestrians, or to anticipate their presence on the highway. Appellant argues this finding of the jury could be arrived at only by arguing backwards, thus: Plaintiff was struck by defendant’s automobile; defendant did not see him prior to the time she struck him, therefore she failed to anticipate his presence on the highway and to keep a proper lookout for him. Plaintiff answers this argument by saying that even if the finding were arrived at in that way it is logical. But that does not necessarily follow. It would have been just as reasonable and as logical under the evidence for the jury to have found that when plaintiff, walking along the shoulder of the highway, heard defendant’s car approaching from behind him he turned, faced the south, as he testified, and stepped up on the edge of the pavement, as he testified was his custom, and stood or leaned so near the car as to be struck by it.
In support of the view that the answer to question No. 6 is a finding of negligence of defendant upon which the verdict in this case could be based, quotations are made from several of our cases respecting the duty of the driver of .an automobile to anticipate pedestrians or other vehicles on the highway and to keep a lookout for them. The earliest of these cited is Arrington v. Horner, 88 Kan. 817, 129 Pac. 1159. In that case the driver of the automobile along a dirt road overtook a four-horse team and wagon, and in front of that a two-horse team and wagon, with a saddle horse tied to the side. The driver of the automobile turned to the right to go around these teams. He passed the four-horse team without incident, but in passing the other team the saddle horse suddenly got in front of the automobile and was injured. In the action for recovery of damages to the saddle horse judgment was.for defendant. This was affirmed. It was held the driver of an automobile, when meeting or passing persons driving or riding domestic animals, shall exercise the care and caution to prevent injury and insure safety which a reasonably prudent person would exercise, taking into consideration all the elements of the situation, including the appearance and attributes of his peculiar kind of vehicle; that a corresponding duty rests upon a person riding or driving the domestic animal, and that it is the duty of a driver on the public highway, whether of an automobile or of domestic animals, to look ahead and see whatever there may be in the line of his vision which would affect his driving. It is pointed out in the opinion that the statute being considered “did not make the automobile driver an insurer.” Plaintiff also cites Giles v. Ternes, 93 Kan. 140, 144, 143 Pac. 491. That case came to this court to review a judgment for defendant on his cross petition. Plaintiff was driving an automobile west on a country road. Defendant was driving a horse hitched to a buggy, going east. The highway was eighteen feet wide and both were using the beaten track; it was after dark; the vehicles collided; each blamed the other. The judgment was affirmed. The court held it is the duty of a motorist to keep a vigilant watch ahead for other vehicles as well as pedestrians on the highway, and lights are required to enable him to see persons and vehicles on the highway in time to avoid them. Plaintiff also cites Kelly v. Vucklich, 111 Kan. 199, 206 Pac. 894, a wrongful death case. In that case a boy seventeen years old was driving pigs along a city street in the daytime. Defendant, driving a car and racing with-another car in the street, negligently drove into the boy, killing him. A judgment for plaintiff was affirmed. Another case cited by plaintiff is Stotts v. Taylor, 130 Kan. 158, 285 Pac. 571. In that case two women were walking along the left-hand shoulder of a paved highway. Friends of one of them,- in a car going in the same direction, stopped on the other side of the pavement and called to her that they would take her home. She started to walk across the pavement. A truck was coming from her left. It was daytime, the driver of the truck saw her, and she could have seen the truck. There was conflicting evidence as to whether, while she was walking on the side of the pavement, she suddenly stepped in front of the moving truck, or whether the truck was driven against her when she was standing on the edge of the pavement and there was sufficient room on the highway for the truck to have passed her safely. The jury resolved that conflict in favor of plaintiff. The judgment was affirmed. The court held:
“The driving of a motor vehicle against a person standing upon the highway, where the pedestrian was seen by the driver, and there was ample time and opportunity to pass or to avoid striking the person, will ordinarily constitute negligence of the driver.” (Syl. f 3.)
The court also held:
“Pedestrians and drivers of motor vehicles have equal rights upon a highway, but each must use as reasonable care as the circumstances require and exercise his right with due regard to the rights of others using the highway.” (Syl. H 1.)
The case before us is readily distinguished from any of these cases cited and relied upon by the plaintiff. Here defendant did not see plaintiff, nor did she have any knowledge that he was walking along the shoulder of the paved portion of the highway; neither did she drive off the paved portion of the highway. His clothing was dark, and he was walking with his head down in the collar of his topcoat. He was on the shoulder near the right-hand side of the paved portion, going with the traffic on that side of the pavement, instead of being on the other side of the paved portion going against the traffic, where both he and the driver of the vehicle could see each other more plainly.
Defendant testified that about the time when her car must have come in contact with plaintiff she was meeting and passing a car from the opposite direction on the S curve, and that she was watching closely the black mark in the center of the pavement. She was asked how far she could see the mark with her lights. She disclaimed any judgment of distances, but being pressed answered affirmatively when she was asked if she could see it twenty feet ahead of her. She did not know whether she could see it a greater distance or not. Plaintiff argues from this that defendant’s lights were not good enough to enable her to see objects ahead of her in the highway a sufficient distance to enable her to stop. We understand her testimony tó relate to the distance she could see the black mark in the center of the pavement ahead of her. We do not understand her testimony went to show how far she could see objects ahead of her on the highway. Her apparent lack of judgment of distances made the testimony of comparatively little value anyway. There is no testimony that there was anything wrong with the lights, and the jury found they were burning, although plaintiff had testified that the car had no lights. There is no evidence as to how close to the edge of the pavement defendant was driving, unless it can be assumed that she was nearer the outer edge of the pavement in order to pass with safety the car approaching her on the S curve, which would have been prudent, or unless it can be assumed from the very fact that the car came in contact with the plaintiff. That could have happened just as easily, however, by plaintiff turning with his face to the south when he heard the noise and stepping up on the edge of the pavement, as he testified was his custom. We find nothing in the evidence but speculation upon which to predicate liability of defendant. The simple fact that there was a collision and someone was injured is not of itself sufficient to predicate liability. (Zinn v. Updegraff, 113 Kan. 25, 35, 213 Pac. 816; 9 Blashfield Cyclopedia of Automobile Law, 399.) It is familiar law that negligence is never presumed; it must be established by proof. Like any other fact, it may be established by circumstantial evidence. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599.) But the circumstances “relied on must be of such a nature and so related one to the other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established.” (Cornwell v. O’Connor, 134 Kan. 269, 271, 5 P. 2d 861.) “A fact is not proven by circumstances which are merely consistent with its existence.” (Canestro v. Joplin-Pittsburg Rld. Co., 135 Kan. 337, 341, 10 P. 2d 902.)
In Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 Pac. 1103, it was held:
“A finding of negligence cannot rest on mere conjecture, but must be established by competent proof.” (Syl. HI.)
See, also, Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830, and A. T. & S. F. Rly. Co. v. Toops, 281 U. S. 351, reversing Toops v. Atchison, T. & S. F. Rly. Co., 128 Kan. 189, 277 Pac. 57.
From a careful examination of the record in this case we are forced to the conclusion that the verdict in favor of plaintiff is predi cated upon mere conjecture as to how the casualty occurred and upon pure speculation as to negligence of defendant, and that the judgment based on the verdict cannot stand. It necessarily follows that the judgment of the trial court must be reversed with directions to render judgment for defendant.
It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a widow, as administratrix, for damages on the ground of negligent operation of a bus, resulting in the death of her husband.
Plaintiff recovered, a.nd defendant appealed. One of appellant’s contentions is, the trial court erred in overruling its demurrer to appellee’s evidence. This contention requires a review of appellee’s evidence. The pertinent portions thereof are:
James A. Hill, husband of appellee, was fatally wounded at Admire Junction, by one of appellant’s passenger buses. At the time of the accident, deceased was operating a filling station and lunch counter, and fixing tires at Admire Junction. Appellant’s stage, when flagged, stopped there to pick up passengers. For some period of time deceased, under arrangements with one of appellant’s bus drivers, had flagged the stage for appellant when passengers desired to board it. The bus driver had left a red flag with deceased for this purpose. It Was in connection with flagging the stage on the night' of September 4, 1933, that deceased was fatally injured. Admire Junction is on highway 22 and 11, north of Emporia. The junction is formed by U. S. highway 50, running east and west, and highway numbered 22 and 11, running north and south. About 500 feet south of highway 50, highway 22 leaves or curves off from highway 22 and 11, and runs northeast into highway 50, and highway 11 continues north from the point where highway 22 curves off from highway 22 and 11, intersecting highway 50; there is also a curve leaving highway 11, north of highway 50, which curves and runs southeast into highway 50. Between the point where highway 22 leaves highway 22 and 11 and joins highway 50, there is a triangular piece of ground, referred to throughout the trial as “the triangle.” This triangle was referred to by some of the witnesses as “the safety zone.” (The triangle is not designated as a safety zone, and the trial court rightly instructed the witnesses not to refer to it as such.) The triangle is covered with gravel and is not a part of the regularly used highway. The width of the curve is thirty feet between the fences, and the traveled part of the curved road or bituminous mat is twenty-six feet. Highway 22 and 11, coming from the south, comes down g hill from the south to about the point where highway 22 curves off of highway 22 and 11, to make the junction with highway 50, running east and west. These three roads were covered with a bituminous mat. From the junction of these roads highway 50 continues east. The space covered by the bituminous mat at the junction just east of the triangle is about sixty feet in width. The curve and highway 50 were fairly smooth and level at the time of the accident. The triangle is about thirty feet in width at the west end and runs out to a point at the east end. The triangle is northwest of the curve.
The filling station of deceased was located to the south and east of the curve. The east side of the filling station is approximately due south of the east point of the triangle. A relative position of these roads is shown by the drawing on page 46.
The drawing is not presented as an accurate reproduction, but solely for illustrative purposes and in order to enable the reader to more readily visualize the general situation. The filling station pumps are about twenty-six feet from the edge of the mat.
Deceased in the. past had always used the triangle as a signaling point for appellant’s buses. On this particular occasion he had done likewise and was standing either in the triangle or on the edge of it while waving the flag. The entire curve and road to the north was lighted by the lights from the filling station. He could be seen on the triangle at night by the driver of a vehicle coming from the south at a point farther than 225 feet south of the triangle. The curve was twenty-six feet wide. The bus was negotiating the curve on the left or northwest side, at fifty miles an hour. It did not stop after striking deceased until it had traveled about three times its length. The daughter of deceased testified:
“Q. After that, Lola, what did your father do? A. He took the flag and walked out to this triangle.
“Q. Now can you point about where he was? A. Well, he came out here across from in here and he stood right at the edge of this safety zone or triangle here (indicating) . . .
“Q. Which side of the road was that bus coming on? A. It was on the left-hand side when I seen it.
“Q. Would that be the south side of the road or the northwest side of that road, of 22? A. Well, it would be the northwest side.
“Q. Just show on there where it would be. A. Well, it would be right along here on this side (indicating).
“Q. What was your father doing at the time that — could you see your father? A. Yes, sir.
“Q. And what was he doing, Lola? A. He was waving the flag up and down.
“Q. Which way was he facing? A. He was facing the southeast.
“Q. Just show the jury how his arm was. A. Just as the bus hit him, he had his arm up.
“Q. Did you see the bus strike him? A. Yes, sir.”
The daughter testified concerning where her father was standing before he crossed the highway. She said she “couldn’t say just exactly where he was standing, he was just on the outside in the drive there.” She further testified that after' her father started across the road she stood at the east side of the pump and watched him. She saw the lights flash from the bus but did not see the bus until it was right close to her father, that she didn’t take her eyes off of her father at all, and was watching him wave the flag until he was struck. She stated he was waving the flag with his right hand and facing rather to the southeast, and that she did not see him make a move of any kind. The daughter testified he was struck on the right side. The testimony of the attending physician corroborated this fact. He testified deceased was suffering from—
“Fracture of the base of the skull, with free hemorrhage from the right ear. Fracture of fifth and sixth ribs on the right side in the anterior auxiliary region, with crushing injuries to the chest. Fracture of the right femur in the middle third with two inches overriding posterior displacement of the lower fragment. Cuts and bruises on the scalp. That is briefly it.
“Q. From these injuries would you say that this exterior violence which you have described, was for the most part on the right side and face of the body of James Hill? A. It was.”
The doctor further testified he removed a piece of gravel about the size of a large pea from the scalp wound above the right ear. The triangle was covered with gravel. On cross-examination of the daughter it was shown that a car coming from the west on highway 50 could travel across the east end of the gravel-covered triangle. The purpose of this cross-examination was calculated to show that a car, if traveling there, might carry some gravel onto the highway and that deceased might have gotten the gravel in his scalp while on the highway and not necessarily while on the triangle. There was evidence, however, no gravel was on the highway on this occasion.
The deceased, after being struck, was found northeast of. the center line of highway 50, and about three feet from the bus and about two thirds of the way back along the side of the bus.
Deceased wore overalls and often carried folded bills in his watch pocket. This pocket was not torn before but was torn after the accident. It was a still moonlight night. A folded dollar bill was found on the highway behind the bus. It was found north of the center of highway 50. A tire tester used by deceased was found over the north side of highway 50. The glass in the left front headlight of appellant’s bus was broken. It appears this glass was on the south edge of highway 50.
In support of appellant’s contention that the trial court erred in overruling its demurrer to appellee’s evidence, appellant compares the testimony of its own and appellee’s evidence. In ruling on a demurrer to evidence, the court does not pass on conflicting evidence; (Kerr v. Kerr, 85 Kan. 460, 116 Pac. 880; Hyland v. Railway Co., 96 Kan. 432, 151 Pac. 1107; Rosenfeld Co. v. Gleed, 110 Kan. 75, 202 Pac. 611; Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008.)
In the case of Prewett v. Sholl, 120 Kan. 158, 242 Pac. 149, this court restated the rule which had been many times previously stated, when it said:
“In passing upon the demurrer the court was required to view the evidence given in the light most favorable to plaintiff and allow all reasonable inferences in her favor.” (p. 162.)
See, also, Rowan v. Rosenthal, supra; Lundstrom v. Nelson, 114 Kan. 324, 219 Pac. 509; James v. Grigsby, 114 Kan. 627, 633, 220 Pac. 267; Holloway v. Gano, 120 Kan. 256, 243 Pac. 317.
In the case of State, ex rel., v. Gerhards, 99 Kan. 462, 162 Pac. 1149, the rule was stated thus:
“Tested by demurrer, the evidence was entitled to full credence and to be' considered in its most favorable and propitious light towards the party which adduced it.” (p. 464.)
Applying the foregoing rule to appellee’s evidence, we are obliged to hold the evidence established negligence on the part of appellant. Deceased had stationed himself on or at the edge of the gravel triangle, a place of safety relative to a vehicle coming from the south and turning east. According to the daughter’s testimony, deceased took the flag and walked out to this triangle and stood right at the edge of it waving the flag. He was facing the south and east; she did not see him make a move. He was flagging the bus in accordance with previous arrangements made with appellant’s bus driver and in keeping with his past' practice. He was visible to the bus driver from a distance of more than 225 feet. For the bus driver to negotiate the curve at- fifty miles an hour on the extreme left or wrong side of the highway, with nothing to prevent the bus from occupying any other part of the entire road, except possibly its own speed, and strike deceased, stationed where he was, clearly presented a case of negligence for the jury. The demurrer to the evidence was properly overruled.
2. Next, did the conduct of deceased constitute contributory negligence as a matter of law? Appellant insists it did.
If appellant is entitled to judgment on the ground of contributory negligence it must be solely as a matter of law, for the jury’s verdict acquits deceased of contributory negligence as a matter of fact. It is contended the daughter testified her father went across the-road and that she couldn’t say exactly where he was standing, he toas just outside on the drive. That testimony, as previously pointed out, referred to where deceased was standing on the drive at the filling station before he crossed the road. It did not refer to his location when he was struck. The daughter definitely fixed his location after he crossed the highway with the flag, on a point at the edge of the triangle. Appellant’s answer admitted deceased had taken a position in the triangle. The answer stated: “Said accident would not have occurred had the said James A. Hill stayed in said triangle of said intersection.” The daughter testified she never took her eyes off her father and she did not see him make a move of any kind. It was there, she testified, he was struck. It was, of course, not contended by appellant that for deceased to be struck by a bus while it was on the wrong side of the highway and while deceased was standing on the edge of the triangle, signaling for appellant to stop, constituted contributory negligence. Appellant’s answer alleged what it claimed constituted the specific contributory negligence. Appellant charged it consisted in leaving the triangle and disregarding the fact the bus was approaching and running across the road into the path of the bus in such manner that the driver was unable to stop the bus or avoid hitting deceased. The evidence of appellee did not support in the remotest the contributory negligence charged by appellant.
Appellant’s evidence quite strongly supported its allegation of contributory negligence. The first question, therefore, was whether the accident occurred as related by appellee or whether the proximate cause were the acts charged as constituting contributory negligence. This question could not be answered as a matter of law. The ease of Stotts v. Taylor, 130 Kan. 158, 285 Pac. 571, is in some respects similar. The facts, however, were much more favorable to defendant, as 'defendant was on the proper side of the street. Defendant in that case also contended the pedestrian was guilty of contributory negligence in that she stepped squarely in front of the vehicle and that a demurrer to her evidence should have been sustained. This court said:
“Upon the evidence, the matter in dispute whether deceased exercised due care in the situation and the existing conditions or was guilty of contributory negligence, was a fair question for the determination of the jury. (Wyatt v. Tanquary, 101 Kan. 581, 168 Pac. 858; Kelly v. Vucklich, 111 Kan. 199, 206 Pac. 894; Nicholas v. Wiles, 126 Kan. 687, 271 Pac. 307; O’Dowd v. Newnham, 13 Ga. App. 220; Towle v. Morse, 103 Me. 250; Stephenson v. Parton, 89 Wash. 653; Schock v. Cooling, 175 Mich. 313; Diamond v. Cowles, 174 Fed. 571.)” (p. 162.)
In Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, the rule was stated thus:
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.” (Syl. IT 4.)
3. Assuming deceased left the edge of the triangle and moved to the right, back to the left and then back to the right as appellant’s witnesses say, the verdict still could not be set aside, as a matter of law. The testimony of the driver clearly indicated confusion in the mind of deceased. The driver testified, “When I thought he was confused I put the brakes clear to the floor.” That obviously was too late, as deceased was nevertheless struck. Who was responsible for the dilemma and confusion with which deceased was confronted? If the jury believed the bus was moving toward deceased standing on the edge of the triangle at the rate of fifty miles per hour, or 73.33 feet per second, with the lights from the bus upon him, his confusion is easily explained. It was the province of the jury to determine the responsibility for his peril and confusion. Did deceased in his confusion, with a split part of a second in which to determine his course of action, choose wisely, and if not is appellee barred from recovery? In the case of Crist v. Light Co., 72 Kan. 135, 83 Pac. 199, this court said:
“Where, in a personal-injury action, contributory negligence becomes ma terial, and its existence depends upon a conclusion of fact as to which of two courses of action the plaintiff in the exercise of ordinary care for his own protection should have pursued, and the evidence is such that different minds might differ as to the proper conclusion, the question is for the jury and not for the court.” (Syl. HI.) ,
In the case of Durst v. Wareham, 132 Kan. 785, 297 Pac. 675, it was held:
“The question of whether a negligent act is the proximate cause of an injury and whether an ordinary, reasonable, prudent man would have foreseen that injury might occur as a result of a negligent act is a question of fact for the jury.” (Syl. J4.)
Can it be reasonably doubted such confusion in the mind of deceased would have existed had the bus been driven on the proper side of the highway? The jury would have been justified under the evidence in believing the confusion in the mind of deceased was occasioned by the location, lights and speed of appellant’s bus.' In the case of McCallion v. Railway Co., 74 Kan. 785, 88 Pac. 50, this court announced the rule thus :
“It is not contributory negligence, as a matter of law, for one who is placed in a dangerous position by another’s negligence to adopt in a sudden emergency a perilous alternative in an endeavor to avoid danger .to himself or to others, although it may turn out that he should have acted differently.” (Syl. if 2.)
In the case of Barnhardt v. Glycerin Co., 113 Kan. 136, 140, 213 Pac. 663, the negligence of persons suddenly placed in a position of peril and impending danger was considered, and sanction was given to the following rule:
“The rule judicially stated is that one who in a sudden emergency acts according to his best judgment or who, because of want of time in which to form a judgment-, omits to act in the most judicious manner, is not chargeable with negligence.” ' (20 R. C. L. 29.)
See, also, Ryan v. Atchison, T. & S. F. Rly. Co., 131 Kan. 706, 293 Pac. 763; Webb v. Lippard, 134 Kan. 764, 8 P. 2d 381; Godsey v. Cox, 135 Kan. 343, 10 P. 2d 871; Eaton v. Salyer, 135 Kan. 411, 10 P. 2d 873.
The questions of contributory negligence and proximate cause were properly submitted to the jury.
The jury returned answers to special questions as follows:
“1. Where was the deceased with reference to the center of the main traveled portion of the highway at the time he was struck? A. Left side of the road.
“2. What, if anything, '(lid the deceased do immediately before the accident with reference to avoiding said accident? A. He was waving the flag.
“3. What did the driver do immediately before said accident with reference to avoiding the same? A. Applied brakes, but not in time.
“4. If you find that the defendant was guilty of negligence which resulted in the death of the deceased, state what said negligence consisted of. A. Left side of road and too much speed.
“5. On what part of the highway was defendant’s car being driven immediately before the accident? A. On left side of the road.
“6. If you find for the plaintiff, how much do.you allow for medical attention, hospital bills, and funeral expenses? A. For medical and hospital bill, $90.”
4. Appellant moved the answers be set aside for the reason they were not sustained by the evidence and were contrary thereto. The motion was overruled, and it is alleged this ruling constitutes reversible error.
No complaint is made to answer number six. Considerable complaint is made to answer number two. It is not contrary to evidence. There was evidence to support it. The answer, it seems to us, reflected the thought of the jury that if the driver of the bus had heeded the signal, no accident would have occurred. Appellant insists the answer was not complete. If so, it had the right to ask the trial court to direct the jury to make it complete. (Stewart v. Produce Co., 88 Kan. 521, 129 Pac. 181; Grubb v. Sargent, 117 Kan. 233, 230 Pac. 1043.) No such request appears to have been made. One who fails to make a request is not in a position to complain of the answer. (Smart v. Mayer, 103 Kan. 366, 175 Pac. 159; Grubb v. Sargent, 117 Kan. 233, 230 Pac. 1043; Moore v. Connelly, 119 Kan. 35, 37, 237 Pac. 900; Bagnall v. Hunt, 131 Kan. 805, 293 Pac. 733.) Furthermore, the motion to set aside the special answers was not based upon their being incomplete. The complaint was the answers were not sustained by the evidence and were contrary thereto.
It is contended answer number three is incomplete and contrary to the evidence. What was said above concerning the incompleteness of answer number two applies here. The answer is not contrary to the evidence. The bus driver stated he first saw deceased flagging the bus at the edge of the triangle when he was 60 or 75 feet from where the deceased was standing and that he had ample time to stop the bus. According to appellee’s evidence the jury had a right to believe deceased never moved from that place. Hence the answer “applied the brakes, but not in time,” was supported by evidence. Answer number four was supported by both direct and circum stantial evidence of appellee. It is fully narrated in the statement of appellee’s evidence and requires no reiteration here. The same is true concerning answer number five.
5. We are asked to reverse the judgment for the reason insurance was discussed in the jury room. This subject was referred to by no one in course of the trial. It is true, such subjects are not proper considerations for a jury. There is, however, no indication in this case that the verdict was affected thereby. There was-and is now no contention the verdict is excessive. Furthermore, in this particular case, defendant is a common carrier and is required by law to carry insurance. As bearing on this point see Sponable v. Thomas, 139 Kan. 710, 719, 33 P. 2d 721, and citations. Under the decision of this court announced January 25, 1936, Dunn v. Jones, post, p. 218, 53 P. 2d 918, plaintiff could have sued the insurance company which insured appellant, a common carrier, against liability, directly without making appellant a party defendant. No misconduct of the jury is indicated which would justify reversal in this case.
6. It is also contended the judgment should be reversed by reason of the trial court’s prejudicial attitude toward appellant and its counsel. A careful search of the record fails to convince us such prejudice existed. The contention is based on remarks of the trial court to counsel in the course of the trial. If such remarks were considered prejudicial it was necessary timely objections be made thereto and the complaint be specifically called to the attention of the trial court on motion for new trial. It does not appear this was done. The complaint is therefore not reviewable. (Cone v. Smyth, 3 Kan. App. 607, 45 Pac. 247; American Automobile Ins. Co. v. Clark, 122 Kan. 445, 252 Pac. 215; State v. Robinson, 124 Kan. 245, 259 Pac. 691; Ghumm v. Josch, 133 Kan. 16, 298 Pac. 751.)
Appellant’s exhaustive brief also contains minor objections to the judgment which have been noted. Treatment of them could not alter the conclusion we are compelled to reach. No objection is made to instructions given. The jury resolved the facts in favor of appellee. The verdict is supported by substantial competent evidence. The judgment must therefore be affirmed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages growing out of an automobile collision. Judgment was for defendant. Plaintiff appeals.
The petition alleged that plaintiff was driving his car on the highway, and that defendant, Paul Jones, negligently, while driving a car with the knowledge and consent of, and owned by the defendant, the Davis-Child Motor Company, ran into the rear of the plaintiff’s car, injuring him and damaging his car. Because the outcome of the case turns on the interpretation to be given the petition it will be quoted as follows:
“That the said defendant, Paul Jones, at the time of the collision as aforesaid was intoxicated and under the influence of liquor; that the said defendant, Paul Jones, had been drinking almost continuously since about ten o’clock the morning of April 28, 1934.
“That while the said Paul Jones was under the influence of liquor he went to the salesroom of the defendant, the Davis-Child Motor Company, and asked the salesman in charge to borrow the said Chrysler coupé; that the defendant, the Davis-Child Motor Company refused the request of the said Paul Jones; that thereafter at about four o’clock of the afternoon of April 28, 1934, the defendant, Paul Jones, again appeared at the salesroom of the Davis-Child Motor Company and asked to use the Chrysler coupé until the next day; that the said Paul Jones had during the entire afternoon been drinking and was under the influence of liquor; that the defendant, the Davis-Child Motor Company, negligently and carelessly and without regard to the safety of others who might be using the highways allowed the said Paul Jones to take the said Chrysler car for use until the next day.
“That the said defendant, Paul Jones, is now and has been for several years last past insolvent, judgment-proof and unworthy of any credit whatsoever; that the said Paul Jones was not in a financial position to purchase said automobile on April 28, 1934; that in truth and in fact if the defendant, the Davis-Child Company, had inquired as to the credit ratings and credit records of the said Paul Jones it would have been ascertained that the said Paul Jones was not worthy of any credit in any amount for the purchase of said car.
“IV. That the said Paul Jones has a reputation in the Hutchinson community of being one who becomes frequently intoxicated; that upon intoxication the defendant, Paul Jones, becomes a reckless and careless person; that if.allowed to drive an automobile during intoxication the said Jones is a dangerous and incompetent driver; that the Davis-Child Motor Company knew all of the aforesaid facts; that if any of said facts were unknown to the defendant, the Davis-Child Motor Company, said facts could have been ascertained by the slightest inquiry; that the Davis-Child Motor Company was negligent and careless in failing to make inquiry as to the habits and conduct of the defendant Jones.
“That the defendant, the Davis-Child Motor Company, allowed said car to be driven by the defendant Jones without regard to the safety of others; that the said Paul Jones was under the influence of liquor at the time he drove the said Chrysler coupé out of the Davis-Child Motor Company’s salesroom on the afternoon of April 28, 1934; that the said defendant motor company knew all of said facts and could have ascertained by reasonable diligence that the defendant Jones was a dangerous, careless and reckless person on the highways while driving an automobile under the influence of liquor; that by reason of the carelessness and negligence of the said defendants as heretofore alleged, the said defendant Jones collided with and ran into the back end of plaintiff’s automobile.”
The trial court sustained the demurrer of the motor company to this petition. From this judgment plaintiff appeals.
The only question in the case is whether the owner of an automobile is liable to injured third parties where such owner lends his car to a person to. drive who is under the influence of intoxicating liquor.
It will be noted that the petition charges that defendant Jones became a reckless driver when intoxicated; that defendant motor company knew this; and that if this were unknown to the motor company these facts could have been ascertained by the slightest inquiry; that Jones was under the influence of liquor at the time he drove the car out of the salesroom of defendant motor company, and that defendant motor company knew this.
In Priestly v. Skourup, 142 Kan. 127, 45 P. 2d 852, the action was against a father and son. The petition alleged that plaintiff was struck by a car driven by the son and that the son was a reckless driver, and that at the time the father permitted the son to drive the car he knew the son was a ■ careless and reckless driver. The petition was held to state a cause of action against the father as well as the son. The opinion quotes and relies on the Restatement, Torts, § 390. This reads as follows:
“One who supplies directly or through a third person a chattel for the.use of another whom the supplier knows, or from facts known to him should know, to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them.”
The third illustration under that statement is as follows:
“A permits B, his chauffeur, who to his knowledge is in the habit of driving at an excessive speed, to use his car to take B’s family to the seashore. While driving the car for this purpose, B drives at an excessive rate of speed and harms C. A is liable to C.”
In conclusion this court said:
“We have no hesitancy in concurring in the conclusion reached by the trial court, which is strongly supported by the logical reasoning contained in the foregoing authorities, to the effect that the owner of an automobile, who lends it to one he knows to be an incompetent, careless and reckless driver, or has reasonable cause to know him to be such, is guilty of negligence in permitting such party to use, drive or operate the same along the public streets of a city, and is liable to third parties injured by such driver in the negligent operation of such automobile.” (p. 132.)
That is a well-considered, carefully written opinion and not much more needs to be said on the subject. The question remains whether the fact that the owner of a car knew that a man became a careless and reckless driver while intoxicated and that he was intoxicated and the owner of the car knew he was intoxicated at the time he permitted him to take the car, brings the car owner under the rule stated in Priestly v. Skourup. Here we have some assistance from the Restatement, Torts, § 390. We have already seen one of the illustrations under that paragraph. The fourth illustration under that paragraph is as follows:
“4. A lends his car to his friend B for B to use to drive a party of friends to a country-club dance. A knows that B has habitually become intoxicated at such dances. On the particular occasion B becomes intoxicated and while in that condition recklessly drives the car into the carefully driven car of C, and causes harm to him. A is liable to C.”
It will be seen that the person to whom the car was loaned under that illustration was not drunk at the time the car was loaned to him but was borrowing the car to drive to a place where the owner knew the borrower habitually got drunk. That case was not as strong as the case before us, where the borrower of the car was intoxicated at the time he was permitted to take the car.
With as many drunken drivers on the highways as there are, this question was certain to reach some courts of last resort. In Mitchell v. Churches, 119 Wash. 547, 206 Pac. 6, the person injured sought to hold the owner of a car liable where he had loaned it to a man knowing he had whisky and was going on a drunken spree. The trial court instructed the jury that if the owner loaned the automobile with the intention or understanding that the driver was to drive it, and with the knowledge that the driver was likely to become under the influence of intoxicating liquors, and if, with that knowledge, he entrusted the automobile to the driver under such circumstances as would produce in the mind of a reasonable man reasonable grounds for belief that the driver of the automobile might become intoxicated, then and in that event, if the driver was liable, the owner would be liable. This instruction was approved.
In Crowell v. Duncan, 145 Va. 489, 134 S. E. 576, the court upheld an instruction that where the plaintiff was injured and the injuries were caused by the negligent act of the driver of a car, and the negligent manner in which the car was being driven was because the driver was intoxicated, and that the driver was in the habit of becoming intoxicated, and that the owner of the car knew all this, then the owner was liable.
In the case of Rocca v. Steinmetz, 61 Cal. App. 102, 214 Pac. 257, a father who knowing his son to be a careless and reckless driver, nevertheless permitted him to drive his car, was sought to be charged. The court in considering the question said:
“If he were to entrust his car to a person whom he knew to be insane or intoxicated or utterly incompetent to run a car, it would certainly shock the common understanding to hold that he was not chargeable with negligence.” (p. 109.)
We think there is ample authority and good reason to bring an action where the driver of a car was intoxicated and known by the owner of the car to be intoxicated when the car was turned over to him, under the rule announced in Priestly v. Skourup, supra. The decision does not turn on what the reputation of the driver was as to being a reckless driver when intoxicated. The point is, Was he drunk when he was permitted to take the car out of the garage, and did the motor company know it? We have noted the arguments of counsel for appellee, but they may be more properly raised on the trial of the case than by a demurrer to the petition.
The judgment of the trial court is reversed with direction to proceed to try the case.
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The opinion of the court was delivered by
Smith, J.:
In this action the defendant was convicted of a violation of R. S. 21-435; that is, assault with intent to do great bodily harm. He appeals.
On the day of the assault defendant, Alva Thyer, and his brother drove past a farmyard where the man assaulted, one Elmer McGee, and some other men, were standing. There was testimony that defendant “thumbed his nose” at McGee. Defendant and his brother went to the home of -the brother. McGee and his son went to the home of another neighbor. After arriving at the home of the brother defendant took a team and wagon and drove to a place where an abandoned railroad right of way crosses the highway and passes alongside of land owned by McGee. His intention in going to this place was to get some cinders and chat to put on his garage floor. Upon starting out he put a 30-30 rifle in the wagon. When McGee and his son reached a corner north of where defendant was getting the cinders — -where ordinarily they would have turned toward home — -they saw defendant. They drove down to where he was. When they arrived there they stopped the car and both got out. The son got out on the right-hand side of the front seat and started toward defendant; Elmer got out on the left-hand side of the front seat and opened the rear door, took a cane out of the back of the car and started toward defendant. There is a conflict in the testimony as to whether anything was said and as to how close Elmer McGee got to defendant. This was given by different witnesses as from sixty to ninety-five feet. At any rate, defendant dropped his shovel, picked up his rifle and fired twice. One shot took effect in the cheek and came out the neck of Elmer McGee.
Defendant was arrested, bound over and tried for a violation of R. S. 21-431, that is, assault with intent to kill. He was convicted of a violation of R. S. 21-435. He filed a motion for a new trial. This was denied. Later during the same term he filed an application to vacate the judgment and amended motion for a new trial. This was heard and denied. Hence this appeal.
The first error of which defendant complains is that the following questions and answers were permitted when a witness was on the stand who was present when defendant first drove down the road. The question was, “Was there anything that took place at that time, when you were standing there, between Alva Thyer and Elmer McGee, that showed any marks of ill feeling?” The objection was made that this question called for a conclusion of the witness. The answer was, “Well, he thumbed his nose at him.” The witness demonstrated to the jury just what the gesture was.
It is difficult to see where this was testifying to a conclusion. No doubt every member of the jury understood that this is a well-known gesture by which the one who makes it shows his contempt for the one toward whom it is made.
The next error of which the defendant complains is that the court permitted the state to indorse several names on the information on the morning the trial started. The record discloses that when this request was made and objected to by defendant the trial court stated to counsel for defendant that he would have an opportunity to interview these witnesses. No request for time to do this was made. This is a matter within the discretion of the trial court. (See State v. Pack, 106 Kan. 188, 186 Pac. 742.) In this case it does not appear that defendant was prejudiced by permitting the names of the witnesses to be indorsed.
Defendant next urges that the court erred in not permitting Lawrence Hedges, who testified for the state, to be asked on cross-examination whether it was not generally known in' the vicinity that defendant was a hunter. While the defendant should have been permitted to show anything that would tend to explain why he had the rifle with him, it does not appear that he was prevented from doing that in this instance. Since several witnesses testified to the fact that defendant was a hunter the testimony of this witness would only have been cumulative on this point.
Defendant next argues that a remark of the court in overruling an objection was error. Counsel asked the son of Elmer McGee what he and his father went to Bob Mitchell’s place for. The state objected. The following colloquy occurred:
“Counsel for Defendant: ' It simply shows the purpose aad object that he had in being there.
“By the Court: He may answer. I don’t want it to appear he was just out looking for this particular man.”
The remark set out above is urged as error. The question was a proper one. It was obviously asked for the purpose of enabling the jury to grasp the entire surroundings. While the court might have overruled the objection without speaking in the first person, it does not appear that defendant was prejudiced by the remark.
Defendant next argues that the refusal to permit certain questions to be asked of Albert McGee on cross-examination was error. One inquiry was whether the sight of defendant in the right of way made .“you angry.” If by the question counsel wanted to know the effect on the young man’s mind it was immaterial. If he wanted to know the effect on the father’s mind then the boy was incompetent to testify to that.
Defendant next urges as error that he was not permitted to show in. the cross-examination of Elmer McGee, the complaining witness, that he had filed a damage suit for $10,000 against defendant on account of the assault. This cross-examination might well have been permitted. It does not, however, appear that the refusal to permit the questions to be asked so unduly limited the cross-examination as to prejudice the rights of defendant. The limits within which cross-examination of a witness may be kept rest largely in the discretion of the trial court. (See State v. Gibson, 131 Kan. 570, 292 Pac. 931.) The defendant later offered the files of the civil action as a part of his defense. An objection to it was sustained and this is urged as error. This proffered evidence was not submitted to the court when the motion for a new trial was argued. For that reason it cannot be considered by this court for the first time on appeal. (See State v. Springer, 127 Kan. 174, 272 Pac. 189.)
Defendant next argues that the trial court erred in admitting evidence of a -remark made by defendant about five years before the shooting. Evidence had been introduced that defendant and complaining witness had been in a fist fight about five years before. The witness testified about being with defendant after the fight. He was then asked, “What was said at that time?” Defendant objected to this as being too remote. The court overruled the objection. The answer was, “He said he would kill Mr. McGee sometime.” The evidence was of some probative value as tending to throw some light on the feeling of defendant toward the complaining witness. It was made competent by evidence of other witnesses as to unfriendly conduct of defendant toward, complaining witness on different occasions through the intervening years.
The next error argued by defendant has to do with certain questions that were asked of defendant. When he had testified about putting his gun in the wagon he said he had always taken a gun with him in the winter since he was a little boy. The following then occurred:
“Q. I will ask you if you had Mr. McGee in mind?
“By Mr. Blaker: We object to that (interruption).
“A. No, sir; I didn’t have Mr. McGee in mind.
“By the Court: Objection sustained.”
It will be noted that while the record shows that the objection to the question was sustained the defendant was permitted to answer. The state did not ask that the answer be stricken and the jury got the full benefit of the denial.
The next error of which defendant complains deals with the cross-examination of defendant. When he testified that he called to Elmer and told him to stop, just before the shooting, the following colloquy occurred:
“Do you think Elmer McGee is a fool?
“By Mr. Wycoff: Object to that as not proper cross-examination.
“By the Court: Oh, yes, it is; he can answer.
“A. Elmer had blood in his eye, and Albert both.
“Q. Do you think he was crazy? A. He was crazy with anger then.”
This evidence was not .prejudicial to defendant. The defendant must have desired the jury to believe that he thought both the McGees were angry at him and intended to harm him at the time he shot. This evidence tended to strengthen that theory of the defense.
The defendant next argues that the court erred in sustaining objection to certain evidence offered by defendant as to certain measurements made at the scene of the shooting. It appears from the record that defendant offered a plot. It was not admitted in evidence because it did not appear that the person who was to identify it could testify that the measurements thereon were actually the measurements that were taken. Furthermore, the only question in the case upon which this testimony would have any bearing was as to whether McGee was sixty or ninety-five feet away from defendant when he was shot. The change of a few feet in that distance would not be of any benefit to defendant.
The next error of which defendant complains has to do with a remark made by the trial court during the examination of a witness for the defense. This witness had testified that he was present when defendant was supposed to have said he would kill McGee. He testified that he did not hear any such remark. At this point the following occurred:
“Q. If any such a statement was made, Mr. Powell, do you think you would remember it?
“By Mr. Blaker: Object to that as calling for a conclusion of this witness.
“By the Court: Let me ask him. Why were you and some others going out to get this man on that evening? A. Went out to get him to come back and pay his fine.
“By the Court: Well, were you an officer? A. No.
“By Counsel for Defendant: The juror asked what he said before; they didn’t hear him.
“By the Court: Well, some of you develop it. I would like to know what the connection was, of this fellow hauling Thyer around.”
The remark of which defendant complains is where the trial court referred to the witness as “this fellow.” It was not the best of judicial language, but hardly sufficient to reverse a case.
The next error of- which defendant complains is that the court did not properly instruct the jury. The defendant was charged with a violation of R. S. 21-431 and the court instructed on that section. The court also instructed on R. S. 21-435. It was under this section that defendant was convicted. Defendant argues that such an instruction should not have been given, since there was no evidence to warrant the giving of it. The contention is answered by what this court said in State v. Wright, 112 Kan. 1, 208 Pac. 630. There this court said:
“As one is presumed to intend the natural and probable consequences of his acts, and as the foregoing were the only versions of the shooting, the record fails utterly to establish anything in the nature of culpable negligence. It does clearly establish an intentional shooting with a deadly weapon. However, the conviction under which the information was drawn would require malice, assault with a deadly weapon and an intent to kill, maim, rob, or commit some other felony, and while the circumstances detailed indicated all these things clearly enough to warrant a conviction, still it might possibly be that the wounding took place by the act of the defendant under such circumstances as would have constituted murder or manslaughter if death had ensued.” (p. 3.)
Here the jury might have believed that defendant fired into the ground and the bullet ricocheted and hit McGee. In such a case a conviction under R. S. 21-435 would be proper. What more likely happened is that the jury for some reason wanted to convict the defendant of the lesser offense. In either event defendant cannot complain.
Defendant next complains because the jury was not instructed on simple assault and battery under R. S. 21-436. There was no evidence whatever to justify such an instruction. We cannot say that shooting a man with a 30-30 calibre rifle is simple assault and battery.
The next error of which defendant complains is misconduct of the jury. After the motion for a new trial had been denied, but during the same term of court, defendant filed an application to vacate the judgment and amended motion for a new trial. This motion included all the grounds included in the motion for a new trial and in addition “misconduct on the part of the jury tending to prevent a fair and due consideration of the case” and also “irregularity in obtaining the verdict and judgment or sentence.” When this motion was called for presentation the defendant offered affidavits of three jurors. These affidavits were to the effect that these jurors had voted for acquittal until the foreman told them that the judge would follow any recommendation that the jury would make, and that they believed the foreman and voted guilty and for a recommendation that appeared on the verdict. One of these jurors stated in his affidavit that the foreman said that he had' talked to the judge and thought the judge would follow the jury’s recommendations. At this point it should be stated that the verdict as finally approved contained the following statement written in pencil:
“We, the jurors, recommend leniency; that the punishment be not more than six months in the county jail.”
When defendant presented the above affidavits the trial court made a statement, in part, as follows:
“The foreman of this jury, down in the clerk’s office, at the noon recess, I think the last day that this jury was deliberating upon its verdict, asked me if it was permissible for him to ask me a question, and I told him he could do so but it might not be answered. As I now remember he wanted to know what the minimum penalty was or the maximum penalty was, and I told him that was contained in the instructions. As I remember, he then asked me if a jury had a right to make a recommendation to the court about the punishment, and I told him that the court took care of the punishment and it did not concern the jury, but that a recommendation in a verdict did not vitiate the verdict, as I understood the law. I think that was about all that was said about it. If there is anything wrong about that, why the supreme court can say so. I am going to overrule the motion for a new trial, because I am not going to be bothered by jurors trying to impeach their verdict. I did tell this foreman that he was not permitted to talk about the facts in this case, to me or anybody else, and he definitely understood that and he did not discuss the facts of the case with me.”
The argument of defendant is that this constituted misconduct of the jury sufficient to reverse the case.
It would have been better if the trial court had not talked to the foreman at all when asked by the foreman if he could ask him a question. The better way would have been to advise the foreman that he should not ask him any question except from the jury box and in the presence of the other members of the jury. Such a course of conduct would have prevented any such question as that with which we are now confronted. It is the duty of the trial court to keep the discussion of the case in the jury room. As to the affidavits of the jurors, they indicate an effort on the part of the jurors to impeach their verdict. We have said many times this could not be done. (See State v. Finney, 141 Kan. 12, 40 P. 2d 411.)
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the sum of $1,500 as rent due according to the terms of a lease. Defendant admitted the sum of $1,000 was due, and denied further liability. Judgment was rendered for defendant, and plaintiff appeals.
The lease was dated November 22, 1924, and the term extended to February 28,1930. The lessee agreed to pay $1,500 on December 1 of each year. Five hundred dollars of this sum was to be credited on a judgment which had been rendered in favor of the lessor and against the lessee. In April, 1927, the lessee filed a petition in bankruptcy, and later received his discharge. The schedule of liabilities contained an item, “Balance due on judgment, approximately $1,000,” and an item, “Topeka State Bank, balance due under lease on land owned by bank, $500.” The first item was the lessor’s judgment, and the second item was a balance due on rental which matured December 1, 1926. The trustee in bankruptcy did not take possession of the land, nor recognize the lessee had any interest in it, and the lessee remained in possession. On December 1, 1927, rent fell due and was not paid. When sued for $1,500, the lessee claimed the money consideration of $1,500, payable yearly, stated in the lease, consisted of two distinct items — $1,000 rent, and a $500 payment on the lessor’s judgment; and the lessee claimed discharge from liability on the judgment, and hence from liability to pay the $500 item;
From the foregoing it is manifest that the decision depends on how the lease should be interpreted. The instrument fills five pages of the printed abstract. Briefly, it was a tripartite agreement between lessor, lessee and a bank which agreed to finance the lessee in farming and live-stock operations on the leased premises. The relations of the parties were defined by numerous covenants, and the consideration was stated as follows:
“The consideration for the promises and covenants of each to be kept and performed are the promises and covenants of each of the other parties hereto, to be kept and performed; all of which promises and covenants are more particularly set out.hereinafter.”
Material portions of those covenants relating specifically to the subject of rent to be paid by the lessee to the lessor follow:
“Fourth: For the use of said premises for the term mentioned, and in consideration of the other covenants and promises to be kept and performed by first party, the second party covenants and agrees to pay to first party the sum of fifteen hundred ($1,500) dollars per year; the first payment becoming due and’ shall be paid December 1, 1925; and a like and equal amount shall be paid on 'the first day of each following December so long as this lease shall remain in effect, . . .
“Fifth: To secure and guarantee the payment of the above sum of fifteen hundred dollars, the yearly rental for the use of the above described land, it is agreed that first party shall have the statutory landlord’s lien upon all the crops, growing, grown, and produced on said premises, but shall not have any lien upon the other chattels of second party.
“Sixth: First party agrees that upon the payment to it of the above mentioned sum of fifteen hundred dollars it will, out of each fifteen hundred dollars received, credit five hundred ($500) dollars towards satisfying and paying the judgment of two thousand five hundred thirty-two ($2,532.80) dollars . . . it has against second party.
“Eighth: In addition to the payment of fifteen hundred dollars per year for the use and occupation of said premises, second party agrees to pay to first party the sum of five hundred dollars, on or before February 10, 1925, the entire amount thereof to be applied toward the partial payment of the judgment above mentioned.”
To the mind of this court the meaning of this lease is perfectly clear. In consideration of all the covenants to be kept and performed, the lessee leased the land for a yearly rental of $1,500. Out of each $1,500 yearly rent received, the lessor agreed to apply $500 toward satisfaction of the judgment. Manifestly there is no sound basis for the contention that the yearly rent of $1,500, secured in its entirety by landlord’s lien, was cut down, to $1,000 because the landlord agreed to apply part of the sum received to a specific use.
The lessee contended the parties themselves had construed the lease as providing for $1,000 rent and a $500 payment on the judgment. Over objection the court received evidence on the subject, and even admitted oral evidence concerning the negotiations concluded by execution of the written instrument. The competent evidence was in writing, and this court is able to determine its effect. It fails to disclose mutual practical interpretation, or interpretation by one party relied on by the other. But beyond that, the district court was not authorized to investigate the subject of practical interpretation. Practical interpretation may not be resorted to except in case of ambiguity. (Utilities Co. v. Bowersock, 109 Kan. 718, 728, 202 Pac. 92.) Ambiguity does not appear until application of pertinent rules of interpretation leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 372, 273 Pac. 661.) In this instance the lease was not ambiguous. It speaks for itself, and the claimed ambiguity is merely .the. invention of ingenuity.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment for plaintiff in accordance with the views which have been expressed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries resulting from food poisoning. Plaintiff recovered judgment for $2,900. Defendant has appealed.
The pertinent facts may be stated as follows: Plaintiff, a girl twenty years of age, was in the employ of defendant as a saleswoman in its retail store at Wichita. Among other departments of business conducted by defendant at its store was a restaurant or lunch counter. About 4:30 o’clock the afternoon of July 3, 1934, plaintiff went to defendant’s lunch counter and ordered and paid for a ham-salad sandwich and a glass of Coca-Cola, which were delivered to her. She ate the sandwich and drank the Coca-Cola and in about half an hour became violently ill. She was taken to a hospital, where she was found to be suffering from food poisoning. There is evidence justifying the jury in concluding the food poisoning was the result of eating the sandwich. In her petition plaintiff alleged defendant’s servants and employees manufactured the sandwich by preparing and assembling the ham, relish, mayonnaise, and other ingredients which went into it; that defendant sold the ham-salad sandwich to plaintiff upon the implied representation and guaranty that the same was wholesome and fit for immediate consumption; that in fact it was unfit and unwholesome for immediate human consumption, the purpose for which it was sold to plaintiff.
In her evidence plaintiff made no effort to show specific acts of negligence on the part of defendant, its agents, servants, or employees in the selection of materials or in the manner it prepared and assembled them in the making of the ham-salad sandwich.
Appellant’s principal point in this court is that it is not liable to plaintiff on an implied warranty that the sandwich was suitable for human consumption; that it could be liable only upon the grounds of negligence in the selection of materials used and in the manner in which they were prepared and assembled, and since no such negligence was either alleged or proved its demurrer to the evidence should have been sustained. There is authority for this view. (F. W. Woolworth Co. v. Wilson, 74 F. 2d 439; Kenney v. Wong Len, 81 N. H. 427, 128 Atl. 343; Lynch v. Hotel Bond Co., 117 Conn. 128, 167 Atl. 99; McCarley v. Wood Drugs, 228 Ala. 226, 153 So. 446; Rowe v. Louisville, Etc., R. Co., 29 Ga. App. 151, 113 S. E. 823; Bigelow v. Maine Central Railroad Company, 110 Maine 105, 85 Atl. 396; Roseberry v. Wachter, 33 Del. 253, 133 Atl. 273; Nisky v. Childs Co., 103 N. J. L. 464, 135 Atl. 805, 50 A. L. R. 227.)
The reasoning of these authorities may be best set forth in a quotation from Nisky v. Childs Co., as follows:
“At common law, in the absence of express warranty or representation from which a warranty could be inferred, the mere sale of goods without more did not warrant the quality of the article sold. Beninger v. Corwin, 24 N. J. L. 257, and such is the universal rule. (35 Cyc. 397.) When, however, the seller is informed by the buyer of the purposes for which the goods are purchased, there is an implied warranty that the thing sold is fit for the intended purpose. This also is a rule of which there is universal acceptance. (35 Cyc. 399, and cases cited.) . . .
“From the earliest times, however, a distinction has been drawn between a sale of an article and the furnishing of food at an eating house, hotel or restaurant; the latter partaking rather of the character of service, in which case the standard of liability is the failure to use that reasonable care which the circumstances require. As was said many years ago in Parker v. Flint, reported in 12 Mod. 254, ‘an inkeeper . . . does not sell but utters his provisions,’ and by Professor Beale, in his Treatise on Innkeepers, section 169: ‘As an innkeeper does not lease his room, he does not sell the food he supplies to his guests. It is his duty to supply such food as the guest needs, and the corresponding right of the guest to consume the food he needs and to take no more. Having finished his meal he has no right to take food from the table, even the uneaten portion of the food supplied him. Nor can he claim a certain portion of the food as his own to be handed oyer to another in case he chooses not to consume it himself.’
“The authorities distinguishing the transaction from a sale recognize that while the food served constitutes, of course, an essential part, yet, serving it cannot be regarded as a sale of goods, and this we think the common understanding. A customer at an eating place seeks not to make a purchase, but to be served with food to such reasonable extent as his present needs require. With the service go a place, more or less attractive, in which to eat it, a table, dishes, linen, silver, waiters and sometimes music as an accompaniment — all tending to render more agreeable and palatable that which he eats. The food he obtains is then and there consumed; he does not eat the portion he can comfortably devour and place the remainder in his pockets or other receptable, to be stored away for future needs. So, one who purchases a steamship ticket, or one who registers at .a hotel, does not conceive the transaction as a sale of goods when, as part of his passage in the one case, and as a guest in the other, he is supplied with meals; nor does one who enters a restaurant to be supplied with a meal or any portion thereof so regard the supplying of his food. This attitude of the public mind is indicated by the familiar signs, ‘Meals Served Here,’ ‘Dinners Served Here,’ and the like.” (pp. 466, 467.)
In some of the cases holding the action must be predicated upon negligence it is held the negligence may be shown by circumstantial evidence. (Corin v. S. S. Kresge Co., 110 N. J. L. 378, 166 Alt. 291; Stell v. Townsends C. G. Fruits, 138 Cal. App. 777, 28 P. 2d 1077, and cases inhere cited.) In a few cases it is stated that the doctrine of res ipsa loquitur is applicable. (Costello v. Morrison Cafeteria Co. of La., Inc., 18 La. App. 40, 135 So. 245; Gainesville Coca-Cola Bottling Co. v. Stewart, 51 Ga. App. 102, 179 S. E. 734.) Some of the cases predicated upon the view that title does not pass to the food furnished because the patron does not have authority to take away with him the part not consumed, nevertheless recognize that title does pass to that portion of the food which is consumed by the patron. (F. W. Woolworth Co. v. Wilson, supra.) One is tempted to inquire, since the portion which is not consumed is not the portion which caused injury, if any, to the patron, why is it of any consequence whether title passed to that portion of it?
There is another line of authorities holding that one who, for compensation, supplies food to another for immediate consumption impliedly warrants that the food is wholesome, and if it proves not to be, and injury results from its consumption, the person injured may maintain an action on the implied warranty, without alleging or proving negligence of defendant. (Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407; Temple v. Keeler, 238 N. Y. 344, 144 N. E. 635; Greenwood v. John R. Thompson Co., 213 Ill. App. 371; Heise v. Gillette, 83 Ind. App. 551, 149 N. E. 182; Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906; Smith v. Carlos, 215 Mo. App. 488, 247 S. W. 468; S. H. Kress & Co. v. Ferguson [Tex. Civ. App.], 60 S. W. 2d 817; Clark Restaurant Co. v. Simmons, 29 Ohio App. 220, 163 N. E. 210; West v. Katsafanas, 107 Pa. Superior Ct. 118, 162 Atl. 685.)
Neither of the above lists is intended to be complete. Most of the cases bearing on the subject have been collected in the annotations in 5 A. L. R. 1115; 35 A. L. R. 921; 50 A. L. R. 231; 98 A. L. R. 687. They have been collected also in “Negligence with Food— Drink — Drugs,” by Turner, pages 126 to 135, and in American Digest under “Foods,” § 25. See, also, 26 C. J. 783 et seq.; 11 R. C. L. 1118 et seq., and authorities cited.
In the cases holding the action may be predicated upon implied warranty the reasons given may be classified as follows: First, In the sale of food there appears always to have been an implied warranty that the food was wholesome and fit for the use for which it was purchased. In 11 R. C. L. 1120 it is said:
“There have been expressions of this character since the earliest times. A case in Year Book 9 Hen. VI 53, may be taken as an example. It is there said: 'If I come into a tavern to eat, and he gives and sells to me beer and flesh which are corrupt, by which I am put into a great sickness, I shall have against him my action on the case clearly, even although he made no guaranty to me.’ ”
In Roswel v. Vaughan, 2 Cro. Jac. 196, 197, it was said:
“But if a man sell victuals which is corrupt, without warranty, an action lies, because it is against the commonwealth.”
In Wren v. Holt, reported in The Times of November 18, 1901 (see 1 K. B. [1903] 610), defendant was held liable, upon an implied warranty, for damages plaintiff sustained by drinking beer sold him by defendant over the counter and which contained arsenic by which plaintiff was poisoned.
In 3 Black. Comm. (15th ed.) 166, it is said:
“In contracts for provisions, it is always implied that they are wholesome; and if they be not, the same remedy [an action on the case] may be had.”
In Ames’ Lectures on Legal History, p. 137, it is said:
“A taverner or vintner was bound as such to sell wholesome food and drink.” (Citing early authorities.)
In Burnby v. Ballett, 16 M. & W. 644, the early authorities on the question are reviewed and the liability , of a victualer, taverner, or innkeeper, on an implied warranty of wholesomeness of the food, was recognized, although it was not applied in that case where one farmer had sold a dressed hog to another, he having simply transferred his right to purchase it from the butcher.
In Wallis v. Russell, 2 Irish Rep. (1902) 585, the early cases are reviewed and compared with the implied warranty of subsection 1 of section 14 of the sale of goods act of 1893, and it was held that either under the act or the earlier cases on the sale of food there was an implied warranty of its fitness for human consumption.
Second: Where statutes forbid the sale of intoxicating liquors, or forbid their sale without a license, it has been repeatedly held that a restaurant keeper who furnishes liquor to his guests at their meals, the price of the meal covering the price of the liquor, is guilty of having sold the liquor. (State v. Lotti, 72 Vt. 115, 47 Atl. 392; State v. Wenzel, 72 N. H. 396, 56 Atl. 918; Savage v. State, 50 Tex. Crim. Rep. 199, 88 S. W. 351; Scanlon v. City of Denver, 38 Colo. 401, 88 Pac. 156; Commonwealth v. Worcester, 126 Mass. 256; Lauer v. Dist. of Columbia, 11 App. D. C. 453; Nicrosi v. State, 52 Ala, 336.)
Where there was a statute forbidding the sale of adulterated, filthy, decomposed, or putrid food it was held, in State v. Grays Harbor Com. Co., 124 Wash. 227, 214 Pac. 13, that the furnishing of such food by an employer with the meals served to his employees at his boarding house, where a charge was made by deducting the board from wages, constituted a sale.
In Commonwealth v. Miller, 131 Pa. St. 118, 18 Atl. 936, construing a statute prohibiting the sale of oleomargarine as a substitute for butter, it was held the serving of oleomargarine with a regular meal at a public restaurant constituted a sale.
In People v. Clair, 221 N. Y. 108, 116 N. E. 868, it was held the sale of prohibited game as a part of a table d’hote meal is necessarily a sale of the game.
Under a statute prohibiting the exposure for sale of quail between certain dates it was held, in Commonwealth v. Phoenix Hotel Co., 157 Ky. 180, 162 S. W. 823, that the serving of quail for compensation by a hotel to its guests was an “exposing for sale” within the meaning of the statute. In the opinion it was said:
“The guest at the hotel or restaurant who is served with quail for compensation as certainly purchases it and the proprietor of the hotel or restaurant as certainly exposes it for sale and sells it as if it were purchased for compensation from a dealer who had it for sale and was carried home by the purchaser to be served on his table.” (p. 185.)
In Gibson v. State, 214 Ala. 38, 106 So. 231, it was held the feeding of mill oats for hire by a veterinary to horses and mules belonging to the public was a sale of the mill oats.
Construing a statute making it an offense to sell milk not of standard quality, it was held, in Commonwealth v. Warren, 160 Mass. 533, 36 N. E. 308, that the delivery of milk to the purchaser of a table d’hote breakfast, as a part of such breakfast, is as much a sale of the milk, within the statute, as if a special price had been put on it, or it had been bought and paid for by itself.
• By what reason can it be said that furnishing, as a part of a meal, articles the sale of which is prohibited, constitutes a sale of such articles, but other articles furnished as a part of the meal are not sold?
Third: There is also a question of public policy involved in the preservation of the life and health of our citizens. This is indicated by the many statutes in this state with reference to food and drugs (R. S. 65-601 et seq.); of milk and dairy products (R. S. 1933 Supp. 65-701 et seq.); and provisions for inspecting hotels (R. S. 75-1801 et seq.; R. S. 1933 Supp. 75-20b01 et seq.). One purpose of these statutes is that only wholesome food be sold, or served, for human consumption, recognizing that any other kind is detrimental to health and may cause death. Similar statutes may be found in all the states. In this connection we note that a restaurateur, hotel keeper, or boardinghouse keeper may recover damages from one from whom he has purchased food to be sold or served to his patrons if the same proves to be unwholesome, and the action may be predicated upon the breach of implied warranty of its fitness. (Hawkins v. Jamrog, 277 Mass. 540, 179 N. E. 224; Mazetti v. Armour & Co., 75 Wash. 622, 135 Pac. 633.)
Our own cases have not dealt directly with the question here presented, namely, whether one situated as the plaintiff in this case could maintain the action upon an implied warranty of the wholesomeness of the food without allegations or proof of negligence' of the defendant. In Malone v. Jones, 91 Kan. 815, 139 Pac. 387, 92 Kan. 708, 142 Pac. 274, plaintiff alleged negligence in the selection and preparation of food served to farm hands. Naturally, where specific negligénce is alleged in those particulars, and injury results therefrom, an action can be maintained. There are many similar cases in other jurisdictions. There was no discussion in the case cited on the point here involved. In the case of Parks v. Pie Co., 93 Kan. 334, 144 Pac. 202, the question of the liability of a dealer or manufacturer was before the court. It was there held that they would be liable if the food sold by them proved to be unwholesome and injury resulted. In the opinion it was said:
“A manufacturer or dealer who puts human food upon the market for sale or for immediate consumption does so upon an implied representation that it is wholesome for human consumption. Practically, he must know it is fit or take the consequences if it proves destructive.” (p. 337.)
The question arose again in Challis v. Hartloff, 133 Kan. 221, 299 Pac. 586, 136 Kan. 823, 18 P. 2d 199, where the authorities were reviewed at length, and it was held the action might be maintained against a dealer or broker who sold poisonous flour to be used for food, and it was specifically held that the action was one for a breach of an implied warranty and not an action in tort. We see no difference in. the principle applied in those cases and the one which should apply here. In this case plaintiff purchased and paid for a ham-salad sandwich, which she was privileged to eat at the counter where it was purchased, or take away and eat. . All the reasons applied in the cases last cited which would hold a dealer liable for the sale of unwholesome food for human consumption are applicable here. We hold the transaction was a sale, and that there was an implied warranty of the wholesomeness of the food.
Furthermore, we would be constrained to hold in this case that defendant impliedly warranted the wholesomeness of the sandwich sold or served to plaintiff irrespective of whether' the transaction in all of its aspects should be treated as a sale. “A sale is not the only transaction in which a warranty may be implied.” (Williston on Contracts, § 996a; 1 Williston on Sales, 2d ed., § 242b.) Certainly some contractual relation exists between one who, for compensation, sells or serves to another food for immediate consumption. An implied warranty arises from the presumed intention of the parties. It is an inherent condition or term of the contract without regard to what name may be given to the contract. Presumably people go to a hotel, restaurant, or other eating establishment for food suitable for human consumption, and presumably the one in charge of such establishment undertakes to furnish such food. We regard the circumstances as being a sufficient basis to hold that there was an implied warranty on the part of defendant that the sandwich in question was suitable for human consumption. (See 55 C. J. 715; 24 R. C. L. 178; 66 U. S. Law Rev. 581, 587; 27 Yale Law Journal 1069.)
There is not much else in this lawsuit. As previously stated, there was evidence justifying the jury in concluding that the food poisoning suffered by plaintiff was caused by her eating the sandwich purchased from defendant. There is also sufficient evidence of her injuries to sustain the amount of the verdict. Appellant argues the verdict is excessive, but this is predicated upon the fact that it is for the exact amount sued for, and appellant argues this of itself shows bias and prejudice on the part of the jury. This does not necessarily follow. It is rather obvious plaintiff named in her petition an amount of damages that would prevent the removal of the case to the federal court, preferring for some reason to try it in the state court. But whether this observation is correct or not is immaterial. It would be well for those bringing actions for damages to claim reasonable sums in their petitions rather than exaggerated amounts, as so many of them do. The fact that the amount of damage claimed by plaintiff was found by the jury to be reasonable is no evidence in this case of bias or prejudice on the part of the jury.
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
Wedell, J.:
This is a consolidated appeal of three separate criminal actions. The prosecutions were all based on the same statute (R. S. 25-1714). The appeals all raise the correctness of the ruling-sustaining separate motions to quash the respective informations. The slight difference in the separate informations will be referred to later. The motions to quash are similar and will be treated together. R. S. 25-1714 reads:
“Whoever intentionally writes, prints, posts or distributes, or causes to be written, printed, posted, or distributed, a circular or poster which is designed or tends to injure or defeat) any candidate for nomination or election to any public office, by criticizing his personal character or political action, unless there appears upon such circular or poster in a conspicuous place either the names of the chairman and secretary or of two officers of the political or other organization issuing the same, or some voter who is responsible therefor, witji his name1 and residence, and the street and number thereof, if any, shall be punished by imprisonment for not more than six months.”
The information in each case was substantially the same, the only difference being that the words “write, print,” were omitted in the information in cases numbers 32,479 and 32,480, and the information in case number 32,478 contained two counts, the second count being the same as the first, except that it charged R. E. Freeman caused the anonymous publication to be written, posted and distributed.
The first count of the information in case number 32,478 was and is in words and figures as follows (omitting the caption):
“I, Harry A. Lanning, the undersigned county attorney of said county, in the name and by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on the- day of November, a. d. 1934, in said county of Nemaha and state of Kansas, one R. E. Freeman did then and there unlawfully, maliciously and intentionally write, print, post and distribute a circular or poster in words and figures as follows, to wit:
“$100.00 Short I
“Extract prom a Statement on File
“Gentlemen:
“In March of 1932, we, the undersigned, went before the state highway commission, the board in assembled meeting. J. E. Wilcox introduced Mr.Lou Hilt, commissioner of Nemaha county, and others to Mr. Helvering and others of the board in assembled session. Mr. Hilt said to the board and to Mr. Helvering, 'Mr. Wilcox has been telling us up in Nemaha county what the State Highway Commission would do to help Bancroft to have a gravel road north to No. 9, a distance of 2% miles.’
“Mr. Helvering said to Mr. Hilt: ‘Mr. Wilcox and others were before this board in our February meeting. We listened to his argument and decided that they were probably deserving of a gravel road, and I have investigated it since and find the road is badly needed. I told Mr. Wilcox then that if the road was put in condition for gravel that the state would gravel it without cost to the county. I tell you the same.’
“Then Mr. Hilt asked Mr. Helvering and the board how much gravel the state would put on to the mile. Mr. Helvering asked Mr. Buck what would be right. Mr. Buck said, ‘400 yards to the mile.’ Mr. Helvering said, ‘That’s O. K.’
“I, the undersigned, was at the above meeting in March and heard the above agreements as written above, and the following-named men were also present: J. E. Wile,ox, Bancroft; O. M. Wells, Bancroft; J. A. Hanks, dem. precinct com., Wetmore; J. E. Roderick, A. P. Lapham, rep. precinct com., Wetmore, Kan.; Lewis Hilt, Bern, Kan., co. commissioner.
“I, the undersigned resident and taxpayer of Nemaha county, Kansas, freely and willingly state that on November 17, 1933, the state highway commission had decided to put 400 cu. yd. of gravel per mile free of charge to the county upon the road situated on the west line of Wetmore township between Bancroft and state highway No. 9; that Lewis Hilt, county commissioner of the first district, Nemaha county, entered my office and offered to put on 300 cu. yd. of gravel per mile, but it would cost $100 cash in advance.
Signed: J. E. Wilcox.
“Subscribed and sworn to before me this 26th day of October, 1934.
A. H. Fitzwater, Notary Public.
“My commission expires June 9, 1937.
“We, the undersigned taxpayers of Nemaha county, Kansas, certify by our signatures that we were some of the signers of the subscription blank to raise $100 cash to meet the demand of Lewis Hilt in getting our road graveled.
J. E. Wilcox.
M. Wesley.
Nick Henery.
W. G. Bouse.
W. E. Geren.
“We, the undersigned taxpayers of Nemaha county, Kansas, certify by our signatures that on November 27, 1933, we interviewed Mr. Mills, county commissioner of Nemaha county, to ascertain why we should pay Mr. Lewis Hilt $100 cash in advance and get only 300 cu. yd. of gravel per mile, and were told by him that neither he nor the third commissioner, Mr. Kramer, knew anything about the $100 cash in advance, but they understood we were to get 400 cu. yd. of gravel per mile, free of charge to the county.
J. E. Wilcox.
Nick Henery.
“1. Who Wanted the $100?
“2. Why Should a'Public Official Try to do This?
“3. Do You, Mr. Vote®, Want This Type of Official?
(This circular ordered and paid for by R. E. Freeman’s friends)
which said circular or poster was designed and tended to injure and defeat one Lewis Hilt, the said Lewis Hilt then and there being a candidate for election to public office, namely, county commissioner of Nemaha county, Kansas, by criticizing his personal character and political action, without there appearing upon said circular or poster, in a Conspicuous place, or any other place, either the names of the chairman and secretary or of two officers of the political or other organization issuing the same or some voter who was responsible therefor, with his name and residence all contrary ...”
One of the grounds of the motions to quash was R. S. 25-1714 contravenes section 16 of article 2 of the constitution of the state of Kansas in that it contains more than one subject not clearly expressed in the title. R. S. 25-1714 is a part of chapter 189 of the Laws of 1913. The title of that act is:
“An Act relating to elections, and amending general sections 3261, 3270, 3271, 3273, of the General Statutes of 1909, and providing additional safeguards for the protection of elections, and providing penalties for the violation thereof, and repealing said general original sections 3261, 3270, 3271, 3273, of the. General Statutes of 1909.”
The contention is the title does not clearly express what is contained in section five of the act, which is R. S. 25-1714. The contention is not good. In the case of Miller v. Miller, 113 Kan. 22, 213 Pac. 634, the precise contention was made concerning a similar title. It was there said:
“Defendant also complains that the limitation of time in which to file a notice of intention to appeal is found under a subtitle, ‘Divorce and Alimony,’ in the code of civil procedure, and that the title to the act is not sufficiently broad. There is no merit in defendant’s contention. The words “Divorce and Alimony,’ are not part of the title, but constitute a subhead. The title to the act is, 'An Act concerning the code of civil procedure.’ The rule has been announced in many cases that section 16 of article 2 of the constitution is not to be construed in any narrow or technical spirit. It must be applied in a fair and reasonable way. It is sufficient if the title fairly indicates, in general terms, its scope and purposes. Provision of our code covering divorce and alimony is properly found in the ‘act concerning the code of civil procedure.’ ” (p. 23.)
Were the contention of appellees sound, their motions to quash could not be sustained. The legislature of 1923 by the provisions of section 1 of chapter 144 adopted this statute, together with all other assembled sections referred to therein, under a new title, to wit: “An act relating to the Revised Statutes of 1923.” That title has been held sufficient, as not containing more than one subject, and as not containing matter different from what is expressed in the title. The statute even though it had been in fact invalid, if it could have been constitutionally enacted — and there can be no question concerning that fact — was given the force of law by its adoption under the 1923 revision. In the case of City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 Pac. 270, it was said:
“Another angle to this discussion is that the statute of 1921 was incorporated in the general revision of 1923, and now appears therein as R. S. 12-824. Therefore, in common with all other statutes included in that revision, it became immune to any attack based upon mere insufficiency of title, ir regularity in previous legislative history, and such like formal defects. (State, ex rel., v. Davis, Governor, 116 Kan. 663, 667, 668, 229 Pac. 757; Kaw Valley Drainage Dist. v. Kansas City, 119 Kan. 368, 239 Pac. 760; Lemen v. Kansas Flour Mills Co., 122 Kan. 574, 253 Pac. 547.)” (p. 768. See, also, State v. Lebow, 128 Kan. 715, 717, 280 Pac. 773.)
It is next urged the statute violates section 11 of the Kansas bill of rights. It reads:
“The liberty of the press shall be inviolate: and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.”
These actions are not libel suits. They are prosecutions dealing with anonymous circulars or posters. It will be observed there is nothing contained in the above paragraph of our bill of rights which denies the right to enact legislation which prohibits anonymous writings or publications. The obvious intent and purpose of the statute was to clearly and definitely fix the responsibility for this method of campaigning. The statute in question is indeed a wholesome one. Its beneficent purpose requires no defense. It is ardently urged the voter is entitled to know the character of a candidate for public office. That is indeed true. By the same token the voter is entitled to know who is responsible for a publication, irrespective of whether it is malicious propaganda or truth. The estimate and regard or lack of regard in which the person or persons responsible for such publication are held by the public are often as effective in determining the result of an election as the substance of what is contained in the circular concerning the candidate. The candidate in common fairness, as well as the public, is entitled to the protection contemplated by this wise legislation. There is nothing in the statute which prevents in the slightest degree any person from exercising all his constitutional rights to write or print information concerning a candidate. The statute simply requires that the responsibility for posting or distributing such information be conspicuously indicated on the circular or poster employed. The statute is not a denial of liberty. It requires only the assumption of the responsibility of liberty. Appellees’ contention, therefore, in reality is a plea, not for liberty, but a plea for release from the responsibility of liberty.
We are referred by appellees to the case of Majors v. Seaton, 142 Kan. 274, 46 P. 2d 34, as authority for the right to criticize a candidate for public office. That case is in no sense applicable here. It was an action for libel against the publisher of a newspaper. A newspaper is neither a circular nor a poster. The responsibility for an editorial in a newspaper is fixed. The public and the candidate are fully apprised of the responsibility for its authorship. Here we are dealing with an anonymous publication, expressly prohibited by statute.
In the motions' to quash it was also contended the statute violated the first amendment to the constitution of the United States. It reads:
“Congress shall make no law respecting an. establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The contention is unsound for a number of reasons. One, and a sufficient reason, is these prosecutions are not based on an act of congress.
Another ground of the motions to quash was the information failed to state an election was called or had at which the alleged circular was distributed. R. S. 62-1012 provides:
“Neither presumption of law nor matters of which judicial notice is taken need be stated in an indictment or information.”
Courts judicially know general election laws and the dates of general elections. (23 C. J. 92.) In the early case of Ellis v. Reddin, 12 Kan. 306, it was said:
“Courts must judicially take notice, without allegations and without proof, that the fifth day of November, 1872, was the day on which the general election for that year was held, and that it was a day on which vacancies in a county office could have been filled by election.” (Syl. ¶ 2.) (See Wood v. Bartling, 16 Kan. 109, 112. See, also, State v. Henderson, 114 Kan. 724, 725, 220 Pac. 293.)
It is further urged the information was fatally defective for the reason it did not allege the specific date on which the circular was distributed. The offense was alleged to have been committed on the - day of November, 1934. The offense was stated with sufficient certainty. R. S. 62-1006 reads:
“The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations^ except where the time is an indispensable ingredient in the offense.”
Time in this case was not an indispensable ingredient of the offense. It was sufficiently alleged. (State v. Nagley, 8 Kan. App. 812, 57 Pac. 554; State v. Brooks, 33 Kan. 708, 7 Pac. 591; State v. Allen, 63 Kan. 598, 66 Pac. 628; State v. Bowman, 106 Kan. 430, 188 Pac. 242; State v. McCarthy, 124 Kan. 20, 22, 257 Pac. 925.)
It is finally contended the circular showed on its face who was responsible for its printing, posting and distribution. This contention cannot be sustained. The exhibit in question does not contain the name or names of officers of any political or other organization or person responsible for circularizing it, in a conspicuous place or otherwise. It purports to have been a written communication addressed to “Gentlemen,” whoever the addressees may have been. It appears to have been an “extract of a signed statement on file” somewhere. A signed statement on file is not a circular nor a poster. It is addressed to “Gentlemen,” and purports to contain the signatures of certain parties who signed the statement which was placed on file. It became neither a circular nor a poster until it was printed and posted or distributed. Until that time it was simply what the heading indicates — “extract from a statement on file.” Now, who was responsible for this “extract from a statement on file,” being printed, posted or distributed? What are their names, residence and street number? The circular does not divulge any of these requirements. The fact a statement on file may contain within it certain names and some signatures attached thereto, does not make it a circular or poster, nor does it fix the responsibility for having it printed, posted or distributed.
The three questions at the bottom of the circular would appear to have been added in order to make the intended application to Mr. Hilt more pointed and the criticism of his personal character or political action more effective. The responsibility of ordering and paying for the circular is then placed with “R. E. Freeman’s friends.” Just who one’s friends may be in a political campaign is not always exactly certain. Who they were in this instance and what their residence and street number may be is not disclosed. The names of the persons responsible for the posting and distributing are likewise lacking. The circular or poster therefore clearly violates the provisions of the statute.
The judgment sustaining the motion to quash in each of the respective actions must therefore be reversed. It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, B. H. Wood, now deceased, brought this action against the receiver of the Rossville State Bank to establish his claim for $7,830.90 as a bona fide depositor of that bank at the time it closed its doors for insolvency on August 20, 1927, following the death of its cashier, I. B. Alter, who died (by his own hand) two days earlier.
The assets of the bank and the moneys of its depositors had been largely dissipated by Alter, and apparently in contemplation of suicide he prepared statements showing more or less accurately what funds and deposits he had misused. One of these statements dated July 23, 1927, gave a listing of names and figures aggregating $160,302. In this statement and listing was this item:
“. . . B.' H. Wood..................... $7,765.90 $7,765.90”
A similar statement prepared two days before Alter’s death showed apparent defalcations aggregating $116,803.14. Part of that statement reads:
“In account with Thb Rossville State Bank,
“Rossville, Kan., Aug. 16, 1927.
“What I owe:
B. H. Wood Act.......................... $7,765.90 $7,765.90”
The receiver did not contest the fact that plaintiff had once had a balance of $7,830.90 on deposit in the Rossville bank, but in his answer he alleged that plaintiff had authorized I. B. Alter to draw on this deposit account as the personal agent of plaintiff, and that pursuant to such authorization plaintiff’s balance of deposit had been reduced to $65, for which sum the receiver acknowledged liability. The defendant receiver also pleaded that plaintiff had ratified the acts of Alter in thus handling plaintiff’s deposit account, and that most of it had been withdrawn and used by Alter upon some arrangement whereby Alter paid plaintiff interest at 6 per cent per annum on the nominal deposit but actual loan to Alter himself.
The plaintiff was about 89 years of age when the bank failed. Before this action was begun his deposition was taken. Pending the suit he died, and by revivor it has proceeded in the name of the administratrix of his estate.
On the issues joined the cause was tried by the court which made extended findings of fact favorable to plaintiff, and judgment was entered accordingly.
Defendant appeals, invoking the rule that a bank or receiver is not liable for deposits withdrawn by the real or apparent agent of the depositor, and contending that the evidence disclosed that B. H. Wood knowingly permitted Alter, the cashier, to check on his deposit account under such circumstances as would show Alter’s agency either by implication or by ratification, and that because of payments or credits of interest at 6 per cent'on the amount of the deposit it should be regarded as a personal loan to Alter, the cashier, rather .than an ordinary deposit for which the bank,should be held liable. As to that, it must suffice to say that if the trial court had so found, that issue of disputed fact would have been foreclosed; but by the same limitations of appellate review the trial court’s finding to the contrary is similarly conclusive, since there neither is nor can there be a tenable contention that such findings were entirely lacking in support of the evidence. Before the old man died he testified: “I never authorized him [Alter] to draw a damned dollar out of my account.” The fact that the old man was shown to be slightly mistaken in that statement and that apparently he had ratified some isolated liberties with his deposit account taken by Alter, who was his son-in-law, did not-compel an inference that the three large abstractions from his deposit account which made up the total sum involved herein had been authorized, sanctioned or ratified by the aged depositor. It is useless to reproduce the findings of fact or to discuss them and certain inferences which could be deduced therefrom. Indeed, there was no substantial dispute over the main facts. The real controversy was whether the liberties which the cashier did take with Wood’s deposit, with Wood’s partial knowledge thereof, and his seeming indifference thereto, required a conclusive inference to be drawn that the nominal bank deposit of Wood had in fact become a mere loan or series of loans to Alter. The tribunal authorized to settle that controversy has decided it, and this court is bound to hold that the trial court’s findings and inferences legitimately deduced therefrom were sufficient to justify the judgment and forbid it to be disturbed.
The judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment awarding damages for injuries sustained by plaintiff while passing between freight cars in the defendant’s switchyard in Wellington.
Plaintiff was a grain sampler and inspector for the Hunter Milling Company, which had one or more large mills and elevators in that city. He was permitted by the railway company to come into its switchyard to take samples of grain from railway cars consigned to his employer. The switchyard is quite extensive. There are twelve parallel railway tracks which lie side by side and stretch east and west for a mile or two. These tracks are connected by a lead track which permits freight cars to be switched from one track to any other. The first of these tracks on the south side of the switchyard is the “passing track,” the next is the “main-line track,” and the others, which are numbered from 1 to 10, are used for the storing and switching of freight cars and for the making up and breaking up of freight trains. In early summer, when the harvest is good, several hundred cars of wheat arrive daily in Wellington. The switchyard is liable to become congested; and the problem of handling the carloads of wheat becomes so acute that three engines and nine switching crews are required to keep the traffic moving.
The cars of wheat consigned to the Hunter Milling Company were usually placed on tracks 2 and 3 immediately north of the main-line track.
On the morning of June 23, 1937, the plaintiff, Paul Jones, and two other men, Dort Clark and Kenneth Denny, who worked under his direction, were engaged in taking samples and inspecting grain in freight cars standing on tracks 2, 3 and 4. In the course of their work they carried sacks suitable to hold samples of grain, a small crowbar, canvas, some car seals and a trier rod. This instrument is a brass tube about 5 feet long and 2 inches in diameter. It is pushed down into a mass of wheat and.will draw out a sample of grain. The inspectors usually got through their work about ten o’clock in the forenoon.
Plaintiff’s testimony giving an account of his accident reads, in part, thus:
“My accident occurred about 10 o’clock on the morning of June 23. I went to work about 5:45 or 6 o’clock that morning. Kenneth Denny and Dort Clark were with me. . . . The grain rush season had been under way about a week or ten days. I have been a grain, inspector for a little less than ten years. ... As a rule we work from the south side of the trades . . . the grain doors on that side of the car are usually lower. Most of the country elevators load the cars from the south side; therefore, over 50 percent of the cars have a lower grain door on the south than on the north. Cars are usually loaded two-thirds to three-fourths full. We were working on track 4 immediately before my accident. We had taken samples on tracks 2, 3, and 4 before that. We had some more cars on track 2 to sample. . . . We were sampling cars on track 4. I believe we had seven cars there on track 4, and I opened the doors on all of them, and Dort Clark sampled three and Denny sampled three and that left one car. ... I sampled the last car. ... I then crossed track 3. I crossed track 3 by climbing up the ladder on the end of the box car and stepped on the coupler, and then down on the ground on the other side. ... I then started to climb this ladder on the end of the car [on track 2] and was intending to step on the coupler and down on the ground on the south side. As I was climbing up this ladder and intending to step on this coupler, the switch engine hit a severe jolt on the east and jerked me loose and over to the next car west, and I fell down on the top of the rail and partly on the rail, and' partly on the ground, with this car moving toward me, and I immediately started to scramble to get off the rail if possible. I managed to get off, all with the exception of my right leg, and this northwest wheel caught my leg and for some reason didn’t run over it but started skidding it along the rail. The wheels skidded my leg on the rail. It started dragging me by this leg. I was screaming for help all the time and kept trying to hold my body away so this other wheel coming behind the front wheel would not catch me and it drug the skin and flesh off my hip and shoulder and finally the car stopped, and finally someone appeared on the scene and discovered me under there.”
Plaintiff’s petition stated his cause of action at length. One of its allegations was that track two was a “hold track,” which defendant devoted to the placing of grain cars which were to be inspected, and that cars on that track were not to be moved until such inspection was completed. The petition charged defendant with negligence in many particulars — bumping cars on the “hold track” with a switch engine when defendant’s servants knew that grain samplers and inspectors were or might be at work thereabouts; bumping or moving cars placed on a “hold track” for inspection purposes; moving cars on a “hold track” after being warned that plaintiff was working in or about them; failing to sound a whistle or give some signal or warning before moving the cars; running the switch engine with such force and violence as to throw plaintiff under the car wheels; disregarding the defendant’s own rules touching the handling of freight cars on “hold tracks.”
Defendant’s answer pleaded a general denial, contributory negligence, and that plaintiff’s accident and injury were the result of the ordinary risks of his employment, and that they were not the result of any negligence on the part of defendant or its employees.
.The cause was tried before a jury. Defendant’s demurrer to plaintiff’s evidence was overruled. Defendant then adduced its evidence. Some rebuttal testimony was offered. The jury returned a general verdict for plaintiff, and answered .special questions thus:
“1. At what rate of speed in miles per hour was the switch engine moving when it coupled into and pushed the string of cars on which and at the time plaintiff was injured? A. 2% m.p.h.
“2. If you find for the plaintiff, in what respect was the defendant negligent? A. Improper warning, if any.
“3. Could the plaintiff have taken a safe way by walking around the string of cars on track No. 2 and thereby have avoided being injured? A. Yes, if ordinary care is exercised.
“4. Was the plaintiff, at the time and place he was injured, attempting to cross track No. 2 by crawling under a car or a coupler? A. No.
“5. Did Engine Foreman Quillen, just a short time before the plaintiff was injured, state in substance to the plaintiff, that ‘we’ (meaning the engine crew) ‘are going to. switch some cars in on track No. 2’? A. We believe Quillen made the statement, but we also believe that plaintiff did not hear it. We further believe that Quillen did not make the statement for the purpose of warning plaintiff.
“6. If you find that the plaintiff was attempting to pass between the cars by going over the coupler, was his attempt to pass over the coupler substantially interfered with by having the trier rod in his left hand and the sack of wheat in his right hand? A. Plaintiff’s movements not substantially interfered with.
“8. Were plaintiff’s injuries the result of an inevitable accident as defined to you in instruction No. XVII? A. No.
“9. Was the engine, or any of the cars, or any equipment thereof, damaged in any manner by the coupling at the time plaintiff was injured? A. No.
“11. Could the plaintiff have safely performed his duties in taking the samples of wheat from the cars in the west yard of the defendant by working down the same side of all cars on the same track, passing around the end of the string for the purpose of working in the same manner on the cars on the next track? A. Yes, if ordinary care is used.”
Defendant filed a motion for judgment non obstante, on the ground of inconsistency between the general verdict and the special findings, and on account of “the findings, the evidence and the law.” This motion was overruled and judgment on the general verdict was entered for plaintiff.
Error is based on the trial court’s ruling on the demurrer to the evidence, and on the motion for judgment on the jury’s special findings.
Touching the first of these, there was some evidence which, although sharply controverted, did tend to show that tracks 2 and 3 in defendant’s switchyard were designated as “hold tracks” upon which grain cars were placed for sampling and inspection, so that plaintiff could safely work in and about them without risk of their being moved until the inspection work was done.
Plaintiff’s evidence likewise tended to show that defendant’s switching crew knew that plaintiff had not completed his inspection work on the morning of the accident at the time the cars on hold track No. 2 were bumped by the switch engine.
Plaintiff’s evidence also tended to show that if and when it was necessary to move or bump cars on tracks 2 and 3 while inspectors were working, the custom was for some member of the switching crew to warn the inspectors.
While defendant’s evidence was to the effect that while tracks 2 and 3 were designated as “hold tracks,” the purpose of such designation was merely for the convenience of plaintiff’s employer, the Hunter Milling Company, so that carloads of wheat consigned to it could be more readily found in the switchyard where in busy seasons some 700 to 800 cars were received daily; and that the defendant had no rule or custom that cars so placed were not to be moved during inspection hours- — -that evidence must be entirely disregarded in determining the propriety of the trial court’s ruling on the demurrer to plaintiff’s evidence. (Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550.)
Counsel for defendant direct our attention to instructive cases where damages were denied to licensees who suffered injuries in a railway switchyard while climbing between freight cars, or going between the couplers of cars with little space between them. (St. Louis-S. F. Ry. Co. v. McClinton, 178 Ark. 73, 9 S. W. (2d) 1060; Lambrakis v. Chicago, R. I. & P. R. Co., 198 Ia. 641, 199 N. W. 994.)
Counsel for plaintiff rely strongly on our own case of Degitz v. Railway Co., 97 Kan. 654, 156 Pac. 743. In that case the defendant railway had placed a freight car on a transfer track from which, after inspection, it could readily be shunted to the Union Pacific railway tracks, to which it was to be transferred for delivery at its final destination. While inspecting the car to determine whether it was in acceptable condition two Union Pacific railway inspectors were killed. This court held that in their character as inspectors they were invitees, which entitled them to the care due to those rightfully in and about the car intended to be delivered to their employer. It may be true, however, that the grain inspectors for the milling industry in Wellington could hardly be classed as invitees, so as to put them on the same footing as inspectors employed by one of the railways itself. (2 Words and Phrases, 2d ed., 1190-1193.) But whether plaintiff was an invitee, or merely a licensee, he was entitled to rely on the defendant’s rule (if there was such a rule) that grain cars on tracks 2 and 3 would not be moved during inspection hours. Counsel for appellee direct our attention to certain negligence cases which arose out of personal injuries sustained in and about switchyards and loading piers, and where it was held that the circumstances required the issues of negligence to be submitted to a jury. Those we have examined and found to be somewhat helpful are: Chicago, St. P., M. & O. Ry. Co. v. Nelson, 226 Fed. 708, 712; Neal v. Curtis Co. Mfg. Co., 328 Mo. 389, 41 S. W. (2d) 543; Copley v. Union Pac. R. R. Co., 26 Utah 361, 73 Pac. 517; Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468, 47 L. Ed. 905; Balto. & Ohio R. Co. v. Charvat, 94 Md. 569, 51 Alt. 413; Johnson v. Brick & Coal Co., 276 Mo. 42, 205 S. W. 615; Payne, Agent, v. Raymond’s Admr., 198 Ky. 74, 248 S.W. 224.
Defendant argues that there was no practicable means whereby it could have notified plaintiff of the movement of cars on track No. 2. Of course, if there was a hard-and-fast rule that cars so placed should not be moved at all until the work of grain sampling and inspection was completed, the suggested point would be immaterial. But there was evidence that it not only was'practicable to warn the grain inspectors, but that when cars were to be moved on “hold tracks” such a warning was given. Witness Summers, state grain inspector, testified:
“A hold track is where they set this grain to be inspected. . . . It is a hold track for the protection of the state men. The cars are not supposed to be moved prior to the time samples are taken from the grain ears on the designated hold tracks unless the switching crew comes down and tells us they are going to bump into the cars. The cars I am referring to are those on designated hold tracks.”
Witness Hyndman also testified:
“After Paul’s injury on the 23d, while I was working on cars getting samples on tracks 2 and 3 in the west yards, I experienced a switch engine bumping into and moving those cars. Before they moved those cars, they would call or signal that they were coming in. The cars on tracks 2 and 3 after June 23 were never moved while I was working on them without me being notified. . . .
“Some member of the switching crew would give warning before bumping cars on tracks 2 and 3 while we were working there.”
We think that given the generous credence to which evidence is entitled when the trial court is called upon to measure its probative value as against a demurrer, it cannot be said that plaintiff completely failed to make a prima facie case for the jury, and the court’s ruling on defendant’s demurrer was correct.
Coming now to the question whether the general verdict is consistent with the special findings of the jury, and the related question whether certain of those special findings did not require judgment thereon to be entered for defendant, it will be noted that of all the allegations of negligence charged in plaintiff’s petition, the only negligence found by the jury was that defendant gave an “improper warning, if any.” (Finding No. 2.)
It is, of course, elementary that when a defendant is charged with various acts of negligence and the jury specially finds him guilty of one of the acts so charged, he is thereby exonerated as to the others. (Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 162, 12 P. 2d 715; Cole v. Cook, 137 Kan. 250, 253, 20 P. 2d 483; Lee v. Kansas City Public Service Co., 137 Kan. 759, 766, 22 P. 2d 942.)
S.o much of plaintiff’s cause of action as was based on the allegations of his petition that the cars on “hold tracks” were not to be moved during inspection hours necessarily failed with the failure of the other charges of negligence on which the juiy exonerated the defendant. In other words, cars on “hold tracks” could be moved during inspection hours if a proper warning were given. The fault of defendant, according to the jury’s finding, was in giving an “improper warning, if any.”
Defendant complains of the qualification the jury placed on its affirmative answer to special question No. 5. It contends that there was no evidence adduced to show that plaintiff did not hear Foreman Quillen’s warning. That point is untenable for the reason that defendant accepted the special findings as returned by the jury and invoked final judgment thereon. No motion for a new tidal was filed nor one attacking the special findings for want of support in the evidence. Therefore, finding No. 5 must stand. (Commercial Trust Co. v. Pioneer Cattle Loan Co., 120 Kan. 712, 716, 244 Pac. 840.)
We now come to what may be regarded as the most critical phase of this appeal — the proper significance which the trial court should have given, and which this court must give, to the jury’s special findings No. 3 and No. 11.
The jury specifically found that with the exercise of ordinary care plaintiff could have taken a safe way by walking around the end of the cars on track 2 and thus have avoided being injured. As we have just stated above, since neither party attacked the special findings and no motion for a new trial was filed by either litigant, we will have to accept both these findings as established by the evidence. To fully realize the significance of finding No. 11, we repeat it here:
“11. Could the plaintiff have safely performed his duties in taking the samples of wheat from the ears in the west yard of the defendant by working down the same side of all cars on the same track, passing around the end of the string for the purpose of working in the same manner on the cars in the next track? A. Yes, if ordinary care is used.”
Defendant specifically pleaded plaintiff’s contributory negligence. Does not this special finding support that' defense? We have stated above that whether plaintiff was an invitee or mere licensee he had a right to assume that the company’s employees would conform to its rules concerning the handling of cars in its switchyard. But neither a license to plaintiff to inspect cars on its tracks 2 and 3, nor an invitation to do so, could fairly be said to imply a license or invitation to climb over the couplers in going from one string of wheat cars on track 2 to another on track 3, or vice versa. Moreover, according to plaintiff’s own testimony, when he went over, to track 4 to inspect a car there he did go around the end of the string of cars on track 3. His testimony reads:
“I was working on track 3 and I just happened to see some of, our grain cars over on track 4, which was the first track north of track 3. ' ■
“Q. And next to which track did you get out of the.car? A. I was along on that lead track, along about between tracks 4 and 2, along in there some place; possibly opposite 3.
“Q. You got out at the south door, did you? A. Yes, sir.
“Q. How did you get around that cut of' cars and engine there, or where did you go when you got out? A. I went from there to track 4.”
Testifying to his route returning from track 4, he said:
“I could have gone down the track and around the end of the string of cars.
“Q. I asked you if you would have come out around the string of cars and come out on track 1? A. If I had come on track 2 and crossed over behind the last car I would have come out on track 1, providing the switch engine had not bumped — ”
Finding No. 11 is candidly responsive to the evidence, which was to the effect that it was entirely practicable to keep on one side (the south side) of a string of wheat cars on a “hold track” and inspect them one after another until that string was finished; then to go around the end of that string in safety — “yes, if ordinary care is used,” — and commence on the cars on the next “hold track.” If plaintiff had been injured by a bump of the switch engine while he was actually engaged in his work of inspection, and that bump had occurred because of no warning, or “improper warning, if any,” there would have been good solid ground for a verdict in his behalf. It can hardly be inferred that plaintiff's employer, the Hunter Milling Company, expected him to perform his inspection duties by the dangerous method of climbing over the couplers of cars in a congested switchyard. But if it did, it would indeed be a hard rule of law that would say that it is the railway company and not his own employer which should pay for his injuries. The evidence tended to show without dispute that the railway company expressly forbade its own employees to indulge in such a dangerous practice as that of climbing over the couplers in a congested switchyard. We think neither defendant nor its switching crew should be charged with notice that grain inspectors — employees of another master — on its premises as licensees, or even as invitees, were indulging in such needless hazards, so as to charge the railway company with a duty to look out for them whenever it intended to move its cars. Moreover, there was no evidence that defendant or its employees were aware that either plaintiff or other grain inspectors generally practiced the dangerous habit of climbing over the couplers in the Wellington switch-yard in the season of traffic congestion.
It is an elementary rule of law that every person must exercise ordinary and reasonable care for his own safety and not expose himself to unnecessary risks, dangers or hazards in the pursuit of his calling. It is also the law that where a person is confronted with the necessity of choosing between a dangerous course and one safe or less dangerous it is his duty to choose the latter. These simple rules of law were pertinent in this case and the jury were so instructed. One pertinent instruction which the trial court gave, in part, reads:
“16. A person to whom two courses of conduct are open is required to exercise ordinary care in choosing which course he will pursue. If, under the same or similar circumstances, an ordinarily prudent person would not have so chosen, one having a choice is negligent in pursuing a course which is dangerous rather than one which is safe or even less dangei’ous. This is true, even though the course pursued is easier or more convenient, and even though the risk of injxu-y involved is not so great but that an ordinarily prudent person would have incurred it had the safer course been unavailable. However, ordinary care in making a choice between courses of conduct is all that is required. While the existence of a safe or safer course is. to be considered in determining whether ordinary care was exercised, ordinary care does not require that every act be done in the safest way, and regard is to be had to all the other surrounding circumstances.”
That instruction became the law of this case, so far as the plaintiff was concerned, since he made no complaint of it. (U. P. Rly. Co. v. Hutchinson, 40 Kan. 51, 53, 19 Pac. 312; Railway Co. v. Schroll, 76 Kan. 572, 92 Pac. 596; Colwell v. Parker, 81 Kan. 295, 105 Pac. 524; Johnson v. Oil & Gas Co., 114 Kan. 519, 220 Pac. 176; Winston v. McKnab, 134 Kan. 75, 4 P. 2d 401.) It necessarily follows that special findings of the jury Nos. 3 and 11 must control this appeal. Read in the light of their text and the evidence upon which they were based, and the trial court’s instructions pertaining thereto, the general verdict must be held inconsistent therewith, and defendant was entitled to judgment thereon. (Kansas State Bank v. Skinner, 121 Kan. 322, 246 Pac. 497; Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 Pac. 571; Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359; Dye v. Rule, 138 Kan. 808, 811, 28 P. 2d 758; Hiler v. Cameron, 144 Kan. 296, 59 P. 2d 30.)
The judgment of the district court is therefore reversed and the cause remanded with instructions to enter judgment for defendant on the jury’s special findings of fact Nos. 3 and 11.
Wedell, J., dissents.
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The opinion of the court was delivered by
Allen, J.:
This is an appeal from an order of the district court requiring the defendant to pay interest on a judgment for child support and from an order directing defendant to pay certain hospital and medical expenses. The cross-appeal is from an order of the court which denied plaintiff’s motion to require defendant to pay the judgment for child support in gross and not in installments.
Plaintiff and defendant were divorced in 1929. At that time they agreed upon a journal entry providing for child support. The defendant being in default for a number of years, plaintiff filed several applications, including a citation for contempt. On January 17, 1936, a hearing was held, and the trial court found the defendant ■ owed the plaintiff $10,500 in accumulated past-due installments for child support under the original decree. From these rulings and orders an appeal was taken to this court, where the judgment of the trial court was affirmed. (Davis v. Davis, 145 Kan. 282, 65 P. 2d 562.)
Thereafter the plaintiff filed a motion wherein it was stated that certain payments had been made on account of the judgment of $10,500, but that such payments did not cover interest, and asking for an order requiring the defendant to pay the interest due on the judgment. The court found that under statute G. S. 1935, 41-104, the defendant was obliged to pay interest on the judgment at the rate of six percent.
Defendant asserts the court was in error in making this order.
The journal entry of January 17, 1936, recited:
“It is further found that plaintiff should have and recover judgment against said defendant for all past-due installments and payments under said order of June 13, 1929', which the court finds to be as follows:
“Past-due installments, payment on said child support, $10,500.”
“It is therefore considered, ordered and adjudged that judgment be entered herein and order made upon and in accordance with the findings and additional findings hereinbefore set out and that said findings be the judgment of the court.”
In the former appeal, in discussing this action of the trial court, it was said:
“It calculated the amount past d,ue for child support and determined it to be $10,500. . . . Judgment was rendered for the total amount due and unpaid. ... It was simply a calculation of the amount appellant had been ordered to pay in accordance with his own agreement, but which he had failed to pay and which amount was reduced to judgment.” (Davis v. Davis, 145 Kan. 282, 285, 291, 65 P. 2d 562.)
Our statute G. S. 1935, 41-104, provides that all judgments of courts of record shall bear interest from the day on which they are rendered at the rate of six percent per annum. The only exception mentioned in the statute is in the suit on a contract providing for a different rate of interest. (G. S. 1935, 41-105.)
Whether the judgment of January 17, 1936, was a judgment within the meaning of G. S. 1935, 41-104, depends upon the construction of the child-support statute G. S. 1935, 60-1510. Upon the former appeal of this case it was determined that the trial court had no power to reduce or to increase the past-due installments for child support. (See, also, Wilkinson v. Wilkinson, 147 Kan. 485, 77 P. 2d 946.) It follows that the order of the court, made at the hearing, fixing the amount due on the accrued installments, was final. The right of modification had ceased. The latitude of discretion was gone. It became a judgment within the meaning of G. S. 1935, 41-104. In this holding no injustice is done the defendant. It was a debt of record. The amount was fixed. He had the use of the money, and having delayed payment he cannot complain that he must pay the interest as provided by the statute.
It is next contended that plaintiff waived any claim to interest by acceptance from the clerk of the court of the full amount of the judgment. The amount due the plaintiff was the face of the judgment plus the interest.
In 48 C. J. 631 it is stated:
“P'art payment of a debt does not bar a claim for the balance, but, it has been held, raises in law an implied promise to pay the balance. . . .”
The debt was liquidated and certain. There was no waiver of interest by election, as in Turner v. George Rushton Baking Co., 139 Kan. 425, 32 P. 2d 198. We think there is no merit in the contention that the plaintiff waived a claim to the interest by accepting the payment as specified.
Neither do we find any substance in the argument of defendant that the finding of the court that the judgment of January 17, 1936, should bear interest was a modification of that judgment and therefore void. As we have seen, the judgment carried interest under the statute. The order of the court therefore merely stated what the law declared. It was not a modification of the judgment, but a fulfillment of the law.
It is also contended that error was committed in the allowance of hospital and surgical expenses for the daughter. By the terms of the judgment of January 17, 1936, the defendant was required to pay “all medical, surgical and hospital expenses necessary for the said Margaret Jane Davis.”
On June 4, 1937, the plaintiff filed an application for an order directing defendant to pay certain hospital and medical expenses for the benefit of the minor child. Affidavits as to the various claims were attached to and made a part of the application. No claim is made that the defendant did not have notice that the affidavits would be used at the hearing as provided by G. S. 1935, 60-722. The order was made October 4, 1937. The sufficiency of the proof was for the trial court, and we find no reason to disturb the order made.
There remains for consideration the cross-appeal of plaintiff. As stated above, the plaintiff filed a motion asking the court to make an order requiring the defendant to pay to the clerk of the court for benefit of the plaintiff the balance remaining unpaid on the judgment for $10,500.
In Scott v. Scott, 80 Kan. 489, 491, 103 Pac. 1005, it was said:
"Where alimony is ordered to be paid in installments, and nothing is said as to the manner of its collection, we think the fair inference is that the court intends the order to be enforced, not by lien and execution — a remedy manifestly ill adapted to the purpose — but by attachment for contempt if payment is not made — a remedy always available . . . and ordinarily efficacious.”
In the Scott case it was said, and in Bassett v. Waters, 103 Kan. 853, 176 Pac. 663, it was held that the court could award permanent alimony in the form of a final judgment for a sum in gross enforceable as an ordinary judgment at law.
So, under our statute G. S. 1935, 60-1510, provision for the support of the minor children of the marriage is usually a continuing order subject to change and modification whenever the circumstances render such change proper. Such payments may be enforced by attachment proceedings. (In re Groves, 83 Kan. 238, 109 Pac. 1087.) But where, as in this case, judgment has been rendered for past-due installments for a sum fixed and certain, the judgment may be enforced by execution. This being true, the action of the trial court in refusing to compel the payment of the balance clue on the judgment of January 17,1936, by attachment and contempt proceedings, was the proper practice.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal questions the propriety of a recent order of the district court of Osborne county concerning alimony to a woman who was divorced from her husband fourteen years ago.
The facts were these: In 1914, in the district court of Osborne county, the plaintiff, Hannah C. Noonan, obtained a divorce from the defendant, Edward Grant Noonan. She was given the custody of their three daughters, who were then of the ages of fifteen, thirteen and eight years, respectively. By the judgment it was decreed—
“That plaintiff have the care and custody of the children bom as the issue of her marriage with the defendant, to wit: Florence Carmen Noonan, Laura Antoinette Noonan and Ethel Gertrude Noonan, .... And that she is entitled to an allowance of twenty-five dollars ($25) per month as support and for the education of her children, and that said monthly payment shall become due and payable on the 1st of November, 1914, and on the 1st day of each succeeding month thereafter until the further order of this court.”
On April 14,1927, the defendant filed a motion in the same cause showing that he had complied with the court’s order for all these years, that his youngest daughter died in 1925 when she was nineteen years of age, that his other two daughters had attained the ages of 28 and 26 years, respectively, and both of them were now married. Defendant concluded with a prayer that he be relieved from further payments under the judgment entered in 1914.
Plaintiff countered with a motion alleging that defendant’s financial condition had greatly improved since 1914, that plaintiff’s health was impaired and that she had little earning capacity, that the $25 monthly payment was insufficient for her necessities, that she had overtaxed her strength in rearing the children. She prayed that her allowance be increased to $50 per month.
Affidavits and counter affidavits pertinent to these motions were submitted. Both motions were denied. The court made a finding—
“That the allowance of twenty-five dollars ($25) per month made in this cause at the time of the rendition of the divorce decree was for the support of the plaintiff as well as for the children whose custody was awarded to her; that such award should stand as made at the time of the rendition of such decree.”
Judgment was entered accordingly and defendant appeals. He stands on the familiar rule of law that after parties are divorced alimony cannot be awarded, and that the judgment of 1914 decree-(l ing that plaintiff was “entitled to an allowance of $25 per month as support and for the education of her children . . . until the further order of the court” is not susceptible of an interpretation that any part of $25 per month was or could have been intended as permanent alimony. The matter is covered by the statute which provides that where permanent alimony is allowed it must be decreed in a specified sum of money. It may be made payable in gross or installments, but the sum itself must be fixed. (R. S. 60-1511.) In this case no sum was specified. The $25 per month was to be paid until the further order of the .court, but the only jurisdiction the court could retain to make further orders was founded on its continuing power to see that its judgment was obeyed and to change or modify its order for the children’s welfare as circumstances might suggest. This continuing jurisdiction is itself statutory.
“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.” (R. S. 60-1510.)
See, also, Miles v. Miles, 65 Kan. 676, 677, 70 Pac. 631; Purdy v. Ernest, 93 Kan. 157, 143 Pac. 429; Combs v. Combs, 99 Kan. 626, 628, 162 Pac. 273; Emery v. Emery, 104 Kan. 679, 681, 180 Pac. 451.
Of course a court has the same inherent power to enforce its judgment in a divorce case that it has in any other case, but that power is not enlarged by a recital in the judgment that jurisdiction" is retained; and the substance of the judgment concerning property rights or permanent alimony cannot be subsequently tampered with under color of such reserved jurisdiction. (Booth v. Booth, 114 Kan. 377, 219 Pac. 513.) In Belot v. Belot, 115 Kan. 96, 221 Pac. 1111, there was no divorce and the rule there announced is not at variance with this doctrine.
We have frequently held that a judgment of divorce settles all the property rights and obligations of the parties toward each other, and after the divorce is granted no award of alimony can be made or changed; and this rule holds true notwithstanding the circumstances of the parties may have changed. (Mitchell v. Mitchell, 20 Kan. 665; Roe v. Roe, 52 Kan. 724, 35 Pac. 808; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Fusselman v. Fusselman, 122 Kan. 515, 253 Pac. 411. See, also, Pinkerton v. Pinkerton, 122 Kan. 131, 133, 251 Pac. 246; Dague v. Dague, 126 Kan. 405, 267 Pac. 988.)
It follows that the $25 monthly allowance “as support and for the education of her children” is not lawfully susceptible of an interpretation that any portion of it was decreed as permanent alimony, and since the purposes for which it was awarded have been completely subserved by the rearing of the children to maturity, defendant is entitled to be relieved from making further payments under the order and judgment of October 28, 1914.
The judgment of the district court is reversed and the cause remanded with instructions to sustain defendant’s motion and to enter final judgment to that effect.
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The opinion of the court was delivered by
Burch, J.:
The action was one to enforce performance of a contract to purchase an automobile, or for alternative relief. Plaintiff recovered liquidated damages stipulated in the contract, and defendant appeals.
On October 27, 1926, defendant gave an order to plaintiff for a Willys-Knight automobile, delivery to be made “on or about date of demand, or as soon thereafter as possible.” The stated cash price was $2,585. Defendant had delivered to the Nash Motor Company a Nash automobile, and had received for it a credit slip on the Nash Motor Company for $475. The order gave credit on the cash price by allowance for the amount of the credit slip, which was delivered to plaintiff, and gave credit for cash with the order, $210. The stated balance was $1,900, to be paid in cash when delivery was made. The order contained the following stipulation:
“The purchaser agrees that, should he make default in the compliance with any provisions.hereof, or cancel his order after its acceptance by said company, the said company may retain, as liquidated damages therefor, any cash payment made . . .”
The Nash company had an automobile which plaintiff wanted. Believing defendant could get a better trade than plaintiff, the credit slip was returned to defendant. Defendant did not negotiate for the Nash company’s automobile, and kept the credit slip. In December, 1926, defendant purchased a Packard automobile. After that, plaintiff requested return of the credit slip. Defendant said plaintiff would get the credit slip when defendant accepted the Willys-Knight, and not before. Defendant continued to refrain from demanding delivery of a Willys-Knight, and on April 1, 1927, plaintiff sued him.
The trial occurred in March, 1928. The credit of $210 was not in fact a cash payment, but was the amount of a discount from the cash price of the automobile. Defendant had the credit slip. Defendant had been out nothing, he had a new Packard, and the price of a Willys-Knight had been reduced. Defendant testified he had not been willing to take the Willys-Knight before April 1, 1927, and was not willing to take it at the time of the trial, but he intended to take it when he felt the need' of a new automobile. The court found defendant had not acted in good faith, and had not intended to exercise privilege under the contract to demand delivery of a Willys-Knight. It is not necessary to review the evidence, which, aside from the written instrument, was oral. The finding was well sustained by the evidence, and other elements of a cause of action were sufficiently proved.
Defendant’s chief complaint is that the court refused to permit him to give the reasons why the terms of the contract were framed as the written order disclosed, and refused to permit him to testify to time of demand contemplated by the contract, to give his reasons for not making any demand for an automobile, and to testify to circumstances showing that delay in making demand was not unreasonable. The rejected testimony was not offered at the hearing on the motion for new trial, but answers returned and stricken out and testimony left in the record show what defendant wanted to say. He wanted to testify that the agreement was he was to take the automobile when he said so, and not having been in need of an automobile, he had not taken the Willys-Knight. The conclusion he desired the court to draw was that since delivery depended on exercise of his will, and his will had not been caused to function by need for an automobile, the delay was perfectly reasonable. The subject is not now material, because the court found defendant was shuffling. For defendant’s satisfaction, however, this court will indulge in dictum far enough to say the offered evidence was properly excluded.
The court treated the credit slip as so much cash, and ordered the instrument delivered to plaintiff. The court found the cash credit of $210 and the credit slip for $475 constituted the amount of plaintiff’s recovery, pursuant to the terms of the contract. Judgment was rendered accordingly. Defendant says treating the credit slip as cash put the court in the attitude of doing what the court accused defendant of trying to do at the trial — read something into the contract which was not there. It was a fair inference from the statement in the contract of the terms of sale that the credit slip was accepted in satisfaction of $475 of the cash consideration, that is, as equivalent to so much cash.
There is nothing else of importance in the case, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one of ejectment, to recover what is known as the old Wyandotte county courthouse site in Kansas City, Kan. In its answer the county prayed that its title be quieted .against plaintiffs. When the case was called for trial plaintiffs dis missed. The trial proceeded on the answer, and judgment was rendered in the county’s favor. Afterwards plaintiffs moved to set aside the judgment on the ground it was void. The motion was denied and plaintiffs appeal from the order denying the motion and from the judgment itself.
The original petition was amended. The amended petition alleged that plaintiffs have an equitable estate in and are entitled to the immediate possession of the land in controversy, which was described; that plaintiffs are the heirs at law of Margaret Clark Northrup and Hiram M. Northrup, both deceased, who were the immediate grantors of the then board of county commissioners of Wyandotte county; that the real estate was conveyed for the express purpose, and no other, of use as a site for a county courthouse; that a courthouse was erected, and the site and building were used for a courthouse until July, 1927, when the site was abandoned for use for courthouse purposes; that notwithstanding the abandonment and an understanding with plaintiffs’ ancestors, both oral and written, the written agreement being lost, that the site would revert to the Northrups, or if they were dead to their heirs, the Wyandotte county commissioners were about to sell and convey the site. The amended petition was verified by Margaret C. Northrup Staley, one of the plaintiffs, on her own behalf, and as agent and attorney for her coplaintiffs.
The material portions of the answer to the amended petition follow:
“Defendants, for answer to the amended petition of the plaintiff herein, say:
“First: They admit that Hiram M. Northrup and Margaret Clark Northrup were the immediate grantors to the then county commissioners of Wyandotte county, Kansas, of the real property described in plaintiffs’ amended petition, and that defendants are now and have at all times in said amended petition set forth been in possession of said described real property.
“Third: Further answering, said defendants say to the best of their information, knowledge and belief, and therefore charge the fact to be upon such information, knowledge and belief, that no understanding or agreement, either oral or in writing, was made and entered into between the said Hiram M. Northrup, Margaret Clark Northrup, and the then board of county commissioners of Wyandotte county, Kansas, that the real estate and improvements described in said amended petition would at any time or under any condition revert to the heirs of Margaret Clark Northrup and Hiram M. Northrup, as in said amended petition alleged.
“Wherefore, defendants pray that plaintiffs take nothing by their action, that the court' find that plaintiffs have no interest in, lien on or title to said real property described in plaintiffs’ amended petition, and that defendant’s title be quieted against any claim or pretended claim of the plaintiffs or any person claiming by, through or under them, and that defendants have judgment for their costs herein.”
No reply to the answer was filed. The case was called for trial on May 14, 1928. As indicated, when the case was- called for trial plaintiffs dismissed. The county counselor announced that defendant had a prayer for affirmative relief and desired to introduce testimony. The attorney for plaintiffs stated he had been called into the case for the purpose of dismissing it, that was his only purpose in the case, and he was merely in court to dismiss the petition. The court directed that the trial proceed on the answer. The county counselor made an offer of evidence, and the following then occurred:
“Mr. Ntjgent : If the court please, we are not appearing in this case, in any way.
“The Court: All right.
“(Mr. Nugent and Mrs. Staley, plaintiff, leave the courtroom at this time.)”
Defendant then introduced its evidence, and on the same day, May 14, 1928, the court rendered judgment quieting the county’s title.
On May 17,1928, plaintiffs filed the.following motion:
“Motion to Vacate and Set Aside Judgment.
“Now come the plaintiffs in the above-entitled cause, and appearing specially and solely for the purpose of this motion only, move the court for an order vacating and setting aside and holding for naught its judgment heretofore entered on May 14, 1928, for and in behalf of the defendants and against these plaintiffs, herein specially appearing, attempting to quiet title in these defendants and against these plaintiffs on the answer filed by those defendants to plaintiffs’ amended petition heretofore dismissed by plaintiffs on May 14, 1928, before rendition of said judgment and before testimony was introduced, for the following reasons, to wit:
“1. That defendants’ answer to plaintiffs’ amended petition heretofore dismissed by plaintiffs on May 14, 1928, before rendition of said judgment and before any testimony was introduced, does not state facts sufficient to constitute a cause of action against these plaintiffs.
“2. That the defendants, David Espenlaub, Samuel Clarke, and Peter Kramer, commissioners of Wyandotte county, Kansas, are not the proper parties to an action by or against Wyandotte county; therefore not the proper parties to maintain an action to quiet title to any lands claimed by said county.
“3. That said answer does not constitute a counterclaim, nor does it ask for affirmative relief.
“4. That defendants’ answer does not describe any real estate to which they seek to quiet title.
“5. That defendants’ answer does not allege that plaintiffs have made an adverse claim to any real estate to which defendants claim ownership.
“6. That the evidence introduced by defendants was not sufficient to support a judgment in favor of defendants against these plaintiffs.
“7. That since defendants’ answer contained no counterclaim and asked for no affirmative relief, the judgment is null and void because the entire case was dismissed by plaintiffs.
“Thomas E. Joyce,
“Attorney for plaintiffs appearing specially and solely for the purpose of this motion.”
On May 22,1928, and pending hearing on the motion, the county, by leave of court, filed an amended answer to conform to the proof and to the findings of fact embraced in the judgment. Considered as a basis for the relief prayed for and granted, the amended answer was without fault. On May 26, 1928, the motion to set aside the judgment was denied.
Passing by without discussion the relation of plaintiffs to the case as soon as they dismissed, the so-called special appearance, for purpose of the motion to set aside the judgment, was a general appearance in the proceeding to quiet title. The first ground of the motion was a belated demurrer to the answer, and sufficiency of-evidence to sustain the judgment was challenged. Besides that, plaintiffs have appealed generally from the judgment, and assign errors which relate to procedure and not to authority to proceed. Therefore the appeal is to be considered precisely as though at the beginning of the trial on the answer plaintiffs had announced a general appearance and had been present throughout the trial.
The second ground of the motion to set aside the judgment raises the question, Who was sued and who answered?
The title of the amended petition named defendants as follows: “David Espenlaub, Samuel Clarke, and Peter Kramer, commissioners of Wyandotte county, Kansas.” The amended petition alleged that defendants “abandoned said courthouse and real estate from further use of county courthouse purposes, and did on said date remove the county offices of Wyandotte county, Kansas, from said building and real estate.”
Clearly this was exercise of corporate ■ power. The amended petition further alleged that “the Wyandotte county commissioners” were, threatening to sell and convey the real estate, “notwithstand ing demand had been made upon said commissioners in their official capacity” to take no steps inconsistent with the rights of plaintiffs. The prayer for judgment was that “the defendants as commissioners of Wyandotte county” be ejected from the premises. At an early stage of the action plaintiffs filed and used in a hearing before the court the following affidavit:
“Margaret C. Staley, being first duly sworn, on her oath says that she is one of the plaintiffs in the above-entitled action, and that she is the granddaughter of Hiram M. Northrup and his wife, and the daughter of Milton C. Northrup, who was the son of Hiram M. Northrup and his wife.
“And affiant further says that this action is one in ejectment, to test the title to certain lots in Kansas City, Kan., which constitute the old courthouse site.
“That it is the contention of the plaintiffs that they are the owners of said property and entitled to possession thereof.”
The adverse interest was the interest of the county. While the precise statutory name by which the county should have been sued, “The board of county commissioners of the county of Wyandotte” (R. S. 19-105), was not used, identity of the defendant was unmistakable. If either party to the action had complained to the district court, the court would have disregarded the variance in name (R. S. 60-760), or would have summarily ordered the variance to be corrected, or would have treated it as corrected (Railroad Co. v. Saline County, 69 Kan. 278, 76 Pac. 865). The title of the answer is not abstracted, and for all this court knows it may have concluded, after the names of the individuals, with the characterization “as the board of county commissioners of Wyandotte county.” The body of the answer dealt with the same interest as the petition. The answer was signed “J. E. McFadden, county counselor.” The answer was verified by Samuel Clarke, who said he was “chairman of the board of county commissioners of Wyandotte county, Kansas, the defendant above named.” The subject of who was answering was made very plain by the amended answer, and the court concludes its discussion of this rather trivial subject by announcing that the county was sued, the county answered, and the county recovered judgment quieting its title against plaintiffs.
The fourth ground of the motion to set aside the judgment as void is that the answer did not constitute a counterclaim. Before plaintiffs dismissed the answer had not been attacked by demurrer, or motion to strike out, or in any other manner. Whether the answer stated a defense, or a counterclaim, or a right to relief concerning the 'subject of the action (R. S. 60-710), was not a matter of dispute, and a ruling by the court on the subject had been waived. As soon as plaintiffs dismissed it made no difference what kind of claim the answer would have presented if plaintiffs had not dismissed. The answer became in effect a petition to quiet title, and authority of the court to consider it did not depend on its relation to the petition. Aside from this it is the policy of the law to discourage multiplicity of suits and to encourage the final adjudication of all interests of adverse claimants in a single tract of land in one action. Pursuant to this policy assertion of a cause of action to quiet title in an answer to a petition in ejectment, is a common practice in this state.
The judgment does not rest on the answer; it rests on the amended answer. Power to permit amendment of the answer after judgment was specifically conferred on the court by R. S. 60-759. No objection to allowance of the amendment was interposed in the district court. After the amendment was made no step of any kind was taken to get rid of the amended answer or to impeach its propriety or effectiveness. Plaintiffs stood on their motion directed against the original answer and the result is an assignment of error in this court that the district court abused its discretion and improvidently permitted the answer to be amended may not be considered.
When the amended answer was filed by leave of court it superseded the original answer. The motion, so far as it challenged sufficiency of the original answer to sustain the judgment, no longer had any office to perform, and the question whether the original answer stated a cause of action good as against a demurrer became moot.
Except for a minor subject to be given brief attention, this opinion should end here. In view, however, of the great stress placed by plaintiffs on the fact the original answer did not state a cause of action, some observations may be made with reference to the unimportance of that subject.
As indicated, the original answer was not attacked by demurrer. Plaintiffs waited until after judgment had been rendered, and then moved to set aside the judgment on the ground the answer did not state a cause of action. Concerning this practice this court has said:
“If the defendant’s contention is correct, then in any case where a petition would be held insufficient to state a cause of action, if demurred to, it would be better not to incur the expense of presenting a demurrer and taking an appeal from an adverse ruling, since the final judgment might at any time be set aside on motion.” (Brenholts v. Miller, 80 Kan. 185, 186, 101 Pac. 998.)
In the case of Bryan v. Bauder, 23 Kan. 95, the petition of an administrator for authority to sell real estate did not describe the land to be sold. It was held the petition was not fatally defective, and the omission did not render the sale void, or the deed invalid. In the opinion the court said:
“Whether the petition is in proper form, or sets forth sufficient facts, are matters for the determination of the court in the exercise of its jurisdiction. Of course, if a mere blank paper is filed as a petition, jurisdiction would not attach, because there would be nothing for the court to act upon; but when a petition contains sufficient matters to challenge the attention of the court as to its merits, and such a case is thereby presented as authorizes the court to deliberate and act, although defective in its allegations, the cause is properly before the court. . . .” (p. 97.)
In an action to quiet title in which the decisive question was ownership, it was held it was not necessary that ownership be directly alleged, to give the court authority to act. (Illingsworth v. Stanley, 40 Kan. 61, 19 Pac. 352.) In an action which could be maintained only by one in possession of land, it was held it was not necessary that possession be specifically alleged in order that the court might proceed. (Pattison v. Kansas State Bank, 121 Kan. 471, 247 Pac. 643.) In the case of Rowe v. Palmer, 29 Kan. 337, it was insisted that land the subject of an action of ejectment was defectively and indefinitely "described in the petition. In the opinion the court said:
“It is not necessary for us to decide whether the petition states such a cause of action as would be good if challenged by a demurrer. If it contains sufficient matter to challenge the attention of the court as to its merits, and such a case is thereby presented as to authorize the trial court to deliberate and act, a judgment rendered thereon .is not void.” (p. 340.)
In the case of Wyandotte County v. Investment Co., 80 Kan. 492, 103 Pac. 996, the syllabus reads:
“Where a court has jurisdiction of the subject matter of an action and of the parties, a petition which alleges sufficient facts to challenge the attention of the court as to its merits, and to authorize the court to deliberate and act, is sufficient to sustain a judgment rendered in the action upon evidence, as against a collateral attack on the ground that the judgment is void; and this although the petition may have been demurrable on the ground that it did not state facts sufficient to constitute a cause of action.”
There are numerous decisions of this court to the same effect. In this instance the admission contained in the first paragraph of the answer was sufficient as a statement of facts, and disclosed to the court title in the county derived from Hiram M. and , Margaret Clark Northrup, and possession of land. The third paragraph disclosed what might be used as the basis of an adverse claim by the Northrup heirs, and denied existence of valid ground for the claim. The prayer is a statutory and necessary part of a petition (R. S. 60-704; Webster v. Broeker, 97 Kan. 219, 221, 155 Pac. 15) and of an answer asking for affirmative relief (R. S. 60-710). The prayer of-a pleading may always be looked to as an aid to interpretation, and in this instance the prayer disclosed that the answer was directed against plaintiffs. All that was lacking to state a cause of action to quiet title was an affirmative allegation that plaintiffs were making the unfounded claim, as the prayer inferentially indicated, and a description of the land. The land was referred to as that described in plaintiffs’ amended petition. If the reference did not in strictness adopt the description in the amended petition the description might have been expressly adopted by reference to save repetition and the amended petition lay, with other papers pertaining to the case, in the court’s files. Nobody questioned sufficiency of the answer. If defects had been pointed out to the court they could have been remedied instanter without delaying trial, and the case came on for trial on the petition and answer, and then on the answer. Under these circumstances the answer was sufficient to challenge attention of the court to its merits, and the court was authorized to deliberate and act upon it notwithstanding the fact that, under the rules of good pleading, the answer did not state a cause of action. Having authority to proceed in the case, the court had power to allow the answer to be amended. Allowance of the amendment was not challenged in the district court, and the original answer is merely an item of the documentary history of the case.
The sixth ground of the motion to vacate the judgment is that the evidence was not sufficient to support it. It was necessary that question be raised in the district court by motion for new trial, and no motion for new trial was filed. The stated appearance by the motion, although ineffective for the purpose, was special. The stated purpose of the motion was to obtain an order vacating and holding for naught the judgment which had been rendered. The conclusion of the motion was that the judgment was void. The subject of new trial was not referred to. The journal entry of judgment denying the motion described it as one to vacate and set aside the judgment, and not as one to vacate and set aside the judgment and grant a new trial. The first brief for plaintiffs does not mention new trial, but asserts the judgment was void, and concludes as follows:
“It is therefore respectfully submitted that the judgment of the trial court in overruling appellants’ motion to set aside the judgment should be reversed; that the judgment of the trial court originally rendered on the answer of appellees should be declared void and for naught held, and the entire case dismissed.”
The reply brief of plaintiffs does not mention new trial. The result is the subject of new trial was not brought to the attention of the district court and is not before this court for its consideration.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus brought by a corporation taxpayer to compel the defendants, the county commissioners, county clerk and county treasurer, to comply with the order of the state .tax commission by changing the tax rolls of the county so as to agree with said order and cancel the excess amount of valuation of plaintiff’s property and apply the proper levy to the valuation fixed by the state tax commission. An alternative writ was issued and an order was made to show cause why the court should not issue a peremptory writ of mandamus. At the same time an injunction was issued against such officers restraining them from issuing execution and selling any of plaintiff’s property for taxes during the pendency of the mandamus action. The defendants have filed a motion to quash the alternative writ and also a motion to. dissolve the restraining order.
The excess assessment, as claimed by the plaintiff, is that imposed by the assessor for escaped assessments for the years 1929 to 1933, inclusive, under the provisions of R. S. 79-1427. It is based upon double the assessed value of the outstanding stock of the plaintiff corporation, less the tangible property listed for taxation by the corporation for each of the five years. The motion of the plaintiff for the writ and the exhibits thereto attached state that the plaintiff, each of the five years involved, duly made its annual tax return and by inadvertence plaintiff and the deputy assessor did not fill out the blank for the value of the plaintiff’s stock, but left it blank, and two of these returns were equalized by the county board of equalization, and that later in 1934 when the assessor made the assessment for the five previous years under the escaped assessment provision the plaintiff went before the county board of equalization asking for a reduction and equalization of amount of valuation after the same had been fixed by the assessor. The county board of equalization held that it had no jurisdiction over escaped assessments and the plaintiff appealed to the state tax commission, where a hearing was had, and the commission equalized the assessment, remitted the double value penalty, finding that the assessing officer was equally at fault with the taxpayer in the matter of compliance with the law, and sent down its order to the defendants.
The motion for a writ shows that the county clerk and county treasurer changed their records to conform to the order of the tax commission and the county treasurer accepted a check from the plaintiff in full payment of the taxes after being so changed, but that when the board of county commissioners met a few days later the county clerk and county treasurer were directed by the board to disregard such order and change their records back as they were before receiving such order and return to plaintiff the money paid for taxes. This they did, but plaintiff refused to accept such remittance and returned it. Then the county treasurer sent plaintiff notices that warrants would be issued for the sale of its property for taxes if they were not paid in thirty days. This was the situation, as stated in the motion for a writ of mandamus, when the motion was filed and the alternative writ was issued.
The motion of the defendants to quash the alternative writ is like a demurrer and for the consideration thereof the statements contained in the motion for the alternative writ and the attached exhibits are regarded as the facts in the case.
A preliminary matter has to do with the injunction feature of the case. Defendants maintain that two causes of action are improperly joined, that this is an application for an injunction as well as an alternative writ of mandamus, and such misjoinder is ground for quashing the writ. There is no ambiguity about the cause of action. It is a mandamus action and not an action for an injunction. But an injunction pending the hearing of the mandamus action is always proper to hold matters in statu quo — in this case to prevent the sale of the property of the plaintiff until this hearing is completed.
It was held in the early case of C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kan. 223, 21 Pac. 1071, which was an original mandamus case like the! one at bar, that—
“Inherently the supreme court must have the power to protect its own jurisdiction, its own process, its own proceedings, its own orders, and its own judgments; and for this purpose it may, when necessary, prohibit or restrain the performance of any act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before it.” (p. 225.)
“. . . every regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and the enforcement of its judgments and mandates. . . . So demands, matters, or questions' ancillary or incidental to or growing out of the main action, and which also come within the above principles, may be taken cognizance of by the court and determined, for such jurisdiction is in aid of its authority over the principal matter.” (15 C. J. 810, 811.)
“The court, in the exercise of its power to grant injunctions, may issue a restraining order or temporary injunction, in aid of or as ancillary to a pro ceeding. . . .” (14 R. C. L. 323.) (See, also, State v. Brewing Association, 76 Kan. 184, 90 Pac. 777; and Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 135 Kan. 450, 10 P. 2d 893.)
We have no hesitancy in concluding that there is no misjoinder of causes of action here, as there is only one cause of action in the case, and that is mandamus. The injunction feature is wholly ancillary, and as no good reason is assigned for dissolving the injunction as an ancillary matter, the motion to dissolve such injunction is denied.
The defendants insist that because the state tax commission is an administrative board and not a judicial body its findings upon legal questions are not binding on county officers and that they have discretion to do as they think best, and therefore they cannot be compelled to perform any such order issued by the tax commission either by an order of that commission or by a court. Is the compliance with the order of the commission a discretionary matter or a ministerial duty? Defendants cite Robinson v. Jones, 119 Kan. 609, 240 Pac. 957, in support of the view that the duties of these defendants are discretionary. That was a mandamus tax case where the county officers refused to carry out the order of the state tax commission to cancel certain uncollected taxes and refund the part collected for what was termed overriding oil royalties, and the court upheld the right of the county officers to defend on the ground that the order was erroneous as a matter of law, yet it nowhere held such matters were discretionary, but that they were purely ministerial duties.
“Plaintiffs’ rights having been established by the tax commission, compliance with its mandate is a purely ministerial duty, and the suggested remedies are not fair substitutes for specific performance.” (p. 611.)
It also held:
“Mandamus is a remedy properly invocable by an aggrieved taxpayer to compel a board of county commissioners to comply with an order of the tax commission to cancel uncollected taxes and to refund taxes which have been collected.” (Syl. If 1.)
“The tax commission is an administrative body, and its decisions in all matters within the scope of its supervisory power, involving administrative judgment and discretion, are conclusive upon subordinate taxing officials. In the exercise of its functions, the tax commission must as a matter of necessity interpret the tax laws, and such interpretations are prima facie binding.” (p. 612.)
Another case cited by defendants along the same line is Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P. 2d 229, which holds that the orders of the state tax commission are not conclusive on the courts on questions of law. In other words, on such questions the matters -are subject to review, but that does not help the contention of the defendant county officers, that such matters cannot be controlled by mandamus. In fact, this case cited was an original proceeding in mandamus, and it was there held:
“While the state tax commission has supervisory and controlling power over subordinate taxing officers, the power exercised is administrative, not judicial, and its decision ordering the county to issue a refunding warrant to a taxpayer who had paid an alleged illegal tax under a protest is not conclusive on the courts on questions of law nor does it prevent the court from rendering a proper judgment on the issues involved in the order.” (Syl. If 1.)
Defendants cite the definition of discretion given in Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, as follows:
“Discretion is defined, when applied to public functionaries, to be ‘a power or right, conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.’ ” (p. 372.)
The two cases previously cited take discretion out of the tax duties here under consideration and make them subject to review by the courts, and that is the present question. It was said in the recent case of Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936, that it was governed by the rule announced in the Ford county case, and then added:
“It was there said, inter alia, that an order of the state tax commission is only an administrative order, not a binding judgment like that of a judicial tribunal. But such an order is prima facie valid, and public officials may and should act upon it, where its validity is not promptly challenged before a court of competent jurisdiction.” (p. 626.)
In Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563, which was a mandamus action against the state treasurer to recover inheritance tax paid under protest, it was said that mandamus has become the familiar vehicle to accomplish the end of obtaining an authoritative determination of legal questions.
Under all these authorities cited by both parties there can be no doubt of the legal question involved in this action being one that should properly be determined in a mandamus action.
The defendants contend that they should not be compelled to comply with an order of the state tax commission which is erroneous and invalid. As shown by the authorities heretofore cited, both the taxpayer and the county officers have a right to review the orders of the commission, and this case is brought by the taxpayer for that very purpose, viz., to review the legal questions involved in the order of the commission. In the same connection the defendants claim that the escaped assessments made by the county assessor are not subject to review.
Defendants state six particulars in which the order so made was erroneous, as follows:
“1st. In holding that the ‘escaped assessment’ made by the county assessor was not conclusive.
“2d. In holding that it had jurisdiction to review the ‘escaped assessment.’
“3d. In holding that it had jurisdiction to equalize an ‘escaped assessment.’
“4th. In holding that the plaintiff was in anywise relieved from its duty under the law of making a return of its stock on account of the alleged knowledge of assessors that the stock was in existence.
“5th. By failing and refusing to value the stock at twice its real value, after having found specifically that the stock escaped taxation for the years in question, and that the county assessor acted in accordance with law in assessing the stock as escaped property.
“6th. In grossly undervaluing the stock of the Beacon that had escaped assessment.”
These relate partly to the provisions of the statute on escaped assessments, R. S. 79-1427, which is as follows:
“That if the assessor shall discover that any personal property, which was subject to taxation in any year, has not been assessed, or for any cause any portion of any personal property has escaped taxation in any year or years within five years next preceding, it shall be the duty of the assessor to list and value such property at twice its real value for each such year during which such property, or any portion thereof, was not taxed, and it shall be designated on his return as ‘Escaped Assessment’ for the preceding year or years, and he shall indicate in his return the year or years for which such escaped assessment or assessments is made. If the owner of such property shall be deceased, then the taxes charged as herein provided shall be assessed against the estate of such deceased person for three years only preceding his death, and shall be paid by the legal representative or representatives of such estate: Provided, That in the event that such escaped assessment is due to error of any assessor, or that any taxpayer was not afforded an opportunity to list his escaped property, then such escaped assessment shall be entered at its true value.”
Defendants insist that for the reasons assigned above the order of the commission was erroneous, and the motion to quash the alternative writ should be sustained. The motion to quash the writ is aimed at the writ, which includes the motion for the writ and the exhibits attached, one of which is the order of the commission; and the motion to quash reaches the insufficiency of the combination because they all go together to make up the writ. Many cases are cited on this subject from other jurisdictions which may have differently worded statutes.
The language of R. S. 79-1602 as to the duties of the county board of equalization seems to be general enough to include even escaped assessments when it states:
“. . . shall make such changes in the assessment of property as shall be necessary in order to secure an assessment of all property at its actual value in money. . . . The board shall hear and determine any complaint made by any taxpayer as to the assessment and valuation of any property in the county which may be made to the board by the owner of such property or his agent or attorney.”
Then the state board is created and its duties are defined by R. S. 1933 Supp. 79-1409, as follows:
“The tax commission as hereby created shall constitute a state board of equalization, and shall equalize the valuation and assessment of property throughout the state; and shall have power to equalize the assessment of all property in this state between persons, firms or corporations of the same assessment district, between cities and townships of the same county, and between the different counties of the state, and the property assessed by the said tax commission in the first instance. And any person feeling aggrieved by the action of the county board of equalization may, within thirty days after the decision of said board, appeal to the state board of equalization for a determination of such grievance.”
R. S. 79-1702 also provides:
“If any taxpayer shall have a grievance not remediable or which has not been remedied under section 1 of this act such grievance may be presented to the tax commission at any time prior to the first day of August of the year succeeding the year when the assessment was made and the taxes charged which are the basis of the grievance, and the said commission shall have full authority to inquire into the grounds of complaint, and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax, if uncollected, together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected.”
These statutes were held to apply to excessive levies on railroad property in the case of Atchison, T. & S. F. Rly. Co. v. Drainage District, 133 Kan. 586, 1 P. 2d 253, and to grievances as to valuations generally and ordering of refunds in the Zimmer case.
It was held in Lipke v. Lederer, 259 U. S. 557, 42 S. Ct. 549, with reference to the collection of a government tax as a penalty that—
“Before collection of taxes levied by statutes enacted in plain pursuance of the taxing power can be enforced, the taxpayer must be given fair opportunity for hearing — this is essential to due process of law.” (p. 562.)
As prescribed by R. S. 79-301, every person of full age and every corporation should make a list of his taxable property for the assessor, and the order of the commission attached to the writ in this case so holds the plaintiff corporation responsible for having failed so to do, but does excuse it from the penalty imposed as the statutory proviso permits, because the assessor was equally at fault. Defendants urge that the citizens should not be made to suffer this loss of penalty because of the fault of an officer, but that is a matter to take to the legislature which added a provision to the section on escaped assessment, eliminating the penalty where the escaped assessment was due to the error of any assessor.
Our attention is directed to limitations on officers in making corrections and their liability, as prescribed by R. S. 79-1701, 79-1702 and 79-1703. The first of these sections mentions the clerical and other errors that may be corrected by the county clerk, the board of county commissioners and the state tax commission, giving to the latter such power and authority with reference to “all grievances” “not remedied as hereinbefore provided previous to February 1,” and the section concludes with the following language:
“Valuations placed on property by the assessor or by the county board of equalization shall not be considered under this section as erroneous assessments.”
R. S. 79-1702 is quoted above, and it authorizes the tax commission to consider the grievances of any taxpayer not remediable or which have not been remedied under section 1. (State, ex rel., v. Riley County Comm’rs, 142 Kan. 388, 47 P. 2d 449.) We fail to see the elimination of assessments from the grievances that may be remedied by the tax commission by these sections, as claimed by the defendants. Our statutes do not seem to exclude penalties and assessments from such grievances as may be thus remedied as the statutes of some other states seem to do.
The claim that the remedies afforded through the county equalization board and the state tax commission to the aggrieved taxpayer are limited to those of the current year will not affect the situation in this case, as the assessment for the escaped assessments was made in the current year in which the remedy was sought, although it was to cover five previous years.
It is argued that the failure of the taxing officers to list the corpo rate stock of the plaintiff for the five previous years is not a defense and furnishes no ground for the issuance of the writ. It may not, but under the proviso with which R. S. 79-1427 closes, it furnishes reason and facts sufficient to eliminate the penalty imposed by the assessor.
Since we have not concluded that the order of the state tax commission was erroneous, we need not consider the argument of the defendants as to the insufficiency of the writ of mandamus when one of the facts on which it is grounded is shown to be erroneous.
We cannot understand why the plaintiff lost any of its rights to relief under a writ of mandamus by the payment of the taxes while the books were in conformity with the order of the commission.
We conclude that the motion of the defendants to quash the alternative writ should be.overruled and denied, and the peremptory writ of mandamus prayed for should be allowed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to rescind a parol contract for the exchange of real and personal property which had been in part executed by the transfer of instruments of conveyance. It was tried to the court, findings of fact were made in accordance with plaintiff’s contention, upon which judgment was later rendered. The defendants have appealed.
The pertinent facts as disclosed by the record may be stated briefly as follows: The plaintiff, Ruth Pyle, who resided at Dodge City, was the owner of a business property in Coldwater commonly known as the opera house. It appears to have been managed and looked after by her father, the plaintiff, B. S. Von Schriltz, who resided at Coldwater. It was encumbered by a mortgage of $4,500, with some accrued interest and taxes. Plaintiffs decided to sell this property, or their interest therein, and had previously talked about that to the defendant, Charles H. Wilcoxen, a real-estate agent of Dodge City. The defendant, R. J. Goddard, resided at Ingalls, where he was engaged in various businesses; among other things he dealt in lands and other property. He owned a transfer business at Larned which consisted of trucks, horses and other equipment common to a transfer business for the handling of freight. There was an office and gasoline filling station and storage rooms for household goods and merchandise. He rented these premises. Some five or six persons were employed in the conduct of the business. The property was encumbered by a' chattel mortgage of $2,200, which had been issued by Goddard to a bank at Lamed. It seems that Wilcoxen had this transfer business for sale. At any rate he proposed to Von Schriltz the exchange of this transfer business for the equity in the opera house property at Coldwater, and at his solicitation Von Schriltz went to see it. The property was ’shown to him by Wilcoxen and Goddard. Goddard priced the transfer business at $10,000. Von Schriltz priced the equity in the Coldwater property at $10,500: They talked about how this difference would be settled and about Goddard seeing the Coldwater property, and arranged to meet at Dodge City a few days later. They did meet at Dodge City at the time appointed. Goddard had not seen the Coldwater property, but said he would rely on Wilcoxen’s statements concerning it.. There is a controversy in the testimony as to whether plaintiffs were advised of the mortgage on the transfer property. Plaintiffs’ evidence was to the effect that they knew nothing about any such mortgage and were not advised of it, and that the transfer property was to be clear, while Goddard testified that he told Von Schriltz about the mortgage, that Von Schriltz objected to taking the property with a mortgage on it, and that he stated he would trade the property either encumbered by the mortgage or clear, as Yon Schriltz desired. The terms of the actual trade made by the parties at Dodge City were not reduced to writing, and there is a controversy among them as to just what it was. In behalf of plaintiffs the evidence tended to show that the transfer property, valued at $10,000, was to be traded to them free of encumbrance for their equity in the opera house property at Coldwater, they to receive $500. This $500 Goddard did not want to pay in cash and proposed, in lieu thereof, that he convey a quarter section of land in Gray county owned by him, which he valued at $2,500. This would make $2,000 owing to Goddard, and for that sum land in Texas was to' be conveyed to Goddard. This land appears to have been owned by the plaintiff Von Schriltz and the defendant Wilcoxen, and the deal made, as plaintiffs’ evidence tends to show, was for Von Schriltz to convey his interest in the Texas property to Wilcoxen, and he to convey the entire title of the Texas land to Goddard, and Goddard to make the deed to the Gray county land to Von Schriltz a two-thirds interest and Wilcoxen a one-third interest.
The evidence on behalf of Goddard tended to show that under their agreement at Dodge City he was to have nothing to do with the Texas land, that the exchange of the transfer property at Lamed was to be subject to the mortgage, and that he convey the quarter section of land in Gray county, in lieu of having the Larned property clear, and to make up the difference of $500' between the value of that and the Coldwater property. What was actually done at Dodge City was this: Plaintiffs executed and delivered a deed to Goddard for the Coldwater property, subject to the encumbrances. Von Schriltz also executed and delivered to Wilcoxen a deed for his interest in the Texas land. Goddard executed a deed for the quarter section of land -in Gray county, which named as grantees Von Schriltz a two-thirds interest and Wilcoxen a one-third interest. This meeting was held on Saturday. It was agreed bjr the parties that they would meet at Larned the next Monday, when possession of the transfer business' would be turned over and the deal there completed. On Sunday Goddard drove to Coldwater and left the deed which had been delivered to him for the Coldwater property with the register of deeds and asked for its immediate record, and was informed that it would be recorded the first thing Monday morning, which was done. On Monday morning the parties met at Larned. Goddard gave Von Schriltz three keys for the buildings and desk connected with the transfer property. A bill of sale was to be executed and delivered later in the day. Von Schriltz stayed about the transfer business- mostly that day, the employees continued with the work as usual, but he was unable to see Goddard, or at least did not see him until about five o’clock in the evening. At some time during.the day he traded off a team that was a part of the transfer property and received some cash difference-. He also paid a telephone bill, and perhaps another bill or two that were presented. About five o’clock, and just before a train left Larned for the west, Von Schriltz met Goddard, who gave him a bill of sale of the transfer property which recited that it was subject to a chattel mortgage to the bank for $2,200. The evidence is in conflict as to what then occurred. On plaintiffs’ behalf it is that Von Schriltz read the bill of sale, observed the provision concerning the mortgage, immediately told Goddard that he would not accept the property that 'way, tried to give the bill of sale back to him, which Goddard refused to take, and that Von Schriltz told him that the deal was off, and he would not accept the property. In behalf of the defendant the evidence was to the effect that the only objection Von Schriltz made to it was that he wanted to handle this chattel mortgage in such a way that his wife would not have to sign it. At any rate, Goddard took the train in a few minutes and left. This was July 2. Von Schriltz remained at Larned the next day, and either that day, or within a few days, he got back the team which he had traded off and collected the money from the parties on the bills which he had paid. He endeavored to get -in communication with Goddard, and did talk to him by telephone, asking him to come to Larned and straighten the business up, which Goddard declined to do, and on July 5 plaintiffs brought this action for rescission. Pending the trial of the action Von Schriltz had paid no attention to the transfer property at Larned, his evidence being that he took no possession of it except as to familiarize himself with it on the Monday pending the delivery of the bill of sale, and it appears that Goddard paid no further attention to it, for the bank foreclosed its chattel mortgage and sold the property thereunder. Pending this action an execution was issued on a personal judgment which some third party had previously obtained against the plaintiff Von Schriltz, and a levy thereunder was made upon his interest in the property in Gray county which had been conveyed to him by Goddard, and his interests had been sold under that execution. The court made findings of fact as follows:
“1. The court finds that the defendant, R. J. Goddard, represented to plaintiffs that the transfer property at Larned was free and clear of encumbrance, all as charged in the petition.
“2. That the plaintiffs relied on said representations and made a delivery of deeds to the Coldwater property and to the Texas land in reliance thereon.
“3. That the defendant, R. JT. Goddard, conveyed a two-thirds interest in the Gray county land to B. S. Von Schriltz, and a one-third interest to defendant, Charles H. Wilcoxen.
“3a. That upon the delivery of bill of sale to the Larned transfer by R. J. Goddard to R. S. Von Schriltz in Lamed on the 2d day of July, 1923, Von Schriltz then and there told Goddard that he never would accept the property that way, that the property was to be clear, and that the deal was all off. That the plaintiffs herein acted promptly and brought an action on the 5th day of July, 1923, wherein they still insisted on a rescission.
“4. That plaintiffs, if they ever had any control or possession of said transfer outfit, delivered the same to the defendant, R. J. Goddard, prior to the sale thereof under the mortgage held by the First State Bank.
“5. That the two-thirds interest in the Gray county land sold to B. S. Von Schriltz has been sold under execution based on a debt B. S. Von Schriltz owed, and the redemption period does not expire until six months after the sale day, April 13, 1925.
“6. The court finds generally in favor of the plaintiffs on all the issues in this case.
“7. The court finds that there is no evidence of a competent and legal import authorizing him to make any order with reference to a reconveyance by the defendant, Wilcoxen, of the Texas land to the plaintiff, Von Schriltz.”
As a conclusion of law the court found there should be judgment for plaintiffs conditioned on plaintiffs clearing up the title to the Gray county land by reason of the execution levy thereon and sale thereunder, and directed that plaintiffs and the defendant Wilcoxen should reconvey that property to Goddard. These conditions imposed on plaintiffs were complied with and a final order of the court was made for the rescission of the trade, canceling the deed from plaintiffs to Goddard for the opera house property at Coldwater. A decree was made that Wilcoxen should convey his interest in the Texas land to Goddard, and in default of his doing so the decree itself should operate as such conveyance.
The defendants have appealed and argue several points, the principal ones being that plaintiffs were not entitled to rescission, for the reason, first, that the plaintiffs had assumed possession and con trol of the transfer property at Larned, had actually sold and disposed of some of it, and had assumed management and control by directing the men in the work and paying bills, all of which acknowledged ownership of the property, by reason of which plaintiffs could not then rescind — that their only remedy was for damages. There is not much merit in this argument. The most that plaintiffs did in that connection was pending a real delivery of the property by a properly executed bill of sale, the part of the property sold was restored promptly, and any management .or control of the business was necessarily tentative. The rejection of the property was prompt when the bill of sale was offered. In legal effect it was then turned back to Goddard. The fact that Goddard went away and paid no further attention to it is of no consequence. Any conflict in the evidence on this point was resolved in favor of the plaintiffs and is not open to consideration here.
The second principal contention of appellants is that plaintiffs did not restore to Goddard the property he had parted with, and were not in position to do so, hence & decree of rescission was improper. With respect to the Larned transfer property it is argued that plaintiffs never did restore this to Goddard, nor tendered or delivered it back to him; that what plaintiffs did was really to deliver it to the bank that held the mortgage. The findings of the court are against defendants on that contention, and the findings are supported by the evidence on behalf of plaintiffs. Appellants argue that Goddard sustained a great loss by the sale of the Larned property under the chattel mortgage. If so, it was occasioned by his own conduct in refusing to receive the property when it was tendered to him Monday evening, July 2, or to take it when the action for rescission was brought three days later. And it is argued that plaintiffs were not in position to convey back to Goddard the Gray county land, for the reason, first, that it had been levied upon under an execution and sold; and, second, because the title to one-third of this was conveyed to the defendant Wilcoxen. So far as the sale of that land under an execution against Yon Schriltz is concerned, the court protected defendant’s right in that, and the conveyance ultimately made to him by plaintiffs was free from any lien of that execution; and so far as the interest conveyed to the defendant Wilcoxen in that land is concerned, Wilcoxen was a party to this action, the decree of the court required him to convey his interest to. Goddard free of encumbrances, and provided, in the event he did not do so, that the decree itself operate as such conveyance. The result is that Goddard, by the decree of the court, received the full title to the Gray county land free of any liens or encumbrances by reason of the title having at one time been vested in plaintiffs and in Wilcoxen.
Appellants further contend that the court was not justified, under the evidence, in decreeing a rescission. This depends on whether or not the transfer business at Larned was to be conveyed free of encumbrance. If that was the agreement, plaintiffs were not required to take it subject to a chattel mortgage of $2,200, and they were justified in refusing to go ahead with the business; Just what was the agreement in that respect must be determined from the parol testimony, since the agreement itself was not reduced to writing. The best that can be said in appellants’ behalf on that question is that the testimony concerning it was in conflict. The trial court has decided it, the decision is supported by competent evidence in the case, and the finding is binding upon this court.
A few other questions are argued with reference to evidence received or evidence excluded. We have examined these questions and find no error in them. We do not regard them as of sufficient importance to require that they be set out and separately discussed. There is no error in the record, it seems clear that a just result was obtained, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages for failure of defendant to convey a town lot in Blue Rapids. The defendant prevailed and plaintiff appeals.
The plaintiff alleged in substance that he offered in writing to purchase the property for $450 cash. That the defendant owned an undivided interest therein and purported to be the agent and representative of the other owners, and did, on January 15, 1926, accept in writing the offer of the plaintiff to convey the lot in question for $450. The defendant alleged that the lot was owned jointly by her sister, brother, and herself as tenants in common, the three having derived title from their mother. The plaintiff contends that while the action was not brought on the theory that the defendant was actually authorized in writing to sell the property, that “the question as to whether or not the defendant held herself out as the authorized agent of her brother and sister must be settled from the correspondence of the parties.” However, it appears that the trial proceeded on the theory that the alleged agency was a fact to be determined by the jury from all of the evidence, oral and written.
The defendant, among other things, testified substantially that her name was formerly Marion Riddle; that she had been living in Phoenix, Ariz.; that she had not resided in Blue Rapids since 1899 or 1900; that she had known the plaintiff a good many years and had had a good many conversations with him with regard to the lot; that she and her brother, Horace Riddle, and her sister, Caroline Merling, owned the lot; that she was never authorized by her brother or sister at any time to act as their agent for the purpose of making a sale, and that she had no authority to sell without their consent.
A portion of her cross-examination follows:
“Q. You say in these conversations, that he (plaintiff) knew that your brother and sister had an interest in the property? A. He did.
“Q. Did you ever tell him that? A. Yes, sir.
“Q. And you always told him that? A. It was discussed several times. I don’t remember on which occasion. ... I had no authority to sell without their consent.
“Q. And do you say that you told that to Mr. Robinson each time? A. No, sir.
“Q. Did you ever tell him that? A. Yes, sir.
“Q. Have you any idea when or in what connection? A. It was discussed in Manhattan. I told him I absolutely knew my sister wouldn’t sell at that price, and I couldn’t sell without her consent. . . .
“Q. Did you write him anything else in connection with this letter, to let him know that you didn’t have the authority to sell this lot? A. We had discussed it verbally, and he knew I didn’t have the authority.”
There was other evidence, which need not be set out, to the effect that the defendant informed the plaintiff she had no authority to sell without the consent of her brother and sister. Under the circumstances we are unable to say there was not sufficient competent evidence to sustain the verdict. What was said on another occasion is applicable here:
“Although a large part of the evidence covering the principal issue of fact was in writing, such as depositions, affidavits and the like, an appellate court cannot disregard the verdict of the jury thereon and determine for itself the preponderant weight of the evidence, when a substantial part of it was oral and the credence to be given thereto had to be determined from the apparent candor and character of the witnesses whom the jury had an opportunity to see and hear, which advantage is necessarily denied to the court of appellate review.” (Nelson v. Railroad Co., 116 Kan. 35, 225 Pac. 1065.)
Complaint is made that the court erred in rejecting plaintiff’s offer to prove special damages. The record contains no indication that the rejected evidence was offered on the hearing of the motion for a new trial, and consequently the alleged error is not available on review. (R. S. 60-3004; Hayslip v. Insurance Co., 112 Kan. 189, 210 Pac. 188; Nutter v. Black, 126 Kan. 331, 333; State v. Collins, 126 Kan. 17, 19; State v. Harvey, 126 Kan. 685.)
The judgment is affirmed.
Johnston, C. J., not sitting.
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The opinion of the court was delivered by
Harvey, J.:
These two appeals present the same legal questions. Plaintiffs allege they were invited guests of defendant, a minor, eighteen years of age, in an automobile driven by him in Missouri; that he negligently went to sleep and turned the automobile over, as a result of which they sustained personal injuries, for which they seek, in separate actions, to recover damages. Plaintiffs pleaded the statute of Missouri, R. S. 1929, § 7775, which requires the driver of a motor vehicle on the highways of that state to use the highest degree of care so as not to endanger the property of another, or the life and limb of any person, and a decision of the supreme court of that state, Haley v. Huntley, 333 Mo. 771, 63 S. W. 2d 21) holding the statute applies to a host and his guest. Defendant filed in each case a demurrer specially worded to the effect that the. petition showed defendant to be a minor; that plaintiffs and defendant had entered into an implied contract, not for necessities; that the alleged negligence of defendant grew out of such contract, and because thereof -the petition failed to state a cause of action. The demurrers were considered and overruled. Defendant has appealed.
Appellant concedes the general rule to be that a minor is liable for his torts, but seeks to invoke the doctrine stated by Cooley on Torts, 4th ed., p. 199, as follows:
“There are some cases, however, in which an infant cannot be held liable as for tort, though on the same state of facts a person of full age and legal capacity might be. The distinction is this: If the wrong grows out of contract relations, and the real injury consists in the nonperformance of a contract into which the party wronged has entered with an infant, the law will not per-unit the former to enforce the contract indirectly by counting .on the infant’s neglect to perform it, or omission of duty under it as a tort. The reason is obvious: To permit this to be done would deprive the infant of that shield of protection which in matters of contract, the law has wisely placed before him.”
The author discusses many ramifications of this doctrine, citing cases, but we need not enlarge upon them here for the reason, as we shall see, the doctrine is not involved except as appellant raises it and argues it.
Appellant argues that when he invited plaintiffs to ride with him in his automobile, and they accepted the invitation, an implied contract was entered into by the terms of which he undertook and agreed to transport them in his automobile from Kansas City to St. Joseph, Mo., and return, and to use due care, or to use the highest degree of care, as the Missouri statute provides, in doing so. The argument is ingenious, but not sound. Had defendant asked plaintiffs to get out of his automobile after he had gone part way, and they had been compelled to hire a taxi or some other conveyance to get them home, we think they could not have sued him and recovered for the expense of such transportation. The argument of appellant would lead to this result: Every situation not involving his necessities, in which a minor would be placed and in which, by any statute or by the common law, he owed to another due care, would be a contract and relieve him from liability for his negligence. This would be contrary to the general rule that a minor is liable for his torts, conceded by appellant to be sound. Appellant, seeing where his argument might lead, says the rule he contends for would not apply if while driving on the highway he had negligently collided with another automobile, or a pedestrian, and caused injury. But appellant owed to such parties as much duty to exercise care as he did to his guests.
In Howse v. Weinrich, 133 Kan. 132, 134, 298 Pac. 766, this language is used:
“What was the duty of the host to his guest?
“The rule of this court is that the host shall not expose the guest to risk of harm by act or omission violative of the common standard of conduct, the conduct of a reasonable man.” (Citing Mayberry v. Sivey, 18 Kan. 291, 293.)
The petitions in these cases pleaded a cause of action founded on negligence, not oh contract. The fact that the cause of action arose in Missouri prevents our guest statute (R. S. 1933 Supp. 8-122b) from being applicable. The liability created by the Missouri statute may be enforced in the courts of this state. (Pool v. Day, 141 Kan. 195, 198, 40 P. 2d 396.)
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This action was brought by the receiver uf a corporation to recover from defendant alleged misappropriations of money which it is claimed belonged to the corporation.
A demurrer to defendant’s amended answer was sustained. From that ruling he appeals. Review of that ruling requires analysis of the petition and amended answer. The petition contained two causes of action. The material allegations in the first cause of action contained, in substance are: On or about July 14, 1933, plaintiff was duly appointed by the judge of the district court of Rice county, a receiver for the Sledd Farm Corporation, and he is now the duly appointed, qualified and acting receiver of that corporation; defendant was one of the incorporators of the Sledd Farm Corporation, and during all of the period of its corporate existence, prior to the time of the receivership, and now is the president of that corporation and was in truth and in fact its managing and directing officer; prior to the appointment of a receiver the defendant, as managing officer and president of the corporation, conducted a stock-selling campaign for the corporation; the selling campaign was under the immediate direction and supervision of defendant, and he employed stock salesmen to sell the stock of the corporation to various parties throughout the United States.
Under and by virtue of the laws of the state of Kansas and particularly under what is known as the “blue-sky law,” all salesmen of stock of a corporation are required to have permits to sell the stock; defendant did not have a permit as a stock salesman and had no right to engage in the business of selling the stock.
In April, 1928, and continuing until March 31,1931, and at various times hereinafter set forth, the defendant unlawfully applied and converted to his own use certain sums of money, which rightfully belonged to the corporation, under the guise and pretense of commissions, which were unlawfully and illegally charged against the assets of the corporation by defendant, in the aggregate sum of $49,652; the date and amounts of misappropriations by defendant during that period are set forth in an itemized statement, attached, marked “Exhibit A” (the dates cover a period beginning with April 9,1928, and ending March 31, 1931); the statement is true and correct, as shown by an audit of the books and records of the corporation made under direction of plaintiff; the amounts were not known or discovered, nor could they be known to any of the active and managing officers or stockholders of the corporation until the audit was made and completed by an auditor employed by plaintiff in his official capacity as receiver; the audit was completed and the above facts became known to the plaintiff sometime in the month of March, 1934.
The material allegations of the second cause of action in substance are:
Plaintiff makes the first cause of action a part of his second cause of action insofar as the same may be applicable, the same as though fully set forth therein, and further says: Defendant from August 12, 1929, until July 29, 1933, unlawfully and without authority from the directors and stockholders of the corporation appropriated and converted to his own use and benefit certain sums of money, belonging to the corporation, under the guise and pretense of salary, which amount defendant as managing officer and agent of the corporation paid to himself without authority, in the aggregate sum of $10,674. These amounts were appropriated on the dates and in the amounts set forth in an itemized statement made a part thereof, marked “Exhibit B”; the itemized statement is true and correct as shown by the records and books of the corporation; the amounts so appropriated as salary were not known or discovered by plaintiff until the close of an audit of the books and records of the corporation made under plaintiff’s direction and completed in March, 1934.
Defendant, in answer to the first cause of action, in substance states:
Defendant admits he received the sums of money as commissions for the sale of stock of the corporation as itemized in exhibit “A” of the petition; he denies each and all of the allegations of the petition, except such as are specifically admitted in his answer. The answer further alleges:
He had been the president and general manager of The Chas. M. Sledd Wholesale Mercantile Company of Lyons, for a number of years prior to the time of the stock-selling campaign referred to in plaintiff’s petition; because of defendant’s competent management and operation of the mercantile company during that time, large dividends were paid to the stockholders of that company, residing in the following states (here are listed neighboring states, and others, including a total of 31); by reason thereof defendant’s reputation as a successful business man became known throughout the United States; when the stock-selling campaign was launched, the success of the enterprise was due - almost wholly to the confidence investors throughout the United States had in defendant’s integrity and ability; before entering upon the stock-selling campaign, defendant presented the whole plan, including his retention of five (5) percent of the total sales of stock as his commission, to the bank commissioner of the state of Kansas, the charter board of the state of Kansas, and the board of directors and stockholders of the Sledd Farm Corporation; the commissions were in fact taken with the full knowledge, consent and approval of the bank commissioner, charter board, board of directors and stockholders; defendant directed and supervised the stock-selling campaign, and otherwise used his influence and reputation to the extent that the same was a complete success; by reason of all of which defendant says the money he received from the' corporation, in the way of commissions, was a fair and reasonable compensation for his services, and that he earned the same.
The money received by him as commissions was received with the full knowledge, consent and approval of the bank commissioner, and charter board of the state of Kansas, the board of directors and stockholders of the corporation, at the time the money was received; each item of exhibit "A” was received on the days and dates itemized therein; each of said items were entered upon the books of the corporation on the exact days and dates they were received by defendant; defendant did nothing to in any manner conceal from the board of directors, stockholders or any other interested persons, the dates and amounts of money he received from the corporation; by reason thereof the cause of action on each item of exhibit “A” is barred, the action not having been commenced within the time prescribed by the statute of the state of Kansas.
For answer to the second cause of action defendant states: Defendant makes each and all of the allegations of his amended answer to the first cause of action of plaintiff’s petition, a part of his amended answer to plaintiff’s second cause of action; defendant admits he received from the corporation the sums of money, and on the dates, set out in exhibit “B” of plaintiff’s petition as a salary for his services as president of the corporation; he denies each and every allegation in the second cause of action contained except such as are specifically admitted in his answer.
The corporation was organized in the year 1925, and defendant has been the president thereof since its organization; he received no pay or remuneration for his services to the company from the date of its incorporation until August 12, 1929; defendant has had a wide experience as a farmer and business man, and was at all times familiar with, and understood the business of corporation farming, and especially the farming of large tracts of land in the state of Kansas; the money he received as salary for services as president of the corporation, as set out in exhibit “B,” was received with the full knowledge, consent and approval of the board of directors and stockholders of the corporation; since the organization of the corporation he has given a large portion of his time to the management and control of the same; the sums he received as salary are less than a fair and reasonable compensation for services rendered as president of the corporation.
Plaintiff’s demurrer was on the ground the amended answer failed to state facts sufficient to constitute a defense to the petition or either cause of action.
The trial court sustained the demurrer on the grounds: the answer virtually conceded defendant had no permit to sell speculative securities and such sale was illegal (R. S. 1933 Supp. 17-1228, sub-div. 17, and previous acts); the law prohibited granting of a permit for the sale of such securities, where the sale is'on a commission basis or for a consideration, by an officer or director of the company guaranteeing the same (R. S. 1933 Supp. 17-1229, sub-div. 8, and previous acts), and the sale therefore was void; the statute of limitations did not run against the receiver; and that defendant, an officer of the corporation, could not retain a salary on the principle of implied contract.
That the securities were speculative and that defendant had no permit, is virtually conceded.
The sale of securities in violation of the provisions of the securities act was not void, but voidable, at the election of the purchaser. That fundamental distinction has been the basis of former decisions of this court. (Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073; Beltz v. Griggs, 137 Kan. 429, 20 P. 2d 510.) See, also, Westerlund v. Black Bear Mining Co., 203 Fed. 599.
Section 18 of chapter 140 of the Laws of 1929 reads:
“Every sale ... in violation of any of the provisions of this act shall be voidable at the election of the purchaser . . .”
In Westhusin v. Landowners Oil Ass’n, post, p. 404, 55 P. 2d 406, this day decided, it was held:
“A sale of speculative securities, unlawful because the seller had not secured a permit to sell pursuant to the speculative securities act, is not void, but is voidable by the purchaser.” (Syl. 1Í1.)
In the course of the opinion reference was made to the above legislative act of 1929, and it was said:
“This provision appeared in the'general revision in 1929 of the speculative securities act. (Laws 1929, ch. 140, § 18.) When enacted, the provision was in accord with settled existing law and was, in fact, merely declaratory of the existing law.” (p. 406.)
The sales in the instant case were not void, but voidable, and they were ratified by the corporation. The corporation at no time moved to avoid the sales and return the proceeds to the purchasers. In the sale of the stock the corporation was the principal, 'and defendant was merely its agent. The stock was that of the corporation. It received the money and retained ninety-five percent of the benefits. It was presumed to know the law. It therefore knew that defendant as president of the corporation could not obtain a permit to sell speculative securities on a commission basis. It follows the corporation knew its sales of stock were invalid. Instead of returning the proceeds to the purchasers, it consented not only to the sales, but to the commissions, after full disclosure of the amount defendant was to receive. It approved the payment of commissions. It appropriated ninety-five percent of the proceeds from the sales, to the purposes of the corporation. The corporation having enjoyed the benefits of this ninety-five percent, realized as the result of defendant’s efforts, now insists upon recovering from defendant, for the corporation, the remaining five percent. This amount the answer alleges it consented he should have and approved. It is therefore clear the corporation accepted the benefits of defendant’s services and ratified the commission he received. In the case of Fitch v. United Royalty Co., post, p. 486, 55 P. 2d 409, this day decided, numerous decisions of this court, dealing with the effect of sales of speculative securities without a permit, are cited. In that case plaintiff had conveyed a royalty interest in exchange for speculative securities, for the issuance' of which no permit had been granted. He had received dividends or profits from the venture. It was held he had ratified the sales which were merely malum prohibitum, not malum in se, and that plaintiff could not recover.
The receiver contends he also represents stockholders and creditors. The petition contains no mention of either, but asks the amount be recovered for the corporation. If, however, the commissions are to be used to pay debts of the corporation, that is additional approval of the sales by plaintiff, and an attempt to .use the remainder of the proceeds for the benefit of the corporation. Only after expenses of liquidation are paid and all balances struck, might a part of the purchase price of the stock ultimately filter through to stockholders. It is obvious this action was brought for the benefit of the corporate entity and is not governed by principles applicable to a suit for rescission by a purchaser of speculative securities, where the seller had no permit, as was the case in Daniels v. Craiglow, 131 Kan. 500, 292 Pac. 771, relied on by the trial court. Nor are other decisions of this court, where no element of ratification was involved, applicable to the instant case.
Coming now to the question of the statute of limitations, it is clear that statute is of no consequence if the commissions were in fact approved as the answer alleges. If they were approved by the corporation, there was no conversion. On demurrer to the answer, knowledge, consent and approval are admitted. The answer, therefore, stated a defense. We might properly close the opinion at this point. Since, however, the action remains to be tried and the question of limitations has been raised, and may become important, we shall dispose of it now.
The trial court held the fact the withdrawals were recorded in the books of the corporation did not cause the statute of limitations to run against the receiver. This was on the theory the statute did not become operative until the receiver had notice, provided he acted with diligence in the discovery of the conversion. That position cannot be sustained. On that theory an action by a receiver, based on conversion fifty years prior to his appointment, would not be barred.
In the event funds were converted, an action to recover must be brought within the statutory period. The two-year statute of limitations had run on all items contained in the first cause of action and on many contained in the second cause of action. (R. S. 60-306, third.) The latest act of conversion alleged in the first cause of action was March 31, 1931. The action was commenced May 14, 1934, over three years from the date of the last item withdrawn. The petition states the receiver was not appointed until July 14, 1933, and that he did not discover the conversion until he procured an audit of the books and records of the corporation in March, 1934. It clearly appears from the petition, therefore, the receiver obtained his information, concerning the alleged conversions, not from some extrinsic source, but from the books and records of the corporation itself. The petition contains no charge of concealment by ingenious bookkeeping or otherwise, and it would be of no avail if it did. Our statutes do not make concealment one of the grounds for tolling the statute of limitations. (State, ex rel., v. McKay, 140 Kan. 276, 280, 36 P. 2d 327.) The petition simply states the amounts were not known or discovered and could not be known until the audit was completed. The answer expressly admits the dates and amounts received by defendant as alleged by plaintiff. It states the entries were made on the exact dates the amounts were received. No collusion on the part of defendant and other members of the board of directors is alleged. The board — the governing body of the corporation — therefore, had access to the open records from the date of the first withdrawal in April, 1928, until the appointment of the receiver in July, 1933.
The petition is based on conversion. The receiver here argues the conversion as fraud. Discovery of fraud under R. S. 60-306, third, means discovery of such facts as would, on reasonably diligent investigation, lead to knowledge of the fraud. (City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P. 2d 807; Bluff City v. Western Light & Power Corp., 137 Kan. 169, 19 P. 2d 478, and cases therein cited.) The answer states that before defendant drew any commissions, he presented the whole plan, including his commissions, to the board of directors. The petition contains no allegation indicating the amounts defendant withdrew could not have been ascertained with reasonable diligence when they were drawn, as well as when the audit was made.
The last item of commission under the first cause of action stated was drawn on March 31, 1931, two years and approximately four months before the appointment of the receiver and over three years before commencement of this action.
While this action is clearly brought on behalf of the corporate entity, the receiver argues he also represents the stockholders. Certainly it cannot be seriously contended the rights of the receiver, if he were in fact bringing the action in their behalf, could rise to a higher level than the rights of the stockholders themselves. Their cause of action is barred. In Fitch v. United Royalty Co., supra, this court said:
“Even granting that the transaction between plaintiff and the United Royalty Company in 1928 was fraudulent because of the mere want of a blue-sky permit, plaintiff’s action for relief on the ground of fraud could not be commenced after two years measured from the time the plaintiff learned, or readily could have learned, that the 1337 units he had gotten for his royalty interest had been issued without the sanction of the blue-sky department. (Hege v. Suderman, 142 Kan. 495, 51 P. 2d 23, and citations.)” (p. 494.)
The first cause of action was clearly barred.
The second cause of action is for recovery of amounts alleged to have been drawn as salary. The items were drawn over a period from- August 12, 1929, to July 29, 1933, inclusive, a period of approximately four years. This action was filed May 14, 1934. The answer admits the salary items were drawn on the dates set out in the petition. The receiver also obtained these items from the records of the corporation. What was said relative to lack of diligence in ascertaining the amounts as to the first cause of action, applies to this cause of action. An action to recover salary more than two years prior to May 14, 1934, is barred. This includes the first ten items of exhibit “B,” drawn between August 12, 1929, and April 18, 1932, inclusive. This leaves the remaining salaiy items. The answer states and the demurrer admits the salary was approved. Then it was not unlawfully converted.
The receiver contends an officer of a corporation can recover salary only on an express agreement and not on an implied contract. That contention does not meet the admission that the salary defendant drew was approved. In support of the receiver’s contention, we are referred to Trust Co. v. Robinson, 89 Kan. 842, 132 Pac. 979; Telephone Co. v. Cory, 117 Kan. 463, 232 Pac. 609; 14a C. J. 136. These citations are not authority for the right of a corporation to recover amounts a board of directors had, with full knowledge, consented the defendant should receive and which amounts they approved. In this connection see 14a C. J. 136,138, and cases cited.
While the second cause of action does not definitely distinguish between services rendered by defendant, as president, and those rendered as manager of the corporation, it would appear defendant was probably relying also, at least in part, upon the fact he rendered services unusual to those of his official capacity as president. The answer alleges he spent a large portion of his time in the actual management and control of the corporation. The petition alleges he was in truth and in fact its managing and directing officer.
In the Telephone company case, supra, relied on by the receiver, this court in part held:
“Where a defendant in an action to recover moneys of a corporation had and received by him admitted that he was a director of the corporation, admitted that, he was its secretary-treasurer and in charge of its funds, and admitted having received the money, but defended on the ground that the money was received by him as an official salary and as compensation for special services performed, the burden of proof was on defendant to prove that he had a valid contract for compensation, or that the services were unusual and performed with the knowledge of the board of directors, under such circumstances that an obligation to pay compensation was fairly to be implied.” (Syl. If 4.) (Italics inserted.)
In the light of what has been said, it is deemed unnecessary to discuss other contentions urged by the receiver. We hold the amended answer states a defense to each cause of action pleaded. The ruling sustaining the demurrer must therefore be reversed. It is so ordered.
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The opinion of the court was delivered by
Horton, C. J.:
Upon the trial of this case, the state rested without proving or offering to prove the existence of the Atchison & Nebraska railroad company as a corporation, and thereupon the defendant interposed his demurrer to the evidence. After some argument, the county attorney asked leave to call a witness to prove the existence of the corporation by reputation, and that the company was doing business as such. The court granted the request, and a witness, one Philip Dun-kin, testified as to general reputation, and to the acts and business of said company as a corporation. Counsel allege that all this was error. The court clearly had the right, in its discretion, to receive any competent testimony on the part of the state at the time the evidence complained of was produced, (Crawford v. Furlong, 21 Kas. 698,) and the only question in the case worthy of comment is, whether the testimony received was competent. Counsel say the trial court placed a wrong construction upon § 214, ch. 82, Comp. Laws 1879, pp. 756, 757, which prescribes:
“If, on trial or other proceeding in a criminal cause, the existence,, constitution, or powers of any banking company or corporation shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute book of the state, government, or country by which such corporation was created.”
It is claimed that this section authorizes proof by general reputation, only when a banking company or a banking corporation is brought in question, and that as the corporation in occupation of the building burglariously entered was a railway co'rporation, its legal existence could only have been been proved by the best evidence, viz.: its charter or act of incorporation, or a duly-certified copy thereof. We do not agree with counsel. Sec. 214 is only cumulative, and it is immaterial whether it applies to banking corporations exclusively, or to corporations generally. The evidence excepted to was both competent and admissible, as the authorities are decisive that in criminal cases, independent of any statutory rule favoring the proposition, the existence of a corporation may be proved by general reputation. A de facto existence of the corporation is only necessary to be shown. In People v. Caryl, 3 Park. (N. Y.) Cr. 326, it was held .that on the trial of an indictment for stealing foreign bank bills, that it was not necessary to produce the highest evidence of the existence of the bank, such as proof of the original charter or act of the government incorporating the company; but that proof that there was such a bank defacto was sufficient. In People v. Frank, 28 Cal. 507, it was said: “ Whether the Utah Mining Company was a corporation de jure or not, was not an issue in the case. If it was acting as such, that was sufficient.” The supreme court of Indiana used this language: “Surely the property of corporations not lawfully organized, though existing in fact, is not to be declared by this court the legitimate prey of thieves, to be appropriated without criminal responsibility.” (Smith v. State, 28 Ind. 322.) And in Ohio, the supreme court thus lays down the rule: “The existence of a corporation may be proved by one who, of his own knowledge, is acquainted with the fact, . . . or by general reputation. . . . The rule springs from necessity, and the absolute impossibility of conviction, in frequent cases, without its adoption.” (Reed v. State, 15 Ohio, 217.) See also People v. Barric, 49 Cal. 342; People v. Davis, 21 Wend. 309; Johnson v. People, 4 Denio, 364; People v. Chadwick, 2 Park. (N.Y.) Cr. 163; and Sasser v. State, 13 Ohio, 453.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Petr Oariam:
The motion to quash the alternative writ, issued in this case, is sustained, upon the authority of Reedy v. Eagle, ante, p. 254; Bobbett v. The State, 10 Kas. 9; and Turner v. Comm’rs, 10 Kas. 16.
’ Judgment for costs will therefore be duly entered against the plaintiff.
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Per Curiam:
The judgment in this case will be affirmed, under the authority of Frankhouser v. Ellett, 22 Kas. 127.
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The opinion of the court was delivered by
Horton, C. J.:
In substance, the case is this: On the 11th day of June, 1875, Michael Caplice, the husband of the defendant in error, was indebted to the plaintiffs in error in the sum of $600. At the time, Michael Caplice had in his possession a certain ten-year endowment policy, issued by the .Northwestern Mutual Life Insurance Company, insuring his life for the benefit of his wife, Eliza Caplice, the defendant in error. To pay the indebtedness of $600, and for $275 in addition, Michael and Eliza Caplice .executed and delivered to P. H. McHale, one of the plaintiffs in error, the following assignment, the same executed in duplicate, to wit:
“Saint Mary’s, Kas., June 11, 1875.
“ For a valuable consideration, the receipt whereof is hereby acknowledged, we by this instrument do assign and transfer to P. H. McHale, of Saint Mary’s, Kansas, all our right, title and interest in and to policy No. 34,169, for his sole use and benefit. In case of the death of said assignee before the policy becomes due, then and in that case it shall be payable to the heirs or assigns of P. H. McHale.
“ Michael Caplice. [Seal.]
“Eliza Caplice. [Seal.]”
When Michael Caplice took out the policy, he executed to the insurance company ten premium notes of $82.38 each, and agreed to pay quarterly premiums of $28.34 each. McHale paid the quarterly premiums and premium notes maturing against the policy after the assignment and transfer. At the execution of the written assignments, the following blank receipt was on the back of the policy, viz.:
“Received--18 — , of the Northwestern Mutual Life Insurance Company,--dollars, in full of all claims on the within policy.”
This receipt the Caplices did not then sign. The policy matured May 12, 1878. The amount due thereon was $1,477.73. The plaintiffs in error demanded this sum of the company, but it refused to pay without Mrs. Caplice’s receipt. The latter refused to sign the receipt without the written agreement. The writing was executed,' and Mrs. C. gave her signature to the receipt on the back of the policy.
On the part of the plaintiffs in error, it is claimed that Mrs. Caplice ought not to recover, because it is alleged that it was her moral and legal duty to execute the receipt. On the part of Mrs. C., it is contended that she was under no moral or legal obligation to give her signature; that her signature was purchased for the writing sued on, and that such agreement is valid and binding.
We do not agree with counsel for plaintiffs in error, that Mrs. C. was under a legal duty to sign the receipt. She had previously done all that the law required of her in the assignment and transfer of the policy'; she had actually performed every act necessary to put plaintiffs in error in possession of the policy, and every benefit to be derived therefrom. The illustration of the release of a mortgage by the-mortgagee is not applicable. By the statute, it is the legal duty of the mortgagee to enter satisfaction on demand of the mortgagor when the mortgage is paid. Independent of the statute, such duty existed, which could have been enforced in a court of chancery against the mortgagee, on his refusal to enter a release after payment. On the other hand, neither can we agree with counsel for defendant in error, that the written promise ought to be fully enforced. The agreement is an unreasonable and unconscionable one. Mrs. C. is only entitled to reasonable compensation for the inconvenience or service in making her signature. She suffered no loss, injury or disadvantage, nor parted with anything of value in signing her name. The demand for the signature of Mrs. C. on the part of the insurance company before payment was arbitrary, and yet out of abundant caution in transacting its business, not very unreasonable. Frequently, insurance policies, especially endowment policies, are hypothecated for the repayment of money, and' in such cases just such assignments are executed as appear in this case. On their face they are absolute, yet in fact the transfer is only for security. When the debt is paid, the beneficiary or owner of the policy is entitled to its return. Notwithstanding the execution of such an assignment in the latter instance, the company, after due notice, has no right to pay the pledgee. So, to save any question of this character arising, we suppose the insurance company was anxious to have the signature of Mrs. C. on the policy. Morally, Mrs. O. ought to have given it, without making the extortionate demand she did. Instead of acting justly, she attempted to take advantage, and an unfair one, of the plaintiffs in error, who had bought and paid for all her right and interest in the policy. She thought herself in a condition to exact an unconscionable bargain, and for service worth only a few cents she demanded and received a written promise for the payment of. nearly five hundred dollars. The mind revolts at the enforcement of such a promise, and as the courts, as a rule, under such circumstances seize upon the slightest act of oppression or advantage to set at naught a promise thus obtained, we are of opinion that Mrs. C. is only entitled to what may be fairly due her for writing her signature, and that she cannot recover on the agreement. Hough v. Hunt, 2 Ohio, 495, and cases there cited. See also the following authorities: Sasportas v. Jennings, 1 Bay, 470; Motz v. Mitchell, (Pa. Sup. Ct.), Albany L. J., vol. 21, No. 12, p.237; Chitty on Contracts, 625.
The judgment of the district court will therefore be reversed, and the case remanded for a new trial.
Valentine, J., concurring.
Brewer, J., taking no part in the decision." .
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The opinion of the court was delivered by
Valentine, J.
This was an action brought by B. W. Lemert against V. Sponenbarger as principal, and the other defendants as sureties, on the official bond of Sponenbarger, as constable of Mission township, Neosho county, Kansas. Judgment was rendered in favor of the plaintiff for $83.36 and costs, and the defendants, as plaintiffs in error, now bring the case to this court. As Sponenbarger was the principal defendant in this action, whenever we shall use the word defendant in this opinion we shall mean Sponenbarger. The facts of the case, so far as it is necessary to state them, are substantially as follows:
On October 14, 1876, B. W. Lemert obtained a judgment for $117.70 and costs, against George French, before W. H. Morris, a justice of the peace in and for said Mission township. On October 27, 1876, said justice issued an execution on said judgment, and placed it in the hands of said V. Sponenbarger, constable as aforesaid, for collection. Sponenbarger levied said execution on certain personal property as the property of said French, which property he found in Shiloh township, in said county. After advertising said property for sale, Sponenbarger then left it in the possession of French, taking from him a redelivery bond, executed jointly by French and one Samuel Biard, which redelivery bond reads as follows:
“Know all men by these presents, that we, George French and Samuel Biard, are held and firmly bound unto V. Sponenbarger in the sum of three hundred dollars, for the payment of which we jointly and severally bind ourselves. Sealed with our seals, and dated this 13th day of November, A. D. 1877. Whereas the said V. Sponenbarger, constable of Mission township, Neosho county, by virtue of a writ of execution, duly issued by W. H. Morris, a justice of the peace of said county, at the suit of B. W. Lemert v. George French, on the 14th day of October, A. D. 1876, to collect out of the personal property of said George French the sum of $133.55, hath levied upon the following described personal property of the said George French: One sorrel horse, white face, about fourteen hands high; one sorrel mare, about fifteen hands high, seven dry cows, white and red, and one bay colt; and which said property the said V. Sponenbarger left in the possession of said George French, at the request of the said obligors, at the time of the execution of this writing obligatory. Now, if the said George French shall redeliver said property to the said Y. Sponenbarger, or other constable, holding an execution or order for the sale of the same, in said suit, at the time and place appointed by said V. Sponenbarger, or said other officer, according to law, then this obligation to be void; otherwise, to remain in full force.
“George French. [Seal.]
“Samuel Biard. [Seal.]”
Sponenbarger never sold said property, nor did he ever do anything further with it. But after the time set for the sale thereof had expired, he returned the execution, with the following return indorsed thereon, to wit:
“I received this writ on the 27th day of October, 1876, and on the 13th day of November, A. D. 1876, I did, as commanded therein, levy upon and take into my possession the following-described personal property of the within-named defendant, George French, to wit: One sorrel horse, white face, about 14 hands high; one sorrel mare, about 15 hands high; one bay colt; and seven (7) head of dry cows, white and red; and thereupon posted four notices stating the time and place where I would offer said property for sale. Said notices were posted in four of the most public places in Shiloh township, Neosho county, Kansas, that being the township in which said property was found; and the premises of the defendant were stated in said notice to be the place, and the 23d day of November, 1876, at the hour of 2 o’clock D. m. of said day, the time when said property would be sold; and therefore, at the request of said defendant George French and one Samuel Biard, and on presentation to me of a bond duly executed in the sum of $300 by said George French and ■said Samuel Biard,. conditioned for the redelivery of said property so levied upon to me at the. time and place stated in the notice for the sale thereof, I permitted said George French to retain the possession of said property so levied upon until the hour of 2 .o’clock p. M. of the 23d day of November, 1876. And on the 23d day of November, 1876, at the hour ■of 2 o’clock p. M., I went to the premises of the said George French, defendant, and demanded the redelivery of said property so as aforesaid levied on, and the said George French and the said Samuel Biard utterly failed and neglected and refused to redeliver to me the said property, or any part thereof, and after diligent search made by me said property could not be found, and I herewith return said execution without sale of said property. Witness my hand, this 25th day of November, 1876.
“Constable fees: Serving writ, 25c.; 46 miles executing writ, $4.60; taking bond, 25c.; 46 miles to sell property taken on this writ, $4.00; total, $9.10.
“V. Sponenbarger, Constable.”
This action, as we have already stated, was brought on the ■official bond of Sponenbarger, constable, and his sureties, and the breach alleged was the failure to sell said property. The petition was sufficient; and among other things it contained copies of said execution and said constable’s return. The defendants set up various defenses, which were in substance, though not in words, as follows:
First: The property levied upon by Sponenbarger, (except one cow and one horse, which now have nothing to do with the case, and which we shall not hereafter refer to,) belonged to said Biard, and not to French. And in a suit brought by Biard for the trial of the right of property, (under ch. 164 ■of the Laws of 1872, p. 333,) of which suit Lemert had due notice, and which suit was instituted and tried after said levy, .and after the execution of said redelivery bond, but before the time fixed for said sale, it was judicially determined'and adjudicated that the property belonged to Biard, and not to French. Biard made claim to the property both before and after said levy; and because of said claim, Sponenbarger, before the time set for said intended sale, demanded of Lemert an indemnity bond, which bond Lemert agreed to give, but utterly failed and refused to do so. Sponenbarger was not present when the said trial of the right of property was had, and did not know how it resulted; but Lemert, who was present at the trial and knew how it resulted, told Sponenbarger that it resulted in his (Lemert’s) favor, and Sponenbarger so believed when he made his said return.
Second : Lemert, after the time set for said sale, and after the return of said execution, sued French and Biard in the name of Sponenbarger on said redelivery bond, and thereby waived his right to a suit against Sponenbarger and his sureties for said failure to sell the property, which suit (against French and Biard) Lemert, as the attorney therein, mismanaged and finally dismissed, leaving Sponenbarger liable for $20 costs.
Third: Lemert owed Sponenbarger $20 for constable fees, which accrued in the original suit of Lemert v. French.
The plaintiffs reply to the foregoing defenses, as shown by his petition, reply, evidence, and the points that he has made in the court below, and in this court, is as follows:
First: To the first defense or defenses: Biard by giving said redelivery bond admitted that French owned the property, and this admission ever afterward estopped him from making any claim of ownership to said property, and no one else can make it for him, and therefore it is immaterial whether Biard did in fact own said property or not, or whether he obtained said judgment for it or not, or whether he ever made any claim to it or not. But even if he is not so estopped, or whether he is or not, still, as Sponenbarger did not mention any such claim, or ownership, or judgment, in his said return, but mentioned a state of facts entirely inconsistent therewith, Sponenbarger is now estopped from setting up that the property belonged to Biard, and not to French, or that Biard ever made any claim thereto.
With respect to said judgment, Lemert further replies, first, there can be no trial of the right of property unless there is a claimant therefor; (Laws 1872, p. 333, § 1.) There was no claimant in this case, for Biard’s redelivery bond es-topped him (the only supposed claimant) from making any claim thereto. Second, The suit for the trial of the right of property can only be brought in the township in which or from which the execution is issued, (Laws 1872, p. 333, § 1,) which in this case was Mission township; and therefore, as this suit for the trial of the right of property was not brought in the township from which the execution was issued, but in Shiloh township, the justice before whom it was brought had no jurisdiction thereof, and therefore the judgment rendered therein was a nullity. Third, Before a judgment for the claimant in a case for the trial of the right of property can have any force or effect, the constable must be notified of the result of the suit, and directed by a written order from the justice to restore the property to the claimant. (Laws 1872, p.333, §2.) As will be noticed, the claimant and the judgment creditor are the only parties to such a suit, and it is not necessary that either the judgment debtor or the constable have any notice thereof before the final judgment therein is rendered. The constable in this case had no notice of the 'final result of said suit until after the time set for the sale and until after he had made his return of said execution, and no order was issued to him directing him to restore said property to the claimant; therefore said judgment never had any force or effect. Fourth, The judgment in a suit for the trial of the right of property is not conclusive, and the constable may ignore it if he chooses, and in this case he did ignore it.
With respect to said indemnity bond, Lemert further says, that the only demand made for it, and the only agreement of his to give it, were made solely upon the condition that the property should first be sold, and that he never refused to give the same until after Sponenbarger failed to sell the property. And Sponenbarger’s return, which was made after the time set for said sale, and which is conclusive against him, says nothing about said indemnity bond, or a failure to sell the property, because no such bond was given. And Lemert further says, that before an indemnity bond could be demanded, there must be a legal claim made for the property, and a legal claimant, (Gen. Stat., p. 807, §152,) and that in this case there was no such claim or claimant, for the reason that Biard, the only alleged claimant, had previously, by giving said redelivery bond, estopped himself from making any such claim.
Second: Lemert replies to the said second defense as follows: The commencing of the suit on said redelivery bond by Lemert as an attorney at law, for Sponenbarger, was no waiver of Lemert’s right of action against Sponenbarger. The redelivery bond was taken by Sponenbarger solely as a “security for his own indemnity.” (Gen. Stat., p. 807, § 151.) It was no affair of Lemert; and whether Sponenbarger recovered on the bond for a breach thereof, made but little difference to him, Lemert.
Third: What Lemert’s reply to Sponenbarger’s third defense (numbered sixth in Sponenbarger’s answer) is, we do not know, and he has not told us.
Sponenbarger’s rejoinders, as we gather them from the whole of the'record and from the points made in this court, are substantially as follows: First, After said redelivery bond was given, said suit for the trial of the right of property was commenced, and notwithstanding the supposed estoppel growing out of said redelivery bond, judgment was rendered in said suit in favor of Biard and against Lemert for the property; and if said supposed estoppel was good as a defense or otherwise in any action, it was certainly good as a defense in that action; but as it was not made available in that action, it cannot now be made available in this or in any other action. The judgment rendered in that action is conclusive against Lemert in this action as to all defenses or supposed defenses which Lemert might then have had and which he might then have interposed. • Said judgment is res adjudicata as to all questions which could have been litigated in that action. Second, Said return as before stated was made under a mistake of facts, induced by the false representations of the plaintiff in this action, and therefore its recitals cannot be binding upon these defendants. Third, The said suit for the trial of the right of property may be brought at least in the township where the property is found, or in the township where the claimant resides, (Laws 1872, p.333, §1,) if not in any township in the county. (Comp. Laws 1879, p. 702, §1.) And this suit for the trial of the right of property was commenced not only in the township in "which the property was found, but also in the township where the claimant resided.
In the consideration of this case, we think we shall have to consider the property levied on as in fact belonging to Biard. We must also consider that Biard made a claim to the property, and that for this reason Sponenbarger demanded of Lemert an indemnity bond; but that this demand was never made a finality. On the contrary, Sponenbarger agreed, (as may properly be inferred from the evidence,) that the bond might be given after the sale of the property, and the property was never sold. Hence, we do not think that said demand amounts to anything; and therefore neither does the failure to give the indemnity bond amount to anything.
The giving of said redelivery bond by Biard and French, in which they substantially admitted that the property belonged to French, we think estopped Biard from afterward denying that the property belonged to French, unless said judgment, in the right-of-property case, overturns this estoppel. (Freeman on Executions, 265, and authorities there cited.) Parties cannot be allowed to gain advantages (the possession of the property levied on) by making admissions, and then to deny the truth of such admissions, to the injury of others who relied upon their truth, and who had a right to rely thereon. When a redelivery bond is given, the constable and the judgment creditor have a right to believe, as against the parties giving it, that the property belongs to the judgment debtor, and that it will be returned to the constable on or prior to the day set for the sale of the property. But if it is not so returned, then the satisfaction of the judgment is delayed, if not defeated, with much loss and inconvenience to the con stable and judgment creditor. But does said judgment in the right-of-property case overturn this estoppel? We think not. And yet we think that the justice of the peace who' rendered it had sufficient jurisdiction. We think that the suit was properly commenced in the township where the property was found and seized. All property levied on by a constable under an execution remains in the township where it is found, and it is advertised and sold in such township, (Comp. Laws of 1879, p.724, §146,) and token it, is levied upon, or in the language of the statute, “when a constable shall levy on or attach property, claimed by any person or persons, other than the party against whom the execution or attachment issued,” “a trial of the right to such property” may after three days’ notice be had, “ whiph trial shall be had before some justice of the township,” etc. (See §1, Laws 1872, p. 333; §152a of Comp. Laws 1879, p.725.) The word “ township,” as here used, probably means the township in which the property is found or situated, at the time the claim is made for it. At least, we do not think that it is absolutely necessary that the trial should be had in the township from which the execution is issued. Now, supposing that the justice had jurisdiction to render the judgment, and that the judgment is valid: then is the judgment conclusive as to the ownership of the property, as against Lemert and in favor of Sponenbarger, in this action? We would think not. Such judgments are generally not conclusive. (Freeman on Executions, §§ 276, 277; Armstrong v. Harvey, 11 Ohio St. 527, 533; B’Hymer v. Sargent, 2 id. 682; Foltz v. Stevens, 54 Ill. 181, 185, 186; Curtis v. Patterson, 8 Cow. 65; Van Cleef v. Fleet, 15 Johns. 147; Sheldon v. Loomis, 28 Cal., 122.)
This kind of suit is a summary proceeding before a justice of the peace for the trial of the right to property which may amount in value to several hundreds or even thousands of dollars, and neither the judgment debtor (the supposed owner of the property) nor the constable who has seized it is made a party to the action, but the proceeding is had merely between the claimant and the judgment creditor. But in this case the judgment was not conclusive, for the reason that the constable had no notice of the judgment at the time the sale should have taken place, and at the time he made his return, and was never directed in accordance with said § 2 to restore the property to the claimant, but was allowed by the claimant, so far as the record shows, to sell said property, notwithstanding the judgment. As the constable received no such notice or direction, it was his duty to proceed ■under the execution just as though no trial as to the right of property had ever been had.
We also think that the constable’s return is conclusive against him. He says in his return substantially, that French owned the property, and this- return was made after said judgment in the suit for the trial of the right of property was rendered. An officer’s return on final process is gener■erally conclusive. (Herman on Executions, § 242; Freeman •on Executions, § 366.) This is especially true as against the officer. Officers may sometimes be allowed to amend their returns, and probably they might sometimes be allowed to, impeach the return for fraud practiced upon them, and sometimes possibly for mistake, but generally the return must be considered as conclusive. There is no sufficient reason shown in this case why the return made by Sponenbarger should not be considered as conclusive.
We think that the cause of action set forth in the defendants’ answer, to wit, that the plaintiff owed Sponenbarger $20 for fees which accrued to him as constable in the original case of Lemert v. French, is a proper subject of set-off in this action. (Civil Code, §§ 94 and 98 to 100; Himrod v. Baugh 85 Ill. 435, 437, 438, and cases there cited.) Sponenbarger was probably not in fact entitled to $20 as fees; for, according to the execution in that case, the execution placed in his hands for service, the whole of the costs (including all the officers’ fees) were only $15.85. But the defendants alleged in their answer that Sponenbarger was entitled to said $20, and the court below sustained a demurrer which was interposed by the plaintiff to this portion of the defendants’ an swer, and would not allow the defendants to prove this part of their answer; and hence, for the purposes of this case, we must take it as admitted that Sponenbarger was entitled to said $20 as fees.
We think we have said everything that need to be said in this case; and while we may not have discussed in this opinion every question presented by counsel, we have nevertheless carefully considered all of them.
The judgment of the court below will be reversed, unless the defendant in error (plaintiff below) will consent to a reduction of his judgment in the sum of $20; and in.case he •so consents, the judgment will be so reduced, and then affirmed. The costs in this court will be equally divided between the parties.
All the Justices concurring.
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The opinion of the court was delivered by
Wedell, J.:
This action was brought to obtain a decree to impress land with a constructive trust in favor of the plaintiff, which trust was alleged to have grown out of and to have been created by reason of defendants’ fraudulent representations and fraudulent oral agreement to convey title to the land and the breach of that agreement. A general demurrer to the petition was sustained, and from that ruling plaintiff appeals.
The amended petition in substance alleged: Plaintiff’s residence is Claflin, Barton county, Kansas, and defendants are residents of Broken Arrow, Okla. Plaintiff and the defendant, Talitha Barth, were the brother and sister of one Emil Herthel, formerly a resident of Barton county; Herthel died April 21,1930, at the State Hospital for the Insane at Lamed; Emil Herthel died seized in fee of the four tracts of land described in the petition; the deceased had personal property in the amount of approximately $7,000, Emil Herthel left a pretended will by which all of his estate, except a small amount in cash bequests, was devised and bequeathed to the defendant, Talitha Barth; immediately after the death of Emil Herthel, the defendant Talitha Barth, discussed with plaintiff the mental condition of the testator, prior to and including the time the will was made, and Talitha Barth knew and stated that she knew Emil Herthel was mentally sick and unsound at the time his will was made, and did not have the proper mental capacity to make a will; before the will was admitted to probate the defendants, Talitha Barth and her husband, - Barth, talked to plaintiff in regard to his allowing the will to be probated without contesting the same; Talitha Barth agreed with plaintiff the property of Emil Herthel had been improperly and inequitably distributed between the surviving heirs; Talitha Barth and her husband agreed and represented to plaintiff that in consideration of his allowing the will to be probated and in consideration of his not bringing an action to contest the will, the property would be divided with plaintiff, and that plaintiff would receive as his share of the testator’s estate, certain land described in the petition; that relying upon said agree ment and representations by Talitha Barth, plaintiff allowed the will to be probated and brought no action to set it aside; plaintiff had fully performed his part of the contract and defendants had accepted such performance prior to June 24, 1931; defendants have been nonresidents of the state of Kansas continuously since 1930, when plaintiff and defendants entered into the agreement, and since that time plaintiff has not been able to obtain service of summons on defendants within the state of Kansas.
The amended petition further states in substance: That subsequent to the time of the original agreement plaintiff and Talitha Barth, at various times, discussed the division of the property, and that Talitha Barth wanted to substitute another piece of land in place of the land agreed upon, but that plaintiff refused to allow her to change the agreement; the only controversy which was ever had between plaintiff and defendant, Talitha Barth, was relative to the proposed substitution of land by Talitha Barth; the legal title to all property herein described stands in the name of Talitha Barth; the property Talitha Barth agreed to convey to plaintiff is in fact and in law the property of and belongs to plaintiff; whatever .title or interest defendant, Talitha Barth, now has was gained and acquired through the false and fraudulent representations on her part in not dividing the property in accordance with the agreement; that by reason of the false and fraudulent representations and agreement on the part of the defendant, Talitha Barth, in getting the title to the property through the will, in equity and in law, a constructive trust should be impressed upon the property, and that Talitha Barth is in fact only a trustee for the property and that the beneficial interest of and the real ownership of the property is in the plaintiff; plaintiff is entitled to an accounting for the rents and profits from the time of testator’s death; by reason of the premises plaintiff is entitled to have the title to the property quieted in him and to be adjudged to be the owner thereof in fee simple.
The trial court sustained the demurrer on the following theories: (1) the order admitting the will to probate was never vacated or set aside and hence the question presented by plaintiff is res judicata; (2) the action constituted a collateral attack on the order of probate and in fact was a contest of the will; (3) the alleged oral contract was in violation of the statute of frauds (G. S. 1935, 33-105, 33-106); (4) the action was on an oral contract and was barred after three years (G. S. 1935, 60-306, Second); (5) the action was also barred after two years as the relief sought was based on fraud (G. S. 1935, 60-306, Third); (6) the law of trusts did not apply.
Talitha Barth was the principal defendant, and we shall refer to both defendants as appellee. Appellee urges the demurrer was properly sustained on each ground. Appellant contends:
“1. The breach by a devisee of an agreement with an heir to convey land in consideration of forbearance to contest a will is a proper cause for equitable relief against the devisee.
“2. When an agreement by a devisee to convey land to an heir in consideration of forbearance to contest a will has been fully performed by the heir, equity should impress the lands to be conveyed under the agreement with a constructive trust for the heir nowithstanding the statute of frauds.
“3. An action for equitable relief for breach of an agreement to convey land in consideration of forbearance to contest a will is neither a contest of the will nor a collateral attack upon the order admitting the will to probate.
“4. This action for equitable relief, commenced six years after the date of the oral agreement, when the defendants have been at all times nonresidents of this state, is not barred by any statute of limitations.”
In the view we take of this case it is unnecessary to treat the various contentions of the parties. We have concluded the action was barred, and need, therefore, consider only that question.
Appellant insists a constructive trust was pleaded which in equity operated to invest him not only with the equitable but the legal title as well. Assuming, without deciding, that a constructive trust was created the action is nevertheless barred. Appellant contends the action is one for the recovery of real estate and the fifteen-year statute of limitations is applicable (G. S. 1935, 60-304, Fourth), and that if the two-year statute of limitations pertaining to fraud, namely G. S. 1935, 60-306, Third, is applicable, then that statute has been tolled by reason of defendants’ nonresidence from the state at all times since the oral agreement was made immediately after testator’s death on April 21,1930. The cause of action on the theory of the petition accrued not later than June 24, 1931, or approximately six years prior to the commencement of this action, on June 10, 1937.
We shall first treat appellant’s contention that the fifteen-year statute and not the two-year fraud statute, was applicable. The mere fact an action pertains to real estate does not necessarily constitute it an action for the recovery of real estate. (See various illustrations in Maine v. Payne, 17 Kan. 608.) Appellant’s theory is that a constructive trust was created by reason of appellee’s fraud. On his own theory, therefore, before he was entitled to the possession of the land, he was obliged to destroy the title of appellee and acquire that title for himself. This he could only do in this case, if at all, by first establishing the fraudulent contract. Looking beyond the mere form of the action and to the real issue involved, we find the gist of the action was “relief on the ground of fraud.” That appellant may combine a request for relief upon the ground of fraud with a request for the title to the land may be conceded, but before he is entitled to the land he is obliged to establish his title to the land. (Foy v. Greenwade, 111 Kan. 111, 118, 206 Pac. 332.) That title, according to appellant’s own theory, depended entirely upon the establishment of appellee’s fraud. How long could he wait to assert title which was withheld by reason of fraud? Clearly, not fifteen years. To hold he could delay his action more than two years would require that we completely ignore the two-year statute providing for relief on the ground of fraud. (G. S. 1935, 60-306, Third.) It has been repeatedly held that where such right to relief is based on fraud, the action is barred after two years. (Main v. Payne, supra; Kahm v. Klaus, 64 Kan. 24, 67 Pac. 542; New v. Smith, 86 Kan. 1, 110 Pac. 380; Foy v. Greenwade, supra; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416; Bell v. Bank of Whitewater, 146 Kan. 901, 906, 73 P. 2d 1059.) In the case of Foy v. Greenwade it was held:
“Where one has been fraudulently induced to give a quitclaim conveyance to his interest in real estate, and he brings an action to set aside the conveyance and for a recovery of his interest in the land, the first phase of such action is for relief on the ground of fraud and such action must be begun in two years, and this rule governs although, if the relief on the ground of fraud is timely asked and obtained, the second phase of the action — -to recover his interest in the property — may be commenced at any time within fifteen years.” (Syl. ¶ 2.)
Appellant relies upon the cases of Rooney v. McDermott, 113 Kan. 18, 213 Pac. 631, and Rooney v. McDermott, 121 Kan. 93, 246 Pac. 183, as authority for the contention the fifteen-year statute is controlling. In those cases the court was divided as to the applicable statute of limitations. In neither of them, however, was the relief sought predicated on fraud. Where the action sounds in fraud, as in the instant case, the fraud statute, as heretofore indicated, controls. It therefore follows that when a party has once established his right or title to the land within the time prescribed by the fraud statute he then has fifteen years from the time the action accrued within which to recover possession of the property.
That the statutes of limitation, in such cases as this, apply where relief is sought on the theory of constructive trusts growing out of fraud, cannot be doubted. (Main v. Payne, supra; Kennedy v. Kennedy, 25 Kan. 151; City of Clay Center v. Myers, 52 Kan. 363, 35 Pac. 25; Kahm v. Klaus, supra; Bell v. Bank of Whitewater, supra; 37 C. J. Limitations of Actions, Implied or Constructive Trusts, § 270; Restatement, Restitution, §§ 148 (2) and 179.) G. S. 1935, 60-313, provides:
“When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense.”
It has been expressly held that statute is broad enough to include all actions, whether legal or equitable. (Hogaboom, v. Flower, 67 Kan. 41, 43, 72 Pac. 547.) Furthermore, our statute of limitations with respect to actions for relief on the ground of fraud makes no exception relative to constructive trusts resulting from fraud. We are not permitted to ingraft new exceptions onto the statute. (Regier v. Amerada Petroleum Corp., 139 Kan. 177, 183, 30 P. 2d 136.)
Did nonresidence of appellee in this case toll the statute of limitations? Appellant contends it did, citing G. S. 1935, 60-309, the pertinent portion of which tolls the statute during the period of the defendant’s absence from the state. Appellant’s own theory of his lawsuit was that a constructive trust was impressed on the land, the res. According to his petition he instituted this action while unable to obtain personal service on 'appellee, and in order to obtain a judgment which would operate only in rem. He therefore knew, or should have known, that he could obtain no personal judgment against appellee for an accounting. The action to affect the res could have been instituted at any time after June 24, 1931, in the county where the land was situated (G. S. 1935, 60-501), and service could have been obtained by publication. (G. S. 1935, 60-2525; Reeves v. Pierce, 64 Kan. 502, 67 Pac. 1108; Clingman v. Hill, 104 Kan. 145, 148, 178 Pac. 243.) The relief sought being against the res, which was within the state, the action was not tolled by appellee’s nonresidence. (Hogaboom v. Flower, supra; Bell v. Hernandez, 139 Kan. 216, 222, 30 P. 2d 1101.) In the Hogaboom case it was said:
“Conceding the contention of the plaintiff in error that there was no personal liability resting upon any person to pay this debt, she then held only a lien on the real estate. The fact that the holder of the legal title was absent from the state did not prevent her from enforcing such lien by a proper action at any time after the maturity of the debt, nor suspend the statute of limitations. Having no personal cause of action against any of the holders of the legal title, their presence or absence from the state was immaterial so far as her foreclosure proceedings were concerned. She had her proceeding in rem to enforce her mortgage lien.” (p. 42.)
In support of appellant’s contention against the above authorities he cites the case of C. K. & N. Rly. Co. v. Cook, 43 Kan. 83, 22 Pac. 988, which case is based upon the early ejectment case of Morrell v. Ingle, 23 Kan. 32. Actions in ejectment, of course, are frequently mixed actions in that they partake of the nature of actions both in rem and in personam. (19 C. J. Ejectment, § 4.) We think the rule laid down in the Hogaboom and Bell cases, and in the authorities therein cited, is basically sound and controlling in the instant case. The order sustaining the demurrer is affirmed.
Allen, J., dissenting.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action brought in Lyon county November 29, 1935, to rescind a written contract for the purchase of 797% acres of land in Pottawatomie county for $12,760, on which the plaintiff, purchaser, had made a cash payment of $2,000, and for judgment for the $2,000 thus paid with interest because of the failure of the defendant, the landowner, to comply with the terms of the written contract, wherein the owner was required “to furnish warranty deed and abstract brought down to date showing a clear and valid title except a first mortgage of $4,300.”
The petition alleged the several steps taken by both parties with reference to the examination of abstracts, requirements thereto, fixing time for closing the deal or rescinding the contract and notice of determination to rescind. Attached as exhibits were copies of the contract and eleven other documents consisting mainly of letters, telegrams and requirements to abstract.
The written contract signed by both parties was dated June 19, 1935. It described the land sold, and part of it was described as the northeast quarter of section 3, township 8, range 7, and the contract provided that the balance of the purchase money “is payable on or before 30 days or when abstract is approved which shall be without [un] necessary delay.”
The petition alleged that the “abstracts of title as tendered did not show title in conformity to the terms of said contract,” and that they showed a defective title, and upon request of defendant the abstracts were returned with the objections made thereto. One letter, dated August 12, 1935, informed the attorney for defendant that if the contract was not closed to show title according to the contract by September 15, 1935, the purchaser would declare the contract at an end. In the same letter the attorney for the purchaser called the attention of the attorney for the landowner to the fact that there was no abstract for the northeast quarter of section 3 and that the landowner had said the northwest quarter was intended. A reply letter stated that action had been commenced to quiet title and judgment was expected to be rendered therein September 27, 1935. A reply to this letter adhered to the former date of closing under the contract as September 15, 1935, and on September 16, 1935, attorney for plaintiff notified defendant that the contract was rescinded and demanded the return of the $2,000 cash payment.
In three places in the letter of the examining attorney to his client, the plaintiff, it is suggested that defects ought to be corrected by deeds or by action to quiet title.
The answer of the defendant admitted the contract as alleged and some other matters and denied all other allegations of the petition. Defendant specifically denied that plaintiff had any just ground for rescinding the contract and that plaintiff is entitled to recover any sum whatsoever from the defendant. Defendant alleged that the requirements made by the attorney for the plaintiff were in the alternative, to procure deeds or quiet title, and claimed thereunder the right to use the alternative by quieting title and that the action of the plaintiff in rescinding the contract before the title could be quieted was unreasonable. Defendant alleged that he obtained a judgment quieting such titles on September 30, 1935, and tendered the extended abstracts to plaintiff’s attorney, who declined to receive them because the contract had been rescinded for noncompliance. The defendant further alleged good faith on his part and arbitrary and unreasonable conduct on the part of plaintiff, and prayed that plaintiff take nothing and defendant récover his costs. This answer was verified and to it there was filed a reply in the form of a general denial.
On the trial, after the admission of the cash payment of $2,000 and the telegram from defendant for definite advice as to title entries to which plaintiff was objecting and return of the abstracts, the plaintiff called the defendant to the witness stand and he testified over objection of his attorney that he never owned the northeast quarter of section 3, township 8, range 7, Pottawatomie county. The attorney for the defendant asked defendant a number of questions in cross-examination about the land shown the purchaser and about subsequent correspondence, to all of which an objection was sustained. No other testimony was offered by plaintiff, and the court overruled the demurrer of defendant to plaintiff’s evidence. The defendant then took the stand in his own behalf and was asked questions about a mistake in the description in the contract where it read northeast quarter instead of the northwest quarter and concerning letters written the purchaser about the mistake, but the court sus tained objections to such as not being within the issues and that it was attempting to vary the terms of a written instrument by oral testimony. The defendant then called as his witness the plaintiff, and similar questions were asked him about the mistaken description and the attempted correction thereof, but objections to such testimony were sustained for the same reason. There was no further testimony and the court discharged the jury and rendered judgment for the plaintiff.
After all the testimony was introduced the defendant asked to amend his answer by pleading a mutual mistake and facts for the reformation of the contract. The court denied both motions, and the defendant appeals.
The assignments of error are mainly the exclusion of evidence of mutual mistake as to description and that the rescission was not made on that account, in not applying the law of estoppel to the plaintiff in the rescission of the contract which was unreasonable in point of time, in overruling defendant’s demurrer to the evidence of plaintiff and his motions to amend, and for a new trial.
The trial court in its rulings considered two things in particular: the necessity of excluding the evidence to show a mutual mistake of description of the land in the contract by oral testimony attempting to vary the terms of the written contract, and the reasonableness of the length of time in which to perform on the part of the defendant. Appellant insists that the rescission was not made on account of the mistake in the description in the written contract as to a part of the land, basing such conclusion, undoubtedly, upon two answers of the plaintiff that the defects in the title were considered in that connection and “not particularly” because of the wrong description in the contract. So we shall consider both such matters as to whether they were grounds for rescission. The former would be entirely out of the picture if the mistaken description had been shown to have been a mutual mistake, as defendant tried to show in every way without having first made it an issue in the pleadings.
Appellant insists that this mistake in the description of some of the land sold was collateral to the matter on which the minds of the parties had agreed, namely, the number of acres- sold, and cites 5 Pomeroy’s Equity Jurisprudence, 2d ed., 4745, where it is said:
“In general, however, mutual mistake as to a mere collateral matter not of the essence of the contract, when the sources of information are open to both parties alike, is not a ground for relief.”
11 C. J. 959 defines collateral as a side or secondary fact, and in connection with cross-examination of witnesses the term “collateral” is in 70 C. J. 1046 classified and associated with the words “irrelevant” or “immaterial.”
It is difficult to think of the total acres purchased as the all-important matter in a contract of sale and purchase, and the description or location of the acres being secondary or collateral. The letter of the attorney for plaintiff of August 12, 1935, which is exhibit C, attached to the petition, stated the basis of the rescission of the contract as follows:
“. . . if the contract is not closed up by furnishing an abstract to show title according to the contract to the lands described therein by the 15th of September, 1935, Mr. Parker will declare the contract at an end.”
Exhibit E, also being a letter of the same party, dated August 23, 1935, stated:
“. . . that unless you could furnish abstracts of title to the lands covered by the contract in accordance with the terms of the contract by September 15, 1935, that Mr. Parker would call the contract at an end. I fail to see how you could make good title through court as you could not convey the title until after six months from the date of the decree; Mr. Parker of course is not asking that you quiet the title or take any action along that line. Unless title is furnished as per the contract by September 15, 1935, you can consider the contract rescinded by Mr. Parker. . . .”
The erroneous description of the land sold and the defective titles are both grounds on which rescission could be based. In the case of Hazelton v. Chaffin, 109 Kan. 175, 197 Pac. 970, it was said:
“Where there is neither plea nor proof of fraud or mutual mistake, it is conclusively presumed that the written contract contains the whole terms and the only terms of the contract; and a person who has thus obligated himself cannot defeat a recovery on such contract by parol evidence of matters at variance therewith. Were the rule otherwise the making of a written contract would be a vain and useless undertaking. This has always been the law in this state.” (p. 177.)
In Radebaugh v. Dillon, 119 Kan. 492, 240 Pac. 406, it was held:
“Where a written contract was complete and free from ambiguity, and where neither fraud nor mutual mistake was pleaded or proved, parol testimony of a contemporaneous oral contract relating to the same matter was incompetent.” (Syl. ¶ 2.)
It was held in Colt Co. v. Kocher, 123 Kan. 286, 255 Pac. 48, that—
“Rule followed that in the absence of pleading and proof of some species of fraud or mutual mistake in the procuring of a party’s signature to a plain and unambiguous written contract, it must be enforced according to its terms, and neither pleading nor proof of a parol understanding at variance with such terms can be considered.” (Syl.)
We are unable to place any other interpretation upon the questions asked by the defendant than that it was an attempt to prove a mutual mistake and to vary the terms of a written contract, and the exclusion of such evidence comes within the rules of this court on this subject. We also conclude that this erroneous description, and also the defective titles, were made the grounds for the rescission.
Was the time allowed by the plaintiff before rescission unreasonable, when the contract was made on June 19, and September 15 was set, on August 12, for rescission if the terms of the contract were not met by the defendant by that time? We think not, under all the circumstances here involved. Besides, the title was not quieted until fifteen days after the plaintiff declared rescission, and ordinarily titles that are quieted in the usual manner against unknown heirs and others are not marketable for some time after the decree is rendered. (G. S. 60-2530..)
Appellant discusses the question of estoppel and cites some authorities along that line. We fail to find in the pleadings or evidence any basis for estoppel. The plaintiff did nothing shown to have been misleading; neither do we think that a formal reformation of the contract was necessary in this case, although the defendant might have pursued that course if desired and with the permission of the trial court if such request had been made before the conclusion of the case.
We find no error in refusing permission after the close of the trial to amend the answer for this purpose and to allege a mutual mistake. This motion and the motion for a new trial were, we think, properly overruled.
The judgment is affirmed.
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Per curiam:
This is an original action in the nature of quo warranto in the name of the state- by the attorney general. It calls in question certain proceedings instituted by the city of Kansas City to establish on its public levee in that portion not now occupied by other improvements a wholesale food terminal market. The city claims to be acting under its statutory authority to establish, construct, operate and regulate markets and market terminals for perishable foods, and that it is proceeding under the provisions of chapter 43 of the Laws of 1933 (Special Session), as amended by chapter 135 of the Laws of 1937, G. S. 1937 Supp. 13-1238 et seq.
The attorney general raises certain legal questions which we have carefully considered, but none of which, in our judgment, is of sufficient gravity to warrant judicial interference with the corporate activities now contemplated and being undertaken by the city.
As time is of vital importance to an early decision, we hold that judgment should be entered forthwith in the city’s behalf. A formal opinion will follow when it can be prepared; but meantime, as an outline of it, and for whatever help it may give to all concerned, we set down herein a synopsis of our views on the matters involved:
1. That chapter 43 of the Laws of 1933 (Special Session), as amended by chapter 135 of the Laws of 1937, does not violate the provisions of article XII, section 5, of the constitution, nor does it contain any other constitutional infirmity.
2. That chapter 43 of the Laws of 1933 (Special Session), as amended by chapter 135 of the Laws of 1937, vests in the defendant city power and authority to issue revenue bonds for the purpose of obtaining funds for the construction of a wholesale terminal fruit and vegetable market, and that power and authority to construct such market is vested in said city by said statute above named, and other statutes heretofore enacted.
3. That the revenue bonds authorized to be issued under the provisions of ordinance No. 30206, and the amendatory ordinance No. 30239, will not constitute general obligations of the city of Kansas City, and that such bonds cannot be paid from taxes assessed against the general pz’operty in said city.
4. That the covenants and agreements made on behalf of Kansas City under the terms and provisions of said ordinance No. 30206, as amended by ordinance No. 30239, and contained in the form of the bonds as specified in said ordinances, aro wdthin the lawful powers of said city to make. Those covenants and agreements are not reasonably susceptible of an interpretation that they obligate the city to use moneys from souz'ces other than the revenues from the improvements for their operation aizd maintenance.
5. That the provisions of said ordinance No. 30206, as amended by ordinance No. 30239, as to the funds and revenues applicable to the payment of said bonds, and contained in the form of bond, to wit:
“This bond and the interest hereon are payable solely from the money and revenue received by said city from the fees charged and rental received for the use of the property and facilities improved, constructed, reconstructed, repaired or otherwise improved by the proceeds, in whole or in part, of the revenue bonds of said city, issued or to be issued as aforesaid, and from the revenues of the public levee and the facilities connected therewith, together with the revenues from any improvements and extensions to the public levee, and not from any other fund or source. This bond shall not be or constitute a general obligation of said city of Kansas City, Kansas.”
are in strict accord with and fully authorized by the provisions of chapter 43 of the Laws of 1933 (Special Session), as amended by chapter 135 of the Laws of 1937, and that said ordinances are valid, and duly and regularly enacted.
6. That the sale of the bonds at a price not less than par and accrued interest, pursuant to the notice of bond sale, published once in the official city paper, in the issue of November 12, 1938, a copy of which notice is set out in the pleadings,.is in compliance with and authorized by statute G. S. 1935,10-106.
Touching the suggestion made-by the attorney general and by an amicus curiae, that if the revenues to which alone the holders of the proposed issue of bonds will be entitled to look for payment are insufficient to meet the principal and interest thereof according to their terms, some court may be persuaded to subject the city to liability which will have to be met from the general revenues of the city, the obvious and complete answer thereto is that public business could never be carried on if such hypothetical possibilities would warrant judicial interference with proceedings which public officers, official boards and commissions, or municipal coiporations, set about to do under express authority of statute. This action being, in part at least, a proceeding to obtain a declaratory judgment, we hold that the general revenues of Kansas City cannot be used to pay any part of the proposed bond issue, and that the generality of taxpayers of the city shall not be liable, directly or indirectly, for any expense in connection with said improvements, or for the maintenance, repair, insuring or rebuilding thereof, and that no judgment can be rendered by any court, payable by taxes or from the general revenues of the city by reason of any covenants or contractual agreements contained in said bonds or in said Ordinance No-30206, or any amendment thereof, or in any manner connected with the levee improvements that have been or may hereafter be constructed under this statute; and that all covenants, contracts and agreements contained in this ordinance shall be payable only from the revenue of said levee improvements and shall not be paid from any general funds or general revenues of the city or any department thereof.
In accordance with the foregoing, the state’s petition for ouster against the city and its co-defendants is denied, and final judgment is hereby rendered in their behalf.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to set aside a deed which purported to convey certain lands to the defendants. The deed was recorded some thirteen years after its execution. Whether there had been a valid delivery of it was the vital question in this lawsuit.
On the issues joined, the trial court held that there had been no delivery, and judgment was accordingly awarded to plaintiff.
Defendants appeal, urging several errors, the most important of which was the overruling of their demurrer to plaintiff’s evidence. A consideration of this point will require a statement of the case at some length.
In 1921 the late Abram Staats, of Pratt county, and this plaintiff were married. He had thirteen children by a former wife. She had three children by a former husband. On September 26,1923, Abram and wife executed a deed of general warranty conveying to the thirteen sons and daughters of Abram two half sections of land. During the succeeding years, until the death of Abram on October 5, 1936, Abram and wife continued to exercise the usual prerogatives of ownership of the land in controversy. Prom time to time they executed and recorded various instruments affecting its title, such as mortgages, oil and gas leases, and assignments of oil lease rentals. Abram collected-the rents and profits of the land. One of his sons occupied the land as tenant for several years and delivered to his father the landlord’s share of the crops, including the wheat crop for 1936.
Abram conducted a mercantile establishment, in which there was a safe; and until about a year before his death, the deed, which had not been delivered before 1935, remained in Abram’s safe. In June, 1936, Abram’s health began to fail. About that time one of his sons, Lature Staats, assisted in conducting his father’s business and had access to his father’s safe. He filed the deed for record on August 18, 1936, some six weeks before Abram died.
Plaintiff’s testimony explaining the execution of the deed by Abram and herself was that in 1923 he was associated in some capacity with a bank which was in financial difficulties that might make it expedient for her husband to use the deed if the bank’s troubles should make it necessary to do so, but not for any other purpose. Other evidence tended to show that the bank’s troubles were surmounted, in part, by a note and mortgage executed by plaintiff and husband (amount not stated; inferably it was for 40/172 of $25,000; brief of appellee says $5,000), and that such mortgage covered the land in controversy.
On the evidence summarized as above, can it be said that it was insufficient to withstand defendants’ demurrer thereto? The record ing of a deed would ordinarily imply a delivery of it. (Pentico v. Hays, 75 Kan. 76, 80, 88 Pac. 738; 18 C. J. 419.) In Balin v. Osoba, 76 Kan. 234, 237, 91 Pac. 57, it was said:
“It is well settled that delivery is largely a matter of intention; that a manual delivery is not necessary; that although registration may not itself constitute delivery, it is a circumstance from which delivery may be inferred, and will be inferred in the absence of some sufficient reason to the contrary. These propositions are elementary, and are supported by the texts and citations to be found in volume 13 of the Cyclopedia of Law and Procedure, at pages 561, 562, 567 and 569, and in volume 9 of the American and English Encyclopaedia of Law, at pages 153, 154 and 159.”
However, we think the evidence for plaintiff, including the potent significance that should be given to the many years’ exercise of the prerogatives of ownership by Abram after the deed was executed, down almost to the end of his life, and including the testimony of plaintiff (to which the tidal court apparently gave full credence) touching the purpose for which the deed was executed — all these probative details made a prima facie case for plaintiff that no regular, valid delivery of the deed had been made to Lature Staats or to any of the grantees during the lifetime of Abram. No error is made to appear* in the trial court’s ruling on the demurrer.
Nor was plaintiff’s evidence materially weakened by the testimony adduced for defendants. The competent evidence in their behalf, other than the fact of the deed being recorded six or seven weeks before Abram’s death, was very scant; and it was, moreover, self-serving; and, of course, the trial court was not bound to give it credence. One of the defendants, Floyd Staats, undertook to establish the fact of his father’s voluntary delivery of the deed to Lature Staats. His testimony and ruling of the court thereon reads:
“I was in my father’s store in August, 1935, when my brother and father had a conversation relative to the deed in question.
“Q. Did you hear that conversation? A. I heard it.
“Q. You may state what it was. A. He handed my brother the deed . . [Objection sustained.] ....
“My father handed him the deed, told him the farm belonged to the children and told him to put the deed on record. My brother took the deed. That happened in October, 1985. I never saw the deed after that time.”
Cross-examination:
“Q. Well, what did you say to your father about this deed? A. Well, 1 don’t remember that I said very much about it, any more than I was there and saw him give it to my brother and of course—
“Q. Did you or didn’t you? You said a while ago you did but you didn’t remember what you said, now you don’t know whether you did or not; what is the fact? A. Well, the fact is that he told us—
“Q. Well, wait a minute. I am asking you what you and your father and your brother said. I want to know what you said, or do you remember what you said? A. Well, 1 said to who do you mean?
“Q. Well, now, what is it that you said to your father; did you say anything to your father or didn’t you? A. I did when he mentioned the fact that it was agreed.”
Redirect examination:
“Q. Was he talking to you? A. I don’t think he was talking to me any more than my brother.
“By the Court: Was he talking to him or talking to both of you? That is what I want to know. A. Well, I don’t know who he was talking to. Both of us was there. He was talking in my presence.
“[Counsel for plaintiff]: We renew our objection, your honor.
“By the Court: Objection sustained. Testimony stricken out.” [Italics ours.]
We see no error in this ruling. Moreover, if the evidence had been competent, it would not have been easy to give it credence. At the beginning of his testimony Floyd Staats testified that the delivery of the deed occurred in August, 1935; and this, too, was the substance of the excluded testimony of Lature himself. But before Floyd concluded, he testified thus:
“Q. Do you remember when that was? A. It was October, 1935.
“Q. October, 1935? A. October, 1935.”
The question when the alleged delivery was made, if at all, was more important than it might seem at first impression. Defendants’ answer pleaded that it had been delivered in October, 1935. Floyd Staats first testified it had been delivered in August, 1935, and later testified it was in October, 1935. Lature Staats attempted to testify that his father gave it to him in August, 1935, but when his veracity was attempted to be tested on cross-examination he evaded questions which would have shown whether he was in Kansas or California at either of the dates, August or October, 1935, when the claimed delivery had been made.
Another of defendants testified that she had a conversation with plaintiff prior to Abram’s death, in which plaintiff “spoke of the farm as belonging to us children.” Some other testimony was adduced in defendants’ behalf, but it would serve no purpose to re hearse it. Its probative weight was for the trial court to consider, and no error can be discerned in the small credence accorded it.
Defendants contend that plaintiff was estopped to deny the validity of the deed and its delivery. The suggested estoppel is apparently based on the fact that the deed was recorded on August 21, 1936, and she did not bring suit to set it aside until February 27, 1937, six months and six days thereafter. As there were no circumstances shown which would require unusual speed on her part to avoid an estoppel, we think this contention is not good.
Touching the exclusion of the testimony of Floyd Staats, we think the ruling of the trial court was correct. (Civ. Code, § 320, G. S. 1935, 60-2804.) Before his examination was completed it was perfectly clear that he was a party to the alleged conversation with the father when the alleged delivery of the deed to Lature Staats is said to have taken place. Moreover, he was as much concerned as his brother in the transaction, if it ever occurred.
Under the circumstances of this case — Lature’s access to the safe where the deed was kept, his father’s failing health, the complete dearth of competent evidence that the father did deliver the deed to Lature, the fact that plaintiff merely joined her husband in the execution of the deed to meet some emergency which never did arise —we cannot say that the trial court erred in declining to consider the fact that the deed was filed for record as sufficient proof of its delivery. (Mundell v. Franse, 143 Kan. 139, 53 P. 2d 811; 18 C. J. 440; 8 R. C. L. 1005; 4 R. C. L. Perm. Supp. 2370.) See, also, Neel v. Catherine Neel et al., 65 Kan. 858, 69 Pac. 162; and Burke v. Burke et al., 141 S. C. 1, 139 S. E. 209, 56 A. L. R. 729. The cases of Conner v. Cole, 112 Kan. 517, 211 Pac. 615, and Turner v. Close, 125 Kan. 485, 264 Pac. 1047, are not closely analogous, because in each of them the grantor himself had the deed recorded. Furthermore, neither of them contradicts the rule applied in the case at bar.
Counsel for appellants stress the rule of law that when a wife joins her husband in the execution of a deed and permits him to have possession of it she thereby consents to its delivery by her husband. That is the ordinary rule (18 C. J. 212); but see Braly v. McKenna, 148 Kan. 547, 83 P. 2d 631. Here, however, a prima facie case of nondelivery was made by plaintiff, with very little competent or convincing evidence to withstand it — certainly none of sufficient potency to warrant this court’s interference with the judgment of the trial court.
That judgment is therefore affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is a rehearing. (Stephenson v. W. R. Grimshaw Co., 147 Kan. 532, 77 P. 2d 981.)
The facts of the case and of its disposition in the district court are narrated at length in our first opinion, and a brief summary thereof will suffice for its present disposition.
Plaintiff charged that defendant, through one J. L. Bridges, its agent and foreman, had negligently placed a plank across a sidewalk in Pittsburg near the place where defendant was doing some excavation work for the erection of a building. She alleged that she tripped over the plank as she walked along the sidewalk on the evening of March 7, 1936, about 7:30 p. m.
At the close of plaintiff’s evidence in support of the allegations of her petition, defendant demurred thereto on the ground that it wholly failed to sustain the specific allegation of negligence charged in her petition.
This motion was overruled, as was likewise defendant’s motion for a directed verdict.
The jury returned a general verdict for plaintiff and answered certain questions set out in our original opinion, only three of which need be repeated here. These read:
“2. . . state when said board was placed across said sidewalk. A. Sometime before 7:30 p.m., March 7,1936.
“3. . . state whether or not you can find from the evidence in this case what person it was that placed said board across said sidewalk. A. No.
“5. If you find for the plaintiff, then state whether or not you do so find because from the evidence you believe said board was carelessly and negligently placed across said sidewalk. A. Yes.”
Defendant’s motion for judgment on the special findings, non obstante, was overruled.
The errors pressed on our attention pertain to the trial court’s ruling on the demurrer to plaintiff’s evidence and to its ruling on defendant’s motion for judgment.
The contention of defendant’s counsel at the first hearing was and continues to be that there was not a scintilla of evidence which tended to prove plaintiff’s specific allegation “one J. L. Bridges,” defendant’s “agent and foreman,” had placed across the sidewalk the board or plank on which plaintiff tripped and fell. That contention was sustained by the jury’s special finding No. 3.
On mature reflection a majority of this court has at length come to the view that plaintiff’s evidence was insufficient to sustain the allegations of her petition. A majority of the court likewise hold that the court’s instruction 22, printed in full in our original opinion, became the law of the case, and the jury’s special finding No. 3 which conformed to that instruction was in simple justice a complete acquittal of J. L. Bridges of negligently laying the plank or board across the sidewalk.
It was not alleged in the petition nor hinted at in the trial nor in the argument on appeal that some other employee of defendant might have laid the plank across the sidewalk. Any inference to that effect, in the opinion of a majority of this court, would be unwarranted. Certainly it was not the only inference which could be deduced from the circumstances.
The judgment of the district court is reversed, and the cause remanded with instructions to enter judgment for defendant.
Harvey, Hutchison and Smith, JJ., dissenting.
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The opinion of the court was delivered by
Dawson, C. J.:
Plaintiff brought this action for damages against the city of Wichita for the death of her husband. She charged that the city had knowingly maintained a defective street and premises adjacent thereto, in consequence of which an automobile in which her husband was riding capsized, and he was killed.
As the action was disposed of on the city’s demurrer to plaintiff’s evidence, the controlling facts must be stated at some length.
And first as to the locus in quo:
Some thirty years ago a certain natural watercourse in the northeast part of the city, called Chisholm creek, was inclined to overflow and do damage to neighboring property in rainy weather. To correct that tendency the city condemned a strip of land through the city and dug a canal therein to carry the waters of the creek. The course of the canal was from northwest to southeast. From time to time the city widened and deepened the canal. The land which the city had eventually acquired for a right of way for the canal varied from 250 feet to 300 feet in width. Within the limits of this right of way were the spoil banks of earth dug from the canal. On the east side of the canal, for some considerable distance the crest of the spoil bank had been leveled and a graveled roadway for public travel had been constructed thereon. At intervals along the route of the canal, it was crossed by bridges of certain east-and-west streets. One of these streets was Murdock avenue. The canal bank roadway coming from the northwest ended at Murdock avenue. Traffic coming southward on the canal roadway at that juncture had to turn to the east or west on Murdock avenue. There was, however, no barrier on the south side of Murdock avenue to prevent traffic from straying southward on the east side of the canal right of way. There was a dim trail thereat, which seems to have been made by persons who came to dig sand and haul it away with or without the permission of the city. This sand digging had made a pit several feet deep, about twenty feet in length, at the distance of seventy feet to ninety feet south of the curb line of Murdock avenue.
A short distance south of the pit, a railway right of way crossed the canal, thus making an effective barrier to any further use of the canal right of way as a public road.
On the night of August 25, 1936, an automobile party of six persons, one of whom was Carson, plaintiff’s husband, came from Wellington to attend a night ball game in Wichita. Carson was at the wheel. They entered upon the canal roadway and traveled southward towards the ball park, whose electric lights they could see a few blocks away, toward the southeast. When they reached Murdock avenue they proceeded across it towards the south for about 100 feet, when the presence of tall weeds and grass thereabout caused one of the party to remark, “This isn’t Hydraulic”- — -presumably the name of a nearby street they intended to use. Carson stopped the car. About the same time a railway train crossed their direc tion a short distance ahead. These facts convinced them they were off the road. Five of the party alighted and changed places. Dean Hale, whose mother owned the car, took the wheel. Carson and three others got in the back seat, and the sixth person sat beside Hale. The car was backed for a short distance, when the ground gave way and the automobile and its occupants tumbled into the pit, and Carson, husband of plaintiff, was killed.
There was no want of evidence to establish the controlling facts of the accident. Exhibits consisting of photographic copies of the plat of that portion of the city, of the canal roadway, of Murdock avenue, of the dim trail south of Murdock avenue into which the automobile party strayed, and of the pit and the grass and weeds thereabout were offered in evidence. The competency of some of these was questioned, but they were all helpful to a general understanding of the locus in quo, whether technically admissible or not.
Plaintiff’s witness, Garrett, testified:
“When we came to Murdock street we continued south. The road apparently continued on. There was nothing to indicate that it was not the road. We just went across Murdock street and up into that roadway and after we got there a few feet we saw the ball park, and the road got poorer — grass all over it — and we knew we weren’t on the right road, and we just went a little bit farther and then we stopped. There was a train coming along about that time. We saw its headlights, and the lights from the ball game were quite a bit brighter from a distance, and we stopped. It kind of blinded our attention right then. We got out and the road looked like it was worse on farther down, and Mr. Hale said, ‘Let me have the wheel. It is my mother’s car.’ I got out on the right side and the canal bank was on that side and we knew that wasn’t very safe. I got in the back seat. . . . The way conditions was in front of us it didn’t look like it would be best for us to go on, and the lights were really dazzling and it didn’t look safe, and as we had got in there, we thought it would be better to back out.
“We didn’t know what was ahead and didn’t know what we would get into, so we just exchanged places and Mr. Hale started backing out. He backed a little way, and he stopped and kind of leaned out like that and looked around and then he went on farther, and just about that time the back end— we could feel it caving off, and the next thing we knew we were down in that hole. It kind of dazed me. I got hit in the back of the head. Mr. Carson was sitting on the right-hand side of the back seat when we started backing out. I saw him look back as the car progressed backwards. I didn’t see any pit and didn’t see any pit as we came in there. There was an incline as you came in.”
On cross-examination the same witness continued:
“It seemed like when we got up kind of on that incline [which] was where I first observed there were weeds and grass along the tracks there. . . . We all discovered it wasn’t the road . . . then we stopped. The canal bank was right there and it looked dangerous ... we could see that we were in a dead road. . . . Carson also got out and got back in the back seat. . . . The headlights of the car were on as we were going backwards. . . . As Mr. Hale was backing out he was looking ba'clc on the side he was on and along the side of the car. He was naturally looking around like they would. As far as I could see he was looking down to see that his wheels were in the track and he stopped once and I think I said it didn’t look like we could back out of there or that it was a pretty dangerous place. When I said that he stopped and opened the door and looked around and went back slower.”
Dean Hale testified for plaintiff:
“I was in the back seat of the car as we crossed Murdock. Then we all noticed something about a dead-end street. It didn’t look so good. Someone suggested that we stop and I suggested that I take the wheel and back out. At the place we stopped the road ahead did not appear to be passable as a street. It looked like we could get out the same way we came in, so I backed out a ways, then stopped and sort of leaned out and got outside and saw I was following the tracks and got back in and proceeded very slowly. ... I stayed in the tracks as far as I know. The car gave way to the one side and just fell, that is all I know.”
On cross-examination he added:
“I don’t think the headlights would show more than two or three yards on either side of the car, maybe not that far. ... I knew nothing whatever about the road. I could see over to the left, just seemed like sort of grass there, then to my notion there was sort of a bank there, several feet to the left. The canal was a short distance to the right. Somebody suggested they would look out the back window and I suggested that we back out. I was looking at my side. I got in the driver’s seat and started to back out. I had no flashlight in the car. There were two taillights. The reason I stopped after backing a short distance was that I wanted to make sure I was following the track . . . the taillight gave enough light to see whether or not I was in the track at all timeá. . . . That taillight would light up a distance of two or three feet to the sides and two or three feet to the rear. I was not backing over two miles per hour. No one was walking back to investigate. I just had my mind set on following the tracks. As to whether or not I was looking back to determine whether there were any banks or ditches like I had noticed on the side, that bank I noticed to the left looked like it ran the same distance to the left all the way back. I just had my mind set on following the tracks. I wasn’t looking for any bank or ditches, but was just attempting to follow the track we came in on. At the rate I was traveling someone could have walked along the side or back of the car to view the ground to see whether there was any bank or pit or other defects there. I don’t recall that this was even suggested and no one did it.”
Defendant’s demurrer to the evidence raised several questions of law, including these: That the accident did pot occur on any street or traveled thoroughfare for the safe maintenance of which the city was liable; that the negligence of the driver was the direct and proximate cause of the accident, and that the deceased, being engaged in a joint enterprise with the driver, was likewise guilty of contributory negligence.
In sustaining the demurrer, the trial court said:
“It is shown affirmatively by the plaintiff’s evidence that the place where the accident occurred was not a public street or highway or public highway which the city was required to maintain and keep safe for public travel; and no evidence to show that the city ever exercised any control over the place as a public highway or recognized it to be a public street;
“The court finds as a matter of law that the canal and the right of way of the canal (where the accident happened) is a governmental function and also finds that the city never recognized this highway or its operations of the street or highway. ... I don’t know where the line should be drawn to determine when the court should determine as a matter of law that plaintiff has been guilty of contributory negligence. . . . The supreme court is in as good position to pass on the contributory negligence in this case as this court is. It has exactly the same record.”
Plaintiff appeals, assigning various errors. She complains of the exclusion of proffered testimony which would have shown that on the day of the accident truck drivers had been seen hauling sand or dirt from the pit into which the Hale automobile capsized; that the court refused to hear testimony that an exhibited photograph of the scene of the accident was not accurate because people had gathered thereabout and tramped down the grass which had concealed or partly concealed the pit into which the automobile fell. Other rejected offers of evidence related to expenses to which plaintiff was subjected — hospital, doctor, ambulance and funeral bills.
As we proceed with the consideration of this appeal, it will become apparent that no vital question in this lawsuit turns on the exclusion of evidence. Technically, however, the errors assigned under this head are not open to our review, because the rejected testimony was not brought into the record as the code requires. (G. S. 1935, 60-3004; Robinson v. Sullivan, 127 Kan. 248, 273 Pac. 461; Mohr v. Women’s Benefit Ass’n, 134 Kan. 311, 5 P. 2d 789; Saathoff v. State Highway Comm., 146 Kan. 465, 72 P. 2d 74.)
Another minor complaint, which will not be a vital matter in this appeal, relates to the refusal of the trial court to permit plaintiff’s petition to be amended to include certain items of damages — funeral bills, medical charges and the like. But the matter of belated amendments to pleadings is largely vested in the discretion of the trial court, and no abuse of discretion in this instance is made to appear. (Bank v. Badders, 96 Kan. 533, 536, 152 Pac. 651; Long v. Railroad Co., 100 Kan. 361, 164 Pac. 175; Lashbrook v. Sovereign Camp, 148 Kan. 16, 19, 79 P. 2d 881.)
Appellant marshals authorities which hold that in addition to the liability of a city for injuries caused by defects in its streets it is also liable for injuries caused by dangerous places so close to its streets that travelers may inadvertently stray into them; that a city is liable in damages for injuries sustained through pitfalls and like dangerous places where the city owns the premises or is in possession and control of them. Appellant also contends that the premises where the accident occurred were apparently a continuation of the canal roadway which did exist north of Murdock avenue, and that the city was liable accordingly.
While some of the justices cannot give their assent to these contentions and are inclined to sustain the rulings of the trial court thereon, a majority of the court are in accord on one legal question of controlling importance raised by defendant’s demurrer and which the trial court left undecided' — the contributory negligence of the occupants of the automobile in proceeding to back out of the place into which they had strayed without lights to see where they were going or taking other precautions to insure their safety. At almost every session of this court we are compelled to deny damages to persons injured in automobile accidents because, however negligent their adversaries in the litigation may have been, they themselves have also been negligent in driving their cars (or riding in them without protest) in situations where they could not see where they were going, and could not be assured that they could proceed with safety. In the recent case of Robinson v. Short, 148 Kan. 134, 79 P. 2d 903, the plaintiff’s action was for damages sustained in a collision with defendant’s truck on the highway. The accident occurred when a dust storm so dense was blowing that plaintiff could not see more than three feet ahead of her car, but she drove ahead nevertheless, taking a chance that the road was safe. Such a course constitutes contributory negligence by all the rules of law. Still more so, it is contributory negligence for a motorist to operate a car backwards in a strange location in the nighttime with insufficient lights and without taking other sufficient precautions to be assured that he could safely do so. Under the circumstances in this case Carson was in duty bound to look out for his own safety. He knew the driver was operating the car in a manner and in a direction where he could not be sure that it was safe to do so. It was Carson’s duty to protest, and if necessary to ask that the car be stopped so that he could alight. Indeed, Carson, and all but one of the others, had alighted because they realized they were in a place of danger; but neither Carson nor the others took any precaution to insure their safety, but climbed back into the car and took the chance that their driver would back the car safely out of its dangerous situation. Even where there is no joint enterprise, passengers in an automobile are under a duty to look out for their own safety as far as practicable. (Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613; Naglo v. Jones, 115 Kan. 140, 222 Pac. 116; Ewing v. Railroad Co., 117 Kan. 200, 206, 231 Pac. 234; Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117, and citations; Blue v. Atchison, T. & S. F. Rly. Co., 126 Kan. 635, 270 Pac. 588; Shrewsbury v. Goodacre, 135 Kan. 230, 10 P. 2d 1.) In that duty to himself Carson failed, and the judgment denying damages against the city in behalf of his widow contains no material error. It is therefore affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was a proceeding in mandamus to compel the taxing authorities to strike from the tax rolls of Harper county certain real estate claimed to be exempt from taxation. The writ was allowed, and defendants appeal.
The plaintiff is a city of the seco'nd class under the statutes of this state. One E. E. Bollman, a resident of Harper county, died October 2, 1934, leaving a last will which was duly admitted to probate. The ninth paragraph of the will provided:
“Ninth: I give, devise and bequeath to the city of Harper, Kan., the southeast quarter of section 4, township 32, range 7, Harper county, Kansas, the income from which shall be placed in the cemetery fund of the city of Harper, Kan., for the purpose of maintaining said cemetery and endowing both my lot and the lot of my father and mother. Should the city of Harper desire, through proper proceedings, to dispose of said quarter section of land and invest the proceeds in government bonds of the United States, then it is my will and I do hereby grant said city such authority, it being my wish that none of the principal shall ever be used for any other purpose than to be invested, but that the earnings from said investment may be used for the care and upkeep of said cemetery.”
It is not necessary that we fully review the motion for the writ, the alternative writ and the answers of the respective defendants. There was no dispute of facts. The motion for the writ and the alternative writ alleged the facts with reference to the Bollman will, the acceptance of the gift by the city; that during its ownership by the city the real estate had been assessed and carried on the tax rolls; that proper steps had been taken to have it stricken from the tax rolls as exempt property and such relief denied by all the defendant taxing authorities.
The answers denied the right of the city to accept the property, that the property was used for cemetery purposes, or that the city was the exclusive and absolute owner of the property, and alleged that to exempt the property from taxation would be contrary to and in violation of the provisions of article 11, section 1, of the state constitution. It was affirmatively alleged, also, that the real estate was used for general farming purposes, and that the city, if it had any title, was only trustee of a charitable trust to use the property, or the income derived from its sale, for cemetery purposes.
The journal entry of judgment showed the trial court considered the pleadings filed and the agreed statement of facts, and that the plaintiff was entitled to judgment. The abstract contains no statement of agreed facts, but it seems undisputed that before this action was filed the city had, presumably out of income, endowed the lots of the testator and his parents, and that the entire income was being devoted to maintaining the cemetery generally.
The sole question presented, by the appellants is whether under the will the city acquired such title to the real estate that it is exempt from taxation.
Under article 11, section 1, of our constitution it is provided the legislature shall provide for a uniform and equal rate of taxation, that certain property (of a class not here involved) may be classified, and further that- — ■
“All property used exclusively for . . . municipal . . . educational, . . . benevolent and charitable purposes . . . shall be exempted from taxation.”-
Appellants contend that in the above constitutional provisions the word “exclusively” appears and before any property belonging to a city can be held exempt from taxation, such property must be so used. In support of that contention they cite Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344; Vail v. Beach, 10 Kan. 214; St. Marys College v. Crowl, Treasurer, &c., 10 Kan. 442; Stahl v. Educational Ass’n, 54 Kan. 542, 38 Pac. 796; and Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005. In each of those cases a person or private corporation, as distinguished from a public corporation, claimed exemption on the ground the property sought to be exempted was used exclusively for educational or charitable purposes. Were that the sole test, perhaps the land would be subject to taxation. But it has been repeatedly held that while the constitution provides that certain property shall be exempt from taxation, it does not declare that the legislature may not provide for other exemptions. Among other decisions so holding are: Francis, Treas., v. A. T. & S. F. Rld. Co., 19 Kan. 303, 311; Sumner County v. Wellington, 66 Kan. 590, 593, 72 Pac. 216; Wheeler v. Weightman, 96 Kan. 50, 59, 149 Pac. 977; State, ex rel., v. Joslin et al., 116 Kan. 615, 617, 227 Pac. 345; Gunkle v. Killingsworth, 118 Kan. 154, 156, 233 Pac. 803; Alpha Tau Omega v. Douglass County Comm’rs, 136 Kan. 675, 684, 685, 18 P. 2d 573; and State, ex rel., v. Smith, 144 Kan. 570, 572, 61 P. 2d 897.
Our statute on taxation, G. S. 1935, 79-201, provides:
“That the property described in this section, to the extent herein limited, shall be exempt from taxation: . . . Sixth: All property belonging exclusively to any . . . city . . . except lands bid off for counties or cities at tax sales.”
The exception does not apply here. The statute, insofar as the above provision is concerned, is the same as appears in G. S. 1868, chapter 107, section 3. And a substantially similar provision was made by Laws 1860, chapter 114, section 5, appearing as chapter 197, section 5, Compiled Laws 1862. Under the act with reference to cities of the second class, G. S. 1935,14-1001, it is provided:
“All lands, houses, moneys, debts due the city, and property and assets of every description belonging to any city or municipal corporation under this act, shall be exempt from taxation.”
Identical language may be found with reference to cities of the third class, G. S. 1935, 15-1101, and a very similar provision as to first-class cities is G. S. 1935,13-1406. Under these statutes, ownership rather than exclusive use is the test of exemption from taxation. It would thus appear that if the city had the right to acquire the real estate in question, and it belonged to the city, it would be exempt from taxation.
With respect to cities of all classes, our statute (G. S. 1935, 12-101) provides that each city shall have the right to “receive, by bequest or 'gift, and hold, real and personal property for the use of the city.”
Under G. S. 1935, 12-1401, any city may establish or acquire a cemetery for public use, and under G. S. 1935, 12-1408, 12-1409, cities of the second or third classes are empowered to establish cemetery endowment funds and to receive subscriptions. There can be no doubt as to the power of the city to receive and hold the lands for the purposes indicated in the will. Neither can there be any doubt that under the terms of the will the title to the real estate was vested in the city of Harper. Although the answers alleged a trusteeship had been created by the will, the claim is not stressed in appellant’s brief. It has been observed that the endowment mentioned in the will has been created and the entire income from the property is now being used for cemetery purposes. Under such circumstances the matter would seem to be controlled by Schnack v. City of Larned, 106 Kan. 177, 186 Pac. 1012, where it was held:
“Where the entire annual income of a residuary estate is devised in perpetuity to a city for a public purpose, the legal effect of such a devise operates as a grant to the city of the entire estate, with limitation only as to its use.” (Syl. ¶ 2.)
We conclude that G. S. 1935, 79-201, Sixth, and G. S. 1935, 14-1001, were proper exercises of the legislative power with respect to taxation, and that under either statute the property devised to the city of Harper by Mr. Bollman belonged to the city and was therefore exempt from taxation, and that the trial court properly allowed the writ of mandamus.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Allen, J.:
On February 14, 1935, the plaintiff brought suit in the district court of Brown county against defendants upon two promissory notes. The defendant, Cora E. Koelliker, as devisee under the will of her father, Joseph Denkinger, owned an undivided interest in 160 acres of land in Brown county, and 160 acres of land in Doniphan county. On the same day the suit was filed plaintiff filed an attachment affidavit alleging that defendant Cora E. Koelliker was a nonresident of the state. Pursuant to the affidavit a writ of attachment was issued to the sheriff of Brown county, which was executed by the sheriff by levying on an undivided one-twelfth interest of defendants in the Brown county land. Shortly thereafter a writ of attachment was issued to the sheriff of Doniphan county and was executed by levying on an undivided one-twelfth interest of defendants in the Doniphan county land.
Personal service of summons was obtained on defendant O. J. Koelliker, and service by publication on defendant Cora E. Koelliker. A garnishment summons was issued and served on Louisa Denkinger and Wesley S. Denkinger, trustees under the will of Joseph Denkinger. The garnishees filed answer in which it was stated that they were in no manner indebted to the defendants Cora E. and J. A. Koelliker. Thereafter the trustees under the will of Joseph Denkinger obtained leave to intervene, and filed their answer as intervenors.
Judgment was rendered for the plaintiff upon the promissory notes. On the issues raised by the answer of the interpleaders as to the attachments and garnishment, the court found the defendants had no attachable interests in the lands in Brown and Doniphan counties and adjudged that the attachments be dissolved, and that the garnishees be discharged. From this judgment the plaintiff has appealed.
No question is raised as to the regularity of the attachment and garnishment proceedings. By these proceedings the nonresident had notice her property was in jeopardy; the service by publication gave her notice of the suit. (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.)
Appellant specifies as error the judgment of the trial court in dissolving the attachments and in discharging the garnishment. He contends that under the will of Joseph Denkinger the defendant Cora E. Koelliker acquired a vested remainder in the lands described. He further asserts that whether the interest of Cora was a vested or a contingent remainder, it was subject to attachment and sale under execution to satisfy the claim of the plaintiff.
Counsel for the appellees, trustees under the will of Joseph Denkinger, contend:
“1. Cora Koelliker takes a contingent remainder in the Brown county land. 2. If the will results in an equitable conversion as to the Doniphan county land, Cora Koelliker now has no interest in the land itself, but only an equitable contingent right to receive a share of the proceeds when the land is sold. 3. If the will does not result in an equitable conversion as to the Doniphan county land, Cora Koelliker has a contingent remainder in that land. 4. The contingent interests of Cora Koelliker in the lands involved are not attachable. 5. The garnishees’ answer in this case was properly found by the court to be true and the garnishees were properly discharged.”
These contentions call for an examination of the will of Joseph Denkinger.
The testator bequeathed his household goods and the sum of $4,500 out of his personal property to his wife, Louisa Denkinger. The will further provided:
“All of the residue of my estate, of every kind, nature, and description, I will, devise and bequeath to the aforesaid Louisa Denkinger and Wesley S. Denkinger, as trustees, for the following purposes, viz.: to manage, control, and otherwise handle the farm land, to rent the same as they deem best, either to themselves or to anyone else, to keep the taxes well paid on the land, to keep the improvements in good repair and well insured and from the net income from such property a division shall be made each year, if possible, one half to go to my wife, Louisa Denldnger, and one half to be divided equally among my six children, i. e., Hattie Wickstrom, Cora Koelliker, Laura Denkinger, Sadie Lewis, Wesley S. Denkinger and Albert Denkinger, except that the blood heirs of any deceased child of mine shall receive the share that would have gone to such deceased child. It is my will that the above-named trustees sell the northwest quarter of section twenty (20), township (2), range nineteen (19), in Doniphan county, Kansas, whenever they can get a reasonable price for such land, and said trustees are hereby invested with full power to sell and convey by deed the land last above described, the proceeds from such sale to be divided equally among my five [six] children above mentioned, the blood heirs of any deceased child of mine to receive the share that would have gone to such deceased child.
“It is my will that my son, Wesley S. Denkinger, remain .on and farm the home place in Brown county, if he desires to do so.
“At the death of my wife, Louisa Denkinger, this trust shall terminate and cease and the residue or remainder of my estate is to be divided equally among my six children above mentioned, except that the blood heirs of any deceased child of mine shall receive the share that would go to such deceased child of mine if living.”
Appellees contend that under the doctrine of equitable conversion the Doniphan county land must be considered as personal property in the hands of the trustees, and that Cora Koelliker has no interest in the land, but only an equitable right to receive a share of the proceeds when the land is sold. In 3 Pomeroy’s Equity Jurisprudence, section 1160, it is stated:
“The whole scope and meaning of the fundamental principle underlying the doctrine are involved in the existence of a duty resting upon the trustees or other parties to do the specified act; for unless the equitable ought exists, there is no room for the operation of the maxim, ‘Equity regards that as done which ought to be done.’ The rule is therefore firmly settled that in order to work a conversion while the property is yet actually unchanged in form, there must be a clear and imperative direction in the will, deed, or settlement, or a clear imperative agreement in the contract, to convert the property — that is, to sell the land for money, or to lay out the money in the purchase of land. If the act of converting — that is, the act itself of selling the land or of laying out the money in land — is left to the option, discretion, or choice of the trustees or other parties, then no equitable conversion will take place, because no duty to make the change rests upon them.”
Equity regards that as done which ought to be done, and where the testator directs that land be sold and turned into money, or that money be invested in land, equity considers such land or money as that species of property into which it is directed to be converted. But the question of conversion is a question of intention, and the real question is, Did the testator intend his lands to be converted into money at all events before distribution? Was the duty imposed upon the trustees to convey? In the fourth paragraph of the will the trustees are authorized to sell “whenever they can get a reasonable price for such land.” It is thus left in a large measure to the discretion of the trustees to determine when, if ever, the land is to be sold. We hold that the language of the will does not direct a conversion. This view is in accordance with recent rulings of this court where the authorities are reviewed. (Anderson v. Wise, 144 Kan. 612, 62 P. 2d 825; Schneider v. Schneider, 135 Kan. 734, 12 P. 2d 834.)
Was the interest of Cora Koelliker, under the will, a vested remainder, or was it subject to a condition precedent?
It will be noticed that the only gift to the children was in the direction to divide the property among them at a future time — at the death of the life tenant. Under the rule, usually referred to as the “divide and pay over” rule, the remainder to the children might be held contingent. The leading American case, perhaps, is Matter of Crane, 164 N. Y. 71, 58 N. E. 47. In that case the court stated:
“Two well-known rules of construction are applicable to this provision: First. Where the only words of gift are found in the direction to divide or pay at a future time the gift is future, not immediate; contingent and not vested. (Matter of Baer, 147 N. Y. 348, 354; Delafleld v. Shipman, 103 N. Y. 464; Delaney v. McCormack, 88 N. Y. 174, 183.) Second. Where the gift is of money and the direction to convert the estate is absolute, the legacy given to a class of persons vests in those who answer the description and are capable of taking at the time of the distribution. (Teed v. Morton, 60 N. Y. 506; Matter of Baer, supra, 353; Smith v. Edwards, 88 N. Y. 92.) In the latter case Judge Finch said: ‘It has been often held, that if futurity is annexed to the substance of the gift, the vesting is suspended; . . . that where the only gift is in the direction to pay or distribute at a future time, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is of the essence of the gift.-”’ (p. 76.)
In jurisdictions where the rule has been applied, exceptions have been made when the division and payment have been postponed merely to let in a prior life estate, or where the postponement appears to be solely for the convenience of the estate. As the shadow of the exceptions gradually eclipsed the rule itself, the Restatement of Property, Tentative Draft, section 260, repudiates the rule. In many Kansas cases where the rule was applicable it has not been invoked. (Compare, Markham v. Waterman, 105 Kan. 93, 181 Pac. 621; Anderson v. Wise, 144 Kan. 612, 62 P. 2d 825.) Hence it seems safe to assert that section 260 of the Restatement of Property (Tentative Draft No. 9) is in harmony with the law of this state. That section provides:
“Sec. 260. Direction to Divide and Pay Over at a Future Date. In a limitation purporting to create a remainder or an executory interest, the fact that the only words of gift to the intended taker thereof consists of a direction to divide and pay over, or to convert, divide and pay over at the end of the created prior interests or at some other future date, is an immaterial factor in determining the existence of a requirement of survival to the date of distribution.”
It cannot be said the remainder in the children specified in the will is subject to a condition precedent.
Was the remainder indefeasibly vested? The persons to take are named; they are presently identifiable. They are not described as persons who must be living at the termination of the life estate. The remainder is therefore vested absolutely unless made defeasible by the clause “except that the blood heirs of any deceased child of mine shall receive the share that would go to such deceased child of-mine if living.” The children are sure to die. As the testator refers to the death of a child as a contingent event, to give sense to the clause death must be hooked up with some other event.
If land be devised to B and his heirs, but if he shall die, then to C and his heirs, “die” means if B shall die before the testator. If B dies before the testator, C takes; if B survives the testator he takes a fee simple absolute, and C is out. (Hodges v. Lanyon, 108 Kan. 407, 195 Pac. 882.)
But suppose land be devised to B for life, remainder to C and his heirs, but if C dies, then to D and his heirs. Here, also, death is spoken of as an event that may or may. not occur. It may refer to death before the testator. If so construed, then should C survive the testator he would take a fee simple absolute. But if construed to mean that if C should die before the life tenant B, then if C is alive at the death of the testator he would take a fee simple defeasible. This is the majority rule, as shown by the Restatement of Property:
“Sec. 264. Conveyance ‘to B for life, remainder to C and his heirs, but if C dies, then to D.’ When property is limited by an otherwise effective conveyance ‘to B for life, remainder to C and his heirs, but if C dies then to D,’ or by other words of similar import, then, unless a contrary intent of the testator is found, the interest of D can become a present interest if, but only if, C is dead at the time of the termination of the interest of B in accordance with the terms of the limitation.
“Illustration: 1. A, owning Blackacre in fee simple absolute, makes an otherwise effective devise of Blackacre ‘to my wife B for life, and then to my daughters C and D absolutely, and in case of the death of either C or D, the share of the one so dying to her children.’ At A’s death C and D were both alive. C predeceased B, leaving children E and F and a will which made an otherwise effective devise of C’s interest in Blackacre to G. B dies. D has an indefeasible estate in fee simple in an undivided half of Blackacre and E and P have a like interest in the other undivided half of Blackacre. G has no interest in Blackacre.”
It is clear Cora E. Koelliker, under the will of her father, takes a vested remainder. Her interest is a fee simple defeasible. If she dies before the life tenant her interest will go to her blood heirs; if she is alive at the death of the life tenant her defeasible estate would become indefeasible — a fee simple absolute.
While we hold the interest of Cora Koelliker is vested, defeasible in the manner stated, it may be well to observe that under the settled law of this state contingent interests are alienable and transferable. (Markham v. Waterman, 105 Kan. 93, 181 Pac. 621; Platt v. Woodland, 121 Kan. 291, 246 Pac. 1017; Knutson v. Hederstedt, 125 Kan. 312, 264 Pac. 41.)
We have also held that under our statute G. S. 1935, 60-3403 and 77-201, eighth, any property which is subject to voluntary alienation may be sold on execution on demand of a judgment creditor. (Thompson v. Zurich State Bank, 124 Kan. 425, 260 Pac. 658.)
However, the general rule that any interest in property, vested or contingent, is subject to seizure and sale on execution, is subject to exceptions — property exempt from execution by statute, spendthrift trusts, etc. While these exceptions are not before us at this time, we have a statute which affects the right of the defendant to transfer her interest in the rents and profits under the trust. ■
Our statute G. S. 1935, 67-404, provides:
“No person beneficially interested in a trust for the receipts of the rents and profits of lands can dispose of such interest unless the right to make disposition thereof is conferred by the instrument creating such trust; but the interest of every person for whose benefit a trust for the payment of a sum in gross is created is assignable.”
The origin and history of this statute is given by Professor Gris-wold in his excellent work on Spendthrift Trusts, sections 62, 63, et seq. The original statute was a part of the statute on “Uses and Trusts” enacted by the legislature in New York in 1828. The Kansas statute was passed in 1868 (Gen. Stat. 1868, ch. 114, sec. 4.), and is almost identical with a statute passed in Indiana in 1852.
Under this statute the beneficiary of a trust for the receipt of the rents and profits of lands cannot dispose of such interest unless authorized by the instrument creating the trust. Any assignment or transfer by Cora E. Koelliker of any interest she may have in the rents and profits of the land would be void.
But it does not follow that because the defendant cannot make a voluntary disposition of her interest in such rents and profits, her interest therein cannot be impounded by the garnishment proceedings and be subjected to the claims of her creditors. At common law the interest of a beneficiary in a trust in lands was not liable to seizure or sale under execution. (23 C. J. 342.) As stated above, under our statute G. S. 1935, 60-3403 and 77-201, eighth, as construed by this court in Thompson v. Zurich State Bank, supra, any interest, legal or equitable, may be levied upon and sold under execution. While the interest of the defendant in the rents and profits under the statute G. S. 1935, 67-404, is not assignable and transferable by her, nevertheless it is subject to the payment of her debts.
Perhaps it should be noted that if the interest of the defendant Cora E. Koelliker is sold under execution the purchaser acquires no greater interest than Cora E. Koelliker had before the sale. As her interest is vested subject to defeasance by her death before the life tenant, or sale by the trustees under the power, the interest acquired by the purchaser is subject to the same infirmities; should she outlive the life tenant the purchaser would take a fee simple absolute.
For the reasons stated, the judgment of the court in dissolving the attachment and discharging the garnishees is erroneous.
The judgment is reversed.
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The opinion of the court was delivered by
Allen, J.:
The action was to quiet title to certain oil and gas leases. Plaintiffs recovered judgment, and defendant appeals.
On April 15, 1936, the defendant Turman Oil Company owned undivided interests in and to the minerals under the NW % of the NE %, and the SE % of section 4, township 12 south, range 17 west, Ellis county, Kansas. The Wolf Creek Oil Company wished to secure oil and gas leases on this property. On the date above named a contract was entered into between the parties which provided that the lessee, the Wolf Creek Oil Company, would within 30 days from the date thereof commence the drilling of a well for oil and gas in the northwest corner of the SW % of section 4, township 12 south, range 17 west, at a point which would be a direct offset to the southwest location on the NW % of the section, and would drill the well with due diligence and dispatch to a depth of 3,700 feet, unless oil or gas was encountered in paying quantities above that depth, or unless the siliceous lime was encountered above such depth and found to be dry, or unless granite was encountered which would make further drilling impossible.
If the well drilled in the northwest corner of the SW % of section 4, township 12 south, range 17 west, produced oil or gas in paying quantities the lessee agreed within 30 days from the date of the completion -of the well as a producer, to commence operations for the drilling of a well offsetting the well just completed on the NW Vé of section 4, township 12 south, range 17 west, and to prosecute the drilling with due diligence to a depth of 3,700 feet, unless oil or gas was encountered in paying quantities above that depth, or unless the siliceous lime was encountered above such depth and found to be dry, or unless granite was encountered which would make further drilling impossible.
The contract further provided that upon completion of the well in the northwest corner of the SW and upon the commencement of the well in the NW %, within the time provided, the Turman Oil Company agreed to execute and deliver to the lessee three certain oil and gas-mining leases of its interest in the properties first above described. It was agreed that in the event the first well should be a dry hole, lessor agreed to deliver to lessee the oil and gas leases.
It was provided that time should be of the essence of the contract. The record is silent as to the ownership of the leases on the SW % of section 4, mentioned in the contract.
By the contract the Wolf Creek Oil Company was required to drill the Dreiling well on the southwest quarter with due diligence and dispatch to a depth of 3,700 feet unless: (a) Oil or gas was encountered in paying quantities above that depth; or (b) the siliceous lime was encountered above such depth and found to be dry; or (c) granite was encountered which made further drilling impossible.
If the Wolf Creek Oil Company completed the well as a dry hole, either at 3,700 feet, or in the siliceous lime, or encountered granite, it was entitled to receive from the Turman Oil Company the oil and gas leases described in the contract. If the well produced oil or gas in paying quantities at any depth, the Wolf Creek Oil Company was required within 30 days from completion of the well as a producer to commence operations for the drilling of the Bemis well on the northwest quarter, and the Turman Oil Company was then required to deliver the leases.
The case was tried by the court, and findings of fact and conclusions of law were made. The court found that the well on the southwest quarter was commenced in time and was drilled with due diligence until the Kansas City lime was reached at a depth of 3,350 feet, on or about the 4th day of November, 1936; that a test was made in the Kansas City lime, and a potential taken on the 22d and 23d days of November, 1936, and a potential was allowed in the sum of 354 barrels; that thereafter, a pipe-line connection was made with the tanks located upon the lease, and oil was produced from the Kansas City lime from the 11th of December until the 31st of December, 1936; that the production of the well diminished until on and about the 22d and 23d days of December, 1936, the well would not produce more than 30 or 35 barrels from the Kansas.City lime, and that on or about the 23d day of December, 1936, the plaintiff, the Wolf Creek Oil Company, and the plaintiff, T. M. Deal Oil & Gás Company of Kansas, assignee of a part of the leases, determined that the well was not producing and would not produce in paying quantities from that horizon, and on January 2, 1937, began operations to deepen the well to the siliceous lime; that the well was deepened and the siliceous lime was found on the 5th day of March, 1937; that the well was completed at the siliceous lime on the 22d day of March, 1937, and a potential secured of 1,297 barrels.
The court found that on December 19, 1936, the president of the Wolf Creek Oil Company, O. E. Sutter, executed an affidavit stating that a derrick was being erected for the drilling of a well on the northwest quarter, and sent the affidavit, together with a letter, to the defendant dated December 21, 1936, stating the well on the southwest quarter was completed as a producing well on November 23; that at the time the affidavit was made, and the letter sent to the defendant, O. E. Sutter believed that the well was producing, and would produce in paying quantities from the Kansas City lime; that on the 22d or 23d of December, 1936, O. E. Sutter ascertained that the well was not producing and would not produce in paying quantities from the Kansas City lime, and proceeded to deepen the well; that the plaintiff, the Wolf Creek Oil Company, acting by and through its president, O. E. Sutter, acted in good faith in determining that the well would not produce in paying quantities, and in deepening the well to the siliceous lime.
The court found that oil was not found in the .Dreiling well in paying quantities in the Kansas City lime, but there was no evidence that this fact was known to or had been determined by the Wolf Creek Oil Company prior to December’ 23, 1936.
That on the 11th day of December, 1936, the Wolf Creek Oil Company, by and through its officers acting in good faith, and believing that the Dreiling well was and would be a well that would produce from the Kansas City lime in paying quantities, commenced operations to drill a well on the northwest quarter, offsetting the Dreiling well; that between the 11th day of December, 1936, and December 31, 1936, the Wolf Creek Oil Company built a rig, dug a slush pond, moved in tools and pipe, and laid over a mile of pipe to secure water for the drilling of the well, and spent approximately $4,500 on that location; that after it was ascertained that the Dreiling well was not producing and would not produce in paying quantities, the plaintiff, the Wolf Creek Oil Company, removed the employees from the Bemis well on the northwest quarter back to the Dreiling well, and proceeded with no further operations on the Bemis well until the Dreiling well was completed in the siliceous lime.
That within 30 days from the completion of the Dreiling well in the siliceous lime, the plaintiff, the Wolf Creek Oil Company, proceeded with due diligence to drill the Bemis well to the siliceous lime, and drilled the well into the siliceous lime on May 2, 1937; that the Bemis well was completed in the siliceous lime on May 9, 1937, and a potential was secured on that date of 2,758 barrels.
The court found that the Dreiling well heretofore referred to did not and would not produce oil from the Kansas City lime in paying quantities; that within 30 days from the completion of the Dreiling well as a producer of oil in paying quantities, the Wolf Creek Oil Company commenced operations on the well on the northwest quarter, as provided by the contract.
That pursuant to the affidavit of O. E. Sutter, dated December 19, 1936, and the letter dated December 21,1936, the defendant sent the leases referred to in the contract to the Wolf Creek Oil Company and no offer to return them was ever made, but that the defendant, Turman Oil Company, was not injured in any respect thereby.
It was found that prior to the time of trial, plaintiffs expended approximately $175,000 in drilling and equipping wells upon the property in dispute, and in producing oil from the wells; that in all of the dealings by the plaintiffs with the defendant, the plaintiffs, through their officers and agents, acted in good faith with the defendant.
The court found, and it is not denied, that the well on the NW 14 of the SW known as the Dreiling lease, was commenced in due time and was prosecuted with due diligence. Defendant contends for a forfeiture of the leases because the Bemis well on the SW % of the NW % was not prosecuted with due diligence. As the Wolf Creek Oil Company was required to commence operations on the Bemis well within 30 days after oil was procured in paying quantities on the Dreiling well, it becomes necessary to determine when oil and gas was found in paying quantities on the Dreiling well.
The term “paying quantities” has two distinct uses in the law of oil and gas, and two distinct meanings which are not to be confused. Thus in Ardizonne v. Archer, 72 Okla. 70, 178 Pac. 263, the lease provided that “one well on this lease is to be drilled to the top of the Mississippi lime unless oil or gas is found in paying quantities before that lime is reached, unavoidable accidents excepted.”
A well was not drilled to the Mississippi lime, but one was drilled to a less depth, at which an oil-bearing stratum was found. This well was shot, equipped and operated for about eight months. At the expiration of that time the oil was so far exhausted that the quantity being then produced was insufficient to pay the costs of further operating the well, and it was plugged and abandoned. This well was not deepened to the Mississippi lime, and there has been no further development of the premises. The cost of drilling and equipping the well was $3,784. During the eight months it was operated, oil was produced of the gross value of $452.85, of which the lessor received one eighth, or $56.60, leaving to the lessee $396.25. The cost of operating the well was $258.05, so that the lessee realized from the oil produced during the eight months, over and above the expense incurred in operating the well after the well had been drilled and equipped, the sum of onl; >138.20. The trial court concluded that oil or gas had not been found in paying quantities at a less depth and that the covenant to drill to the top of the Mississippi lime unless it was so found had been, breached by plaintiffs in error, for which they were liable in damages.'
The court, in discussing the meaning of the phrase “paying quantities,” said:
“Plaintiffs in error contend that ‘oil or gas in paying quantities’ means such quantity as can be produced at a profit, even a small one, over the operating expenses, though the cost of drilling may never be repaid and the operation as a whole may result in loss. Numerous authorities are cited-in support of that interpretation, but all these authorities interpret the phrase as used in the clause fixing the term of the lease, and it may be said that such has come to be the generally accepted definition when used in that connection. When the lessor has agreed that the lessee may hold the premises as long after a fixed term as oil or gas is produced in paying quantities, such interpretation seems to be reasonable and just and may be said to have been that intended by the parties. But because a word or phrase is interpreted as having a given meaning in one clause of a contract, it does not necessarily follow that it has the same meaning in some other clause or when used in some other connection. Even the clear and explicit language of a contract does not necessarily govern its interpretation if such involves an absurdity. (Section 948, Rev. Laws 1910.) To adopt the definition above mentioned as the fixed legal meaning of the phrase wherever used in oil and gas leases would, in some instances, lead to an unreasonable and absurd result, which is never presumed to be intended or contemplated by the parties. For illustration: Some leases contain an express provision to the effect that if, as a result of sinking a test well, oil is found in paying quantities, the lessee shall within a certain time drill a given number of additional wells. It would seem preposterous to hold that under such provision the lessee was obligated to put down the additional wells if the test well produced no more oil than did the one drilled on these premises. In interpreting the term ‘found in paying quantities,’ as used in that connection, the cost of drilling and equipping the well should be taken into consideration. It has been held that unless oil is found in such quantity as would, taken in connection with other conditions, induce ordinarily prudent persons engaged in like business to expect a reasonable profit on the full sum required to be expended in the prosecution of the enterprise, the lessee would not be obligated to put down the additional wells. (Manhattan Oil Co. v. Carrell, 164 Ind. 526, 73 N. E. 1084.) Thus it would seem that the phrase may be interpreted to include or exclude the cost of drilling and equipping wells, according to the connection in which it is used. . . . We think, therefore, that when the lessee obligated himself to drill one well to the top of the Mississippi lime unless oil or gas was found in paying quantities before that lime was reached, the parties mutually intended at the time such quantities as would justify not only the operation of that well by the lessee, but also in such quantities as would indicate that further development could be conducted with the expectation of a reasonable profit on the entire cost thereof; It is very plain from the evidence that oil was not found by the lessee in such quantities, and that the trial court did not err in the conclusion that the covenant had been breached.” (pp. 72, 73.)
In Summers on Oil and Gas, page 317, it is said:
"The term ‘paying quantities’ has two entirely distinct and separate uses in the law of oil and gas. Different meanings have been attributed to the term as employed in different portions of the lease, which should not be confused. The first use is found in connection with express or implied covenants of the lessee to continue drilling operations upon the contingency that test or previously drilled wells have resulted in finding oil or gas in paying quantities. As used in this connection, the .term ‘paying quantities’ means that oil or gas must be found in such quantity that an ordinarily prudent person, experienced in the business of oil or gas production, would, taking into consideration the surrounding- conditions, expect a reasonable profit over and above the entire cost of drilling, equipping, and operating the well or wells drilled. On the other hand, where the term ‘paying quantities’ is used in the habendum clause to express a condition of precedent fact upon which the lease may continue, it is uniformly interpreted as requiring production in such quantity as will pay a small profit over the cost of operation of the well, although the cost of drilling and equipment of the well may never be paid, and the opej-ation as a whole result in a loss to the lessee.”
See, also, Manhattan Oil Co. v. Carrell, 164 Ind. 526, 73 N. E. 1084; Keechi Oil & Gas Co. v. Smith, 81 Okla. 266, 198 Pac. 588; Aycock v. Paraffine Oil Co., (Tex. Civ. App.) 210 S. W. 851; Denker v. Mid-Continent Petroleum Corporation, 56 Fed. 2d 725; Mills-Willingham Law of Oil & Gas, 122, 123.
The rule announced by the foregoing authorities is applicable to the situation here presented. From the facts found, the Dreiling well would not produce oil in paying quantities, as thus defined, in the Kansas City lime. It therefore was the duty of the Wolf Creek Oil Company to proceed with the drilling of the well to a depth of 3,700 feet, or until oil was found in paying quantities. This was done and the trial court found that the drilling of the Bemis well was commenced within 30 days thereafter and prosecuted with diligence.
As the court found the Wolf Creek Oil Company acted in good faith, the questions of fraud and estoppel are eliminated from the case. The court found the defendant was not injured by the failure of the lessee to return the leases. Under the facts found by the court, the physical whereabouts of the leases was unimportant. The findings were supported by the evidence and the judgment will not be disturbed.
The judgment is affirmed.
Harvey, J., concurs in the affirmance -of the judgment of the trial court.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by the defendant, the State Highway Commission, from a judgment in a condemnation case.
Before considering the appeal on its merits, two preliminary matters presented by the appellee require our attention. The first is her motion to dismiss the appeal on the ground appellant failed to file a transcript with the clerk of the district court as required by G. S. 1935, 60-3311. The second is a motion to strike' parts of the abstract for the same reason, .in the event the motion to dismiss the appeal is not sustained. Just why appellant failed to comply with the plain provisions of the statute we are not advised. An appellee is entitled to the benefit of a transcript. That is the plain purpose of the statute. It was not intended the appellee should be restricted to the contents of an abstract prepared by the adverse party. Appellant reminds us the transcript is now on file in this court, and that this court has never dismissed an appeal under similar circumstances, and cites Baker v. Readicker, 84 Kan. 489, 115 Pac. 112; Readicker v. Denning, 86 Kan. 79, 119 Pac. 533, and Hanson v. Kramer, 131 Kan. 491, 292 Pac. 788.
The instant case was originally set for the June, 1938, session, and was continued to the October session. Appellee’s motion to-dismiss the appeal was tentatively denied on June 10. Her motion to strike portions of the abstract was not filed until her counter abstract and brief was filed on October 5, 1938. Her first counter abstract was prepared from the abstract, which latter abstract was filed August 31, 1938. Appellee, on oral argument before this court, was granted leave to file a supplemental counter abstract from the transcript now on file in this court. This she has done. In view of all these circumstances, and in view of the further fact that the abstract alone is sufficiently complete to amply sustain the judgment, we have concluded to treat the case on its merits.
Both parties appealed to the district court from the award of the appraisers, who allowed damages in the sum of $1,440 for the land taken for highway purposes, and $3,000 as damages to land not taken. The verdict of the jury was in the total sum of $10,-071.50. It made specific findings of fact. On the argument of the motion for a new trial appellant expressly restricted its complaints as follows:
“8. That the verdict of the jury and each one of the special findings was given under the influence of passion and prejudice upon the part of the jury and prejudicial to the rights of said highway commission.
“10. That' the verdict and each one of the special findings is not sustained by sufficient evidence.’’ (Italics inserted.)
Can the judgment be disturbed on these grounds? The land condemned lies immediately adjacent to the southwest corner of the city of Salina. It borders on a part of the south and on a part of the west line of the city limits. The total tract of land involved embraced sixty-seven acres. The Missouri Pacific Railroad track intersects the west half of the tract and runs in a northeasterly and southwesterly direction. The new state highway, designed principally as a truck pass, intersects the east half of the tract and runs from the extreme southeast corner thereof, in a northwesterly direction and through about the center of the north boundary of the tract, where it crosses the railroad track. The entire sixty-seven-acre tract, prior to the construction of the new highway, had been used for farming purposes. New residence construction in the city of Salina was principally to the southwest. The trend for high-class residence properties had been for some time in this direction, and such buildings had been and were being constructed on ground adjacent to this tract. About 300 houses had been built in Highland Court, and in the addition south thereof in the last two years. Sewer connections and utility service was readily available in the event appellee’s tract was used for residence purposes. There was no other land than this tract belonging to the appellee, which was available for residence purposes immediately southwest of the city limits.
There was substantial evidence that the thirty-eight acres of appellee’s tract' of land lying east of the railroad, prior to the construction of the highway in question, was available and desirable for subdivision purposes and that there was an immediate and prospective use of the thirty-eight acres for that purpose. There was competent and substantial evidence this thirty-eight acres had been rendered valueless for subdivision purposes by reason of the intersecting state highway. There was ample evidence the thirty-eight-acre tract had been rendered much less desirable for farming purposes, for which it had been previously used. The tract west of the railroad track was not affected in value by the new highway, except as the entire sixty-seven-acre tract was rendered less valuable by reason of being further subdivided by the new highway. The testimony fixed separately the difference in value of the various parts into which the land was divided by reason of the highway, and also the difference in value of the entire sixty-seven-acre tract by reason of the highway.
No useful purpose can be served by setting forth the various findings of the jury nor by a detailed discussion of the evidence pertaining thereto. It is not contended by appellant that the findings were not supported by evidence. It is only contended there was not sufficient evidence. That contention is based upon the theory the greater number of appellee’s witnesses and all of appellant’s witnesses fixed the damages as to various items at smaller amounts than did certain other witnesses of the appellee. It was the province of the jury to determine what testimony it would give the greatest credence.
Appellant, however, further insists the various findings themselves indicated prejudice and passion on the part of the jury for the reason it consistently accepted the highest testimony as to damages concerning each item. We have carefully examined the record. That analysis discloses this contention to be true as to most items, but not as to all items. The contention as to passion and prejudice was also urged upon the trial court. It was apparently not convincing. A review of the record compels the conclusion that we cannot disturb the judgment of the trial court on the theory suggested. While the jury did, in most instances, accept the testimony of the lesser number of appellee’s own witnesses, the record, nevertheless, disclosed that a verdict considerably in excess of the one rendered would have been supported by the evidence. This fact probably accounts for the failure of appellant, on the argument of the motion for a new trial, to make the express contention the verdict was excessive or that the special findings were contrary to the evidence. The judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This was an action for money. Judgment was for defendants on a motion for judgment on the pleadings. Plaintiff appeals.
The petition alleged defendant Emma Street was the owner of a ■farm; that plaintiff, occupied it as a tenant from March 1, 1933, until March 1,1937; that W. R. Street was the agent of Emma Street in looking after the land; that authority to lease this land had been given W. R. Street by Emma Street; that when plaintiff first moved on the land he did so with the understanding that he would farm this land upon the same terms .as a certain land lease formerly made between defendants, Emma Street and W. R. Street, and another party; that plaintiff did so continue as a tenant upon the terms of such lease, but no written lease was ever entered into between plaintiff and defendants; that on or about August 17,1936, plaintiff talked to defendant W. R. Street and an agreement was entered into that if Street did not let him know to the contrary in time for planting small grain the plaintiff could have the farm for another year; that in reliance thereon plaintiff put in eighteen acres of wheat and nine acres of rye, furnishing all the work and the seed; that he plowed, double disked and harrowed this land; that he finished this work on September 19, 1936, and on September 20, 1936, defendant W. R. Street informed plaintiff orally that he wanted the place, and on January 5, 1937, sent a written notice to him to vacate; that on March 1, 1937, plaintiff insisted that he was entitled to harvest the grain he had sowed, but that defendants had refused to permit him to do so or to pay him anything whatever. The petition then alleged the value of the crop raised from the seed planted by plaintiff; and that the reasonable value of the labor was $135. The petition then alleged that if plaintiff should not be permitted to recover a tenant’s share of the crop grown on the land that he should be permitted to recover for his labor and the seed in the above amount. The petition then alleged that defendants had been conspiring together for about a year for the purpose of defeating the claims of plaintiff for his share of this grain; that they fraudulently permitted plaintiff to sow the grain and then fraudulently forced him to vacate with the purpose of defeating plaintiff and his claims to this grain; that plaintiff would not have sown such grain but for the promises made by defendants. The petition prayed for a judgment for $343, this being the value of a tenant’s share of the grain planted by plaintiff, or in the alternative for $135, this being the reasonable value of the work performed by plaintiff and the seed furnished.
To this petition defendants filed a motion for judgment on the pleadings on the following grounds:
“1. Because the petition upon its face fails to state facts sufficient to constitute a cause of action against said defendants.
“2. Because the petition upon its face shows that the purported lease under which it is claimed the work was done by the plaintiff was oral, for one year, and to begin in the future, and that by reason thereof such an oral lease is void and unenforceable on account of the statute of frauds.
“3. That any work done by the plaintiff for which pay is claimed must be referred to as being done under the lease which was valid at the time the work was done, and that such work cannot be referred to as being done in pursuance to the void future lease.
“4. That the petition upon its face shows the defendant W. R. Street had oral authority to make the purported lease and that because thereof any such lease made is void and unenforceable on account of the statute of frauds.”
This motion was treated as a demurrer. It was sustained and judgment given for defendants. The appeal is from that judgment.
The plaintiff concedes that an oral lease for the ensuing year to begin the next year is invalid and that oral contracts not performed within one year are void, also that Emma Street could and properly did require the plaintiff to vacate the premises on proper notice. He argues here that the action is not upon the contract nor upon the lease, but is a suit to recover damages from defendants because they induced him to prepare the soil and plant a crop and prevented him from harvesting the crop and thus unjustly enriched themselves.
The court considered such a question in Wonsettler v. Lee, 40 Kan. 367, 19 Pac. 862. There this court said:
“If the action was based solely on this verbal contract, as claimed, it could not be maintained; but we think the allegations of the petition are sufficiently broad to warrant a recovery on a quantum meruit. While Lee cannot recover under the contract, he is entitled to compensation according to what the work performed was reasonably worth. Wonsettler, having received the benefit of the services performed under the verbal contract, cannot escape liability for the benefit received by refusing to perform that contract. It is conceded by counsel for plaintiff in error that Lee is entitled to recover in a proper action what the services rendered are reasonably worth; but he insists that Lee has relied on the express contract alone, and therefore the action must fail. In our view, the void contract is not set out as the basis of the action, but rather by way of inducement to explain the circumstances under which the work was done, and to show that it was not a gratuity.” (p. 368.)
See, also, Brashear v. Rabenstein, 71 Kan. 455, 80 Pac. 950. In Brown v. Byers, 118 Kan. 503, 235 Pac. 868, an oral contract had been entered into between the owner of the land and the plaintiff, who was to perform certain services on the land for a percent of the crops and livestock produced. The landowner relied on the statute of frauds to defeat recovery. This court said:
“The plaintiffs rendered the major portion of the services required under the contract, although they were ejected from the farm before the contract was fully performed. They had an interest in the wheat, the corn, and the hogs. If Nellie A. Byers is permitted to prevail because the contract did not comply with the statute of frauds, she will commit a fraud on the plaintiffs by inducing them to render service under the contract, by refusing to permit them to comply fully with their contract, by ejecting them from the premises on which the services were to have been rendered, and by not paying them the compensation agreed on.” (p. 504.)
We have examined the authorities relied upon by defendants and find that they are cases where, as in Skinner v. Davis, 104 Kan. 467, 179 Pac. 359, the tenant was endeavoring to retain possession of a farm on account of a void lease; not, as in this case, an action for damages on account of unjust enrichment of the landowner. This is .also true of the case of Nave v. Shaver, 105 Kan. 176, 182 Pac. 389, and also Jones v. Smith, 107 Kan. 201, 199 Pac. 299.
Should it be held that this petition did not state a cause of action on the theory of quantum meruit, the practical result would be that defendant Emma Street would profit by the work done and seed sowed by plaintiff without paying anything whatever for it. She would thus be permitted to use the statute of frauds as a means of enriching herself at the expense of the plaintiff. The statute was never intended to be so used. We hold that the motion for judgment on the pleadings should not have been sustained.
The conclusion we have reached on this question makes it necessary that we should consider the question of the measure of damages.
The rule is that in a case of this sort the plaintiff should be permitted to recover what the labor performed and the seed planted were reasonably worth.
The judgment of the trial court is reversed with directions to proceed with the trial of the action in accordance with the views expressed herein.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover $5,000 damages for each of four allegations of slander and $10,000 punitive damages, making a total of $30,000. It was brought by a sister-in-law of the defendant.
The first cause of action alleged that defendant charged plaintiff on May 30, 1936, with murdering her own husband and her mother-in-law, who were the brother and mother of the defendant, by saying in the cemetery in the hearing of others, “Right there are your victims, you murdered them.” The second cause of action charged defendant with calling plaintiff, in the Edwards county courthouse, in the hearing of others on August 29, 1935, an unspeakable name, and adding “you killed her.” The third count charged her with telling a certain banker in the city of Lewis, Kan., in the fore part of August, 1935, that the plaintiff was a thief and a robber. The fourth count charged defendant with telling many other persons in her home near Belpre, Kan., in the fore part of December, 1935, that plaintiff poisoned her husband, her mother-in-law and Lloyd Switzer by putting poison in their food. All these counts contained the usual allegations as to the statements being made willfully and maliciously and with full knowledge on the part of the defendant of the falsity of such statements and with the purpose of injuring the plaintiff in reputation and otherwise.
After the filing of a general denial a trial was had and the jury returned a verdict in favor of the plaintiff and against the defendant for $600. Judgment was rendered accordingly, the motion for new .trial was overruled, and from that judgment and ruling the defendant has appealed. The plaintiff has died since the appeal was taken to this court and the case has been revived in the name of the heirs at law of the plaintiff.
There are three questions of law involved in the appeal, counting the ruling on the motion for new trial. The other two are, permitting the plaintiff’s attorney to cross-examine one of plaintiff’s witnesses because her testimony did not correspond with statements made by her to plaintiff’s attorney shortly before the trial, and the other was the introduction of testimony from a doctor and the coroner, which was claimed by the defendant to have been privileged communications between them and the defendant professionally and officially.
Taking up the latter point first, it must be stated that the doctor was not claimed to be a family physician, but the privileged feature was based upon the right and duty of the defendant, if in good faith, to talk to and invoke the assistance of the physician and the coroner with reference to the making of a post-mortem examination of the body of defendant’s mother to discover whether or not poison was the cause of her death. There is a recognized privilege in communicating with officers and others where one thinks he has a duty to perform along that line, but it should not be prompted by any element of bad feeling or malice against the party accused. It is said in 36 C. J. 1243:
“The duty or interest on which the privilege is founded must actually exist; the privilege depends, not on what the individual may have supposed to be his interest or duty, but upon -what the court decides, as a matter of law, his interest or duty to have been.”
■ On the subject of qualified privileged communications it is said in 17 R. C. L. 341:
“In the' absence of malice an utterance may be qualifiedly privileged, even though it is not true, and notwithstanding the fact that it contains a charge of crime. But mere color of lawful occasion and pretense of justifiable end cannot shield from liability a person who publishes and circulates defamatory matter. Hence, a publication loses its character as privileged, and is actionable, on proof of actual malice, or, at least, such gross disregard of the rights of the person injured as is equivalent to malice in fact.”
It was also held in the case of Mueller v. Radebaugh, 79 Kan. 306, 99 Pac. 612:
“A communication to an officer of the law charging a person with a crime, made in an honest effort to recover stolen property and for the purpose of detecting and punishing the criminal, is privileged.
“In an action for slander based upon such communication, where there' is no evidence of malice, a demurrer to the evidence is rightly sustained.” (Syl. ¶¶ 1, 2.)
There was evidence in the case tending to show an unfriendly feeling between the original plaintiff and defendant. The plaintiff testified that she had not associated with the defendant during the last seven years. One other witness, George L. Fell, after stating what he heard defendant say about the original plaintiff, further said: “I have heard there is bad blood in the Johnson family. I paid no at tention to what Ida said.” The defendant herself said of the original plaintiff that she had been her hired girl before she married her brother, Gus, but admitted that the original plaintiff had conceived a feeling against her. Others said they heard defendant refer to plaintiff as “an in-law.” There was sufficient proof along the line of unfriendliness to justify the court in permitting such evidence, although under the above-quoted authorities the communications might have been privileged. (See, also, Gregory v. Nelson, 103 Kan. 192, 173 Pac. 414.)
Error is claimed by the appellant to have been made by the trial court in permitting the plaintiff to cross-examine Anna Graf, a witness called by the plaintiff. The evidence shows that this witness was a niece of both parties. She testified fully and freely about being present in the cemetery, the courthouse and other places at times when certain statements were claimed to have been made by the defendant. This witness could tell in detail the names of those that were present at the time and many of the surrounding circumstances, but could not remember what the defendant said. Many questions were asked her to afford her an opportunity to testify as to statements made by defendant, but to no effect. Then she was cross-examined by attorney for plaintiff as to statements made by her to him in his office shortly before the trial, some of which she admitted. Of course one is not generally allowed to impeach one’s own witness and no attempt was made toward that end, but if the answers to former questions show a witness to be unwilling or hostile a different rule prevails, and the court may, under such showing, permit cross-examination of one’s own witness. Appellant cites the general rule on this subject as stated in the first part of paragraph 781 in 70 C. J. 615, where it is said: “A party has no right to cross-examine his own witnesses; . . .” But later in the same paragraph the exception to the general rule is stated as follows:
“Where, however, the witness is hostile, it is within the discretion of the court to allow the party calling the witness to cross-examine him.”
It was held in State v. Parks, 133 Kan. 568, 1 P. 2d 261, that—
“. . . it is well settled that where' a witness is evasive or uncandid when being examined by the party calling him, he may be cross-examined, and the extent to which this may be done is left to the sound discretion of the trial court.” (p. 569.)
In State v. Cole, 136 Kan. 381, 15 P. 2d 452, it was held:
“Where a witness is put on the stand by the state and it becomes apparent that he is an unwilling witness and is not telling the same story that he told before, and that the prosecuting attorney is surprised, it is proper for the court to permit the prosecuting attorney to cross-examine the unwilling witness.” (Syl. ¶ 4.)
In State v. Terry, 98 Kan. 796, 161 Pac. 905, it was held:
“Where witnesses called to testify in behalf of a party give testimony contradictory of former testimony and inconsistent with previous statements, the party calling them may be permitted to cross-examine them and call their attention to their former evidence and statements, and may also offer testimony which contradicts and impeaches their present testimony.” (Syl. ¶ 2.)
This is not limited to criminal cases, as is shown in Lassen v. Marland Production Co., 133 Kan. 313, 299 Pac. 947, where the cross-examination even bordered upon impeachment of the witness, and it was held to be in the sound discretion of the trial court.
In 28 R. C. L., 601, it is said:
“An adverse witness may be cross-examined, and leading-questions may be put to him by the party calling him, for the very sensible and sufficient reason that he is adverse and that the danger arising from such a mode of examination by the party calling a friendly or unbiased witness does not exist. The right to cross-examine in such a case, however, is not absolute, but rests in the' discretion of the trial judge.”
We find plenty in the testimony of this witness, Anna Graf, to show she was an unwilling witness for the plaintiff and hostile to the cause of the plaintiff, and there was no abuse of discretion on the part of the trial court in permitting plaintiff’s attorney to cross-examine her as to former statements made to him. Reference is also made to an error in introducing written statements made by another witness, but it is not claimed that witness was an unwilling one or was being cross-examined. She was regularly cross-examined by the defendant as to some inconsistencies in her statements and testimony.
We find no error in overruling the motion for a new trial. The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for money. Judgment was for defendant sustaining a demurrer to the petition. Plaintiff appeals.
The petition first stated the formal allegations necessary. It then alleged that plaintiffs on June 13,1936, entered into a contract with defendant to construct a portion of the state highway system. Under the terms of the contract the advertisement, proposal, bond, specifications and plans were all made a part of the contract and were made a part of the petition. The petition then stated that defendant, in its request for bids, stated:
“Detailed information of the work to be done may be had by an examination of the plans and specifications on file ... at the offices of the State Highway Commission.”
The petition also stated that the contract price provided was to be the fixed price per cubic yard for all material moved without consideration as to whether this material might be earth or rock; that as a basis for computing the bid upon such work, and to arrive at an unclassified bid for the removal of all material of every kind it was necessary that such bidders have information as to the character of material to be moved and for the proportionate amount of each class so as to determine a fair average cost of the moving of all of such material as a whole at a fixed unclassified price per cubic yard.
The petition then stated that plaintiffs procured from defendant the plans, profiles and cross sections showing in detail how the work was to be constructed, and the amount of earth, rock and other material that would be encountered and the different character and classifications of it; that from such plans ’and cross sections furnished by the defendant and in reliance thereon plaintiffs computed the cost of moving each of the different classes of materials of the kind thereof in the amounts as shown in such plans, and from such amounts and costs computed the average cost of moving such material and from such computation so made plaintiffs submitted to the defendant a proposal to move all of such material at a cost of thirty cents per cubic yard, which was a fair and reasonable price based upon the quantities and proportions of the various classes of material involved, as shown by such plans and cross sections. The petition then alleged the completion of the contract and its acceptance by defendant. It also alleged that by the plans and specifications defendant represented the material to be moved was in accordance with the figures shown on these plans and profiles and cross sections, but that the information thus furnished was incorrect because it was represented that there were 54,850 yards of rock, while, as a matter of fact, plaintiffs were required to move 93,386.4 yards; that the fair value of the labor of moving this rock was 75 cents a cubic yard, or $70,039.80. The petition then alleged that plaintiffs relied solely upon these plans and cross sections; that they had no independent information of the classes of material to be moved, and that they would not have made the bid at the price that was in the contract had they known that proportions of the different classes of material to be moved were different from the amount represented; that as a result of the erroneous information received plaintiffs were required to perform additional labor that was not apparent from the erroneous cross sections; that they made an inspection of said premises and as a result of said inspection found nothing out of the ordinary, and from the length of time allowed to make said bid had no other independent means of ascertaining the amount of rock to be moved at said place other than from said plans and cross sections; that these plans were prepared by agents of defendant after making borings and other technical lists and that defendant and its agents knew, or by the exercise of reasonable care should have known that the plans were misleading. The petition then alleged that the plans showed the following amounts of material to be moved:
Cu. yds.
Earth ..................................... 98,254
Borrow pit ................................ 74,161
Channel .................................. 83,071
Total 255,756
Rock ..................................... 54,850
Special ................................... 15,342
Total 325,948
The petition then alleged that they have been paid $102,461.31 for removing 341,537.7 yards of earth and rock; that this amount was computed as follows:
Cu. yds.
Earth ................................... 87,518.6
Borrow pit .............................. 83,106.3
Channel ................................ 69,037.7
Total 239,682.6
Rock ................................... 93,386.4
Special .................................. 8,468.7
Total ..........................,...... 341,537.7
341,537.7 cu. yds. @ 30tf =$102,461.31.
The petition alleged that they should have been paid as follows:
170624.9 cu. yds. @ .20............................. $34,124.98
Channels and Special 77506.4 cu. yds. @ .225........ 17,438.94
Rock, 93386.4 cu. yds. @ 75 ......................... 70,039.80
Total .......................................... $121,603.72
Plaintiffs prayed judgment for the difference between $121,603.72 and $102,461.31 or $19,142.41.
The demurrer of defendant to this petition was sustained on the ground that it did not state facts sufficient to constitute a cause of action. The appeal is from that judgment.
The story told by the petition is that defendant told plaintiffs how much rock and how much earth there was to be moved; that plaintiffs had a right to rely on this statement; that they calculated the labor necessary to move this much rock and this much earth in the proportions given and made the bid accordingly; that when there was so much more rock than they figured on, this threw their calculations off, with the result that their bid was lower than it would have been had the proper proportions of rock and earth been shown; that they should be permitted to recover for the amount of rock removed, at a fair price.
It will be seen that the answer to this contention depends on whether plaintiffs were entitled to rely on the statements made by defendant as to the amount of earth and rock to be moved.
Plaintiffs point out G. S. 1935, 68-409. That section provides as follows:
“Before advertising for bids for any contract as provided in the preceding section said state highway commission shall provide plans and specifications of the proposed work or improvement, which plans and specifications shall be displayed for the inspection of bidders at the office of the state highway commission and in the office of the county clerk in the county or counties where work is to be done at least fifteen days before the time for receiving bids.”
Plaintiffs argue that since the statute provides that these plans and specifications are for the use of bidders the legislature could not have intended that these plans should be prepared in such a way as to mislead the bidder to his damage without compensation being made because of such misrepresentations.
As a part of the amended petition there was filed with the clerk of the court a supplement to the petition which included the plans, specifications, proposal, notice to contractors and contract bond. An examination of these documents is necessary to a correct decision of this question.
The first step taken when a contract is to be let by the highway commission is to make the preliminary survey and prepare plans. As a part of this work holes are bored in the ground at certain intervals so that an idea may be obtained as to how much earth and how much rock will have to be moved. The results of these borings are noted on the blueprint. The plans are then prepared and a blue print of the road is prepared, both as it would look from above, and in profile. The grade upon which the road will be constructed is shown upon this blue print, also the plans where the borings were made, and the depth to which they were made. The plans and blue prints are then filed in the office of the highway commission at Topeka, and one copy is filed with the county clerk of the county where the road is to be located. These plans are available to any contractor who wishes to bid on some particular job. Along with these plans is a copy of “Standard Specifications for State Road and Bridge Construction.” This is a printed book of 225 pages. It contains specifications that cover about every possible contingency that might arise in building a road. It is standard throughout the United States since the plans and specifications must be approved by the “Bureau of Roads.” It is in the possession of every contractor who does any considerable amount of road building and every contractor is familiar with its terms. By reference it is made a part of every road-building contract. These plans and specifications were prepared in this case and were displayed at the office of the highway commission and the office of the county clerk in compliance with G. S. 1935, 68-409.
The next step is for the commission to advertise for bids. This is sometimes referred to as the notice. It first describes the job briefly so that contractors may be able to identify the plans. Among the provisions with which we are interested is the following:
“Detailed information of the work to be done may be had by an examination of the plans and specifications on file in the offices of the county clerk of the county in which the work is located, or at the offices of the state highway commission.”
It also provided that the bids would be received at Garnett until 9 a. m. May 16,1936. Thus it will be seen that sixteen days elapsed between the publication of the notice and the last day upon which bids could be submitted.
The next step is the submitting of the bids or proposals by contractors who are interested in obtaining the contract. These proposals are submitted on a form furnished by the commission. Before this step is taken the contractors will have examined the plans and specifications. In this proposal the contractor offers to construct the road in question according to the plans and specifications as set forth in the schedule of prices. This schedule of prices, it should be noted, is a part of the plans and specifications. There are other provisions and there are the following paragraphs with which we are concerned:
“The undersigned further declares that he has carefully examined the plans, specifications, form of contract and special provisions, if any, and that he has inspected the actual location of the work, together with the local sources of supplies, and has satisfied himself as to all quantities and conditions, and understands that in signing this proposal he waives all rights to plead any misunderstanding regarding the same. . . . The undersigned further agrees that the quantities enumerated are not guaranteed by the commission, and with such an understanding he accepts the quantities as tentative and agrees to receive payment at the unit prices for work performed. The classification of culvert, bridge or highway excavation shown on the plans is not guaranteed and where contracts are awarded on unclassified excavation the unit price bid shall include any and all excavation encountered on the work regardless of the classification shown on the plans.”
After this bid was received and it was discovered to be the low bid some time elapsed while the final contract was being prepared.. On June 13, 1936, one month and thirteen days after the notice was published this contract was signed by plaintiffs. These plans and specifications were made a part of this contract. It is necessary then for us to examine them. First, a word about the schedule of prices to which reference was made in the proposal. Most of the work to be done in the building of a road naturally consists of moving either earth or rock. Sometimes the notice recites that the bid shall be so much per yard for moving earth and so much per yard for moving rock. At other times the approximate amount of rock and the approximate amount of earth is given in the plans and the bidder is asked to make a bid on the yardage basis, the same amount per yard of material moved whether it is earth or rock. That plan was followed in this case. Such a plan is referred to as a bid on unclassified material. In such a case the contractor examines the plans and the local situation with the idea of ascertaining as nearly as possible what proportion the amount of rock bears to the amount of earth. If there is a small amount of rock and a great deal of earth the unit price bid will be lower than if there is a large amount of rock and a small amount of earth. It will be seen that one of the enigmas of the contracting business is the necessity for a determination of these amounts as correctly as possible. Two paragraphs of the specifications are of interest to us here. They are as follows:
“2.2 Interpretation of Estimates — The quantities listed in the proposal forms are to be considered as approximate and are to be used for the comparison of bids. Payment to the contractor will be made for the actual quantities only of work performed or materials furnished in accordance with the plans and specifications and it is understood that the quantities of work to be done and materials furnished may each be increased or diminished as hereinafter provided without in any way invalidating the bid prices.
“2.3 Examination of Plans, Specifications and Site of Work — The bidder is required to examine carefully the site of the proposed work, and the proposal, plans, specifications and contract forms, for the work contemplated, and it will be assumed that the bidder has investigated and is satisfied as to the conditions to be encountered, as to the character, quality and quantities of work to be performed and materials to be furnished and as to the requirements of the specifications and contract. It is mutually agreed that submission of a proposal shall be considered conclusive evidence that the bidder has made examination.”
Plaintiffs argue that before making their bid they examined the plans and specifications and went out upon the location and examined the land, but that they did not have time to make the examination by means of test borings, and so forth, that was made by defendant. It is argued that they relied upon the information shown by the plans, profile and cross sections shown on the blue prints at the office of the commission. It should be stated here that there is no fraud or bad faith on the part of the commission either pleaded or argued.
When the bidder examined the plans and profiles it is to be assumed that he also examined the specifications and all the paragraphs of it. When he did so he must have seen the paragraph wherein it was provided that the submission of a proposal would be considered conclusive evidence that they had investigated the work contemplated for the very purpose of avoiding as nearly as possible the occurrence of the difficulty with which we are now confronted. At the outset this was a challenge of their attention to the necessity of making their own investigation. Having examined the plans and specifications the plaintiffs signed a proposal. This proposal, besides the statement that plaintiffs would do the work, contained a paragraph already set out in this opinion to the effect that plaintiffs had made the investigations to which reference had been made in the specifications. Plaintiffs must be presumed to have made the proposal with knowledge of the provisions of this paragraph.
Besides this paragraph, the proposal contained another that refers specifically to the situation we are considering. In it plaintiffs agreed that the quantities enumerated were not guaranteed by the commission and that they understood that they were tentative. The portion of this paragraph with which we are interested is as follows:
“The classification of culvert, bridge or highway excavation shown on the plans is not guaranteed and where contracts are awarded on unclassified ex cavation the unit price bid shall include any and all excavation encountered on the work regardless of the classification shown on the plans.”
This sentence in the paragraph could apply to nothing else than the situation we are considering, that is, in view of the method of calculating the amount of a bid for unclassified excavation plaintiffs agreed to carry out whatever excavation there was to be done at the unit price bid regardless of the classification shown on the plans. As the contract was finally executed all these provisions were a part of it.
How can a contractor who examined these plans and specifications, made this proposal, and signed this contract, say he had a right to rely on the quantities named in the plans? The very nature of the type of bid called for precludes such a construction. The bid being asked to be made on unclassified excavation was notice to plaintiffs that a careful examination should be made so that the proportion of rock and earth might be known and correctly calculated.
Plaintiffs bring several authorities to our attention and rely on them to sustain their position. Many of them are federal cases. Some of them are discussed and distinguished in MacArthur Bros. Co. v. United States, 258 U. S. 6, 11, 42 S. Ct. 225, 66 L. Ed. 433. In that case the petition of the plaintiff alleged that the government had misrepresented a proposed contract by stating that a portion of the work would be done in the “dry” and a portion of it in the “wet” at a cost greatly exceeding what it would have been had it been done the other way. The contractor had made a proposal and examined specifications containing provisions about the same as those we have here. The company contended certain conditions and surrounding circumstances amounted to misrepresentation by the United States. In dealing with this■ contention the court said:
“But in reality there was no representation by the government, nor is it alleged that the government had knowledge of the conditions or means of knowledge superior to the knowledge of the company. The latter acquired knowledge only by the aid of divers as its work progressed. Such being the situation, does not the case present one of misfortune rather than misrepresentation? It is true that the government’s proposal was for a certain part of the work to be done in the dry, but it made no representation of the conditions that existed enabling it to be so done or precluding it from being so done.” (p. 11.)
The court then distinguished certain cases that were relied on by plaintiff in that case and are relied on here by plaintiffs. The case of United States v. Atlantic Dredging Co., 253 U. S. 1, 40 S. Ct. 423, 64 L. Ed. 735, is of interest to us here. In that case the government had made certain borings and discovered certain material. This material was correctly noted on the field notes, but the blue prints did not show the field notes. The material actually discovered was much more difficult to work with than was shown on the plans. The court held that this was an actual misrepresentation, since the United States had some knowledge of facts it did not disclose to the bidders. The case is of interest to us here because had plaintiff pleaded that defendant made borings, discovered rock and then failed to note this rock on the blue prints we would feel bound to follow the Atlantic Dredging Company case. However, no such claim or pleading is made by plaintiffs in this case. We feel that the MacArthur Brothers case is in point here. See, also, H. W. Golden & Son v. Inhabitants of Town of Marblehead, 68 Fed. 2d 875, also Elkan v. Sebastian Bridge Dist., 291 Fed. 532. Plaintiffs rely on Maney v. Oklahoma City, 150 Okla. 77, 300 Pac. 642. We have examined that opinion and find that the specifications in that case provided that the excavation would be all earth with a negligible amount of rock; that while a large amount of rock was found, as a matter of fact, when this rock was found the attention of the city engineer was called to it; that the contractor was directed to go ahead with the contract and to keep track of the amount of rock removed. The decision turned upon the theory that the city had waived its right to insist upon the performance of the contract as written. We do not regard the case as an authority for the propositions urged here by the plaintiffs. Authorities more nearly analogous are Leary v. City of Watervliet, 222 N. Y. 337, 118 N. E. 849; also, Palmberg v. City of Astoria, 112 Ore. 353, 229 Pac. 380.
We are not impressed with the argument of plaintiffs that they did not have time to make borings on their own account. Plaintiffs were not compelled to bid on this particular contract. They made an investigation of the blue prints and specifications and of the actual site of the proposed work. If this investigation was not sufficient they could have refused to bid or could have asked for more time. They did neither. Having seen fit to go ahead and bid they are bound by the provisions in the paragraphs noted. The demurrer of defendant to the petition was correctly sustained.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action in replevin between two banks for the possession of an automobile on which each held a mortgage. Plaintiff prevailed, and defendants appeal.
Some years ago one J. R. Goodan had been an employee of the plaintiff bank. Later he became cashier of the defendant bank. He continued, however, to have some credit standing in the plaintiff bank, borrowing small sums from it, and giving first one automobile and then another as security.
On June 10, 1936, Goodan’s father was indebted to the plaintiff bank in the sum of $1,120; and he and J. R. Goodan gave their promissory note for that amount, payable on June 10, 1937. At or about the time of its execution some building and loan stock was put up as security for the payment of the note, and J. R. Goodan also assigned as additional security a judgment which apparently was worthless, but details concerning it are wanting in the record.
On January 22, 1937, Goodan executed to the plaintiff bank a chattel mortgage on the automobile in controversy and it was promptly recorded in Barber county. The amount of indebtedness it purported to secure was $450, although no note evidencing an indebtedness of Goodan for that amount was made nor intended to be made. Plaintiff adduced evidence to the effect that the mortgage was given as security for the note for $1,120 executed by Goodan and his father in the preceding June, but that for appearance sake the sum for which the automobile was mortgaged was named as $450, on the idea that a mortgage on such an automobile as Good-an’s (a 1936 Chevrolet sedan) for the full amount of the note would not look very well in an inspection of the bank’s assets. Moreover, the $1,120 was also secured by some building and loan stock which was actually worth a substantial amount, as evidenced by the fact that some three months after the giving of the mortgage in controversy the building and loan stock was sold for $941.42 and that amount credited on the $1,120 note it had been pledged to secure.
The foregoing briefly states the substance of plaintiff’s petition and the evidence given in its support.
The defense centered upon two main points — that the mortgage under which plaintiff claimed the automobile had no relation whatever to the $1,120 note, and that in fact it had merely been given by Goodan as part of a scheme on his part to prevent its possible seizure to satisfy a claim or indebtedness due from Goodan to a bank in Alva, Okla. The latter point may now be ignored, however, because it turned squarely on an issue of veracity between Skaggs, the cashier of the plaintiff bank, and Goodan. The defendant bank, however, does have a talking point against the validity of plaintiff’s mortgage because of some recitals in the instrument itself, which reads:
“This mortgage is taken in renewal of one dated July 26, 1935, on 1934 Chevrolet- coach. . . . Provided . . . that if the said parties of the first part shall pay to said party of the second part . . . the aforesaid sum of four hundred fifty and no/100 dollars with interest thereon according to the terms of a certain promissory note made by the parties of the first part and payable to the order of the party of the second part at . . . (plaintiff’s bank), dated 1/22/37, due six months from date ... for $450 with interest thereon at the rate of ten percent per annum from maturity, . . . then these provisions and everything herein contained shall be void. . . .”
While the record tends to show that the $1,120 note was a renewal of an earlier indebtedness of Goodan’s father, and that one or more earlier automobiles of Goodan had been mortgaged to secure it, there was, of course, no promissory note of $450 of even date for which plaintiff’s mortgage was security. If that fact should operate to invalidate the mortgage, there is no help for it. There was, however, an indebtedness (the $1,120 note), and the oral testimony to which the court gave credence was that the mortgage was intended as partial security for that indebtedness. At the time this mortgage was given it could not be known just how much of that in debtedness would be extinguished when the pledged building and loan stock should be sold; and it may have been obvious by January-22, 1937, when plaintiff’s mortgage was executed, that the judgment which Goodan had assigned to the plaintiff was worthless. Conceding that the recitals in the mortgage were inaccurate, and that the transaction was not strictly regular, we cannot say that the trial court was in error when it made its preliminary ruling—
"I think there is sufficient to put you on your inquiry that there was an indebtedness secured thereby. I think that is sufficient.”
It may be well, at this point, to state the basis of defendant’s claim to the automobile. When Goodan mortgaged it to the plaintiff, he was then serving as cashier of the defendant bank. Apparently he loaned himself $275 of the defendant bank’s funds and executed his note therefor, dated May 2, 1937, and payable on demand. Some time later he absconded, taking $200 of the bank’s money with him. Later he surrendered to some officer of the law, and since that time he has been in jail. Before his surrender, however, he executed a note dated December 29, 1937, for $200 in favor of the defendant bank as an acknowledgment of indebtedness to it for the money he had taken from the bank when he absconded. At the same time he executed to the bank the chattel mortgage under which it claims the automobile. This mortgage purported to be given to secure Goodan’s two notes — the one he had given when he loaned himself $275, and the one for $200, which was the amount of the bank’s funds he carried off when he absconded.
We do not think defendant bank’s claim to this automobile can stand against the plaintiff bank’s claim thereto. Granting the irregularities of the latter, which are strongly and adroitly urged by counsel for appellant, we think plaintiff’s claim was better than defendant’s. Either the Corwin State Bank was charged with notice of plaintiff’s claim at the time its junior mortgage of December 29, 1937, was executed, or its mortgage is worthless for any purpose. A chattel mortgage is a contract between two or more parties, like all other contracts. Who acted for the Corwin State Bank as one of the parties? If Goodan did, he knew of the prior mortgage of the plaintiff bank. If Goodan did not act for the bank when, conscience stricken or to serve some private end, he sent back from his fugitive retreat the chattel mortgage under which defendant claims, it was not enforceable against the rights of third parties because it was neither given nor received pursuant to a regular business transaction.
Counsel for each litigant cite some of our own cases which they think are analogous to the one at bar. We have examined them, but do not find them helpful. Textbook authorities are also cited, 5 R. C. L. 419, and 10 Am. Jur., Chattel Mortgages, 761-763. Without quoting therefrom at length we think the rules they state incline to support the plaintiff’s position, particularly the latter, where it says:
“If the mortgage by mistake or want of knowledge at the time has been given for more or less than the actual indebtedness and no deception or fraud was intended by either party, such mortgage will not be invalidated thereby. Nor will failure to describe correctly the note secured by the mortgage invalidate it.” (p. 761.)
Error is also urged because the trial court refused to give the jury an instruction touching the proper significance to be attached to defendant’s evidence that plaintiff’s mortgage was merely given to cover up Goodan’s property so as to prevent its being subjected to the satisfaction of his Oklahoma debts. This criticism is ill-founded. The court’s instructions dealt fairly with that phase of the controversy.
Complaint is made of instructions 7 and 9. In No. 7 the jury were told that one of the main questions to be determined by them was whether plaintiff’s mortgage was given by Goodan to secure an indebtedness owed by him to the plaintiff bank. In No. 9 the jury was instructed that if the mortgage was given to secure the payment of the $1,120 note, or any part of that indebtedness remaining unpaid, then
“. . . . plaintiff had a lien and special interest in and upon the automobile in controversy to the extent of the amount remaining unpaid upon the indebtedness evidenced by said note . . . then I say to you that plaintiff’s interest in and lien upon said automobile was and is paramount to the claims of the said defendants to the extent of its lien and that after due demand therefor upon said defendants the plaintiff was entitled to the possession of said automobile and that if said defendants refused to give the plaintiff possession of said automobile after such demand the said defendants wrongfully detained the possession of said automobile from the plaintiff and you should so find.”
These instructions correctly stated the pertinent law.
It is finally contended that the judgment was not supported by the evidence. This contention cannot be sustained.
Neither material error nor miscarriage of justice is made to appear in this record. The judgment is therefore affirmed.
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The opinion of the couib was delivered by
Thiele, J.:
Defendant’s demurrer to plaintiff’s petition was overruled, and they appeal.
The petition alleged that plaintiff was fifteen years of age at the time of the events complained of, and that defendants were partners engaged in wheat farming in Thomas county, and owned equipment for that business, including a tractor and a one-way plow weighing about one ton; that on July 20, 1937, defendants employed plaintiff to operate a tractor and one-way plow at a wage of. $1.25 per day, and in addition agreed to furnish board and lodging, and that plaintiff continued in such employment until he was injured; that defendants furnished a tractor for plaintiff’s use and orally instructed him to use it; that the tractor was old, dilapidated, worn and in bad repair; its rear wheels were equipped with iron lugs; there were fenders over the rear wheels which were not substantial and were insecurely attached to the tractor, the braces or frames intended to hold the fenders in place being worn, broken and out of repair, all of which-was known to defendants or could have been known by the exercise of ordinary care and prudence; that knowing all these matters, defendants failed to warn plaintiff it was dangerous to operate the tractor, or dangerous to sit upon or lean against the fenders while the tractor was moving and drawing the plow, and permitted and orally instructed plaintiff to use the tractor and plow in its defective and dangerous condition. It was further alleged that the lands being cultivated were removed from town and from places to board and room,, and a “bunk shack” was provided; that it was poorly built, improperly ventilated, had no bathing facilities; that it was impossible for one to get proper rest from work, and was dangerous to the health and life of plaintiff; that the operation of the tractor and plow kept the air filled with dust and dirt, and plaintiff was compelled to work under that condition, and it was unhealthy' and dangerous to plaintiff. It was further alleged that on August -, 1937, while plaintiff was operating the old, dilapidated and dangerous tractor and the plow, plaintiff, not knowing its condition, sat on one of the fenders, which, because of its defective condition, sagged down, causing it to come in contact with the lugs on the tractor wheel; that the fender buckled and pitched plaintiff off the tractor in such manner that he fell directly in front of the plow, which passed over him, injuring him severely. It is unnecessary that details be here set forth. It was further alleged that the occupation for which plaintiff was employed and the place where he worked was dangerous and injurious to the life, limb, health and morals of plaintiff; that there was reasonable cause for defendants to anticipate injury to plaintiff; that defendants knew it was the custom and. habit of those operating tractors equipped with rear fenders to lean or sit upon the fenders while the tractor was moving and in operation; that defendants knew that in the operation of the tractor plaintiff would be compelled to work for long hours in a cloud of dust and dirt; that fumes from the tractor are dangerous, cause sleepiness, and cause the operator to shift his position on the tractor to avoid the fumes; that the operation of the tractor and plow is a dangerous occupation by reason of the inherent nature of the work involved and the operation of the machinery itself; that plaintiff was under the age of sixteen years and his employment by defendants was in violation of the laws of Kansas, etc.
Defendants’ demurrer to this petition, on the ground it did not state a cause of action, was overruled, and from an adverse ruling they appeal to this court.
Appellants’ contention is that it is apparent the petition attempts to state a cause of action under the statutes with reference to child labor (G. S. 1935, ch. 38, art. 6) and that it fails so to do for reasons which will be noted. Appellee’s contention is that the petition states a cause of action either under the above statutes or as disclosing negligence actionable at common law.
A review of the statutes with reference to child labor discloses that our first act was Laws 1905, ch. 278, which provided that no child under fourteen years of age shall be employed in factories, packing houses or mines, and that no person under sixteen years of age shall be employed “at any occupation nor at any place dangerous or injurious to life, limb, health, or morals.”^ That act was superseded by Laws 1909, ch. 65, and the original act was repealed. The new act provided in section 1 that no child under fourteen years of age shall at any time be employed in any factory or workshop not owned or operated by its parents, or in a theater, packing house, operating elevators, or in or about a mine, etc. Section 2 of the act reads as follows:
“Sec. 2. It shall be unlawful for children under sixteen years of age, wno are employed in the several vocations mentioned in this act, or in the distribution or transmission of merchandise or messages, to be employed before seven o’clock a. m. or after six o’clock p. m., or more than eight hours in any one calendar day, or more than forty-eight hours in any one week. No person under sixteen years of age shall be employed at any occupation nor at any place dangerous or injurious to lije, limb, health or morals.” (Italics ours.)
The force and effect to be given the italicized portion of that statute was considered in Casteel v. Brick Co., 83 Kan. 533, 112 Pac. 145, where a boy between fifteen and sixteen years of age was employed to drive a horse pulling loaded and empty cars between a steam shovel and a brick plant. In that case it was held:
“In such an action it is not necessary for the plaintiff to prove that the defendant knew that his occupation was dangerous.
“Ordinarily whether a particular occupation is dangerous within the meaning of the statute is a question of fact.
“An occupation is dangerous within the meaning of the statute whenever there is reason to anticipate injury to the person engaged in it, whether the risk arises from the inherent character of the work or the manner in which it is carried on, even although the danger may be eliminated by the exercise of due care and skill on the part of the employee.
“Where the employment of a person under sixteen years of age is unlawful because his occupation exposes him to danger, and in the course of his work he is injured in consequence of such exposure, the violation of the law is the proximate cause of the injury.” (Syl. ¶¶ 2, 3, 4, 5.)
The 1909 act was superseded by Laws 1917, ch. 227, which now appears as G. S. 1935, ch. 38, art. 6. Section 1 of this last act provides that no child under fourteen years of age shall be employed in certain designated work, and section 2 provides:
“That no child under sixteen years of age shall be at any time employed, permitted, or suffered to work in or about any mine or quarry; or at any occupation at any place dangerous or injurious to life, limb, health or morals.”
Appellant directs our attention to the change made in the last clause of section 2 of the 1909 act by the last clause of section 2 of the act now in force, and contends that the place where the plaintiff was employed was not one of those specifically mentioned, i e., mine or quarry, and that if the employment was unlawful it was by reason the place of employment was dangerous or injurious to life, limb, health or morals, special stress being laid on the phrase “at any place,” and the principal argument being that “place” means the premises where the work is performed, as distinguished from the instrumentalities used in the work. Coupled with that argument is a further one that it was not the legislative intent to prohibit labor in agriculture of one under the age of sixteen years.
We believe appellants put too much emphasis on the phrase “at any place,” make “place” the controlling thing, and in effect derive a meaning from/ the statute rather contrary to what we conceive to be its meaning. It will be observed the legislature, in section 2, first says a child under sixteen years of age shall not be employed in or about a mine or quarry — such employments in all their parts are forbidden. There were other employments which it wished to ban, and it then added the remaining portion of the section.
Appellants direct our attention to the rule that statutes are to be construed as they were understood when they were passed (25 R. C. L. 959) and to the rule of ejusdem generis, that is, that where enumeration of specific things is followed by some general word or phrase, such general word or phrase is to be held to refer to things of the same kind (19 C. J. 1255). They then call attention to the fact that the statute prohibits employment at a mine or quarry and argue that those being specifically named, the last portion of the statute must be construed to refer to places, rather than to occupations.
Rules for interpretation and construction of statutes, however, are formulated only for the purpose of ascertaining the intent of the legislature. A review of our previous child-labor statutes, now superseded by the one under consideration, leads to the inquiry: Was the purpose to limit the employment to places not dangerous, or to occupations not dangerous, or must danger be absent from both place and occupation? We think a fair reading of those statutes leads more to the conclusion that what the legislature intended to prohibit was employment at any place in any occupation which is dangerous to life, limb, health or morals of a child under sixteen years of age.
Appellants present a further argument that the above statute was not intended to apply to one engaged in agriculture. This argument is predicated on the fact that the last statute above referred to was enacted in 1917, and at the same session the legislature enacted a workmen’s compensation act (Laws 1917, ch. 226) which, under section 1, declared agricultural pursuits and employments incident thereto to be nonhazardous and exempt from its provisions. It is said the two statutes are in pari materia and should be construed together, and thus construed show an intention not to regulate labor on farms. To support that contention our attention is directed to Voran v. Wright, 129 Kan. 601, 607, 284 Pac. 807, wherein it was said:
“We think that where different acts affecting the same subject matter are enacted at the same session of the legislature and take effect about the same time, they should all be considered together to ascertain the real legislative purpose and intent.
“ ‘Laws enacted by the same legislature about the same time and concerning the same subject matter, being in pari materia, are to be taken and considered together in order to determine the legislative purpose and arrive at the true result.’ (In re Hall, Petitioner, 38 Kan. 670, 17 Pac. 649. See, also, Railway Co. v. Railway Commissioners, 85 Kan. 229, 116 Pac. 896; State, ex rel., v. City of Lawrence, 98 Kan. 808, 160 Pac. 217.)”
It is difficult to see how the two acts fit into each other. The workmen’s compensation act dealt with employees in certain defined employments, and provided for compensation. There were many employments, trades and businesses besides agriculture not within the purview of that act. The child-labor act covered an entirely different field. It prohibited child labor under its provisions and did not otherwise attempt to regulate employment or occupation. Further it is to be noted the first child-labor act was passed in 1905, the second in 1909, while the first workmen’s compensation act was not passed until 1911. It was a mere coincidence that both acts received further consideration from the legislature in 1917. It cannot be said both apply to the same subject matter except in the broad sense that each affects labor. The purpose of the one was to provide compensation to employees as limited by the act, and not to regulate labor; the purpose of the other was to prohibit labor by children. The classifications of employment are widely different in the two acts. The legislature did not intend by the provisions excepting agricultural pursuits and employments incident thereto from the workmen’s compensation act to make such a provision applicable to the child-labor act.
Appellants’ contention that it is inconceivable the legislature intended to deny to healthy boys and girls the right to contribute their labors on the farm is answered by the statute itself. It does not purport to do that. If, however, there is any reason why a child under sixteen years of age living on a farm is not to be prevented from engaging in an occupation dangerous or injurious to its life, limb, health or morals, in the same manner and to the same extent as one not living on a farm, it has not been made to appear, nor do we believe it was so intended.
In view of what has been said, it is unnecessary to fully consider appellee’s contention that in any event the petition states facts showing negligence actionable at common law. Viewed from that standpoint, we think the petition is not demurrable.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Smith, J.;
This was an action for damages for injuries sustained when plaintiff was struck by an automobile. Judgment was for plaintiff. Defendants appeal.
The action is against Dorothy Rinker and Essie Dean Rinker, her mother. At the time of the injuries of which complaint is made Dorothy was fifteen years old. Her father owned an automobile. On the evening in question Dorothy asked her mother if she might use the car to- go to a high-school basketball game at the schoolhouse a few blocks from the Rinker home. Her mother told her she could take the car and go to the game and come right back home. She took the car, went to the game, and afterwards took a young man from the game to his home in another part of town. On her way back from the home of the young man she struck plaintiff with the car while he was crossing the street. His leg was broken.
This action was brought against Essie Dean Rinker, the mother of Dorothy, as well as Dorothy, pursuant to the provisions of section 22 of chapter 80 of the Laws of 1931, now G. S. 1935, 8-222. That section is as follows:
“Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.”
Essie Dean Rinker filed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action against her. This demurrer was overruled, and that ruling is one of the errors of which defendant Essie Dean Rinker complains here. It was presented in the lower court and is argued here as though the liability of Essie Dean Rinker depended on the above statute. The argument of defendant is that the statute violates the constitution because there are two subjects expressed in the title to the act. Article 2, section 16, of the state constitution provides in part as follows: “No bill shall contain more than one subject . . . .”
The title to this act is as follows:
“An act relating to motor vehicles, providing for licensing motor-vehicle operators and chauffeurs, defining the liability of certain persons for negligence in the operation of motor vehicles on the public highways and to make uniform the law relating thereto.” (Laws 1931, ch. 80.)
The argument is that the title refers to licensing operators and chauffeurs of automobiles and to defining the liability of certain persons for negligence. Defendant relies in the main on what this court held in Cashin v. State Highway Comm., 137 Kan. 744, 22 P. 2d 939. In that case this court held section 23 of chapter 80 of the Laws of 1931 to be in violation of the state constitution because the act contained two subjects. This court pointed out that the title referred to licensing “motor-vehicle operators and chauffeurs” and also to defining the “liability of certain persons for negligence.” Section 23 was as follows:
“This state and every county, city, municipal or other public corporation within this state, employing any operator or chauffeur, shall be jointly and severally liable with such operator or chauffeur for any damages caused by the negligence of the latter while driving a motor vehicle upon a highway in the course of his employment: Provided, This section shall not apply to boards of education, fire or police departments.”
The action was against the state highway commission for injuries caused by a chauffeur for the commission. In holding section 23 to be unconstitutional this court said:
“A careful reading of the entire act indicates that every section of it except section 23 relates to the licensing of motor-vehicle operators and chauffeurs and the punishment for the violation of the provisions of the act and the liability of such operators and chauffeurs and owner’s of motor vehicles furnished to minors or unlicensed operators and chauffeurs, all of which features and provisions are related and germane to the subject of licensing motor-vehicle operators and chauffeurs. Section 23 does what the second part of the title indicates by defining the liability of certain persons for negligence in the operating of motor vehicles on the public highway.” (p. 746.)
It will be noted that this court stated there was no connection between creating a new liability for certain municipalities and agencies of the state and the licensing of chauffeurs, while there was a connection between licensing chauffeurs and the matters dealt with in the other sections. As we examine the chapter for the purpose of this review we have reached the latter conclusion. Section 5 of the chapter, being G. S. 1935, 8-205, provides, among other things, as follows:
“An operator’s'or chauffeur’s license shall not be issued in any of the following cases: (a) To any person under the age of 13 years, and no chauffeur’s license to any person under the age of 18 years.”
It will be noted that the above constitutes a restriction upon the issuance of ojDerators’ and chauffeurs’ licenses. The provisions of G. S. 1935, 8-222, providing for liability for persons who furnish an automobile to persons of a certain age is certainly germane and related to the matter dealt with in G. S. 1935, 8-205. 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 legislature 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. Nothing of this sort would be the case with chapter 80 of the Laws of 1931, as far as section 22 is concerned.
Defendant Essie Dean Rinker next argues that section 22 violates the constitution because the title to the act limits the liability of certain, persons for negligence on the highway, while the latter part of section 22 reads:
“. . . and any person who gives or furnishes a motor vehicle to such minor shall be jointly and severally liable with such minor for any damage caused by the negligence of such minor in driving such vehicle.”
The complaint is that the above provision does not restrict, as the title does, the liability of the person who permits a minor to operate an automobile to damages that occur on the highway. It is urged that on this account the purpose of the act is not clearly expressed in the title. The likelihood that the operator of an automobile would injure anyone while driving it anywhere except on the high-' way is so remote that this discrepancy would not make the act bad.
Defendant next points out that the title to the act restricts it to “liability of certain persons for negligence in the operation of motor vehicles on the public highways.” She argues that the title is not broad enough to include a section with reference to furnishing a minor under sixteen years of age a car. We have already demonstrated in this opinion that the matter covered in section 22 of the act is germane and related to that part of the subject of the act that has to do with licensing chauffeurs and operators. While the constitutionality of the act was not passed on because it was not raised, recovery was permitted against a father on account of the negligent operation of an automobile by his son under the provisions of this statute in Jacobs v. Hobson, 148 Kan. 107, 79 P. 2d 861. We have concluded, therefore, that section 22 of chapter 80 of the Laws of 1931 does not violate the constitution of our state.
Defendant Essie Dean Rinker next argues that her demurrer to the evidence should have been sustained because it showed that the injury to plaintiff occurred while Dorothy was using the car on a journey not authorized by Essie Dean Rinker. The evidence on this point is that Dorothy asked her mother if she could take the car to the basketball game. Her mother told her she could go to the game if she came right back home. The place where the game was being played was a block east of the Rinker home. Dorothy drove the car to the game, parked it and went in and watched the game until it was over. After the game she went out and got in her car with the intention of going home. Just then one of the basketball players came out and asked her to take him to his home so he could change clothes. She consented to do this. To make this trip she drove a block east to Main street, then five blocks south, then two blocks west, then four blocks south to the boy’s home. There she waited until the boy changed his clothes and came out. She then drove two blocks east to Main street, and when she reached Main street she started back north. She drove six blocks north on Main street until she arrived at the intersection of Twelfth and Main. It was at this intersection that plaintiff was struck. All of the trip from the basketball game to the place where plaintiff was struck was unnecessary for her to have traveled in returning home from the basketball game, that is, she could have returned home in the car by making a U-turn at the basketball game and driving back west and a block north to her home. It was not necessary for her to have come closer than a block from Main street.
Defendants point out this situation and argue that since plaintiff was injured by Dorothy while she was driving the car much farther than she was permitted, Essie Dean Rinker is not liable, under the statutes, to plaintiff, even though he was injured by the negligence of Dorothy. Cases where this court has held an employer not liable to one injured by an employee where the employee at the time of the injury was acting beyond the scope of his employment are cited and relied on by defendant Essie Dean Rinker. We question, however, whether this statute is susceptible to this narrow a construction. The statute fixes the liability upon “any person who gives or furnishes a motor vehicle to such minor.” By this language the legislature declared it to be the policy of this state that liability should attach to any person who placed as dangerous an agency as an automobile within the control of a minor who was not more than sixteen years old. The idea of the legislature was to discourage the practice of endangering the safety of the public by permitting people of the classes named to drive a motor car on the streets. Once defendant permitted Dorothy, while she was a minor under the age of sixteen years, to drive the motor vehicle, she had brought herself under the terms of the statute. One of the reasons for the enactment of the statute was the well-known tendency on the part of young people to think the “longest way round is the shortest way home.” Furthermore, Dorothy said, when she testified for plaintiff:
“Q. What did she say to you with reference to whether or not you could take the car out that night? A. There was a basketball game in the senior high school that night. She told me I could go to that game and come right back home.
“Q. She told you you could take the car out that night, did she? A. Yes, sir.”
When she testified on behalf of her mother and herself she said:
“I had a conversation with my mother about using .the car that night. I asked her if I could take it to the basketball game because it was rather cold to walk down and she told me I could if I would be sure to come home right after the game.”
In the first place, it is refreshing to read the testimony of Dorothy. It is clear that she told the truth when she was on the stand, even though it might prove damaging to her mother and herself. It is a little difficult to construe the words of Dorothy and her mother as an absolute direction on the part of Mrs. Rinker for Dorothy to make a U-turn at the high-school building and come back on down Broadway to her home. The members of this court have seen the fifteen-year-old mind in action too often not to be able to picture the ease with which Dorothy convinced herself that taking this young man home was coming right home, at least so nearly so that she could take a chance on braving the maternal wrath by doing this neighborly act. This is especially true in this case, since Mrs. Rinker testified that the family wanted the car so they could go to the show after the basketball game. The idea was that the time at which the car should be brought back was the important thing, rather than the route traveled.
Defendant Essie Dean Rinker next argues that an automobile is not such a dangerous instrumentality as to make a parent liable for its negligent operation by a minor who was permitted to have-one in his possession. It will not be necessary to decide this question, since we have held that G. S. 1935, 8-222, does not violate the state constitution and defendant Essie Dean Rinker is liable under that statute.
Defendant Essie Dean Rinker next argues that instruction No. 4 given by the trial court was erroneous. That instruction is as follows:'
“You are instructed that section 8-222 reads as follows:
“ ‘Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.’
“You are instructed that before the defendant Essie Dean Rinker can be held liable under the provisions of this act, the plaintiff must prove and establish by a preponderance of the evidence that she knowingly permitted the defendant Dorothy Rinker, while under the age of sixteen years, to drive the automobile in question upon the highway, or that she gave or furnished a motor vehicle to her daughter who was at that time under the age of sixteen years, and that while the said minor was driving the said automobile upon the public highway and was under the age of sixteen years, the plaintiff was injured, and that such injury was caused by the negligence of the said minor in driving such vehicle.”
Defendant argues that this instruction, is erroneous because it tells the jury it could find against Essie Dean Rinker if it believed she knowingly permitted Dorothy to have the car, whereas she could, under the facts of this case, only be held liable if she gave or furnished Dorothy the car. We are unable to see where this instruction was prejudicial to defendant. The distinction is too fine.
We have examined the other objections to the instructions given by the trial court and find them to be without merit.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to compel release of a mortgage and to recover statutory damages and attorney’s fees because of the mortgagee’s refusal to release.
On March 28, 1922, Jessie J. Steward and her husband borrowed $3,000 of the defendant, hereafter referred to as the association, securing the same by a mortgage on real property in Pratt county, Kansas. When the loan was made, in accordance with the statutes applicable to building and loan associations, the borrowers purchased from the association thirty shares of class G installment stock, evidenced by a certificate which will be referred to later in more detail. This stock was pledged for payment of the debt. At the same time, the borrowers executed and delivered to the association a note reciting that on maturity of the stock pledged they would pay the association the $3,000 advanced, with interest at the rate of ten percent per annum payable monthly on the 25th day of each month until the principal sum had been fully paid, and that they pledged and assigned to the association as collateral security, the capital stock evidenced by the above-mentioned certificate and that they agreed to pay the monthly dues on the stock amounting to $10.80 and the monthly installments of interest amounting to $25.20, together with all fines chargeable upon arrears.
“Until such time as said stock shall reach the ultimate- value thereof and fully mature and be fully paid in and of the value of $100 per share, according to the terms and provisions thereof, and of the said constitution and bylaws; when, if all the terms and conditions of this note and the mortgage securing the same, have been fully complied with, such stock shall be accepted by said association at its face value, in settlement of this note and the said loan and indebtedness; unless said loan shall be otherwise sooner paid, canceled and discharged.”
To secure payment of this note the borrowers executed and delivered to the association a mortgage describing the above note and reciting:
“The first parties expressly agree that they will pay to second party, or its successors or assigns, on or before the fifteenth day of each month, the sum of $10.80 as dues on thirty (30) shares of class G installment stock certificate No. 90 of said association assigned and pledged as collateral security to said association, and the sum of $25.20 as interest on said sum of $3,000 and also fines that may be assessed against said stock until said stock shall become fully paid up and of par value of one hundred dollars per share under the provisions of the constitution and bylaws of said second party, and to secure the per-, formanee of all the terms and conditions expressed in said promissory note.”
The stock certificate above mentioned, in general, complied with the requirements of Laws 1911, ch. 131, sec. 2, then in force, and showed that Jessie J. Steward was the owner of class G shares of the capital stock of the association and that it was issued in accordance with the following provisions of the bylaws, which, in part, were as follows:
“Class G Installment Stock
' ARTICLE VI
“Sec. 8. Class G installment stock shall be issued only to members desiring loans upon real estate, upon the association’s definite contract plan and shall be dated the day of the month in which issued. The stockholder shall be required to make monthly payments as stated in the following table, and at the expiration of the number of months specified therein his stock shall be due, and the proceeds thereof shall be applicable for the payment of the loan for which they were given as security. Excess payments permitted on class G shares, the same to participate in dividends in the same proportion as regular payments. (Italics ours.)
“Table op Monthly Rate for Each Share of $100
Terms of payments Payment monthly 144 months .38
“The power is given the board of directors to change the above payments when deemed for the best interest of the association; such change, however, shall not affect outstanding certificates in this class.”
The following paragraph also appeared on the certificate:
“In consideration of a guarantee by the holders of the permanent stock to declare dividends at a rate sufficient to mature this certificate within the term prescribed, and the guaranteed withdrawal privileges, the holder hereof hereby agrees to waive his right to any earnings in excess of the amount necessary to realize such guarantee.”
On the back of the certificate was endorsed:
“Number 90 Class G.
Number of Shares, 30; $3,000; Year, 12; Series in. . . .”
“Issued to Jessie J. Steward; Date, 3-28-22 Address-.
Read your certificate. It is your contract with the association.”
Sometime thereafter, Mrs. Steward and her husband sold the real estate to one Walter E. Baker, and at that time assigned their in terest in the building and loan stock to him. Baker continued to own the property until about January, 1933, when he sold it to the present plaintiff, to whom the building and loan stock was transferred. The plaintiff made payment of the monthly installments of $36, and on May 3,1934, he made payment of the 144th installment due and demanded release of the mortgage. Without reciting the details here, the association refused to release the mortgage, claiming that the pledged stock was not matured to its face value, and that there was a balance due and owing bn it to make it worth its par value of $100 per share. On October 31, 1934, the plaintiff brought his action to compel release. The association answered that the note secured by the mortgage had not been fully paid according to its terms, the bylaws of the association and the statutes of the state of Kansas, and that a balance remained due and unpaid; that the stock certificate, note, mortgage and bylaws did not guarantee the loan would be fully paid upon payment of 144 monthly installments of $10.80 each and 144 monthly installments of $25.20 each, but in order to fully pay the indebtedness it was necessary that dividends be declared and credited to the holder; that the certificate provided for payments in the sum of 38 cents per month on each $100 share, or a total of .$11.40 per month, but that plaintiff paid only $10.80 per month, and that owing to the unprecedented financial conditions and the depression, said association did not pay dividends to the holders of this or any other class of stock for the two years last past, and that by reason thereof the stock has not fully matured, and—
“That any attempted guarantee in said stock was made only by the holders of the permanent stock of said association and not by said association, and that said association could not under and by virtue of the laws of the state of Kansas guarantee the maturity of said stock, and any attempted guarantee would be ultra vires and void.”
The answer further alleged that the note was unpaid and unsatisfied ; that the stock had not matured, and the plaintiff was not entitled to cancellation or release of the mortgage.
Other allegations of the petition and of the answer and such statements of fact as the evidence disclosed will be referred to later where necessary. It may be observed, however, that at the trial, evidence was taken covering a rather wide range. At the conclusion, the trial court made eighteen findings of fact, four conclusions of law based thereon, and also prepared a memorandum opinion, which is in- eluded in the abstract. Its conclusion was that the note, mortgage, stock certificate and the bylaws of the association constituted a contract between the plaintiff and the association, and that if the contract was ultra vires on the part of the association it was estopped from asserting invalidity; that the plaintiff was entitled to judgment for cancellation of the mortgage, but was not entitled to statutory damages or attorneys’ fees.
Various post-trial motions of both parties, including motions for a new trial, with one slight exception, were denied. Defendant appeals, assigning sixteen claimed errors. Plaintiff includes in his brief a cross-appeal, because he was denied statutory damages and attorney fees.
Before taking up what we believe are the decisive features of the appeal, we note appellant’s contention that the amount of dues called for by the note, i. e., $10.80 per month, or 36 cents per share per month, was at variance with the requirements of the bylaws, which fixed the rate at 38 cents per share per month. The same bylaw, however, gave the board of directors the right to change the rate. The evidence showed they approved the loan as made. It is fruitless to discuss this phase of the matter further.
For purposes of discussion, we shall assume the certificate of stock, the bylaws of the association as noted thereon, the note and the mortgage constituted the contract between the association and the plaintiff, and that by reason of article VI, section 8 of the bylaws as quoted above, the original parties intended the pledged stock should be matured and applicable to the retirement of the loan when the 144th monthly payment was made in due course of time. To determine correctness of that assumption it is necessary to inquire whether a búilding and loan association may validly so contract. Prior to the enactment of Laws 1911, ch. 131, the statute, with reference to classes of stock which could be issued (G. S. 1909, § 1860), used the expression “permanent or guarantee stock.” The 1911 amendment, hereafter quoted in part, eliminated the words “or guarantee,” but did not otherwise materially change the provisions with reference to that class of stock. The name, rather than the characteristics of this class of stock, was changed. With respect to guarantee stock, in Sundheim on Building and Loan Associations, 3d ed., § 17, it is said:
“Guarantee stock is a fixed nonwithdrawal investment which guarantees to all other investors in the association a fixed rate of dividend or interest. Under this plan all other kinds of shares may be issued by the association, the holders of which know in advance the return their saving will yield, and the bonower knows the exact time of the maturity of his loan and the exact cost. This guarantee stock must be replenished in case of impairment. In return for the risk involved those who supply this capital receive all the earnings of the association over and above the amount required to pay dividends to other classes of stock and have actual control of the affairs of the association. The association may not loan any of its funds upon any of its own guarantee stock as security. The issuance of this kind of stock must be expressly authorized by statute.” (Italics ours.)
The loan in question was made in March, 1922, at which time the statutes in force with reference to building and loan associations were somewhat different than as now appear in the 1935 General Statutes. And in discussion of the power of an association to enter into a definite contract, it should be noticed there are some differences between contracts to pay definite dividends on certain types of stocks and contracts for maturing stocks pledged for loans. G. S. 1915, § 2214 (being Laws 1911, ch. 131, § 2), then in force, provided that:
“Any such corporation may also issue permanent stock . . . upon which permanent stock a full dividend, or a definite dividend, may be paid, which dividend shall in no case exceed the percent of profit per annum acquired by any other class or series of stock at the time such dividend is declared. The balance of profits (if any) and the principal paid on said stock shall not be paid to the holders of the same until all lawful claims of every other class of stock in its series, as expressed in the certificate of such other classes, and all other liabilities of such corporation, shall have been fully liquidated and paid.”
Under G. S. 1915, § 2219, loans might be made on all classes of shares, except permanent shares, under the conditions there set out. And under Laws 1915, ch. 96 (G. S. 1915, § 2258 et seq.), provision was made for issue of rural-credit shares, on which a definite rate of interest might be paid. No specific provision for a definite dividend on any other class of stock was made in the statutes, although it is well known that as a matter of common practice a definite rate of interest was contracted to be paid on full-paid stock. Some of the statutory provisions with reference to maturity of stock (G. S. 1915, §§2214, 2219, 2223) would seem to indicate that it would mature only when the dues and dividends reached the ultimate and full value thereof. It should be noted, however, that there is no specific prohibition against a definite contract of maturity and that certain of the statutory language would indicate the matter might be controlled by the bylaws, all of which, at the time in question, were subject to approval of tbe bank commissioner (G. S. 1915, § 2211). A specific instance is G. S. 1915,.§ 2214, wherein it is provided that the object of the corporation shall be the accumulation of capital by payments from the members “at such times and in such manner as may be provided in the bylaws.” And “payments of dues or installments on shares shall commence and date from the time provided in the bylaws.” In section 2220 it is provided that—
“In case any borrowing shareholder shall for the period of six successive months fail to pay the dues, interest, fines and other charges required of him by the bylaws,” etc.
In section 2223 it is stated:
“Each shareholder shall pay to said corporation, at or before each stated meeting of the directors, or at any such time as may be provided in the bylaws, as a contribution to the capital thereof, the sum fixed as dues for each and every share held by him, until each share shall, under the provisions of this act, reach the face value thereof:” etc.
And other similar provisions are found in the statute.
Appellant contends, however, that building and loan associations are fundamentally mutual organizations, and that to hold the association could enter into a contract definite as to the number of payments required of a borrowing member would be to hold contrary to their aim and purpose, would take away mutuality, would result in preference, and would be an ultra vires act of the association. Among other decisions, appellant directs our attention to Brollier v. Bankers Mortgage Co., 137 Kan. 298, 20 P. 2d 817, as holding that mutuality is a basic feature of a building and loan association. The case does so hold, and that is generally true. But in that case the question at issue was whether the defendant company’s securities were subject to withdrawal and retirement under the building and loan laws of this state. The question of the effect of the issuance of permanent stock and the power of the association to loan money on definite term contracts was not in issue and was not discussed.
In Sundheim on Building and Loan Associations, 3d ed., § 21, it is said:
“One of the principal and distinctive features of a building association is mutuality. However, mutuality does not mean that every member or shareholder should receive the same return on his investment, or have the same rights. It means that every member in the same class, or holding the same kind of stock, or certificate, must have the same benefit or liability or right, whether the stock be free, or whether an advance has been made upon its security. . . .”
And in Bertche v. Loan & Inv. Ass’n of Mo., 147 Mo. 343, 48 S. W. 954, a leading case on the subject, it was held that a fundamental law of building and loan associations is mutuality; that all members must participate equally in profits and must share losses, if any, in the same proportion, and that therefore a loan contract that purports to have stock mature as the result of a definite number of payments made is ultra vires and void. This case has been often cited and followed. It is to be observed, however, that in the association there involyed there seems to have been no class of stock comparable to the permanent stock authorized by the Kansas statutes.
On the other hand, it has been held in many cases that if the statutes do not prohibit, an association may make a definite contract. A reference to the authorities shows there is a great deal of conflict. In 9 Am. Jur. 153 (B. & L. Ass’ns, § 66) it is said:
“There is a conflict in the cases as to the right of the borrower to a cancellation of the loan at the expiration of the time fixed for maturity of the stock where it has not reached its par value. This is sometimes, but. not always, due to a difference in the bond, note, or mortgage given, in the bylaws or constitution of the association, or in the statutes 'governing the associations. In a considerable number of cases the right to have the loan canceled has been sustained, sometimes on the ground that a provision fixing the time for maturity is proper, sometimes on the ground that although a building and loan association could not properly make an agreement that its stock will mature at a fixed time or after a specified number of payments it is estopped, after having induced persons to deal with it and to borrow from it in reliance upon such an agreement, to deny its power in this respect, and in some instances on the ground that the transactions involved lacked some of the elements of mutuality characteristic of the affairs of true building and loan associations.
“On the other hand, numerous cases have denied the right of the borrower to have the par value of his stock applied in cancellation of the loan at the expiration of the fixed period unless the stock has actually matured at or prior to that time. Among the reasons given for such denial is that to hold otherwise would cast the entire burden of losses upon the nonborrowing members; that an agreement of this character is ultra vires and void; that the provision fixing the time of maturity was a mere estimate or expression of opinion, and not binding on the association; and that conflicting provisions in the mortgage, bylaws, or statute requiring payments to be made until the stock actually matures must be given effect. In a few cases provisions limiting the number of payments to be made on stock have been held to relieve the holder of the duty of making further payments of dues, but not to entitle him to have the stock applied at par in payment of the loan.”
In addition to other authorities there cited are annotations in 98 A. L. R. 6, and 98 A. L. R. 89, covering many phases of the rights of shareholders in settlement of their rights in building and loan associations. And see 9 C. J. 935 (B. & L. Ass’ns, § 31).
It is to be observed, however, that our statute in effect authorizes two types of associations, those without and those with permanent stock. In theory, at least, in an association without permanent stock, all profits from operations are ultimately to be declared as dividends to all shareholders entitled to participate, and the association is without power to treat one class of shareholders differently from another, except as specifically authorized by statute. Where there is permanent stock, however, the statute does not seem to contemplate necessity for the directors to do more than declare sufficient dividends of profits to mature shares in specified periods; that is, if the earnings would justify declaration of dividends sufficient to mature stock ahead of the specified time, there is no requirement that it be done, for if it were required to be done, that portion of G. S. 1915, § 2214, with reference to permanent stock, reciting, “the.balance of profits (if any) and the principal paid on said stock shall not be paid to the holders of the same,” etc., would be meaningless. If every shareholder of every class must pay the stipulated number of payments, and then if sufficient dividends have not been declared to have his stock fully matured must await the pleasure of the board until there have been additional earnings and declared dividends, the result would be to create an unjust preference in favor of the permanent shareholders. Neither is it now important what ratio existed between the permanent stock and the other classes of stock to be issued. This was all to be determined by the bylaws which had to be approved, at the time the loan here was made, by the bank commissioner. If that official thought the ratio too small, it was within his power to withhold approval.
At the time the loan in question was made, G. S. 1915, § 2212, was in force, and under it the qualifications of electors could be fixed by the bylaws. We need not pause to determine their validity, but under article II, section 3 of the bylaws of the present association, the right to vote seems to have been conferred on the holders of the permanent stock, and by article II, section 1, membership on the board of directors was limited to holders of permanent stock. Thus actually control of the association was in the permanent stockholders and mutuality was to a degree lacking.
Nor is it at all clear the legislature believed it was providing for purely mutual organizations, for in G. S'. 1915, § 2229, which was Laws 1899, ch. 78, § 21 (an act making rather comprehensive provisions for building and loan associations), it was provided that:
“Any mutual building, loan and savings association heretofore organized under the laws of this state shall have power to provide for the transaction of future business under the provisions of this act . . . the stockholders shall have the power ... to change, alter or repeal their present constitution and bylaws and adopt such new constitution and bylaws as they may deem needful for their future government, provided they do not conflict with the laws or constitution of this state,” etc. (Italics ours.)
Viewed from one angle, it would seem a mutual association might by alteration of constitution and bylaws become one not mutual. Both parties direct our attention to Hogsett v. Loan Association, 78 Kan. 71, 96 Pac. 52, and quote certain portions from it in support of their contentions. In that case the question for decision was with respect to preferences among stockholders in respect to stock issued prior to the comprehensive revision of our building and loan laws in 1899. No good purpose will be served by an analysis of that case, but it may be observed there is nothing there stated that is contrary to our conclusions here.
In view of the fact the statute contains no prohibition against a building and loan association’s issuing a definite term loan contract, in view of the statutory provisions with reference to the issuance of permanent stock, limited as to dividends but authorized to take the profits, if any, we are of the opinion that it is not beyond the power of an association having permanent stock, to issue loan stock payable in a stipulated number of months and to enter into a loan contract under which the stock is assigned and pledged as security.
Were we in doubt as to the power of the association to enter into a definite payment contract, we would still be confronted with the question whether it is not now estopped to raise the question. We shall content ourselves by quoting the view expressed in Vought v. Eastern Bldg. & Loan Ass’n, 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep.761:
“The only remaining question we deem it necessary to consider arises upon the contention of the defendant that it was unauthorized by the statute under which it was organized to make the contract in suit, and, hence, the plaintiff cannot recover. . . . We deem it unnecessary at this time to determine whether the defendant was authorized by that statute to enter into such contracts, for if we assume that the making of them was in excess of the express power conferred upon the corporation by that statute, still, as the contracts involved no moral turpitude and did not offend any express statute, they were not illegal in a sense that would prevent the maintenance of an action thereon. It is now well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been, in good faith, fully performed by the other party, and the corporation has had the benefit of the performance and of the contract. As has been said, corporations, like natural persons, have power and capacity to do wrong. They may, in their contracts and dealings, break over the restraints imposed upon them by their charters; and when they do so their exemption from liability cannot be claimed on the mere ground that they have no attributes nor facilities which render it possible for, them thus to act. While they have no right to violate their charters, yet they have capacity to do so, and are bound by their acts where a repudiation of them would result in manifest wrong to innocent parties, and especially where the offender alleges its own wrong to avoid a just responsibility. It may be that while a contract remains unexecuted upon both sides, a corporation is not estopped to say in its defense that it had not the power to make the contract sought to be enforced, yet when it becomes executed by the other party, it is estopped from asserting its own wrong and cannot be excused from payment upon the plea that the contract was beyond its power.” (p. 517.)
ending citing authorities. On the general question of estoppel of a corporation to raise the question of its acts being ultra vires, see Security Nat’l Bank v. Crystal Ice & Fuel Co., 145 Kan. 899, 907, 67 P. 2d 527, and the cases therein cited.
Our conclusion renders it unnecessary to refer to many of the findings of fact and the evidence on which they are based, and the arguments of appellant based thereon. With reference to the cross-appeal, whether the appellee was entitled to statutory damages and attorney’s fees depended in large part on there being a bona fide controversy between the parties. The trial court held against the association, but that did not mean there was no claim in good faith by it. The controversy grew out of a matter on which other courts had decided both ways and on which this court had not ruled. We think that under Parkhurst v. National Bank, 53 Kan. 136, syl. ¶ 3, 35 Pac. 1116, the trial court’s ruling was correct.
The judgment of the lower court is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to set aside a family settlement, to cancel certain instruments executed pursuant thereto, and for equitable relief. Defendants’ demurrer to evidence was sustained, and plaintiffs appeal.
The controlling facts were these: The late Charles Toland, of Pratt county, died intestate on November 14, 1934, leaving a wife, Belle Toland, and two sons, Henry and Roy, and four daughters, Fannie, Eula, Mary and Ruth. All the children had grown up and all the daughters were married.
Although Charles could neither read nor write, he had accumulated a sizeable fortune in lands in Pratt and Seward counties, and also a section of land in Yuma county, Colorado.
In 1913 the plaintiff, Fannie Toland, married Clark Webster, a farmer, and they resided on rented lands for some years. In 1918 Clark Webster entered into an oral agreement with his father-in-law, Charles Toland, for the purchase of 240 acres of land at an agreed price of $13,500, with 6 percent interest. Webster paid $2,000 in cash on the agreed price and took possession of the land, and he and his wife have resided thereon since then. Title remained in Charles Toland until his death. How much Webster owed on the property at that time was not determined, but Webster testified that it was $2,500.
Following the'death of Charles, his widow qualified as administratrix, and filed an inventory of the value of the estate summarized thus:
(1) Total value of all goods and chattels......................... $6,879.00
(2) Total value of all bonds, mtges., notes and other securities..... 9,000.00
(3) Total value of all debts and accounts......................... 150.00
(4) Total value of all moneys, bank bills, and other circulating medium ................................................................
(5) Total value of all real estate (Pratt Co. lands)................ 59,500.00
Total appraised value of all property...................... $75,529.00
Later a supplemental inventory was filed, covering lands in Seward county, Kansas, and Yuma county, Colorado, appraised at $18,400; and one covering miscellaneous bonds, notes, etc., listed at $2,200. The aggregate of these amounts is $96,129, which for the purposes of this appeal will have to serve as a rough approximation of the value of the Charles Toland estate. There was no finding of its net value, nor evidence in the record on which a precise computation thereof can be made. We note that two quarter sections of the Toland lands in Seward county were covered by a mortgage lien for $2,926.90.
Some weeks after the death of Charles Toland all the parties to this lawsuit effected a family settlement whereby the administratrix canceled whatever indebtedness was owed by Clark Webster on the •farm he had orally purchased from the intestate some 18 years previously. The widow and her two sons and her other three daughters and their spouses executed a deed to Clark and Fannie Webster conveying to them the 240 acres which they occupied. At the same time Fannie Webster and her husband executed to her mother and to her two brothers and three sisters an instrument designated “Assignment and Deed,” in which they relinquished all their interest in the estate of Charles Toland and particularly describing all the lands of that estate in Pratt and Seward counties and in Yuma county, Colorado. This instrument contained all the essentials of a deed of conveyance. All three of the instruments were dated December 27, 1934.
On December 1,1936, plaintiffs commenced this action against the defendants, alleging that at the time the family settlement was made and the instruments executed as narrated above, they had no knowledge or information of the value and extent of the estate of Charles Toland, but that such information was in the possession of Belle Toland and her sons Henry and Roy Toland; that they represented to plaintiffs that they did not know the extent and value of the estate, and that there would not be sufficient assets aside from the real estate to pay the taxes on the lands and the costs of administration, and that the estate consisted almost exclusively of real estate of the approximate value of $86,000.
Plaintiffs alleged that they believed and relied on the representations of the defendant mother and her sons; that those representations were not true, and known to defendants to be untrue; that defendants did know that the value and extent of the estate “was a great deal more than the sum of $86,000, and that they well knew;” and that defendants Henry and Roy Toland were indebted to the estate “in the sum of several thousand dollars,” and that such debts “were intentionally omitted from said pretended inventory;” and that defendants concealed the foregoing alleged facts from plaintiff Fannie Webster, for the purpose of making a settlement for her share of the estate for a small proportion of its value, and- — -
“That plaintiffs would not have entered into such pretended settlement except for such inducements, misrepresentations and concealments, and in their confidence that the said three defendants would deal justly and fairly with them.”
The prayer of plaintiffs’ petition was for cancellation of the instruments executed to effect the family settlement, and that plaintiff Fannie Webster be adjudged to be the owner of a one-twelfth interest of the Charles Toland estate and for other equitable relief.
To this petition an answer was filed by the mother, her two sons and by her daughters, Mary and Ruth, defendants herein. It contained certain general and special denials and admissions, and alleged that Charles Toland in his lifetime had made advancements to certain of defendants — to Henry Toland, $6,000; to Roy Toland, $2,200; and to their sister, Ruth Bales, $2,322, all of which sums they admitted were proper charges against their distributive shares of the estate. Their answer also contained a detailed and categorical denial of every allegation in plaintiffs’ petition which directly or inferentially charged the commission of fraud by them or any of them in effecting the family settlement.
Defendants also alleged that in that settlement an indebtedness of Clark Webster in the sum of $15,580 as the balance of the principal and interest due from him to the estate on the purchase price of the farm occupied by plaintiffs was remitted'.
Defendants further answered that since the family settlement was effected, plaintiffs had received rents, issues and profits on the land conveyed to them by defendants, and had altered the gas and oil lease thereon so that the delay rentals should be paid to them and were so paid; and furthermore — ■
“14. That on the 25th day of April, 1936, the plaintiffs did mortgage said lands so received by them, together with other lands, t.o the Iuka State Bank of Iuka, Kansas, in the principal sum of $9,000, which mortgage was duly recorded in the office of the register of deeds of Pratt county, Kansas, in book 79, at page 283 of the mortgage records of said office.
“15. That by reason of the acts and conduct of said plaintiffs they should be estopped from asserting any right or claim in and to the estate of said Charles Toland, deceased, or to the property so conveyed to the defendants herein.”
Belle Toland also filed a separate answer as administratrix, which may not require special attention.
One of the daughters of Charles Toland, Eula Lattimore, who in 1935 had also settled with the mother, and her brothers and two of her sisters, Mary and Ruth, for her share of the estate, filed a separate answer and cross-petition in which she neither affirmed nor denied the allegations of plaintiffs’ petition, but claimed an interest in the estate if the family settlement of December 27, 1934, should be set aside. There were further pleadings, but those summarized above will be sufficient to develop the material issues involved in the action.
The cause was tried by the court without a jury. The plaintiffs adduced evidence which tended to show that the Charles Toland estate was' of greater value than $86,000 — which, according to the allegations of plaintiffs’ petition, was its approximate value as estimated by Belle Toland and her two sons, to induce plaintiffs to agree to the family settlement. Plaintiffs’ evidence, insofar as we can glean it from the record, would tend to show that its value was about $99,055.90 — not such a remarkable disparity in the value of an estate of that size, based, as it necessarily was, upon the opinions of witnesses not specially skilled in land values where the Toland lands were situated. One particular weakness in plaintiffs’ case was their failure to develop the facts touching whatever liabilities, taxes and costs may have been chargeable against the estate; and it cannot be said that the net worth of the estate was established so as to base a judgment touching the extent to which the plaintiffs were overreached, if at all, in the family settlement.
A careful perusal of the record does not establish certain other essentials to a recovery on behalf of plaintiffs. They did not show that defendants, or any of them, knowingly misrepresented any material facts touching the extent of the estate, nor that they concealed any material facts, of which they should have informed plaintiffs. Certainly it was not established that at the time of the settlement the defendants were knowingly stating a falsehood when they declared that they did not know whether the personal property would be sufficient to pay all claims and charges against the estate, or whether it would be necessary to sell some of the Toland lands to satisfy them. Doubtless counsel for plaintiffs are aware of the limitations of an appellate review of matters which inherently involve problems of accountancy. In Allen County Comm’rs v. Board of Education, 142 Kan. 770, 772, 51 P. 2d 973, it was said:
“We desire to make a general observation touching the inherent limitations of an appeal in an accounting case. An appellate court does not undertake the functions of an accountant or special auditor, nor does it recheck his work to discover possible inaccuracies in his figures or arithmetical processes. Trial courts may find it practical to scrutinize such details with particularity, or if they are too greatly pressed for time they may assign such tasks to a referee. (R. S. 60-2923.) The result of an accounting by auditors employed by order of court or with its sanction has substantially — although not technically — the same effect as the report of a referee. It needs only the approval of the court to become a conclusive finding of fact on which a judgment may be entered; and that judgment can only be overthrown on appeal by showing some plain and demonstrable error which inheres in the accounting.” (Citing Farmers State Bank v. Commercial State Bank, 136 Kan. 447, 16 P. 2d 543; and City of Oswego v. Condon, 124 Kan. 823, 825, 262 Pac. 542.)
If the trial court’s ruling on the demurrer rested solely on the insufficiency of plaintiffs’ evidence to maintain their cause of action, it would be difficult for this court to decide that such ruling was erroneous. In State v. Order of Eagles, 98 Kan. 793, 161 Pac. 903, this court affirmed a judgment sustaining a demurrer to the state’s evidence in a liquor nuisance case. On a motion for rehearing counsel for the state, the late Attorney-general Brewster, insisted that the decision of the trial court was at least technically erroneous, because'the state had adduced some evidence of the existence of the nuisance. In our opinion on rehearing (State v. Order of Eagles, 100 Kan. 480, 481,164 Pac. 1063) it was said:
“Perhaps the trial court did err in sustaining defendants’ demurrer to the evidence. ... It would have been better — perhaps it would have been the correct way to end those lawsuits — if the trial court had overruled the demurrer to the state’s evidence and had rendered judgment for the defendant on that evidence.” (p. 481.)
Passing this phase of the appeal for the nonce, we come to another legal question raised by defendants’ demurrer. At no place in the petition did plaintiffs plead an offer to return the property conveyed to them by defendants in the family settlement; and plaintiffs’ evidence revealed the fact that they had leased the property to an oil and gas company and were collecting delay rentals thereon. Their own evidence also showed that they had placed a real-estate mortgage for $9,000 on the property, $5,000 of which had been paid off. Apparently there is still an encumbrance on it of $4,000 at least.
Just how plaintiffs intended that these practical barriers of their own making were to be surmounted by an exercise of the equitable powers of the trial court does not appear. Mayhap plaintiffs’ failure to plead a tender of return could be waived in view of the recitals of their petition (Akins v. Holmes, 89 Kan. 812, 817-818, 133 Pac. 849), but how could equity restore the status quo ante? Plaintiffs give no convincing answer to this question. The law books, including our own reports, are replete with statements of the well-known rule of law that when a litigant seeks to rescind a contract he must offer to place his adversary in statu quo. Failing so to plead, his pleading is demurrable. Failing so to prove, his evidence is demurrable. (Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932, and citations; Springer v. Keller, 124 Kan. 33, 257 Pac. 964; id., 124 Kan. 369, 259 Pac. 1068, and citations.) In 9 C. J. 1241, it is said:
“In nearly all jurisdictions a bill is demurrable in which, complainant does not offer to return any consideration which it shows that he has received, or otherwise place defendant in statu quo, or sufficiently excuse himself from that duty. And a fortiori is a bill fatally defective where its allegations are such as to preclude the practicability or even the possibility of placing defendant in statu quo, as where the bill shows that complainant has conveyed to a third person all the property received by him, or a large part of it, and is therefore unable to make restitution to defendant.”
In 6 R. C. L. 936 it is said:
“The very idea of rescinding a contract implies that what has been parted with shall be restored on both sides. That one party should be released from his part of the agreement, and that he should be excused from making the other party whole, does not seem agreeable to reason or justice. Hence, the general rule is that a party who rescinds an agreement must place the opposite party in statu quo.”
See, also, Fitch v. United Royalty Co., 143 Kan. 486, 55 P. 2d 409.
Other matters appearing in the briefs have been carefully considered, but they are insufficient to affect the result, nor do they justify further discussion.
There is no material error in the record, and the judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action by a guest against his host for damages growing out of an automobile collision. Judgment was for defendant upon the answers to special questions. Plaintiff appeals.
The collision occurred in the early morning of November 26, 1936. Some young people, including the plaintiff and defendant, had spent, the evening at a place referred to in the record as the “Club Lido.” This club is located a short distance off highway 40 and a few miles east of Salina. The plaintiff had gone there in his own automobile with two young men friends. Defendant had gone there in a Packard car owned by his grandmother. He was accompanied by a young lady to whom he was engaged to be married, and another young man. When these young people were ready to start home a short time after midnight it was discovered that the door of the car in which plaintiff came to the club was locked in such a manner that his keys would not unlock it. After some conversation one of the young men who had come to the party with plaintiff drove to Salina after a tool with which to unlock the car. After a few minutes defendant invited plaintiff to ride home with him in his car. Plaintiff accepted this invitation. Defendant sat in the front seat and drove the car. His fiancee sat by him in the front seat. Three young men, including plaintiff, sat in the back seat. Defendant drove the car in a normal manner, and with the lights on, from where it was parked, 200 or 300 feet off the highway, to highway 40. When he reached the highway he turned west toward Salina and turned off his headlights. He drove at a rate of from forty to forty-five miles per hour.
The outcome of this case depends on what was said and done there by all the persons in the car, and since these facts were settled by the jury in answers to special questions they will be discussed later in this opinion.
The town of Solomon is located between the club and Salina. As the car approached Solomon the party met a truck coming from the west. Just behind this was a car coming from the west. This car pulled out into the traffic lane in which defendant was driving, to pass the truck. Defendant saw the car coming and turned on his lights, swerved to the right, and the car coming from the west pulled back behind the truck so that a collision was averted. This incident was noted by defendant and all his guests. After it occurred defendant again turned off his lights and the car driven by defendant passed through Solomon. About a mile west of Solomon the car driven by defendant collided with a car being driven from the west. Two young men in that car were killed. Defendant and all his guests were injured.
This action was brought by one of the guests.
The petition charged three acts of negligence against defendant— absence of lights, failing to keep a proper lookout, and driving on the wrong side of the road.
The answer was a general denial, and that plaintiff was guilty of contributory negligence.
The jury found that there was absence of lights and want of proper lookout, but found that defendant was on his own side of the road when the collision occurred.
At the close of the evidence for plaintiff, defendant demurred to it. This demurrer was overruled. The case was submitted to a jury. This jury answered forty-six special questions and returned a general verdict for plaintiff. The defendant filed his motion to set aside certain of the answers to special questions, for a new trial and for judgment on the answers notwithstanding the general verdict.
The court sustained the motion of defendant for judgment on the answers to special questions and denied the motion to set aside answers except where they were inconsistent with the order for judgment. The motion for a new trial was withdrawn.
Both parties state here that the two questions in the case are: Was the conduct of defendant such as to make him guilty of gross and wanton negligence? (See G. S. 1935, 8-122b.) And was the plaintiff guilty of contributory negligence so as to bar his right to recover?
The plaintiff refers to the answers of the jury to quesiions 17 and 19. They are as follows:
“17. Do you find the defendant was guilty of gross and wanton negligence as defined in the instructions of the court, in driving of the car on this occasion? A. Yes.
“19. If you find the defendant was guilty of gross and wanton negligence, state fully the acts constituting such gross and wanton negligence. A. Driving without proper lights and disregarding plea of Margaret to turn lights on.”
Plaintiff argues that the question of whether the defendant was guilty of gross and wanton negligence was for the jury, and that the above answers settle the issue in favor of the plaintiff. The trouble with that argument is that the answer to question No. 17 must be considered in connection with the answer to question No. 19 and to No. 24, where the jury found that the occupants of the car in which plaintiff and defendant were riding could see ahead of the car from 150 to 600 feet, also that part of the answer to question No. 41, where the jury found that defendant was not driving on the left-hand side of the road at the time of the collision. When we so consider these answers we find a story about as follows: Defendant drove his car down the right-hand side of the road without lights on a night when he could see ahead from 150 to 600 feet. The rate of speed was not asked the jury, but since there was testimony that it was forty-five miles an hour we will take that figure. Our question is, then, Did such conduct amount to wantonness or to gross and wanton negligence under the provisions of G. S. 1935, 8-122b?
This court first considered the statute in Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573. In that case this court said:
“Of those matters which give rise to a civil action for damages, when an injury results therefrom, we recognize in our law negligence, meaning by that the lack of due care. We also have willful injury, as where one willfully strikes another, or willfully destroys property of another, or intentionally does any act with the purpose and intent of causing such injury. Among the activities of individuals are acts or omissions, which give rise to civil actions for damages where injuries result therefrom which are subject to more severe censure than negligence and yet which are something less than willful injury. The law applies to such acts the general term of wantonness.” (p. 390.)
Stout v. Qallemore, supra, was discussed in Sayre v. Malcom, 139 Kan. 378, 31 P. 2d 8. There this court said:
“In Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, it was held the statute above quoted relieves the operator of an automobile from liability to his guest resulting from negligence, as that term is distinguished from wantonness. Cases are there cited distinguishing wantonness, as the term was used, from negligence, and pointing out that conduct properly characterized under these terms differs not in degree, but in kind, the one denoting lack of due care under the circumstances, the other denoting conscious or intentional misconduct from which injury to someone is likely to result and with a reckless disregard of such consequence.” (p. 379.)
It is pointed out in the above that wantonness as used in the statute means conduct “denoting conscious or intentional misconduct from which injury to someone is likely to result, and with a reckless disregard of such consequence.”
In Aduddell v. Brighton, 141 Kan. 617, 42 P. 2d 555, this court, in considering such an action, said:
“We see from these authorities that this court has consistently held that for the conduct of a defendant to constitute a basis for a cause of action under the statute it must show such a reckless disregard of consequences as to evince a willingness that some harmful result will flow therefrom.” (p. 619.)
In Cohee v. Hutson, 143 Kan. 784, 57 P. 2d 35, this court, in considering such a case, said:
“Defendant’s natural concern for his own safety, and for the safety of his own property, his truck, and his cattle, as well as all the other circumstances revealed by the record, precluded any assumption that he shifted his truck gears with reckless unconcern whether plaintiff might be injured thereby.” (p. 788.)
The authorities will lead us to the conclusion that to constitute wantonness so as to permit recovery under G. S. 1935, 8-122b, the conduct must be such as to evince a willingness that harm might result therefrom, or as to evince as reckless unconcern that plaintiff might be injured. When we apply that rule here we find that to hold defendant guilty of wanton conduct we would be compelled to say that he was willing to injure himself and his sweetheart and wreck his grandmother’s automobile. We are unable to reach this conclusion. The incident at Solomon where the truck was met and defendant took proper measures to avoid a collision refutes such a conclusion.
We hold that the answers of the jury to the special questions finding specific facts show that defendant was guilty of nothing more than negligence. The answers to questions not in harmony with the conclusion were set aside by the trial court.
The above conclusion would require that the judgment be affirmed. However, we shall also consider the question of contributory negligence of plaintiff.
Was the plaintiff guilty of contributory negligence so as to bar his right to recover?
We shall refer to the answers made by the jury to the special questions that bear on the point of whether the plaintiff was guilty of contributory negligence. Some of the questions and answers were as follows:
“3. If you find that defendant switched off the lights of his car, as mentioned in the last preceding question, then did Margaret Geis, within the hearing of plaintiff, at once remonstrate with him and request him to turn on the lights? A. Yes.
“4. If you answer the last preceding question ‘yes,’ then did defendant answer with a laugh and say in effect that it was prettier driving without lights in the moonlight? A. Yes.
“5. Did plaintiff say, loud enough for defendant to hear, ‘I wish to hell he would turn his lights on?’ A. Yes.
“6. Did Norbert Schwartz say to plaintiff in effect that as Margaret Geis. was protesting against the defendant’s driving without lights, that she would have more effect on defendant than any one else and that if any one could get him to turn them on, she could, and that it would be best to let her handle it? A. Yes.
“7. If you answer the last preceding question ‘yes,’ did the plaintiff acquiesce in Norbert’s suggestion and agree that it would be best to let Margaret handle it? A. Yes.
“9. Did Margaret Geis continue her remonstrances with defendant until near the point of the collision? A. She protested up to Solomon.
“10. If you answer the last preceding question ‘yes,’ did plaintiff continue to observe her making the remonstrances until near the point of the collision? A. Yes, up to Solomon.
“11. When approaching the city of Solomon and meeting a truck and a car behind it commencing to pass the truck, did defendant suddenly swerve the car to the right and switch on his lights? A. Yes.”
By these questions and answers the jury found that the young lady with defendant remonstrated with him when he turned off his lights. Defendant did not heed her request. Plaintiff said loud enough for defendant to hear, “I wish to hell he would turn his lights on.” One of the young men in the back seat told plaintiff that the young lady with defendant had more influence with defendant than anyone, and it would be best to let her handle it; that plaintiff acquiesced in this suggestion of his companion. The next finding of the jury is of importance to us here. The jury found that the young lady remonstrated with defendant up to Solomon. Asked if plaintiff continued to observe her make protests until near the point of the collision the jury answered, “Yes, up to Solomon.” This was about a mile from where the collision occurred.
The jury further answered questions as follows:
“27. Did the plaintiff make any protests to the defendant about driving the Packard car without headlights? A. Yes, indirectly through Margaret Geis. Refer to remarks made in answer to question No. 5.
“29. Did the plaintiff believe that there was danger of collision or injury on account of the manner in which defendant operated his automobile, and if so, during what period or periods did he so believe? A. Yes, during the time he was in the Packard car.
“30. Did any incident occur on the curve immediately east of Solomon which increased the plaintiff’s apprehension of danger? A. Yes.
“31. If you answer question No. 30 ‘yes,’ then state whether or not the plaintiff thereafter made any remonstrance or protest to the defendant as to the manner in which the defendant was operating his automobile, and if so, state when and where the plaintiff remonstrated and what he said and did. A. No.
“32. Did the plaintiff at any time or place on the trip between Club Lido and the place of collision ask or demand of the defendant that the defendant stop the automobile and let him out? A. No.
“33. If you answer question No. 32 ‘yes,’ then state when and where such demand was made and what was said and done. A.
“34. Did any of the occupants of the defendant’s car at am' time or place on the trip from Club Lido to the time oí the collision ask or demand of the defendant that the car be stopped and that any of the occupants be let out of the car? A. No.
“36. Did any occupant of the defendant car make any complaint or protest to the defendant about the defendant driving without lights after the Packard left the city of Solomon? A. No.
"44. Prior to the collision, did Margaret Geis, in the hearing of the plaintiff, repeatedly protest to the defendant his driving without lights and repeatedly urge him to turn on his lights? A. Yes.
“45. Was the plaintiff justified in believing under the circumstances and in view of the relationship between Margaret Geis and the defendant, that Margaret Geis had more influence with defendant than he would have, and that if anyone could prevail on defendant to turn his lights on, Margaret Geis could? A. Yes.”
By these answers the jury found that the plaintiff protested by leaving the business of protesting to the young lady and by saying at the start of the trip that “I wish to hell he would turn his lights on.” In this connection we must note that the jury found by its answer to question No. 36 that no occupant of the car protested to defendant after the car left the city of Solomon. Therefore, if plaintiff was depending on the young lady to make his protest the jury found by its answer to questions No. 10 and No. 36 that the person upon whom he was depending and whom he was watching all the time made no protest for over a mile prior to the accident. The jury also found by its answers that plaintiff believed all the time he was in the car that there was danger of collision, that the incident at Solomon increased his apprehension of danger, that he made no protest or complaint as to the manner in which defendant was operating his automobile, and that neither he nor anybody else at any time asked that the car be stopped so that he could get out.
By its answer to question No. 44 the jury found that prior to the collision the young lady, in the hearing of the plaintiff, repeatedly protested to the defendant about his driving without lights, and urged him to turn on his lights. We must consider this answer in connection with other answers to the effect that no protest was made at all after the car left Solomon, a mile away from the scene of the collision.
By its answer to question No. 45, the jury found that plaintiff was justified in believing that the young lady had more influence with the defendant than he had and that if anyone could prevail on defendant to turn on his lights it would be she. It must be noted in considering this answer that the young lady did not protest after the car left Solomon, a mile away from the scene of the collision.
We will not answer the interesting question of whether plaintiff was entitled to rely on the young lady to make his protest for him.
The jury has found that they both rode a mile while defendant was driving his car down the road at night without lights and that they were both aware of the danger they were in all the time. Under such circumstances, can plaintiff recover, or did the jury by its answers convict him of such contributory negligence as to bar his recovery?
An early case involving this question was Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613. There Sharp boarded the car during the journey. The defendant drove it at a rate of forty-five to fifty miles per hour. This was excessive and caused the car to turn over and Sharp was killed. He had ridden only a quarter of a mile in the car when the tragedy occurred. His parents recovered judgment in the trial court. On appeal this court held that a guest in an automobile is required to exercise reasonable care for his own safety and that if he fails to exercise such care he cannot recover. This court said:
“He certainly is required to do whatever is reasonably necessary to avoid injury to himself. If he had time and opportunity to do so he could have warned the driver, could have protested against the excessive speed or have asked the driver to stop and allow him to leave the automobile. Whether a warning protest or request would have been heeded by the defendant is questioned, but whatever the effect would have been, as the danger was obvious, it was the duty of Sharp at least to remonstrate against the dangerous speed or insist that he be allowed to leave the car if there was time to do so after the danger became apparent.” (p. 739.)
In Naglo v. Jones, 115 Kan. 140, 222 Pac. 116, in a similar case this court said:
“If the driver runs his car at a reckless rate of speed and thus encounters an obvious danger it is the duty of the invitee, when the danger becomes apparent, to take precautions for his own safety. He must remonstrate and if necessary ask for an opportunity to leave the car.' If he sits silent and permits the driver to rush recklessly on at a dangerous rate of speed, knowing the danger, and fails to protest or remonstrate, he takes the chances of injury and cannot recover for one which results from the manifest negligence of the driver.” (p. 142.)
It should be noted that in the above case this court said “he must remonstrate and if necessary ask for an opportunity to leave the car.” Here there is no contention that any of the guests asked for permission to leave the car at any time during the entire trip.
To the same effect is Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117; also, Shrewsbury v. Goodacre, 135 Kan. 230, 10 P. 2d 1.
Koster v. Matson, 139 Kan. 124, 30 P. 2d 107, was a case where a guest sued his host for injuries incurred when the car in which he was l’iding turned over at a sharp turn. The cause of the car turning over was the failure of either the defendant or plaintiff to see a warning sign 300 feet from a sharp corner. This court held that plaintiff was guilty of contributory negligence. The court said:
“A person soliciting permission or accepting an invitation to ride as 'guest’ may assume the host will drive with due care. Suppose the host gives such attention to the speed at which he is driving that he is guilty of slight negligence. Instead of driving with more care, he increases speed until he becomes guilty of ordinary negligence. He then increases speed until he is guilty of gross negligence. As the rate of speed increases, danger increases, and need of the guest to take measures for his own safety becomes more and more imperative. If he does nothing, his negligence is of the same grade as that of the driver’s negligence, and he cannot recover.” (p. 130.)
The case is of interest to us here because plaintiff in this case realized his danger every minute he was in the car with defendant.
Some authorities from other jurisdictions are cited by counsel, but the rule announced in the cases heretofore cited has been so closely followed by this court that the cases from other jurisdictions are not deemed important.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for the balance claimed to be due on a note given plaintiff by defendant for the purchase of a combine and to foreclose a chattel mortgage on wheat given to secure its payment. The defense was that the purchase of the combine had been rescinded because of the failure of the machine to work properly. At the trial defendant assumed the burden of proof. Plaintiff’s demurrer to defendant’s evidence was overruled. Plaintiff stood on its demurrer, and judgment went for defendant. Plaintiff has appealed.
Appellant argues its demurrer to the evidence should have been sustained, for the reason (1) that it failed to establish a mutual rescission, (2) or a consideration for the rescission, (3) that it failed to establish agency on the part of anyone to represent plaintiff, or the authority of the alleged agent to bind plaintiff to an agreement to rescind, and (4) that it failed to show defendant offered to restore, or did restore, the status quo.
The record before us may be summarized as follows: Defendant and his sons are growers of wheat in Smith county. In March, 1937, defendant went to the Bonecutter-Diamond Chevrolet Company at Smith Center, local agents of plaintiff for the sale of its harvesting machinery, and hereinafter called “the dealers,” to purchase a combine. The dealers had him execute a written order for a 12-foot Gleaner Baldwin combine, recommended as being suitable for the work defendant wanted the machine to do. The payments were to be |65 cash for freight, $750 July 10, 1937, and $725 July 10, 1938. The warranty and agreement constituting part of the written order contained the following:
“The purchaser agrees to give each machine a fair trial. ... If it then fails to work properly and prompt notice is given by registered letter to the company at Independence, Mo., with return receipt requested, the seller will send a man within a reasonable time to put it in order, the purchaser agreeing to render friendly assistance. If it still fails to work properly and the purchaser promptly returns it to the seller at the place where delivered, the seller will refund the amount paid, which shall constitute a settlement in full. Retention of possession or continued use shall constitute an acceptance and satisfaction of warranty and further assistance rendered the purchaser shall not be considered a waiver of this provision.”
The machine was delivered at defendant’s request to his son’s farm on a Saturday, about June 20, and set up. Defendant paid the $65 freight and executed his note for $1,475, payable in two payments, and secured the same by a chattel mortgage on the machine and a separate chattel mortgage on his wheat. Defendant started to use it the next Wednesday. The engine heated, developed insufficient power to operate the machine, and they had to stop many times the first afternoon. The next day it worked no better; the engine jerked; U-bolts broke. Defendant went to the dealers, told them the trouble he was having, and got new U-bolts and put them in. Still the machine did not work; the engine was not functioning well; U-bolts continued to break and be replaced; there was trouble with the chain carrier and other working parts of the machine. These troubles were reported to the dealers, and defendant had Benny Durrett, of Lebanon, who transacted some of his business, send a registered letter to the seller, advising it of the troubles. Experts were sent and worked on the machine, trying to discover and repair the defects, but were unable to do so. Defendant went to the dealers and said he would return the machine, but was asked not to do so, and was told another expert would be sent, and defendant permitted that to be done. He was sent, and worked on the machine, but was unable to get it to work properly. At some time, not clearly shown by the record, defendant sent his check for $750 for the 1937 payment, but because, with the aid of the experts, the machine could not be made to work properly he stopped payment on the check, and so advised the dealers. After working with the machine about a month plaintiff installed a new engine in the machine. After that it worked better, but never functioned properly. Finally plaintiff sent a Mr. Brown to defendant to see what settlement could be made. He offered on the seller’s behalf to accept a payment for that year of $200; said all of it would be used in putting in new parts and rebuilding the machine, but that no warranty of proper performance would be given. D'efendant declined to accept the proposition; the machine had given too much trouble; he wanted to turn it back. Brown then said he would come and get it, and did so the next day.
It developed that after taking the machine back, and without notice to defendant, plaintiff sold the machine under its chattel mortgage covering the machine. This suit was upon the note for $1,475, less the credit of the proceeds of the resale of the machine, and to foreclose the chattel mortgage on the wheat.
Appellant argues what evidence is necessary to establish mutual rescission, or a mutual agreement to rescind, the necessity of a consideration for such an agreement, and that the party seeking to rescind put the other in statu quo, under the general rules pertaining to those questions, citing pertinent sections from Corpus Juris and cases dealing with those questions. We find it unnecessary to analyze these arguments and authorities carefully, although this might lead to the same result, for here the parties had an agreement in writing, made between them as a part of the contract for the purchase and sale of the machine, by which plaintiff agreed to take the machine back if after a fair trial and an opportunity for its experts to work on the machine it still failed to work properly. Hence, it is not necessary to have a new agreement for rescission, or any new consideration for such an agreement.
By this written agreement between the parties defendant was to give the machine a fair trial. The evidence discloses that he did so, and there is no contention to the contrary. If it failed to work property' — and there is an abundance of evidence it so failed — defendant was to notify plaintiff. He personally notified the dealers and had notice sent plaintiff. In such a case plaintiff was then to send a man to put the machine in order. It did send a man; in fact, two or more were sent, to put the machine in order, but they were unable to do so. By their agreement defendant could then return the machine, and plaintiff should have refunded the amount paid, which in this case means that it should have turned back the notes and released the chattel mortgages defendant had executed, and their agreement provides that this “shall constitute a settlement in full.” So, here was a complete agreement to rescind under conditions which the evidence discloses arose.
There is some argument on behalf of appellant that defendant did not return the machine promptly after it was discovered that it failed to work properly. Naturally, the word “promptly” as used here means with reasonable promptness under the circumstances. Here the evidence shows that defendant offered to return the machine and was asked by plaintiff, or by the dealers in its behalf, not to do so then, but to let plaintiff send other men to put the machine in order, and that request was granted. Hence, such delay as there was in returning the machine was brought about by plaintiff, and it cannot now be heard to complain.
Appellant argues that the extent of Brown’s agency to represent the plaintiff, or that he had authority to enter into a binding agreement of rescission, was not shown by the evidence. It had been alleged in the answer that Brown was the general agent of plaintiff. The reply contained no specific denial of this allegation, but did contain a general denial, and was verified on belief by plaintiff’s attorney. We pass the question whether that put the allegation of agency contained 'in the answer in issue. The evidence clearly shows that Brown represented appellant in some capacity, that he did take the machine, and that plaintiff accepted or acquiesced in what he did in taking the machine. It is true that the contract of employment between Brown and the plaintiff was not shown so as to establish definitely the extent of his authority to act for plaintiff. But Brown needed no authority to make an agreement of rescission; that agreement had already been made by the plaintiff in writing when the machine was sold, if the conditions as stated arose.
Now, much more might be written. The authorities cited by counsel could be analyzed and applied, or distinguished, but we regard it as being unnecessary to do so. It seems clear to us that the judgment of the trial court should be affirmed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This was an action to recover a part of the proceeds of certain insurance policies. A jury trial resulted in judgment for plaintiff. The principal defendant has appealed.
The facts may be summarized as follows: Thaddeus Hulsey, hereinafter called the assured, was an employee of Swift & Company for many years. Under a group-insurance plan of that company he took out two policies of $2,000 each in the Aetna Life Insurance Company and named as his beneficiary his wife, Maggie Plulsey. Thereafter, and in October, 1928, Maggie Hulsey died, and in April, 1930, the assured had his niece, Ruth Hulsey, designated as beneficiary. In December, 1930, the assured married, and soon thereafter had his second wife, Mattie Hulsey, designated as beneficiary. Mattie Hulsey died November 11, 1933, and on December 20, 1933, the assured had the plaintiff, Dolly Tivis, his cousin, designated as beneficiary for one-half of the proceeds of the policies, and William Hulsey, Jr., his nephew, for one-half. On January 3, 1935, the assured married again, and on January 16, 1936, had the beneficiaries changed in his policies, naming his third wife, Daisy Hulsey, defendant here, as beneficiary for one-half the proceeds, his nephew, William Hulsey, Jr., for one-fourth, and his stepdaughter, Magdalene Reeves, for one-fourth. These were the beneficia ries named in the policies when the assured died, February 17, 1936. Daisy Hulsey collected $2,000 of the proceeds of the policies, of which $930.36 was on deposit in a bank when this action was brought, and this fund has been impounded by a court order pending the outcome of this action. William Hulsey, Jr., and Magdalene Reeves each received $1,000 of the proceeds of the policies.
Plaintiff brought this action against the three last-named beneficiaries. As a basis for her claim she alleged that her home is in Wichita, that beginning in 1927 and continuing until the fall of 1934, at the request of the assured, she went to his home at Kansas City repeatedly and remained there,' doing his housework, mending his clothes, preparing his meals, and waiting upon him, and on many occasions would take the assured, who was an aged man, to her home at Wichita, where she would provide him with food, lodging and the conveniences of life; that in December, 1933, the assured agreed with plaintiff that he would name plaintiff as a beneficiary in his insurance policies to the extent of $2,000, and that he would not cause the beneficiaries to be .changed to any other person; that this was to be in payment of the many services performed for the assured by plaintiff; that soon thereafter the assured did name as beneficiary the plaintiff, and that the designation of plaintiff as such beneficiary remained in full force and effect until January 16, 1936, when some person, unknown to plaintiff, caused the names of the beneficiaries to be changed to Daisy Hulsey, William Hulsey, Jr., and Magdalene Reeves, in violation of assured’s agreement with plaintiff; that the agreement was oral and relied upon by plaintiff; and that by reason of the facts stated plaintiff has been damaged in the sum of $2,000. It was alleged- that each of the defendants was insolvent and that a part of the proceeds was in a certain bank. The prayer was for judgment against defendants in the sum of $2,000 and that the money in the bank be applied upon the judgment.
A demurrer to the petition was overruled. The answer of Daisy Hulsey admitted the policies were issued; alleged she married the assured in January, 1935, and lived with him until his death, at which time she was a beneficiary named in the policies for one-half the proceeds thereof; generally denied other allegations of the petition, and specifically denied plaintiff performed any services for the assured from 1927 to 1934, as alleged, and pleaded the provisions of the policies to the effect that proceeds were payable to the bene ficiaries last named therein, and giving the assured the right to change the beneficiaries at any time under and subject to the terms of the policies.
It is not necessary to review the evidence further than to state that there was an abundance of competent evidence to sustain the allegations of the petition respecting the contract with the assured in December, 1933, and the services she performed for him both before and after that date. On this appeal there is no contention that such evidence was insufficient. There was evidence also tending to show that after her marriage to the assured appellant exerted herself to break the friendly and contractual relations between plaintiff and the assured, and succeeded in doing so to the extent that eventually he changed the beneficiaries in his policies from plaintiff to appellant, and that he did this against his wish and to his regret, later expressed. At the trial it was admitted the fund impounded in the bank was part of the proceeds of the policies received by Daisy Hulsey, and judgment was rendered against her for $2,000 in favor of plaintiff, and that the fund in the bank be applied upon the judgment. The action was dismissed as to the other defendants.
Defendant’s demurrer to the evidence was overruled, also her motion for a directed verdict and her motion for a new trial. All these rulings are complained of here, but since they raise substantially the same legal questions, those questions will be treated together.
Although made under more subdivisions, appellant’s argument is to this effect: Under the terms of the policies the assured had the right to change the beneficiary, and payment was to be made to the last-named beneficiaries; that under such a policy the beneficiary named therein has no vested interest in the policy prior to the death of the assured. Many authorities are cited in support of these propositions, and they may be conceded to state the general rule. It is further argued that if the assured breached his contract with plaintiff her remedy was an action for damages for such breach, and it is argued that under our statute (G. S. 1935, 40-414, and cases construing it) the proceeds of the policies were exempt from the payment of claims of this character against either the assured or the beneficiaries last named in the policies.
We are not concerned here with whether the plaintiff might have maintained an action against the assured for a breach of the contract. That question is not before us. We are concerned here with whether plaintiff can recover against defendant in this action. In this case the insurance company had paid the amount due on the policies. No one has any controversy with it; it is not a party to this action.
The action is between rival claimants of the proceeds of the policies. In such a case, where rights are claimed by reason of a contract made with the assured, the contest involves the relative rights of the claimants and may become one purely of equitable cognizance and determination. (Brown v. Modern Woodman, 97 Kan. 665, 156 Pac. 767.) A vested interest in a policy may be acquired by contract not to change a beneficiary, made upon valuable considerations. (Sipe v. Sipe, 102 Kan. 742, 173 Pac. 13.) In such a case the proceeds of the policy become a trust fund, which may be followed by the rightful claimant. (Exchange State Bank v. Poindexter, 137 Kan. 101, 19 P. 2d 705.) Here the evidence established that the agreement was made as alleged by plaintiff, and also showed a valuable consideration therefor. The result is plaintiff then acquired a vested interest in the policies, and plaintiff was entitled to follow the proceeds thereof and recover them from one who obtained them, at best, as a mere gratuity. Other cases sustaining these views are: Savage v. Modern Woodman, 84 Kan. 63, 113 Pac. 802; Munroe v. Beggs, 91 Kan. 701, 139 Pac. 422; Gaston v. Clabaugh, 106 Kan. 160, 186 Pac. 1023; Kansas City Life Ins. Co. v. Wilkinson, 125 Kan. 305, 264 Pac. 37.
We see nothing in this case to take it out of the rule announced and applied in these cases.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for divorce. Judgment was for plaintiff. Defendant appeals.
Plaintiff was the wife. In her petition she charged that defendant was guilty of gross neglect of duty and extreme cruelty. In his answer defendant charged plaintiff with extreme cruelty and gross neglect of duty, and prayed for a divorce.
The court heard the evidence and found that the defendant was guilty of extreme cruelty and gross neglect of duty, and granted plaintiff a divorce. There were no children, and defendant does not appeal from that part of the decree having to do with the division of property.
The argument of defendant is that the judgment is not sustained by the evidence. The plaintiff testified that they were married on August 16, 1934, and lived together as husband and wife until February 7, 1938; that during that time defendant had not contributed over $25 to her support; that she paid for the groceries, the rent and the gas and light bills, and paid for her clothing; that she operated a beauty parlor from which she earned an average of $73.60 a month, and she used all this for living expenses; that she asked defendant to contribute toward her support but he said he was paying taxes, paying for bonds and paying interest on what he had; that he was jealous; never made friends and did not want her to go any place; did not want her to go see her mother; when her girl friends came to see her he did not make them welcome; that he accused her of having men friends; that he was cross if she did not come home at noon; that when they were married she borrowed $1,200 on her insurance, and she loaned defendant this $1,200 and $350 additional soon after they were married. There was more evidence along the same general lines. To be sure, the defendant took the stand and denied some of this testimony. The trial court, however, had a better opportunity to determine who was telling the truth than this court has. A divorce case is no different from any other case. When the finding of a trial court is based on substantial, competent evidence, this court will not disturb this finding on appeal. In this case the trial court made extensive findings of fact. One of these findings was as follows:
“The court further finds that the defendant was guilty of cruelty in that he was continuously finding fault with her actions, cursing and threatening her friends, and wrongly insinuated she was having questionable relations with other men; that he not only failed to support her, but depended and relied upon her for his support.”
It afforded a good foundation for the conclusion that plaintiff was entitled to a divorce.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for a declaratory judgment as to the validity of a zoning ordinance of the city of Pratt, a city of the second class having a commission form of government. Plaintiff prays the ordinance be adjudged void, and in the alternative that it be interpreted, and that it be adjudged plaintiff's building was not constructed in violation thereof. Issues were joined, and after a hearing the court held the ordinance to be void, for two reasons: (1) That no notice, as required by law, was given by the planning commission of the time and place for public hearings prior to the making of its final report on the ordinance to the city commission; and (2) that the city had no power under the state zoning law to establish building set-back regulations, as provided in the ordinance. Defendants have appealed.
The facts pertinent to this appeal may be stated as follows: On October 27,1927, the defendant city enacted an ordinance, No. 214, dividing the city into zones, or districts, for the purpose of regulating and restricting the location of trades, industries and commercial enterprises, and the location, erection, alteration and repair of buildings and other structures designed for a specific use, and regulating the area of the front, rear, side yards, and other open spaces about buildings; limiting the height of buildings and other structures thereafter constructed; limiting the density of population, and providing a penalty for the violation of the ordinance. It divided the city into four use districts — residence districts, neighborhood business districts, business districts, and industrial districts, the boundaries of which were set out; and it provided that thereafter no building should be erected or structurally altered unless it conformed to the provision of the ordinance pertaining to buildings in the district in which it was situated. With respect to the location of buildings in the residence district it provided that “the depth of the front yard, measured back from the street line, shall not be less than thirty (30) feet,” with an exception not here important.
The city also had an ordinance regulating the construction of buildings, the issuance of permits therefor, providing for a building inspector, prescribing his duties, authorizing him to stop work on any building being constructed not in harmony with the ordinance, and providing for an appeal from his orders or rulings.
In June, 1937, plaintiff owned a fifty-foot lot, facing east, on Oak street, in that part of the city zoned as a residence district, on which he desired to construct a building for residence purposes. He caused an application to be made to the building inspector for a permit to construct the building. This showed the location of the building to be set back thirty feet from the front line of the lot, and otherwise to conform to the ordinance. The permit was granted. In constructing the building an extension was being built some distance to the north and about six feet east of the structure as shown on the application for the permit. This had the effect of reducing the front-yard set-back distance to about twenty-four feet. The building inspector observed this and ordered the work on the extension to be stopped. No appeal was taken from his order. Instead of doing so plaintiff brought this action.
We now take up the questions ruled upon by the trial court in holding ordinance No. 214 to be void, from which the appeal was taken. The first of these is: Does the evidence sustain the finding that no notice, as required by law, was given by the planning commission of the time and place for public hearings on the ordinance prior to the making of its final report to the city commission? The pertinent portion of the statute on this point reads 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 district nor impose any regulations until after the final report of such city planning commission. . . .” (G. S. 1935,12-708.)
The only evidence produced by plaintiff on this point was from the minutes of the meetings of the planning commission and of the city commission. These disclosed that the city, by ordinance, created a planning commission April 1, 1926. The first minutes of the planning commission offered in evidence were of its meeting December 21, 1926, at which time Harold D. Smith, consultant for the League of Kansas Municipalities, was present and made an estimate of the cost of preparing the zoning ordinance and maps for the city, and by vote of the commission was instructed to proceed with the work. At this meeting on January 21, 1927, the proposed zoning ordinance, together with maps, was presented, and it was decided that one map be placed in the window of the First National Bank and the other in the Chamber of Commerce window, and that each member of the commission study a copy of the ordinance and be prepared to discuss the same at the next regular meeting. This appears to have been on April 1,1927, at which time the mayor and two of the city commissioners were present, and .the ordinance was gone over quite thoroughly and suggested changes made, and the meeting was adjourned to April 9, 1927. At that meeting the proposed ordinance was gone over and suggested changes decided upon, and a resolution was passed recommending to the mayor and city commissioners the passage of the ordinance, and that it meet and authorize the publication of notices and set the date and place for public hearings upon the proposed ordinance. On May 14,1927, a meeting was had, at which citizens were present, and a discussion was had as to whether certain blocks should be placed in the business zone, and other suggestions were made as to placing certain property in the residence section, and the secretary was instructed to notify certain citizens to get their views with respect to the zoning of property. The meeting was adjourned to May 17, at which time there was a lengthy discussion with respect to the zoning of certain blocks, and the secretary was instructed to notify all property owners within the block to be present at an adjourned meeting to be held May 26, 1927. The minutes of the meeting on that date show that a number of persons were present, and at that time some changes were made in the proposed ordinance on the motion of citizens present. Finally, the drafting of the proposed ordinance was completed and it was reported to the city commission, and on August 18, 1927, the ordinance was enacted by the city commission, the minutes showing all of the votes of the commissioners to be in the affirmative. A mistake was made in the publication of the ordinance as then enacted. The map of the city, showing the districts as zoned, and which was a part of the ordinance, was not published. Thereafter, and on October 27, 1927, the ordinance was again enacted by the city commission and was duly published. No contention is now made that there was any irregularity in the final enactment and publication of the ordinance.
From this record it cannot fairly be said there were no public hearings respecting- the proposed ordinance by the planning commission. Several of its meetings were attended by the public, some of whom made suggestions or motions, which were adopted, for changes in the proposed draft. More than that, apparently when it was thought persons not present were specially interested in the zoning of certain blocks in the business or residence districts the secretary was instructed to notify them to be present at an adjourned meeting to be held on a date named. The time of most of these meetings was fixed in advance. All meetings were held in the rooms of the Chamber of Commerce, hence there is no room to quibble over the time and place of the meetings. Plaintiff - suggests no prejudice to him because of the lack of meetings, or of notices of meetings of the planning commission. From all that appears in this record he may have known all about the meetings; indeed, he may have attended them. In support of the court’s ruling on this point, appellee points out that the minutes of the city commission offered in evidence do not show any direction by the city commission to the planning commission of the kind of notice it should give of its meeting. This point is not fatal, for several reasons: First, it is not definitely established that the minutes of the city commission offered in evidence were all of the minutes on that point. True, a witness testified that he looked through the minute book and that the minutes offered in evidence were all he found on that point; but this is not conclusive that he found all there were in the book. Second, the minutes may not have been kept fully and completely as to all details of the business transacted by the city commission. Indeed, taking the record as a whole, there is evidence that was not done; hence, directions may have been given by the city commission to the planning commission which were not entered in the minutes. Third, 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. The evidence discloses that the mayor and at least two of the commissioners were present at several of the meetings of the planning commission when the ordinance was being discussed. Obviously, they were familiar with the meetings being held and the notices of the meetings which were given. There is no intimation in this record that either the city commission or the planning commission was attempting secrecy in the framing of this ordinance. Indeed, the contrary appears. There was some public notice given at an early meeting. The meetings were adjourned from time to time to specific dates, and specific notice appears to have been given to any and all not present thought to be especially interested. We find no reason to say that these meetings, or the notices of them, were either inadequate or unlawful.
Since the ordinance was duly passed and published, there is a strong presumption of law that precedent legal requirements were conformed to. (Downing v. City of Miltonvale, 36 Kan. 740, 14 Pac. 281; State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010; State, ex rel., v. City of Harper, 94 Kan. 478,146 Kan. 1169; State, ex rel., v. City of Hutchinson, 109 Kan. 484, 207 Pac. 440.)
In view of all of the matters hereinbefore discussed, it is clear that plaintiff’s showing on the lack of public hearings before the planning commission was insufficient as a basis for holding that the ordinance was void.
The other point from which defendants appealed was the holding of the trial court that the city had no power under the state zoning law to establish building set-back regulations as provided in the ordinance. The pertinent statute reads:
“That the governing body of any city is hereby authorized by ordinance to divide such city into zones or districts, and regulate and restrict the location of trades and industries, and the location, erection, alteration and repair of buildings designed for specific uses, and the uses of the land within each district or zone.” (G. S. 1935, 12-707.)
It will be observed the statute authorizes cities by ordinance to regulate and restrict “the location ... of buildings designed for specific uses.” In Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99, this statute was held valid, as was also an ordinance passed by virtue of it, which ordinance, among other things, contained restrictions and regulations concerning the set-back of buildings in the residence districts. It has been cited in other cases as supporting the view that a provision of that kind in such an ordinance, under a statute such as ours, is valid. There was some conflict of authorities in state courts on this point prior to the decision of the supreme court of the United States in Gorieb v. Fox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1225. There an ordinance of the city of Roanoke, Va., predicated upon a statute of that state, contained restrictions and regulations pertaining to the set-back of a building in the residence district. The state supreme court had held the statute and ordinance valid (Gorieb v. Fox, et al., 145 Va. 554, 134 S. E. 914), and on certiorari to the supreme court of the United States that judgment was affirmed. In the opinion it was said:
“It is hard to see any controlling difference between regulations which require the lot owner 'to leave open areas at the sides and rear of his house and limit the extent of his use of the space above his lot and a regulation which requires him to set his building a reasonable distance back from the street. Each interferes in the same way, if not to the same extent, with the owner’s general right of dominion over his property. All rest for their justification upon the same reasons which have arisen in recent times as a result of the great increase and concentration of population in urban communities and the vast changes in the extent and complexity of the problems of modern city life. . . . State legislatures and city councils, who deal with the situation from a practical standpoint, are better qualified than the courts to determine the necessity, character, and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts unless clearly arbitrary and unreasonable. . . .
“The courts, it is true, as already suggested, are in disagreement as to the validity of set-back requirements. .An examination discloses that one group of decisions holds that such requirements have no rational relation to the public safety, health, morals, or general welfare, and cannot be sustained as a legitimate exercise of the police power. The view of the other group is exactly to the contrary. In the Euclid case (Euclid v. Ambler Co., 272 U. S. 365, 71 L. Ed. 303, 47 S. Ct. 114), upon a review of the decisions, we rejected the basic reasons upon which the decisions in the first group depend and accepted those upon which rests the opposite view of the other group. Nothing we think is to be gained by a similar review in respect of the specific phase of the general question which is presented here. As to that, it is enough to say that, in consonance with the principles announced in the Euclid case, and upon what, in the light of present-day conditions, seems to be the better reasons, we sustain the view put forward by the latter group of decisions.” (pp. 608, 609.)
See, also, Bouchard v. Zetley, 196 Wis. 635, 220 N. W. 213; Nusbaum v. Norfolk, 151 Va. 801, 145 S. E. 259; Weiss v. Guion, 17 F. 2d 202; Thille v. Board of Public Works, 82 Cal. App. 187, 255 Pac. 294; Sampere v. City of New Orleans, 166 La. 776, 117 So. 827; Bancroft v. Building Commissioner, 257 Mass. 82, 153 N. E. 319; Slack v. Inspector of Bldgs. of Wellesley, 262 Mass. 404, 160 N. E. 285; State, ex rel. McKusick, v. Houghton, 171 Minn. 231, 213 N. W. 907.
We think this authority puts to rest any question about the validity of the ordinance with respect to the set-back provision and forces the conclusion that the ordinance was not void for that reason.
Counsel for appellee, in support of the view that reasons other than those given by the trial court justified its holding that the ordinance was void, has made an extensive, intricate and ingenious argument respecting our original zoning statute (Laws 1921, ch. 100) and its amendments (Laws 1925, ch. 100; Laws 1927, ch. 110), from which he reaches the conclusion that the statute as it now stands (G. S. 1935, 12-707) is invalid. We have carefully considered all counsel has said on that question and find the point not to be well taken. We consider a detailed statement and analysis of the several suggested phases of the question to be unnecessary.
Since the trial court held the ordinance void, it did not interpret the ordinance, nor pass upon the question raised by the pleadings, as to whether plaintiff’s building had been constructed in violation of it. The judgment of the trial court holding the ordinance void should be reversed with directions to proceed to determine such other questions as are in the case. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to enjoin the erection and maintenance of dikes along the Republican river in Cloud county, and from a judgment denying relief as prayed for, the plaintiffs appeal. The appellees have filed a cross-appeal from that portion of the judgment adjudging that the Buffalo Drainage District was not legally incorporated, and also from a ruling on a motion to retax the costs.
The appellants’ specifications of error are that the trial court erred as a matter of law in concluding that plaintiffs were not entitled to injunctive relief and in not requiring removal and abatement of the dikes of which complaint is made. Under the circumstances we are concerned only with the findings of fact as made by the trial court and its conclusions of law based thereon.
For. our purposes the twenty-eight findings of fact may be summarized and quoted as follows: The Republican river flows through Cloud county in township 5, range 4, west, cutting the southwest corner of section 4 and intersecting sections 9, 10, 11 and 14. The river forms the south and west boundary line of Sibley township, wherein the plaintiffs reside, and the north and east boundary line of Buffalo township, wherein the defendants reside. At the time the lands were surveyed by the United States government, the lands bordering the river were meandered along the banks, and the irregular portions of the sections were designated as lots and the acreage noted on the survey. The river has an average width of 450 feet,-the banks are of sandy loam, and the fall of the river is from four to six feet per mile. At the points in controversy the river flows south into section 9, and when near the southern line turns generally east, and after proceeding well into section 10, it turns northeasterly until near the northeast corner, when it turns abruptly southeasterly into section 11 and then flows almost directly south for over a mile into section 14. In the northeast part of section 10 the south bank is high and the river is narrower. Generally the lands of plaintiffs and defendants are what is called “first bottom” lands, and when the river overflows a considerable portion of the land is covered by water. After the flood of 1903 the landowners on the south side of the river, by agreement, constructed a dike on the south bank of the river to protect their lands from overflow water. In 1912 another agreement was made and another dike was erected, because the first dike had been damaged and destroyed by floods. At different times work was done on the dike, and after the 1915 flood there was reconstruction and repair. The river overflowed in 1869, 1887, 1894, 1899, 1902, 1903, 1911, 1915, 1917, 1923, 1926, 1932 and 1935. In 1917, 1923 and 1926, at least, the river didn’t overflow the south side. Some of the overflows were caused by an ice jam where the bridge of the Missouri Pacific Railway Company crosses the stream. The railroad runs almost due north and south and crosses the river just west of the east line of section 9.
“13. The' first bottom land on both sides of the river is approximately on the same level. In time of flood the water first leaves the Republican river at some point north of plaintiffs’ land in Republic county. Before this floodwater which has left the banks at a point farther up the river has reached the plaintiffs’ land, the water comes out of the river at a low place on the east bank near where the section line between sections 4 and 9 intersects the bank. This floodwater mostly follows a low place across section 9 through a trestle bridge under the railroad, then on eastwardly through what was formerly called Lake George to find its way back into the river. The floodwater, which has come from a point farther up the stream, when it reaches this neighborhood follows partly the same course, but some portions of it and the other water which has broken out at the low place mentioned, and which does not go out under the trestle bridge, flows on south along the west side of the railroad and thus into the river.
“15. At two or three different times when the river' was high, water has been observed standing or flowing on the north side of the river across the land of some of the plaintiffs, before it was out of the banks on the south side of the river far enough to reach the base of the dikes as they stood at such times.
“16. At different times when the river has been high the floodwater which comes out on the south side of the river has gone over the dikes, and during the. flood of 1935 the dikes were greatly damaged, and have since been reconstructed. . . . [The present dikes are more substantial than the former ones and in general are not so high.]
“18. Before there were any dikes on the south side of the river floodwater came out of the river at a point near where the Missouri Pacific Railroad bridge is now located, and flowed in a southeasterly direction across section 15 to the bench between the first and second bottoms, then along this bench mostly in an easterly direction until it reentered the river.
“19. Some sort of a dike has been maintained on the south side of the river from 1905 until the present time, and after injury from floods has either been repaired or newly constructed promptly thereafter in much the same location as the present dike.
“20. As now constructed, and starting with the northwest end, the dike for 3,200 feet averages 4 feet higher than the river bank. For the next 1,200 feet the dike is 1 foot higher than the bank. For the next 2,800 feet it runs four and five feet higher than the bank. For the next 800 feet it is 4 feet higher and less. For the last 800 feet the river bank at some points is higher than the dike, but for the most part the dike is 3 feet and less higher than the bank. The new dike generally is not so high as the old dike. The river banks on either side of the river paralleling the dike as it now stands are approximately the same level.”
The 1935 flood was the highest within the memory of the witnesses. Before the present construction was undertaken there were conferences between some of the plaintiffs and some of the defendants.
“22. . . . Said defendants knew that plaintiffs were objecting to the construction of the dike, but the construction was proceeded with. The present suit was not brought by plaintiffs until May 12, 1937, at which time most of the construction work had been completed. The only remaining work to be done at that time was the dressing up of the banks and other similar work.”
According to the government survey, lots 9 and 10 contain 46.10 acres. In October, 1935, a petition for organization of Buffalo drainage district was filed with the board of county commissioners. All proceedings were regular except as to description of boundaries. A sample description was:
“Approximately 33 acres, lots 9 and 10, section 9, township 5, range 4 west of the 6th P. M., belonging to Anna Williams estate.”
Later and in September, 1937, the board adopted a resolution to clarify and supplement, its effect being that the intent was to include in the boundaries of the drainage district:
“Various sections and subdivisions of sections therein described which were in the first river bottom and which territory has well-defined boundaries; and that the territory intended by this board and its individual members to be incorporated as said drainage district was the territory so understood to be described in the said petition and notice.
“26. The effect of the maintenance of the dike in question has not yet been observed, as no flood has occurred since its construction, but the court concludes that it will prevent floodwater which leaves the bank of the river on the south side from passing across the defendants’ land until such time as a flood gets sufficiently high to pass over or through the dike. The result, so far as the north and east side of the river is concerned, will be that the water flowing over the lands of the plaintiffs will be deepened, that the water will not leave plaintiffs’ land as rapidly as it otherwise would if there were no dikes on the south and west bank, and more water will be forced through the bottleneck spoken of heretofore, causing more erosion of the bank at that point.
“28. Dec. 14, 1935, the plans of the district for dike construction were approved by the state engineer.”
As a matter of law, the court concluded:
“2. The boundaries of the district attempted to be incorporated by the board of county commissioners are insufficiently identified and there is nothing in the proceedings which described them so that they can be accurately located; the incorporation of the district is invalid.
“3. Riparian landowners may maintain dikes along the banks of a stream to repel floodwaters for the protection of their own land so long as they do not encroach upon the natural bed of the stream and do not maintain them for the purpose of injuring the property of others, and so long as they are maintained in such a manner as not to do substantial injury to the property of others on the opposite bank; this right to repel floodwaters is a reciprocal right.
"4. The defendants have not acquired a prescriptive right to maintain their dikes, since the flooding of plaintiff’s land is not continuous, such flooding only occurring at intervals of years.
“5. While plaintiffs might perhaps have an action for damages if they sustain injury as a result of flood and the maintenance of defendants’ dikes, since they did not bring this action until the dikes in question were practically complete, they are not in a position to ask injunctive relief.
“6. The injunction should be denied.”
Motions to make additional findings and for a new trial were denied and judgment was rendered in accordance with the above conclusions.
Thereafter plaintiffs filed a motion to retax the costs. The court sustained the motion to the extent of disallowing witness fees claimed by one plaintiff and by five defendants.
It may be well to here take note of the fact that in the briefs there is 'some discussion of the evidence and citations of authorities on matters which are precluded by the trial court’s findings of fact concerning which there is no specification of error, the specifications being only that the trial court erred as a matter of law. There is also some argument as to whether appellees have a prescriptive right to maintain the dikes. On that issue the trial court found for the appellants, so they may not complain, and the appellees, so far as the record shows, failed to complain in the trial court, and failed to assign such a ruling as error on their cross-appeal, so they may not complain. The matter is not properly before this court and will not be discussed.
We first notice the cross-appeal from the judgment that the Buffalo drainage district was never validly incorporated. As abstracted, there is no showing as to the particular statute under which the proceedings for incorporation were had, but we assume it was under the Laws of 1905, chapter 215, as amended, now appearing as G. S. 1935, 24-401 et seq., which is applicable. Under that act, it is required the lands to be incorporated in the district must be defined in the petition for incorporation “by sections or subdivisions of sections” (G. S. 1935, 24-403). Upon proper notice, a hearing is held by the board of county commissioners, and upon proper finding it shall declare the territory described and the inhabitants within such bounds to be a public corporation under the designation in the petition (G. S. 1935, 24-405). There are other statutory provisions which need not be specifically noticed. The petition for incorporation mentioned nineteen tracts, and over three-fourths of them had descriptions as indefinite as the one quoted above. While the statute makes no provision for a clarifying or supplementing order, finding or resolution, such as was made here, it is apparent the board became aware that the original petition failed to sufficiently describe the lands included in the drainage district ordered incorporated. And even that resolution left much to conjecture, for while the “first river bottom” might have well-defined boundaries, there was nothing in the original petition, nor is there anything in the resolution, to show what or where they were located. Nor is there anything to indicate that the original petitioners intended to so define the lands to be included in the drainage district. The purpose of the statute is to include lands subject to overflow, etc., and to make an order that does not definitely describe such lands can hardly be said to be comformable to the statute. In any event,'the original petition and the order of incorporation based thereon were lacking in certainty of description, and under the reasoning of State, ex rel., v. Drainage District, 116 Kan. 291, 226 Pac. 478, the order of incorporation was a nullity, and the trial court was correct in its ruling.
The principal question for discussion is whether the defendants as individuals had a right to build and maintain dikes on one side of the river, the effect of which might be to flood the lands of plaintiffs on the other side of the river. After a somewhat extended presentation tending to show that the Republican river is a navigable stream and that ownership of lands bordering it extend only to the bank of the stream — a proposition we are not called upon to decide —appellants direct our attention to a rule that a riparian owner has no right to construct a levee along the normal bank of a river to protect lands against overflow (16 A. L. R. 629) and to Hofeldt v. Elkhorn Valley Drainage District, 115 Neb. 539, 213 N. W. 832, 53 A. L. R. 1174, and authorities cited therein, to the general effect that an adjacent owner may not build dikes to repel overflow water, and that a stream at flood stage should be permitted to run where it naturally would run, and argues therefrom that any levee or dike built any place within the limits of where floodwaters would ordinarily run is a nuisance and should be abated, or, put another way, that no levee or dike may be built inside the high-water banks.
In Clements v. Phoenix Utility Co., 119 Kan. 190, 237 Pac. 1062, the court considered the right of the defendant to erect a railroad grade which acted as a dike along the Neosho river. It was there held:
“1. Water which overflows the banks of a river at the time of an ordinary freshet or overflow and then flows over the lowlands or valley with the general course of the current of the stream, returning to the stream or its outlet farther down its course, is deemed a part of the water of the stream — following Riddle v. Railway Co., 88 Kan. 248, 128 Pac. 195.
“2. The owner of property on the bank of a watercourse has the right to build levees or other barriers to confine the water to the channel of the stream, but he cannot build and maintain a structure which will change the channel or project the water against or upon the property of another, either on the same side of the stream with him or the opposite side, in such a way as will result in substantial injury to such property, without liability therefor' — following Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631.
“3. The owner of property on the bank of a watercourse, in making improvements thereon, need not make provision for unusual or extraordinary floods which an intelligent person, knowing the history of the stream, could not reasonably have foreseen.
“4. An ordinary flood, in the sense here used, is one the repetition of which, though at irregular intervals, might by the exercise of ordinary diligence in investigating the character and habits of the stream, have been anticipated. An extraordinary flood is one of those unexpected visitations whose comings are not foreshadowed by the usual course of nature and whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight.” (Syl. ¶¶ 1,2,3,4.)
In the opinion the court commented on Cubbins v. Mississippi River Comm’n, 241 U. S. 351, 60 L. Ed. 1041, where it was contended no structures such as dikes or levees could be built between the high-water banks, saying of the United States supreme court:
"It refused to take the view argued by the complainant, ‘that the valley through which the river travels, in all its length and vast expanse, with its great population, its farms, its villages, its towns, its cities, its schools, its colleges, its universities, its manufactories, its network of railroads — some of them transcontinental — are virtually to be considered from a legal point of view as constituting merely the high-water bed of the river’ (p. 368), and concluded, from all the circumstances, that even annual overflows of the Mississippi river might be regarded as accidental and extraordinary within the meaning of the rule of law above stated.” (p. 193.)
The effect of our decision was to give approval to that view. And that such view should be taken is apparent from our statutes bearing on the question. For our purposes here G. S. 1935, 24-105, reads:
"A landowner . . . shall not construct or maintain a . . . levee for the pur pose of obstructing . . . the flow of surface water to the damage of the adjacent owner . . . ; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel floodwaters from such natural watercourse . . . Provided further, That where such surface water is the overflow of a watercourse on the premises of an adjacent upper landowner and such upper landowner has not constructed or maintained a levee along the bank of such watercourse to prevent overflow, any landowner may make application to the chief engineer of the division of water resources stating . . . and requesting permission 'to build a levee on his own land to repel such floodwater. The chief engineer (after hearing and finding) may then grant permission for its construction . .
Appellants seek to avoid the force and effect of the above statute, originally enacted as the Laws of 1911, chapter 175, for the reason that it was before this court in Thompson v. McDougal, 103 Kan. 373, 175 Pac. 147, and it was there said:
“The rights and limitations of rights of landowners in dealing with flood-waters were not changed, nor attempted to be changed, by chapter 175 of the Laws of 1911 (Gen. Stat. 1915, §§ 4050-4052), unless, indeed, they have been somewhat enlarged by section 2 of the act: (Quoting statute).
“To regard floodwaters escaping from a river as surface water led to little or no confusion before the enactment of 1911, but it may sometimes do so now.” (p. 376.)
However, since its enactment in 1911 the statute has been amended so as to read as summarized above, and by its terms to enlarge the powers of riparian owners to protect themselves.
It must be remembered that we are not here considering an action for damages. We are concerned only with whether the erection of the dike, during its course of construction, could' be enj oined, or after its erection could be abated as a nuisance. The trial court found the work was substantially completed before the action was filed; and it further found that the plans of the district for its construction had been approved by the state engineer. We note appellants’ contention that this approval was under G. S. 1935, 24-1071, which is part of an act declared unconstitutional in Verdigris Conservancy District v. Objectors, 131 Kan. 214, 289 Pac. 966. There is no showing in the record as abstracted that compels such a conclusion, and it is not consistent with the finding of the trial court. Even though the district was not validly organized, that did not make the construction unlawful, for the individual owners could have procured a like result under the statute above quoted.
We are of opinion the injunction was properly refused. The defendants, using the drainage district as a means, projected a plan for construction of the dike, procured approval from the officer vested with power to give it, and financed and performed the construction, all with knowledge of the plaintiffs. If there was anything irregular or illegal connected therewith, it was not promptly urged, and for that matter at the trial was not shown, with the exception of invalid organization of the drainage district.
Insofar as the claim of nuisance is concerned, it may be answered by this: The construction of the dike was made.under a statute
authorizing it. If a lawful structure will result in an unlawful use, it has not yet occurred, nor has it been at all conclusively shown it ever will occur.
There remains the question of whether the trial court erred in ruling that individual parties litigant were not entitled to fees as witnesses. The record as abstracted shows no more than that the claimed fees were disallowed. There is no showing of any kind that the ruling was erroneous and in the absence of such a showing we cannot disturb the ruling.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
The city sued to recover $5,026.83, which it claimed defendant owed it for maintaining city streets which are parts of county highways. The petition alleged certain designated streets were connecting links in the system of county highways; that defendant never had maintained the streets nor paid the city for doing so, and sought recovery for all the time since April 1, 1929, the effective date of the statute (G. S. 1935, 68-506e) relied upon, and alleged that on October 26, 1937, it filed its claim for the sum due with the board of county commissioners, which claim was denied. In order that the effect of the cash-basis law (G. S. 1935, 10-1101 et seq.) might be considered, the petition segregated from the total claim the amount of $2,391.41 claimed to be due prior to May 1, 1933. Defendant demurred specially to that part of the claim which accrued prior to May 1, 1933, upon the ground that it is barred by the statute of limitations. This demurrer was sustained. Plaintiff has appealed.
The statute (G. S. 1935, 68-506e), upon which plaintiff predicates its action, reads as follows:
“That the board of county commissioners of each county shall annually apportion and distribute quarterly to each city on the county highway system from the fund known as the county and township road fund at the rate of two hundred fifty dollars ($250) per mile for the maintenance of the streets in such cities used as connecting links in the system of county highways which are not connecting links in the state highway system, said moneys to be credited to the street and alley fund of such cities. In lieu of said apportionment the board of county commissioners may maintain in cities of the third class such streets and pay for such maintenance from the county and township road fund.”
The cash-basis law (G. S. 1935,10-1101 to 10-1122) became effective March 31, 1933. It applies to cities and counties and other political subdivisions or taxing districts of the state, and the claims of one of such municipalities against another. (Levant Consolidated Dist. v. Colby Comm. High School, 140 Kan. 561, 38 P. 2d 684.) It required all municipalities to pay or refinance all legal debts and obligations, except certain items not here involved. It fixed a date, April 30, 1933, as of which the municipality should determine and publish a statement of its debts and obligations, and (G. S. 1935, 10-1104) required anyone claiming to be a creditor of the municipality, whose claim was not listed, to present the same to the governing body of the municipality on or before May 15, 1933, and if the claim was disallowed the claimant had the right of appeal to the district court, and- — •
“All claims not presented as above provided (except unliquidated claims for damages) shall be barred and shall no longer constitute a valid and existing indebtedness of the municipality.”
Plaintiff did not present any claim to defendant until October, 1937; hence its claim is barred if the cash-basis law is applicable.
Appellant argues that it was defendant’s duty under G. S. 1935, 68-506e, to make the payments mentioned therein to plaintiff, and that plaintiff was not required to file a claim with defendant, or to make a'demand upon it for payments. If it be assumed that was true prior to the passage of the cash-basis law, that act required any creditor of the county, whose item was not listed as an indebtedness, to file his claim by the date named. Hence, the point argued by appellant is not well taken. (See Edson Consolidated School Dist. v. School Dist. No. 64, 145 Kan. 847, 67 P. 2d 567.) Appellant argues it had no claim to present in May, 1933. It did present one in October, 1937, covering a period prior to May, 1933. No reason appears why it could not have presented its claim at that time for the sum then due and sue if its claim was not allowed, as it is doing now.
Appellant calls attention to the fact that the payment to be made by the county under G. S. 1935, 68-506e, is from the county and township road fund, and that under G. S. 1935, 68-416 (2), a part of the motor vehicle fuel tax money goes into the county and township road fund. From this it is argued defendant has received from the motor vehicle fuel tax the money claimed by plaintiff and is holding it in trust for plaintiff, and that the statute of limitations does not apply to a trust fund. The argument lacks merit. This action is not brought on a trust-fund theory. Perhaps plaintiff would be in no better position than it is if the action had been brought on that theory, but we will not decide that point, since it is not before us. There is no allegation in the petition that defendant is holding any money in the county and township road fund received from the motor vehicle fuel tax. The money so received may have been expended as authorized by G. S. 1935, 68-416 (2). Neither is it true that the motor vehicle fuel tax is the only money which goes into the county and township road fund. Taxes upon property may be levied for county roads (G. S. 1935, 68-519) and for township roads (G. S. 1935, 68-535). What plaintiff is seeking to do by its petition in this case is to recover a money judgment against the county for which a tax may be levied (G. S. 1935, 19-108) to raise the money for payment. In short, plaintiff sues as a common creditor of the county; hence it is futile to argue a trust-fund theory; and as such a creditor it was required, under the cash-basis law, to present its claim before May 15, 1933, for any sum then due.
Appellant argues that it did not have a claim against the county, as that term is defined in G. S. 1935, 10-1101, which reads:
“The word ‘claim’ shall be construed and held to mean any claim arising on contract express or implied, . .
If plaintiff has any right to recover, it is by virtue of the statute (G. S. 1935, 68-506e). A similar contention was made in Edson Consolidated School Dist. v. School Dist. No. 64, supra, and was denied. Is was said:
“The term ‘implied contracts,’ as used in the statute, includes contracts implied in law, that is, quasi contracts. . . . The cash-basis law provides that all claims arising on implied contracts must be presented for allowance within the time specified, and that if not so presented such claims shall be barred. As the claim of plaintiff falls within that classification it is barred by the express language of the statute.” (p. 848.)
The same rule applies here.
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
Hutchison, J.:
This was an injunction action brought by eight members of the bar of Barber county as a committee of the bar association of that county for and on behalf of themselves and other attorneys at law in that vicinity to enjoin and restrain the defendant, who was and still is the probate judge of Barber county, from violating the provisions of G. S. 1935, 21-1601, of the state of Kansas. The defendant filed an answer in the form of a general denial. There were no demurrers or motions filed except a motion for a temporary injunction by plaintiffs, which was granted after the answer was filed, and a motion for new trial by defendant when a permanent injunction was granted after the introduction of the evidence. The motion for a new trial was overruled, and the defendant appeals.
The language of the statute above mentioned, which was the basis of the action and the injunction orders, is as follows:
“That hereafter it shall be unlawful for probate judges or justices of the peace to write any petition or answer, or other pleadings in any proceedings, or perform any service as attorney or counselor at law in any case or cases pending before them, or to be interested in any profits or emoluments arising out of any practice in their own courts, except costs.”
The defendant was by the court “perpetually and permanently enjoined from violating the provisions of G. S. 1935, 21-1601, of the state of Kansas, in that he shall refrain from writing any petition or answer or other .pleadings in any proceedings, or perform any service as attorney or counselor at law in any case or cases pending before him, except as may be required by law to be made by said judge personally.”
The defendant was the only witness who testified in the case, he being placed on the witness stand by the plaintiffs to identify the files in certain matters pending before him as probate judge and to explain by whom certain papers therein were prepared, and after answering that the blank forms were furnished by him and the blank spaces therein filled by him from information furnished him by the parties interested, many of such papers were introduced by plaintiffs as exhibits. Several such exhibits, as petition for probate of will, affidavit of attesting witness, order made for the assignment of bonds belonging to the estate, letters written by probate judge in connection with proof of execution of wills, publication notice of appointment of administrator, bond of administrator, oath of administrator, inventory and appraisement -and demands upon estate, were introduced in evidence. The defendant, in answer to questions asked by plaintiffs, said he counseled and advised with the parties interested in the estate as to the steps necessary to be taken and what had to be done.
No question is raised in this case about the right of the plaintiffs to bring this action. Presumably both parties relied upon what was said in the case of Depew v. Wichita Retail Credit Ass’n, 141 Kan. 481, 42 P. 2d 214, where after citing several Kansas decisions, it was stated that attorneys at law have “a special privilege, franchise and duty as officers of the court to protect the legal profession, the courts and the administration of justice generally. And it would seem to be well within such special franchise and privilege to protect not only themselves and others of their profession, but the courts of which they are officers against the illegal and unprofessional conduct of others.” (p. 486.)
It was stated in the argument that the defendant is a regularly admitted member of the bar of Kansas and licensed to practice law in this state, but the plaintiffs do not in any way base their action upon the ground of unauthorized practice. The question involved in the hearing of this action by the trial court, and here now on review, is the same as if the defendant had been a layman, as many of the probate judges of this state are, although it must be conceded at the same time that because of the defendant’s study and admission to the bar he was more capable and better equipped to select and fill blanks and give advice and counsel than a layman holding the same position would be.
The undoubted spirit and intention of the legislature in passing the statute above cited was to avoid in the rulings and decisions of the probate courts any bias or prejudice which would naturally follow the preparation of legal documents and the giving of advice and counsel by him in advance of such rulings. The next section of the same act extends the same inhibition to clerks of the district court and their deputies. These two sections are in harmony with the provision of the state constitution as to justices of the supreme court and judges of district courts, which exacts that they shall not “practice law in any of the courts in the state during their continuance in office.” (Const., art. 3, § 13.) The same rule was extended to county judges when the county courts were authorized to be created in 1923 by G. S. 1935, 20-805, to court reporters by G. S. 1935, 20-903, and to sheriffs, undersheriffs and deputies by G. S. 1935, 19-819.
Defendant urges that the section above quoted, which is the basis of this action, is a criminal statute and therefore should be strictly construed. The third section of the act prescribes a penalty in the form of a fine. This, however, will not prevent the inhibition from being enforced by injunction as was held in State v. Lawrence, 80 Kan. 707, 103 Pac. 839; State, ex rel., v. Miley, 120 Kan. 321, 243 Pac. 262; State, ex rel., v. McMahon, 128 Kan. 772, 280 Pac. 906; and State, ex rel., v. Barron, 136 Kan. 324, 15 P. 2d 456.
Defendant insists that none of the exhibits introduced in evidence are petitions, answers or other pleadings as mentioned in G. S. 1935, 21- 1601, and cites G. S. 1935, 22-715, as to the proceedings in probate court, which is as follows:
“The probate court shall hear and determine all demands in a summary way, without the form of pleading, and shall take the evidence of competent witnesses or other legal evidence: Provided, That in the case of contested claims the court may, in its discretion, order pleadings filed, the same to be governed by the code of civil procedure so far as applicable.”
The appellant also cites the following language of the opinion in the case of Hayner v. Trott, 46 Kan. 70, 26 Pac. 415:
“With this provision of law in our statute book, we do not think it a proper practice to file a demurrer to a claim presented in the probate court. The statute seems to contemplate the presentation of claims in this court by the owners thereof without the aid of an attorney at law, and that the court shall investigate the claims in a summary way, without any pleadings that require the skill of an attorney at law in their preparation. Once recognized, the practice of filing pleadings in this court, and the contemplated simplicity of hearings therein will be lost in the maze of technicalities.” (p. 71.)
It will be observed that the ruling was as to the formal use of a demurrer. This decision has since been followed and approved in Lusk v. Smith, 71 Kan. 550, 81 Pac. 173, with reference to informality of pleading in probate court. The language used in the Hayner case about the pleadings in the probate court not requiring the skill of an attorney at law in their preparation was merely comment and not a part of the decision, as that matter was not the question at issue in the case.
It is worthy of observation in this connection that in G. S. 1935, 22- 802, 22-804 and 22-805, the application of the executor or administrator to sell the real estate of the deceased to pay the debts of the estate is called a “petition.” So the term “petition” is recognized as one of the necessary papers to be filed in the probate court. Pleadings are defined in our code of civil procedure as follows:
“The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses.” (G. S. 1935, 60-701.)
The second clause in the section upon which this action is founded makes it unlawful for probate judges to “perform any service as attorney or counselor at law in any case or cases pending before them.” This would include the preparation of other papers introduced in this case as exhibits, besides petitions, answers or other pleadings, if their preparation required the service of an attorney. It would also include the matter of selecting proper blanks and filling blank spaces therein, if they were to be filed as papers in the case, and the giving of advice and counsel in a case pending before the probate judge.
Defendant insists that the giving of advice and counsel is usually before the proceeding is commenced and is therefore not given in a pending case. There is as much need of advice and counsel concerning each subsequent step taken in the settlement of an estate as there is concerning the initial or first step or proceeding therein, and the most important and serious of all steps therein is the concluding or final settlement. The testimony of the defendant in this case shows that he did advise executors and administrators as to the steps to be taken and the things to be done, and that such advice included the steps taken later on.
Defendant cites G. S. 1935, 20-1101, which gives the jurisdiction of the probate court, and enumerates the several things the probate judges are permitted to determine and perform. This is not in any way inconsistent with the provisions of the section upon which this action is founded, but it nowhere indicates that the probate court shall represent, prepare papers for, or advise any of the parties interested in the matters to be decided by him.
Defendant cites and quotes an Illinois definition of the practice of law, which was cited and quoted in the case of State, ex rel., v. Perkins, 138 Kan. 899, 908, 28 P. 2d 765, which concludes with the statement that “a charge for such service brings it definitely within the term ‘practice of the law.’” A prior part of the same quotation is, “ ‘The practice of law also includes the giving of advice or rendering services requiring the use of legal skill or knowledge.’”
Another quotation is—
“As- the term is generally understood, the practice of the law is the doing or performing of services in a court of justice, in any matter pending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court.” (Eley v. Miller, 7 Ind. App. 529, 535, 34 N. E. 836.)
These definitions, accepted and approved in the Perkins case as to what is the practice of law, were later accepted and approved in the case of Depew v. Wichita Association of Credit Men, 142 Kan. 403, 40 P. 2d 1041.
There is no question but that the preparation of papers to be used in the settlement of estates of deceased persons in the probate courts of this state is the practice of law and is the performing of service as an attorney or counselor at law. No one would say that everything done for parties in matters coming before a probate judge for decision or action by him was positively of a kind and character included in the term of performing service as attorney or counselor at law. The trial court, in granting the permanent injunction, made a proper and reasonable exception in the closing words of its order, as follows: “except as may be required by law to be made by said judge personally.” The defendant mentions the special duties required of his office concerning crippled children, marriage licenses and advice to a widow as to her right of election in the settlement of her husband’s estate. Such matters, and possibly others, were doubtless intended by the trial court to be cared for in the exception made to the injunction order. None of the five cases in which the files were identified in this trial by the defendant nor the many exhibits therefrom which were introduced in evidence by the plaintiffs, are shown to come within the exception so made by the trial court.
Reference is made to the general disregard of the provisions of the statute here involved ever since its enactment. A disregard more or less general has existed as to many of our laws, but that never justifies a further disregard or disobedience of such law. Everyone is presumed to know the law, and a law on the statute books of the state should either be obeyed or repealed.
We find no error in the granting of an injunction in this case nor in the overruling of the motion for a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to set aside a deed as being in fraud of creditors, and from an adverse judgment plaintiff appeals, presenting for our consideration three questions: Was the finding of the trial court that there was a bona fide preexisting indebtedness of the grantor to the grantee supported by the evidence? Was the agreement for future support a valid consideration for the deed in question when the grantor did not retain sufficient property to satisfy her creditors? and, did the trial court err in rendering judgment?
Without reciting the evidence in detail, it appeal's that appellee, ■ Emma B. Graves, owned a farm of about eighty acres in McPherson county, and a residence property in the town of Inman. In 1922 Mrs. Graves was seriously hurt in an automobile accident, her medical expenses being paid by her daughter. For a time she remained in the daughter’s home, where she was taken care of. The income from'the farm was not sufficient for Mrs. Graves’ needs and her daughter thereafter supplied her with money, fuel, groceries and other supplies. At various times mention was made there should be some agreement for payment, but nothing was done until the conveyance and agreements hereafter mentioned were made. Mrs. Graves had executed a note with her son, Brooks, and another note with her son, Dwight, both payable to the appellant bank. While these notes were outstanding, and on August 2, 1932, Mrs. Graves entered into a written agreement with her daughter, Mrs. Hartford, whereby she agreed to convey the farm lands to the daughter, in consideration of which the daughter was to furnish her with proper food and clothing and to provide maintenance for her in every way until her death. On the same date the mother executed a general warranty deed conveying the farm to the daughter, the expressed consideration being “One dollar and other valuable considerations.” This deed was recorded September 28, 1932. Shortly thereafter the cashier of the bank saw Mrs. Graves and had a conversation with her about conveying the farm, and at that time Mrs. Graves gave him a statement in writing in which she said she had made the conveyance to provide for herself during her lifetime. There was no showing the grantee knew anything about the conversation or the statement. Shortly thereafter the two notes were reduced to judgments of $820.44 and $884.43 and executions being returned unsatisfied, the present suit was filed.
On the trial, evidence was offered concerning the agreement of the mother to pay the daughter, who said her expenditures for her mother were over $1,700. There was evidence the farm was not very productive, and that the value of the residence property was about $3,-000 and of the farm was about $4,000. The trial court, on its own motion, not being satisfied whether the residence property was a homestead or not, opened up the trial for further evidence, and thereafter found the residence property was not exempt from execution. A stay of execution for ninety days was allowed (apparently to permit negotiations for a loan), and the cause was allowed to remain open and undecided. Thereafter the residence property was sold on execution, the trial court approving the same only when the sale price was fixed at $1,225. This amount was divided and applied on the judgments. Thereafter some-further testimony was received, and later the trial court rendered its written decision reciting some of the facts heretofore detailed. It found that-Mrs. Graves did not retain property sufficient to satisfy her creditors. On the question whether there was any consideration for the deed other than the one dollar and the agreement for future support, the court, although not fully crediting the evidence as to amount, found there was a bona fide debt in existence when the deed was made, and that the consideration for the deed was the extinguishment of that debt and the agreement for future support. It further found it was not the intention of the parties to the deed to defraud the plaintiff. Judgment was rendered for the defendants.
It may be observed that in this class of cases, whether there was a debt, whether there was a bona fide consideration for the conveyance, or whether there was intent to defraud, are largely questions of fact. (See Houska v. Lake, 148 Kan. 229, 232, 82 P. 2d 1102, and cases cited.) In discussing whether there was evidence warranting the court in finding there was a preexisting indebtedness, appellant directs our attention to certain testimony from which it might have been concluded there was no agreement between the mother and the daughter that the latter should be repaid for amounts expended for the former. But that does not settle the matter. The mother and the daughter testified to conversations as to repayment, the first being had in 1922. Whether there was an agreement for repayment was a question of fact. Without further reciting the evidence, we are of opinion that it sustains the trial court’s finding.
Appellant argues that an agreement for future support does not constitute a sufficient consideration for a deed where the grantor does not retain sufficient property to satisfy his debts, and directs our attention to authorities so holding. We have before us, however, a case where the consideration consisted not alone in an agreement for future support, but in the satisfaction of an existing indebtedness. Such a situation was before the court in Farlin v. Sook, 30 Kan. 401, 1 Pac. 123, to which attention is directed for a statement of the facts, and wherein it was held:
“One who in good faith and for a valuable and sufficient consideration purchases a tract of land, will be protected in such purchase, although the grantor was in debt, and intended by such sale and conveyance to hinder, delay and defraud his creditors.” (Scheble v. Jordan, 30 Kan. 353, and cases cited; Diefendorf v. Oliver, 8 Kan. 365; Cuendet v. Lahmer, 16 Kan. 527; Avery v. Eastes, 18 Kan. 505; Dodd, Brown & Co. v. Hills & Kramer, 21 Kan. 707; Frankhouser v. Ellett, 22 Kan. 127, 148; Randall v. Shaw, 28 Kan. 419; Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 134; Bailey v. Mfg. Co., 32 Kan. 73, 79; Doggett v. Bell, 32 Kan. 298, 301.)
“This rule obtains, even where a part, of the consideration is an agreement to support the grantor in the future.
“In such a case, the creditors may treat the agreement to support as a mere debt to the grantor, and hold the grantee for the excess of the value of the land over the consideration actually paid and discharged.” (Syl. ¶¶ 2, 3, 4.)
In the present case, the trial court, in its opinion, stated that although witnesses had placed the value of the residence at from $2,- 750 to $3,000, on hearing of the motion to confirm the foreclosure sale the value had been fixed by the court at $1,250 and that the value had not changed from the time the deed in question was made, and it concluded the grantor had not retained sufficient property to satisfy her creditors. We might question whether a value so fixed is at all conclusive. But whether it was or not, although there was evidence the farm conveyed was worth $4,000, there was no finding as to its value. For aught the record shows, the court may not have put any more credence in the testimony the farm was worth $4,000' than it did the residence was worth $3,000. There was evidence that at-times the farm produced “hardly enough to pay the taxes,” and that the income was not sufficient to support the mother. The record being otherwise silent, the general judgment in favor of the defendants may well include a finding that the value of the farm did not substantially exceed the amount of the existing debt from the mother to the daughter. In connection with its contention that the value of the farm exceeded the debt paid and should be invalidated as to the excess, appellant directs our attention to various authorities. It seems useless to discuss them when the state of the record does not show their applicability.
Nor need we devote much time to the question of good faith. The trial court found there was no intention to defraud. The evidence showed that at the time the mother had the deed prepared and executed, and delivered to the daughter, the daughter did not know the mother was obligated to the appellant bank, and did not discover it until the bank filed suit to recover on the notes. There was no evidence to the contrary, nor any evidence that compelled any inference to the contrary.
As indicated heretofore, the question whether there was a bona fide debt, the payment of which constituted a sufficient consideration, whether the value of the lands conveyed was substantially in excess of the debt, and whether there was intent to defraud, were largely questions of fact. Those questions, by the judgment of the trial court, have all been resolved in favor of the defendants.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
The defendant city and its officers appeal from a judgment enjoining the city from compromising and settling certain judgments held by it against individuals, as hereafter mentioned.
In April, 1931, the city of Pratt, Kan., hereafter called the city, had on deposit in the Citizens State Bank the sum of $117,000. To secure the city the bank gave to the city its bond in the sum of $200,000 signed by six sureties whose liability was not limited, and by nine others who limited their liability to $10,000 each, and by seven others who limited their -liability to $5,000 each. In October, 1931, the bank failed, at which time the city’s deposit amounted to about $67,000. Suit was brought on the bond and on November 14, 1932, judgment was rendered for the city for $71,376.46, and as to the bondsmen was limited according to their several liabilities under the bond. From time to time dividends were paid by the receiver of the bank and at the time this action was filed, on February 11, 1938, there remained due on the judgment $34,035.65 as principal and $20,258.37 as interest. At that date the bank was still in liquidation, the receiver having unliquidated assets totaling $126,873.37, in which the city will participate. The percentage of the city’s claim as against the total assets is not shown. On December 30, 1937, the governing body of the city adopted a resolution authorizing the city attorney to negotiate a settlement with the judgment debtors, except the bank, for not less than $13,500, the resolution being adopted after those judgment debtors had proposed such a compromise and settlement.
The plaintiff’s petition, setting up the facts, alleged that the above judgments are just, legal, and binding obligations and that the city is without legal right or authority to compromise the judgment debt or to discharge and release the judgments for other than the full amounts due thereon, and that it should be enjoined from so doing. The city’s answer admitted most of the facts alleged in the petition, and denied that the proposed settlement was beyond its power, but, to the contrary, alleged it was entered into in good faith, for and on behalf of the city, and with the intent and purpose of promoting its best interests, in that while the judgment when rendered constituted a good, valid and subsisting claim against the judgment debtors, at all times subsequent a major number of the debtors were then and are now execution proof, and that the remaining judgment debtors do not have sufficient property free from prior lien and subject to execution to satisfy the judgment, and that by reason thereof a settlement and compromise of the judgment is not only within the power and authority of the city, but is justified in the premises.
The cause was submitted on an agreed statement of facts, which included many of the allegations of the petition as above noted. It is agreed that the several judgment debtors do not have sufficient property free from prior lien and subject to execution to satisfy the judgment. The judgment against J. E. Whitman was for $5,324.17. It is agreed the assessed value of his property is $66,500, including a homestead valued at $5,900 and encumbered in the amount of $41,150, leaving a net value of $19,450. The judgment against W. C. Banbury was for the full amount of $71,736.46. The assessed value of his property is $19,910, including a homestead of $4,480, and subject to a judgment lien of $5,206.97, and unpaid taxes of $170.50, leaving a net value of $10,052.53. The judgment against Herbert Allans was for $10,648.33. His property is assessed at $17,-795.95, encumbered by mortgages of $14,258, and unpaid taxes of $1,847, leaving a net value of $1,690.95. The judgment against S. P. Gebhart was for $10,648.33. He is dead (date of death not shown). He left property assessed at $21,230, including a homestead valued at $7,865, mortgage encumbrance of $3,500 and unpaid taxes amounting to $1,912.09, and showing a net value of $7,952.91. Without specifying further, it may be said the statement shows none of the other judgment debtors have property in which they have any equity or which is subject to execution.
The trial court found the plaintiff was entitled to the relief sought and enjoined the city from settling, compromising or discharging the judgment of November 14, 1932, for less than the amount due on it. The defendants’ motion for a new trial was denied, and they appeal.
In their briefs the parties discuss their contentions from somewhat different angles. Appellants’ contention is the financial condition of the judgment debtors is such the judgment cannot be collected as a whole, and that it is good business and to the interest of the city to accept a substantial part of the judgment in satisfaction of the whole insofar as the sureties are concerned. The appellee’s position is that because a majority of the judgment debtors who were sureties may be financially irresponsible does not justify a settlement with those able to respond.
Essentially the question is whether the governing body of a municipal corporation, acting in good faith and as it deems is conducive to the interests of the municipality, may compromise and settle for less than its face value, a series of judgments, all a part of one principal judgment, none of which judgments has been appealed from and all of which are final and conclusive. It is to be borne in mind the proposed compromise does not include the judgment against the debtor primarily liable.
In their briefs, neither party directs our attention to any applicable statute, nor to any decision of this court. Our own research does not disclose any decisions of this court closely analogous. There seems to be no statute specifically dealing with the power of a city to compromise any judgment due to it. By G. S. 1935,12-101, each city of this state is a body corporate, with power to sue and be sued and to make any order pertaining to its personal property that “may be deemed conducive to the interests of the city.” Under the statute with reference to second-class cities (of which class the defendant city is one), it is provided the governing body shall have the care, management and control of the city and its finances (G. S. 1935, 14-401). Except with reference to taxation, there seems to be no statutory authority for any municipal corporation to enter into any compromise of claims due to it, and this exception applies to counties and not to cities.
Our attention is directed to 19 R. C. L. 775 (Municipal Corporations, § 80), wherein it is said in part:
“The power of a municipal corporation to settle or compromise claims is well established. The general power to compromise doubtful and disputed claims is necessarily incident to the power to sue and the liability to be sued. ... A municipal corporation cannot compromise a claim against it after it has been adjudicated to be invalid. ... If there is a bona fide dispute as to the liability or the amount due, the municipality may accept less than the full amount of its claim by way of compromise, but a municipality cannot waive a portion of an amount due it when there is no question as to the liability of the debtor or his ability to pay merely because the claim seems a harsh one. It has been held that after a claim has been reduced to judgment the municipality cannot lawfully accept less than the full amount, for the claim is then no longer doubtful or disputed. This rule, however, is not always to be followed. It is true that where a claim has been reduced to judgment, all questions pertaining to the rightfulness of the claim have been adjudicated. But questions may arise subsequent to the rendition of the judgment, and where they .are of such a character as to render a compromise expedient, it is manifest that the municipality ought to have the power to' make it. If, for instance, the financial condition of the judgment debtor is such that the municipal authorities are unable to discover any way of collecting any part of the judgment, they should have the power to accept a part in satisfaction of the whole, if in their judgment the best interests of the municipality would thereby be promoted. So, also, a judgment in favor of a municipal corporation may be released on part payment thereof if the defendant has appealed or has a right to appeal.”
To similar effect are statements from 6 McQuillan on Municipal Corporations, 2d ed. Revised, p. 647 et seq., § 2643, as follows:
“Unless forbidden bjr charter or general law applicable, a municipal or other public corporation has power to settle and compromise disputed claims in its favor or against it before or after suit has been begun thereon, and at any time before final judgment. Where an appeal is taken from a judgment in favor of a municipal corporation, or the time for appeal has not expired, the action is still pending and is as much a proper subject of compromise as if no judgment had been rendered.
“The capacity to contract and be contracted with, and to sue and be sued gives the implied power to settle disputed claims, controversies and matters in litigation. But a municipality has no power to compromise a claim which is not doubtful and upon which the city could not be held liable. A settlement for less than the amount due is an unlawful diversion of public money to private use. In other words, a municipal corporation cannot, under the guise of a compromise, surrender valuable rights or interests in claims over which there can be no substantial controversy. Accordingly, notwithstanding the right of settlement follows logically from the right to maintain and defend suits, a municipal corporation has no right to discharge a debt without payment which may be held against persons who are solvent and responsible where no controversy exists respecting the validity and binding effect of the indebtedness.
“. . . For like reason a municipal corporation cannot compromise a judgment in its favor for less than the amount due thereon. But in event questions arise subsequent to the rendition of the judgment which would render a compromise expedient, it has been held, the municipality may enter into the same if it acts in good faith.”
One of the leading cases on the question is Farnsworth v. Wilbur, 49 Wash. 416, 95 Pac. 642, 19 L. R. A., n. s., 320, the headnotes to which recite:
“Upon a petition to enjoin a town from carrying out an illegal contract consisting of the satisfaction without consideration of a judgment recovered by it, which has in fact been done, a court of equity may set aside the satisfaction and restrain the parties from carrying out the agreement.
“A town council has no authority to satisfy a judgment obtained by the town upon payment of the costs of the action, since such satisfaction is in fact a gift to the judgment debtor which the council has no power to make.” (¶¶ 2, 3.)
And see the note on the right of a municipality to surrender a valid claim upon a partial payment thereof in the L.’ R. A. citation.
In People v. Holten, 287 Ill. 225, 122 N. E. 540, it is stated in the headnotes that:
“Where taxpayers of a city and town on behalf of themselves and all other taxpayers sued a treasurer and collector for taxes which he had collected but not accounted for, and the sureties on his bond were solvent, etc., held, that the municipality could not bring an independent action against the collector and sureties, and compromise the claim for payment of much less than the amount due, for that would be an unlawful diversion of a public money to a private use.” (¶ 2.)
An annotation on the power of a city to compromise claims may be found in 105 A. L. R. 170, and on page 178 there is treated the right to make compromise after judgment, where it is said:
“Courts generally, but not invariably, have held that the compromise of a judgment in favor of a city, town, or county, made within the time for taking an appeal therefrom, is valid and within the power of such municipality or its officials.”
In all of the above citations wherein it is stated the municipality may compromise a final unappealed-from judgment, two cases seem to be relied on. One is Collins v. Welch, 58 Ia. 72, 12 N. W. 121, where it was held that a board of supervisors had a right to compromise a judgment for unpaid taxes, it being held the board has such power by virtue of a statute giving them the care and management of the property and business of the county in all cases where no other provision was made. In the opinion it was said:
“It is true that where a claim has been reduced to judgment all questions pertaining to the rightfulness of the claim have been adjudicated. But questions may arise subsequent to the rendition of the judgment, and where they are of such a character as to render a compromise expedient, it is manifest that the board ought to have the power to make it. Suppose, for instance, that the financial condition of the judgment debtor is such that the board is unable to discover any way of collecting any part of the judgment. The board should have the power to accept a part in satisfaction of the whole, if, in its judgment, the best interests of the county would thereby be promoted. All rules of business conduct by which a prudent person is governed are applicable to a county in the management of its affairs under similar circumstances.” (p. 73.)
Notwithstanding that statement, it refused to go into the question of fact as to solvency of the judgment debtor, saying the question before it was one of jurisdiction. The inconsistency is pointed out in a dissenting opinion.
The other case is Hogler v. Kelly, 14 N. D. 218, 103 N. W. 629, which also involved the right to compromise or assign a judgment for taxes. As we understand the reasoning of the case, it is this: The county board had a right to abate and compromise taxes where the collection of them was doubtful and that right continued after judgment taken.
It thus appears that the cases generally relied on as supporting the right of a municipality to compromise a final judgment are quite limited in their effect, and if the question before us was the right of a county to compromise a judgment for unpaid taxes, they would be persuasive.
We do not believe the statutes quoted above are authority for the city to compromise the judgment, and for that matter they are not relied on by the appellants. Under those statutes, the city is only authorized to exercise delegated powers or those necessarily implied. They do not confer a blanket authority to do that which is not positively prohibited.
The statement of facts includes one that no provision has been made in the city’s budget to pay costs and taxes necessarily to be paid in event of forced sale. That statement must be read as though the city would be the successful bidder. We recognize that on execution sale there may not be bidders for an amount that will exceed the amount offered in settlement, but that is merely conjecture.
It may be further noted that the statement of facts limits the financial showing of the judgment debtors to what the tax records of Pratt county show.
Neither can we agree that the judgment against the principal debtor and the judgments against all the sureties should be considered as a unit so that it may be said the judgment debtors are insolvent. Some of them undoubtedly are, but it would appear that the judgment against judgment debtor Whitman could be collected in full.
We have no disposition to interfere and should not interfere with the governing body of any municipal corporation in its management of its fiscal affairs, so long as its judgment with respect thereto is fairly and in good faith exercised, but it has no judgment to exercise and there can be no good faith when what is attempted to be done is not either expressly or impliedly authorized by statute. The general effect of the proposed compromise will be to dispose of the city’s property without as full compensation as may be procured from following the usual processes of the law in levying execution on the judgments. The city is not warranted in taking less from some able to pay because others equally or proportionately liable are financially irresponsible.
The judgment of the lower court is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for a declaratory judgment seeking a construction of G. S. 1935, 19-1503, as affected by the cash-basis law, the budget law and the tax-limitation law, as applied to the facts alleged in the petition and conceded to be correct. As these statutes are interpreted by plaintiff, it was entitled to a decree enjoining defendant from proceeding as it proposes to do in financing the building of a courthouse and jail to replace a courthouse destroyed by fire; as interpreted by defendant such a decree was not authorized. The trial court agreed with plaintiff’s construction of the statutes. Defendant has appealed.
The pertinent facts are not controverted and may be summarized as follows: Republic county is and for many years has been one of the organized counties of the state. It has a population of between 14,000 and 15,000 and property of the assessed value of about $27,-000,000. For many years it has had a courthouse and jail situated on a site owned by the county at Belleville, the county seat. On April 1, 1938, the courthouse was destroyed by fire. The jail is old, insanitary and unsuitable for present needs. Since the destruction of the courthouse by fire the county officers have occupied temporarily various office rooms rented by the county. These are inconvenient for the general public and unsuitable for the safekeeping of county records. The county collected more than $25,000 in insurance on the burned building, which it has segregated and placed in a special fund to be used in constructing a new courthouse and jail. A real necessity exists for the constructing of the new courthouse as soon as that can be done legally. The county has no outstanding indebtedness represented by bonds or time warrants and has ample funds on hand to pay current expenses. Prior to the making of certain orders of the board of county commissioners, soon to be mentioned, valid petitions signed by more than one fourth of the bona fide resident taxpayers of the county (about 35 percent of them) were presented to the board of commissioners requesting it to proceed, without an election and vote of the electors of the county, to erect a courthouse for the county and for the cost thereof to the county to be raised and provided by a special tax levied as provided by law and not by the issuance of bonds. These petitions were approved by defendant’s board of commissioners. Defendant, heretofore by due action of record, has determined that a necessity exists for the construction of a new courthouse on the site owned by it at the county seat, with vaults and rooms for the various county officers and a suitable jail, and in like manner has determined by its action, properly of record, that the actual cost of such structure will approximate the sum of $243,470. The defendant applied to and received from the PWA a grant of funds in the sum of $109,561.50 as aid to be used in paying the cost of such building, leaving a balance to be paid by defendant of $133,908.50. Defendant is proceeding to and intends to use its surplus funds derived from insurance on the building destroyed, now segregated and set apart in a special building fund, toward the payment of the cost of such new building, and to raise and provide the‘balance of such costs, approximately $100,-000, more or less, by the issuance and sale of interest-bearing anticipation warrants to be issued and sold as the work on the building pi’ogresses and as funds from that source are required for the cost thereof, such warrants to bear interest at the rate of three percent per annum, or less, and all to be payable and retired within five years. Defendant further intends to and is in the process of making a special tax levy upon all the taxable property within the county for the purpose of providing a sinking fund to pay and retire such warrants, the levy therefor not to exceed one mill on the dollar annually for the years 1938 through 1942, which levy would be sufficient to pay all such warrants with interest. Provision has not been made and cannot be made in the 1938 budget of the county to pay such warrants unless the defendant is permitted to levy a special tax therefor, in excess of the aggregate tax levy permitted by law for general county purposes.
Plaintiff contends that our cash-basis law, specifically G. S. 1935, 10-1112, 10-1113, 10-1114, 10-1115, 10-1119; our budget law, specifically G. S. 1935, 79-2935, and our tax-limitation law, G. S. 1935, 79-1947, make impossible the action proposed and intended by defendant, respecting the issuance and sale of interest-bearing anticipation warrants, and the levy of the special tax to procure bonds to pay such warrants with interest.
Defendant contends it is specifically authorized by G. S. 1935, 19-1503, 19-1504, 19-1505, to proceed as it proposes and intends to do, and further contends it is within the specific exceptions of the cash-basis law, G. S. 1935, 10-1116; of G. S. 1935, 79-1963, pertaining to tax limitations, and the proviso of G. S. 1935, 79-2935, being a part of the budget law.
In deciding for plaintiff and against defendant, the trial court declared their rights to be as follows:
“That no such emergency exists under the admitted facts in this case, as creates an exception to the provisions of what is commonly known as the cash-basis law and the budget law of the state of Kansas, or any other ipertinent provision of law relating to the subject-matter of this action.
“That the defendant board is n,ot authorized, under the facts admitted herein, proceeding under section 19-1503 of the General Statutes of Kansas for 1935, to levy a special tax or to issue, sell or dispose of time or anticipation warrants of said county of Republic for the purpose of making payment of any part of the cost of erection of the courthouse in question.
“That the last stated declaration of right exists by reason of fact that the provisions of the cash-basis law, the budget law and the general tax-limitation law pleaded and set forth in the petition herein, prohibit the levy of such tax and the issuance, sale and disposal of such warrants.”
We turn now to the consideration of the statutes involved.. To procure the funds necessary to construct the new building, after applying the money received from insurance and the federal aid, the county proceeded, and proposes further to proceed under the latter part of G. S. 1935, 19-1503. This section reads:
“The board of county commissioners of any county may determine, in their discretion, when the erection of any permanent building or buildings for the use of the county is necessary, and they shall also determine the cost of the erection thereof, and the same shall be entered on the journal, but no tax shall be levied, bonds issued or other obligations incurred on account of the erection of such building or buildings until after the question has been submitted to the electors of said county at some general election or at a special election held for that purpose. When, however, the assessed valuation of the property in any county shall be in excess of six million dollars, and said county shall have in its treasury a sum not less than twenty-five thousand dollars belonging to said county, over and above its indebtedness, and the county commissioners are petitioned therefor by one fourth of the bona fide resident taxpayers of said county, they shall, without submitting the question to the electors of such county, levy an annual tax for the purpose of building or repairing any county building at the county seat of any county, said tax not to exceed two mills on the dollar upon the taxable property subject to taxation in said county in any one year, and said tax shall not be levied for a longer period than five years, and the county commissioners are further authorized and empowered to use any surplus funds that may be in the treasury belonging to said county in payment for the erection or repairing of said building.”
And that portion of G. S. 1935, 19-1505, which reads:
“. . . The board of county commissioners are hereby authorized and empowered to anticipate the moneys arising from said tax by drawing warrants on the fund aforesaid, which warrants shall designate on their face the particular fund whereon they are drawn, shall bear interest at a rate not to exceed six percent per annum, and shall not be due until money is accumulated in said fund for the payment thereof. They shall be numbered consecutively in the order in which they are issued, and it shall be the duty of the county clerk, whenever five hundred or more dollars shall accumulate in said fund, to make a call for said warrants, as provided by law, in the order in which they are issued; and if the warrants so called shall not be presented for payment within thirty days from the date of said call, then interest on such warrants shall cease and determine.”
G. S. 1935, 19-1503, 19-1504 and 19-1505, are sections 1, 2 and 3 of chapter 141 of the Laws of 1907, except that the first of the sections was amended in 1909 (Laws 1909, ch. 99) and later revised “to conform to the general bond sections” by the commissioners who revised our statutes in 1923. (See report of December, 1922, of Commission to Revise the General Statutes, p. 70.) The result of this amendment and revision was to leave the section, so far as it pertains to any questions involved in this case, the same as it was when enacted in 1907. This act of 1907 amended sections 1624, 1625 and 1626 of the General Statutes of 1901. The first of these prohibited the county commissioners from building any permanent county building and levying a tax therefor without an affirmative vote of the people at an election at which the question was sub mitted; the next section prescribed the notice which should be given for such an election, and the next pertained to the manner of conducting the election, the canvass and return of the vote, and the effect thereof. The act of 1907 retained in the first sentence of the first section the general requirement of an election, and in the second sentence authorized counties which came within a certain classification — having property of an assessed value of six million dollars, no bonded debt, and as much as $25,000 of surplus funds — to act upon the petition of one fourth of the bona fide resident taxpayers, dispensing with an election; the next two sections amended the old sections so as to conform more nearly to our revised election laws, and particularized the notice to be given the questions to be submitted, the form of the ballot, the conduct of the election, the canvass and return of the vote and the effect or results to follow. These last two sections remain unchanged and are now G. S. 1935, 19-1504 and 19-1505.
Soon after the act of 1907 became effective the county commissioners of Butler county undertook to act under the latter portion of section 1. The county had property of the assessed value of more than six million dollars; had no bonded indebtedness and had a surplus fund of more than $25,000. Its board of commissioners determined that a new courthouse was necessary and should be built at a cost of $60,000. There was presented to the board of commissioners petitions of more than one fourth of the bona fide resident taxpayers of the county to proceed to build the courthouse, without an election or vote of the electors, and to levy a special tax therefor without issuing bonds. The board of commissioners were proceeding to let the contract for the building, to levy a special tax, and to issue anticipation warrants to be paid from the proceeds of the tax, when an action was brought in the name of the state, on the relation of the attorney general, to enjoin them from doing so, and from an adverse judgment the plaintiff appealed to this court and contended the act was invalid. This court held the act to be valid (State v. Butler County, 77 Kan. 527, 94 Pac. 1004) and construed the act s-o far as it was necessary to do so in that case. Among other things the court said:
“We think . . . the law contemplates that when a petition is presented, signed by one fourth of the resident taxpayers, the duties and powers of the board are the same as though the question had been submitted to a vote of the electors and carried.” (p. 532.)
The citator discloses that repeatedly this case has been cited with approval, although not directly on this point. We are convinced, however, of the soundness of the language last quoted. Indeed we are unable to see how such a petition and the action of the board of commissioners thereon could have any effect other than that tantamount to a favorable vote at an election to' construct the building by a special tax levy. At the argument of this case the language above quoted from the opinion was referred to as dictum. We do not so regard it. We have read the original record and briefs in that case, and are convinced the point covered by the language quoted was essential to a decision of the case by this court, even though no separate paragraph of the syllabus was made of it.
Upon the authority of State v. Butler County, supra, and the language quoted from the opinion, and upon our own independent consideration of the question, we hold that the petitions, duly presented, considered and acted upon, as authorized by G. S. 1935, 19-1503, conferred upon the board of county commissioners all the power and authority to -proceed to construct the building, use the funds on hand available for that purpose and such federal aid' as it may receive, and for the balance of the costs to levy a special tax at a rate of not more than two mills on the dollar for a period of not more than five years and to issue its anticipation warrants to be paid with the proceeds of the tax, all as fully and as completely as could have been done if an election had been held on those questions and a favorable vote returned. In other words, when the petitions are duly presented, considered and favorably acted upon, they take the place of the election, otherwise provided for, and are the equivalent in law of such an election.
The statement of facts discloses, indeed it is conceded, that defendant is proceeding properly under G. S. 1935, 19-1503, 19-1505, and that it is authorized to do so unless such authority has been negatived by subsequent legislation, to which plaintiff refers.
The cash-basis law (Laws 1933, ch. 319, G. S. 1935, 10-1101 to 10-1122), the budget law (Laws 1933, ch. 316, G. S. 1935, 79-2925 to 79-2937) and the tax-limitation law (Laws 1933, ch. 309; G. S. 1935, 79-1945 to 79-1970) were enacted at the same session of the legislature. While dealing with different subjects they have a common, basic purpose, namely, the systematical, intelligent and economical administration of the financial affairs of municipalities and other taxing subdivisions of the state, so as to avoid waste and extravagance and yet permit such units of government to function so as to supply the governmental wants and needs of the people. Singly and collectively the statutes have been construed and applied by this court in many cases, which may be found in the annotations. The statutes are meritorious; their beneficial effects frequently have been demonstrated. We have no disposition to destroy or to weaken them or any of our decisions pertaining to them. None of them specifically repeals G. S. 1935, 19-1503, or any part of it, neither does 'any of them or all of them necessarily effect such repeal by implication. Their fundamental purpose is in harmony with G. S. 1935, 19-1503, and particularly that part of it pertaining to the filing and action to be taken on taxpayers’ petitions, for when the county is within the class authorizing it to act upon such petitions, it is the more economical procedure, since it saves the expense of an election and also saves interest, as the anticipation warrants are issued only as needed as the work progresses. In the argument of this case before us it was conceded this is the more economical procedure. It would be a strange result if statutes designed to effect economies in the administration of the financial affairs of counties and other taxing subdivisions of the state should force the use of the more expensive of two methods of procedure respecting a particular matter. In an effort to avoid such an anomalous result the legislature wrote into each of these statutes sections stating to what they do not apply. For example:
In the cash-basis law: “The provisions of this act shall not apply to contracts and indebtedness created, the payment for which has been authorized by a vote of the electors of the municipality, or where provision has been made for payment by the issuance of bonds, as provided by law. . . .” (Laws 1933, ch. 319, §16; G. S. 1935, 10-1116.)
In the budget law: “. . . Provided, the provisions of this section shall not apply to contracts and indebtedness created, the payment for which has been authorized by a vote of the electors of the municipality or for casualties or emergencies or where provision has been made for payment by the issuance of bonds.” (Laws 1933, ch. 316, § 11; G. S. 1935, 79-2935.)
In the tax-limitation law: “No limitation imposed by this act shall in any wise apply to or in any way limit any levy which is authorized by statute for the purpose of creating sinking and interest funds necessary to liquidate at maturity the principal and interest of any indebtedness authorized by law. . . .” (Laws 1933, ch. 309, § 19; G. S. 1935, 79-1963.)
Plaintiff argues that the procedure taken and proposed to be taken by defendant cannot come within the exceptions to the cash-basis law and the budget law above quoted, because there was no vote of the electors and no bonds are to be issued. It is conceded these excepting statutes would apply, if a vote of the electors had been taken which authorized the issuance of bonds. In view of the fact that the taxpayers’ petition, authorized by G. S. 1935, 19-1503, is the alternative and a substitute for the vote of the electors, and the anticipation warrants for the bonds, and in view of the fundamental purpose of economy which permeates all these statutes, we think this contemplation places too narrow a construction on these quoted provisions of the cash-basis law and the budget law.
While, generally speaking, ordinary words used in a statute, should be given their ordinary meaning, the more fundamental rule is that “in determining the legislative intent in enacting a statute the general purpose of the legislature as shown by the statute as a whole, is of primary importance. Words, phrases and figures used in the statute should be construed in harmony with that general purpose.” (State, ex rel., v. Gleason, 148 Kan. 1, 14, 79 P. 2d 911, and see authorities there cited.) Here, as we have seen, the general purpose of all of the statutes is the same, economy and systematic efficiency in the administration of the financial affairs of governmental subdivisions of the state. The legislature of 1933 had an enormous task in framing the cash-basis, the budget and the tax-limitation laws. Literally hundreds of previous statutes and practices which had developed over many years in the varied governmental units had to be studied and general statutes formulated in harmony with the fundamental purpose of economy and efficiency of the administration of governmental units. Certainly there was no intention to repeal by implication the more economical alternative method of financing the construction of public buildings by taxpayers’ petitions and anticipation warrants rather than by an election and bond issue, provided by G. S. 1935, 19-1503, 19-1505. Repeals by implication are not favored. (Wolff v. Rife, 140 Kan. 584, 38 P. 2d 102.)
The exception to the tax-limitation law (G. S. 1935, 79-1963) is not confined to bonds authorized by the vote of electors, but applies to “any levy which is authorized by statute for the purpose of creating sinking and interest funds necessary to liquidate at ma turity, the principal and interest of any indebtedness authorized by law.” This wording places no limitation upon the special tax defendant proposes to levy, for the levy is made to create a fund to pay the warrants with interest, authorized by law to be issued. This is properly denominated a sinking fund. In Brooks v. Town of Brooklyn, 146 Ia. 136, 124 N. W. 868, it was held:
“A sinking-fund tax is raised to be applied to the payment of the principal and interest of a public loan ,or obligation.” (p. 146.)
See, also, M0urphy v. Spokane, 64 Wash. 681, 117 Pac. 476; Levy v. McClellan, 196 N. Y. 178, 89 N. E. 569, 573; Tennessee Bond Cases, 114 U. S. 663, 29 L. Ed. 281, 5 S. Ct. 974,1098.
Upon the whole, we are convinced that by the enactment of the cash-basis law, the budget law and the tax-limitation law, the legislature did not intend to repeal, and did not repeal, the provisions of G. S. 1935, 19-1503, and 19-1505, under which defendant is proceeding, and that this procedure fairly comes within the express exceptions of those acts above quoted.
In the argument before us there was some discussion of the trial court’s first declaration of rights respecting the existence of an emergency. Normally, whether an emergency exists respecting governmental affairs is a matter to be determined by the officials charged with the manágement of such affairs. Being within the sound discretion of those officials, ordinarily it is a matter not within the purview of the courts. (Kansas Power Co. v. City of Washington, 145 Kan. 962, 965, 967, 67 P. 2d 1095.) However, we do not regard the question as being important here. Apparently, what the trial court had in mind and really held was that the situation disclosed by the agreed facts does not show the existence of an "emergency” as that term is defined in certain sections of the cash-basis law and the budget law, which provisions we have not quoted. We find it unnecessary to review the holding of the trial court on that point. If the provisions of G. S. 1935, 19-1503 and 19-1505, under which defendant is proceeding, are still in force, as we hold, it is not material whether the facts disclose an “emergency” exists as that term is used or defined in the cash-basis law or the budget law.
This case is a good illustration of the beneficial use of our act relating to declaratory judgments, G. S. 1935, 60-3127 to 60-3132, when counsel and the courts cooperate for the early consideration and determination of a question of public importance concerning which there is an actual controversy. This action, framed for an injunction but actually seeking a construction of statutes and a declaration of rights, was filed and heard in the district court, appealed to this court, advanced, argued and decided, all within a week. Counsel acted prudently in bringing the action in order that the validity of the proceeding being taken by defendant might be determined at an early date.
The judgment of the trial court is reversed with directions to deny an injunction predicated upon the allegations of the petition and to enter a decree in harmony with the views expressed in this opinion.
Hutchison and Wedell, JJ., not participating.
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The opinion of the court was delivered by
Wedell, J.:
This action was brought to recover damages for injuries sustained in an automobile collision. The plaintiff, Aubrey V. Earhart, a minor, was a junior college student at Hutchinson, and the action was brought in his behalf by his mother and next friend. Defendant prevailed, and plaintiff appeals.
The collision occurred in the daytime, and in an intersection of unmarked county roads in Stafford county. There were no stop signs. Plaintiff’s car was traveling west, and defendant’s car was traveling north. The principal acts of negligence with which defendant was charged were unlawful and excessive speed, driving on the wrong side of the road, and striking plaintiff’s car when it was almost across the intersection. The answer specifically denied these charges and pled contributory negligence, in substance as follows: Defendant did not know whether plaintiff was driving the Ford automobile or whether he was merely riding therein; the collision occurred at a wide-open intersection, and if plaintiff was the driver and had kept a proper lookout he could have seen defendant’s car approaching from the south in time to have stopped his automobile, or he could have turned aside and avoided the collision; plaintiff’s car approached the intersection at a rate of speed to exceed fifteen miles per hour and struck defendant’s car on the right side after it had passed the middle of the intersection; plaintiff and other members of his family were engaged in a joint enterprise; if plaintiff was not the driver of the Ford car and was merely riding therein, the collision was the result of his own negligence in failing to keep a lookout for his own protection and in failing to warn the driver of the approach of defendant’s car.
Plaintiff insists the entire verdict is based on hearsay testimony and therefore cannot stand. The contention cannot be sustained. The jury made special findings, which were in harmony with each other and with the general verdict, and they compel affirmance, irrespective of whether plaintiff was the driver of the car or merely riding therein. The jury found plaintiff was the driver. Plaintiff insists that finding was based on hearsay testimony. The sheriff and undersheriff, witnesses called by the defendant, testified in substance that according to their recollection plaintiff’s father informed them at the scene of the accident, that they were certain it was in plaintiff’s presence, and that plaintiff was driving the car. On the trial plaintiff, as well as his father and mother, testified to the effect the father was the driver. On the trial plaintiff did not deny that his father had a conversation with the officers in his presence nor that his father at that time informed the officers that he, the plaintiff, was driving the car.
We need, however, not rest our decision on the ground that plaintiff was the driver of the car. Plaintiff’s testimony indicates that he was an intelligent and alert young man. He was a student in the junior college. Assuming he was only riding in the car, and aside from any question of joint enterprise, he was required to exercise reasonable care and precaution for his own protection. (Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117; Shrewsbury v. Goodacre, 135 Kan. 230, 10 P. 2d 1; Buchhein v. Atchison, T. & S. F. Rly. Co., 147 Kan. 192, 195, 75 P. 2d 280.) When plaintiff was asked on cross-examination whether he looked to the south as the car approached the intersection, he answered, “I did not.” The jury, in its special answers, in substance found: Defendant’s car entered the intersection at a speed of 40 to 43 miles per hour and the plaintiff’s car entered the intersection between 20 and 25 miles per hour; the collision occurred near the center of the intersection; passengers in plaintiff’s car had a clear vision of the road on which defendant was traveling while plaintiff’s car was 50 feet east, 100 feet east, 100 yards east and 200 yards east of the intersection; plaintiff did not, prior to reaching the intersection, see defendant’s car approaching; the.driver of, or passengers in plaintiff’s car could have seen defendant’s car had they looked; plaintiff was guilty of negligence in that he did not see the approaching car which he should have seen; the direct and proximate cause of the collision was the negligence of both defendant and plaintiff.
Plaintiff complains that some of the special findings were not supported by evidence, and that the answer to one question as to whether defendant was driving on the wrong side of the road at the point of collision was evasive. The record discloses the findings were supported by substantial evidence. It also discloses the jury did answer one special question relative to the point of collision as follows: “Near the center of the road.” If plaintiff regarded the answer to a similar question as evasive, it was his duty to ask that the jury be required to make its answer clear and definite. Having failed to make such request, plaintiff is in no position to complain on appeal. (Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53, 53 P. 2d 923.)
Plaintiff contends the trial court erred in refusing to permit his father to participate in the trial of the case if he intended to testify in plaintiff’s behalf. In State v. Ryan, 137 Kan. 733, 22 P. 2d 418, it was held:
“Where it is necessary for the counsel in a case to testify* on some material disputed point that has a material bearing on the guilt or innocence of the defendant in a criminal case or one that involves a serious dispute of fact in a civil case, he should withdraw as counsel in the case.” (Syl. ¶ 2.)
In the opinion it was said:
“There is danger that a jury will attach more importance to the testimony of a lawyer in a case than to an ordinary witness. The better practice would have been for the county attorney to have stepped out of the case when it became necessary for him to testify. (See Canons of Professional Ethics No. 19,135 Kan., p. iii.)” (p. 737.)
We are informed the father’s testimony occupied 42 pages of the transcript. That his testimony was highly important cannot be doubted. His testimony pertained definitely to the negligence charged by the respective parties. In the instant case, however, it in no wise affirmatively appears that plaintiff’s rights were prejudicially affected by the ruling. Plaintiff had other counsel in the case and there is no contention he was not properly and adequately represented. Moreover, a search of the record fails to disclose any objection was made to the ruling.
Plaintiff contends the trial court erred in permitting a repairman to testify how the collision occurred, although he did not see the collision. In view of the testimony, the contention is not accurately stated. The witness had been engaged in the business of repairing damaged automobiles for about 18 or 20 years. He inspected and repaired defendant’s car about two weeks after the accident occurred. No objection was made to his testimony on the ground the car was in a different condition than immediately following the collision. His testimony was to this effect: The front fender of defendant’s car was not damaged; from an examination of the car it was his judgment defendant’s car had been struck at about the middle of its right side, and that the damages on the left side of the car resulted from the fact the car had rolled over. His testimony went to the question of whether, in his judgment, the principal damage to defendant’s car had resulted from an impact against its right side. The witness was fully cross-examined concerning the alleged incompetent testimony. The complaint cannot be sustained.
Plaintiff urges the trial court erred in admitting photographs of cars taken after they were removed from the scene of the accident. The photographer was a witness. His testimony is not abstracted. We are therefore unable to say the photographs were improperly admitted. In the absence of any showing to the contrary, we must assume a proper foundation was laid to make the evidence competent for the purpose intended. (Griffin v. Brick Co., 90 Kan. 375, 378, 133 Pac. 574.) Moreover, the record before us discloses no objection to the admission of the evidence.
Plaintiff urges the trial court abused its discretion in submitting more than ten special questions to the jury, some of which contained several subdivisions. (G. S. 1935, 60-2918; Davidson v. Douglass, 129 Kan. 766, 284 Pac. 427; Billings v. Aldridge, 129 Kan. 772, 284 Pac. 404.) The cases cited do not support the contention the trial court abused its discretion in the instant case. We do not understand why two sets of special questions should have been submitted, some of which were identical, but that particular point is not urged here. The legislature, when it enacted G. S. 1935, 60-2918, recognized the wisdom of denying parties the right to have more than ten special questions submitted. It also, however, realized that in certain cases it might be helpful to submit more than ten questions, and it therefore specifically left that matter in the sound discretion of the trial court. Here again we find no objection to the number of questions submitted. In view of this situation, and in the absence of any affirmative showing that the rights of plaintiff were prejudicially affected, we will not reverse the judgment.
Plaintiff insists defendant admitted his negligence. Such admission does not relieve plaintiff of the consequences of his own contributory negligence.
The complaint concerning the filing of the counter abstract and the objections to the costs thereof has been examined, and it is not sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was a claim for workmen’s compensation. Compensation was awarded the claimant by the commissioner. On appeal this award was approved by the district court. Respondent appeals.
The workman was injured when he slipped and fell off the roof of a house he was helping shingle. Most of the questions in the case are either admitted by stipulation or are not disputed. The question before us on this appeal is whether the respondent was subject to the provisions of the workmen’s compensation act.
Respondent is engaged in the manufacturing business in Kansas City. He and his former wife each own an undivided one-half interest in several properties in Wichita. These include the Fairview Apartments, which contain thirty-eight apartments, the house at 1220 South Emporia, the house next door to this, a duplex at 1408 North Broadway, properties at 19th street and on Arkansas avenue, and also property on Kellogg Terrace and Marquise Addition. These are all managed by an agent who has charge of renting them and collecting the rents. She is paid for her services. On the occasion of the injury involved here respondent called his brother-in-law, Mr. Crist, and told him he had some shingles to put on the house at 1220 South Emporia and the house next to it. He asked Mr. Crist if he would see that they were put on. Mr. Crist hired some men and started the work. Among these men was the claimant. The actual work of shingling this house and the one next door consumed four days and two hours. On some days the crew worked nine hours and on some, ten. Claimant worked one day and part of another. Mr. Crist testified that at different times he had done some repair work on respondent’s houses, but that respondent did not look to him to do all his repairs. There was no evidence as to any other repair work. Neither was there any evidence as to any construction work.
The commissioner took the position that since it took a substantial amount of the agent’s time to manage and maintain the various properties, as well as to keep them in repair, the work was building work under the statute so as to bring respondent under the workmen’s compensation act.
We must examine the provisions of the statute. G. S. 1935, 44-505, provides as follows:
“That this act shall apply only to employment in the course of the employer’s trade or business in the following hazardous employments.”
Among the hazardous occupations listed in the above section was “building work.”
G. S. 1935, 44-508 (/), defines building work as follows:
“ ‘Building work’ means any work in the erection, construction, decoration, alteration, repair, or demolition of any building or structural appurtenances.”
Our question then is whether under the facts and circumstances of this case the business of respondent was that of repairing buildings. In order for this to be the case this court has held that a substantial amount of the time and labor of the respondent must be devoted to it. (See Setter v. Wilson, 140 Kan. 447, 37 P. 2d 50, and Shrout v. Lewis, 147 Kan. 592, 77 P. 2d 973.)
Claimant here relies on what was said by this court in the latter case. What was held in that case, however, was that under the facts and circumstances of that particular case this court could not say that there was not sufficient evidence to support the finding of the trial court that the respondent was engaged in the building business. The record disclosed, however, that a few years before the accident, which was the subject of the litigation, the respondent built and remodeled several houses and was remodeling one when the workman was injured. There can be no doubt that there was ample evidence in that record from which the commissioner could find as a fact that respondent was engaged in the building business, as defined in the workmen's compensation act. In the case we are considering, however, only four days were devoted to the repair of the building in question and only two houses were worked on. This occupied such a small part of the time of respondent or his agent that it cannot be said to have been a substantial part of it. If we think of the word “business” in its ordinary and accepted meaning then no one would say respondent was in the building business. The work described occupied too small an amount of his time and attention for this to be possible. If it should be held that this four days' work on these two houses constituted engaging in the building business then every person who owned a building other than his residence and found it necessary to hire a workman to do some work on it would find he was subject to the workmen’s compensation act. The legislature did not intend such a result.
We turn then to the argument of claimant that it took a substantial amount of the time and attention of the agent for respondent to look after the buildings, such as renting them and collecting the rents, besides the repair work, and that this brings respondent under the act. We have concluded that the compensation act was not intended to cover such activities as renting apartments and houses and collecting rents. The idea of the compensation act was to provide that the injuries suffered by workmen in hazardous employment and the damages resulting therefrom might be spread over all industry so that the burden might not be ruinous to any. The work of collecting rents and renting houses cannot be classed as hazardous, neither is such work named in the statute. A careful study of G. S. 44-505, 44-508, convinces us of this. We cannot assume that the business of owning and operating an apartment house with thirty-eight apartments, and a half dozen dwelling houses, would require enough work to occupy a substantial amount of the time and attention of the owner or his agent.
The judgment of the trial court is reversed with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for injuries alleged to have been sustained when the car in which plaintiff was riding collided with a truck. Judgment was for plaintiff. Defendant appeals.
The action was against the Baxter Chat Company and Vernon White and James White, his brother. The Chat Company was engaged in operating a tailing mill. In operating this mill it had chats, tailings and sand hauled from a point about one and one-half miles south of Baxter Springs to its tailing mill west of that city. This material was hauled in trucks. The route traveled by these trucks from the place where they were loaded was north on Military avenue to Twelfth street, thence west on Twelfth street to the tailing mill. Plaintiff was injured when the car in which she was riding was struck at the intersection of Twelfth and Wyandotte by a Chevrolet truck loaded with chats. The truck was owned by James White. At the time of the collision it was being driven by Vernon White. The action was brought against the Chat Company and both the Whites on the theory that they were the employees of the company. The Chat Company argues that its demurrer to the evidence of plaintiff should have been sustained because it did not show that Vernon White was the servant of the company. This point was also raised in a motion for a directed verdict and for judgment notwithstanding the verdict. On account of the vigor with which this point is urged we shall deal with it at the outset.
J ames White testified for the plaintiff that the work in question was that of hauling tailings from where they had been thrown around a mine to a mill where the tailings were treated so as to get more ore out; that he was not the only one hauling; that they hauled what the mill would handle each day; that the tailings were loaded on the dump trucks with a power shovel operated by a man named Charley; that the Chat Company paid him for hauling; that along about the 4th or 5th of January he asked Sam Smith at the place where the chats were being loaded if he could have a job, and Sam said he was full up at the time but would give him the first opening, and that the company paid seven cents a ton for the hauling; that about the 5th of January he drove nis truck to the place where the chats were being loaded, and the shovel man told him to “back under and load up,” and he did back under and load up and took the load of tailings by the road which the rest of the trucks were taking to the mill west of Baxter Springs and dumped it in the hopper; that a scale man at the chat mill weighed two or three of the loads each day; that he worked for seven or eight hours that day; that he hauled on the 6th of January, and when he came to work on the 7th he brought his brother with him, and went with him on two of the loads to show him where the mill was; that he was paid once a week by check; got his pay from the shovel operator, and the check had the Baxter Chat Company at the heading; that he continued hauling for about five weeks; that the reason he had Vernon White drive the truck on the day in question was that he had rheumatism on that day; that on that day Vernon was taking his place in the operation of the truck; that he had no record of the weight of the various loads, and relied on the figures of the Chat Company; that he had no agreement with the Chat Company as to how many loads he would haul; that the way he knew he could not haul any more on a particular day was if the hopper was full along in the afternoon they knew they could not haul any more and went home; that when he came to the place where the chats were being loaded he drove his truck to a place where the shovel could reach it.
On cross-examination he testified that he did not receive any compensation from the Chat Company over seven cents a ton; that he paid for his own gas and oil and upkeep of the track; that no employee of the Chat Company told him what route to take, nor how to load, nor as to the number of trips he was to make a day, nor the time he should take in making the trips; that he hired Vernon White to drive the truck on January 7; that no one connected with the company suggested that he hire Vernon; that Vernon White remained subject to his control and direction at all times.
On redirect examination he testified that the only agent or supervisor of the company he knew was Sam Smith; that while Vernon White was driving the track he would have heeded the directions of the shovel operator had any been given.
The next witness was Charley Anderson, the shovel operator. He testified that he was employed to run the shovel; that all the track drivers knew they were to go to work at eight o’clock in the morning; that if a truck driver came along and they needed a track he was told to go to work under orders of Sam Smith, the foreman; that when something happened at the mill on account of which they did not need any more chats they sent word down from the mill and he or the foreman told the truck drivers; that the truck drivers quit working for the company whenever they got ready.
Sam Smith testified that he was superintendent of the Chat Company and had charge of hauling the chat; that he hired the track drivers; that some arrangement was made with all track drivers; that if a truck driver wanted to quit they had no means of preventing him; he would decide whether a track driver was needed; he determined how long the company would keep a man and who would be employed.
Recalled, the shovel man testified that he knew Vernon White was driving one of the. trucks on the day plaintiff was injured.
To this evidence the Chat Company interposed a demurrer and moved the court for a directed verdict in its favor. The demurrer was overruled and the motion denied. The Chat Company urges this was error.
The first argument of the company is that it is entitled to judgment because the evidence of plaintiff failed to establish that Vernon White was driving the truck in question as the servant of the company. The argument is that Vernon White was the employee of James White and James White was not the employee of the Chat Company, but was an independent contractor. The company contends that the decisions of this court in Redfield v. Chelsea Coal Co., 136 Kan. 588, 16 P. 2d 475, also Redfield v. Chelsea Coal Co., 138 Kan. 373, 26 P. 2d 579, are controlling on this point. Those were two cases that involved the same parties and the same collision. We have examined them and have concluded that there is such a difference in the facts between this case and those two that they cannot be given the weight for which the defendant contends. Those two cases were disposed of on a demurrer to the evidence. The plaintiff in the Redfield case was injured when the car in which she was riding collided with a truck driven by a man named Lamb and owned by a man named Garland. The truck had been used in hauling coal for the mining company. The plaintiff did not call the officers of the mining company to the stand so that there could be the clear proof of the relationship between the truck owner and the company, and the truck driver and the company, that there was in this case. In one of these opinions it was remarked that there was no proof that the truck was being used to haul coal or even returning from hauling coal at the time of the collision. The situation was quite different in this case. Neither do we have any quarrel with the rule laid down in Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498, nor that laid down in Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P. 2d 474.
This court when considering a demurrer to the evidence will consider all the plaintiff’s evidence as true, will consider that favorable to plaintiff and disregard that unfavorable to plaintiff. (See Robinson v. Short, 148 Kan. 134, 79 P. 2d 903.)
In Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, this court defined the term “independent contractor” as follows:
“An independent contractor generally is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.” (Syl. ¶ 2.)
It will be noted that the distinction turns not on whether the employer exercises the right of control, but on whether the employee is subject to the control of the employer. It should also be noted that the term “independent contractor” implies that it is one who contracts to do a certain piece 0/ work. This question was further considered in Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907. There this court said:
“. . . according to all the authorities whether they were or not depends upon who had the right of control over the work. This was made plain in Pottorff v. Mining Company, 86 Kan. 774, 122 Pac. 120, approving the definition of the term ‘independent contractor’ as ‘one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work,’ and it was said that ‘an independent contractor represents the will of his employer only in the result of his work and not in the means by which it is accomplished,’ and ‘the proprietor may make himself liable by retaining the right to direct and control the time and manner of executing the work.’” (p. 415.)
In this case an examination of the record convinces us that the Chat Company at all times had the right to control the manner in which this work was done. Sam Smith, the foreman, testified to that effect. The fact that the occasion did not arise for the exercise of that control on this particular job does not mean that the right to control was not there.
Then there is the element of contracting to do a certain piece of work. James White did not contract to haul any certain number of loads nor did the company agree to pay him for hauling any certain number of loads. He could have quit after the first load had he wished to or the company could have discharged him after the first load. To the same effect is Cockran v. Rice, 26 S. D. 393, 128 N. W. 583. There the unrestricted right of the employer to end the employment was emphasized. (See, also, McKinstry v. Coal Co., 116 Kan. 192, 225 Pac. 743; Phillips v. Armour & Co., 108 Kan. 596, 196 Pac. 245.) We have concluded that the evidence in this respect established that James White was the employee of the Baxter Chat Company.
We next come to the relationship between the Chat Company and Vernon White. It will be noted that the next day after James was employed he put Vernon in charge of the truck. It will also be noted that the shovel operator for the company knew that Vernon was driving the truck on the morning in question. The rule is stated in 39 C. J. 1271 as follows:
“Subject to the limitation that the acts complained of must be within the scope of the servant’s employment, a master is liable for the acts of one whom the servant employs under authority given him by the master to assist in the performance of the master’s work. The authority to employ assistants may be either express or implied; it may be implied from the nature of the work to be performed, from the general course of conducting the business of the master by the servant, or from the circumstances of the particular case.
“Authority to hire other servants to do the work of the master may be implied when he knows of such hiring and acquiesces in it.
“A master may also become hable for the acts of an assistant employed by the servant where he ratifies such employment.
“If the employment was authorized, the employing servant is not liable for the acts of the servant so employed.”
In this case it is clear that the Chat Company had control over Vernon White at all times when he was working, just as it had over James White. The work performed by Vernon was just the same work as was performed by James. In Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 26 L. R. A. 739, the court held:
“If a servant who is employed to perform certain work for his master procures another person to assist him, the master is liable for the negligence of the latter only when the servant had authority to employ such assistant.
“But this authority may be implied from the nature of the work to be performed, or from the general course of conducting the business of the master by the servant; and it is not necessary that there should be an express employment of the person in behalf of the master, or that compensation be paid or expected. It is enough to render the master liable if the person guilty of the negligence was at the time in fact rendering service for him by his consent, express or implied.”
In that case the plaintiff was injured by a person whom an employee at the depot had asked to assist him. The court held the company liable for the acts of the helper. In Southern Express Co. v. Brown, 67 Miss. 260, 19 A. S. R. 306, the court held the company liable for the acts of a person whom its agent had employed to help him in doing the company’s work. The decision turned on the fact that the third person was really doing work for the company and was subject to being discharged by the company, just as Vernon White was in this case. The court quoted with approval from Kimball v. Cushman, 103 Mass. 194, 4 Atl. 528. There the court said:
“The fact that a person, who, being in charge of a horse with the assent of its owner and engaged on his business caused an injury by negligent riding, was in the general employment of a third person, does not exempt the owner of the horse from liability for the injury, unless the relation of the third person to the business was such as to give him exclusive control of the means and manner of its accomplishment, and exclusive direction of the persons employed therefor.” (Syl.)
See, also, Hollidge v. Duncan, 199 Mass. 121, 85 N. E. 186. These authorities are controlling in this case, in view of the fact that the shovel man for the company who told James White to go to work knew that Vernon White was driving the truck on the morning in question. Apparently it made no difference to the company who was operating the truck, just so it was operated. We have concluded that James White and Vernon White were both servants of the Chat Company and the company was liable for their negligence.
The defendants, the Chat Company and Vernon White, next argue that they are entitled to judgment because the evidence shows that the collision was caused by the negligence of plaintiff and of the driver of her car. In deciding this question we shall note the manner in which the collision occurred.
The plaintiff alleged that the car in which she was riding was being driven southward upon Wyandotte street toward the intersection of that street with Twelfth street; that the driver of her car brought it to a complete stop before entering the intersection, saw no vehicles approaching, entered the intersection and was commencing to make a turn to the east when the defendants’ agent and employee driving a truck at a high and dangerous rate of speed and on the wrong side of the street, drove the truck into the car in which plaintiff was riding and injured her.
Mary Bynum was the driver. She testified that she stopped just before entering the intersection and looked in both directions; saw no vehicles approaching, drove into the intersection and got about a car’s length on Twelfth street and saw the truck coming at the railroad tracks, which other witnesses placed about 200 or 250 feet. east of the intersection; that after passing the center of Twelfth street about half or three quarters of a car’s length she started to turn east, had turned about half or three-fourths of a car’s length at the time the truck hit her. If this story were believed by the jury it would be sufficient to warrant it in finding that the defendant was guilty of negligence for being on the wrong side of the street. There is nothing in that story to justify a finding that the plaintiff or her driver was guilty of contributory negligence. The testimony of plaintiff corroborated that of her driver. We hold that there was sufficient evidence as to the negligence of the truck driver to make that a question for the jury, as was also the matter of contributory negligence of plaintiff and her driver. This was not a case where the car of plaintiff was driven into the path of an on-coming truck. The car of plaintiff had reached a place of safety, that is, the right-hand side of the street, where it would not have been hit had the truck been on the right-hand side of the street, where it belonged. There is evidence in the record contradictory to this, but this court cannot weigh evidence on a question of a demurrer to the evidence.
Defendants next argue that they should be given a new trial on account of newly discovered evidence. At the hearing of the motion for a new trial the defendants 'furnished an affidavit of one eyewitness to the collision, that immediately after the collision he heard plaintiff say that Mary Bynum did not stop before entering the intersection and that she admitted she did not see the truck until they were out in the intersection. They furnished the affidavit of another eyewitness that he saw the car of plaintiff enter the intersection without stopping, at a speed of about fifteen miles an hour, and of another witness who stated that the White truck, after the collision, was standing with its north wheels north of the center line of Twelfth street and that there were skid marks where the Dobson car had been pushed east down the center of the street.
The trial court considered these affidavits along with the oral testimony of one of the affiants, which did not agree altogether with his affidavit. The court had also heard the testimony of the witnesses at the trial. It was the trial court’s duty to find whether this evidence could have been discovered with due diligence before the trial, whether it was cumulative and whether it was of such a character and strength as would with reasonable probability have compelled a different decision. (See Sexton v. Lamb, 27 Kan. 432.) On the question of whether the evidence was cumulative there can be no doubt. There was some evidence at the trial on every point upon which evidence was offered on the motion for a new trial. As to whether the evidence was of such a character and strength as would with reasonable probability have compelled a different decision, this is a matter upon which the. trial court should exercise its discretion. No doubt the court did so in this case. We cannot say here that the decision reached by the trial court was an abuse of discretion or that the affidavits offered compelled any other decision.
Defendants next argue that the court erred in refusing to give certain instructions and in giving other instructions over the objection of the defendants. We have examined these instructions and find them to be without error.
Defendants next argue that they were entitled to a new trial because the verdict was grossly excessive. The verdict was for $12,000. Plaintiff argues that defendant Chat Company cannot raise that question here. A consideration of this argument requires an examination of certain events that happened at the trial. It will be noted that the action was against James White and Vernon White and the Baxter Chat Company. At the close of the evidence of plaintiff all these parties demurred to it. These demurrers were overruled. The Chat Company then'elected to stand oh its demurrer. It was stipulated that in the event of a verdict against Vernon White or James White or against either or both of them that a judgment should be by the court entered against the Baxter Chat Company for such an amount of damages as should be assessed against either one or both of the Whites. At the close of the entire case a motion for a directed verdict as to James White was confessed because it appeared that Vemon was the employee of the company and not of James. Final judgment was then entered against the Chat Company and Vernon. Defendants point to the above agreement and argue that since the Chat Company agreed that whatever judgment should be entered against either one of the Whites should be entered against it, they cannot now be heard to protest the size of the verdict. We do not think, however, that by this stipulation the Chat Company waived its rights to have any ruling of the trial court reviewed. Furthermore, Vernon White is also an appellant here, and certainly he has a right to raise the point of the excessiveness of the verdict.
The plaintiff did not suffer the fracture of any bones or the displacement of any bony structure, no vital organ was injured and there were no lacerations of her face or any other parts of her body. She was not rendered unconscious. According to her own testimony she was bruised all over her right side, including her breast. She was black and blue all over her body. At the time of the trial there was a knot in her right breast that had been there ever since the wreck. It was sore to the touch. Her hip was bruised so badly that she could not sit down comfortably. There was a very sore place at the end of her spine. The next day after the injury she commenced flowing and flowed constantly for five or six weeks. At the time of the trial she still had the same trouble. She went to a doctor, but continued to flow, and got so she could not get on her feet. She had not had any trouble with her menses previously. She got so she could not even sweep her house, was restless at night and had headaches almost constantly. Before the accident she was taking care of the children and doing from seven to twelve washings a week. After the wreck she had to give them up and had to hire help to do her housework. Her doctor corroborated this testimony in the main. He testified that the trouble with her menstrual flowing was due to her uterus being prolapsed. This was corrected in a measure by her wearing a ring to support the uterus. He testified that the soreness at the base of her spine was caused by her coccyx having been cracked. He stated that the lump in her right breast was about the size of a pecan, and had grown some since the injury. He did not know whether this lump was a malignant growth or not. He testified that the flowing condition could be cured by a major operation that would cost, including the hospital bill, about $250 or $300. From the above statement it will be seen that plaintiff did not receive any injury that cannot be corrected at a moderate cost.
While there is no hard-and-fast rule by which the amount of a verdict may be measured as to whether or not it is excessive, it is plain that the amount of the verdict in this case is a great deal more than enough to compensate the plaintiff for damages she may have suffered. It is not every excessive verdict, however, that requires a new trial. In some cases the error can be cured by reducing the amount of the judgment. In cases where the amount has been so out of proportion to the damages suffered as to shock the conscience of this court, approval of a judgment in the amount granted by the trial court has been withheld and the order has been that the judgment would be affirmed provided that the plaintiff would accept a judgment in a sum somewhat less than the amount for which the verdict was rendered.
We have concluded that such an order should be made in this case in the interest of justice.
If plaintiff will remit $5,000 of the judgment, and so advises the clerk of this court within ten days after the filing of this opinion, the judgment of the court will be affirmed; otherwise, it will be reversed for a new trial. It is so ordered.
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The opinion of the court was delivered by
Allen, J.:
The appeal in this case is from the order and judgment of the trial court sustaining a demurrer to plaintiff’s petition. The appeal involves the same questions presented in the case of G. S. Johnson Co. v. N. Sauer Milling Co., this day decided. See post, p. 861. For the reasons therein stated, we hold the petition herein fails to state a cause of action.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action to foreclo.se a mortgage on real estate. Judgment was for plaintiff for the amount of the note and ordering foreclosure. The trial court refused to confirm the sheriff’s sale. Plaintiff appeals from that order.
Defendants gave a first mortgage on a quarter section of land to the Federal Land Bank of Wichita for $3,100. This mortgage was given April 1,1934. On the same date defendants gave a second mortgage on the same real estate to the land-bank commissioner for $2,200. This mortgage later became the property of the Federal Farm Mortgage Corporation, the plaintiff in this action. No interest was ever paid on this mortgage. On January 22, 1937, plaintiff exercised its option of accelerating the maturity of its indebtedness, and brought this action asking judgment on the note and that the mortgage securing it be foreclosed. Personal service was had upon all defendants. They did not appear or file any pleadings at any stage of the proceedings. Judgment was duly rendered on May 6, 1937, by default, in the amount of $2,782.92. Judgment was also rendered for the foreclosure of the mortgage as a second lien subject to the prior lien of the Federal Land Bank of Wichita in the sum of $3,100.
Pursuant to this judgment the land was ordered sold, and was sold by the sheriff on June 21, 1937. It was bought by the plaintiff, who was the only bidder, for $2,200. After taxes, cost and interest were paid there was left a deficiency judgment against defendants of $975.35.
A motion to confirm this sale was filed by plaintiff. A copy of this motion, which recited the amount of the bid and the amount remaining unpaid on the judgment, was served on defendants, together with a noticé of the time and place of a hearing on the motion. Defendants did not appear at this hearing. The plaintiff introduced certain oral and documentary evidence and requested the court to make findings of fact and conclusions of law. The court complied with this request. Most of the findings set out the history of the case about which there was no dispute. The findings with which we are concerned are as follows:
“10. The evidence discloses that the value of this real estate is generally the same as it was in 1934, when this loan was made, and that there has been no appreciable increase or decrease in the value of the same since the first appraisement.
“11. That the real estate involved herein, at the time of the sheriff’s sale herein, was of the reasonable value of the two mortgages of record, plus the unpaid interest and taxes upon the same, plus the costs of this case.
“12. That the amount bid by the plaintiff at said sheriff’s sale was not an adequate price for said real estate.”
Pursuant to these findings the court concluded as a matter of law plaintiff ought not be granted a deficiency judgment against defendants; that the price bid at the sale was not an adequate price for the real estate and was not its fair and reasonable value.
The motion to confirm the sale was overruled and the sale set aside. Judgment was rendered in accordance with these findings and conclusions. This appeal is from that judgment. Defendants have not made any appearance nor filed any brief in this court.
At the outset it may be observed that the proceedings leading up to the sale were regular in every respect and the sale was made in conformity to law.
The matter under review here is covered by G. S. 1935, 60-3463, and G. S. 1935, 60-3463a. These two sections are as follows:
G. S. 1935, 60-3463, reads:
“The sheriff shall at once make a return of all sales made under this act. to the court; and the court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same, and direct that the clerk make an entry upon the journal that the court finds .that the sale has in all respects been made in conformity to law, and order that the sheriff make to the purchaser the certificate of sale or deed provided for in this act.”
G. S. 1935, 60-3463a, also reads:
“The court, in determining whether or not the proceedings in judicial sales are regular and in conformity with law and equity as expressed in section 60-3463 of the Revised Statutes of Kansas of 1923, may decline to confirm the sale where the bid is substantially inadequate, or in ordering a sale or a resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the premises must be bid in if the sale is to be confirmed, or the court may, upon application for the confirmation of sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judg ment, taxes, interest and costs shall be deemed adequate. This act is intended as declaratory of the equity powers now existent in the courts under section 60-3463 of the Revised Statutes of Kansas of 1923.”
Our inquiry is as to whether the sale was in conformity with equity or, in other words, whether the price paid by plaintiff of $2,200 was substantially inadequate. It should be noted that the land was sold subject to the lien of $3,100 first mortgage. When plaintiff bid $2,200 for the land it brought only what it was worth over and above this first mortgage.
Plaintiff argues there was no evidence that the price of $2,200 was not an adequate price for this real estate. The evidence offered by plaintiff consisted in the main of the testimony of two witnesses who appraised the land for plaintiff for the purpose of this hearing. One of them testified that he was an appraiser for the Federal Land Bank; that he appraised this farm a short time before the hearing; that it consisted of about 100 acres of pasture, about 40 acres of bottom land, 30 acres of very good land, about 10 acres just as good but cut off by a creek, then about. 15 acres thin upland, then about 20 acres, part in grass and part under plow, which he valued at $20 an acre, then about 75 acres in bluffs along the creek with very little grass on it, which he valued at $10 an acre; that he valued the house at $1,500; that the barn was about to fall down. His valuation totaled $5,200. It will be noted that when the first lien of $3,100 is considered, the price bid by plaintiff was $5,300. Thus the testimony of this appraiser gave the value of the farm as $100 less than the bid.
We do not have the benefit of a brief on the part of the defendants, but we are enabled to understand the theory of the trial court by some testimony elicited by the trial court in an examination of this witness. In response to questions by the court he testified as follows:
“Q. Do you appraise land for the purpose of making loans or for the purpose of fixing up. the property? A. Both.
“Q. You do make appraisement for the purpose of making loans? A. Yes.
“Q. And for the purpose of fixing up the properties? A. Yes.
• “Q. What are the instructions in regard to the amounts land is to be appraised at? A. The Federal Land Bank loans are based upon 50 percent of the value of the property plus 20 percent of the value of the buildings. The emergency act made it so loans could be made at 75 percent of the appraised value of the land and buildings. We made loans first for the Federal Land Bank and then they furnished the rest from the commissioner fund.
“Q. Then when this loan was made at $5,300 they recommended not to exceed 75 percent. No answer.
“Q. You don’t know what this place was appraised at? A. No.
“Q. Who appraised the place at that'time? A. I don’t know; we had 268 appraisers working.
“Q. At that time in 1934 when this place was appraised the conditions you talked about were the same as today? A. Yes.
“Q. What about the condition of the premises? Were they the same as today? A. Yes.
“Q. That pasture was just as rough as it was today? A. Yes, but there was grass on it.
“Q. You appraise that at $10 per acre? A. Yes.
“Q. The creek you say cuts the farm in two was there at that time just the same as it is today? A. Yes. It has been there a long time.
“Q. Is it the idea of the government that they appraised the land too high and made too big a loan? A. There is no doubt about that.
“Q. They are wanting the court to take care of their mistake; is that it? A. I don’t know what they are wanting. They sent me to testify as to what the farm was worth.
“Q. What would you say generally as 'a witness as to the' value of this farm generally as compared with its value in 1934? A. In this territory I would say there is very little difference, in some places it is a little better. Land is selling very low in this particular territory.
“Q. Here you think the value generally is about the same as in 1934? A. I would not think it would be any different.”
It will be seen that had the original loan of $3,100 plus $2,200 been 75 percent of the value of the land, the total value would have been something like $7,000. The evidence just quoted is all the trial court heard on the subject. This is not evidence of value, but only evidence of what some appraiser must have thought the value was at the time the loan was made. Such evidence was not competent on the question the court was considering. It was hearsay.
The other appraiser testified that $4,500 would be a big price for the place. The next evidence introduced by plaintiff was the tax rolls of the county. This piece of real estate was carried on the tax rolls at $4,280. There was no evidence offered to controvert any of this evidence. Under such a state of the record we are compelled to reach the conclusion that there was no evidence in this record to sustain the finding of the trial court that the bid of $2,200 subject to the prior mortgage was not an adequate bid for the real estate, or that the real value of the land at the time of the sheriff’s sale was the amount of the two mortgages plus the unpaid interest, taxes and costs in this case. On the other hand, we hold that the uncontradicted evidence required a finding that the price bid by plaintiff was adequate and that the value of the place was about the amount of the two mortgages, or $5,300. Such a finding would have required a judgment confirming the sale and allowing a deficiency judgment.
The judgment of the trial court is reversed with directions to confirm the sale and to enter judgment in accordance with the views herein expressed.
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