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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover for property damages and personal injuries -resulting from a collision of motor vehicles. Judgment went for plaintiff, and the defendants, the Santa Fe Trail Transportation Company, a common carrier, and its insurer, the Standard Accident Insurance Company of Detroit, Mich., appeal.
Numerous assignments of error are alleged. We shall first treat the contention the demurrer to plaintiff’s evidence should have been sustained. This requires a review of plaintiff’s evidence. Briefly stated, the material portion thereof was substantially as follows: Plaintiff was traveling from Junction City to Pittsburg. The accident occurred in the daytime of March 13,1937, on federal highway No. 59, after plaintiff had left Princeton. This highway runs generally in a northerly and southerly direction, but the accident occurred on a mile stretch of road which runs east and west. This mile of road was on a level tract of land. It was snowing. The wind was from the north and it had driven the snow from the north edge of the pavement with the result that side was mostly free from snow. The snow had drifted into the south ditch and had also covered the south side of the highway sufficiently to make driving there difficult. Plaintiff could see the entire distance of the one-mile stretch. When she entered on that stretch no other vehicle was on it. Observing this condition, she drove on the north or on her left side of the highway. After proceeding about a half mile she observed the truck of the defendant transportation company coming west at the end of the mile stretch. She then again tried the south or right-hand side of the road and again found driving difficult there and returned to the north side until she got nearer the truck. She continued to watch the truck and decided to turn back to the south side in time to permit the truck to pass. While the truck was on the north side and 200 feet east she turned to cross to the south side. When she turned southeast the truck was still on the north side of the road. By reason of the snow-covered condition on the south side she was obliged to give her attention to that side of the road as well as to the truck. This she did. .Her testimony was:
“A. I had to keep one eye or the corner of my eye on the edge of that pavement, on the north side of that pavement, all the time.
“Q. Well, that is what you did? A. But I saw the truck. I never missed it. I had the truck in my mind, in my eye, all the time.”
In attempting to reach the south side she drove two feet over on the right shoulder. After getting over to the south side and “straightening out,” she looked up and the truck was about thirty feet away. The truck was, in her own words, “coming down on my side of the pavement, right at me, diagonally across, clear across the pavement, so that I couldn’t get by it on either side.” Defendant’s vehicle consisted of a truck and trailer. Plaintiff was driving her car about twenty-five miles per hour. The road was snowy and slippery. The truck was being driven at least thirty-five miles per hour.
A. N. Affolter, a farmer and filling-station operator, who lived just around the bend at the east end of this mile stretch, testified in substance: He went to the place of the accident a half or three-quarters of an hour after it occurred. In that time there was no change in the weather conditions. When he got to the slab his view was unobstructed to the scene of the accident. He could see the road the entire distance of the mile stretch. When he reached the place of the accident the front wheels of the truck were in the south ditch, and the hind wheels of the semitrailer were partly on the slab. The truck was facing southwest. The position of plaintiff’s car had been changed by that time.
There is no dispute, however, about the fact that the collision occurred on the south shoulder of the highway. There is no question concerning the fact there was property damage and that there were personal injuries. The extent of the damage will be treated later.
Did the court err in overruling defendant’s demurrer to plaintiff’s evidence? On this question the trial court adopted plaintiff’s contention that the question of the truck driver’s negligence and plaintiff’s contributory negligence were jury questions. Plaintiff’s contention was in substance: Considering the conditions of the road she had a right to travel on the north side, providing she moved over in sufficient time to permit the truck driver to pass; the latter knew or should have known the conditions of the road, and the difficulty of traveling on the south side; he should have slowed down when he saw plaintiff’s difficulty in traveling on the south side; the truck driver had the right to assume plaintiff would endeavor to reach the south side in time for him to pass; plaintiff turned to the south side while the truck driver was still on the north side of the road and when 200 feet away; the truck driver could have passed on the north side; if the truck had been under proper control and the driver of the truck had kept his view on plaintiff he would have seen the plaintiff turn to the south and could have avoided running into her car on the south shoulder of the highway; plaintiff was guilty of no contributory negligence, but in any event the question was for the determination of the jury.
The pertinent statute now touching the subject of travel on a certain side of the road, namely, section 37, chapter 283, Laws of 1937, was not in effect at the time of the collision and need not be considered. That a driver, so long as he has the road to himself, for a distance as far as he can see, may travel on any portion thereof, has been definitely determined. (Gardner v. Leighton, 144 Kan. 335, 338, 58 P. 2d 1111, and cases there cited.) Whether plaintiff, under all the circumstances, moved over in time for defendant to pass, and whether the driver of the truck exercised the proper degree of care before plaintiff started to turn south, and whether both parties exercised the proper degree of care after plaintiff had started to turn south, cannot be said to constitute questions which can be answered as a matter of law. They were proper questions for the determination of the jury. Touching the demurrer, defendants stress mostly the alleged contributory negligence of the plaintiff. In numerous cases we have said in substance what was again recently said in Jones v. McCullough, 148 Kan. 561, 85 P. 2d 669, as follows:
“In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.
“In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion'for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable'minds might reach different conclusions thereon.” (Syl. ¶¶ 1, 2.)
The application of these principles to the facts in the instant case requires us to affirm the ruling on the demurrer.
The special verdict of the jury was as follows:
“1. Was the plaintiff on the north or defendant’s right-hand side of the road just shortly prior to the accident? A. Yes.
"2. How far was plaintiff from defendant when she turned to the south side of the road? A. 200 feet.
“3. Did defendant driver turn to south side of the road before or after plaintiff turned to the south from the north side of the road? A. After.
“4. Was the driver of truck, when approaching plaintiff, driving too fast under the known conditions then existing? A. Yes.
“5. If you answer the last above question ‘yes,’ was it negligence on the part of the driver to drive at the rate of speed he was then driving? A. Yes.
“6. Did the driver of the truck negligently drive the same, or negligently permit the same to run, onto his left-hand side of the highway? A. Yes.
“7. Did plaintiff drive onto her right-hand side of the road in seasonable time to permit the driver of the truck to continue on his right side without collision? A. Yes.
“8. Did plaintiff know that the truck was driven onto her right-hand side before it was too late for her to avoid the collision? A. No.
“9. If you find that the driver of the truck was negligent, either because he was driving too fast, or by driving or permitting his truck to run onto the south side of the road, then was such negligent act a substantial factor in producing the collision? A. Yes.
“10. Was plaintiff guilty of any negligence which was a substantial factor in producing the collision? A. No.
“11. If you find for plaintiff, how much do you allow — ■
(1) For damages to the car? A. $155.43.
(2) For expenses from the time of the accident to plaintiff’s arrival home? A. $19.15.
(3) For doctor bills? A. $100.
(4) For pain and suffering? A. $1,000.
(5) For loss of earnings? A.-.
(6) For loss of enjoyment from being unable to play the violin? A. $4,000.
“12. How close was plaintiff to defendant when she noticed that he was on the south side of the road? A. 40 feet.
“13. What were the earnings of plaintiff for one year preceding the accident? A. Not any.
“14. Did the negligent acts of Mrs. Hogan contribute to cause the accident? If you answer in the affirmative, state how. A. No.
“15. Do you find the driver of the truck guilty of negligence? If you answer in the affirmative, state what the negligence consisted of. A. Yes. He was negligent in not making sure that car of plaintiff was not moving. Also on crossing onto south side of road. Driving at too great a speed, considering condition of road and weather.”
Plaintiff complains concerning the wording of some of the special questions. No objection was made thereto at the time of the trial and a complaint at this time is too late.
Complaint is made concerning certain instructions on the ground they indicated the defendant was at fault. The instructions are not subject to that complaint. Objection is made certain instructions were not adequate. No fuller or more complete instructions were requested and no objection was made to those given. Under such circumstances no reversible error exists. (Skaer v. American Nat’l Bank, 126 Kan. 538, 541, 268 Pac. 801; Birdsong v. Meyers, 141 Kan. 140, 143, 40 P. 2d 430; Waltmire v. Ford, 147 Kan. 732, 740, 78 P. 2d 893; G. S. 1935, 60-2909.)
Defendants urge the trial court erred in failing to give an instruction on the doctrine of last clear chance. The instructions fairly covered the issues joined by the pleadings. No complaint at the time of trial was made on the ground the instructions were inadequate as to any issue urged and no instruction on that question was submitted by defendants. Assuming, without deciding, that such an instruction was applicable, no reversible error is disclosed.
Defendants contend the trial court erred in refusing to render judgment in their favor on the special verdict. That verdict is in harmony with the general verdict and the ruling was proper. That is, the verdicts were in harmony insofar as damages in some amount were concerned.
The real difficulty as to both verdicts is the item of $4,000 contained in finding number 11 (6). That question and that finding were:
“11. If you find for plaintiff, how much do you allow (6) for loss of enjoyment from being unable to play the violin? A. $4,000.”
Defendants insist that item cannot stand for the reason it does not rest upon a substantial basis, and damages therefor cannot be assessed in money. In other words, the contention is damages awarded for “loss of enjoyment” resulting from being unable to play a violin would or might be based upon pure conjecture and speculation. They also contend $4,000 for that item is excessive, even though it should be held “loss of enjoyment” constitutes a proper element of damages. Defendants also urge the instructions in the case did not warrant or contemplate recovery for “loss of enjoyment.” That contention concerning the instructions is probably correct. The trial court, however, submitted this particular special question and we shall meet the issue on the theory it is properly before us. We do that for another reason. Plaintiff was asked a question which forms the basis of recovery on that item. Defendants objected to it and the objection was overruled. We are, therefore, obliged to meet the issue on the question of the alleged improper admission of testimony. The question and answer were:
“Q. Now state whether or not, outside of the earning of money, it meant anything to you and, if so, what? A. It was my life work. It is just part of me. Every place I go, if I don’t have my violin, why I wonder where it is. I have played it all my life. I play solos — solos by myself, with a piano accompaniment.”
Plaintiff was an accomplished violinist. She had studied under artists at home and abroad. She had given individual violin lessons and she had directed orchestras. She had played solos in public. Plaintiff was sixty-three years of age. For a year preceding the accident she had taken a vacation. Her earnings for the year prior to her vacation had been approximately $1,200. The particular injury here involved was the breaking of the proximal end of the fifth metacarpal bone of her left hand. It resulted in a permanent stiffening of the little finger. The finger was deprived of its strength and its lateral motion, with the result she is unable to play the violin. There were minor injuries which are not related to the immediate problem.
In support of defendants’ contention item 11 (6) did not constitute a proper element of damages, are cited: Consolidated Smelting Co. v. Tinchert, 5 Kan. App. 130; City of Columbus v. Strassner, 124 Ind. 482, 25 N. E. 65; American Strawboard Co. v. Foust, 12 Ind. App. 421, 39 N. E. 891; Pittsburg, etc., Ry. Co. v. O’Connor, 171 Ind. 686, 85 N. E. 969; South Bend Brick Co. v. Goller, 46 Ind. App. 531, 93 N. E. 37. We do not consider the first case cited as helpful on the particular issue here involved. In the first Indiana case cited that court held:
"An instruction to the jury that they should consider in measuring the damages any ‘lack of personal enjoyment’ occasioned by the' injury, was erroneous.” (Syl.)
In the course of that opinion it was said:
“Instruction numbered twenty-one was erroneous, in that, it informed the jury that they should take into consideration in measuring the damages which they would assess, in case they found for the appellee, any ‘lack of personal enjoyment’ occasioned by the injury. In other respects we are satisfied with the instruction, but in the respect mentioned we are of the opinion that it is erroneous. Counsel for the appellee have cited us to no authority in support of the instruction, and we have found none'. The question of damages, like other legal propositions, should rest upon some substantial basis. The following inquiries, therefore, suggest themselves: What is ‘personal enjoyment’? How are we to ascertain to what extent it is possessed by a human being? How can its absence and the cause thereof be demonstrated? If a person for any cause has been deprived of ‘personal enjoyment’ how are we to go about adjusting his loss upon a money basis? These questions seem to be pertinent, but unanswerable, and suggest an insuperable difficulty to the measurement of damages because of loss of ‘personal enjoyment.’ We are unable to say to what extent the objectionable part of the said instruction influenced the jury in measuring the damages which were assessed against the appellant, and, therefore, cannot hold that it was not injured by the instruction.” (p. 489.)
In the second Indiana case cited a contrary instruction, approved by the decision in the second case, was later specifically overruled in the South Bend Brick Company case. In the latter case the Indiana court reaffirmed its former decision in the case of City of Columbus v. Strassner, supra.
In the case of Locke v. I. & G. N. Ry. Co., 25 Tex. Civ. App. 145, 60 S. W. 314, it was held:
“Loss of capacity for the enjoyment of the pleasures of life, though alleged as a basis for damages, is too vague' an element to admit, of evidence to sustain it.” (Syl. ¶ 3.)
That the cause of an injury, such as the negligence of a defendant in personal-injury cases, cannot be grounded on mere conjecture or speculation has, of course, been definitely established. See Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, and numerous cases there cited. Also, Stephenson v. W. R. Grimshaw Co., 148 Kan. 466, 83 P. 2d 655. The same rule has been applied even in workmen’s compensation cases, where the cause of disability rests upon surmise, conjecture or speculation. (Fair v. Golden Rule Defining Co., 134 Kan. 623, 7 P. 2d 70; Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862.)
The same rule has been applied in various damage actions for breach of contract where the alleged resulting damage was too remote, speculative and uncertain. (Railway Co. v. Thomas, 70 Kan. 409, 78 Pac. 861; Altman v. Miller, 128 Kan. 120, 276 Pac. 289; Labette Petroleum Co. v. Cities Service Gas Co., 137 Kan. 75, 19 P. 2d 470.) And in actions to recover damages for personal injury which prevented plaintiff from engaging in speculative ventures. (Railway Co. v. Posten, 59 Kan. 449, 53 Pac. 465.) And to an action for damages for loss of future profits in an unestablished business. (States v. Durkin, 65 Kan. 101, 68 Pac. 1091.) And to an action for damages by a lessor against a lessee for oil alleged to have been drained from under the land of the lessor where the proof was speculative. (Corr v. Continental Oil Co., 145 Kan. 78, 64 P. 2d 30.) These are only a few of our own cases which might be cited on the general principle that recovery of damages may not be had where the cause of the injury is too remote and speculative and where the alleged resulting damages are too conjectural and speculative to form a sound basis of measurement.
The precise question of whether recovery may be had for “loss of enjoyment,” such as that claimed in the instant case, is one of first impression in this court. A few preliminary considerations may be helpful. While many states hold that recovery may be had for mental anguish which is not preceded by or accompanied with some physical injury (8 R. C. L. 518, and cases there cited), the general rule in this state is to the contrary. (City of Salina v. Trosper, 27 Kan. 544; A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Cole v. Gray, 70 Kan. 705, 79 Pac. 654; Lonergan v. Small, 81 Kan. 48, 105 Pac. 27; Whitsel v. Watts, 98 Kan. 508, 159 Pac. 401; Hendren v. Arkansas City, 122 Kan. 361, 252 Pac. 218.) In the instant case there was physical injury.
'In the Lonergan case, this court held recovery may be had for mental suffering, which is the proximate and natural result of intentional wrong, although there was no battery or bodily injury inflicted. This court has also held where mental suffering is induced by mutilation or disfigurement of the person such mental suffering may be considered as a proper element of damages. (Scott v. Cowan, 114 Kan. 32, 217 Pac. 698.) In that opinion, after reviewing numerous authorities, this court said:
“The rule was early announced in Kansas that:
“ ‘Where mental suffering is an element of the physical pain, or is a necessary consequence' of the physical pain, or is the natural and proximate result of the physical injury, then we suppose that damages for mental suffering may be recovered.’ (City of Salina v. Trosper, 27 Kan. 544, 564.)
“This rule has been followed in numerous cases decided by this court. (Railroad Co. v. Chance, 57 Kan. 40, 45 Pac. 60; Railway Co. v. Wade, 73 Kan. 359, 85 Pac. 415; Baisdrenghien v. Railway Co., 91 Kan. 730, 139 Pac. 428; Ramey v. Telegraph Co., 94 Kan. 196, 146 Pac. 421; Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341.)” (p. 34.)
In Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, it was said:
“And, as we view the matter, the plaintiff’s face having been disfigured and his speech having been impaired, to permit him to say that it embarrassed and humiliated him did not introduce an element not a natural result of his injury. On the contrary, it would seem that if one caused an injury to another which affected his appearance he could just as well assume that the disfigurement would humiliate and embarrass him as that the injuries would cause pain and suffering.” (p. 714.)
It has also been held that where fright results in a fall and the fall results in personal injuries, the injured party may recover for both the mental anguish and the bodily injury resulting from the negligent acts. (Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 268 Pac. 103.)
Plaintiff stresses the language employed in Railroad Co. v. Chance, 57 Kan. 40, 45 Pac. 60, where it was said:
“Damages for the permanent deprivation of health and of the capacity to work and enjoy life should therefore be limited to the period extending from December 1, 1890, to October 18, 1891. (Busw. Pers. Inj., § 20.)” (p. 48.)
Analysis of that opinion will disclose the precise point presented here was not an issue in that case and cannot be regarded as authority for plaintiff’s contention.
It is true that “loss of enjoyment,” and “loss of enjoyment of life,” under varying circumstances have been held to constitute proper elements of damage. (Haynes v. Railway, 101 Me. 335, 64 Atl. 614; Benson v. Superior Mfg. Co., 147 Wis. 20, 132 N. W. 633; Haucke v. Beckman, 96 N. J. L. 409, 115 Atl. 653; Bassett v. Milwaukee N. R. Co., 169 Wis. 152, 170 N. W. 944; Haeussler v. Consolidated Stone & Sand Co., 3 N. J. Misc. R. 159, 127 Atl. 602; Kasiski v. Central Jersey Power & Light Co., 4 N. J. Misc. R. 130, 132 Atl. 201; Galveston Electric Co. v. Biggs, 14 S. W. [2d] 307; Nees v. Goldman, 109 W. Va. 329, 154 S. E. 769; Reed v. Jamieson Investment Co., 168 Wash. 111, 10 P. 2d 977; Budek v. City of Chicago, 279 Ill. App. 410; Kramer v. Chicago, M., St. P. & P. R. Co., 226 Wis. 118, 276 N. W. 113.)
Plaintiff cites District of Columbia v. Woodbury, 136 U. S. 450, 34 L. Ed. 472, and McDermott v. Severe, 202 U. S. 600, 50 L. Ed. 1162. Those cases are not exactly in point on the issue of loss of enjoyment.
We shall not indulge in a detailed analysis of the other cases above cited in an already too lengthy opinion. This court, after careful consideration of the entire subject, has concluded to hold that loss of enjoyment resulting from being unable to play the violin is too speculative and conjectural to form a sound basis for the assessment of damages. It is well to bear in mind the jury allowed separately for pain and suffering resulting.from the injury. That item is not in dispute. It will also be well to observe the jury allowed nothing for loss of earnings. Plaintiff contends the last-mentioned finding should be construed to apply only to past earnings and not to future earnings, for the reason the jury also specifically found there was no loss of earnings for the year preceding the accident. Question number 11 (5) easily could have been framed to make clear such distinction. It might have been separated so as to cover the loss of both past and future earnings. It was not SO' framed and we cannot well read the interpretation contended for into it.
Plaintiff urges that in question 11 (6) she might just as well have asked how much the jury allowed for permanent injury, and the element of loss of enjoyment from being unable to play the violin would have been included therein. Not properly in view of what we have heretofore said. Moreover, we would still have the question squarely presented on the improper admission of the evidence, which we have previously discussed. Furthermore, question 11 (6) leaves this court no room to say the $4,000 or any part thereof was awarded for permanent injury. That question is clear, and an award for permanent injury cannot be read into it. Then, too, even though the court should be inclined to consider the $4,000 item as having been intended to include permanent damages, the court would have no possible way of determining how much thereof was allowed for permanent injuries. It follows the judgment must be modified by a reduction in the sum of $4,000. Otherwise the judgment will be affirmed. It is so ordered.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment affirming an award which denied compensation for the death of Lindle Lavere Gardner, an employee of the Ark Warehouse Company.
The basis of the compensation commissioner’s award, as well as of the district court’s judgment, was that the evidence was insufficient to prove that Gardner had sustained any accident or injury in the service of his employer which resulted in his death.
Disagreeing with the compensation commissioner and with the trial court, the record is brought here on appeal; and this court is asked to read it in the expectation that we will take a different view of its significance and remand the cause with instructions which might lead to a different result. And so we have assiduously read the abstract and counter abstract. For present purposes the pertinent facts may be summarized thus:
The Ark Warehouse Company is a licensed carrier engaged in the transportation of goods by trucks from Arkansas City and Winfield to Independence and intermediate points. Gardner was one of its truck drivers.
On February 7, 1933, the weather was very cold and there was considerable snow in southern Kansas. In the middle of that afternoon, Gardner’s truck skidded into a roadside ditch near Elk City. Gardner shoveled the snow from about the truck in an effort to get it back on the road. That effort was unsuccessful, but in the course of it Gardner froze his ears, fingers, cheeks, and also his feet to some extent. About 6 o’clock that evening the truck was gotten back on the highway, and Gardner spent the night at a hotel in Elk City. Next morning he drove the truck home to Arkansas City.
After the incident just stated, Gardner continued his accustomed work of driving his truck back and forth on his regular route every day until February 13, except one intervening Sunday. His working hours were long, varying from 11 hours to 15% hours per day. He was on duty 93% hours during the last week of his life, which averaged 13 hours and 23 minutes per day.
On February 13, en route from Independence to Arkansas City, near Grenola, some 10 miles west of Moline, about 3:30 p. m., the axle of Gardner’s truck broke. It was another cold day — about 15 or 18 degrees above zero. Gardner had a passenger with him that day, one Charles S. Gleason. The two men worked for some time in an effort to put the truck to rights, but had to give it up and wait for help. In his efforts about the truck Gardner again froze his fingers. He was obliged to stay with the truck all the long cold afternoon to protect its contents. The cab was not heated nor well enclosed, so the two men went inside that part of the truck called the van. There they piled the goods so as to leave a narrow space in the middle for themselves. The truck was equipped with kerosene flares, and they lighted them to create some heat and shut the door to keep out the cold.
While waiting for help to fix his truck on the highway -that afternoon Gardner told Gleason of his hard life and long hours, of his hard luck in skidding into the ditch the week before, and said that the breakdown of his truck that day would prevent him getting the $5 bonus which his employer offered to drivers who had no mishaps on their routes during some specified period of time.
The kerosene flares consumed so much oxygen inside the van that Gardner became drowsy and may have fallen asleep for a time. Gleason occasionally opened the van door slightly for a breath of fresh air. Both men were covered with smudge from the flares when at length a mechanic came and repaired the truck. Gardner appeared to be dull and spiritless, but took his place at the wheel and drove the truck home to Arkansas City, some 50 or 60 miles, arriving there at 10:30 p. m. the same evening.
That night Gardner slept in a bunkhouse at the warehouse premises. Next forenoon he helped load and unload trucks for his employer until about 11 o’clock in the forenoon. Shortly thereafter he committed suicide by shooting himself. Before doing so he wrote a farewell note to his wife. The note was not offered in evidence, but counsel agreed that its contents read thus:
‘“I don’t want the blame to go to anyone, and I am the one that has made a mess of my life and I have to go sometime, so why not now? I am sorry I couldn’t find the writing paper for my last letter. People will think I am crazy, but I believe I am sane as much as ever.’ It is also stipulated that the letter contained instructions as to what clothes the deceased wished to be buried in, and what songs were to be sung at the funeral. ‘I want the same songs that were sung at mother’s funeral.’ And that the letter also contained a request that no one cry at the funeral and finished the sentence ‘but that would be impossible,’ and that the letter also contained the following language: ‘Well, I am tired, so will go to sleep and also to the unknown. Love to all.’ ”
Evidence was also offered in behalf of claimant that the fumes •of the kerosene flares would tend to make a person dull and despondent. Hypothetical questions were formulated which summarized the evidence favorable to her and propounded to medical experts seeking to elicit their opinion that Gardner’s hard work and long hours, the mishaps to his truck on February 7 and February 13, the repeated freezing of his fingers, cheeks, ears and feet, and his subjection to cold and exposure, the loss of his hoped-for bonus of $5, and his apparent stupefaction from inhaling the fumes of the kerosene flares on the afternoon of February 13, caused him to commit suicide between 11 o’clock a. m. and 12 o’clock noon on the following day— thus constituting such an industrial accident as the workmen's compensation act was designed to cover. The examiner for the compensation commission held the view that such hypothetical questions were not competent, but permitted them to be answered for the sake of the record.
From the judgment of the trial court which affirmed and sustained the findings of the compensation commissioner, the claimant assigns various errors. But first we must remind counsel of the very limited scope of appellate review conferred by statute on this court. We have jurisdiction of questions of law only. (G. S. 1935, 44-556.) Whether the evidence adduced would support the plaintiff’s claim, if given the most generous credence, is not for this court to decide. The only concern about the evidence in a compensation case with which this court has to do is whether the evidénce was legally suffi cient, if the fact-finding functionaries gave it full credence, to support a finding that the workman suffered an accident and injury in the course of his employment and as a consequence of that employment. Such a question is one of law, and it is the only one pertaining to the evidence which this court is authorized to review. There are numerous instances in our reports where this court has been constrained to hold that such question required a negative answer. Nowhere in our reports, however, will a case be found where we have substituted our judgment for that of the compensation commissioner and the trial court where they have held the evidence insufficient to support an award to the workman or his dependents under the terms of. the act.
Within these narrow limits of appellate review which the legislature has prescribed, we will notice appellant’s contentions as they appear in her brief. It is first argued that Gardner did suffer a personal injury by accident arising out of and in the course of his employment. We think it doubtful if the evidence to.that effect, given its largest credence, would have been legally sufficient to support such a finding of fact if the trial court had so held. Its finding to the contrary is unassailable on appeal. Counsel for claimant cite respectable authorities which hold that suicide which results from a deranged mind brought about by carbon monoxide poisoning, such as the kerosene flares might cause, constitutes an accident within the terms of the compensation act. We see no reason to question that proposition. The point fails here because the functionaries authorized to find the facts were not convinced by the evidence, the circumstances and the presumption against suicide, that Gardner’s death was traceable to an industrial accident for which his employer should pay.
Touching the testimony which the examiner- held incompetent, it all went into the record nevertheless, not only the answers to the hypothetical question, but also the testimony of witnesses touching Gardner’s appearance and actions after the mishaps to his truck on February 7 and February 13; and certainly we could not say as a matter of law that the trial court was bound to give that testimony unreserved credence, and to deduce therefrom the ultimate fact that Gardner’s suicide was the result of an industrial accident within the meaning of the statute.
In conclusion we wish to commend the unusual care and thoroughness with which counsel for claimant have presented the theory on which her claim for compensation is predicated. We are compelled to hold, however, that no error is made to appear in the judgment of the trial court. That judgment is therefore 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 a judgment for defendants the plaintiffs appeal.
Briefly stated, the petition alleged that plaintiffs had filed their action against the defendant Ed. W. H. Lake, on January 7, 1937, seeking recovery of money, and later had recovered judgment against him, and that execution on the judgment had been returned nulla bona; that on January 8, 1937, defendant Ed. W. H. Lake, without consideration and with intent to hinder, delay and defraud his creditors, particularly plaintiffs, and for the purpose of putting his property beyond the reach of his creditors, and particularly any judgment in the action above mentioned, conveyed to his wife certain described real estate in the city of Atchison, and that his wife accepted the conveyance with full knowledge of the intent and purpose of the husband.
By their answer the defendants admitted the judgment against Ed. W. H. Lake, and that execution had been returned nulla bona. They alleged further that on September 19, 1913, Ed. W. H. Lake was engaged in the mercantile business and borrowed $5,000 from an Atchison bank, securing his note by a mortgage on their homestead and other adjoining real estate; that the debt was not paid and a new note and mortgage was made in 1924; that defendant Esther Lake, at the request of the lender of the money and without valuable consideration to her, joined in both notes and mortgages; that Esther Lake owned other real estate in her own right which she sold in 1928; that she had part of an inheritance from her father; that the homestead of the parties was encumbered by the aforesaid mortgage, and foreclosure was due, and on March 7, 1930, Esther Lake paid the mortgage debt in the sum of $5,000 and accrued interest with her own money; that on January 5, 1937, Ed. W. H. Lake, in consideration and part satisfaction of his indebtedness to his wife on account of her payment of the above-mentioned mortgage debt, conveyed to her the real property in question, being the property adjoining the homestead of the parties, the value thereof being about $1,500, and that the conveyance was not made in fraud of creditors nor with intent to defraud, but to discharge his financial obligation to his wife. We need not notice the reply.
The two defendants testified as witnesses for plaintiffs and also in their own behalf. Without going into detail, Ed. W. H. Lake testified to the effect that in 1913 he borrowed $5,000, with real-estate mortgage security, the note and mortgage being renewed and finally paid by Mrs. Lake in 1930. He did not know she had paid the note and mortgage until after the payment was made, and until after the payment there was no agreement she should be reimbursed; that he conveyed the involved real estate with no intention of hindering plaintiffs, but to pay his wife part of the moneys she spent in paying off the $5,000 mortgage. The banker testified that with one exception Mrs. Lake had always paid the mortgage interest, and that Mr. Lake was not present when she paid the principal. He estimated the value of the property covered by the mortgage thus: Value of the homestead, $2,500; “I doubt if the little house (one in controversy herein) would bring that much.” Mrs. Lake testified she had paid the interest from moneys received from renting rooms; that her daughter taught school for eighteen years and gave her some money; that her husband had not paid any of the interest and did not furnish any money to pay the principal; that she got some money from her father’s estate and sold some real estate belonging to her, and from these sources she paid the mortgage to the bank, and that afterward her husband had told her he would make it good, and that she took the deed without any intent to defraud plaintiffs.
The trial court found in favor of the defendants, and plaintiffs’ motion for a new trial being denied, they appeal.
Appellants state the question involved thus: If appellees are to prevail, it must be on the theory a valid, binding debt existed between Lake and his wife; that the conveyance was for the purpose of making a bona fide payment of this debt and not to hinder, delay and defraud creditors. They then argue that if there was a debt it had its foundation either under the theory of money paid for the use and benefit of another, or under a theory of indemnity of a surety. We may here observe, however, that Mrs. Lake, even though she received no part of the original mortgage moneys, did sign the note and its various renewals, and was liable prima facie to the bank at all times, and whatever may have been the situation between herself and her husband, if foreclosure was instituted, she would be liable to judgment on the mortgage note and her separate property would be subject to execution.
Appellants contend that under the course of dealings whereby the husband borrowed the $5,000 which he personally used, at a time when she signed the note and mortgage at the request of the banker and not at the request of her husband, and subsequently signed renewals under like circumstances, at none of which times was there any contract or agreement that if she paid the debt he would reimburse her, Mrs. Lake was not and could not be a surety.
With respect to the wife’s being a surety for her husband, appellants cite Jenness v. Cutler, 12 Kan. 500, 517, wherein it was said:
“Now, notwithstanding this present and-existing interest of the wife in all the property of the husband, still no one has ever yet supposed that the wife was such a surety for her husband that if a creditor of her husband should, by a valid agreement, extend the time for the payment of her husband’s debt, that the creditor would thereby release all her husband’s property from the payment of such debt. Even in states where it is necessary for the wife to sign a mortgage of real estate not a homestead in order to bar her interest in such real estate, no one has ever yet supposed that, by such signing, she became such a surety for her husband that she was entitled to all the rights and privileges of other sureties. Indeed, it has never been held in any state that a wife could become a surety, entitled to all the rights and privileges of other sureties, unless she pledged some portion or all of her own separate property.” (p. 517.)
Appellants place particular stress on the last sentence. An examination of that case shows the wife .there contended she was released from liability on a note and mortgage because the husband alone agreed to an extension of the due date of the note. We do not believe that case is controlling here. Mrs. Lake was a maker of the note and liable on it. When she paid the debt to the bank she was entitled to recover from him his proportionate share if they were joint makers, or all she paid if she were a surety. And as the evidence shows, the value of the real estate conveyed to her in 1937 being less than $2,500, it makes no difference whether we assume her position one way or the other, for in any event she recovered less than half of the debt she paid.
On the question of whether there was a debt and 'whether there was a bona fide consideration for the conveyance under attack, our attention is directed to Bank v. Boatman, 90 Kan. 666, 136 Pac. 218; Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732; Jennings & Sons Tire and Accessory Co. v. Farmer, 127 Kan. 164, 272 Pac. 167, and Achorn v. Parker, 145 Kan. 854, 67 P. 2d 561. While each of these cases involves the general proposition that where a wife advances money to her husband for his individual use, without agreement for its repayment, in which event he will not be permitted as against creditors to convey his property to her in repayment when he becomes insolvent, it is recognized in each case that whether the conveyance was fraudulent or not was a question of fact. And in the Boatman case no relation of debtor and creditor existed; the Semke case is easily distinguishable on the facts; in the Farmer case no consideration was shown, and in the Parker case it was clearly stated the question was largely one of fact.
On the other hand, we have many cases recognizing that where it is shown there was a bona fide relation of debtor and creditor between a husband and his wife, he may pay his debt to her by conveyance of property, even though he is in failing circumstances, and eAmn though the effect of the conveyance is to exhaust his property subject to execution, if the conveyance is made in good faith. Among these cases are: Kennedy v. Powell, 34 Kan. 22, 7 Pac. 606; Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137; Peoples State Bank v. Dierking, 143 Kan. 617, 56 P. 2d 85; State Bank of Stella v. Moritz, 146 Kan. 23, 69 P. 2d 15.
The record before us discloses a situation where such dispute of fact as there Avas was resolved in favor of the appellees. There is evidence that there was a bona fide indebtedness due from the husband to the wife, and that the property conveyed to her by her husband was worth less than the amount of the debt. On the contrary, there is no evidence that leads necessarily to any conclusion that there was any bad faith between the husband and the wife. Under such circumstances, we cannot say the trial court erred in finding for the defendants.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff appeals from an order sustaining a demurrer to her evidence and from a judgment in favor of the demurring defendants.
Plaintiff’s amended petition alleged that she purchased a ticket from the Southwestern Greyhound Lines, Inc., at McPherson, Kan., for Chicago; that she was transported to Salina, where she was placed on an eastbound bus operated by defendant Cardinal Stage Lines Company; that the bus was going eastward between Rossville and Silver Lake when it was approached by a truck going westward operated by defendants Bradley and Gardner. The above matters were admitted by the pleadings, as was the fact there was an accident in which plaintiff received injuries. It was alleged that the bus and the truck were so carelessly and negligently operated while attempting to pass each other that they collided; that the bus was driven along and upon the center of the highway so as to project the bus off its part of the highway and over upon the side on which the truck was being operated, and that the truck was driven along and upon the center of the highway so as to project the truck over and upon the side of the highway on which the bus was being driven. It was also alleged that each vehicle was being driven at an excessive, improper and unlawful speed, and that the driver of each failed to give suitable warnings of their improper positions on the highway by use of lights and horn signals, and each, seeing the improper position of the other on the highway, failed to stop immediately upon the appearance of the impending collision; that the drivers of both vehicles were operating their respective vehicles while in a drowsy condition and suffering from loss of sleep, in violation of certain rules and regulations of the corporation commission of the state limiting hours of continuous service by a driver. It was further alleged that as a result of the collision some object penetrated the side of the bus from the outside, inflicting injuries which need not be detailed here. The answers of the various defendants each denied responsibility for the accident. At the trial the defendants operating buses demurred to plaintiff’s evidence on the ground no cause of action had been proved against them, which demurrers were sustained, and judgment rendered for the demurring defendants. The trial proceeded and plaintiff recovered as against the operators of the truck. Plaintiff now appeals from the ruling on the demurrers and from tire judgments in favor of the demurring defendants.
The test for determining the sufficiency of evidence as against a demurrer was considered in Robinson v. Short, decided this day (see ante, p. 134, 79 P. 2d 903), wherein it was said:
“In testing the sufficiency of evidence as against a demurrer, it has been repeatedly held that the court shall consider all of the plaintiff’s evidence as true, shall consider that favorable to the plaintiff and disregard that unfavorable, shall make all inferences favorable to the plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and if, so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.” (p. 134.)
In reviewing the testimony we shall omit reference to plaintiff’s injuries and to all matters not bearing on the question of negligence.
The plaintiff stated she did not see the vehicle which struck the bus and had no warning that it was going to strike. After the accident she was taken from the bus and placed in an automobile standing on the shoulder of the road. R. W. Spiker was a passenger on the bus. He stated that shortly before the accident the driver was blowing the horn and he felt the bus pull over on the shoulder; he had not been watching the road or paying attention to the actions of the driver. He saw the truck when it was about 75 to 100 feet away and it seemed to be coming somewhat diagonally across the road; when he first saw it, it was straddling the center of the road and it kept coming in the same position. He felt the bus pull over on the shoulder of the road. He thought the shoulder was five or six feet in width. After the bus stopped the entire right side of the bus was off the pavement, probably half was upon the shoulder, the left wheels were on the slab; the position of the bus at the time of the impact was pretty close to that position. After the accident he helped to remove plaintiff and to place her in an automobile drawn up alongside the south side of the bus. He stated further the automobile was in the ditch and was driven out of it after Mrs. Clark was moved. He stated the bus was traveling between forty and forty-five miles an hour, and at time of the impact had slowed down considerably and stopped within a distance of twenty to twenty-five feet. J. I. Gustafson was not a passenger on the bus. He testified he was familiar with the road; that in 1937 it was in the same condition as in 1934 when the accident occurred, and that in November, 1937, he measured the shoulder of the road at varying places east of Rossville and that it was eight or nine feet wide, and that the pavement was 18 feet wide. The record as abstracted does not disclose that witness knew the exact place of the accident.
Otto Bradley, driver of the truck, was a witness and testified that after the accident the left front wheel of the bus was on the left or north side of the center line of the highway. As abstracted, there is no showing he stated its position prior to the accident, or that he gave any evidence as to how the accident occurred.
Mrs. Clarence Richter testified she was a passenger on the bus and when she first noticed the approaching truck she couldn’t see it long enough to see whether it was on its right side. Sire noticed the black line dividing the middle of the road. She watched the truck until the collision. The truck seemed to swerve toward the bus. It did not weave back and forth. She judged the speed of the bus to be between forty-five and fifty miles per hour and that the truck seemed to be coming at the same speed. The bus driver swerved out off the highway (pavement) when he saw the approaching truck and then swerved again a little to the left; that if he had not swerved left after swerving right, he would have gone in the ditch. The bus was off the slab for some space before the collision. When the bus stopped, the right wheels were off the pavement. She did not know whether it was off the pavement or not when the collision occurred. The bus was hit in the side at the third seat. She also testified to hearing a conversation between the truck driver and the bus driver in which the truck driver said all he could remember was that he was tired and sleepy and couldn’t recall seeing any lights, never saw the bus lights, and the only thing he remembered was that it must have been the impact which roused him and as soon as he could he stopped his truck. At a later time she said she didn’t remember hearing any horn, never noticed it; that it was just a little space of time after she saw the approaching truck that the bus driver applied his brakes and slowed up the bus.
“In my judgment lie slowed up just as rapidly as lie could. . . . We were going .... at a fast rate of speed and he couldn’t slow down very quickly until 'we were together — he couldn’t slow up much. ... He did not put on his brakes or apparently apply them before I saw the approaching truck. . . . The first observation that I made was that there was a truck bearing down on me, plus the feeling that I had of the bus being slowed down and the grinding of the wheels on the gravel and then I realized we were off the slab.”
Appellant directs our attention to the fact that the defendant bus companies were common carriers of persons, and as such, required to use the greatest skill, care and foresight to which they are in their nature susceptible to avoid injuries, citing in support Topeka City Rly. Co. v. Higgs, 38 Kan. 375, syl. ¶¶ 1, 2, 16 Pac. 667. And see Cross v. Chicago, R. I. & P. Rly. Co., 120 Kan. 58, 242 Pac. 469, for a brief discussion of the same rule. Based on the requirement of care thus laid down, it is insisted that giving to plaintiff the benefit of all testimony favorable to her, with all reasonable inferences to be drawn therefrom, the evidence was sufficient to make a case for the jury.
It is first insisted that the evidence shows the bus was being operated at a speed from 45 to 50 miles per hour; that under G. S. 1935, 68-152h, then in force, such motor vehicles could not be operated lawfully at a speed in excess of forty-five miles per hour; that the speed was unreasonable, unlawful and constituted negligence. The mere violation of a statute regulating speed is not in itself sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the speed contributed to the collision and was the proximate cause of the injuries sustained. (Barshfield v. Vucklich, 108 Kan. 761, 197 Pac. 205; Cross v. Rosencranz, 108 Kan. 350, 195 Pac. 857; Phillips v. Meyer Sanitary Milk Co., 129 Kan. 45, 281 Pac. 895.) It is true the evidence shows a speed slightly beyond the statutory limit, and it may be deducible therefrom that had the bus been going at a lower speed it would not have been at the point where the accident happened, but beyond that it does not appear how speed entered into the matter. Many circumstances other than speed would have to be considered in determining just what caused the bus to be at the particular point at the particular time. Had it not been on the road at all there would have been no accident; had it started earlier and proceeded slower it might have reached the same point at the same time; had the truck traveled for any considerable distance, as the evidence showed it was here proceeding, the accident might have happened either to the defendant’s bus or any other vehicle traveling eastward on the highway at any place within a good many rods of where it did happen. There is no evidence which warrants any conclusion that the speed of the bus was the proximate cause of the accident.
Appellant next directs our attention to the rule that a driver is not entitled to insist on his right to a full half of the roadway re gardless of. consequences (42 C. J. 942), and argues that the bus driver was negligent in not turning right, off the pavement and on to the shoulder, sooner, and farther than the evidence shows he did. Appellees direct our attention to the fact that no such ground of negligence was alleged in the petition, the grounds therein alleged, as above stated, being that the bus was driven on the wrong side of the center of the road, at an excessive speed and without giving proper warnings. The matter of speed has been mentioned; there is no evidence proper warning signals were not given, and if it be assumed that plaintiff had sought to amend to conform to the proof, if any, that the bus driver should have turned to the right sooner or proceeded farther, there still remains a question whether there was such proof. So far as the record shows, the fact the truck was approaching and coming so that its left wheels were to its left of the center of the road was not discoverable until the truck was possibly one hundi-ed feet from the bus. There is no doubt under the evidence that at that time the bus was on its proper side of the highway. A similar situation was presented in Crowe v. Moore, 144 Kan. 794, 799, 62 P. 2d 846, wherein it was said:
“The casualty did not occur as the result of excessive speed — there is no evidence of that. It occurred at a place where the plaintiff’s car at the time and under the circumstances had no right to be. (Giles v. Ternes, 93 Kan. 140, 145, 143 Pac. 491; Lindenstruth v. Levenque, 138 Kan. 93, 95, 23 P. 2d 486; Hiler v. Cameron, 144 Kan. 296, 299, 59 P. 2d 30.) It is also apparent that the driver of either car should have seen the other car. The defendant on the proper side of the highway had the right to presume that the plaintiff’s car approaching from the opposite direction on the left-hand or wrong side of the highway would get over on his proper side in time to avoid a collision (McComas v. Clements, 137 Kan. 681, 21 P. 2d 895), and under such circumstances the defendant did not have to anticipate that plaintiffs would not do so. (Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438.)” (p. 799.)
As soon as the bus driver saw the situation he drove to his right, partly off the slab and onto the shoulder, and only veered his car to the left again to avoid driving into the ditch alongside the highway. It cannot be argued that because he did not go to the right until his right wheels were on the very edge of the shoulder and almost to the ditch, he was negligent. Whether it would be possible for the bus driver to know if the lights of the approaching vehicle were upon a truck or a small automobile is not made to appear, but it does appear that he was operating a bus conveying passengers other than the injured plaintiff and he had some duties to perform in the handling of his bus so that it would not be precipitated into the ditch. Appellant argues that the action of the bus driver, proceeding on a narrow road, at an excessive speed, and not slackening speed, presented a 'situation where a jury should have been permitted to say whether he was guilty of negligence. The argument injects certain elements which the evidence excludes, for it is undisputed in plaintiff’s evidence that the bus slowed up rapidly and stopped within a short distance, and that the road was not narrow; if anything, it was somewhat wider than the usual concrete paved highway, that is, considering pavement and width of shoulder.
The mere fact there was an accident did not convict the defendants of negligence. The burden of proving negligence was upon the plaintiff, and that her proof failed to do.
The rulings and judgment of the trial court are affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was a suit to recover on a double liability provision of a life insurance policy, and from a judgment for plaintiff the defendant appeals. Although the overruling of its motion for a new trial is specified as error, the specifications more particularly relied on consist of claimed errors in the admission and exclusion of evidence and in instructions to the jury.
For our purposes it is sufficient to say that one Harry R. Malone, son of the plaintiff, had a life insurance policy in the defendant company which provided for double indemnity if his death occurred from bodily injury through accidental means and not from self-destruction. On November 7, 1936, Harry R. Malone was killed by the discharge of a shotgun. Proofs of death were made, and by agreement the company paid the principal sum due, and the action was brought solely to determine the defendant’s liability for the additional amount of the claimed double liability.
The company’s defense was that the death of the insured was not accidental, but that he committed suicide.
There is no dispute that the insured, although a married man, was living with his parents at the time of the tragedy. The parents had been out at a social gathering, and returning home late, the father saw his son’s body lying across the bed in his room. He closed the bedroom door and called the coroner, who arrived shortly, and a doctor was then called. The son’s body was across the foot of the bed, his feet were on the floor and he was holding an automatic shotgun with his right hand possibly six or seven inches below the muzzle, fie was fully clothed except for his coat. A charge from the gun had entered his head on the right side just above and in front of his ear and passed out through the top of his head. Where entering, the opening was slightly oblong up and down and about the width of a quarter coin and there were powder bums completely around the wound. There was evidence the insured was right-handed.
The real question was whether the insured had committed suicide or had been accidentally killed, and that depended on whether the gun had been purposely or accidentally discharged. It was important to show whether, taking into consideration the position and condition of the wound, its size, the course of the shot, etc., the insured could have held the barrel of the gun with his right hand and discharged it with his left.
Each of the doctors hereafter mentioned saw and examined the body of the insured. In addition to their medical testimony, concerning the competency of which there is no dispute, Doctor Morgan and Doctor Hilbig testified with reference to their personal familiarity with shotguns, the size of a hole the discharge would make at varying distances, the spread of the charge, etc. Doctor Mays stated he was familiar with the operation of shotguns; that he had made no especial study of gun-shot wounds, or the effect thereof, but that he had heard some discussions thereon at clinics and medical meetings; that he had practiced medicine for twenty-eight years, and had had occasion as a physician to examine and treat gun-shot wounds and powder burns. Doctor Morgan and Doctor Mays were permitted to give their opinions as to the distance the gun was from the head at the time of the discharge, the distance stated being from ten to fourteen inches, and Doctor Hilbig and Doctor Mays were also permitted to give their opinion that it was not possible for the insured to have held the gun with the right hand six inches below the muzzle and to reach the trigger with the left hand to cause the wound in the insured’s head. Appellant objected to this evidence being admitted, and argues that its admission was prejudicial error.
The whole question may be said to center around this: The facts as to the wound had been shown, also the position of the gun with ■relation to the insured’s right hand, and that he was right-handed and therefore it was an invasion of the province of the jury for any witness, expert or otherwise, to state the conclusion the insured could or could not hold the gun as indicated heretofore and discharge it.
Distinction between facts and conclusions was involved in Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019, and it was there said:
“The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions between facts and conclusions.” (Syl. ¶ 2.)
See, also, Robertson v. Robertson, 100 Kan. 133, 135, 163 Pac. 655; Smith v. Prudential Ins. Co., 136 Kan. 120, 124, 12 P. 2d 793.
Many authorities are cited in the briefs, and a reference to them and others available shows the complexity of the matter. The general rule is that the normal function of the witness is to state facts within his personal knowledge, and that ordinarily his opinions and conclusions are not to be received. (See 22 C. J. 485, where many Kansas cases are cited.) However, it is recognized that a skilled witness is permitted to state facts known to him because of his special knowledge and experience or his inferences therefrom where the matter involved is such that persons without his special knowledge could not observe intelligently or draw correct inferences, although admission of such evidence has been criticized (22 C. J. 498). While in its argument appellant limits the question of admissibility of the opinion evidence to the witnesses’ qualification as experts on firearms, we have some difficulty in separating that from their qualifications as physicians. Whether the gun was up against the head or some distance removed from it was in part discernible from the wound, the powder burns, the effect on the bone structure, etc., and from this aspect the matter was in part medical. And that a physician’s experience and training might lead him to know that a gun was close to or some distance away from its human target might well be within the range of a doctor’s knowledge, although he had never handled or fired a gun, would seem apparent.
In O’Brien v. Insurance Co., 109 Kan. 138, 197 Pac. 1100, plaintiff sought recovery on a policy where the insured was killed by a revolver shot. The company alleged death was by suicide. There it was held:
“The evidence of the qualification of several witnesses to give opinions as to the probable distance at which a shot was fired, as indicated by the appearance of the wound, is held to have been sufficient to render their testimony on the subject admissible.” (Syl. ¶ 5.)
In City of Parsons v. Lindsay, 26 Kan. 426, a part of the syllabus recites:
“As a general rule the opinions of witnesses are not competent, although such opinions may be derived from the witnesses’ personal observation, and are sought to be given in evidence in connection with the facts on which they are based. To this rule there are some exceptions. In matters relating to skill or science, such persons as have had sufficient experience, or who are possessed of sufficient knowledge, and who are usually denominated experts, may give their opinions, whether they are personally cognizant of the facts or not. There are also some exceptions, seemingly founded upon convenience or necessity, and relating to such matters as involve magnitudes, or quantities or portions of time, space, motion, gravitation, or value, and as involve the condition or appearance of objects, as observed by the witness, and matters which, from their limitless details, and the infirmity of language and memory, cannot well be stated by the witness, except in the form of an opinion.” (Syl. ¶ 1.)
This holding has been repeatedly followed, one of the later statements being in State v. Scott, 117 Kan. 303, 321, 235 Pac. 380.
Under the circumstances of this case, it was obviously impossible for the jurors to see the deceased, to observe his physique, the appearance of the wound, etc. It seems likewise apparent that ordinary use of language could hardly have conveyed to the jury what the doctors who had examined the insured observed; and to an extent, at least, statements as to what they observed would be conclusions. We are of the opinion that the trial court did not err in holding the witnesses had been properly qualified and that the admission of the evidence complained of did not constitute reversible error.
Appellant also insists the trial court erred in allowing two witnesses to testify that the night before the tragedy they had conversations with the deceased in which he said he was going hunting the next morning. It- is said the conversations were hearsay. It may here be noted that previously there was testimony that deceased kept his hunting clothes in a certain closet and when the parents left the house they were not out in decedent’s room. When the body was found, the hunting clothes were on a chair in his room.
It has been said that the theory of the rule against hearsay is that when the utterance is offered as truth of the fact asserted, the credit of the assertor becomes the basis of inference and therefore can be received only when the assertor is on the stand and subject to cross-examination, but that if the utterance is offered, not as an assertion to evidence the matter asserted, but without reference to its truth, the rule does not apply. (See 3 Wigmore on Evidence, 2d ed., p. 770, § 1766. See, also, Bank v. Hutchinson, 62 Kan. 9, 17, 61 Pac. 443; Mills v. Riggle, 83 Kan. 703, 112 Pac. 617.) In this case the issue was not whether the insured was going hunting, it was whether he had been accidentally killed or had committed suicide. Evidence as to the place where his hunting clothes were usually kept, where they were found, and what he had .said about going hunting was competent as showing his state of mind. It is conceivable that even though the evidence showed rather strongly he could have inflicted the fatal wound, it still could have been accidentally inflicted, and whatever circumstances could be shown that would tend to prove or disprove a possible motive or intention were properly received in evidence.
In its defense, the appellant called as a witness an army officer who qualified as an expert on firearms. After many preliminary questions which need not be reviewed, in answer to a hypothetical question, the witness stated that in his opinion the most probable position of the gun muzzle was that its lower ring was touching the insured’s head at the time of the shot. He also stated that if the hole in the wound was three quarters of an inch in diameter the muzzle was practically touching the head. He further stated that a person as tall as he (the testimony showed that insured and witness were about the same height) could hold the jrun against the head with the right hand holding the muzzle as indicated and reach the trigger with his left hand, and he described how he had done it. He was also permitted to testify as to experiments made by him with the particular shotgun as to how it loaded, unloaded, whether it would accidentally discharge, etc., and that he had tried to make it discharge by jar or bump on the floor and that it would not do it. During the course of the examination, the witness was asked to demonstrate how he could hold the gun so that the trigger could be discharged and also to demonstrate the gun could not be discharged by striking it on the floor. The trial court refused to permit the demonstrations. Appellant insists vigorously-that this was error and directs our attention to many decisions and authorities bearing on the question. It recognizes, however, that whether the demonstra tion should have been permitted rested largely in the discretion of the trial court. (See 22 C. J. 789, 10 R. C. L. 1000.) Insofar as both matters were concerned, the witness had testified fully, first that he could operate the trigger of the gun with his left hand, and second that he could not make the gun discharge by striking it on the floor. As to his holding the gun in his' right hand and discharging it with his left, his testimony clearly showed that, to do so the muzzle must be against, or practically against, the right side of his head. A demonstration would not have aided. As to discharging the gun by striking the butt on the floor, he had testified fully as to his experiments with it. While it would not have been error had the trial court permitted the demonstration, under the circumstances here we cannot say it abused its discretion.
' Appellant argues the trial court erred in striking out an answer of the last-mentioned witness with reference to operation of the shotgun. After describing the method by which, after a discharge, the shell is ejected from the gun barrel, the witness was asked if it would be possible for the extractor to partially withdraw the shell. After stating that in his opinion it would not, the witness made an explanation. The answer was stricken out because the testimony was as to a shell which had been fired, and there was no evidence any such shell had been stuck in the gun. The ruling was correct. It may be noted that the only testimony on the subject was that on the evening before the tragedy a neighbor, Mrs. Shubring, saw insured with an' opened gun which had a wet shell stuck in it, and he told her he would have to get it out before Sunday as he was going hunting that morning. That testimony was not offered to prove whether or not he was going hunting, but only to show mental condition. Refutation of whether or not there was a shell stuck in the gun was not material.
Another specification is that the trial court erred in refusing to admit the district court files in a divorce suit presumptively brought by the wife of the insured against him about a week prior to the tragedy. The abstract of the record shows merely that appellant sought to introduce the files, consisting of a petition alleging defendant to be guilty of gross neglect of duty and extreme cruelty, praecipe for summons, summons showing service, and a journal entry of dismissal because of the death of the defendant. Objection was made for other reasons and that there was no foundation laid. The trial court first reserved its ruling and after some further argument, the nature of which is not shown, sustained the objection “for the present.” There is no showing whatever that any effort was made to lay any foundation, to connect the defendant in that action with the insured, or to do aught that would tend to show that the assured was despondent or otherwise because the suit was brought. The trial court’s ruling did not foreclose the defendant, it did not make any effort to make the files competent and it is not now in position to complain.
Appellant also contends the trial court erred in its refusal to give a requested instruction. The requested instruction was in part included in the instructions given. A portion dealing with circumstantial evidence was not given, and it is of this portion appellant complains. Appellee suggests that appellant did not request its instructions in the manner required by the code of civil procedure in that the requested instructions ’ were not “reduced to writing and signed by the party or his attorney asking the same,” etc. (Italics ours.) (G. S. 60-2909.) Appellant concedes the request was not so signed. Under Morisette v. Howard, 62 Kan. 463, 468, 63 Pac. 756; Farrar v. McNair, 65 Kan. 147, 69 Pac. 167; Railway Co. v. Wimmer, 72 Kan. 566, 572, 84 Pac. 378, the failure to give the instruction requested is not reversible error. There is, therefore, no need to discuss the correctness, or lack of it, in the requested instruction.
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 to enjoin the city from a prosecution for violation of a city ordinance. The city answered and filed a cross petition in which it prayed that the plaintiffs should be enjoined from a further violation of the ordinance. Judgment was for the city on the cross petition.
The ordinance in question is the zoning ordinance of the city of Wichita.
The petition alleged the formal matter as to the residence of the parties; that a complaint had been issued charging plaintiffs with maintaining a building in “A” residence district and using the building for an apartment building, when a building in that district could only be used for one- or two-family dwellings, or a church; that plaintiff Leigh was tried in police court, found guilty and fined and appealed to the district court; that the city was carrying on the prosecution under an ordinance which made each day a building was maintained in violation 'thereof a separate offense, and the city was threatening to proceed with such a prosecution; that the above ordinance was No. 11-197 and that on July 12 the above ordinance was repealed by the enactment of ordinance No. 11-791. The petition then described the property and alleged that a building was erected there in about 1889; that prior to 1920 it was arranged for and used as an apartment house; that it had been used for such purpose for many years, and was so used at the time the statute was enacted permitting cities to pass zoning ordinances; that plaintiffs had operated the building as an apartment house since about June, 1927, and that a mortgage on the property in question was given to the building and loan association, which is one of the plaintiffs in the action; that should the city be successful in its action the property of plaintiffs would be destroyed; that the city had attempted by the passage of the ordinance to prohibit the use of property in the district in question for apartment houses; that prior to the passage of the ordinance defendants neglected to have the property considered by the city planning commission; and did not by inquiry determine the proper use of the property in question. The petition further alleged that on or about the 15th day of May, 1929, plaintiff Leigh obtained from the city a permit to remodel the garage on the premises into residential quarters and that she' did forthwith remodel the garage; that on account of the threatened prosecution plaintiffs were unable to repair the building; that the city and its officials actually knew and were bound to know that the building was being used as an apartment house over a long period of years and made no complaint that the law was being violated and were estopped to contend at the time the action was instituted that the law was being violated, and that plaintiffs were entitled to an injunction restraining the city from changing or attempting to change the use of the property. The petition further alleged that the ordinances in question were regulatory in nature and there was no moral turpitude in the acts of which complaint was made; that the ordinance was unreasonable in its restriction upon the use of plaintiffs’ property and its enforcement constituted a taking of the property of plaintiffs without due process of law; that it violated the constitution of the state, was in violation of the statute, and violated the constitution of the United States. The prayer was for an injunction enjoining the city officials from further prosecution of the action against plaintiffs.
Defendants filed an answer and cross petition. The answer made certain formal admissions and then alleged a general denial. The answer then alleged that the house in question was used as a private residence until long after the regional zoning ordinance of the city of Wichita was enacted. The answer further alleged that if the plaintiff, Marietta Leigh, obtained any building permit, as alleged in her petition, this permit did not give her any greater rights than were allowed to her under the ordinances of the city and the state statutes, and that nothing in this permit would bind the defendants. The answer then alleged the passage of the first zoning ordinance by the city on March 14, 1922, and that this ordinance classified the property as “A” residence, residential district, and that ever since that time it had been permissible to use it for residential purposes only, and that various zoning ordinances had been enacted since the enactment of the original and each of them had placed the property in question in “A” residential district; that any rights acquired by the plaintiffs in the property in question were acquired by them subject to the zoning ordinances; that the plaintiffs had willfully converted the property in question to use as an apartment house contrary to the ordinances of the city and the statutes of the state.
In their cross petition defendants alleged that the city was a city of the first class; that it had in effect since March 15,1922, a zoning ordinance under the provisions of the statutes; that at the time plaintiffs were arrested ordinance No. 11-197 was in effect; that this ordinance was repealed on July 14, 1937, by ordinance No. 11-791; that ordinance No. 11-197 was in effect at the time plain tiff’s petition was filed herein; reference was made to all the zoning ordinances of the city,-and it was alleged that each one of these ordinances placed the property in question in “A” residence district; that the ordinance prohibited any building in the district being used as an apartment house; that notwithstanding this provision plaintiffs had for a number of months operated an apartment house on the property in question contrary to the provisions of the ordinance; that by reason of the operation of the apartment house, as alleged, plaintiffs were deteriorating the value of the other property surrounding the apartment house, and it constituted a nuisance under the provisions of G. S. 1935, 12-710; that under the provisions of the ordinance the operation of an apartment house at the location in question had, at all times while it had been operated as an apartment house, been in violation of the ordinances of the city, and each day’s violation constituted a separate offense; that the apartment house so operated constituted a nuisance under the provisions of G. S. 1935, 12-710.
The prayer was for a judgment abating the nuisance and enjoining defendants from operating the property as an apartment house.
Upon trial the court made findings of fact substantially as follows: that plaintiff, Marietta Leigh, owned the house; that the plaintiff building and loan association had a mortgage on it; that it was built about 1889 as a two-story one-family residence; that there was a garage on the place with rooms on the second floor; that plaintiff Leigh purchased the property on June 11, 1927, for $5,000; that the original zoning ordinance of the city was passed in March, 1922; that this ordinance divided the city into zones according to a use map and provided that the property in question should be in “A” residence district; that in “A” residence district only the following kind of buildings were permitted:
“First: One-family dwellings. Second: Two-family dwellings. Third: Churches and temples. Fourth: Libraries. Fifth: Farming and truck gardening. Sixth: Schools and churches. Seventh: Accessory buildings incidental to the above uses and located on the same lot. . . .”
The court further found that the ordinance provided that it should not apply to existing structures nor to existing use of a building; that the original ordinance was changed from time to time, but the main features have remained in force and the property in question had remained in and was still in “A” residence district. The court further found that in 1929 plaintiff Leigh began remodeling the house to make apartments in it and also remodel the garage to make two apartments over it; that on May 15, 1929, she obtained from the city a building permit. This permit was set out by the trial court in the findings. The portions with which we are interested are as follows:
“That, the estimated cost of said building is $600. The fee is computed on the building cost, and the amount due is $1.25.
“Should the cost of said building or any portion thereof exceed the above estimated cost, I agree to pay, upon completion of the building, the remainder of the fee properly due, after the final costs are ascertained.
“That the building is intended to be used for (Gar to Res & Gar) and will be — feet frontage and — feet in depth, — stories in height, to be constructed of (frame) with a (shingle) roof.”
The building inspector inspected the improvements made and said they were all right; that plaintiff continued operating the building as an apartment house and was so operating it at the time of this trial; that she had been arrested, tried and fined in police court and had appealed to the district court; that the ordinance under which she was prosecuted had been repealed and another one passed in its stead, but that the matter had been submitted to the court on the question of whether or not plaintiff Leigh was violating the zoning ordinance; that the average gross receipts from the property were $200 a month; that the use of the property as an apartment house was the most advantageous use to which the house could be put; that the reasonable value of the property was $4,500.
The court made the following conclusions of law:
“1. The plaintiffs are entitled to an injunction against the city of Wichita from prosecuting her for the violation of the ordinance, for the reason that the ordinance under which she was arrested has been repealed.
“2. The conducting and maintaining of an apartment house by the plaintiff, Marietta Leigh, at the location in question has at all times since March, 1922, been unlawful and has constituted a public nuisance.
“3. The plaintiffs and each of them are permanently enjoined from conducting or operating an apartment house of more than two apartments in the house on the premises in question.”
On proper motion the findings and conclusions were amended so that the word “public” was stricken out of conclusion number 2. Finding of fact number 5 was amended, but not in such a manner as to have any effect on the outcome of this appeal. An additional finding of fact was made as follows:
“The use of the premises in question for apartment house purposes is detrimental to the surrounding neighborhood and materially decreases the value of the surrounding residence properties.”
Judgment was entered according to the above findings and conclusions, the defendants were enjoined from further prosecution of plaintiff Leigh for violation of the ordinance and plaintiffs were enjoined from operating an apartment house of more than two apartments on the property. The appeal is from that judgment.
The first argument of plaintiffs is that the trial court did not have equity power to grant an injunction against the use of the property as an apartment house, since there was an adequate remedy at law. The penalty provided for a violation of the ordinance, and for each day’s violation, is the adequate remedy upon which plaintiff relies.
The answer to this argument lies in G. S. 1935,12-710. That section is part of the original statute providing for zoning ordinances. It reads as follows:
“Cities which shall hereafter pass ordinances under the provision of this act shall have power to declare the violation thereof a misdemeanor and punishable by a fine, not to exceed five hundred dollars ($500) for each offense and to provide that each day’s violation shall constitute a separate offense, and said cities shall further have the authority to maintain suits or actions in any court of competent jurisdiction for the purpose of enforcing the provision of such ordinance and to abate nuisances maintained in violation thereof.”
It will be noted that the above section confers on cities which pass zoning ordinances the power not only to declare the violation of the ordinance a misdemeanor, but the authority to maintain actions to enforce the provisions of the above ordinance and to abate nuisances maintained in violation of the ordinance. ■ The above provisions are sufficient to confer jurisdiction on the trial court to hear and determine an action such as this.
Plaintiffs argue with reference to this statute that it confers on the city authority to abate a nuisance, and nothing more. That is hot the language of the statute. It provides for the bringing of an action to enforce the statute. Furthermore, the trial court in this case made a conclusion of law that the maintaining of this apartment house was in violation of the zoning ordinance and constituted a nuisance. Clearly it was such a violation the legislature had in mind when in the zoning statute it conferred on cities the authority to abate nuisances. The above would be controlling in this case even had the court not found as a matter of fact that the use of the property as an apartment house was detrimental to the surrounding neighborhood and materially decreased the value of the surrounding residence properties.
Plaintiffs next argue that'the city is estopped from relying on the violation of an ordinance that was adopted long after plaintiff Leigh started using the property in question as an apartment house as a basis for an injunction and also is estopped by the fact that the city building inspector had given plaintiff Leigh a building permit and the officers of the city had permitted her to use the property as an apartment house for a number of years and had made no complaint.
As to the latter argument, the building permit itself is of considerable interest. It will be noted that this permit only referred to the garage, not to the house itself. This record does not disclose that any permit was ever given to make the house into an apartment house. As to the argument that the city officials had permitted plaintiffs to operate the property as an apartment house without making any complaint, it is well settled that the failure of the proper official to see that a statute or ordinance is enforced does not excuse one accused of a violation from prosecution. See Kelly v. Washington, 302 U. S. 1, 58 S. Ct. 87, 82 L. Ed. 39. There the supreme court held: “A statute which has remained unenforced for a long period does not become inoperative for that reason.” (Headnote 8.)
This court has held as follows:
“In a county’s capacity as a governmental agency to collect and conserve the public revenues, estoppel based upon unauthorized acts of its officials cannot be successfully invoked against the county.” (Sedgwick County Comm’rs v. Conners, 121 Kan. 105, syl. ¶ 3, 245 Pac. 1030.)
The authorities cited and relied on by plaintiff where estoppel had been held to go against a city have been where justice and right require it, as where positive acts of the city officials induced the action of the parties against whom the city is proceeding. An examination of the record has led us to the conclusion that we have no such a case as that here.
As to the argument that the city is estopped because the ordinance in effect when plaintiff first started to use the property as an apartment house has been repealed, we have examined the ordinances., They all contain like provisions except for creating the different districts. The ordinance in effect at the time of the arrest of plaintiff Leigh was number 11-197. Section 20 of this ordinance contained the following provision:
“The area and use of all buildings which were completed and occupied prior to the date of the first reading of this ordinance which shall have com plied with the ordinances then in effect shall be unaffected by the provisions of this ordinance.”
Ordinance number 11-791 in effect when the case was tried contained the same provision. The effect of all this is that when each ordinance took effect its restriction could not apply to buildings as they were being used at that date, provided the use of the building at the effective date of the ordinance complied with the provisions of the ordinance then in effect. These provisions are of interest here because plaintiffs have never complied with the provisions of the ordinance at any time since this building was remodeled as an apartment house and used as such. On this account she cannot now be heard to say that she has a right to use this property as she was using it at the time the present ordinance became effective.
The above is an answer also to the argument of plaintiffs that the court had no right to enjoin future use, even though nonconforming when that use was in existence at the time the ordinance was adopted on the theory that the ordinance was prospective only in its application. This is also true of the argument that plaintiffs had obtained a prescriptive right to operate the property in violation of the ordinance.
The argument that the ordinance takes property without due process of law and is unreasonable, is directed at zoning ordinances and statutes in general. They have been upheld. (See West v. City of Wichita, 118 Kan. 265, 234 Pac. 978.)
The judgment of the trial court is affirmed.
Allen, J., dissenting.
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages.resulting from a collision of automobiles at an intersection of streets in the city of Wichita. Judgment went for plaintiff and the defendant, W. Cecil McCullough, has appealed. The. defendant, The Halliburton Oil Well Cementing Company, need not be considered on this appeal.
Defendant’s principal contentions are: the court erred in overruling his demurrer to plaintiff’s evidence, his motion for a directed verdict, in the instructions given, in refusing to give certain requested instructions and in overruling his motion for a new trial. The contentions will be treated in the order stated.
Relative to the demurrer, it is defendant’s position plaintiff’s evidence disclosed contributory negligence as a matter of law. In order to dispose of defendant’s first contention it will be necessary to review only a portion of the evidence offered in plaintiff’s behalf. On a demurrer the evidence must, of course, be viewed in the light most favorable to the party adducing it. (Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923.)
In a review of the evidence, it is also well to bear in mind the rule frequently announced and clearly stated in Robinson v. Short, 148 Kan. 134, 79 P. 2d 903, as follows:
“In testing the sufficiency of evidence as against a demurrer, the court shall-consider all of plaintiffs evidence as true, shall consider that favorable to plaintiff and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the plaintiff’s case the demurrer should be overruled." (Syl. ¶ 1.)
Where the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law. (Hill v. Southern Kansas Stage Lines Co., supra.)
With these principles in mind we shall review the material portions of plaintiff’s evidence, the substance of which was: Plaintiff was traveling east on Kellogg street, a paved arterial highway. Defendant was proceeding south on Oliver street, a sanded road. Small stop signs were ordinarily in place on the north and south entrances from Oliver street into Kellogg street, and were located in the center of the intersecting lines. On this particular day the north sign was absent, but the south sign was in place. Under a police ordinance the failure of a traveler to stop at a sign rendered the driver subject to prosecution. Under the ordinance, in the event a sign was temporarily absent, the driver was relieved from prosecution. Under another ordinance, however, Kellogg street was expressly designated as a principal street, and as a right-of-way street, and drivers on it were given the right of way over traffic turning into or crossing it. That ordinance required a driver entering Kellogg street to bring his vehicle to a full stop immediately before reaching a point in the street even with the stop sign. Another ordinance expressly required the operator of a vehicle which approached an intersection to yield the right of way to a'vehicle which had first entered the intersection. The same ordinance also provided that when two vehicles entered the intersection at the same time, the operator of the vehicle on the left should yield the right of way to the vehicle on the right. (The evidence construed most favorably to the plaintiff, placed his vehicle on the west line of the intersection of the streets or within the intersection prior to the time defendant’s car had entered the intersection.) The speed limit on the two streets involved was twenty-five miles per hour, except at intersections where the speed was fixed at not to exceed eighteen miles per hour. When plaintiff was about twenty-five feet west of the west line of the intersection, he first saw defendant’s car. The latter car was then about 150 to 200 feet north of the north line of Kellogg street. On cross-examination plaintiff testified variously to the effect that when defendant’s car was fifty to seventy-five feet north of the north line of the intersection, that he (the plaintiff) was on the west line of the intersection and also that he was ten to twenty feet into the intersection, and also that he might have been ten to twenty feet in or out of the intersection. It was when defendant’s car was fifty to seventy-five feet north of the north line of the intersection that plaintiff heard defendant set the brakes on his car. The next time plaintiff saw defendant’s car, it was directly in front of him and in the southeast corner of the intersection. This was immediately before the collision. Plaintiff’s car was then traveling about fifteen miles per hour, he having set the brakes before the collision. At the point of collision plaintiff’s car was- on the right or south side of the center line of Kellogg street. His car was about five or six feet east of the center line of Oliver street. Plaintiff’s car was traveling about twenty-five miles per hour as he approached and when he was on the west line of the intersection. When plaintiff was twenty-five feet west of the intersection, at which point he first saw defendant’s car, defendant was traveling fifty-five or sixty miles per hour.
Did the court err in overruling the demurrer to plaintiff’s evidence? Defendant contends it did. He insists, first, that plaintiff was guilty of negligence per se when he entered the intersection at twenty-five miles per hour, which was in violation of the city ordinance. Negligence alone on the part of a plaintiff does not necessarily preclude recovery. In order to prevent recovery it must be negligence of such character and kind as contributed to the collision and was the proximate cause of the injuries sustained. (Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906, and cases therein cited.)
Defendant also insists plaintff should have slowed up or stopped in view of defendant’s rapidly approaching car from the north and that his failure to do so constituted contributory negligence as a matter of law. At this point we might say that defendant’s own evidence later completely disavowed such speed on his part. His evidence was that he entered the intersection from the north at less than eighteen miles per hour. Obviously, in the view of the evidence supplied by himself, he is not in a good position to now urge his demurrer to plaintiff’s evidence should have been sustained by reason of his terrific speed. We shall, however, treat defendant’s contention that plaintiff was guilty of contributory negligence as a matter of law by reason of the fact that he drove into the intersection with knowledge of the approaching car from the north and that he did so when defendant’s car was traveling at a high rate of speed.
In Keir v. Trager, 134 Kan. 505, 7 P. 2d 49, the law of the road was stated thus:
“The law is well established that the operator of an automobile in a public highway may assume others using the highway will observe the law of the road, and he is not guilty of contributory negligence in acting upon such assumption unless and until he has knowledge to the contrary. (Kersting v. Reese, 123 Kan. 277, 255 Pac. 74; 1 Berry on Automobiles, 6th ed., p. 189, sec. 225.) The appellee was acting wholly within her rights in assuming that the appellants would stop before entering the highway, and she cannot be charged with negligence in acting upon such assumption. She can only be charged with negligence under such circumstances from the time that she had knowledge that the appellants intended to disobey the stop sign and enter upon the highway. After she had such knowledge she was bound to use the care of an ordinarily prudent person.” (p. 507.) (See, also, Turner v. George Rushton Baking Co., 135 Kan. 484, 487, 11 P. 2d 746.)
Whether plaintiff’s conduct, after he had knowledge of the approaching car, constituted such contributory negligence as was the proximate cause of' the injury, was a question for the jury. In 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. 4.) (See, also, Hill v. Southern Kansas Stage Lines Co., supra.)
It must also be remembered that failure of the plaintiff to do one or more things he might have done to avoid the collision, did not necessarily make him guilty of contributory negligence, if there is evidence which will support a finding that the collision was nevertheless caused by the negligence of the defendant. (Spohn v. Southern Kansas Stage Lines, 142 Kan. 595, 50 P. 2d 1001.) In the instant case it is clear no collision would have occurred, notwithstanding the fact plaintiff had entered the intersection at twenty-five miles per hour instead of eighteen miles per hour, except for the negligent act of the defendant in driving his car through the southeast corner of the intersection instead of through the west side of Oliver street where it belonged.
Defendant cites cases in which a plaintiff was held to be guilty of contributory negligence as a matter of law by reason of having miscalculated the speed of an oncoming car and ran directly in front of it or into it. This is not a case in which plaintiff miscalculated the speed of a rapidly approaching car and drove directly into its path, or against it, and as a result thereof was injured at a point on the street or highway where defendant’s car had a legal right to be.
The defendant insists he was not obliged to stop, because there was no stop sign on the north side of the intersection, and a police ordinance provided that no provision of the stop-sign ordinance should be enforceable against an alleged violator if, at the time and place of the alleged violation, the sign was not in a proper position and sufficiently legible to be seen by an ordinarily observant person. Obviously, such a police ordinance, while it would be effective to relieve the violator from prosecution and' fine, could not change the character or nature of streets and thoroughfares which were expressly designated by another ordinance as constituting principal streets and rights of way. Nor could it vitiate still another ordinance which in no way related to the stop-sign ordinance, and which gave plaintiff the right of way where he first entered the intersection or where he and defendant entered it at the same time. In Titus v. Braidfoot, 226 Ala. 21, 145 So. 423 (1933), it was said:
“The court instructed in the oral charge and written charges that Bessemer road at the place of collision was a boulevard, and subject to the laws governing boulevards, and there was no exception by plaintiff to such instruction. . . . When a city passes an ordinance, the presumption arises, without evidence to the contrary, that the municipality did what was necessary to make that ordinance valid. . . . That is to say, when an ordinance designates a highway a boulevard and places a sign or warning of its character and effect thereon, the mere temporary removal or destruction of such sign at a given point does not change the character of such highway.” (p. 22.)
In connection with the effect of the failure of public authorities to erect stop signs at arterial highways on which drivers have been given the right of way over vehicles entering it, see, also, Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 Pac. 932.
Assuming, for the moment, defendant was required to pay no attention to the ordinance which gave the travel on Kellogg street the right of way or to the ordinance which gave plaintiff the right of way by reason of the fact he was first in the intersection, plaintiff still could not be said to have been guilty of contributory negligence as a matter of law on the ground he miscalculated the speed of defendant’s car because plaintiff’s car passed the entire west side of Oliver street in safety and was injured only by reason of defendant’s car being on the east side of Oliver street where it had no right to be and where plaintiff had no reason to anticipate it would be. Plaintiff, even though defendant’s car was coming from the north at an excessive speed, had the right to assume defendant would not drive his car on the wrong side of the road. (Kersting v. Reese, 123 Kan. 277, 279, 255 Pac. 74; Keir v. Trager, supra.)
The various facts and circumstances disclosed by the evidence, together with reasonable inferences which might properly be drawn therefrom, did not establish contributory negligence as a matter of law, and defendant’s demurrer thereto was properly overruled. The motion for a directed verdict was substantially equivalent to a de murrer and it likewise was properly overruled. It could not be said, in view of how and where the collision occurred, that reasonable minds could reach only the conclusion that plaintiff’s conduct was the proximate cause of the injury.
We turn next to the subject of instructions. We have examined the particular objections made to the instructions at the time of the trial. The objection to certain instructions was made on the ground they were inconsistent with other instructions. It is true some inconsistencies existed. The question on appeal, however, is not whether there were inconsistencies, but rather whether defendant is entitled to a reversal of the judgment by reason thereof. The trial court included in the instructions the ordinance which designated Kelogg street as a principal street and as a right-of-way street, which ordinance also required drivers to come to a full stop at a point even with the stop sign. The instructions also included the ordinance which gave a party to the right (the plaintiff), the right of way when he entered the intersection first and when both parties entered it at the same time. Then, upon the insistence of defendant and over the objection of the plaintiff, the court included also the police ordinance under which a violator was relieved from prosecution if at the given time and place the stop sign was not in place or was not legible. In view of what has been previously said herein, under the subject of the ruling on the demurrer, it follows the last-mentioned ordinance should not have been included in the instructions. Which of the ordinances was applicable was of course a question of law for the determination of the trial court. The inclusion of the objectionable ordinance favored the defendant. He was not entitled thereto. He is not entitled to a reversal now on the ground the instructions were too favorable to him. (St. Jos. & D. C. Rld. Co. v. Grover, 11 Kan. 302.) Moreover, a party will not be permitted to mislead a court into giving inconsistent instructions, regardless of how sincere he has been in the erroneous belief he was entitled to the requested instruction, and then obtain a reversal on the ground of the resulting inconsistency where such inconsistency could have resulted only in his benefit. Except for the inconsistencies mentioned, the instructions followed substantially the rule announced in the Keir case. They were sufficient, and no- reversible error appears therein.
In view of what has heretofore been said we need not discuss the refusal of the trial court to give an instruction requested by de fendant, as the instructions already given, including an instruction requested by and exceedingly favorable to the defendant, fully covered the issues.
The various authorities cited by appellant, under his respective contentions, have received our studious attention. They are not in conflict with our former pronouncements, nor with-the views herein expressed. Nothing further requires our attention under the order overruling the motion for a new trial. The judgment must be affirmed. It is so ordered.
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The opinion of the court.was delivered by
Dawson, C. J.:
This is another chapter in the litigation which had its inception in a divorce action and its incidents between the parties to this appeal. (Davis v. Davis, 145 Kan. 282, 65 P. 2d 562; id., ante, p. 211, 81 P. 2d 55.)
The present appeal is from two orders of the district court — (1) increasing the payments to be made for the support of the minor child of these litigants, Margaret Jane Davis, from $50 to $100 per month; and (2) ordering appellant'to pay four doctor and dentist bills incurred in her behalf, and which aggregate $222.30.
Touching the first of these orders, appellant contends that it was “arbitrary, unreasonable and capricious,” and made in “disregard of the authority vested in the trial court.” In support of this contention counsel for appellant devote several pages of their brief to matters of no present concern, to wit, the fact that the appellee is the only daughter of one of the proprietors of a prominent trust company in Wichita, that she owns a fine home in Colorado Springs, that she has acquired another husband who is rich; nor is it of any material consequence in this appeal that appellant has heretofore been adjudged to pay a large sum to appellee on account of his long-protracted failure to make the monthly payments heretofore required of him for his minor child’s support and as to which he has been in arrears.
On January 17, 1936, the trial court, doubtless upon a showing as to appellant’s financial status at that time, reduced its prior order for support of the minor child of these litigants to $50 per month. Two years and three months later, on April 23, 1938, an application of appellee to increase the allowance was heard upon such evidence as the litigants chose to present. It is asserted in appellee’s brief, and not denied by appellant, that he was present in court at this hearing, and that he did not take the witness stand. If his financial circumstances at that time would not warrant an increased allowance on behalf of his young daughter, he, better and more convincingly than any other witness, could have brought that fact home to the court. Instead of fulminating against the court’s order, appellant’s counsel would have served him better to have put him-on the stand to testify as to the condition of his business and his net income, his own then current needs, and any other pertinent considerations which ought to be taken into account. Counsel for appellee directs our attention to the fact that at a hearing in an earlier chapter of this litigation appellant had testified as to his then current income and prospects. The exact language of this testimony is supplied by counsel for appellant. It reads:
“•My gross income from these wells this month was $20,000 and it should remain at that figure for the next year.” • •
This court can take judicial notice of the precarious nature of an income'drawn from the oil industry, but we have to depend on the record for the actualities of any particular case. In their reply brief counsel for appellant say, “The trial courtj throughout this litigation, would hear only the evidence he wanted to hear.” Elsewhere in the same brief they say:
“Appellant firmly believes it would have made no difference whatsoever if Mr. Davis had testified. . .
Glancing at the names of counsel appended to this brief, we recognize that some of them certainly know, without being told, how to bring into the record for appellate review any pertinent evidence in behalf of their client which the trial court declined to hear, or other evidence that would be helpful to this court, whether the trial court so regarded it or not. (Smith v. Smith, 104 Kan. 629, 631, 180 Pac. 231; Harmon v. Coonrad, ante, pp. 146, 154, 79 P. 2d 831.) The error assigned on the order increasing the monthly award for the support of appellant’s daughter is not sustained.
Turning next to the order requiring appellant to pay certain bills incurred for medical expenses in behalf of appellant’s daughter, those items were as follows: Nose and throat specialist, $48.96; eye doctor, $28.56; dentist, $3; thyroid and gland specialist, $141.78; total, $222.30.
This order was not made pursuant to some new development in this litigation, but merely as a matter of detail pursuant to a prior order of the court in one of the earlier chapters of the litigation. That earlier order had been made on January 17,1936. According to appellant’s brief it provided that defendant should pay “all medical, surgical and hospital expenses necessary for said Margaret Jane Davis.” The complaint now made is that in the allowance of these bills “the court followed no statutory procedure whatsoever.” It cannot be gainsaid, however, that there was a hearing before the court in respect to these bills. Appellee testified as to their necessity, and she was cross-examined in regard thereto, as well as on some irrelevant matters. It is now suggested that Mrs. Davis was not a competent witness touching the necessity or reasonableness of those bills — that only experts could testify so. We do not think the point has much merit; and if it did, the record does not show that any timely or pertinent objection w.as made to her testimony. No error is apparent on this assignment.
Counsel for appellee asks this court for an attorney’s fee for his services in this court. Appellant’s objections thereto have been duly considered. We think a fee of $150 in his behalf should be allowed, to be charged as costs in the case. It is so ordered.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in quo warranto, authorized by chapter 270 of the Laws of 1937, to oust defendant from the unlawful practice of medicine and surgery. The case is now presented for the determination of certain questions of law which arise upon the pleadings in advance of the trial of the facts, as authorized by G. S. 1935, 60-2704 and 60-2902. Therefore, it is deemed prudent to set out the pleadings.
The petition, omitting paragraphs 1 and 2 and the prayer, reads:
“3. That the defendant, B. L. Gleason, is not now, nor was he at the times hereinafter mentioned, licensed by the board of medical registration and examination of the state of Kansas, and is not now, nor was he at the times hereinafter mentioned, authorized to practice medicine and surgery as defined by the laws of the state of Kansas; that the defendant, B. L. Gleason, is now, and has been, at all times mentioned herein, lacking in the educational and professional qualifications to enable him to practice medicine and surgery, as defined by the law of the state of Kansas.
“4. That the defendant, B. L. Gleason, claims to have the right and privilege •of practicing medicine and surgery, and does in fact, and has for many years past, engaged in the profession of the practice of medicine and surgery; that in the course of the defendant’s practice of medicine and surgery, he has, and is now treating numerous patients in a hospital owned and operated by this ■defendant, located in Lamed, Kansas, which said patients are treated by this •defendant by medical treatment and by surgical treatment; that this defendant is without lawful power or authority to engage in the profession of treating patients for hire, either by prescribing medicine or by performing surgery; that the defendant is now, and has been, since the year 1915, a licensed osteopath under and by virtue of and pursuant to the statutes of the state of Kansas pertaining to osteopaths, and by reason of such license, is not empowered or privileged to engage in the practice of medicine and surgery, but is only authorized and empowered and privileged to engage in the practice of osteopathy, as the same was taught in legally incorporated colleges of osteopathy of good repute, in the year 1913, pursuant to G. S. 65-1201.
“5. That the defendant, B. L. Gleason, owns and operates within the city of Larned, Pawnee county, Kansas, a hospital, in which hospital divers and numerous patients have been and are being received for the purpose of receiving both medical and surgical treatment for the ills of said patients; that the defendant, B. L. Gleason, does in said hospital prescribe medicine for a fee to said patients and does perform surgical operations thereon for a fee, and does permit and authorize other licensed osteopathic physicians to engage in the practice of medicine and surgery defined by the law of Kansas therein; that the operation of such hospital by this defendant is in violation of the laws of the state of Kansas, and is an unlawful usurpation of power and privilege by this defendant.
“6. That by reason of the allegations hereinbefore set forth, the said defendant has intruded himself into the practice of medicine and surgery in the state of Kansas, and is now, and has been usurping the right, authority and privilege of practicing medicine and surgery in the state of Kansas without any warrant or authority of law, and that said defendant will, unless ousted therefrom by this court, continue to practice medicine and surgery in the state of Kansas without lawful authority so to do, and in violation of and in disregard of the statutory requirements of the state of Kansas.”
The answer contains a general denial, admits the allegations of paragraphs 1 and 2 of the petition, and, omitting the prayer, reads:
“Defendant admits that he is not now, nor was he ever, licensed by the board of medical registration and examination of the state of Kansas, as alleged in paragraph 3 of said petition.
“Defendant admits that he is a duly licensed osteopathic physician and surgeon as alleged in paragraph 4 of said petition and states that as such he has for many years treated patients both medically and surgically, as alleged in said paragraph 4, and is now so doing.
“Defendant for his further answer states that he is authorized, empowered and privileged to engage in the practice of medicine and surgery, including drug therapy, under his license as an osteopathic physician and surgeon as defined by section 65-1201, G. S. 1935, and states that at all times mentioned in said petition he has treated patients both medically and surgically as taught- and practiced in legally incorporated colleges of osteopathy of good repute.
“Defendant states that he is a graduate of the American School of Osteopathy of Kirksville, Mo. (now known as the Kirksville College of Osteopathy and Surgery), of the year 1915 and that all the time he attended said college, which included the year 1913, the use of medicine and surgery, including drug therapy, for the treatment and alleviation of human ills were taught and practiced in said college; that the osteopathic school or system of medicine and healing contemplates, comprehends and includes the practice of medicine and surgery, including drug therapy, and that colleges of osteopathy use the same textbooks on the practice of medicine and surgery that are used in approved schools of medicine generally, such as allopathic and homeopathic schools of medicine, and devote sufficient time to these subjects to thoroughly qualify their graduates in the use and practice of medicine and surgery; that the charter of said American School of Osteopathy (now known as the Kirks-ville College of Osteopathy and Surgery) specifically provided for the teaching of surgery, obstetrics, such sciences and arts as are usually taught in medical colleges, and the treatment of diseases generally, including the use of drugs.
“Defendant admits that he operates a hospital in the city of Larned, Pawnee county, Kansas, and that he permits and authorizes other licensed osteopathic physicians and surgeons to use said hospital, but states that divers and numerous patients which have received, and are now receiving, medical and surgical treatment for the ills of said patients for a fee have been and are now being treated, both' medically and surgically, according to the latest and best-known methods and systems of medicine and surgery taught and practiced in legally incorporatedi colleges of osteopathy of good repute.
“Defendant specifically denies that by'his license he is only authorized, empowered and privileged to engage in the practice of osteopathy as was taught in legally incorporated colleges of osteopathy' of good repute’ in the year 1913, pursuant to section 65-1201, G. S. 1935, as alleged in said paragraph 4, and for further answer álleges that on the contrary section' 65-1201, G. S. 1935, authorizes and empowers defendant to practice medicine and surgery, including drug therapy, according 'to the latest and best-known methods as now taught in legally incorporated colleges of osteopathy of good repute; that the system, method and science of osteopathy is progressive, and that defendant possesses the educational and professional qualifications, by study and by experience, to exercise the requisite degree of care, skill and diligence in the treatment of his patients, as is required of practitioners of medical science; that by reason of his certificate to practice osteopathy, issued by the state board of osteopathic examination and registration, defendant is authorized, empowered and licensed to practice osteopathy and surgery as taught and practiced in legally incorporated colleges of osteopathy of good repute and that his certificate of authorization to so practice is conclusive evidence of his qualification and ability to practice and cannot be collaterally attacked in this proceeding, but can only be questioned and investigated in a proceeding to revoke said certificate and license.”
The reply is a general denial.
The determination of the questions submitted, insofar as they are questions of law as distinct from questions of fact, and insofar as they are material to the issues formed by the pleadings, requires an examination of our statutes pertinent to the issue. It has been uniformly held in this state (State v. Creditor, 44 Kan. 565, 24 Pac. 346; State v. Wilcox, 64 Kan. 789, 63 Pac. 634; Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; State v. Johnson, 84 Kan. 411, 114 Pac. 390; State, ex rel., v. Cooper, 147 Kan. 710, 716, 78 P. 2d 884), and generally elsewhere (48 C. J. 1068; 21 R. C. L. 352, 353), that in the exercise of its police power, and for the welfare and protection of its citizens, a state may enact statutes fixing educational and other reasonable and proper qualifications for those who, for a compensation, engage in the healing of the sick, afflicted, or injured, and require such persons, before engaging in such practice, to pro cure a certificate evidencing the fact they have attained such qualifications, and authorizing them to practice the art or profession of healing in harmony with established standards of their respective qualifications, as indicated by such certificate. The authority of the state to enact such statutes is conceded in this action.
We need not review such statutes as we had on this subject prior to 1901, for they were repealed in that year, and a much more comprehensive statute pertaining to the subject was enacted. (Laws 1901, ch. 254.) This was an act “to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state. . . .”
Section 1 of the act provided for the creation and prescribed the general duties of a state board of medical registration and examination, composed of seven members, “who shall be physicians in good standing in their profession, and who shall have received the degree of doctor of medicine from some reputable medical college or university.” (This, as amended by Laws 1933, ch. 276, § 6, is G. S. 1935, 74-1001.)
Section 2 related to those then engaged “in the practice of medicine” in the state, and upon their application within a stated time, and upon a designated showing of their qualifications, authorized the board of medical registration and examination to issue to them certificates, which “shall be conclusive evidence that its owner is entitled to practice medicine and surgery in this state.” (Now included by reference in G. S. 1935, 65-1002.)
Section 3 pertained to “all persons intending to practice medicine, surgery or osteopathy,” and who had not complied with section 2, and required them to make application to the board of medical registration and examination, and to “submit to an examination of a character to test their qualifications as practitioners of medicine or surgery, and which shall embrace all those topics and subjects a knowledge of which is generally required by reputable medical colleges of the United States for the degree of doctor of medicine.” This section contained the provision “that any graduate of a legally chartered school of osteopathy, . . . shall be given a certificate of license to practice osteopathy upon the presentation of such diploma.” There were provisions for the issuance of temporary certificates. (This, as since amended, is G. S. 1935, 65-1001.)
Section 4 authorized the board of medical registration and examination to issue certificates “to practice medicine and surgery or osteopathy within this state.” Such certificates were to be recorded in the office of the county clerk where the holder resided and practiced. (This, as since amended, is G. S. 1935, 65-1003.)
Section 5 pertained to the financial matters of the board of medical registration and examination. (This, as since amended, is G. S. 1935, 65-1004.)
Section 6, so far as here pertinent, reads:
“Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatever nature for the cure or relief of any wounds, fracture, or bodily injury, infirmity or disease of another person, or who shall use the words or letters ‘Dr.,’ ‘doctor,’ ‘M. D.,’ or any other title in connection with his name which in any way represents him as engaged in the practice of medicine and surgery; but nothing in this act shall be construed as interfering with any religious beliefs in the treatment of disease, provided that quarantine regulations relating to contagious diseases are not infringed upon. All persons who practice osteopathy shall be registered and licensed as doctors of osteopathy, as hereinbefore provided, but they shall not administer drugs or medicines of any kind nor perform operations in surgery. This act shall not apply to any commissioned medical officer of the United States army, navy, or marine service, in the discharge of his official duties; nor to'any legally qualified dentist, when engaged in the legitimate practice of his profession; nor to any physician or surgeon who is called from another state or territory in consultation with a licensed physician of this state, or to treat a particular case in conjunction with a licensed practitioner of the state, and who does not otherwise practice in the state/ Nor shall anything in this act apply to the administration of domestic medicines nor to prohibit gratuitous services; provided, any person holding a diploma issued by an optical college, and who has studied the anatomy of the eye and contiguous parts, human physiology and natural philosophy for at least six months under a competent teacher, and who shall pass examination satisfactory to the state board of medical registration and examination, shall be eligible to register as an optician or doctor of optics, and shall be otherwise governed by this act so far as the same is applicable.” (This, as amended, is G. S. 1935, 65-1005.)
Section 7 prescribed penalties for any person “who shall practice medicine and surgery or osteopathy in the¡ state of Kansas without having received and had recorded a certificate under the provisions of this act,” or for violating other provisions of the act; and section 8 made it perjury for one falsely to swear or give testimony to procure such a certificate. (These, as since amended, are G. S. 1935, 65-1006, 65-1007.)
With slight amendments, not here important, this act remained in force until 1913, when chapter 290 of the Laws of 1913 was enacted. This was an act “concerning the practice of osteopathy, creating a state board of osteopathic examination and registration,” providing penalties for its violation, and amending and repealing sections 3, 4, 5, 6 and 7 of chapter 254 of the Laws of 1901. The first seven sections of this act relate to osteopaths and the practice of osteopathy. Section 1 provided for the creation of “a state board of osteopathic examination and registration consisting of five members . . . who are reputable practitioners of osteopathy, and who are graduates of a reputable school or college of osteopathy, . . . who shall have been in active practice in the state of Kansas for at least three years,” and its general duties were outlined. (This is G. S. 1935, 74-1201.)
Section 2 required “any person not now a registered osteopathic physician of this state,” before engaging in the practice of osteopathy in this state, to make application to “the board of osteopathic examination and registration,” and to make a designated showing, or pass an examination. It required the board to “subject all applicants to a practical examination, as to their qualifications for the practice of osteopathy, in writing, in the subjects of anatomy, physiology, physiological chemistry and toxicology, pathology, diagnosis, hygiene, obstetrics and gynecology, surgery, principles and practice of osteopathy, and such other subjects as the board may require.” The board was authorized to issue to a successful applicant “a certificate granting him the right to practice osteopathy in the state of Kansas, as taught and practiced in the legally incorporated colleges of osteopathy of good repute.” Examination could be dispensed with in certain instances, and there was a provision for temporary certificates. (This is G. S. 1935, 65-1201.)
Section 3 defined “osteopathic school or college of good repute,” as used in the act, to include “only such schools or colleges of osteopathy as are legally incorporated, and which prescribe a course of study covering the time provided for under the provisions of this act, and which shall instruct in all the branches of study in which examinations are required for license under the provisions of this act, . . . and the requirements of which shall be in no particular less than those prescribed by the American Osteopathic Association.” (This is G. S. 1935, 65-1202.)
Section 4 pertained to the financial affairs of the board of osteopathic examination and registration. (This is G. S. 1935, 65-1203.) Section 5 required osteopathic physicians to observe all state and municipal regulations for the control of contagious diseases, report ing births and deaths, and all matters pertaining to the public Health, “the same as all schools of medicine.” (This is G. S. 1935, 65-1204.) Section 6 provided for the recording of the certificate in the office of the county clerk. (This is G. S. 1935, 65-1205.) Section 7 prescribed penalties for any person who in any way would use or attempt to use “the science or system of osteopathy in treating diseases of the human body” by fraud or misrepresentation, or otherwise violating, or failing to comply with, the provisions of the act. (This is G. S. 1935, 65-1206.)
The remaining sections of the act (Laws 1913, ch. 290), 8 to 14, amended and repealed sections 3, 4, 5, 6 and 7 of chapter 254 of the Laws of 1901. While some other changes were made in the sections, the principal one was to remove from them all provisions of the act pertaining to the examination of osteopaths, and the authority of the state board of medical registration and examination to issue certificates to practice osteopathy. The statutes will be referred to further, when necessary, in the discussion of the specific questions submitted.
Since the enactment of these two statutes (Laws 1901, ch. 254, and Laws 1913, eh. 290), we have had two boards, composed of persons having different educational qualifications, issuing different types of certificates: (1) The board of medical registration and examination, composed of seven members, “who shall have received the degree of doctor of medicine from some reputable medical college or university.” This board is authorized to issue certificates “to practice medicine and surgery” in this state. (2) The board of osteopathic registration and examination, composed of five members, reputable practitioners of osteopathy, graduates of a reputable school or college of osteopathy. This board is authorized to issue certificates “to practice osteopathy” in this state. By these statutes, and subsequent amendments thereof, the legislature has clearly recognized a distinct difference between the “practice of medicine and surgery” and the “practice of osteopathy.”
Also, in 1913, the legislature enacted a statute (Laws 1913, ch. 291) creating a board (G. S. 1935, 74-1301 to 74-1306) and authorizing it to issue a certificate to chiropractors (G. S. 1935, 65-1301 to 65-1311). Similar boards have been created and authorized to issue appropriate certificates to trained nurses (G. S. 1935, 74-1101 to 74-1105; 65-1101 to 65-1110); to dentists (G. S. 1935, 74-1401 to 74-1403; 65-1401 to 65-1415); to optometrists (G. S. 1935, 74-1501 to 74-1504; 65-1501 to 65-1513); to pharmacists (G. S. 1935, 74-1601 to 74-1602; 65-1601 to 65-1623); to embalmers and funeral directors (G. S. 1935, 74-1701 to 74-1705; 65-1701 to 65-1726); to barbers (G. S. 1935, 74-1801 to 74-1804; 65-1801 to 65-1807); to cosmetologists (G. S. 1935, 74-2701 to 74-2705; 65-1901 to 65-1910); to podiatrists (G. S. 1935, 74-2801 to 74-2804; 65-2001 to 65-2008). Each of these professions has its standards of educational and professional requirements. Unless a statute specifically authorizes it, the holder of one of these certificates is not authorized to engage in the practice of any of the other of the professions for which another certificate is required.
We shall now take up and determine the specific legal questions propounded by defendant, although perhaps some of them do not have a direct bearing upon the issues raised by the pleadings.
1. (a) Is the osteopathic statute prospective in operation, or (b) .are osteopathic physicians limited to the state of the science and art as taught and practiced in 1913, when the statute was enacted? Answering the first part of this question, (a) the statute was prospective in operation; that is to say, it was designed to operate in the future. After the enactment of our first statute, recognizing osteopathy as a system or school of thought and practice for the treatment of the sick, injured, or afflicted, no one could practice osteopathy lawfully in this state unless he held a certificate authorizing him to practice osteopathy issued by the state board authorized by statute to issue such certificates. From 1901 to 1913 this was the state board of medical registration and examination. Since 1913 it has been the state board of osteopathic registration and examination. The statute did not operate retrospectively so as to punish those who had practiced osteopathy previous to the effective date of the statute, (b) Osteopathic physicians, meaning by that term those to whom certificates have been issued authorizing them to practice osteopathy in this state by a state board authorized to issue such certificates, are limited to the practice of osteopathy in harmony with the fundamental principles of osteopathy, or what is sometimes spoken of as the science or system of osteopathy (G. S. 1935, 65-1206), as generally known and understood and as taught in osteopathic schools or colleges of good repute in 1901 and 1913. Osteopaths, in common with all scientific and professional men, are expected to continue to study, to make progress, to learn more about their profession, and to apply such knowledge in their practice, but they are still engaged in the practice of osteopathy, as that science or system was known and understood when our statutes above mentioned were enacted. They are not authorized to practice optometry (State, ex rel., v. Eustace, 117 Kan. 746, 233 Pac. 109), or any of the other professions which require a specific certificate of authority. If, as suggested by counsel for defendant, osteopathy has abandoned its fundamental opposition to drug therapy and operative surgery (meaning by this term surgery by the use of surgical instruments), and now includes the use of those things in its system, that fact never has been recognized by the legislature of this state. Our statutes continue to recognize the “practice of osteopathy” and the “practice of medicine and surgery” as separate and distinct things. A certificate authorizing one to practice osteopathy, whether issued prior to 1913 by the board of medical registration and examination, or since that time by the board of osteopathic registration and examination, never has been recognized by our statutes, nor by our courts, as authorizing its holder to engage in the “practice of medicine and surgery” in this state.
2. What judicial construction should be put upon the words “anatomy, physiology, physiological chemistry and toxicology, pathology, diagnosis, hygiene, obstetrics and gynecology, surgery, principles and practices of osteopathy” as used in the osteopathic statute? (G. S. 1935, 65-1201.) This is simply a list of subjects in which an applicant for a certificate to practice osteopathy is required to take an examination. An osteopathic school or college of good repute is required to teach these subjects. (G. S. 1935, 65-1202.) However, the certificate issued to a successful applicant is a certificate “to practice osteopathy.” Defendant stresses the word “surgery” in this list and argues that surgery, as used in the osteopathic statute, means the same as it does in any other statute, and hence that a certificate to practice osteopathy authorizes its holder to practice surgery in any and all of its aspects and operations. This contention is too broad. The word is difficult to define (Bouvier’s Law Diet., 3d Rev.). It comes from two Greek words signifying the hand and work (id.). Originally it was part of the profession of barbers, but later was taken up by physicians.and now is recognized as that “branch of medical science, and more specifically that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities, or injuries.” (48 C. J. 1065.) Counsel for defendant call our attention to the fact that the phrase that those licensed to practice osteopathy “shall not administer drugs or medicines of any kind nor perform operations in surgery,” contained in our 1901 statute (Laws 1901, ch. 254, § 6), was omitted in the 1913 statute (Laws 1913, ch. 290). That this was done intentionally, they say, is evidenced by the fact that in the chiropractic act, passed at the same session of the legislature (Laws 1913, ch. 291), a similar phrase was used with respect to chiropractors (G. S. 1935, 65-1303, clause [c]). They argue that the intentional removal of this restriction on osteopaths contained in the 1901 statute indicates a legislative intent to authorize osteopaths to administer drugs and perform operations in surgery without restriction. It seems clear the legislature intentionally omitted the prohibitory phrase contained in the 1901 act from the act, of 1913 (ch. 290), but it does not follow that thereby the legislature intended to confer unrestricted authority on osteopaths to administer drugs and perform operations in surgery. Considering the fact that surgery in its primitive and broadest sense includes adjustment of bones, muscles, ligaments and nerves by manual operation, and that skill in doing so is taught in osteopathic schools and colleges, and occupies a major place in the science or system of osteopathy, and in the practice of osteopathy, the prohibition against osteopaths performing operations in surgery contained in the 1901 act was, at its best, an inaccurately used expression, and should have been omitted for that reason alone. The science or system of osteopathy, generally speaking, strongly opposed the use of drugs as remedial agencies in treating the sick, afflicted, or injured, and osteopathic schools and colleges of good repute contained no course for the study of materia medica; hence, there was no real occasion to prohibit osteopaths from using drugs, since they made no claim or pretense of doing so, nor did they study to qualify themselves for such use. Broadly speaking, theirs was a drugless system of healing. Surgery, as well as obstetrics (Yard v. Gibbons, 95 Kan. 802, 149 Pac. 422), and each of the other subjects in which osteopaths were required to take an examination, were taught in the osteopathic schools and colleges of good repute, in harmony with the osteopathic theory or system of healing, and not as taught in the medical colleges and universities. So the word “surgery,” as used in this statute, meant, in the main, surgery by manual- manipulation. The general use of a knife or other instruments in surgical operations was regarded as unnecessary and opposed to the osteopathic system of treatment. Apparently the legislative intent of the act of 1913 (ch. 290) was to recognize the system of osteopathy as then taught in its schools, and colleges of good repute, and to authorize its practice by those who believed in and conformed to its teachings. Our legislature recognized that there is a broad field for the use of such a system of the healing art. If, as is suggested by counsel for defendant, osteopathic schools and colleges of good repute, and those who practice osteopathy, have abandoned their fundamental theory that surgery, in the main, should be confined to manipulation without the use of the knife and other instruments, that fact never has been recognized by the legislature or the courts of this state.
3. What judicial interpretation should be put on the phrase “as taught and practiced in the legally incorporated colleges of osteopathy of good repute” as used in the osteopathic statute? (G. S. 1935, 65-1201.) Such schools and colleges are defined in G. S. 1935, 65-1202. What was taught in them in 1913 was a matter of common knowledge. Their courses of study were available, as were the writings of its founder, and other leading osteopathic teachers and practitioners. Osteopathy, or the science or system of osteopathy, could be as readily designated by the language used in the statute as in any other way. If there is any substantial controversy on this point, the controversy is one of fact rather than one of law.
4. Does the osteopathic practice act define osteopathy? In State, ex rel., v. Eustace, 117 Kan. 746, 233 Pac. 109, it was said in the opinion (p. 747), “osteopathy is not defined in the statute.” It is true it is not categorically defined, but for the purposes of the act it is sufficiently defined by reference to osteopathy as taught and practiced in the legally incorporated colleges of osteopathy of good repute.
5. If the osteopathic practice act fails to define osteopathy, is it void for uncertainty? The statute is not void for uncertainty in its failure more specifically to define osteopathy.
6. Does the osteopathic practice act delegate to the legally incorporated colleges of osteopathy the right to determine standards and scope of practice of osteopathy in Kansas? Yes, within the limits prescribed by statute (G. S. 1935, 65-1202), but this does not authorize the state board of osteopathic registration and examination to approve schools or colleges which do not conform their teachings to the fundamental principles of osteopathy.
7. If the osteopathic practice act does so delegate, is it void as an unconstitutional delegation of legislative power? The statute is not void on the ground of unconstitutional delegation of legislative power.
8. Are osteopathic physicians in Kansas licensed (a) to administer drugs and narcotics and practice drug therapy, and are they licensed (b) to perform surgery under the provisions of the osteopathic practice act? Generally speaking, the answer to the first part of this question (a) must be in the negative, insofar as such drugs are given as remedial aids. To the second part of the question (b) the answer must be “yes,” if confined to surgery as the same was taught and used as a part of the osteopathic system of healing — which, in the main, was by manipulation — and the answer should be “no,” if it extends beyond this into the general field of operative surgery with surgical instruments. In this connection the briefs put to us specific questions, such as: May one licensed to practice osteopathy, under stated circumstances, administer a simple drug, or a specific drug, for remedial purposes, or use surgical instruments? We are not called upon to answer detailed questions of that character, nor would we deem it proper for us to do so. We are called upon to interpret our statutes. We have no difficulty in finding that our legislature recognized the practice of medicine and surgery as one thing, and the practice of osteopathy as another, and that it regarded both schools of healing as having merit, and the practice of each was authorized. Although founded on different basic ideas, they seek to attain the same objective — namely, the curing or reducing of injurious effects of diseases or injuries to mankind. The legislative purpose was to protect citizens of the state from those who would attempt to accomplish such purposes by means which they had not studied, or were otherwise unqualified to use. As in other schools of thought having a common object in view, such as religion or political science, while fundamental differences exist, there may be ideas or practices in common. Professional men of high standing seldom have serious difficulty, with such details. Our legislature dealt with the two schools of healing in terms quite, general, and that is the viewpoint we take. It is possible the classification made by the legislature is sufficiently definite that the detailed specific questions presented in the briefs, and others of a similar character, can be answered, but if so, they partake more of questions of fact than of pure questions of law.
9. What judicial interpretation should be put on the phrase,. “This act shall not apply to any registered osteopathic physician or any chiropractic practitioners of the state of Kansas, or any commissioned medical officer of the United States army, navy or marine service in the discharge of his official duties; nor to any legally qualified dentist, when engaged in the legitimate practice of his profession”; as used in the medical practice act? (G. S. 1935, 65-1005.) Earlier in this opinion we quoted in full section 6 of chapter 254 of the Laws of 1901, in the latter part of which is a statement as to whom the act did not apply. When that section was amended in 1913 (Laws 1913, ch. 290, § 10, now G. S. 1935, 65-1005), the language quoted in this question was used. As applied to osteopaths, we think it meant no more than that one who desired t'o practice osteopathy should not be required to make application to the state board of medical registration and examination and have that board pass upon his qualifications and issue to him a certificate to practice osteopathy. Counsel for defendant contend that the language used must be taken in its full literal sense, and by so construing it the legislature meant to say, and in fact did say, that none of the provisions of the medical practice act (now G. S. 1935, 65-1001 to 65-1008) applies to osteopaths; hence, that osteopaths may “practice medicine and surgery” in all particulars with impunity. This contention cannot be sustained. It would render ludicrous and nugatory the work of the legislature in treating the practice of medicine and surgery as one thing and the practice of osteopathy as another, and in establishing two state boards, one of medical registration and examination and the other of osteopathic registration and examination, each authorized to issue certificates to practice for the respectively different purposes. Defendant argues that in the interpretation of statutes all the language used in the statute should be given full force and effect. That may be stated as a general rule, but a more important 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. If, standing alone, a phrase will render that general purpose nugatory, it should be disregarded, if need be, in order to give purpose to the legislative enactment. In the late case of Marlin v. Cardillo, 95 F. 2d 112, it was said (p. 115) “it is a well-settled rule of construction that the letter of a statute will not be followed when it leads to an absurd conclusion or a meaningless result. (Nautzel v. Ryans, 184 Ky. 292, 211 S. W. 852; Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 689; Tatlow v. Bacon, 101 Kan. 26, 165 Pac. 835, 14 A. L. R. 269; Anderson v. Town of Friendly, 86 W. Va. 554, 104 S. E. 48. See, also, Sinclair v. United States, 279 U. S. 263, 296, 49 S. Ct. 268, 272, 73 L. Ed. 692.)” Many other authorities to the same effect may be found in the General Digest, under Statutes, key number 183.
10. Does the petition state a cause of action for violation of the medical practice act, or for a violation of the osteopathic practice act? It is difficult to see the purpose of this question. Prom a reading of the petition it seems clear that defendant is charged with doing all the things he could do if he had the certificate to practice medicine and surgery; that he has no such certificate, and that the only certificate he has is one to practice osteopathy.
11. Can the right of defendant to practice in Kansas be attacked collaterally, as in this action, or is the proper action one to revoke his license for exceeding the powers granted thereunder? This question assumes that the attack here is a collateral one. The assumption is erroneous. It is a direct attack by the state, on the relation of the attorney general, in an action specifically authorized by chapter 270 of the Laws of 1937. We do not have before us the question whether defendant’s certificate to practice osteopathy might be revoked because of the facts alleged in the petition; hence, we express no view on that question.
Having answered the questions propounded by defendant, we await suggestions of counsel as to what further orders should be made or proceedings had in this action.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action against several defendants to quiet title to a certain tract of land alleged to be owned by the plaintiff, and the petition further alleged that William Taylor, one of the defendants, claimed some right, title or interest in a certain part of said land described as a strip three rods wide, but that he had not been in possession of the same until a few weeks prior to the filing of the petition, and that he and his son, Albert B. Taylor, were forcibly holding possession of the entire tract, for which wrongful possession the plaintiff claimed damages, and also prayed for possession and that plaintiff’s title be quieted.
The defendant, William Taylor, filed an answer in the form of a general denial except that he alleged ownership of an undivided one-half interest in the three-rod strip described in the petition, and that he was entitled to possession of the same, and prayed for a judgment quieting his title thereto. To this answer the plaintiff replied admitting the execution of the deed to William Taylor, which conveyed an undivided one-half interest in the three-rod strip, but denying the defendant’s possession and claim of ownership of said strip, alleging that the only possession said defendant ever had thereof was jointly with the plaintiff and its predecessor in title, Albert B. Taylor; that the entire tract, including the three-rod strip, had been in the possession of Albert B. Taylor and was claimed to be owned by him who, with the knowledge of defendant William Taylor, mortgaged the entire tract, including the three-rod strip, as the owner thereof, to the plaintiff association, and with the borrowed money constructed a house protruding over on the three-rod strip about four feet, and erected certain outbuildings entirely upon the three-rod strip; that the mortgage, becoming in default, was foreclosed, and the entire property was purchased by the plaintiff at sheriff’s sale.
The reply concluded with a prayer for relief in three ways: (1) quieting title in plaintiff; (2) if William Taylor is found to have an undivided one-half interest in this three-rod strip, that the court determine the value of his interest and direct him to convey such interest to plaintiff upon being paid such amount; and (3) that the court determine the value of the land and the improvements and that the land be partitioned. The defendant, William Taylor, moved the court to strike out the second and third prayer of the reply because of plaintiff’s adopting a new and different basis for relief, which motion was overruled.
Plaintiff asked for the appointment of a receiver to look after the possession and rents and profits of the entire tract during the time of the litigation. A receiver was appointed and he, with the ap proval of the court, rented the entire property at a monthly rental, which was later divided by order of the. court.
The court overruled the request of William Taylor for a trial by jury-
The only land involved in the case, as far as this appeal is concerned, is the three-rod strip, and William Taylor is the only defendant whose interests are here for consideration on this appeal.
The attorney for plaintiff made an opening statement to the court, which included the following sentence:
“Plaintiff is willing to concede that William Taylor has been the owner of an undivided one-half interest in the three-rod strip since 1914, and that he is the owner with the plaintiff.”
At the close of the opening statement by the plaintiff’s attorney, defendant, William Taylor, moved for judgment for him on the opening statement, which motion was overruled. In so ruling the court-made the following remark:
“I think, under the statement and under the pleadings, that the building and loan association is the owner of an undivided one half of this three-rod strip, that William Taylor is the owner of the undivided one half of the three-rod strip. So you can start at that point.”
The plaintiff introduced evidence as to value of the three-rod strip and the value of the improvements thereon, including the four-foot protrusion of the house and bay window across the east line of the strip, and also about the length of the strip being 102 rods, extending from the street on the north near the house to the river on the south, and the difficulty in making an equitable division thereof. At the close of the testimony of the plaintiff the defendant demurred thereto, which demurrer was overruled. The defendant stood on his demurrer and offered no evidence, and the court rendered judgment for plaintiff, finding that—
“. . . the plaintiff and the defendant, William Taylor, are now each the owner of an undivided one-half interest in and to said three-rod strip, which land, with the improvements thereon, now have a value of $400, it being considered, however, that the small part of the residence mentioned which extends over upon said three-rod strip does not actually add anything to the value thereof.”
And the court therefore ordered and decreed that the plaintiff pay into court for the benefit of William Taylor the sum of $200, and that upon its paying such sum into court its title in and to the three-rod strip be quieted against the defendant, William Taylor, and made further orders about failure to convey and enjoining and restraining defendant and as to cost, from which judgment the defendant, William Taylor, appealed after the overruling of his motion for a new trial. During the progress of the trial the plaintiff dismissed its action against the two Taylors for damages on account of forcibly withholding possession of the property.
The appellant presents its views of the errors assigned and argues them under three subdivisions: First, in an action to quiet title and recover possession of real estate where the plaintiff and defendant are each the owners of an undivided interest in the property, does the court have jurisdiction to determine the value of defendant’s interest and order him to convey to plaintiff upon being paid such value? Second, should the court have sustained the motion of defendant to strike out parts of the reply because of departure; and third, was defendant entitled to a jury trial? These points will be considered together, because some of the decisions cited apply to more than one of these points.
Appellant cites the statutes authorizing quieting-title actions, ejectment actions and actions in partition, and insists that the trial court’s decision and ruling is not in accord with any of them. It is argued that the legislature has provided a procedure for each, and particularly for partition with reference to ascertaining the value of the property involved and affording both parties an opportunity to purchase, urging that at the time the house was built by Albert he owned an undivided one-half interest in the three-rod strip, and therefore the building of the house over on this strip by four feet was no encroachment. Among the cases cited by appellant was Atkinson v. Crowe, 80 Kan. 161, 106 Pac. 1052, which was an injunction action brought by the lessee of the mineral rights to restrain the landowner from preventing the lessee’s going upon the land to remove the minerals thereunder. The landowner claimed the remedy sought could only be obtained by an action in ejectment, and therefore demurred to the injunction petition. After it was overruled the landowner filed an answer and demanded a jury, which was denied. On appeal it was held:
“In. an action commenced for the purpose of settling disputed questions of title to real estate, and to recover the possession thereof, either party is entitled to a jury as matter of right, regardless of the form in which the action m<vy be brought.” (Syl. ¶ 1.)
In the opinion it was said:
“The rule that actions for the trial of title to real estate shall be tried to a jury has always been favored, and with practical unanimity has been upheld by the courts. The difficulty encountered in the enforcement, of this rule consists chiefly in determining whether or not the action under consideration comes within the rule. The test upon this question which has been generally followed is that, where the real object of the action, whatever its form, appears to be to settle a disputed question of title, then either party may demand a jury as matter of right; if, on the other hand, the purpose is to obtain proper equitable relief, then the chancellor may administer it, even though it involves an examination of title.” (p. 165.)
In the case at bar there is no dispute as to title. Plaintiff and defendant each own an undivided one-half interest in the title, and the question involved is the equitable relief which the opinion above quoted says the chancellor may administer. Strictly speaking, the pleadings may have put in issue the question of title, but whatever there may have been along that line was removed by the opening statement of counsel for plaintiff. So before any evidence was introduced there was no dispute as to title.
Appellant urges there was a departure in the reply wherein it asked, in addition to quieting title, that the actual value of the interest of defendant be determined and paid to him upon conveyance of his interest to plaintiff, and also for partition, these three pleas and prayers being in the alternative. Appellant cites several cases criticizing departure in pleadings, but none of them are in cases where partition is held to be a departure from an action to quiet title where there is no dispute as to title and no palpable inconsistency between the earlier and later pleadings. Among other cases cited is Armstrong v. Lough, 128 Kan. 167, 277 Pac. 51.
The case of Gordon v. Munn, 83 Kan. 242, 111 Pac. 177, is cited as to the right of trial by jury in a partition case. The opinion in this case refers to the Crowe case, and also comments on the rule in partition cases as follows:
“In an action of partition where, as in this case; the issues disclose the real controversy to be as to the title and possession of the real estate in controversy, that question must be tried to a jury if either party so desire.” (p. 245.)
As stated before in this opinion, we have here no controversy as to title and no controversy as to possession, but only as to the right of possession, which is very different as to facts and proof showing actual possession. Appellant cites the statute as to trial by jury, G. S. 1935, 60-2903, where it requires that “issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury”; also the statutes as to procedure in partition actions, G. S. 1935, 60-2101 to 60-2114, which provide for the appointment of commissioners, report of commissioners, appraisal, election to take property, or sale of the same. The last section is as follows:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
In the case of Fisher v. Rakestraw et al., 117 Kan. 441, 232 Pac. 605, which was an action growing out of a disagreement as to the exchange of property, it was held:
“. . . that the action being essentially one for equitable relief, a jury trial was not demandable as a matter of right, notwithstanding the facts pleaded by defendant to support his setoff and counterclaim, if involved in an ordinary action at law, might have been justiciable before a jury as a matter of right.” (Syl.¶2.)
In the case of Spena v. Goffe, 119 Kan. 831, 241 Pac. 257, which was an action by a stockholder of a dissolved corporation against trustees concerning the sharing in the distribution, it was held to be an equitable action and that in equity a party is not entitled to a trial by jury as a matter of right.
In the case of Houston v. Goemann, 99 Kan. 438, 162 Pac. 271, which was one to cancel a deed and determine the rights of claimants to real property, it was held that it was an equitable action and that a trial by jury was not demandable.
The case of Brush v. Boyer, 104 Kan. 168, 178 Pac. 445, was one to establish and enforce a trust in lands and to compel a conveyance, and it being an equitable action the parties were not entitled to demand a jury.
In the case of Banner v. Welch, 115 Kan. 868, 225 Pac. 98, it was held:
“In a snt in equity to establish an interest in specific real property and for appropriate relief, the court, having acquired jurisdiction of the' parties and of the subject matter, and having found that plaintiff has a specific interest in the property, has power to so frame its decree as to meet the exigencies of the situation and to reach the ends of justice.” (Syl. ¶ 2.)
It was held in the case of Walker v. Rooney, 135 Kan. 158, 9 P. 2d 973, that—
“In an action to determine the rights of the parties in certain real property, the record is examined, and it is held that the court, in ruling upon questions of law prior to the trial of the action on the facts, correctly ruled: (1) That plaintiff’s cause of action to quiet title was not barred by the statute of limitations; (2) since defendant asked that his title be quieted, the question of which party was in possession did not affect the jurisdiction of the court; and (3) that under the pleadings the court could determine all questions suggested with respect to rights of the parties in the property.” (Syl.)
The fourth cause of action in this case was to quiet title generally, and in that connection it was said in the opinion:
“Plaintiff did not allege she was in possession of the property, hence did not bring herself within R. S. 60-1801 relating to quieting title. But that section does not prohibit one out of possession from bringing an equitable action to quiet title in which all of the facts, so far as known to plaintiiff, are set up. (Grove v. Jennings, 46 Kan. 366, 26 Pac. 738; Westbrook v. Schmaus, 51 Kan. 558, 32 Pac. 892.)” (p. 162.)
Under these authorities and the allegations in the petition, answer and reply, it must be concluded that this was an equitable action commenced as one to quiet title, and the court having jurisdiction of the subject matter and the parties was not limited as to its right to determine without a jury the equitable interests and rights of the parties; and the allegations in the reply as to partition were not a departure from the allegations of the petition, nor did they change it from being an equitable action. We find no error in the rulings and judgment of the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is taken by the respondent in a workmen’s compensation case from a judgment of the district court in favor of the claimant affirming the award made by the compensation commissioner. It is purely a question of law, the case having been heard and tried upon a stipulation of facts.
The appellant contends that compensation in this case is limited to the amount allowed under the schedule set out in G. S. 1935, 44-. 510 (3) (c) (3) and (19). The injury sustained by the employee, as stated in the stipulation, was as follows:
“That claimant’s injury and disability were a contusion of the distal joint of the second finger of the left hand which necessitated a surgical opening and removal of splintered bone material.”
G. S. 1935, 44-511, gives the rules for compensation, but in. this case those matters are covered by the stipulation. Subsection (3) under subsection (c) of G. S. 1935, 44-510, relates to the injured member of the body in this case, and is as follows: “For the loss of a second finger, 60 percent of the average weekly wages during 30" weeks.”
Subsection (19) in the same connection provides, among other things, as follows:
“. . . but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such finger, •. . . exclusive of the healing period.”
Subsection (c) begins as follows in outlining the kind of disabilities belonging thereunder: “Where disability, partial in character but permanent in quality, results from the injury . .
Under these provisions it is urged by the respondent that this is a scheduled injury and limited to payments for thirty weeks. There being no disagreement as to the amount of compensation per week, the respondent has paid the stipulated amount per week for thirty weeks, less three weeks and two days, during which time the claimant worked and received regular wages from the respondent, and the respondent also paid the medical and hospital expenses. The respondent therefore insists that it has fully complied with all the requirements of the statute for a scheduled injury.
The claimant urges that under the statute and the stipulation this is not a scheduled injury and therefore the thirty-week limitation does not apply and that the stipulated disability is not under subsection (c) for a scheduled injury, but is under subsection (b).
The stipulation shows the injury to the second finger of the left hand to have occurred on December 19, 1936, which injury seemed to necessitate a surgical opening and removal of splintered bone material, that such condition did not completely heal until November 15, 1937, that during said time there were three weeks and two days when the claimant was employed at full wages by the respondent and was not disabled from work. It was further stipulated that—
“. . . there being a net total period of forty-four weeks of total temporary disability caused by said injury to the second finger of the left hand; that there is not now and has not been since the 15th day of November, any disability of any nature and that there is no permanent disability whatsoever as the result of the accident suffered by claimant on the 19th day of December, 1936.”
The award of the commissioner and the judgment of the district court recognized the right of the claimant to recover compensation for forty-four weeks, less the deduction above mentioned, instead of thirty weeks, leaving the claimant entitled to an award and judgment of $150.59.
Subsection (b) applies “Where temporary total disability results from the injury,” and it proceeds to state what allowance shall be made “during such temporary total disability,” which shall not extend over a longer period than 415 weeks from the date of the acci dent. The distinction between disability under this subsection, where it must be “temporary total disability,”'and that under subsection (c) where it must be “partial in character but permanent in quality,” is readily observed. In other words, the disability under (6) is “temporary total,” and under (c) it is “partial” and “permanent.”
The stipulation, as above stated, shows that the disability in this case was a temporary total disability, and that there was no permanent disability whatsoever. Does not this stipulation, accepted by the commissioner and the district court, compel a conclusion, as reached by both the commissioner and the district court, that the claim and rights of the injured party were under subsection (6) and not under subsection (c) ? They could not hold the disability was permanent when the stipulation said it was not. The scheduled injuries apply where the disability is permanent, and not where it is temporary only.
Appellant cites, in support of its contention, that subsection (c) applies to the facts here stipulated, making this a scheduled injury and limiting the time for recovery of compensation, the case of Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592, where the disability was found to be both temporary total and permanent partial, so that the case would come, as the opinion indicates, under both subsections (6) and (c) of the statute, and the court stated in the opinion: “We regard those sections as being applicable to an injury received at some place on the body other than to one of the members set out in the schedule.” (p. 76.) In that case both the foot and leg were injured and compensation was considered for both along the line of both temporary and permanent injuries. It was further stated in the opinion that a temporary partial disability may sometimes be followed by a permanent loss or disability. We cannot very well apply the ruling in this case to the case at bar, where it was specifically stipulated there was no permanent disability whatsoever.
The cases of Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952, and Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79, are also cited by appellant in this connection, but they are both where the workman suffered a temporary total disability which was followed by a permanent partial disability, and they were held to be under scheduled injuries.
The case of Paul v. Shelly Oil Co., 134 Kan. 636, 7 P. 2d 73, is also cited in this connection, but it was a permanent partial loss of the use of the leg, and under our stipulation in this case we have no facts justifying a ruling along the line of permanent disability.
Appellant argues that under the ruling made in this case one may receive more for a temporary total disability than for a permanent loss, and applying the reasoning to the second finger of the left hand more than if it had been amputated. While this may seem unreasonable, yet the loss sustained by amputation with reasonable healing time is more nearly certain than temporary total disability. In the first compensation act in this state there was no list of scheduled injuries. The later amendment placed limits upon certain permanent disabilities.
Attention is called to the use of both temporary and permanent partial disability not covered by the schedule in subsection (22) and how the computation shall be made in such cases, but, as stated before, that cannot apply where there is no permanent disability. It can be very properly stated that the purpose of the compensation law is not to pay the workman for the injury, but to compensate him in a way for his loss of earning power.
Similar contentions were made in Pegg v. Postal Telegraph-Cable Co., 129 Kan. 413, 283 Pac. 58, and Justice v. A. C. Flour Mills Co., 147 Kan. 402, 76 P. 2d 802, as to the application of one or both of these to subsections (b) and (c), and it was said in both cases that it entirely depended upon the facts as to the disability under consideration being “temporary total” or “permanent.” There can be no question in the case at bar on that point.
We find no error in the judgment rendered by the district court.
The judgment is affirmed.
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The opinion of the court was dfelivered by
Webell, J.:
This was an action to quiet title to a residence property in the city of Kingman. Plaintiffs prevailed, and the defendant has appealed.
The action was instituted by Jessie L. Braly, on her own behalf, and on behalf of Hugh Braly and Jean Braly, her minor children. The material facts are sufficiently covered by special findings made by the trial court, and are as follows:
“1. That the Farmers Grain and Mercantile Company was a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, doing a general grain and mercantile business in the city of King-man, Kan. That P. EL McKenna was the president of said corporation and a stockholder therein. That J. T. Braly was the managing officer of said corporation and the owner of approximately fifty percent of the capital stock.
“2. That the said J. T. Braly died, intestate, a resident of Kingman county, Kansas, on the 27th day of February, 1932, leaving the plaintiffs as his sole and only heirs at law and seized and possessed of the following-described lands and tenements in Kingman county, Kansas, to wit: The east half of lot 16 and all of lots 18 and 20, on Avenue F in North Addition to the city of King-man, Kan. That said property was acquired by the said J. T. Braly prior to 1927 and was at all times thereafter occupied as a homestead until his death and has since continued to be occupied and claimed as a homestead by the plaintiffs. That about May 11, 1927, said property was mortgaged to the Kingman Building, Savings and Loan Association in the amount of $2,500. That said loan was paid out in monthly installments of approximately $40 per month and that at the time of the death of the said J. T. Braly there was approximately $1,100 due and unpaid upon said mortgage, which was later fully paid off by his widow, Jessie L. Braly. That in August, 1931, said property was reasonably worth $3,000.
“3. That on January 3,1931, the said J. T. Braly and his wife, Jessie L. Braly, one of the plaintiffs herein, executed the warranty deed, a copy of which is attached to defendant’s answer as exhibit ‘A,’ and said deed was by the said J. T. Braly deposited on said date with John McKenna as escrow party under written instructions, as fully set forth in exhibit 'B’ attached to the answer of said defendant. That the $2,500 loan of the State Bank of Kingman mentioned in exhibit ‘B’ was fully paid off by the Farmers Grain and Mercantile Company on June 30, 1931, and from June 30, 1931, until August 14, 1931, neither the said Farmers Grain and Mercantile Company nor the said J. T. Braly was in anywise indebted to the State Bank of Kingman. That said deed, exhibit ‘A,’ was not taken up after June 30, 1931, and the same continued to be held by John McKenna as escrow party. That on August 14, 1931, the Farmers Grain and Mercantile Company borrowed the sum of $750 from the State Bank of Kingman, giving its promissory note therefor, which said note was endorsed by the defendant, P. H. McKenna.
“4. That at the time said deed was brought to the office of John McKenna, Mrs. Braly did not accompany her husband to said office and was not present when said deed was placed in escrow with John McKenna.
“5. That on or about the -. day of July, 1931, the said J. T. Braly advised the said John McKenna that he had paid the said $2,500 note and asked if he was not entitled to the return of said deed; the said John McKenna, stating that he supposed he was if he had paid the note, and asked said J. T. Braly if he had the canceled note with him; the said J. T. Braly then stated that he did not have the note with him and further' stated to said John McKenna, that it did not make any difference anyhow, to just keep the deed as he would likely need to use it again sometime soon.
“6. That thereafter and on or about the 14th day of August, 1931, the said defendant, P. H. McKenna, again endorsed as surety a certain note in the amount of $750 to the State Bank of Kingman for the said Farmers Grain and Mercantile Company, at the request of said J. T. Braly, and said J. T. Braly then orally informed said John McKenna that he should hold said deed in escrow, and that he should deliver said deed to said P. H. McKenna in the event he was obliged to pay the said $750 note or any part thereof.
“7. That the original note, dated August 14, 1931, was renewed by a certain note given to the State Bank of Kingman in the principal sum of $750, dated February 15, 1932, executed by the Farmers Grain and Mercantile Company by J. T. Braly, manager, and endorsed by P. H. McKenna. Said note was introduced in evidence as defendant’s exhibit No. 2.
“8. That on April 14, 1932, the State Bank of Kingman demanded payment of said note from the said P. H. McKenna, and the said P. H. McKenna thereupon gave his personal note to said bank in the sum of $760. That the liability ledger of the Farmers Grain and Mercantile Company in said bank was thereupon credited with the amount due on said note and said bank thereafter carried said indebtedness upon a separate sheet as the liability of the said P. H. McKenna.
“9. That shortly after the death of the said J. T. Braly, the Farmers Grain and Mercantile Company became bankrupt and the said P. H. McKenna requested the State Bank of Kingman to file a claim upon said $750 note so executed by the Farmers Grain and Mercantile Company on February 15, 1932, and endorsed by the said P. H. McKenna, as a claim against said bankrupt estate. That the State Bank of Kingman thereupon filed such claim in bankruptcy, and in November, 1936, received the sum of $53.38 as a dividend thereon, which said sum said bank paid the said P. H. McKenna or gave him credit upon his note.
“10. That sometime thereafter the said P. H. McKenna advised the said John McKenna that he had paid said indebtedness to the State Bank of Kingman and demanded that the warranty deed, exhibit ‘A,’ be delivered over to him. That the said John McKenna thereupon delivered said deed to the said P. H. McKenna, who thereupon placed said deed of record in the office of the register of deeds of Kingman county, Kansas, and procured quitclaim deed from Anthony Gerber and wife and S. F. Reynolds and wife, the other grantees in said deed, exhibit ‘A,’ and duly recorded said quitclaim deed.
“11. That the said plaintiff, Jessie L. Braly, prior to the death of the said J. T. Braly, had no notice, knowledge or information whatever con cerning the note of August 14, 1931, or any renewals thereof, so endorsed by the said P. H. McKenna, and had no notice, knowledge or information that said deed had in anywise been escrowed or hypothecated as security for said $750 note, and that the first information she had concerning said matters was from John McKenna about January, 1933.
“12. That the said plaintiffs herein have never repaid the said sum of $1,030.96 which the said P. H. McKenna was obliged to pay upon the said note, defendant’s exhibit No. 2, to the State Bank of Kingman, to said P. H. McKenna, or any part thereof, and have never tendered or offered to pay said amount or any part thereof to him.”
The written instructions to the escrow holder which were delivered by plaintiff’s husband, together with the deed, were:
“Kingman, Kansas, January 3, 1931.
“Mr. John McKenna, Kingman, Kansas:
“Dear Sir — You are hereby instructed as follows:
“Whereas the undersigned J. T. Braly and the Farmers Grain and Mercantile Company, a corporation, have procured Anthony Gerber, S. F. Reynolds and P. H. McKenna, to guarantee the payment of a loan of $2,500 to the State Bank of Kingman, Kansas, for said J. T. Braly and The Farmers Grain and Mercantile Company, a corporation;
“And whereas, said J. T. Braly and said Farmers Grain and Mercantile Company, have this day executed two deeds, the one executed by said J. T. Braly and wife, conveying the east half of lot 16 and all of lots 18 and 20 on Avenue F in North Addition to the city of Kingman, Kan.;
“And the other, executed by said Farmers Grain and Mercantile Company, a corporation, conveying to said Anthony Gerber, S. F. Reynolds and P. H. McKenna, the certain part of lot 5 in the town of Cleveland, and the elevator, coal bins and equipment of its certain elevator at Cleveland, Kan., which last property is more particularly described as tract 3 and tract 4 in the deed to said corporation, recorded in book 106, page 616 of the records in the office of the register of deeds of Kingman county, Kansas.
“You are therefore hereby instructed to deliver both said above-described deeds to said Anthony Gerber, S. F. Reynolds and P. H. McKenna, immediately, as soon as you are notified and assured that said parties have been obliged to pay said sum of $2,500 or any part thereof.
“You are hereby further instructed that if said J. T. Braly and said corporation shall pay said sum of $2,500 and said other parties are released therefrom, to return the two deeds to said Braly and said corporation.
“(Signed) Farmers Gr. & Mercl. Co.,
By (Signed) P. H. McKenna, P’t.
(Signed) J. T. Braly.”
Appellant moved to have certain requested findings substituted for findings numbers eight and nine. An examination of the record leads us to conclude no reversible error was committed in overruling the motion.
Appellant also urges his demurrer to plaintiffs’ evidence should have been sustained. Couching the contention in his own language, it is:
“The plaintiff, having executed the deed and permitted it to be used by her husband without retaining any control over it herself, is estopped to deny his authority to use it as security for a loan.”
With this unqualified statement this court does not concur, nor do we regard it as entirely applicable to the material facts in the instant case. In support of appellant’s contention two decisions are cited, Moody v. Stubbs, 94 Kan. 250, 146 Pac. 346, and Elliott v. Faulkner, 131 Kan. 528, 292 Pac. 918. They are not controlling in the instant case for obvious reasons. What debt did this court say the deed in the Moody case secured? Why, the particular debt for which the wife permitted her husband to pledge her deed as security, and not some other debt which her husband might incur long after the former debt had been fully discharged. In that case the identical obligation for which the deed was pledged as security remained unpaid. Only the form of its acknowledgment, or the form of the promise to pay, was changed. It took the form of a renewal note, but the identical principal obligation remained. It was the obligation which the deed was intended to secure, and not the note which merely represented the obligation. Clearly, under such circumstances, it was proper to hold the deed as security until the obvious intention of the parties was fulfilled. That was the basis for the decision in the Moody case. Moreover, in the instant case, there was no delivery of a deed by the husband, as the agent for the wife, to the defendant, or to anyone of the other grantees named therein. It was delivered by the husband to the escrow agent with definite instructions to which defendant is conceded to have agreed. Under these circumstances what was the presumption as to the husband’s authority? If any presumption is to be indulged from circumstances, it is the presumption the deed was delivered to the husband in conformity with the specific terms of the escrow agreement. The delivery of the deed and the escrow agreement together, to the escrow agent, constituted a single transaction, and that fact is entitled to consideration in determining the presumed authority of the husband. The testimony of John McKenna, the escrow holder, and a lawyer and brother of the defendant, was very frank. It was: “Mr. Braly brought the deed to me with those written instructions.” According to those instructions the deed spent its force, so far as the defendant, McKenna, was concerned, when the obligation which it was intended to secure was paid. H'ow, then, can the defendant reasonably contend the wife intended her husband should be authorized to pledge the deed for another obligation of the defendant which was created long after the escrow agreement had also spent its force, except as to the requirement that it be performed in accordance with its terms? It seems to us the fact the escrow agreement definitely directed what should be done with the deed upon payment of the specific debt it was pledged to secure, was some affirmative indication the husband was not authorized to use the deed as security for a different debt. The use of the deed by the husband as security for some other personal obligation of the defendant was not included in the escrow instructions. In this connection we might also consider the effect on title to land acquired by the delivery of a deed in contravention of the directions contained in the escrow agreement, but we do not deem that necessary.
What about the Elliott case, stressed by appellant. The pertinent portion of the syllabus in that case reads:
“Where the trial court makes a finding of fact supported by sufficient evidence, that at the time of delivery of a deed to real estate the grantors of the deed agreed with the grantee therein that the deed was given to enable the grantee to qualify and become surety on a recognizance bond of the husband, and such other bonds as the grantee might be asked by the husband and wife, or either of them, to execute as surety for them, or either of them, and the title to the property described in the deed should be held by the grantee as security and indemnity against any loss or liability which the grantee might incur or sustain by reason of the execution of any of the bonds referred to, it is held: (a) Such deed was properly decreed to be a morgtage to indemnify the grantee against loss on a supersedeas bond signed as surety for the wife who joined in the execution of the deed. . . .” (Syl.) (Italics inserted.)
The italicized portions of the syllabus and the corresponding portions of the opinion at page 530 clearly indicate the.distinction between that case and the instant case, and further comment thereon is superfluous.
In Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195, it was held:
“The authority of a husband to act for his wife may be shown by circumstances; and the wife’s testimony that she had never given her husband such authority is merely evidence to the contrary which the trial court may or may not believe.” (Syl. ¶ 2.)
In the instant case the testimony of the wife was to the effect she had no knowledge of the second transaction until long after her husband had consummated it. This fact, together with the original delivery of the deed to the escrow agent, and the terms of the escrow agreement, was clearly sufficient to establish prima facie proof of the fact the husband had no authority to pledge the deed for defendant’s subsequent debt. For a helpful discussion of the question of what constitutes prima facie proof of a husband’s apparent authority to convert his wife's property to his own use, see Reynolds v. Bank, 104 Kan. 215, 178 Pac. 605. In Eadus v. Hunter, 249 Mich. 190, 228 N. W. 782, it was said:
“Agency and authority of husband and wife when delivering instrument affecting property held by the entireties may be implied from circumstances.” (Headnote 3.)
“While husband’s agency and authority for wife may be implied from circumstances, husband’s authority is no more extensive in scope or longer in duration than that of any agent similarly constituted.” (Headnote 7.)
“Where husband, after execution of oil and gas lease on property held by the entireties, delivered lease in escrow under agreement with lessees for himself and for wife under implied authority arising from his possession of lease without instructions from wife, original authority to make escrow agreement held not to authorize husband to withdraw lease from escrow without wife’s acquiescence, since husband, by executing escrow agreement, exhausted original authority, and could do nothing further without further authority conferred by wife.” (Headnote 8.)
In Hall v. First Nat. Bank, 226 App. Div. (N. Y.) 190, 234 N. Y. S. 432, it was said:
“Permit of hypothecation and power of attorney authorizing plaintiff’s husband to pledge stock as collateral security for loans of husband and ratifying all agreements which husband might make with bank regarding use of collateral for any loans ‘to -’ constituted assent to no agreement which husband might make regarding use of collateral other than for loans to himself, and could not bind plaintiff to pledge of collateral for loans to sons or corporations controlled by sons, unless bank proved that plaintiff otherwise authorized pledging of collateral for that purpose.” (Headnote 6.)
The implied authority of the husband resulting from the delivery of the deed to him by the wife flowed into the escrow agreement and bound her only to the extent of the terms of that agreement. (Eadus v. Hunter, supra.) The evidence disclosed no other authorization by the plaintiff, and hence the pledge of the deed as security for the subsequent loan of the defendant was invalid.
Appellant next contends: 'The plaintiff is estopped to deny the husband’s authority when she failed to bring any action until long after the husband’s death and after the administration of his estate had been completed.”
Plaintiff’s husband died February 27, 1932. Finding number eleven, the correctness of which is conceded on appeal, is to the effect the plaintiff had no notice, knowledge or information the deed had been pledged by her husband as security for the subsequent $750 debt of the defendant until about January, 1933. The property was at all times prior to the death of plaintiff’s husband, and has been occupied and claimed at all times since her husband’s death, as the homestead. The defendant did not obtain deeds from the other two grantees in the escrow deed until January 9, 1936. He did not record his deeds until February, 1937. This action was commenced on July 9, 1937, to cancel the deeds and remove the cloud from plaintiff’s title. She was in possession of the property and acted promptly to set aside the adverse claim when it was asserted of record. Moreover, there was no material change of circumstances, if any, between the date defendant asserted an adverse title and the commencement of this action. Plaintiff’s action cannot be defeated on the theory of laches. On the other hand, the defendant finds himself in the untenable position of contending he had acquired a lien on the homestead by virtue of a completely oral agreement with plaintiff’s husband in August of 1931, to the extent of the $750 obligation. He also completely failed to effectively assert that purported interest until the year 1937, when the entire estate of the deceased had been administered and the final order of distribution had been made. The judgment of the trial court was obviously correct for several reasons, which we need not now discuss. However, as to this particular contention of appellant, it is sufficient to state plaintiff’s action was not barred by reason of laches.
Appellant finally urges: “In the absence of an offer on the part of the plaintiff to pay the debt for which the deed was escrowed, no equitable relief is available to her.”
Neither the plaintiff, nor her husband, owed the bank or the defendant any debt. The debt here involved was the obligation of the defendant. Whether it was primarily the debt of the Farmers Grain and Mercantile Company, and only secondarily a liability of the defendant, is of no concern to plaintiff. The husband had no authority whatever from the wife to create a lien on the homestead with respect to the $750 debt of the defendant. We need, therefore, not discuss the need of written authority or consent of the wife to encumber the homestead. She was under no duty to offer to pay the $750 debt of the defendant in order to be entitled to the relief sought. The judgment must be affirmed, and it is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action brought by a wife against her husband for divorce and alimony and also for support money for their only child.
Personal service was had on the husband, but he made no appearance and judgment was rendered in favor of the wife for divorce and $3,500 alimony, to be paid in monthly installments of $35 each, and $25 per month for the support of the child. The defendant, very shortly after the judgment was rendered, moved the court for a new trial as to the alimony, which motion was overruled. A few days thereafter an accusation for contempt of court was issued, which was based upon an affidavit made by the wife, and showed the disregard by the defendant of the order of court as to the first payment due thereunder on the 1st day of February, 1937. No service was made of this citation because the sheriff was unable to find the defendant in Wabaunsee county. Another accusation in contempt was issued February 2,1938, based on another affidavit made by the plaintiff, which showed that only $30 had been paid on said order in the eleven or twelve months after the judgment was rendered. To this citation the defendant filed an answer admitting the payment of $30 and alleging that he was wholly without property or money since the judgment was rendered and without employment and had been dependent entirely on his parents and sisters and brothers for his own food and clothing since that time. He alleged further that he had attempted to borrow money to pay on this judgment and had done everything in his power to comply with the judgment of the court, and promised that he would pay all money possible into the court for the support and maintenance of the child and to apply on the alimony. To this the plaintiff filed a general denial by way of reply.
On the hearing of the accusation the plaintiff introduced the evidence of the clerk of the court showing the payment of the $30 and the issuance of the citations. The defendant then testified in his own behalf, admitting the payments made and stating that he had no property of any kind, was not employed and had been unable to get employment since the date of the judgment rendered or make any further payments upon the judgment. On cross-examination he told where he had been during the eleven or twelve months intervening, seven months of which he had spent in Tennessee trying to sell horses and other property belonging to his father, and later he had traveled to several places trying to get work and had not succeeded and had been of late living with his sister in Topeka. The transcript of the divorce proceedings was offered in evidence, which showed the earning capacity of the appellant prior to the divorce was approximately $150 a month and about the time of their separation he received from his father $700 in closing up a previous business transaction.
The trial court commented at considerable length on the testimony. Both parties speak of such comment as being findings of fact, which are to the effect that the court did not believe the testimony of the defendant, although there was no- contradictory testimony, and the court found the defendant guilty of indirect contempt of court and ordered that the defendant, Charles Johnson, be committed to and confined in the Wabaunsee county jail, at Alma, Kan., until he purge himself of such contempt. The defendant filed a motion for new trial on this matter, which was overruled on February 14, 1938, and from this judgment and ruling the defendant has taken an appeal.
Appellant urges that there is no evidence whatever showing indirect contempt, the only evidence being that of the appellant himself showing that he had no property, business or employment and did not have any during the eleven months after the order was made, and that his failure was not willful, contemptuous or intentionally disobedient, citing Wohlfort v. Wohlfort, 116 Kan. 154, 225 Pac. 746, where it was said:
“But an order committing to jail is the exercise of the ultimate power of a court of equity, and the prudent chancellor is careful that there be no mistake in its use. It should be used only when it is clear (1) that the original order is reasonable, (2) that the husband is able to comply with it without undue hardship, and (3) that his refusal to comply with it is willful to such a degree as to be contumacious, amounting to contemptuous disobedience. . . . If he does not have the money, and has no property which he can readily convert into money, it is obviously improper to commit him until the money is paid. Such a commitment under those circumstances would be indefinite imprisonment, from which the husband could never release himself.” (pp. 163, 164.)
This was where the husband had property and this court reversed the commitment and ordered the property to be sold and the proceeds applied in accordance with the order. It was held in connection with the above statement that—
“It is the duty of a husband to make reasonable provision from his money, property, or labor, for the maintenance of his wife. . . .
“The court may, in a proper case, commit a husband for his refusal to provide maintenance for his wife, even though to do so requires him to labor.” (Syl. ¶¶ 3, 4.)
Appellant also cites Davison v. Davison, 125 Kan. 807, 266 Pac. 650, where it is said in the opinion that—
“It need hardly be repeated that courts have inherent power to enforce their lawful orders by contempt proceedings, and may send recalcitrants to jail until such proper orders are complied with, but that elementary doctrine implies that the court’s orders can be obeyed. Since the sheriff has seized the automobile and the money is gone, the incarceration of this hapless petitioner until she surrenders the car and produces the money is tantamount to life imprisonment, and therefore void.” (p. 816.)
There is no doubt in the case at bar that the trial court concluded that the evidence implied that the court’s order could be obeyed, even if, as held in the Wohlfort case, that the duty of supporting his family might require the husband to labor.
Appellant relies strongly upon the fact that there was no evidence contradicting what the appellant said concerning his inability to pay anything on the judgment for alimony or for the support of his child. The evidence shows he was and had been in good health, was a young man of reasonable intelligence, that he had food and clothing furnished him by his people. Was it reasonable, or even the truth, that he could not spare any of that food or earn anything for that young child during eleven months? He said he could not, and the court failed to give such statement credence.
It was held in Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966, that — ■
“A court or jury is not required to believe the testimony of a witness or witnesses merely because there is no direct evidence to contradict the same.” (Syl. ¶ 2.)
(See, also, Peoples National Bank v. Diven, 135 Kan. 400, 10 P. 2d 883; and Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 345.)
In re Peters, 124 Kan. 455, 260 Pac. 975, was originally a divorce case followed by an attachment for contempt and habeas corpus proceedings, and it was said in the opinion denying the writ of habeas corpus that—
“He is living with his father, who pays him small wages, but his attitude as revealed by the testimony shows a lack of purpose to pay anything more on the alimony awarded. The court, after hearing the evidence, manifestly found that he was not endeavoring to comply with the order, but on the other hand was seeking to evade further payments. Even if he is actually unable to make the payments as ordered, his willful and contumacious refusal to make compliance to any extent with the order affords ground for attachment for contempt.” (p. 457.)
In Barton v. Barton, 99 Kan. 727, 163 Pac. 179, which was a divorce case, it was said in the opinion:
“He stated that his own maintenance required all of his earnings, but it would seem that the natural parental impulse would have prompted him to divide his earnings with his own child.” (p. 730.)
It does not require very strong contradictory evidence to convince a court that a father of an infant child is willfully and contemp tuously disobedient of an order of the court requiring him to furnish something for the support of such child, which he deliberately failed to do for more than eleven months. The punishment imposed by the trial court for the indirect contempt in the way of imprisonment in the county jail until he purge himself of contempt is not a life imprisonment, but its purpose is to impress him with a full duty of citizenship in willingly endeavoring to obey the law as applied to his case.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises out of a proceeding in eminent domain, the principal question being whether the trial court erred in refusing to submit special questions requested by the city.
In February of 1952 the city of Wichita commenced a proceeding to condemn lands lying along the Arkansas River for use- in a flood control project. At that time The B. F. McLean Investment Company owned a tract of about 460 acres bounded on the west by the Arkansas River, on the north by Twenty-first Street, on the east by the Little Arkansas River and on the south by Twenty-fifth Street. As the result of other proceedings pertaining thereto, Anna McLean became the owner of all that part of the above 460 acre tract lying west of Rullinger Street and containing about 140 acres. In the condemnation proceedings a tract of 8.95 acres was taken from the northwest corner of the McLean lands. After die commissioners appointed by the district court made their report and award of damages, The R. F. McLean Investment Company and Anna McLean gave notice of appeal from the award.
On the trial of that appeal it was stipulated that Anna McLean was the owner and entitled to any award rendered by reason of the condemnation of that land described in the condemnation proceedings as Tract No. 1. Neither the abstract nor the counter abstract contains the description of the lands included in the above Tract No. 1. In her opening statement Mrs. McLean stated that she owned all of the land west of Rullinger Street which consisted of two tracts divided down the center, the tract on the north containing a little over 70 acres and the tract on the south containing a little over 70 acres; that the land taken was 8.95 acres and not only the taking but the fact of the taking would affect to a material extent the advantage and convenience of platting and that it interfered with the platting of the entire tract. An exhibit indicates that the land taken was triangular in form and was that portion of plaintiff’s tract lying to the northwest of a line running from a point about 724 feet east of the intersection of plaintiff’s north line and the east bank of the Arkansas River to a point on the river bank about 1,075 feet south of that intersection, and that the southernmost point of that triangle was about 400 feet north of the line between the two 70 acre tracts above mentioned.
For the purposes of this appeal the evidence need not be reviewed at length and in the review made we restrict our statement to testimony of plaintiff and her witnesses given on direct examination. Anna McLean testifying in her own behalf said she owned the tract of approximately 138 acres and that its most valuable use was for subdivision and building sites and work on subdividing had been commenced; that the construction of the levee on the part of her land which was taken would hurt the remaining part and that she thought it would affect the land approximately 500 feet back (from the levee) as far as building was concerned and it would cut the property value at least in half. Another witness testified as to the value of the land taken and that the taking would damage the re mainder a distance back of at least 600 feet. Two witnesses testified there was a strip about 600 or 700 feet south of the levee the value of which was cut in half. A fifth witness testified as to the value of the land taken and that the taking damaged as much as fifty acres adjoining the ditch.
At the close of all the evidence the trial court gave instructions to the jury against which no objections were lodged, and advised the jury that the single issue was the amount of just compensation to be awarded Anna McLean for the taking of her property, and in determining that amount the jury were to consider the value of the lands taken plus the damages, if any, arising to the other lands of Anna McLean not taken.
The city requested the trial court to submit the following special questions:
“If you find that there have been any damages to the property remaining to the landowner after the taking of the 8.95 acres by the city, you are required to answer the following Special Questions:
“No. 1. State the fair cash market value of the entire 138 acre tract belonging to the landowner as of October 7, 1952.
“No. 2. State the fair cash market value of the 129.05 acres remaining immediately after the taking but on the same date, October 7, 1952, taking into consideration the use to which the property will be put by the City.”
This request was denied. The record as abstracted does not disclose any reason the trial court may have given for its ruling.
Thereafter the jury returned a general verdict in favor of Anna McLean for a single sum. The city’s motion for a new trial was denied and it appealed from that ruling. Its specification of errors covers the refusal to submit the special questions and the overruling of its motion for a new trial.
The right of a party to an action to have special questions submitted to a jury under the provisions of G. S. 1949, 60-2918 is treated exhaustively in the briefs of both appellant and appellee and numerous cases are cited. In view of the factual situation here presented it is unnecessary that we refer to and discuss all such cases. In view also of the provisions of the above statute that in all cases the jury shall render a general verdict and that the court shall, at the request of a party, direct the jury to find upon particular questions of fact to be stated in writing by the party requesting the same, and our many decisions holding generally that if the questions submitted are on a controverted fact, are material or are of a type from which there is evidence from which an answer may be determined, while the trial court has a duty to examine the questions and see they are clearly stated, if the test is met the questions should be submitted, it seems advisable to first take notice of appellee’s contention that the trial court did not commit error in refusing to submit the questions requested.
The first portion of appellee’s argument is that the questions assume that the entire tract involved consisted of 138 acres, a matter for the jury to determine. It is true that some evidence indicated the tract contained 140 acres, but as shown above, appellee testifying personally said she owned a tract of approximately 138 acres and that the taking affected the value of the land not taken. Whatever the exact acreage was, that was not the question in issue; the question was, under the court’s instructions, what was the value of the land taken and the damage to the land not taken. In view of this testimony we need not dwell on the situation discussed in L. N. & S. Rly. Co. v. Wilkins, 45 Kan. 674, 26 Pac. 16, where it was held that damages allowed were not restricted to the tract involved. Appellee makes some argument that it might as well be assumed the tract in question was the original tract of about 460 acres owned by The McLean Investment Company. There is no doubt from the record that entire tract was divided and appellee’s ownership covered only the tract she said was approximately 138 acres and that only the latter tract was involved. Pursuing the contention further appellee says her entire tract is divided into two tracts of about 70 acres each and it might as well be assumed that only one was affected, i. e., the north one. That assumption would be contrary to the evidence noted above. Anna McLean referred to her tract of 138 acres and various other witnesses specified damage from 600 to 700 feet from the levee and a mere calculation from the distances above set forth shows that that damage would affect a part of the south portion. Appellee also argues, at least inferentially, that because appellant’s witnesses testified only as to the value of the land taken and did not testify as to the specific amount of the lands that were to be considered by the jury, that it may not be assumed 138 acres was the tract which may have been damaged by the taking. While it has been held that a trial court may refuse to submit a question which assumes that certain facts, which are in dispute, exist (e. g., Elliott v. Reynolds, 38 Kan. 274, 16 Pac. 698, and Toelle v. Sells-Floto Shows Co., 111 Kan. 562, 207 Pac. 849), in our opinion the requested questions did not offend that rule.
We recognize also the rule contended for that the trial court should not submit special questions that are intended or are liable to confuse or entrap the jury (e. g., Railway Co. v. Hale, 64 Kan. 751, 68 Pac. 612.). We fail to see its applicability here. Under the trial court’s instructions the jury were to find two things, the value of the land taken and the damages to the land not taken, and at least generally speaking the purpose of the questions was to ascertain what amount the jury allowed for the damages to the land not taken. It may well be the questions could have been phrased differently, but to say the least, they directed the trial court’s attention to the fact that appellant desired an answer on an ultimate fact in issue. If the trial court was of the opinion the questions submitted did not state the matter fully and should have encompassed the value of the land taken as well as the damage to the land not taken, it was competent for it to supervise and shape the special questions and limit them to ultimate facts on controverted issues. See Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080.
Appellee also argues the trial court’s ruling was correct for the reason the questions did not pertain to material issues or the evidence on which either party submitted its claim. Under this heading she argues what her evidence tended to show and what the appellant’s evidence did not show. Our brief review of appellee’s own evidence makes it clear that she was attempting to recover for land taken and damages to land not taken and that the cause was submitted under instructions on that theory. We have no question of the sufficiency of the evidence, but only whether appellant was entitled to inquire as to either one or two of the elements essential to a recovery by appellee. In our opinion the questions sought to be submitted pertained to a material matter.
Appellee also argues that answers to the special questions requested would not be controlling as to the measure of damages under the particular statutes under which the property was taken, and presents at some length an argument as to the measure of damages and that the damages may not be offset by any benefits she may receive from the flood control improvements, and further that the instructions given to the jury, which were not objected to became the law of the case, and that special questions conflicting with those instructions need not be submitted. We agree that the instructions control. The record does not indicate the appellant sought to offset appellee’s damage by any benefit she would receive from the flood control project and the instructions included in the counter abstract do not mention any such matter for consideration by the jury. In its brief, appellant makes no contention as to the correctness of the trial court’s instructions and we need not devote any space to the measure of damages. In view of what has been said in the preceding paragraphs of this opinion, we think it clear that it may not be said the special questions called for answers conflicting with the instructions to the jury, but on the contrary were consistent therewith.
We do not think it necessary to refer to cases cited by the appellant as to the right to have special questions submitted and to discuss those cases. The problem was before us in Finke v. Lemle, 173 Kan. 792, 252 P. 2d 869. In that case the defendants requested submission of eight questions. The trial court refused to submit the questions as requested but submitted two of its own. On defendant’s appeal this court disposed of a contention of error saying, in part:
“Appellants argue that under the statute, G. S. 1949, 60-2918, a defendant has the right to request and have submitted at least ten special questions. It must be conceded this is true if the questions requested are on any controverted facts, if they are material, and if they are of the type that there is evidence from which the jury can answer them (See Colin v. DeCoursey Cream Co., 162 Kan. 683, 688, 178 P. 2d 690, and cases there cited, also the many other cases collected in Hatcher’s Kansas Dig., Trial, §§ 266 to 281, inch; West’s Kansas Dig., Trial, §§ 349, 350). On the other hand the authorities just cited and many others (See, e. g., Bothe v. True, 103 Kan. 562, 175 Pac. 395; Doty v. Crystal Ice & Fuel Co., 122 Kan. 653, 253 Pac. 611; Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900; Moseman v. Penwell Undertaking Co., 151 Kan. 610, 618, 100 P. 2d 669; Alexander v. Wehkamp, 171 Kan. 285, 291, 232 P. 2d 440), recognize the trial court has a wide discretion respecting the special questions to be submitted to the jury and that when they are not of the type above mentioned or where it appears they are not pertinent to the issues, supported by the evidence, or intended to bring out some ultimate fact in the case it is proper to refuse to submit them. By way of further illustration see Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080, where we held:
“ ‘It is competent for the court to supervise and shape special interrogatories that are submitted to a jury and it may reject questions that are improper or immaterial and limit the questions to ultimate facts on controverted issues.’ (Syl. ¶3.)” (1. c. 797.)
As has been indicated heretofore we think the special questions submitted were on controverted facts, they referred to material matters and there was evidence from which the jury could answer them. We do not comment on whether the trial court should have amplified or modified the requests made, as it made no attempt to do so.
There is no question but that the matter was urged on the hearing of the motion for a new trial. In our opinion the trial court erred in not granting a new trial. Under the circumstances we need not discuss appellant’s contention the verdict is excessive.
The judgment of the trial court is reversed and the cause is remanded for a new trial.
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The opinion of the court was delivered by
Parker, J.:
This was an action instituted in district court under the Declaratory Judgment Act (G. S. 1949, 60-3127 to 3132, inch) for the purpose of obtaining judicial construction of a zoning ordinance of the city of Coffeyville and a determination of the rights of the parties under its terms. Judgment was rendered in favor of the defendant city and the plaintiff appeals.
In substance, after reciting the names and addresses of the parties, giving the legal description of the plaintiff’s property and identifying certain zoning ordinances of the city, material allegations of fact to be found in the petition can be stated as follows:
The Alpine Ice and Cold Storage Company, predecessors in title of plaintiff, constructed an ice making plant in 1928 and a cold storage locker plant in 1935 on the involved property and thereafter, and until 1950, it or its successors in title conducted businesses on the premises similar to those to be described in the succeeding paragraph.
In 1950 plaintiff purchased the property and such businesses from the Coffeyville Ice Company, Inc., successors in title to the Alpine Company, and subsequently continued the operation and is now conducting the businesses of retail and wholesale ice sales; cold storage locker plant; preparation of meat and poultry for cold storage in lockers and home freezers; retail sales of groceries, meats and poultry; and custom-supply of home freezers and lockers.
That under the ordinances of the city of Coffeyville the premises on which plaintiff is conducting the aforesaid businesses, and the additional operations hereinafter mentioned, are located in the commercial use district or zone as defined in the ordinances, such property adjoining the residential zone on the north and the industrial district or zone on the west and south.
On or about April, 1953, plaintiff commenced to remodel portions of the premises for the alleged purpose of improving his service and complying with regulations of the State Board of Health for better sanitation in the handling and processing of meat and poultry and the preservation thereof. These improvements consisted of removing the ice making equipment and converting the room theretofore occupied for ice manufacturing purposes into a meat and poultry cooler, a cutting and wrapping room for meat and poultry, and a small room about twenty-two feet by fifteen feet in size for killing animals and poultry to be prepared for sharp freezing and cold storage.
It is then alleged that since making the foregoing improvements the killing of animals has been performed only in the presence of licensed state veterinary inspectors, is not done daily, and is only incidental to the retail business of supplying customers renting cold storage lockers on the premises or storing meat and poultry in home freezers; that the new portion of the business as conducted by plaintiff is not a packing plant, a manufacturing operation or a nuisance; that there are no animals or poultry held on the premises overnight; that animals or poultry killed on the premises are delivered from the customer’s conveyance directly into the enclosed holding room; that no by-products are manufactured; that the premises are cleaned daily and all offal removed each day of killing in sanitary covered containers approved by state authorities; that such operation is licensed by the State Board of Health and subject to its rules and regulations; and that in the conduct of such business there is no smoke, odor, noise or unsightliness which might constitute a nuisance or be in any way detrimental to other businesses located in the vicinity or zone in which such business is operated.
Other allegations of the petition are to the effect that a dispute has arisen between the plaintiff and the city, which has notified plaintiff that the killing of animals on such premises in connection with the business conducted thereon is in violation of its ordinances; that plaintiff claims (a) the city zoning ordinances do not preclude the killing of animals and poultry on his premises; (b) that to construe and enforce such ordinances as to prohibit him from conducting such business upon the premises is unreasonable, arbitrary, and contrary to law; that unless the court interprets such ordinances and adjudicates the rights of the plaintiff thereunder he will be damaged and deprived of his property without any remedy at law.
The defendant’s answer admits formal averments of the petition, denies generally all other allegations therein contained, and then alleges in substance the butchering of cattle in the commercial zone of the city and on the premises where plaintiff’s operations are conducted is forbidden by the terms of the zoning ordinances of such city; that since September 8,1953, defendant killed and slaughtered several beef cattle in his place of business in violation of such ordinances notwithstanding he had been advised such action would be in violation thereof; that he has informed the city authorities he intends to continue killing cattle in his place of business on each succeeding Tuesday regardless of such zoning ordinances; and that if he is permitted to continue his operation he will be actually operating a slaughter house in the commercial zone of the city in violation of its zoning ordinances.
Plaintiff’s reply to the answer is quite lengthy and need not be detailed. It suffices to say it contains ample allegations and denials to join issue on all matters in controversy between the parties.
Having joined issue on the all important question involved in the lawsuit, i. e., whether plaintiff’s action in killing and butchering livestock on his premises in the commercial zone is prohibited by and is in violation of the zoning ordinances of the city, and following the overruling of defendant’s motion for judgment on the pleadings, the cause came on for trial before the district judge. When plaintiff attempted to proceed with the introduction of his testimony defendant objected thereto on the ground the petition failed to state a cause of action in declaratory judgment in favor of plaintiff and against the defendant. Upon the overruling of this objection plaintiff introduced his evidence and defendant announced it desired to introduce no testimony. After this announcement the trial court heard arguments of counsel and took the case under advisement. Thereafter, and on October 12, 1953, it filed its findings of fact and conclusions of law and then rendered judgment thereon in favor of the defendant and against the plaintiff for the costs of the action.
The findings of fact and conclusions of law, on which the trial court based its judgment, read as follows:
“Findings of Fact
“1. Plaintiff does now and since 1950 has owned the following described property in Coffeyville, Montgomery County, Kansas. (Here follows description), and has conducted thereon the businesses alleged in his petition.
“2. That the Defendant is a municipal corporation of the first class in Montgomery County, State of Kansas.
“3. That Ordinance 1978 of the said City as amended by Ordinances 4204, 3829 and 4238 is attached to Plaintiff’s Petition and marked Exhibit ‘F,’ except that the boundaries of the use districts as set forth in Ordinance 4204 are omitted.
“4. That said premises of Plaintiff is located within the ‘Commercial District’ as said district is designated in said zoning ordinance.
“5. That before September 8, 1953, Plaintiff conducted that part of his business consisting of the killing slaughtering cattle and livestock for his purposes at a place outside the City Limits of the City of Coffeyville.
“6. That on September 8, 1953, Plaintiff completed an alteration and improvement of his premises and buildings for the purpose of conducting his killing and slaughtering operations therein in the Commercial District as defined by the zoning ordinances of the City of Coffeyville, rather than outside the City as before.
“7. That since September 8, 1953, Plaintiff has done his killing and slaughtering operations on his said premises in the Commercial District.
“8. That Plaintiff’s killing and slaughtering operations are a kind of manufacture and treatment and not clearly incidental to the conduct of a retail business conducted on the premises.
“9. That Plaintiff’s photographic exhibits accurately portray the places each purports to represent.
“10. That Plaintiff’s Exhibit ‘B’ is a correct map of the area in the immediate vicinity of Plaintiff’s premises.
“Conclusions of Law
“1. That Plaintiff has used his premises in the Commercial District, as defined by the zoning ordinances of Coffeyville, for the purpose of killing, slaughtering, dressing and preparing for food purposes cattle and livestock.
“2. That under the zoning ordinances of the City of Coffeyville, such killing and slaughtering may be legally carried on only in the Industrial District, as defined in such Ordinance and then only under the limitations therein provided.
“3. The intent and purpose of such ordinance is to exclude from the City the business of killing and slaughtering animals for food purposes, unless conducted in the Industrial District under the limitations provided in the ordinance.
“4. Plaintiff by such killing and slaughtering in the Commercial District has violated the zoning ordinance of said City.
“5. Judgment should be for Defendant.”
Following rendition of the judgment plaintiff moved to amend, add to, substitute and strike certain of the trial court’s findings of fact and conclusions of law. This motion was overruled. He then filed a motion for a new trial. When it was overruled he perfected the instant appeal.
It will simplify the problems presented by the appeal to direct attention, at the outset, to several matters which are not in controversy and might otherwise be subject to debate in disposing of the issues. These, all conceded by appellant, are that under our decisions the city has power and authority to enact zoning ordinances; that the limiting of the manner and place in which the slaughtering and killing of cattle and swine may take place in the city is a reasonable classification of business under zoning ordinances; and that the instant zoning ordinances, including the involved restrictions and limitations, were enacted long prior to the date on which the apellant, or his predecessors in title, commenced to slaughter and kill cattle and livestock on the premises in question.
Upon careful examination of the record, and after stripping arguments of all excess verbiage and legal terminology, it becomes apparent that in view of the evidence adduced at the trial the fundamental claims appellant advances as grounds for reversal of the judgment are (1) that, under the existing conditions and circumstances, the zoning ordinances of the city do not prohibit him from killing and slaughtering cattle and other livestock on his premises and (2) that an interpretation and enforcement of such ordinances by the city to prohibit him from conducting that portion of his business upon such premises is unreasonable, arbitrary and contrary to law.
Decision of the first of the foregoing questions depends, of course, upon whether the operations of appellant as disclosed by the facts of record are prohibited by the terms of the City’s existing zoning ordinances, the material portions of which, conceded by all parties to be codified in Ordinance No. 1978, read:
“Section 2.
“Use, District, Regulations: In order to regulate and restrict the úse of land the location of trades and industries, the location of buildings erected or altered for specified uses, the City of Coffeyville is hereby divided into zones or ‘use districts,’ of which there shall be three (3), known as: Residential District, Commercial District, and Industrial District.
“Except as hereinafter provided, no buildings shall be erected or structurally altered, nor shall any buildings or premises be used for any purpose other than is permitted in the zone of ‘use district’ in which such building or premises are located.
“Section S. Residence District: In the Residence District no building or premises shall be used and no building shall be hereafter erected or structurally altered, unless otherwise provided in this ordinance, except for one or more of the following uses: (Uses not involved and therefore not listed).
“Section 4. Commercial District: In the Commercial District all buildings and premises except as otherwise provided in this ordinance, may be used for any purpose permitted in the Resident District or for any other use except as the following:
“1. Junk yards.
“2. Contractor’s storage yard.
“3. Coal, Coke, or wood yard.
“4. Machine shop.
“5. Any kind of manufacture or treatment other than the manufacture or treatment of products clearly incidental to the conduct of a retail business conducted on the premises.
“6. Provided, That no public garage shall have an entrance or exit for motor vehicles within three hundred (300) feet of an entrance or exit of a public or private school ground, public library, church, hospital, children’s or old people’s home, or other similar public or semi-public institutions.
“Section S.
“Industrial District: In the Industrial District all buildings and premises except as otherwise provided in this Ordinance may be used for any use permitted in the Commercial District or for any other use except the following:
“1. Public Abattoirs.
(Uses 2 to 23, incl. not listed because they have no bearing on issues.)
“This section shall not be construed as prohibiting the úse of room, place, or building within the Industrial District for the purpose of killing, slaughtering, dressing and preparing for food purposes of cattle, sheep, swine, chickens, turkeys, or other animals or birds, including the processing of by-products therefrom, when such killing, slaughtering, dressing and processing is carried on in compliance with the regulations of the Kansas State Board of Health and all other regulations, rules or laws applicable to the operation of such businesses.”
Turning again to the record it may be said it discloses, that except for finding No. 8 as the appellant impliedly if not expressly admits, all findings of fact made by the trial court and its conclu sion of law No. 1, which we pause to note is actually a finding of fact, are supported by ample evidence and in no way in dispute.
The gist of appellant’s principal claim respecting finding No. 8 is that it is not supported by the evidence and therefore the facts of record do not bring his operation within the prohibition of Section 4 (5) of the zoning ordinances. Let us see.
Excerpts from appellant’s own testimony as abstracted read:
"... I sell meat and frozen foods to customers for storage in their lockers and home freezers. From the time I purchased this business I have also done custom killing for my customers, but prior to September 8, 1953, the actual killing of the animals was done on Stark Avenue. After killing the animals we loaded them in a truck, took them to the premises on West 8th, finished the dressing, and put them in the refrigerator for chilling. Beef is chilled a week to ten days and a hog two or three days. Afterward we cut up the meat according to instructions. Prior to September, 1953, I had no facilities on West 8th Street for killing animals, but did for poultry. . . .
“. . . My meat sales are made in different ways. I sell over the counter as retail sales to people who come in and buy meat for their home freezers or lockers in from maybe four or five or six pieces up to a carcass of beef, lamb, or pork; some come in for a piece of steak. I supply locker and home freezer customers either by selling them meat, or by custom cutting of meat or animals they bring in to me. This supplying of locker customers with meat either by selling it to them or custom butchering has been part of this business since I purchased it in 1950 and prior to that time when operated by my predecessor. Since the alterations sometimes a customer will bring us a live beef and will want only certain parts of it for their locker, the remainder we can sell to other customers. Other meat is bought from packers already dressed. Sometimes customers will have divided the beef before they bring it in. Prior to the time my alterations were completed I was not able to sell any of the meat because we were not State Inspected. With State Inspection there is an inspector of the Kansas State Board of Health present at the time of the killing and dressing of the animal, before and after. I applied in July for a ‘slaughterhouse’ license from the Kansas State Board of Health as I have done every year; and since September 8,1 have been killing on my premises with a representative of the Kansas State Board of Health present.
“I have rented a slaughterhouse on the near edge of Coffeyville since March, 1950, and use it to kill animals after which the carcasses were brought to Coffeyville where they were refrigerated and cut up. The cut up meat was sold to locker customers and home freezers and also was custom killed. It was not sold over the counter. I now sell over the counter some meat that I kill.
“Prior to the 8th day of September, 1953, I followed the practice of killing animals at a place located just outside of the City Limits, and hauled the meat in a truck to 1616 West 8th.
“. . . I kill only once a week. I don’t have the facilities for killing every day. The number of cattle I kill will vary from two or three head in a week in the summertime to about 35 or 40 in a week in the winter. . . .
“Formerly, the only cattle that I killed were cattle that locker customers brought in. They employed me to kill and process the animals and place them in their lockers. Under this arrangement I am employed to kill, process and put the animals in their customers locker for which I make a service charge. I do not own the meat. Under this new operation, I operate both ways. I now sometimes buy some animals which I process and sell the meat over the counter and to locker customers.”
In the face of the foregoing testimony we have no difficulty in concluding that finding No. 8, as made by the trial court, is supported by substantial competent evidence. Therefore, under the universal rule prevailing in this jurisdiction (See Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209; Shotzman v. Ward, 172 Kan. 272, 279, 239 P. 2d 935; In re Estate of Jones, 174 Kan. 506, 514, 257 P. 2d 116; In re Estate of Davis, 175 Kan. 107, 259 P. 2d 211) such finding must be regarded as conclusive and will not be disturbed on appellate review. The trial court having found, on the basis of substantial evidence, in clear and unequivocal language the very facts required to bring appellant’s business within the prohibition of Section 4(5) of the zoning ordinance, there is no sound basis for and it is asking too much of this court to hold to the contrary as a matter of law. Indeed if appellant’s position on this point had merit we would be forced to the conclusion that • nevertheless, under the confronting facts and circumstances, the city’s zoning ordinance prohibits appellant’s operation at his present location in the commercial zone. Whatever else may be said it is clear from the record that in killing and slaughtering cattle and livestock under the conditions and circumstances related by him in his own testimony he was actually operating a. super de luxe slaughterhouse. It is equally clear that under the provisions of Section 5(1) the operation of such an enterprise was not even permitted in the industrial district of the city unless conducted and operated in accord with, and in conformity to, the requirements of the last paragraph of Section 5 heretofore quoted. Conceding, as appellant points out, that zoning ordinances are to be strictly construed (See Babb v. Rose, 156 Kan. 587, 134 P. 2d 655), does not do away with the salutary rule of equal application that in determining what an ordinance means, and how it is to be construed, you do not isolate one part and ignore the plain import and meaning of others but instead give force and effect to all provisions germane to the subject involved. When that is done we entertain no doubt as to the correctness of the trial court’s conclusions of law Nos. 2, 3 and 4, which will not be repeated because heretofore quoted at length, or its judgment based upon such conclusions.
In reaching the conclusion just announced we have rejected, not disregarded, contentions advanced by appellant that interpretation and enforcement of the involved ordinance by the city to prohibit appellant from conducting the business of killing and slaughtering cattle and livestock upon his premises in the commercial zone is unreasonable, arbitrary and contrary to law. We are unable to concur in his view that a zoning ordinance which prohibits a custom killer, a custom slaughterer, or a custom butcherer of livestock from conducting a business of that nature, even though — as here — it be carried on in a super de luxe slaughterhouse, in a commercial zone of a city under the conditions and circumstances disclosed by the instant record is unreasonable or in violation of the spirit and intent of G. S. 1949, 12-712, and the record fails to make it affirmatively appear that such ordinance is unreasonable when applied to appellant’s property and the specific use he has been making of it. Under such circumstances appellant’s contentions respecting the unreasonableness of the ordinance lack merit and cannot be upheld.
Neither have we overlooked a contention the trial court’s conclusion of law No. 4, to the effect that by such killing and slaughtering in the commercial district appellant has violated the zoning ordinance of the city, is without the issues and therefore erroneous. The trouble with this contention from appellant’s standpoint is that he overlooks the fact this is an action for declaratory judgment and that under the allegations of the answer, and his reply thereto, such question was placed squarely in issue-. Nor have we failed to note a claim the trial court erroneously excluded evidence respecting whether the city permitted poultry dressing and killing plants to operate in the commercial zone. Assuming, without deciding, that this evidence was admissible for the purpose for which it was offered the record fails to make it appear such excluded testimony was brought to the attention of the trial court by affidavit or otherwise at the hearing of the motion for new trial in compliance with the requirements of G. S. 1949, 60-3001 to 3003, incl. The result, under our decisions, is that this claim of error is not open to appellate review. (Babb v. City of Wichita, 172 Kan. 416, 241 P. 2d 755; State v. Beam, 175 Kan. 814, 267 P. 2d 509.)
Divers other contentions advanced by appellant have been given consideration. We find nothing in them or in the arguments advanced in their support which warrants a reversal of the judgment. It is therefore affirmed.
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The opinion of the court was delivered by
Price, J.:
These consolidated appeals arise out of a proceeding in indirect contempt of court against appellee insurance companies, hereinafter referred to as the Insurance Companies.
One appeal is from an order overruling plaintiff’s motion for judgment on the record, and the other is from a final judgment finding such Insurance Companies not guilty of contempt. Recause of our disposition of the appeals, and for the further reason that the ruling of the lower court in the first-mentioned appeal is inherent in the other, we will consider them as one and as being an appeal from the judgment finding appellee Insurance Companies not guilty of contempt. '
On January 5, 1953, plaintiff (appellant here) filed an action to recover for damage to her automobile and for personal injuries sustained by her as the result of an automobile collision, allegedly caused by the negligence of defendants Consolidated Van Lines, Inc., and one Elmer Sisson.
On February 25,1953, the defendants answered, and the case was set down for trial by jury for April 29, 1953.
Appellee Insurance Companies were not parties to the damage action, were not insurers of any of the parties, and were not connected with the case in any way except as they were brought into the case by the contempt proceeding.
On April 29, 1953, that being the date the damage action was set for trial, counsel for plaintiff in that action filed an affidavit and accusation in indirect contempt against the Insurance Companies, and a motion for them to appear and show cause why they should not be adjudged in contempt of court, be restrained from causing certain advertisements to appear in magazines and publications, be directed to publish retractions thereof, and for additional relief.
The accusation alleges that plaintiff’s right to a fair and impartial trial by jury, and to a verdict based solely upon the evidence and the law applicable thereto, has been seriously prejudiced as the result of a series of full page advertisements appearing in Life magazine and The Saturday Evening Post, both publications having nation-wide circulation, and which advertisements were caused to be published therein by the Insurance Companies. Attached to the accusation as exhibits are photostatic copies of the four advertisements in question, two of which were published in Life magazine on January 26, 1953, and March 9, 1953, respectively, and the other two being published in The Saturday Evening Post on February 14, 1953, and March 28, 1953, respectively.
Each of the four full page advertisements contains a photograph occupying more than one-half the page which supplies the background or setting for the printed message in the lower portion of the page.
The picture in the first advertisement shows a guarded closed door of a jury room. The printed message underneath states:
"YOÜR INSURANCE PREMIUM IS BEINS DETERMINED NOW
“This could be any courtroom in the country. Behind the locked door, twelve men and women are reaching a verdict involving a defendant protected by a casualty insurance company. What they decide affects your pocketbook.
“All claims against insurance companies have to be paid out of funds created by premiums from policyholders. When these funds are insufficient, insurance rates must be increased.
“Casualty insurance companies have been losing an average of $11 on every $100 of earned automobile liability premiums. More accidents are partly responsible. So are excessive jury awards, rendered by jurors who feel they can afford to be generous with the ‘rich’ insurance company’s money. Actually, jurors who are responsible for awards in excess of what is just and reasonable are soaking you by raising insurance rates.”
Another one of the advertisements shows a picture of jurors taking the oath, and the printed message underneath the picture reads:
“ . . A True Verdict Render According to the Law
and the Evidence’
“Jury service is often a difficult responsibility because, when making decisions, we always are tempted to listen to our hearts as well as our heads.
“But the Juror’s Oath demands that jurors decide ‘according to . . . the evidence.’ Jurors sometimes forget this. Ruled by emotion rather than facts, they arrive at unfounded or excessive awards . . . verdicts occasionally even higher than requested!
“These men and women may be scrupulously honest. But as jurors, they feel in their hearts that the injured person — although he may have caused the accident — is entitled to an award.
“Because insurance rates depend on claim costs, these honest jurors cost millions of policyholders, including themselves, countless extra dollars in premiums every year.
“When you, as a juror, sit in judgment on a suit involving personal injuries, be fair with the public’s — and your — money. Reach a decision according to the evidence.”
A third advertisement shows the picture of a woman with a puzzled expression at a store counter paying her grocery bill, and this provides the background for the following message appearing underneath:
"ME? ym PAYING FOB EXCESSIVE JURY AWARDS?
“Yes, Mrs. Jones, you pay for liability and damage suit verdicts whether you are insured or not.
“For example, higher insurance rates paid by the folks who helped fill your market basket — farmers, processors, truckers, wholesalers and retailers — are reflected in your grocery bill.
“You see, claims against insurance companies are paid out of policyholders’ premiums. When jury awards are excessive, all business firms’ premiums must be increased.
“And since insurance premiums are part of the over-all cost of doing business, higher premiums must be passed on to you and every other member of the buying public through higher prices.
“Next time you serve on a jury, remember this: When you are overly generous with an insurance company’s money, you help increase not only your own premiums, but also the cost of every article and service you buy.”
The picture in the fourth advertisement depicts a father “confessing” to his son — a senior in law school — about his recent experience as a juror. The message underneath the picture reads:
“Bill Set Me Straight on Jury Awards
“Bill’s my son — a senior in law school. Last night I told him about my recent experience as a juror.
“As a businessman, I knew the woman involved in the trial was legally at fault. She walked into a moving car. But she was a widow with a child to support. And I felt certain that the driver of the car was insured.
“The doctor said that the widow wouldn’t be able to hold down a steady job for at least a year, so we awarded her a healthy sum. After all, her child must eat.
“ ‘But the law,’ said Bill, ‘clearly states that the verdict must be based on legal liability, fault for the accident, as determined by the evidence.’
“ ‘The insurance company can afford to pa.y,’ I protested.
“ ‘But claims,’ argued Bill, ‘must be paid out of premiums belonging to thousands of policyholders — including widows, too. And don’t forget, when premium collections do not cover claims, everybody’s insurance rates- — including yours — have to go up.’
“You know, sometimes it pays to listen . . . even to your son.”
In the lower right-hand corner of each advertisement appears the following statement, set off in a sort of box or rectangle:
“Most claims for damages are legitimate and reasonable, and are amicably settled out of court.
“However, as jurors tend more and more to give excessive awards in cases that do go to court, such valuations are regarded as establishing the ‘going’ rate for the day-to-day out-of-court claims — all of which means increased insurance premium cost to the public.”
Also attached to the accusation as exhibits are photostatic copies of sheets or pamphlets which refer to the advertisments above-mentioned, and which, it is alleged, are being distributed by the Insurance Companies to the general public through agents, brokers, community leaders, editors, civic groups and opinion leaders throughout the country. One of such sheets or pamphlets calls attention to the “alarming situation” of excessive jury awards and then goes on to blame jurors.
The accusation then alleges that the objective of such advertising campaign is to bring improper and illegal influences to bear upon prospective jurors; to induce jurors to decide cases not upon the basis of evidence introduced but rather upon the basis of considerations which would constitute a clear violation of the oath of each and every juror; that such advertising campaign is an insidious attempt on the part of tire Insurance Companies to undermine and corrupt the sanctity of the jury system and to illegally tamper with the administration of justice, and that it is calculated to persuade prospective jurors either to render inadequate verdicts for injured plaintiffs, or to completely exonerate culpable defendants, despite the evidence and the law applicable thereto, by means of such alleged false, misleading and illegal propaganda.
It is then alleged that the actions and conduct on the part of the Insurance Companies in publishing the advertisements and disseminating the sheets or pamphlets referred to, are illegal and in contempt of court in that they constitute jury tampering and may seriously affect the plaintiff’s inalienable right to a trial by an impartial jury, uninfluenced and unprejudiced by personal interest and bias.
The prayer of the accusation seeks an order perpetually restraining and enjoining the Insurance Companies from causing such or similar advertisements and pamphlets to be published or disseminated; that they be required and directed to make public retractions by means of full page advertisements in the two mentioned magazines, such advertisements to appear in two forthcoming issues of each magazine; that they be adjudged in contempt of court, and that in the damage action between plaintiff and defendants the court instruct the jury substantially in accordance with a requested instruction attached as an exhibit.
Following rulings on motions and other pleadings, not material for our purposes, the Insurance Companies filed an answer which admits the publication of the advertisements and the publication and dissemination of the sheets or pamphlets in question, but denies that such acts were illegal or in contempt of court, and alleges that the publications constitute lawful statements of fact made in pursuance of a lawful and proper purpose. The answer further alleges that the admitted publications constitute a lawful exercise of their right to publish and speak their sentiments on a matter of public interest, such right being guaranteed by the Federal and Kansas Constitutions.
On June 24, Í953, the matter of the contempt action came on for hearing. Plaintiff offered the advertisements and exhibits in evidence and rested. The Insurance Companies admitted the publication of the advertisements, offered no evidence, and rested. The matter was taken under advisement, and on August 20, 1953, the trial court rendered its decision finding the Insurance Companies to be not guilty of indirect contempt of court. From its written decision it appears that the finding of not guilty was made by the court with considerable reluctance, but the court was unable to “conclude that the danger to a fair and impartial trial was made imminent to a high degree.”
In denying plaintiff’s motion for a rehearing the trial court stated “that during the presentation and decision of the matter it was considered to be an action remedial in nature rather than punitive and in the nature of civil contempt rather than criminal contempt.”
Plaintiff has appealed from the judgment finding the Insurance Companies not guilty of indirect contempt and denying her request for remedial relief.
The damage action between plaintiff and defendants has not been tried and is not involved in this appeal. We are concerned only with the contempt proceeding.
At the outset we are confronted with appellee Insurance Companies’ motion to dismiss the appeal on the ground that the contempt charged is criminal in nature, not civil, and that no appeal lies from a judgment of not guilty of criminal contempt.
It is further contended that if it should be determined the finding of not guilty is appealable, and irrespective of the nature of the alleged contempt charged, the judgment of the trial court should be affirmed for several reasons.
First, it is contended that the advertisements in question deal with a matter of public interest, are intended to influence public opinion on a public issue, and that they do not pertain to the administration of justice in a particular case, much less to the damage suit filed by plaintiff in the district court of Sedgwick County.
Secondly, it is contended that the published advertisements are within the protection of constitutional guarantees of free speech and press, and authorities are cited in support of the “clear and present danger rule” to the effect that the evil consequences of comment pertaining to the administration of justice must be extremely serious and the “degree of imminence extremely high” before utterances can be punished.
Next, it is argued that other similar proceedings involving these same advertisements have been disposed of favorably to the contentions of appellee Insurance Companies, and they cite United States v. American Machinery Co., 116 F. Supp. 160 (November 6, 1953), and Hoffman v. Perrucci, 117 F. Supp. 38 (October 22, 1953), in support thereof.
And finally, it is contended that the injunctive relief sought by plaintiff is not justified and would be improper for the reason that the accusation in contempt shows on its face there is no imminent threat of injury to plaintiff resulting from the advertisements, much less any threat of irreparable injury of the sort which is a condition precedent to the issuance of an injunction, and a number of our decisions to the effect that the remedy of injunction is not used to prevent a prospective injury unless it appears there is a reasonable probability of injury and that the law will not afford an adequate remedy, and that mere apprehension or a possibility of wrong and injury is ordinarily not enough to warrant the granting of an injunction, are relied upon.
Plaintiff, on the other hand, while categorically conceding that a finding of not guilty in a proceeding in criminal contempt is not appealable, contends that as the proceeding in question is remedial in nature, therefore civil contempt, and a finding of not guilty therefore appealable, argues that the publications in question are not within the protection of constitutional guarantees of free speech and press; that they are calculated to influence a large percentage of prospective jurors throughout the country, including a panel of jurors which would be drawn to sit in judgment on her damage suit in question; that our penal code (G. S. 1949, 21-712) provides that jury tampering is a criminal offense; that under G. S. 1949, 21-1112, untrue, deceptive or misleading assertions, representations or statements in advertisements are branded as a crime; that the orderly administration of justice demands that competent jurors be available at all times; that in the nature of things such a large percentage of the reading public have seen and read the advertisements in question as to create bias and prejudice on the part of any panel of jurors available, and that as a result thereof plaintiff is entitled to the remedial relief sought.
From the foregoing it is obvious that before any discussion as to the merits of this appeal is had there are two questions to decide.
First — Is the contempt charged civil or criminal in nature?
Second — If it is criminal in nature, is the judgment of not guilty appealable?
We take up the questions in that order.
The allegations of the accusation have already been summarized. As stated, plaintiff claims the contempt charged is civil in nature; therefore the finding of not guilty is appealable, and with respect to her specific claim we quote from her brief:
“Tlie appellant asserts that this advertising is an insidious attempt on the part of the appellees to undermine and corrupt the sanctity of the jury system and to illegally and unlawfully tamper with tlie administration of justice, that by reason thereof appellees are in indirect contempt of court; they are guilty of jury tampering and that such acts and actions interfere with the ‘Administration of Justice’ in that it seriously affects the appellant’s inalienable and constitutional right to a trial by an impartial and uninfluenced'jury.”
She further argues the proceeding is remedial in nature and therefore civil, for the reason that the trial court, when denying her motion for a rehearing, stated that it considered the action to be remedial and in the nature of civil contempt rather than criminal contempt.
On the other hand, appellee Insurance Companies contend that the specific contempt charged is jury tampering, obstruction of the administration of justice in a general sense, thus rendering the proceeding in the nature of criminal contempt rather than civil, and that the remedial relief sought, such as an injunction against further publication of the same or similar advertisements, and public retractions, is only incidental to the real issue involved.
It is further argued that the process under which they were brought into court empowered the court only to determine whether they had been guilty of contempt of court, and, if so, to prescribe appropriate punishment, and did not empower the court to render an injunctive decree. •
The precise distinction between civil and criminal contempt is not always easy to define. Depending upon the facts of the case, a particular contempt may take on some of the qualities and aspects of either.
G. S. 1949, 20-1201, provides:
“That contempts of court are divided into two classes, direct and indirect, and shall be proceeded against only as hereinafter prescribed.”
G. S. 1949, 20-1202, provides:
“That contempts committed during the sitting of the court or of a judge at chambers, in its or his presence, are direct contempts. All others are indirect contempts.”
Our statutes, however, do not define civil or criminal contempt.
12 Am. Jur., Contempt, § 6, p. 392, reads in part:
“Proceedings for contempt are of two classes — namely, criminal and civil. Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders. Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly interested in their conduct and prosecution are those individuals for the enforcement of whose private rights and remedies the suits were instituted.”
17 C. J. S., Contempt, has the following to say on the subject:
“A criminal contempt is conduct that is directed against the dignity and authority of the court, or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect.
“Criminal contempt may arise in the course of a criminal action, in special proceedings, or in civil or private litigation.
“The line of demarcation between acts constituting criminal and those constituting civil contempts is very indistinct. The confusion in attempts to classify civil and criminal contempts is due to the fact that there are contempts in which both elements appear. In general, contempts of court for which punishment is inflicted for the primary purpose of vindicating public authority are denominated criminal, while those in which the enforcement of civil rights and remedies is the ultimate object of the punishment are denominated civil con- tempts; whether or not a fine or imprisonment is imposed is not a distinguishing test.” (§ 5, pp. 7 and 8.)
“Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is, therefore, an offense against the party in whose behalf the violated order is made. If, however, the contempt consists in doing "a forbidden act, injurious to the opposite party, the contempt may be considered criminal.” (§ 6, p. 8.)
“A criminal contempt is an offense against society, while a civil contempt is rather an infringement on the rights of private persons. . . .” (§ 7, p. 8.)
To the same effect see Holloway v. Water Co., 100 Kan. 414, 421, 167 Pac. 265, 2 A. L. R. 161, and Smith v. Clothier, 113 Kan. 47, 51, 52, 213 Pac. 1071, in which the distinction between civil and criminal contempt is discussed at length. See also State, ex rel., v. Miller, 147 Kan. 242, 75 P. 2d 239.
Here the appellee Insurance Companies are not charged with the disobedience of an order of court previously made for the benefit of an opposing party litigant — the plaintiff. No rights of private parties, in the sense that orders or decrees for their benefit have been made, are involved. No private rights in past litigation are sought to be enforced or vindicated. Despite that that which plaintiff denominates as “remedial relief” is sought, in the over-all picture it is clear that plaintiff’s real complaint consists of the charge of jury tampering, which, in turn, obstructs the administration of justice, in a general sense.
Within the definitions laid down in the foregoing authorities we have no difficulty in concluding that the contempt charged here, despite the statement of the trial court to the contrary, but which is not binding on this court, is criminal contempt, rather than civil.
Having concluded that the contempt charged, assuming it to be contempt, is criminal contempt, rather than civil, the next question is whether the judgment of not guilty is appealable.
The question was answered inferentially, if not directly, in the negative, in the case of Smith v. Clothier, supra, in which it was specifically held that in a proceeding for civil contempt an appeal may be taken from a judgment finding the defendant not guilty. After discussing the distinction between civil and criminal contempt, and in holding the contempt there charged to be civil, the court went on to say:
“There is some confusion among the authorities concerning the right of appeal or right of review from the judgment of the court in a contempt proceeding. Much of this confusion is eliminated when the questions are classified as to whether pr not the contempt is civil or criminal and as to whether or not the right of review is conferred by statute.” (p. 53.)
Our statute (G. S. 1949, 20-1204), after prescribing procedure to be followed in indirect contempt proceedings, provides that the trial thereof shall proceed upon testimony produced as in criminal cases. The next section (G. S. 1949, 20-1205) provides:
“That the testimony taken on the trial of any accusation of contempt shall be preserved, and any judgment of conviction therefor may be reviewed upon the direct appeal to or by writ of error from the supreme court, and affirmed, reversed, or modified as justice may require. . . .” (Emphasis supplied.)
Despite the fact the statute does not provide for a review of a finding of not guilty, it was held, as before stated, in Smith v. Clothier, supra, that such right of appeal does exist in a civil contempt proceeding. In arriving at that conclusion the court said:
“In this case a judgment upon the contempt proceedings is ‘an order affecting a substantial right, made in a special proceeding or in a summary application in an action after judgment’ within the meaning of the term as used in section 566, of the civil code, and is, therefore, ‘a final order’ from which the aggrieved party may take an appeal within the meaning of that term as used in section 565 of the civil code.” (p. 55.) (The two sections referred to now appear as G. S. 1949, 60-3303 and 60-3302, respectively.)
Bearing in mind the distinction between civil and criminal contempt, the exception thus made, which allows a review of a finding of not guilty of civil contempt is logical, for, as pointed out, such a finding is a final order affecting a substantial right of an aggrieved party to the action.
Much more on the subject could be written, but time and space do not permit. We know of no statute or decision of this state, and none has been cited, which authorizes an appeal from a judgment of not guilty in a criminal contempt proceeding.
In conclusion, we therefore hold: The contempt here charged, assuming it to be contempt, is criminal contempt rather than civil. There is no right of appeal from a judgment of not guilty of criminal contempt.
It therefore follows that the appeal must be and the same is hereby dismissed.
Smith, J., dissents.
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The opinion of the court was delivered by
Thiele, J,:
This was an action in which plaintiff sought to have
a “restraint and reservation” contained in a deed conveying real estate to him declared void and to quiet his title to the real estate. A demurrer to his petition was sustained and he perfected an appeal to this court. Subsequently appellant filed in this court his abstract and brief.
The abstract does not contain any specification of the errors complained of as required by Rule 5 of this court, nor does the brief contain any statement of the questions involved as required by Rule 6 (3) (b) of this court.
It is observed further that the brief contains no argument whatever but consists solely of quotations from four texts the applicability of which is left to surmise.
Under Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975, and cases cited, where appellant makes no attempt to comply with Rule 5 his appeal is subject to dismissal. And see also Quivira, Inc. v. Quivira Co., Inc., 173 Kan. 339, 245 P. 2d 972, and cases cited, that error is never presumed and that the burden is on the party alleging error to show it.
The appeal must be and it is dismissed.
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The opinion of the court was delivered by
Smith, J.:
This is an original action in quo warranto on the relation of the attorney general to oust the board of regents from carrying out the provisions of its resolution authorizing The Kansas State College of Agriculture and Applied Science to use the proceeds from oil and gas leases covering real estate in Morton county, granted the state under an act of congress dated July 2, 1862, entitled “An Act donating public lands to the several states and territories which may provide colleges for the benefit of agriculture and mechanic arts” in the construction and equipping of dormitories for students attending that college. The petition also asked an adjudication as to the proper disposition and use of proceeds from such lands, that is, cash bonuses, delay rentals and royalties. The petition was filed, an answer was filed and the action has been submitted to us for final judgment since there is no dispute as to the facts.
The petition described 4,000 acres of land in Morton county and alleged it was part of the public lands certified to the state of Kansas under the provisions of the above act for the benefit of Kansas State Agricultural College (now Kansas State College of Agriculture and Applied Science).
Reference was made to the act of congress and there was an allegation that the mineral rights in these lands were still held by the state for the benefit of the college; that in accordance with G. S. 1949, 76-164, et seq., the board of regents on June 8, 1953, executed nine oil and gas leases on these lands and received a cash bonus therefor of $342,012.80; that in accordance with G. S. 1949, 76-168, on November 20, 1953, the board adopted rules and regulations covering the disposition of proceeds from these lands; that on November 20, 1953, the board by resolution approved the use of the proceeds, including cash bonuses, delay rentals and royalties, from these lands in the construction and equipping of dormitories for students attending the college; that in passing this resolution the defendant board purported to be acting in accordance with the act of con gress of July 2, 1862, and G. S. 1949, 76-410, and would unless ousted from exercising such powers use said proceeds for the erection and equipping of dormitories; that the $342,012.80 cash bonus and all prospective delay rentals and royalties thereunder constituted moneys derived from the sale of lands, as that term was used in the federal act, and should be paid into the state treasury and credited to the “Agricultural College Permanent Fund”; and under the second condition of the grant no portion of such proceeds could be applied directly or indirectly under any pretense whatever to the purchase, erection, preservation, or repair of any building or buildings.
The petition then stated that an actual controversy existed between the plaintiff and defendants as to the interpretation of the federal act and G. S. 1949, 76-410, upon which the court should make a binding adjudication under its declaratory judgment powers; the questions involved were set out in the petition as follows:
“1. Does a cash bonus received upon the execution of said oil and gas leases on said lands constitute ‘moneys derived from the sale of lands’ as that term is used in said land grant and thus have to be credited to the ‘Agriculture College Permanent Fund’?
“2. Do delay rentals received under said oil and gas leases on said lands constitute ‘moneys derived from the sale of lands’ as that term is used in said land grant and thus have to be credited to the ‘Agriculture College Permanent Fund’?
“3. Do royalties received under said oil and gas leases on said lands constitute ‘moneys derived from the sale of lands’ as that term is used in said land grant and thus have to be credited to the ‘Agriculture College Permanent Fund’?
“4. In the event any one of the preceding questions is answered in the negative, is said college prohibited by the second condition in said land grant from using any of such proceeds (cash bonus, delay rentals, or royalties) for the construction and equipping of dormitories for students attending said college?”
The prayer of the petition was that this court oust the board of regents from carrying out the provisions of the resolution referred to and make a binding adjudication of the above questions.
Attached to this petition was a copy of the oil and gas lease. It was the ordinary form 88 lease. Also, attached was a copy of the rules and regulations adopted by the board of regents and providing how proceeds from those leases should be handled. It required that these should be deposited and kept by the state treasurer in a separate fund for the use and benefit of Kansas State College of Agriculture and Applied Science and also that moneys derived from the sale of such lands should be paid into the state treasury and credited to the “Agriculture College Permanent Fund.” Also, attached was a copy of the minutes of the board of regents whereby the college was authorized to use all tire proceeds, including cash bonuses, delay rentals and royalties in the construction and equipping of dormitories for students attending Kansas State College.
The answer admitted the factual allegations of the petition and that an actual controversy existed between the parties and asserted the negative of each of the questions which have been stated heretofore in this opinion.
The answer further stated that congress by enacting the statute referred to provided for the donation to the several states of lands then considered to be “agricultural lands” since congress excluded from the operation of that statute “all mineral lands” and intended that the agricultural lands so donated should be sold for development by farmers and that all moneys from such sales should be used, as set out in the statute.
The answer further stated that the state acquired title in the lands for the benefit of the college in fee simple absolute by selection in accordance with the above cited statute; (a copy of the records of the auditor was attached to the answer) that the lands were selected as agricultural lands; and the fact that these lands were later found to contain valuable deposits of minerals did not invalidate the original conveyance since there was no fraud or collusion in the selection of the lands and since the validity of the title could be attacked on that ground only by the United States, which had made no such claim.
The answer further stated that pursuant to Chapter 443 of the 1951 Session Laws of Kansas the board of regents on September 17, 1951, adopted a resolution by which it exchanged the lands described in the petition for other agricultural lands owned by the United States substantially equal in value for agricultural purposes; that the conveyances by which this exchange was accomplished, each reserved to the prior owner the entire mineral rights in each of the tracts respectively.
A summary of the appraisal, a copy of the resolution of the board of regents and a copy of each conveyance were attached to the answer.
The answer then alleged that since the state still owned agricultural lands conveyed to it by the United States substantially equal in value for agricultural purposes to the lands described, the execu tion of the oil and gas leases was not the “sale of lands” and the bonuses, delay rentals and royalties from these leases were not “moneys derived from the sale of lands” as described or contemplated by the act of congress.
The prayer of the answer was that the relief requested by tire plaintiff be denied and that the court answer the questions stated in the petition in the negative.
The affidavit of the auditor attached to the answer referred to the act in question and certain acts of the legislature of Kansas and stated that pursuant to that act the state through its agents selected the land in question. The certificate of the general land office was also attached and stated that all lands in the State of Kansas shall be subject to the disposal as agricultural lands.
The affidavit of the auditor further stated that according to the books, records and papers now on file in the office of the state auditor the state was the owner in fee simple of the property in question.
Exhibit No. 2 attached to the answer was the record of the appraisers appointed to appraise the 7,000 acres in question and stated that the land in question was valued at $4,895 and the federal land to be exchanged therefor was valued at a total value of $4,880.
Exhibit No. 3 attached to the answer was the resolution of the board of regents empowering the chairman and secretary of the board to execute papers necessary to consummate the exchange.
Exhibit No. 4 was the patent signed by the governor for the land in question to the United States.
Exhibit No. 5 was the deed signed by the chief of the soil conservation service conveying to the board of regents the 640 acres in question. The deed and the patent each reserved all mineral rights.
Attached to the abstract and brief of plaintiff as an appendix was the Federal Act of July 2, 1862, entitled “An Act donating public lands to the several states and territories which may provide colleges for the benefit of agriculture and mechanic arts.”
The first section of this act granted to the several states 30,000 acres for each senator and representative in congress, to which each state should be entitled on that date, and provided that no mineral lands should be selected or purchased under the provisions of the act. (The effect of this section was, since Kansas then had two senators and one congressman to allot to the State of Kansas 90,000 acres of land.)
The second section provided how the land should be selected and for what price the state should sell it and for the issuance of scrip to states in which there was no public lands.
The third section provided that all expenses of management, superintendence and taxes from the date of the selection of the lands should be paid by the states out of the treasury of the states “so that the entire proceeds of the sale of said lands shall be applied without any diminution whatever. . . .”
The fourth section provided how the moneys derived from the sale of the lands should be invested, that is, in stocks in the United States or some other safe stocks and that the moneys so invested “shall constitute a perpetual fund, the capital of which shall remain forever undiminished (except so far as may be provided in section fifth of this Act), and the interest of which shall be inviolably appropriated, by each state which may take and claim the benefit of this Act, to the endowment, support and maintenance of at least one college where the leading object shall be, without excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and mechanic arts, in such manner as the Legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.”
The fifth section provided—
First, if any portion of the funds invested should be lost, it should be replaced by the state to which it- belongs, so that the capital of the fund should remain forever undiminished; and
Second, no portion of said fund, nor the interest thereon, shall be applied, directly or indirectly, under any pretense whatever, to the purchase, erection, preservation or repair of any building or buildings; and
Third, that any state which accepted the provisions of the act should provide at least one college, or the grant should cease, and the state would be bound to pay the United States the amount received of any lands sold; and
Fourth, annual reports should be made regarding the progress of each college to the secretary of the interior; and
Fifth, a provision regarding the price of the land selected; and
Sixth, that no state while in a condition of rebellion should be entitled to the benefit of the act; and
Seventh, no state should be entitled to the benefits of the act unless it should express its acceptance thereof by its legislature within two years from the date of its approval by the president.
The remaining three sections are not important to us here.
Attached also as Appendix “B” in the brief and abstract was an amendment to the above act. It enlarged somewhat the type of securities in which the proceeds of the sale of the land in question could be invested.
Since there is no dispute about the actual facts, the action was submitted on the pleadings as to whether a judgment should be entered declaring the defendant board has no authority to use the proceeds from oil leases on the land in question for the construction and equipping of dormitories for the use of students attending Kansas State College of Agriculture and Applied Science. Or stated as it is in the petition, Do the three different categories of proceeds, that is, cash bonuses, delay rentals and royalties have to be deposited in the Agriculture College Permanent Fund? A corollary question is — If the foregoing questions should be answered in the negative, then is the college prohibited by the second subparagraph of section 5 of the federal act from using any of these funds for the erection and equipping of dormitories for the use of students attending the college?
A statement in narrative form will be helpful. The act donating public lands to the several states and territories which may provide colleges for the benefit of agriculture and the mechanic arts approved July 2, 1862, granted to the several states and territories for the endowment, support and maintenance of at least one college to teach such studies as were related to agriculture and mechanic arts, 30,000 acres of land for each senator and representative in congress, to which it should be entitled. Kansas had two senators and one congressman at that time, so it was granted 90,000 acres of land by this act. For some reason, not clear, the entire 90,000 acres was not certified to Kansas in 1862. All the land that was certified at that time has long since been sold. In 1908 the Sixtieth Congress, by section 3, 35 United States Statutes at Large, page 465, provided that there should be certified to the state of Kansas 7,682 acres of public land, in full satisfaction of the state’s claim under the act of 1862. By this time about all the public land in the state was in the extreme western portion of the state. The land with which this case is concerned was a part of this and was located in Morton county. We note from the letter of the General Land Office that the act of congress, approved May 5, 1876 (19 Stats 52) provided that all lands in the state of Kansas should be subject to disposal as agricultural lands and these selections were supported by the usual non-mineral and non-saline affidavits and the lands selected were not returned by the surveyor general as mineral. All this took place in 1910 following the act of 1908, to which reference has already been made.
Now to return to 1862, the federal act provided that no state should be entitled to its benefits unless it should express its acceptance thereof by its legislature, within two years of its approval by the president. Accordingly our legislature in 1863 enacted chapters 2, 3 and 4 of the Session Laws for that year. Chapter 2 accepted the provisions of the act of congress and obligated the state to abide by its terms. Chapter 3 referred to the act and the acceptance thereof and chapter 4 provided for the government and operation of the college. Section 16 of chapter 4 provided as follows:
“The ninety thousand acres of land granted to the State of Kansas by Congress, to endow a college for the benefit of agriculture and the mechanic arts, shall be used solely for the endowment of said Kansas State Agricultural College of the State of Kansas, and for no other purpose whatever; and the interest on the fund arising from tire sale of said lands shall be used exclusively for the salaries of the president, professors and teachers of this college; but the principal, or the moneys arising from the sale of said lands, shall be invested according to law, and be a fund to remain forever undiminished.”
This act was amended by chapter 13, section 1 of the Laws of 1871, but only to permit the interest from the fund to be used for other purposes than paying the salaries mentioned in the former act.
Following these acts and in compliance therewith, there was created by the proper authorities what is still referred to as the “Agriculture College Permanent Fund.” Almost at once some of the land was sold and the proceeds of these sales were paid into this fund, the interest from it being used in maintaining the agricultural college at Manhattan, in accordance with the terms of the above acts, ever since.
We all know about the comparatively recent oil and gas activity in southwest Kansas. It has given an enhanced value to this land, comparatively low in value up to that time.
Our legislature at the session of 1951-enacted chapter 443. The title of the-act refers to certain lands owned by the Kansas State College of Agriculture and Applied Science and to certain other lands owned by the United States and being administered under Title III of the Bankhead-Jones Farm Tenant Act. The act then authorized the board of regents to exchange certain land owned by it, describing the land in question here, for lands owned by the United States. The act provided that there should be an appraisal by a board consisting of one appraiser, to be appointed by the United States, one to be appointed by the state board of regents and the third to be selected by those two; that the appraisement should be on the basis of the mineral rights in each tract to be reserved by the respective parties and that the exchange should not be made unless the land to be exchanged by the United States should be at least 95% in appraised value to the land in question in exchange therefor by the college.
The exchange spoken of in the petition and the answer of defendants was made pursuant to this act. The surface rights in the 4,000 acres, with which we are concerned, were valued at $4,895 by the appraisers, and the surface rights in the federal land of 640 acres were appraised at $4,880.
Through this transaction the state now owns the mineral rights in 4,000 acres and the surface in 640 acres — hence it owns about the same value in surface as it did when it owned the 4,000 acres outright.
We turn now to the act of the legislature for 1943, pursuant to which these leases were made. Chapter 268 of that session laws gave in section 1 authority to the board of regents to lease any of its lands for oil and gas or other minerals. Subsequent sections provided for advertising of the intention to lease and for sealed bids and that the leases should be made to the highest responsible bidder.
G. S. 1949, 76-168, being chapter 268, section 5 of the Laws of 1943, provided that all proceeds of such leases should be paid into the state treasury and kept in “separate funds” for use and benefit of proper institutions under rules and regulations adopted by the board of regents, approved by the attorney general, and filed with the revisor of statutes, as provided by law. Pursuant to this chapter, the leases we are considering were made. When the leases were made, the lessee paid the board $342,012.80. The rule of the board of regents was adopted providing that the proceeds of these leases should be deposited and kept by the state treasurer in a “separate fund for the use and benefit of Kansas State College of Agriculture and. Applied Science.” This rule also provided that all moneys from the sale of such lands should be paid into the state treasury and be credited to the “Agriculture College Permanent Fund.” This is the first time a “fund for the use and benefit of Kansas State College” was established, as distinguished from the “Agriculture College Permanent Fund.” The former is the title of the fund in which the $342,012.80 bonus money was placed and is now carried. The board of regents referred to this fund in its Exhibit “K,” which provided that all cash bonuses, delay rentals and royalties received from the oil and gas leases in question should be used for the construction and equipping of dormitories for students attending Kansas State College.
Actually this action is brought by all state officials interested so they may be sure the use they propose to make of this bonus money is not unlawful.
It should be remarked here, the only money in the fund now comes from the cash bonus paid to the board of regents at the time the leases were entered into. There are no royalties or delay rentals in that fund at this time. This amount is many times the value of the entire surface rights in the 4,000 acres.
The state argues as a reason why the board of regents should be ousted from using such money for the erection and equipping of dormitories and the question as to the other categories of proceeds should be answered in the affirmative is the act of 1862 provides in the first place that all moneys derived from the sale of any of the lands given the state by that act should be invested in stocks and the interest inviolably appropriated to the endowment, support and maintenance of at least one college and the second subparagraph of section 5 of the act provides no portion of the fund, nor the interest thereon should be applied directly or indirectly under any pretense whatever to the purchase, erection or repair of any building. The state argues the act means what it says and it was the intention of congress that this fund should remain forever inviolate and undiminished for the purpose of support and maintenance of the college, and that there should never be any diminution whatever of the proceeds from the sale of this land for those purposes. A considerable part of the brief of the state is devoted to historical considerations, from which it argues what must have been the intention of congress when it enacted the act of 1862.
We do not find on examination the considerations that surrounded the enactment of this law almost 100 years ago to be so helpful as it might seem at first glance. For one thing, it is clear congress thought it was granting to the state purely agricultural land for purposes of agriculture and agriculture only. The department of the interior was meticulous in being sure that no land marked as mineral lands by the Surveyor General should be selected. As a matter of fact, as late as the time when we received this identical land in 1910, the federal government was still meticulous in making sure we did not receive any mineral land. It was only by fortuitous circumstance as the history of our state revealed itself that oil and gas were discovered in that part of Kansas as a part of the great Midcontinent Oil and Gas Field.
Another point which prevents us from attaching as much significance to the historical considerations is that obviously by the language used it was the intention of congress that this land should be sold and the proceeds put into a fund. The act provides how this fund shall be invested and subparagraph 2 of section 5 speaks of no portion of “the fund” nor the “interest thereon” and provides such shall not be applied to the erection of buildings. Obviously this fund is the fund that is obtained from the sale of lands for agricultural purposes.
The state has owned this particular land in Morton county since 1910, or forty-four years. It has not been able to sell it during that time as agricultural land. The act by which this exchange was made and the one authorizing the leasing of it for oil and gas were merely acts of good business on the part of the state. From that businesslike administration of this land has arisen the fund with which we are dealing here. It is no distortion of facts to say the entire situation is one that was never dreamed of by the members of the senate, whose debate is attached to plaintiff’s brief as a guide in interpreting this statute. What we have is that the state has received in the form of this bonus money many times what the 4,000-acre tract was worth as agricultural land and still owns the same value in surface rights.
This subsequent discovery of oil and gas could not have any effect on the grant to the state. (See Crum, et al., v. Oil Co., 117 Kan. 54, 230 Pac. 299; also Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 34 S. Ct. 907, 58 L. Ed. 1527 [1914]; Southern Development Co. v. Enderson, 200 Fed. 272 [D. C. Nev., 1912.])
Under such circumstances, it is proper for us to examine the language of the federal act. When we do that, we find the entire question turns upon whether the making of the leases and the acceptance of the bonus money should be held to be a sale of land as referred to in section 4 of the act of 1862. Once we have answered that question with reference to a cash bonus, we shall consider it with reference to royalties and delay rentals.
It is well settled that there are three types of income that arise from an oil and gas lease.
The term “cash bonus” has in the oil business a well-settled meaning. It is money paid by the lessee to the lessor in consideration of the execution of an oil and gas lease, as distinguished from royalty which under the form 88 lease, as we have here, is the one-eighth of all oil and gas produced to be paid lessor. (See Geller v. Smith, 130 Cal. App. 485, 20 P. 2d 102.) It is usually paid by the lessee to the lessor as consideration for a lease in territory more or less desirable as a drilling project.
The term “delay rentals” is used to describe the rental the lessee agrees to pay the lessor after the initial term of the lease has expired and no wells have been drilled. In this case the lessee agrees if no well has been commenced by June 8, 1954, to pay the lessor one dollar per acre a year, which will operate as a rental and cover the privilege of deferring the commencement of operations for drilling for a year.
As remarked already, “royalty” as used in an oil and gas lease means under this lease the one-eighth of any oil and gas produced.
An oil and gas lease has certain features peculiar to it. It conveys no interest in the land, but is merely a license to explore. (See Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463; also Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398; Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750; and Beardsley v. Gas Co., 78 Kan. 571, 96 Pac. 859.)
Such a lease is a “profit a prendre.” The lessee may use it or refrain therefrom. (See Brinkman v. Empire Gas and Fuel Co., 120 Kan. 602, 245 Pac. 107; also Hardcastle v. McCluskey, 139 Kan. 757, 33 P. 2d 127.)
It is well settled that oil and gas in place constitute real estate. (See In re Estate of Randolph, 175 Kan. 685, 266 P. 2d 315.) It is equally well settled that an oil and gas lease even when there is production does not operate to sever the oil and gas from the surface. (See Hover v. McNeill, 102 Kan. 492, 175 Pac. 150.)
The giving of these oil and gas leases did not constitute the sale of lands as the term is used in section 4 of the act of 1862. The board of regents sold nothing. This conclusion is fortified by the fact that congress in 1862 was considering the land in question from an agricultural standpoint.
The only thing with which it parted was the right it gave the lessee to explore for gas and oil. As far as the $342,012.80 cash bonus is concerned, if the lessee does not care to or considers it good business not to it need never drill any wells on this land.
It is true the act of 1862 provides the fund from the sale of lands shall “remain undiminished.” We have demonstrated these leases did not constitute a sale of lands. Furthermore, the fund from the sale of lands, if we consider the land a part of the fund, is undiminished by this transaction. Ry means of the trade with the department of agriculture, the state still owns as much in value for agricultural purposes as it did before. The actual situation is that nearly 100 years after the passage of the act of 1862 the state found itself with 4,000 acres of land from which it was receiving very little income and for which there was no ready market.
What has been said with reference to the cash bonus applies with equal force to the delay rentals. This does not constitute money derived from the sale of land.
The same may not be said of the royalties to be paid if oil or gas is found. This does represent something of value that is taken from the land. The oil and gas in place is real estate and when it is taken out the value thereof is reduced by so much. Consequently the royalty money if and when any is paid will constitute moneys derived from the sale of land. It belongs in the “Agriculture College Permanent Fund” and may not be used for the erection and equipping of dormitories.
What has been said answers the query of the state as to the second paragraph of section 5 of the act of 1862. Since the moneys received as a cash bonus and for delay rentals need not be placed in the “Agriculture Permanent Fund” the provisions of this subparagraph do not prevent the money in these two categories being used in the erecting and equipping of dormitories.
Question No. 1 “Does a cash bonus received upon the execution of said oil and gas leases on said lands constitute moneys derived from the sale of lands’ as that term is used in said land grant and thus have to be credited to the ‘Agriculture College Permanent Fund’?” is answered in the negative. Question No. 2 “Do delay rentals received under said oil and gas leases on said lands constitute moneys derived from the sale of lands’ as that term is used in said land grant and thus have to be credited to the ‘Agriculture College' Permanent Fund’?” is answered in the negative. Question No. 3 “Do royalties received under said oil and gas leases on said lands constitute ‘moneys derived from the sale of lands’ as that term is used in said land grant and thus have to be credited to the ‘Agriculture College Permanent Fund’?” is answered in the affirmative. Question No. 4 “In the event any one of the preceding questions is answered in the negative, is said college prohibited by the second condition in said land grant from using any of such proceeds (cash bonus, delay rentals, or royalties) for the construction and equipping of dormitories for students attending said college?” is answered as to questions 1 and 2 in the negative and as to question 3 in the affirmative.
Judgment will be for plaintiff in part and for defendants in part, in accordance with this opinion.
Thiele and Wedell, JJ., concur in the result.
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The opinion of the court was delivered by
Harvey, C. J.:
The appellant, Edna Mae Hinkle, alias Edna Mae Spratt, was duly charged by an information filed in the district court of Marshall county with second degree forgery in ten counts, each count charging a separate offense. Upon a jury trial she was found guilty on seven counts and not guilty on three counts. Her motion for a new trial was considered and overruled and she was duly sentenced to imprisonment at the State Industrial Farm for Women at Lansing, Kan.
The checks described in the counts upon which conviction was had, with their respective dates, purported makers, payees, banks drawn upon and amounts are listed as follows:
Date 1953 Maker Payee Bank Amount
July 10 Edna Weiche Montgomery Ward Greenleaf State Bank $55.00 Greenleaf, Kansas
July 15 Lester Bolejack Boogarts Supply Co. " 50.00
Aug. 5 Edna Clark Hested Stores Co. Community State Bank 35.00 Hanover, Kansas
Aug. — Ernest Clark Safeway Stores, Inc. State Exchange Bank 40.00 Barnes, Kansas
Aug. 13 Lester Bolejack " Greenleaf State Bank 45.00 Greenleaf, Kansas
Aug. 15 Oscar Samsel " State Exchange Bank 50.00 Barnes, Kansas
Aug. — Henry Samsel Ben Franklin Store " 30.00
Total 305.00
She has appealed and contends the court erred (1) in overruling her counsel’s motion that she not be required to be present during the trial; (2) in failing to grant immunity to her under the inquisition statute; (3) in admitting evidence of a sample of her handwriting taken at such inquisition and the insufficient proof that the sample was voluntarily given; (4) in permitting evidence of a handwriting expert; (5) in refusing to sustain her demurrer to evi dence and motion for discharge; (6) in allowing the endorsement of additional witnesses on the information after the trial commenced; (7) in permitting the amended information to stand since it charged another and distinct offense from that charged in the complaint; (8) in permitting further testimony of new matter by the expert witness; and, (9) in permitting the charge in count one to stand, there being a fatal variance between the charge and the evidence produced.
Appellant’s correct surname is Spratt but for some reason is frequently called by her maiden name of Hinkle. At the trial in October, 1953, she testified that she was thirty-four years old; that before her marriage she had lived with her parents on a farm near Greenleaf; that she attended grade school and four years of high school; that she was married to Arthur Spratt and lived with him nine and one-half years and was divorced in June of 1951; that she has a child eleven years old and received $30 per month child support; that since her divorce she had worked at the Perry Packing Plant at Hanover, Kan., and later at the Jayhawk Cafe in Marysville, Kan., where she received about $20 per week. She denied cashing any of the checks.
The evidence makes it clear that each of the checks was a forgery. There is no contention to the contrary. There was evidence also that appellant passed each of the checks, by witnesses the court and jury were justified in believing, and this is controverted only by defendant’s plea of not guilty and her testimony that she did not cash or pass any of the checks and had never seen them before the trial. We shall summarize the evidence as to her passing only one of them.
On July 10, 1953, a lady went to the Montgomery Ward store at Marysville and bought about $12 worth of merchandise. She gave the clerk who waited upon her, Mrs. Saville, a universal check on which only the name of the drawer “Edna Weiche” was written and gave the clerk to understand that was her sister. She requested the clerk to fill in the check by writing the name of the drawee as the State Exchange Rank, Rarnes, Kan., the payee as Montgomery Ward & Co. and the amount as $55. The clerk did this and then took it to the assistant manager, Mr. Nelson, for his approval. He okayed the check but directed the clerk to have the lady endorse her name on the back thereof. The clerk reported this to the lady who. expressed reluctance but did endorse on the back of the check the name “Mrs. Linda Smith, Barnes, Kansas.” The clerk cashed the check giving the lady the difference between the price of the goods purchased and amount of the check. A few days later the lady was in the store and talked to Mrs. Saville and remarked to her that she sure did hate to sign her name on that check. Sometime later the check was returned to Montgomery Ward by the Barnes bank marked, “no account — try Greenleaf Bank.” The manager of the store, Mr. Rayborn, knew Edna Weiche as a customer and upon looking up her account found her bank was the Greenleaf State Bank. Learning from Mrs. Saville the circumstances of her taking the check Rayborn assumed the Barnes bank was written inadvertently and instructed the bookkeeper to write in the name of the Greenleaf bank over the name of the Barnes bank. This was done and the check was again sent through for collection. It was later received from the Greenleaf bank marked, “signature of drawer forged.” In the meantime the county attorney had been advised by several different parties of forged checks.
On August 18, 1953, Mr. Rayborn took the check to the county attorney who prepared a complaint charging forgery against Jane Doe, alias Linda Smith, which was signed by Rayborn. On the next day the county attorney filed with the county court an “Affidavit in support of deposition.” This recited briefly the fact that the check was given to Montgomery Ward; that the affiant was informed and believed the name Edna Weiche on the check and the endorsement of Linda Smith were forgeries, and that the crime of forgery was committed by some person. It included a request that subpoenas be issued for witnesses named in a praecipe that day filed with the court for the purpose of testifying concerning offenses against the laws of the state. Upon the strength of that affidavit the judge of the court issued a subpoena for Edna Mae Hinkle, also known as Edna Mae Spratt, Mrs. Tom Saville, and Mr. Donald Nelson. The sheriff took the subpoena and went to the Jawhawlc Cafe and inquired for Edna Mae Hinkle and was told she worked there but it was not her hours for work. When appellant returned to the cafe she was told the sheriff had been there and inquired for her and she called the sheriff and asked if he wanted to see her and was told he did. Appellant went then to the sheriff’s office where he gave her the subpoena and they went to the county court. There were present the county judge, the county attorney, two employees from Montgomery Ward, and the sheriff.
The appellant was not sworn. No court reporter or anyone else made a record of what was done. There were no questions and answers in the ordinary sense of examining a witness. We learned what took place from the sheriff, the judge of the county court, and tlie appellant. The county attorney did not testify.
Mr. Rranson, the sheriff, testified that on or about die 19th or 20th day of August he brought into the office of the county judge for questioning Edna Mae Hinkle; that she was requested on that occasion to give a sample of her handwriting to aid in their investigations; that she complied with that request. The fact that there was a forged check and they were trying to locate the forger of that check was explained to her. They then went to the judge’s office and there they explained to her what the case was about and asked her if she would be willing to give some samples of her handwriting and she said she was. She signed the names on the front and back of the checks of her own free will. She signed the name of Edna Weiche on two checks and wrote the name of Linda Smith on the back of two checks. She was told there was a controversy; that there had been a bunch of bad checks around town which they were trying to clear up and asked for her assistance..
P. R. Pulleine, judge of the county court, testified drat the county attorney informed Mrs. Hinkle that numerous bad checks had been given and they were trying to ascertain who passed them. He was asked: “Was she told that she had to sign the checks?” He answered: “No.” He stated he was rather vague about the exact words used in the conversation but he thought she was fully advised what her rights were, that she did not have to sign them, it was of her own free will. That, in fact, Mrs. Hinkle was rather anxious and willing to sign them and-the county attorney didn’t any more than ask her and she signed them. She signed some checks, there were two or more, she didn’t ask to be excused from giving her handwriting and she didn’t claim immunity.
Appellant testified about going to the sheriff’s office and who were there.' She said:
“They asked me if I would write my name on the checks — not my name but Edna Weiche — and I told them I would and went ahead and wrote those names just like they asked me to.”
W. H. Quakenbush, an examiner of questioned documents, commonly known as a handwriting expert, testified that he had examined the name “Edna Weiche” on a check cashed at Montgomery
Ward & Co. on July 10, and compared it with other known writings of appellant and gave as his judgment that they were written by the same person. The other known writings used for comparison were the writing by appellant before the county attorney when she appeared there as above stated; the words “Mrs. Linda Smith, Barnes, Kansas” written on the back of the check cashed at Montgomery Ward & Co.; her signature card at the Community State Bank at Hanover, Kan., where she had an account at one time; an old check she had written in August of 1947 and another in September of that year; and, two envelopes and a Christmas card all bearing her admitted signature. Mr. Quakenbush gave similar testimony with respect to the questioned writing on the other checks.
We turn now to consideration of the legal questions presented.
When the case was called for trial the court asked if the parties were ready. Counsel on each side replied in the affirmative. The court then asked if the defendant was present; her counsel stated that she was somewhere about but that she waived her right to be present at this time. The court expressed the view that it thought it important for defendant to be present at all stages of the trial. Her counsel took the position that it was a privilege only which she could waive. After some discussion the court adhered to its view and directed her counsel to have defendant appear in the courtroom. She came into the courtroom and took a seat back of the rail and the court directed that she take a seat inside the rail. Later in the examination of the jury she was asked to stand so the jury could see who was on trial and they could be interrogated with respect to their knowledge of her. Counsel for appellant complain of this ruling. We think it was not erroneous. Our pertinent statute, G. S. 1949, 62-1411, reads:
“No person indicted or informed against for a felony can be tried unless be be personally present during the trial; . . .”
Counsel for appellant cite several of our cases, State v. Maxwell, 151 Kan. 951,102 P. 2d 109, and cases cited p. 958, where a defendant was at liberty on bond and knowing that a certain matter would be taken up at a specific time was not present and after his conviction claimed his conviction should be reversed because he was absent when something was done and the circumstances were such that the court held he had waived his presence, a thing he had a right to do if he desired. Under those authorities counsel for appellant in this case contend that she could waive her right to be present at all times. The contention is not well taken. The language with reference to defendant’s right to waive his presence used in those opinions must be limited to the facts therein stated. More than that, in each of those cases, the defendant personally claimed the waiver. Here her attorney, alone, made the claim. This procedure is not recognized by any of the authorities. See, 23 C. J. S. 309, and authorities there cited. In view of our statute, just quoted, we think it unnecessary to go into -an elaborate discussion of the question. Those interested may find a full discussion in Bishop’s New Criminal Procedure, 2nd Ed., Vol. 1, Ch. 18; 23 C. J. S. 303, et seq.; and, 14 Am. Jur. 875, 906, 907.
Counsel for appellant argued that the court erred in failing to grant immunity under the inquisition statute, G. S. 1949, 62-301, and by admitting evidence of a sample of her handwriting taken at such inquisition. The record discloses that the inquisition as spoken of in this case was somewhat abortive. The county attorney started an inquisition proceedings and properly had subpoenas issued for three witnesses including the appellant. She went to the sheriff’s office in response to a subpoena. There the regular procedure of an inquisition seemed to stop and the procedure thereafter was quite informal. We do not regard that fact as being very material. The test is whether she was compelled to testify to any matter which was later used in the prosecution against her. See, The State v. Sacks, 116 Kan. 148, 225 Pac. 738. The real test is whether she was compelled to testify. See, also, The State v. Backstrom, 117 Kan. 111, 230 Pac. 306, where it was held:
“One who testifies without objection at an inquisition held by a county attorney under the prohibitory liquor law may thereafter be prosecuted for any violation of that law concerning which he testifies.”
In that case the inquisition was held under what is now G. S. 1949, 62-301. Many authorities are cited in support of the holding of the court. Whether you consider the evidence of the sheriff, the judge of the county court, or the appellant it is clear in this case that whatever she did that was detrimental to her on that occasion was willingly done. She was not compelled to do anything.
We have examined each of the other questions argued by appellant and find no substantial merit in any of them. We think it unnecessary to discuss each of them separately. No material error is disclosed by the record. The judgment of the trial court is affirmed.
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The opinion of the court was delivered'by
Harvey, C. J.:
This is an attempted appeal from an order of the district court refusing to set aside a resolution of the board of county commissioners which revoked a cereal malt beverage license previously issued to the appellants.
The record discloses that on March 2, 1953, the county commissioners of Linn county, Kansas, issued Cereal Malt Beverage Retail License No. 1 for the current year of 1953 to the appellants Marjorie L. and H. A. Peterson. On April 20, 1953, they adopted a resolution which, omitting caption and signatures, reads:
“That Whereas it appears to the Board that Marjorie L. and H. A. Peterson, the holders of 1953 Cereal Malt Beverage Retail License No. 1, issued by Linn County, Kansas, on March 2, 1953, have violated the Laws of the State of Kansas relating to the sale of said cereal malt beverages with particular reference to sale thereof on Sundays and to minors; Now, therefore be it resolved by the Board that the said Cereal Malt Beverage license be revoked as provided by law, and the County Attorney is hereby directed to prepare proper notice and order to accomplish the same and the Sheriff of Linn County, Kansas, is hereby directed to serve such notice on the holders of said license and to make return thereof to said Board.”
On the same date they issued the following order:
“Now on this 20th day of April, 1953, by the Board of County Commissioners of Linn County, Kansas, It Is Ordered that the Cereal Malt Beverage License issued by said Board on March 2, 1953, to Marjorie L. and H. A. Peterson, being License No. 1, be and the same is hereby revoked as of 12:00 o’clock Midnight April 25, 1953, and that the County Clerk of Linn County, Kansas, enter this order of record as of April 25, 1953.
“By The Board It Is So Ordered.”
They directed the county attorney of Linn county to prepare proper notice and order thereof and the sheriff of Linn county to serve notice upon the licensees. The order was prepared by the county attorney and served by the sheriff on April 20, 1953.
On May 4, 1953, the board of county commissioners fixed the amount of the appeal bond at $150 and on May 27, 1953, the appellants served and filed their notice of appeal to the district court of Linn county and gave their bond which bond was approved, and a transcript of the above mentioned proceedings was filed with the clerk of the district court on May 13, 1953.
' In the district court counsel for appellants filed a motion which summarized the proceedings and prayed for an order requiring the board of county commissioners to file its petition or bill of particulars stating and setting forth the grounds and facts including names and dates relied upon by it as the basis for the attempted and purported revocation of the cereal malt beverage license issued to the appellants for the year 1953. Upon considertion of that motion the court, after some discussion and citing of authorities, expressed its view as follows:
“I am of the opinion that on appeal the question will be whether the County Commissioners acted in good faith or whether they were guilty of bad faith, fraud, corruption or oppression. Having this opinion, the motion for the bill of particulars should be and the same is overruled.”
This order was made June 4, 1953, and the case was set for trial on July 30, 1953. On that date the parties appeared with their counsel and announced ready for trial. Counsel for appellants stated the appeal was taken under G. S. 1951 Supp., 41-2708; that it was a trial de novo; that the burden of proof was upon appellee and requested that appellee commence the introduction of its evidence. They again requested that the board of county commissioners file a petition or bill of particulars. This request was overruled. The court held appellants were not entitled to a trial de novo; that the burden of proof was upon appellants; that the testimony which could be introduced by appellants was limited to evidence bearing upon the question of whether or not the board of county commissioners was guilty of bad faith, fraud, corruption or oppression in its revocation of the cereal malt beverage license.
Without introducing any evidence on their own behalf, and none having been introduced by the appellee, the appellants demurred to the evidence and also moved for judgment on the pleadings. These were argued and overruled. Counsel for appellants announced they were standing on their demurrer and motion for judgment. Whereupon, judgment was rendered for the appellee. Within due time notice of appeal to this court was served and filed. The appeal has been duly heard in this court upon briefs and oral argument.
Our present statutes relating to the sale of cereal malt beverages was first enacted as chapter 214, Laws 1937. As some of the sections were amended they appear in G. S. 1949, as sections 41-2701 to 41- 2712. As some of the sections were later amended they are shown in 1953 Supp. to G. S. 1949. Since this is the first case to reach this court by appeal involving the revocation of a license to sell cereál malt beverages we look to our own jurisdiction to entertain the appeal. The pertinent portion of the section dealing with the revocation of license being 41-2708, reads:
“The board of county commissioners . . . upon five (5) days’ notice to the persons holding such license, shall revoke such license for any one of the following reasons: . . . (We need not enumerate these reasons for it is not contended that sale on Sunday and to minors would not justify revocation.) . . . Within twenty (20) days after the order of the board revoking any license the licensee may appeal to the district court of the county in the manner as now provided by law in appeals from the probate court: . . .”
There is nothing said in the statute about appeals from the district court to the supreme court; neither is anything said about the procedure in the district court. Parenthetically, we may say that as early as Otis v. Jenkins, McCahon 87 (1860) it was held: The court will not presume error; the burden is upon appellant to establish it. This was noted in Coleman v. MacLennan, 78 Kan. 711, 744, 98 Pac. 281, as being the rule in this court through the history of the state.
Our constitution article 3, section 3, gives this court only “. . . such appellate jurisdiction as may be provided by law. . . .” We find no statute which specifically gives this court appellate jurisdiction in this matter. Counsel for appellants here cite the wording that the appeal may be taken to the district court “in the manner now provided by law in appeals from the probate court,” but this provides only as to the “manner” of taking the appeal which is by serving notice of appeal and giving bond in the sum fixed by the court. G. S. 1949, 59-2405, provides “To render the appeal effective:” the appellant must serve and file a notice of appeal and give bond in the sum fixed by the probate court. Other sections of the statute provide how the appeal shall be handled in the district court and still others provide specifically for an appeal to the supreme court. There is nothing of that kind in the statute we are here considering.
We take note of the fact that in our statute pertaining to intoxicating liquors and beverages, G. S. 1949, 41-320 to 41-324, our legislature made specific provisions to provide for a hearing on the suspension or revocation before the director for appeals from the director to the board, appeals from the board to the district court, and appeals from the district court to the supreme court, and definite procedure at each of those steps. So, it is clear that the members of the legislature knew how to make provisions for appeals from revocation of a license for the sale of cereal malt beverages. The fact the legislature did not do so with reference to cereal malt beverages indicates quite clearly that it intentionally did not provide for appeals to the supreme court in such cases.
The following cases support the view that this court has no jurisdiction in cases attempted to be appealed from the district court to this court unless the legislature has provided for such an appeal.
Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500; Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453; In re Burnette, 73 Kan. 609, 85 Pac. 575; Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233; Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 135 Kan. 450, 10 P. 2d 893; Crawford v. Firmin, 143 Kan. 794, 57 P. 2d 465; National Bank of Topeka v. State, 146 Kan. 97, 68 P. 2d 1076; Central Fibre Products Co. v. State Tax Comm., 150 Kan. 665, 95 P. 2d 353; Evans v. George, 162 Kan. 614, 178 P. 2d 687; Murrow v. Powell, 167 Kan. 283, 205 P. 2d 1193; Perkins v. Lenora Rural High School, 171 Kan. 727, 237 P. 2d 228; and, Williams v. Seymour Packing Co. 174 Kan. 168, 254 P. 2d 248.
The result of what has been said is that this attempted appeal must be dismissed for want of jurisdiction of this court. It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This was a damage action arising out of the collision of two vehicles in an intersection. Plaintiff’s petition sought recovery for damage to his vehicle and for personal injuries. The answer denied all allegations of negligence and cross-petitioned to recover for damage to the vehicle owned by certain of the defendants.
The jury returned a general verdict for defendants in the amount of $518, and answered special questions which specifically found plaintiff to be guilty of negligence and absolved the driver of defendants’ vehicle of negligence.
Defendants filed a motion for judgment notwithstanding the general verdict in which they moved the court to enter judgment in their favor for the sum of $1,147, for the reason that such amount was agreed upon in open court as being the amount defendants would be entitled to recover, if at all.
Defendants also filed a motion for a new trial on the ground the verdict was in part contrary to the evidence, which was later amended so as to ask for a limited new trial on the question of damages only.
Plaintiff also filed a motion for a new trial on the ground that the verdict was in whole or in part contrary to the evidence and not supported by the evidence.
All three of these motions were overruled, and the court entered judgment in favor of defendants and against the plaintiff in the amount of $518, in accord with the general verdict.
Defendants have appealed and specify as error the rulings of the trial court in denying their motions for judgment notwithstanding the verdict, and for a limited new trial on the question of damages only.
Plaintiff has cross-appealed from the judgment and from all other adverse rulings.
With respect to plaintiff’s cross-appeal it is sufficient to state that it has not been made to appear the special findings of the jury are not sustained by the evidence. As stated, the jury specifically found that plaintiff was guilty of negligence and specifically absolved the driver of defendants’ vehicle of negligence. We have examined plaintiff’s contentions with respect to the application of G. S. 1949, 8-552, requiring vehicles to stop at the entrance of a through highway, but find them to be without substantial merit. Insofar as plaintiff is concerned the trial court did not err in overruling his motion for a new trial and in entering judgment on the general verdict.
We pass now to defendants’ appeal.
It is contended there was no basis in the evidence for the jury to return a general verdict in the amount of $518, and that as the only evidence on the question of damage to defendants’ vehicle was an agreement by counsel that the damage to such vehicle was $1,147, the jury, since it found in favor of defendants, was not justified in returning a verdict in any amount other than that figure. In this connection the record shows the following:
“Mr. Postlethwaite [counsel for defendants]: It is agreed that the value of the pick-up immediately prior to the collision was $1,400.00, that the salvage was worth $253.00, and that the damage sustained by Chalmers and Borton for the loss of the 1951 Ford pick-up was in the sum of $1,147.00.
“The Court: Is that correct, Mr. Rueb?
“Mr. Rueb [counsel for plaintiff]: Correct.”
The record also shows that in his closing argument to the jury counsel for plaintiff stated:
“If the defendants are entitled to recover, they are entitled to a judgment for $1147.00. That is all admitted. There is no argument about that.”
With reference to their motion for a limited new trial on the question of damages only, defendants contend that as all questions of negligence and liability for the collision have been fully determined by the jury it is unnecessary to retry those issues, and if their motion for judgment for the higher figure is not sustained an order should be entered granting them a new trial on the question of damages only. In this connection, they rely on a number of decisions in which such limited new trials have been held proper, among them being Paul v. Western Distributing Co., 142 Kan. 816, 52 P. 2d 379.
Inasmuch as the parties abstracted only a portion of the court’s instructions this court sent for the files of the case in order to ascertain how the jury was instructed with reference to the amount defendants were entitled to recover, if at all. We find that in instruction No. 15 the trial court referred to the sum of $1,147 as being the amount claimed by defendants, but the court, in the same instruction, also instructed that the burden of proof was upon de fendants to establish the amount of their damage, if any, by a preponderance of the evidence. The court further instructed that a proper measure of damage would be the difference in value of defendants’ vehicle immediately before and immediately after the collision.
In instruction No. 18 the jury was advised that no proof was necessary of facts admitted by the parties in their pleadings or in statements made by them in open court.
Notwithstanding statements found in some of our decisions to the effect that a jury is not authorized arbitrarily to reject uncontradicted evidence, we are still confronted with the fact that in a case of this kind jurors are the exclusive judges of the evidence and of the credibility and weight to be given thereto. Furthermore, we are confronted with the well-established rule that this court has no power to increase the verdict of a jury in a case of this nature. (Mercado v. Nelson, 118 Kan. 302, 308, 235 Pac. 123; Converse v. Wichita Gas Co., 132 Kan. 291, 295 Pac. 635.)
And finally, we are confronted with the fact the trial court did not specifically designate what the amount of the verdict should be in the event it was in favor of defendants. That question was left to the jury to determine. It is quite true that there is -nothing in the record to throw any light on the question of just how the jury arrived at the figure of $518 as being the amount defendants were entitled to recover. The matter was not covered by the special questions and answers, but under the instructions given it was within the jury’s province to return the verdict that it did. As heretofore stated, the trial court approved the general verdict and entered judgment thereon, and the fact is entitled to great weight.
We have concluded that the only proper disposition of this appeal is to affirm the judgment of the lower court unless within twenty days from the date this opinion is filed defendants notify the clerk of this court that they accept a new trial, in which event it is directed that such new trial be had upon all issues.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
The only question in this workmen’s compensation case concerns the formula used by the commissioner in computing the award, and which was upheld and adopted by the trial court.
Material portions of the findings and award, and which tell the story and show the question involved, are as follow:
“The Examiner finds that claimant’s injury of May 19, 1952, consisted of a fracture of the big toe of the right foot and of the fourth metatarsal bone of tire right foot accompanied by swelling and pain and that because of these injuries claimant was temporarily totally disabled for a period of ten weeks and three days, and is entitled to an award of compensation therefor for 9.4S compensable weeks at the rate of $25 per week or the sum of $235.75, all of which has been paid by respondent; that in addition thereto, it is found, that claimant suffered 15 per cent permanent partial disability to his right foot for which he is also entitled to an award of compensation for an additional 17.34 weeks at the rate of $25 per week or the sum of $433.50, less compensation heretofore paid in the sum of $76.25, leaving a balance now due in the sum of $356.75, which should be paid forthwith in a lump sum.”
“In determining the amount of compensation due for an injury to a scheduled member resulting in a period of temporary total disability followed by a percentage of permanent partial loss of use of such member, the period of compensable temporary total disability is accounted for first and this time is deducted from the scheduled period and the percentage of this remaining time taken as the period of time payment of compensation is to be made.
“In the case at issue the schedule provides that compensation is payable for 125 weeks for complete loss of or loss of use of the foot. The period of temporary total disability of 9.43 compensable weeks is first deducted from 125 weeks, leaving a balance of 115.57 weeks to be accounted for. Claimant’s permanent partial disability to the foot is 15 per cent and this percentage is taken of 115.57 weeks, the balance of the weeks under the schedule. This gives him 17.34 additional weeks compensation at the full rate of $25 per week, making a total in all of 26.77 weeks for which compensation is allowable. He is not entitled to compensation during the healing period because he did not have an amputation. (See Hering vs. San Ore Construction Co., 130 Kan. 70; Gallagher vs. Menges & Mange Const. Co., 146 Kan. 506.)”
Pertinent provisions of the applicable statute (G. S. 1951 Supp. 44-510) read:
“(3) (b) Where temporary total disability results from the injury no compensation shall be paid during the first week of disability, except that provided in paragraph 1 of this section, but after the expiration of said first week payment shall be made in accordance with the provisions of this act, during such temporary total disability of a sum equal to sixty percent (60%) of the average weekly earnings of the injured workman, . . . but in no case . . . more than twenty-five dollars ($25) per week: . . . (c) Where disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter compensation shall be paid as provided in the following schedule, . . . and the compensation in no case to be more than twenty-five dollars ($25) per week:
“(13) For the loss of a foot, sixty percent (60%) of the average weekly wages during one hundred twenty-five (125) weeks.
“(19) Permanent loss of the use of a . . . foot . . . shall be equivalent to the loss thereof. For the permanent partial loss of the use of a . . . foot . . . compensation shall be paid at sixty percent (60%) of the average weekly wages, not in excess of twenty-five dollars ($25) per week, during that proportion of the number of weeks in the foregoing schedule provided for the loss of such . . - . foot . . . which the partial loss thereof bears to the total loss of a . . . foot . . .; but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such . . . foot . . . exclusive of the healing period.
“(21) Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section, no additional compensation shall be allowable or payable for either temporary or permanent disability: Provided, however, That the commissioner, . . . may, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten percent (10%) of the total period allowed for the scheduled injury in question. . . .”
Rule 51-7-9, of the regulations of the workmens compensation commissioner filed in the office of the revisor of statutes pursuant to G. S. 1949, 77-406, reads:
“In case of an injury to a scheduled member wherein the workman sustains a period of temporary total disability followed by a percentage of permanent partial loss of use of such member, the rule of the commissioner is that the period of compensable total disability is to be accounted for first, then that time deducted from tire scheduled period and the percentage of this remaining time taken as the period of time payment of compensation is to be made.
“For example: In the case of 50% permanent loss of use of a leg there were 21 weeks of total loss of use, or 20 compensable weeks temporary total disability. The 20 weeks are deducted from the 200 weeks provided for in the schedule for the total loss of the leg, which leaves 180 weeks; and the permanent partial loss of use being 50%, this percentage is taken of the 180 weeks, giving 90 weeks, and for this 90 weeks compensation is owing at the full rate, making in all 110 weeks compensation to be paid.”
Counsel for appellant company state the question to be:
“When temporary total disability is followed by permanent partial loss of use of a foot, without complication in healing and without involvement of any other part of the body, should the total number of weeks of compensation due in addition to the number of weeks of compensation paid for temporary total disability, be computed:
(a) By applying the percentage of permanent loss of use found to 125 weeks and deducting from that result the number of weeks of temporary total compensation paid, or
(b) By first deducting the number of weeks of temporary total compensation paid from 125 weeks and then applying the percentage of permanent loss of use found to the remainder?”
and contend the award should have been computed in the following manner:
“The injury was to the foot and we begin with 125 weeks under subparagraph 13. Applying the 15% permanent partial loss of the use of the foot to 125 weeks, under the direction of subparagraph 19, gives 18.75 weeks. Assuming a 10% healing period of the total period allowed for the scheduled injury, we apply 10% to 18.75 weeks, resulting in a healing period of 1.88 weeks. This makes a total of 20.63 weeks which appellant respedtfully suggests is the exclusive compensation, except the medical benefits, concerning which there is no question, to which appellee is entitled and that no additional compensation may be awarded for either temporary or permanent disability under the limitation specifically set forth in subparagraph 21. There was 9.43 weeks total temporary disability for which appellee has been paid, leaving 11.20 weeks owed as a result of the permanent partial disability factor. Appellee is entitled to $25.00 per week for this additional period, making $280.00 over and above the compensation payable for the temporary total disability. Of this the record shows that appellee has received $76.25 leaving $203.75 as the whole amount left owed to the appellee in this case when computed as set forth above, which appellant believes is the correct formula under the statute.”
Appellant concedes, however, that this court has held adversely to its contentions in Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592, and Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79, and that the rule laid down in those decisions was followed in the instant case, but contends the rule there announced has not been followed in later decisions, and has in fact been impliedly overruled, and in support thereof reliance is had upon Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684, 129 A. L. R. 654; Amos v. J. E. Trigg Drilling Co., 153 Kan. 617, 113 P. 2d 107; Rogers v. Board of Public Utilities, 158 Kan. 693, 149 P. 2d 632; Richards v. J-M Service Corp., 164 Kan. 316, 188 P. 2d 939; Riggan v. Coleman Co., 166 Kan. 234, 200 P. 2d 271; Miller v. Massman Construction Co., 169 Kan. 499, 219 P. 2d 429, and Meredith v. Shawver Graham, Inc., 171 Kan. 513, 233 P. 2d 750.
In the Hering case, supra, the workman was temporarily totally disabled as the result of a foot injury for a period of 41 weeks and 4 days, and was thereafter permanently partially disabled to the extent of a one-third loss of use of the foot. It was held that (3) (c) (21), supra, which in substance provides that when a workman is entitled to compensation for a specific injury under the schedule no additional compensation shall be allowed for temporary or permanent disability, did not preclude recovery for both temporary and permanent loss of use of a scheduled member as both results were included in the schedule, and the workman was allowed compensation for the total loss of use of his foot for 41 weeks and 4 days, and for one-third the loss of the use of the foot for the remaining 83 weeks and 3 days of the 125 weeks’ period provided for by the schedule.
In the.Gallagher case, supra, the injury was to a finger. There was a temporary total loss of use for 15 weeks, followed by a fifty percent permanent partial loss of use. It was contended that a temporary total loss of use, followed by permanent partial loss of ■use, was not compensable as a scheduled injury. This court, following the holding in the Hering case, supra, held otherwise, and ruled that the proper method of computing the award was to deduct the 15 weeks of temporary total loss of use from the maximum 37 weeks fixed by the schedule, and to allow fifty percent disability for the remaining 22 weeks — the same method that was followed in the instant case.
Appellant’s contention that subsequent decisions discard the rule announced in the Hering and Gallagher cases, supra, is not sustained by a reference to the facts and holdings in such later cases. We consider it unnecessary to review the facts of each, which are clearly distinguishable from those in the Hering and Gallagher cases and the case at bar.
The method of computation here used does not amount to “pyramiding of compensation,” as inferentially suggested by appellant. Temporary total loss of use of a foot is a scheduled injury, as is also the permanent partial loss of its use. It was entirely proper to make an award for each of such injuries, and the total award was computed correctly. The judgment is therefore affirmed.
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The opinion of the court was delivered by
Burch, J.:
The question in this case is whether a judgment for damages for personal injury was excessive.
About 7:30 in the evening of February 24, 1928, plaintiff stepped with his right foot into an open manhole in a street of the city. He was carried to a near-by house and Doctor Butts was called. He suffered from shock, vomited during the night, suffered great pain, and had some minor abrasions and contusions. The serious injury was diagnosed by Doctor Butts, an osteopath and also a medical practitioner, as subluxation of the innominate bone, causing the right leg to be half to three-quarters of an inch longer than the other, and causing neuritis of the sciatic nerve on the right side. The next day plaintiff was examined by a “regular” practitioner, Dpctor Faust, who diagnosed the injury as a sacroiliac sprain. Doctor Faust testified as follows:
“The main thing wrong with him when I first saw him was trouble in his back. That trouble was right down here in what we call the sacroiliac region. That is where the big bone called the sacrum joins the spine and forms a keystone in the arch there between the big illeum bones. . . . He was very nervous. He had increased reflexes, and seemed to be in quite a good deal of pain. This pain was manifested mostly in his back and particularly to the right side. When we got hold of his leg and tried tó straighten out his leg, he would cringe with pain. That was referred to this part of his anatomy. We call it the sacroiliac region. ... He had a slight increase in his blood pressure.”
Subsequently Doctor Butts reduced what he described as the subluxation. Plaintiff has not been able to do any work since he was injured. He walks with a limp, suffers pain, suffers from nervousness and insomnia, and lost thirty-three pounds in weight between the time of the injury and the time of trial. He had enjoyed good health before he was injured, and earned $150 per month and expenses. At the time of trial he was forty-nine years old, and had a wife and family.
The trial commenced on January 29, 1929, and was concluded on January 31. Doctor Butts examined plaintiff on January 22, and testified as follows:
“Well, he still has considerable sensitiveness in the sciatic nerve. He has that neuritis, and then considerable tenderness in the lower lumbar region. The muscles are very tense and tender. As far as the subluxation was concerned, that was normal. It had been reduced. . . .
“Q. Has he neuritis now? A. Yes, he has neuritis in that right limb. . . .
“Q. Is there any other — is neuritis known by any other name, common name? A. Yes; people often speak of it as rheumatism. . . .
“Would be inclined to say that the local neuritis of the sciatic nerve would be due to the injury.”
Concerning prospect of recovery, Doctor Butts testified as follows:
“Q. Now, in your opinion, is this condition of this man a permanent one, or is it one.that will pass? A. Well, I think it would be inclined to pass away. I don’t think it would be a permanent injury. It is a little hard to tell how quick it will pass away; it would depend upon just how much injury; it is a little hard to determine just how much injury was caused to the nerve fibers themselves; ...
“Q. You have no prognosis as to when he will get well or whether he will ever get well? A. Well, no. I would be inclined to say he will recover from it. It will not be a permanent injury.
“Q. But you don’t know how quickly? A. No, sir. I would not say as to that.”
Doctor Faust testified at the trial, and examined plaintiff the day before he was called as a witness. His testimony is abstracted as' follows:
“Witness made an examination yesterday afternoon ‘in his office, and found practically the same condition in the appearance of his back, although not so acute. . . . Witness thought appellee had a chronic condition in his back, . . .”
“That the chronic condition he found him in will keep him from working,, and the sacroiliac sprain he found there in him would cause him to be nervous and sleepless, and it is a serious condition because it involved one of the weight-bearing joints of his body. That plaintiff has a chronic nagging pain in his sacroiliac joint, and that joint is a weight-bearing joint, and that inhibits his motions and inhibits his work.”
The verdict for plaintiff was for $6,000, and a motion for new trial on the ground the verdict was excessive was denied on April 6, 1929. Considering the nature of the injury, the pain plaintiff suffered, the income he was deprived of month by month, the condition he was in at the time of the trial, and the uncertainty with respect to when he may recover, the court is of the opinion the verdict was not the result of passion or prejudice on the part of the jury, and was not excessive.
The judgment of the district court is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an order setting aside a release and modification of an award made by the commissioner of the workmen’s compensation law on June 17, 1927. A. L. Walker was an employee of The Kansas Gasoline Company and was accidentally injured in the course of his employment, with the result that he was permanently and totally disabled. He was engaged in laying a gas pipe near Winfield, and while lowering the pipe in a ditch the men helping in the work let loose of the pipe, so that the whole weight rested upon him, resulting in a severe injury to his back. He was taken to a hospital, where he was treated for a considerable time. After the accident the .¿Etna Life Insurance Company, the insurance carrier for the gasoline company, began making compensation payments upon the basis of an average weekly wage of $28, and continued paying him $16.80 a week until July 22, 1927, when the company ceased making payments. During that period $554.40 had been paid to Walker. Shortly after the payments ceased, and on August 23, 1928, Walker filed a claim for compensation with the commission, alleging total permanent disability had resulted from the injury, and after notice to the defendant a hearing was had upon the claim before the commissioner. At that hearing much medical testimony was given by doctors who had examined and treated him and upon which the commissioner found temporary total disability, holding that the disability was still total at the time of hearing, but finding that the probable duration of the disability would be eight weeks after the hearing. He awarded the claimant the total sum of $844.80 for the injury, $554.40 of which had been paid, and directed payments of the balance. Within three days an application to the commission for review of the award was made by Walker, supplemented by another a few days later, in which he alleged gross inadequacy of the award, stating that the disability was increasing and that it would be impossible for him to resume work at the time fixed by the commissioner as the time of recovery from the disability. Before the hearing of the application for a review, and on November 20, 1928, an agreement was made between the parties stipulating that the plaintiff would be paid $400 additional to the amount already received, making in all $954.40. The balance was paid and Walker signed a receipt and also a release of all claims for compensation for the injury. The receipt and release were approved by the commissioner, and an order of dismissal of the proceeding was made.
On March 26, 1929, Walker filed with the commission an application for a review and an order setting aside the receipt, in which he alleged that the final receipt and release had been obtained by fraud and mutual mistake, and stating that the settlement made was grossly inadequate and that he was entitled to compensation for permanent total disability. A hearing was had on this applica tion on April 22, 1929, at which time the testimony of a neutral physician was taken. Shortly after the hearing the commissioner made a decision canceling the receipt and release executed by the claimant upon the grounds of mutual mistake and awarding claimant temporary total disability not to exceed 415 weeks, deducting from that amount the sums already paid by the employer. An appeal was taken from this award to the district court, and that court on September 16, 1929, affirmed the award of the commissioner.
The defendants contend that there was no jurisdiction in the commission to set aside an award or an agreed settlement, although the compensation may be grossly inadequate or the agreement had been secured by fraud or mutual mistake. They urge that we must look to the compensation act alone to find power in the commission to set aside or modify an award or to set aside an agreement of a release from liability, and if it is not found in that act it does not exist, and the commission or the courts are powerless to supplement the act or provide such a remedy. It may be conceded that the compensation act was intended to be and is complete in itself, and for the parties who are within its provisions it is exclusive. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193; Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233.) The power to review or modify an award or set aside an agreement as to the compensation to be paid, if a right to it exists, must be found in the compensation act. From the original compensation law enacted in 1911 until the later enactment of 1927 it has been the legislative policy of the state to regulate compensation awards and agreements as well as releases from liability by modifications and cancellations through the machinery provided by the compensation law. (Laws 1911, ch. 218, §§ 28, 29, 32.) Amendments to the provisions as to agreements, releases and final receipts were slightly changed in chapter 226 of the Laws of 1917, §§ 14, 15. These provisions remained in force until the new law of 1927 was enacted, which took from district courts some of the powers which had been conferred on them and vested them in the commission, but that act retained the provisions as to modifications, reviews and cancellations of awards, releases and final receipts substantially as in the earlier statutes. The later act provides that:
“At the time of making any final payment of compensation the employer shall be entitled to a final receipt for compensation, executed and acknowl edged or verified by the workman, which final receipt may be in form a release of liability under this act, and every such final receipt for compensation or release of liability or a copy thereof shall be filed by the employer in the office of the commission within sixty (60). days after the date of execution of such final receipt or release of liability, and if the employer shall fail or neglect to so file such final receipt or release of liability, the same shall be void as against the workman. The commission shall accept, receipt for, and file every agreement, finding, award, agreement modifying an award, final receipt for compensation or release of liability or copy thereof, and record and index same, and every such agreement, finding, award, agreement modifying an award, final receipt or release, shall be considered as approved by the commission and shall stand as approved unless said commission shall, within twenty (20) days of the date of the receipt thereof, disapprove same in writing and notify each of the parties of its disapproval, giving its reasons therefor, sending a copy of the same to each of the parties by registered mail: Provided, No proceedings shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the commission.” (Laws 1927, ch. 232, § 27.)
This section provides for the final receipt and release of liability which is to be filed with the commission within sixty days after it is executed; the filing of the receipt and agreement and the keeping of a record of the same; the approval or disapproval by the commission within a fixed time, and the proviso that no proceedings shall be instituted by either party to set aside the agreement or release unless commenced within one year after the date of the agreement. Section 28 following provides for the review of an award or agreement for good cause shown where the award has been wrongfully obtained or the committee or arbitrator acted without authority or where the award is excessive or inadequate, providing that it may be modified upon such terms as may be just upon grounds that are stated. This covers all the provisions for compensation except where the award of compensation is a scheduled one. The section reads:
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, and in connection with such review the commission may appoint a physician or surgeon, or two physicians or surgeons to examine the workman and report to the commission and the commission shall hear all competent evidence offered and if it shall find that the award has been obtained by fraud or undue influence, or that the committee, or arbi trator, making the award acted without authority, or was guilty of serious misconduct, or that the award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations hereinbefore provided in this act; and if the commission shall find that the workman has returned to work for the same employer in whose employ he was injured or for another employer and is earning the same or higher wages than he did at the time of the accident or injury, or is gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the accident or injury, or shall find that the workman has absented himself and continues to absent himself so that a reasonable examination cannot be made of him by a physician or surgeon selected by the employer, or has departed beyond the boundaries of the United States, the commission shall cancel the award and end the compensation: Provided, That the provisions of this section shall not apply to an award of compensation provided for in the schedule of specific injuries in section 10 of this act.” (Laws 1927, ch. 232, § 28.)
It is to be observed that the steps provided for in section 27 are to be taken before the commission and section 28 provides for a review of the matters enumerated in section 27; that is, of an award or modification thereof agreed upon by the parties, and may be reviewed by the commission for good cause shown upon the application of either party. To that end the commission may appoint- physicians and surgeons to examine the injured workman, who are to report to the commission. The commission then is authorized to hear all competent evidence and upon the evidence it is to find whether the compensation is excessive or inadequate, whether the committee or arbitrator acted without authority or was guilty of serious misconduct, and the statute indicates that an award made or agreed upon is to be reviewed by the commission for any good cause shown. In determining whether the award agreed on is excessive or inadequate it will necessarily have to consider and may set aside an agreement or a release, if the facts warrant it, in order that proper and just compensation shall be paid. Under the earlier acts it was held there was power in the court to set aside a release where it was based on mutual mistake or fraud and where the compensation is grossly inadequate of excessive. It has been held that a release, from further liability under an agreement by the parties is such a release as was contemplated by the statute, and as the instrument was an agreement it was subject to be set aside for reasons named m the statute concerning agreements and for any other reason known to the common law. It was further held that if the compen sation was grossly inadequate and there was mutual mistake of fact, as to the extent of the injuries, the agreement and release should be set aside. (Weathers v. Bridge Co., 99 Kan. 632, 162 Pac. 957. See, also, Dotson v. Manufacturing Co., 102 Kan. 248, 169 Pac. 1136; Wolf v. Packing Co., 105 Kan. 317, 182 Pac. 395; Miller v. Gas & Fuel Co., 108 Kan. 124, 129, 193 Pac. 896; Crawn v. Packing Co., 111 Kan. 573, 207 Pac. 793; Cramer v. Railways Co., 112 Kan. 298, 211 Pac. 118.)
Defendants argue that no procedure is provided for setting aside the release and therefore the commission was without authority to take such action. The fact that a detailed procedure is not stated is no reason why the relief provided for may not be granted. The act fairly implies that agreements and releases may be set aside if grounds therefor are shown. So far as procedure is concerned, section 23 of the act of 1927 provides:
“The committee, arbitrator, commission or court, shall not be bound by technical rules or procedure, but shall give the parties reasonable opportunity to be heard and to present evidence, and shall act reasonably without partiality,” etc.
The ordinary procedure for hearings before the commission may. be used and its findings and decisions made without regard to technical rules of procedure. The fair implication of the act is that any procedure which is appropriate and not prohibited may be employed. The setting aside of a receipt or release is contemplated by the statute, and from the origin of the compensation law it had been held that a final receipt and release might be set aside upon sufficient grounds. This was accomplished under the old law in a review by the district court without definite provisions of procedure. Under the new law the same remedy is given, but the exercise of the power has been transferred to the commission and it may now exercise the powers formerly vested in the district court, with this exception and the further limitation of one year within which an application to set aside an agreement or release must be made. Substantially all the provisions of the earlier acts in this respect have been retained in the later one. Manifestly the legislature in placing the review in the commission instead of the court was endeavoring to make the remedy still more simple, summary and complete, and that a conclusion of the matter might be reached with less delay. The act of 1927, in providing for the administration of the law, enacted that—
“Whenever the word ‘commission’ is used in this act it shall be construed to mean the public service commission of the state of Kansas, and full jurisdiction and power is hereby conferred upon such public service commission for the supervision of the administration of this act.” (§ 33.)
In another section it is provided that—
“All hearings upon all claims for compensation under this act shall be held by the commissioner or examiner in the county in which the accident occurred unless otherwise mutually agreed,” etc. (§ 34.)
There are other provisions in the act pointing to the purpose that the commission was to determine all questions arising on reviews, awards, agreements and releases theretofore conferred on the district court. It was competent for the legislature to place this power on the commission or other tribunal or officer. In a case where it was contended that an arbitrator did not have the power to consider and determine the validity of a release, it was said:
“It is competent for the legislature to confer judicial power upon any tribunal or court inferior to the supreme court, and even if an arbitrator is regarded as an independent court, no reason is seen why he may not be vested with jurisdiction to hear and determine any question pertaining to the right of a workman to compensation which has been expressly referred to him in the order of appointment.” (Crawn v. Packing Co., 111 Kan. 573, 577. )
There it was determined that an agreement and release given under a mutual mistake of the parties as to the nature and extent of the injury of the workman might be set aside.
We conclude there was authority in the commission to set aside the agreement and release and to make such an award as it determined was fair and equitable.
There is a contention that the evidence did not warrant the setting aside of the release and the increase of the award. Within the authorities cited and the evidence, which it is unnecessary to set out at length but which is deemed to be ample, we hold that the findings of the commissioner, which were approved by the district court upon appeal, must be upheld.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by plaintiff from a judgment sustaining a demurrer to his amended petition. The action is against F. F. Fritchen, M. May, M. Lutgen, C. F. Reinking and E. D. Hobbie as individuals. These persons were formerly the directors of the Home State Bank of Tipton, Kan., which bank failed in November, 1928. The legal question argued by appellant is the statute of limitations.
In the amended petition plaintiff alleged, in substance, that on October 3, 1924, he purchased for $5,500 thirty-five shares of stock in the Home State Bank of Tipton from E. C. Mueller, its cashier, with whom he had a written agreement, a copy of which is attached to the petition, by which Mueller agreed and guaranteed that the signatures on all notes in the bank were genuine, and that the amounts due thereon were correct, and that certificates of deposit, as shown by the ledger, were correct, and Mueller agreed to pay any loss sustained by plaintiff if those things were not true; also any loss plaintiff might sustain by reason of an item of $2,203.29 shown by. the books of the bank to be on deposit in the Union National Bank of Beloit; also any loss from real estate carried at $10,400, and from certain bonds carried as assets, and from overdrafts shown by the bank books, and from any liability of the bank not shown on its books, and from loss on notes held by the bank. It was further alleged that on October 4, 1924, the directors of the bank, at their meeting, checked all accounts of the bank and found them to be correct; also passed on and approved all notes, “guaranteeing same to A. Diebolt under his purchase agreement with C. C. Mueller.” At that meeting of the directors a five per cent dividend was declared. Mueller resigned as cashier and plaintiff was elected cashier at a salary of $200 per month. Plaintiff further alleged that the notes in the bank were not worth their face, that the real property was carried at too high a value, and that instead of the Union National Bank of Beloit owing the Home State Bank of Tipton $2,203.29 the receiver of the Beloit bank had a claim against the Tipton bank of approximately $50,000 because of notes sold to the Beloit bank and guaranteed by the Tipton bank, which claim was finally settled by the Home State Bank of Tipton paying to the receiver of the Union National Bank of Beloit $23,000, and that at a meeting of the directors of the Home State Bank of Tipton on March 10, 1925, the directors disapproved and charged off notes of the face value of $26,518.20 and revalued the real estate owned, depreciating it $3,400; that among the notes so charged were notes of the directors aggregating $7,500 payable to the bank and signed by these defendants, who were the directors of the bank; that while these notes were charged off the directors represented to plaintiff that they would be paid if the amount of them ever became necessary to the maintenance of the bank. Plaintiff further alleged that instead of the bank being solvent at the time he purchased stock therein and became the cashier thereof it was, in fact, insolvent; that plaintiff learned of that condition within a few months, but because his money was invested in the bank and “. . . on account of the urgent requests of the defendants and the oral agreements made with him at nearly every meeting of the directors, and at nearly every opportunity that he had to talk with them about the matter, that they would stand behind said bank and would hon estly and faithfully meet any requirements in the way of cash or securities that might be needed at any time to keep the said bank going and to meet its obligations,” he stayed with the bank for more than four years as its cashier, and during that time so managed the business of the bank as to reduce its liabilities $40,000; that on November 9,1928, notwithstanding a loss of about $5,400 caused by the mismanagement of an assistant cashier, the bank would have been solvent had the directors of the bank paid their notes to the bank which had previously been charged off, and which, with interest, at that time amounted to about $12,500. Plaintiff further alleged that while he was cashier, in order to keep the bank going, he purchased thirty-two additional shares of stock, for which he paid $3,000, but the time and specific circumstances under which that purchase was made are not alleged. Plaintiff further alleged that because of the failure of defendants to pay their notes at the bank, which were in the bank at the time he purchased it and later charged off, the bank was forced to close in November, 1928, resulting in the loss of $8,500, which he had invested in the bank, subjected him to a liability of $6,700 on his stock, and damaged his good name and reputation as a banker, all in the sum of $40,200, for which he prayed judgment.
The petition does not state a cause of action on plaintiff’s contract with Mueller, for this action is not brought against Mueller. Neither does the petition state a cause of áction against the Home State Bank of Tipton by reason of the action of the board of directors of that bank on October 4, 1924, or any subsequent action of such board of directors, for neither the Home State Bank of Tipton nor its directors are made parties defendant. If we view the petition as stating a cause of action for deceit on the part of Mueller and of the directors of the bank in their representations made to the plaintiff on October 3 and 4, 1924, it would seem that the action should be against Mueller or the bank for such deceit, and neither of them is a defendant here. But if we treat the deceit as being that of the individual defendants here, who were directors of the. bank, rather than their deceit as such directors, then the petition discloses that this deceit was discovered within a few months and as early as March 10, 1925, and the two-year statute of limitations would apply (R. S. 60-306, clause 3). Appellant apparently takes still another view, namely, that there were repeated and con tinued promises of the board of directors of the bank at practically every meeting, and of the individual members of the board of direc' tors at other times, that the bank would collect the notes signed by its directors, and charged off March 10, 1925, whenever the money represented by them was needed to sustain the bank. Analyzing that contention, the promises made by the board of directors at their meeting were promises of the bank, if enforceable promises of anyone, rather than the individual promises of the members of the board, and since the bank is riot a party defendant here no cause of action is stated on that. This leaves from all of the allegations of the petition nothing but individual promises made from time to time by the defendants, or some of them, who were in fact members of the board of directors of the bank. But it should be noted that the notes of the directors never were payable to the plaintiff — they were made payable to the bank — and it is difficult to see from the allegations of the petition that any individual promises were made by the defendants to plaintiff. If such promises were made the petition alleges no consideration for them, and for that reason they would be insufficient to support an action. Taken as a whole, we see no ground on which the petition states a cause of action in favor of plaintiff and against the defendants.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages to real estate resulting from removal of a service station. Plaintiffs were defeated, and appeal.
E. S. Gregory, owner of a lot in the city of Pratt, leased sixty feet of the east end of the lot to the Golden Rule Oil Company, for a gasoline, kerosene and lubricating oil service station. The lease was in writing, the term was for five years, and the rent was $20 per month, payable monthly, beginning July 1, 1919. The oil company erected and equipped a filling station on the lot, and placed Gregory in charge as agent, under a written contract signed the day the lease was signed. In September, 1920, plaintiffs purchased the lot, and received from Gregory a general warranty deed. Shortly before the lease expired the oil company commenced to remove the improvements. Work was halted by an injunction. The injunction was dissolved, and the oil company removed the improvements. Action for damages followed. The case was tried by the court, which made findings of fact and conclusions of law. Plaintiffs moved for modification of the findings of fact and conclusions of law. The motion was denied in part. A motion for new trial was filed, and denied.
The motion to modify the findings of fact related chiefly to details of evidence. Some of them the court may not have credited, and the others are not important. Findings 18 and 20 read as follows:
“18. The court finds that at the time said lease was made, and by the conduct of the parties thereafter, it was the intention that the Golden Rule Oil Company should remove its property at the expiration of its lease.
“20. That no negligence was proved as to method or manner of removal by defendant.”
The motion asked that these findings be stricken out because they were not sustained by evidence. They were well sustained by evidence. Finding 18 was not a conclusion of law as the motion to strike asserted. Whether the conclusions of law should have been in favor of plaintiffs, as the motion asserted, will be considered later. Nothing more need be said about the motion to modify.
The motion for new trial is not abstracted, the grounds for the motion are not stated, and in strictness the only question before the court is whether the facts found warrant the conclusions of law. The discussion of the proceedings will, however, take a little wider range.
The first cause of action stated in the petition was for damages for removal of the improvement, and not for damages occasioned by manner of removal. The lease was a comparatively short time •lease. The improvement was installed by a tenant, for the purpose of trade. The nature of the improvement was such that it could be regarded as personal property. The lease contained a provision that the oil company would pay the taxes on improvements which it erected on the lot, and Gregory would pay the taxes on the land. This provision was necessarily based on recognition and acknowledgment of the fact that the oil company owned the improvement as personal property, which did not become part of the realty, and the taxes were paid accordingly. Gregory went into possession and operated the station under a written contract in which he agreed to take good care of the improvements of the oil company, and to give possession of the station. No specific agreement that the improvement should pass to the landowner at the end of the term was proved or found by the court. An inference that the oil company could not remove its property but would lose it at the end of the term, would deny a right inherent in ownership, and would be incompatible with the nature of the transactions between lessor and lessee. As between landlord and tenant, the law is extremely indulgent to the tenant with respect to removal of structures annexed for purposes of the tenancy. (Wiggins Ferry Co. v. O. & M. Railway, 142 U. S. 396.) There is good authority that, under circumstances less cogent than those disclosed by the findings of fact, the law would imply right of removal (11 R. C. L. 1083). In this instance the court’s inference of fact, expressed in the 18th finding, that intention that the improvements should be removed was manifested, was well sustained by the evidence.
Plaintiffs knew of the lease and what it contained, and knew Gregory was operating the service station as agent for the oil-company, when plaintiffs purchased. Plaintiffs made no inquiry of the oil company respecting its rights. Plaintiffs offered to prove that before they purchased Gregory told them the service station went with the land. The evidence was rejected. Gregory’s statement was not within his authority as agent for the oil company, was a self-serving representation as vendor, and of course could not bind the oil company. Under these circumstances plaintiffs were not purchasers without notice.
' The result of the foregoing is, the district court’s conclusion of law that plaintiffs could not recover was well sustained.
The court also denied recovery on the ground of former adjudication. The finding of fact and the conclusion of law relating to that subject follow:
"9. A short time before the expiration of the lease, the defendant started to tear down the station building, and plaintiffs filed a petition for an injunction to prevent the same, and in the absence of the judge of the district court of Pratt county, they obtained a temporary injunction from the probate judge of Pratt county. On the motion of the defendant to dissolve the injunction for the reason that defendants owned said property, made to the judge of the district court, a full hearing at chambers was had on the motion, and evidence was introduced by both parties concerning the intention of the parties at the time the lease was made as to right of removal, and the judge made an order dissolving the temporary injunction and granting the plaintiffs five days to appeal. The order dissolving the temporary injunction gave no reasons or grounds for the dissolution. No appeal was taken, and thereafter the injunction application was dismissed. The defendant thereupon proceeded to tear down the station building by talcing off the canopy top as a whole and by breaking apart and removing the cement blocks, breaking up and destroying the cement walks and driveways, and hauling away the blocks and canopy top.”
“1. The court concludes as a matter of law that the plaintiffs are estopped from recovering under their first cause of action, for the reason that the matters herein have been adjudicated in case No. 4640 in the district court of Pratt county, Kansas.”
The sole contention of plaintiffs relating to former adjudication is that the subject of damages Avas not litigated and could not be litigated in the injunction suit, because no damage had been done. This contention does not go to the substance of the matter. The only practical difference between the two suits consisted in the nature of the relief sought. One was commenced to prevent what occurred, and the other was commenced for compensation for what occurred. The cause of action for relief by way of injunction was essentially identical with the cause of action for relief by way of damages. The determining question in each case was, Did the oil company have a right to remove the improvement? The specific issue was raised and tried in the injunction suit, and the general judgment for the oil company determined the issue adversely to plaintiffs.
A second cause of action pleaded in the petition related to damages to a structure partly on the leased premises, not belonging to the oil company. Early in 1920 Gregory inclosed the service-station pumps in a brick pump house, an agreement was indorsed on the original lease that the oil company would pay additional rent for the pump house, and the oil company did so. While the oil company was removing one of its tanks, the east wall of the pump house subsided. The details of the evidence relating to the subject need not be recited. There was testimony that plaintiffs were notified before the work of removal commenced; that Hardesty was told to come down and protect his building; that both plaintiffs were present while the work was in progress; that neither of them made any suggestion concerning how the tanks should be removed; and that plaintiffs made no effort to protect the pump house. As indicated, the court found the oil company was not negligent with respect to method or manner of removal.
The oil company had the right to remove the tanks. Removal was a lawful act, and no, liability could result from performance of the act according to proper method and in a careful manner. If proper removal should occasion some unpreventable injury to the land or some structure upon it, the injury would not give rise to a cause of action for damages. If proper removal might occasion some preventable injury, the choice lay with plaintiffs, after notice to them, whether they would take the risk or adopt preventive measures. The oil company’s duty did not extend beyond adoption of proper method and execution of the work in proper manner, and plaintiffs may not recover damages for what they might have prevented.
Plaintiffs do not dispute general soundness of the principles of law just stated. Plaintiffs merely contend the pump house was constructed in such a manner as to effect conversion of the tanks, and the oil company was boiind to abandon them and sue in trover. The court found plaintiffs had notice of the removal of the tanks from under the pump house, and that, although they were cognizant of what was being done, they made no effort to brace, dr shore up, or otherwise protect their own building. There is no finding that it was not practicable to remove .the tanks, or that it was not practicable for plaintiffs to prevent the injury which occurred by simple protective measures. The oil company was not at fault, and this court is not authorized to dictate to the oil company that it should not have removed its tanks, but should have marketed them to Gregory.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
This is an original proceeding in mandamus brought on relation of the attorney-general against the state auditor, seeking a writ to compel him to register bonds in the amount of $69,200 issued by Kansas City, Kan., under the provisions of chapter 132 of the Laws of 1929. At the time the bonds were tendered to the state auditor for registration there was pending in the district court of Wyandotte county an injunction proceeding asking that the city be enjoined from issuing bonds under the act; on the'ground that the. law was unconstitutional. Under these circumstances, being confronted with the pending litigation involving the constitutionality of the law, the state auditor deemed it unwise to register the bonds until final disposition of the action in the district court. Upon his refusal to register the bonds this action was brought.
The principal contention of the defendant is that section 1 of the act violates the requirements of section T7 of article 2 of the constitution of the state of Kansas. Section 1 of chapter 132 of the Laws of 1929 reads:
“That the governing body of any city of the first class in the state of Kansas now having or hereafter acquiring a population of more than 115,000 inhabitants and located in a county having an assessed valuation of less than $190,-000,000 shall have powers by ordinance duly passed by a majority vote of said governing body, to designate and establish certain streets or avenues in said cities as main traffic ways.”
Section 17 of article 2 of the constitution of the state of Kansas reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
The defendant argues that the act is a special one and does not operate uniformly throughout the state. It is pointed out that according to the 1929 census the population of Kansas City, Kan., is 118,159 and the assessed valuation of Wyandotte county is $166,-902,596; that for the same year the figures show Wichita as having a population of 108,117, and Sedgwick county an assessed valuation of $209,561,686. It is therefore argued that when Wichita reaches a population of 115,000 the act cannot apply to it because Sedgwick county already has an assessed valuation of more than $190,000,000, the maximum specified in the act.
Does it necessarily follow that the law is a special one and not of uniform operation throughout the state?
The case of Railway Co. v. Cowley County, 97 Kan. 155, 155 Pac. 18, considered an act under which the classification was based both upon population and assessed valuation. The court said:
“Under the provisions the rates decrease as the valuation ascends, but it is provided that when the population exceeds thirty thousand and the valuation is less than seven millions an increased rate may be levied. It is insisted that this feature of the law renders the act inoperative. A classification on the basis of population and on valuations is frequently made and is sustained where it is based upon substantial distinctions which are reasonably germane and pertinent to the subject matter. (Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781.) If there is an essential difference between counties having a large population and a low valuation, and those oounties where the population is more nearly in proportion with the valuation, then it may be said that there is a reasonable basis for the classification. It is not easy to find an absolutely just basis for taxation, but it is generally recognized that equality of taxation can only be attained by classification.” (p. 156.)
Further on the court said:
“Is there a substantial distinction for the classification that has been made for counties which have a great number of people and a small valuation of taxable property? It appears that Cowley county had a population of about thirty-four thousand and that the assessed valuation of the property was less than seven millions. It' is well known that the salaries of officers increase as the population of a county increases and also that other expenses of government are augmented as the county becomes more populous. This condition then appears to afford a reasonable basis for a classification so that counties of that' class may be able to meet the general expenses under the prescribed rates.
“It is said that the fixing of the limitations of population at thirty thousand and the valuation at seven millions is arbitrary and that there is little reason for a different rate in counties where the population is thirty thousand instead of twenty-nine thousand, or the valuation is a little less than seven millions instead.of a 'little more. It may be that there is little difference where the population is a few more or less than the number fixed, or a little more or less in the valuation than that prescribed by the act; but if there is a real basis for a distinction where the population is high and the valuation low it devolves upon the legislature to determine where the limitation shall be placed, and if not obviously unreasonable their determination will be valid. In such a case the limitation must be placed somewhere, and it belongs to the legislature to decide what the necessities of the municipalities are and to fix the line where the limitation shall be placed.” (p. 157.)
Again, on page 158, the court said:
“The function of the court is not to decide whether the classification is the wisest or the best that could be made, but only to inquire whether it rests on a substantial basis .and is germane to the purposes of the law. The court can go no farther than to decide whether the legislature has kept within the limits of the constitution.”
In State, ex rel., v. Russell, 119 Kan. 266, 237 Pac. 877, this court passed upon an act classifying counties upon the basis of population, and in the opinion the court quotes from State v. Downs, 60 Kan. 788, 57 Pac. 962, as follows:
“'An act general in its provisions, but which can presently apply to only one city on account of there being but one of requisite population or other qualification, but which was designed to and can in all substantial particulars apply to other cities as they become possessed of the requisite population or other qualification, cannot be regarded as a special act.’ ” (p. 267.)
On page 268 the court continued:
“The classification of the statute under consideration is based on population. The statute may now apply to only one county; next year it may apply to two; in the future it will apply to any county which comes within its provisions. For that reason the statute is general and operates uniformly in all counties to which it' applies. It does not violate section 17 of article 2 of the constitution of this state.”
See, also, Baird v. City of Wichita, 128 Kan. 100, 276 Pac. 77.
In the instant case it cannot be said that because the act now applies to only one city in the state that it cannot operate uniformly throughout the state as to all cities coming within its classification arid to which it applies. The contention that the law can only apply to Kansas City, Kan., is not tenable. While it is the only city to which it now applies the act'under Consideration will apply to other cities as they become possessed of the requisite population and the counties in which they are situated meet the requirements as to valuation. It does not necessarily follow that it cannot apply to Wichita when that city attains a population of 115,000 because at the present time Sedgwick county has an assessed valuation of more than the maximum authorized by the statute. It was suggested in the oral argument that Sedgwick county has oil fields and that its valuation has thereby been greatly increased. It is a matter of common knowledge that oil pools become exhausted in time, and it is entirely conceivable, therefore, that the valuation of the property in Sedgwick county may in the future shrink to $190,000,000. Again, the fact that the act does not apply to a particular city which possesses one of the qualifications but not the other does not render it unconstitutional. It is sufficient if the statute is general and operates uniformly upon all cities which meet its requirements and come within its classification.
Defendant contends that the classification made by the statute constitutes “unreasonable, unauthorized and arbitrary limitation on the scope and application of the act.” The legislature may well have had in mind that as to cities of 115,000 or more inhabitants, situated in counties having more than $190,000,000 valuation, it would in time, whenever the necessity arose, create still another classification. It may well have had in mind that as to the so-called arterial traffic ways in cities so situated it would be advisable and proper to impose on the county at large a part of the burden of improving such traffic ways. The conditions with reference to the classification which it desired to make were solely matters for legislative determination. At any rate, in view of the foregoing, we conclude that the legislature acted on legitimate grounds of distinction in this instance as was pointed out in Baird v. Wichita, supra. We determine, therefore, that the act in question does not violate section 17.of article 2 of the constitution of the state of Kansas.
We have also examined further contentions of the defendant that the act under consideration, chapter 132 of the Laws of-1929, violates section 1 of article 2, section 1 of article 3, section 1 of article 12, and section 16 of article 2 of the constitution of the state of Kansas, and we conclude that it does not,, violate any of these provisions of the constitution.
It is therefore ordered that judgment be entered in favor of the plaintiff and the writ of mandamus allowed as prayed.
Harvey, ¿., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff bank brought this action against defendant to set aside conveyances to two eighty-acre tracts of land on the ground that the title thereto had been vested in defendant to hinder and delay plaintiff in the enforcement of its rights against defendant’s husband, who was a judgment debtor of the bank.
Plaintiff’s petition alleged the pertinent facts; that on September 7, 1928, it recovered a judgment against A. F. Aderhold for $8,-643.67; that $800 had been paid thereon; that an execution against the property of the judgment debtor had been returned unsatisfied; that on July 30,1928, A. F. Aderhold had transferred and conveyed to the defendant, Ida E. Aderhold, his wife, eighty acres of land, and on December 14, 1927, Aderhold had contracted to purchase another tract of eighty acres and paid $1,000 thereon and caused the land to be conveyed directly to defendant, and that the purpose of both these transfers of realty was to hinder, delay and defraud the plaintiff.
Defendant answered with a general denial and alleged that prior to 1912 she had intrusted to her husband the handling of $3,500 of her own money, and that on November 4, 1912, he purchased one of the eighties for her with part of her money and took title thereto in his own name without her consent. She further alleged that on December 14, 1927, her husband, A. F. Aderhold, purchased with her funds the second eighty acres involved in this action for her and that she had given a mortgage thereon for $2,260 to raise funds to pay the balance of the purchase price, and that the mortgagee had transferred the mortgage to this plaintiff, and that it had accepted from her the accrued interest on said mortgage, $135, whereby plaintiff was estopped to question or deny that she was the bona fide owner of the legal and equitable title to that property.
On this joinder of issues the cause was tried by the court. It was shown that as long ago as 1909 the defendant received $3,500 from the sale of a tract of land belonging to her, and that she intrusted that sum to her husband, A. F. Aderhold, to invest for her benefit as he should see fit. In 1912, with part of this money, he purchased the first tract of land in dispute (E½, NW¼, 26-23S-20W), and took title thereto in his own name. She did not learn of that fact for some years. He paid the taxes and collected the rents, sometimes giving her all of the rent. Sometime in .1927 she requested him to convey the tract to her, and in July, 1928, he did so.
In December, 1927, A. F. Aderhold negotiated for the purchase of another eighty-acre tract (S½, SW¼, 32-24S-19W), and made a payment of $1,000 thereon, and caused the property to be conveyed to defendant, Mrs. Aderhold. In 1924, and for many years prior thereto, A. F. Aderhold had followed the career of a public officer or quasi public officer, as county clerk, county treasurer, bank cashier and postmaster, and was not engaged in business where people dealing with him would need to concern themselves with his credit rating. In 1924 a son of A. F. Aderhold embarked in business as a dealer in automobiles, and sought and obtained credit in substantial sums from the plaintiff bank. This credit, which ranged from $5,000 to $11,000 continuously from April, 1924, to August, 1928, was evidenced by promissory notes given by the- son and renewed from time to time, and the father, A. F. Aderhold, signed the notes with the son as joint maker and surety. In 1928 the son became a bankrupt, and the bank recovered judgment -against the father, A. F. Aderhold, for $8,621.57 on certain of the notes signed by father and son. A small dividend from the'bankrupt’s estate was applied on this judgment and the father turned over to the bank a certain property worth $800, which reduced that judgment to that extent. Execution issued on the judgment in favor of the bank against the property of A. F. Aderhold was returned unsatisfied. Two of the findings read:
“9. It was the general reputation in the community, at all times from 1924 to July, 1928, that A. F. Aderhold was the owner of the E% of the NE% of section 26, township 23, range 20, and the plaintiff bank relied upon such general reputation in extending credit to A. F. Aderhold. In the year 1927 the plaintiff bank made an examination of the record title of the land above described and partly relied upon such record in extending credit to A. F. Aderhold thereafter. At the time of this examination of the record, the indebtedness of A. F. Aderhold to the bank was approximately .as large as it was at any time from 1924 to July, 1928.
“10. At the time A. F. Aderhold executed the deed to Ida E. Aderhold conveying the real property above described, and at all times during the year 1927, he did not have sufficient assets to pay the amount of the notes upon which he was liable to the plaintiff bank.”
On these findings the trial court reached this conclusion o'f law:
“The court concludes' as a matter of law, that the defendant, Ida E. Aderhold, has no right, title or interest to the S% of the SW% of section 32, township 24, range 19, in Edwards county, Kansas, and that the same is the property of A. F. Aderhold, and should be sold as provided by law to satisfy the judgment of the plaintiff bank against the said A. F. Aderhold. That Ida E. Aderhold.is the owner of the E½ of the NE¼ of section 26, township 23, range 20, in Edwards county, Kansas, and that the plaintiff bank has no lien thereon; and that the costs of this action should be divided equally between the parties hereto.”
Both parties appeal. Plaintiff contends that under the trial court’s findings of fact defendant was estopped to claim title to eighty acres decreed to be her property. Defendant’s counter con tention is that the court erred in decreeing that the second eighty-acre tract standing in her name was her husband’s property and subject to execution for the satisfaction of his debts.
Touching the first of these appeals, the plaintiff argues that the defendant is estopped to claim title to the first eighty acres because for many years she was quite indifferent as to how he invested her money. While she did not know in 1912 he had bought that land with her money or that he had taken title thereto in his own name, yet he recorded his title that year and she did learn of the fact within a few years and was content to leave the title in his name until about a year before his financial troubles began to overwhelm him. Then she did ask him to transfer the title to her, but did not insist on it, and he did not transfer it until four days before the bank brought suit against him which speedily culminated in a default judgment for $8,621.57. It was a matter of general repute in the community that A. F. Aderhold, defendant’s husband, was the owner of the property as well as the record title holder. In 1927 the bank consulted the county records and thereby learned that the title to the land stood in the name of A. F. Aderhold. Partly on his reputed ownership and partly upon the record title the bank extended credit to A. F. Aderhold.
The foregoing facts standing by themselves would go a long way towards making out a case of estoppel against the wife, but other facts must not be overlooked. Since there is no dispute about the fact that Mrs. Aderhold had intrusted $3,500 of her own money to her husband to handle as he saw fit, it cannot operate to her prejudice that she did not hold him to a strict and regular accountability therefor (Bank v. Haid, 97 Kan. 297, 301, 155 Pac. 57; Markham v. Waterman, 105 Kan. 198, 182 Pac. 546), except in so far as third parties may have thereby been misled or prejudiced by her attitude. (Jacquart v. Jennings, 118 Kan. 224, 235 Pac. 101.) But while the bank extended credit between 1924 and 1928 partly in reliance on the general reputation in the community that A. F. Aderhold owned the eighty acres, there is no evidence that Mrs. Aderhold knew that her husband was borrowing money from the bank. So far as her knowledge is concerned, he was not embarked in any business in which he would need credit. He had been an officer and salaried man, not a business man, practically all of his mature life. Indeed, while A. F. Aderhold signed the notes as joint maker with his son, and eventually became liable as such, the credit was arranged for the son’s benefit and not for the benefit of A. F. Aderhold. And while the bank consulted the county records in 1927 and there learned that the title to the eighty acres stood in his name, and the bank thereafter partly, relied on that fact in extending credit to Aderhold, yet the finding of the court quoted above is that Aderhold’s indebtedness was approximately as large at the time it consulted the record as it was at any time between 1924 and 1928. Indeed, another finding of the court, too long for incorporation here, shows that at various times before the bank consulted the record it was carrying Aderhold for larger sums, thus: On August 20, 1925, the credit extended was $11,350; on August 20, 1926, it was $11,000. On July 29, 1927, about the time the bank consulted the record, the credit extended was $9,350; and it never thereafter rose to the latter figure, but oscillated between $7,425 and $9,300 until the action to reduce Aderhold’s indebtedness to judgment was begun, August 3, 1928.
Did this situation of affairs create an estoppel against Mrs. Aderhold?
In Carithers v. Weaver, 7 Kan. 110, 125, it was said:
“Estoppels in pais are upheld to prevent gross injustice in cases where one party, having rights in property, by representations or conduct in reference thereto, fraudulently induces another to part with value for that property, and thereafter insists on those rights to deprive the latter of both value and property.”
In Chellis v. Coble, 37 Kan. 558, 15 Pac. 505, it was said:
“In order to constitute an equitable estoppel with reference to the title of property, it must appear that the party to be estopped has made admissions or declarations, or .done acts with the intention of deceiving the other party with regard to the title, or with such carelessness or culpable negligence as to amount to a constructive fraud, and that at the time of making the admissions or declarations, or of doing the acts, he was apprised of the true state of his title, and that the other party was not only destitute of all knowledge of the true state of the title, but also of all convenient or ready means of acquiring such knowledge.” (Syl. ¶ 5.)
In McAdow v. Hassard, 58 Kan. 171, 48 Pac. 846, it was said:
“A wife is not estopped as against her husband’s creditors to claim a return of property belonging to her, which the husband had been using as his own but which had been intrusted to him for the wife’s use, where it does not appear that credit had been extended to the husband upon the strength of his apparent ownership of such property and that the wife knew or ought to have known that such extension or credit was made upon the strength of such appearance.” (Syl. ¶ 3.)
In Ergenbright v. Henderson, 72 Kan. 29, 82 Pac. 524, it was said:
“A party pleading an estoppel in pais must show: (1) That the opposing party has made some representation inconsistent with his present position, with the intent to mislead the pleader; (2) that the representation so made was known by the maker to be false; (3) that the pleader did not know that the representation was false; (4) that he believed it to be true, and acted upon such belief.” (Syl. ¶ 1.)
In the analogous case of McAdow v. Hassard, supra, this court said:
“It is said that the evidence discloses that, down to the time of the purchase of the land in suit, Mrs. Mather, as she then was, allowed her husband to keep all the visible property either of them .had in his own name, and to do business upon it as though it were his own; and that the law will not now allow her to assume the role of a creditor of his, to the disadvantage of those who trusted him upon the strength of such property being his. If it had been shown that the money which finally found its way into the land in question had been turned over to the husband to use as though it were his own, instead of being money which had been intrusted to him for the specific purpose of buying the land; and if it had also been shown that the wife knew, or ought to have known, of the extension of credit to the husband upon the strength of such false appearance, and had it also been shown that plaintiff relied upon such appearance and extended the credit in question because thereof, the claim would be well founded; but none of these circumstances was shown, and without a showing of the same no estoppel arises.” (p. 174.)
In the instant case the wife’s $3,500 had been turned over to the husband to be invested by him for her benefit as if the money were his own, but in other respects the requisite elements of estoppel outlined in McAdow v. Hassard, supra, are wanting. (Schott v. Linscott, 80 Kan. 536, 538, 103 Pac. 997.) It is familiar law that estoppel does not arise from the mere fact of the husband’s holding the title when the debt was contracted, especially when the wife had no knowledge that such debt was being created. (30 C. J. 832-834.) It is argued that the fact that her son had gone into the automobile business and did not have sufficient capital of his own to embark therein, should have caused the defendant mother and wife to surmise that her husband was backing their son, and that the circumstances were sufficient to put her on inquiry. We think not. She may have surmised that her husband was aiding their son in a financial way, but it would be carrying the matter too far to say she was put upon her inquiry to assure herself that he was not straining his own credit to an extent which would be likely to embroil her with his creditors over her equitable ownership of the land in controversy. (De Berry v. Wheeler, 128 Mo. 84, 49 A. S. R. 538; Blake v. Meadows, 225 Mo. 1, 30 L. R. A., n. s., 1, and note.)
This court holds that defendant was not estopped to assert her equitable title to the eighty acres purchased with her funds in 1912 and her legal title thereto acquired in July,-1928, as against the execution creditors of her husband.
Passing next to the cross appeal', the trial court made no finding that the $1,000 paid by A. F. Aderhold on the purchase price of the second eighty acres conveyed directly from the vendor to Ida E. Aderhold was part of the original fund intrusted by defendant toller husband in 1909. Indeed, the trial court, upon competent and sufficient evidence, held squarely (finding 8) that the $1,000 part payment on the land bought in December, 1927, was paid “by checks drawn on his individual account, which funds were the property of the said A. F. Aderhold.”
We note but cannot approve the appellee’s contention that the bank was estopped to assert that the second eighty acres was the property of the husband because it had accepted a payment of interest on the mortgage she had given for the balance of the purchase-price. The interest the bank had in the land as assignee of the mortgage was quite a different interest from the right which it claimed to have to insist on the subjection of the A. F. Aderhold interest in it to the satisfaction of his debts. Neither party attacked that finding, and under the rule that a man must be just before he-is generous, the judgment creditors of A. F. Aderhold have a, stronger claim on that property than defendant. The result is, the-judgment must be affirmed in all its parts, and the costs of the appeal and cross appeal should be divided.
It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
This action is one to quiet title to certain real property in Wichita. Judgment was rendered in favor of the plaintiff, and John R. Wright and his wife and Grant Arnold and his wife, defendants, appeal.
These defendants filed an answer in which they denied the plaintiff had any title to the property and claimed they held the title, and alleged—
“That the organizers and promoters of the said alleged corporation attempted to organize a corporation, the prime and necessary object of which was to sell or dispose of speculative securities; that all of its stock consisted of speculative securities; that it attempted and purported to dispose of said speculative securities without complying with the provisions of the so-called blue-sky law of the state of Kansas, and in violation of said law.” ■
The plaintiff filed a reply in which it set out the details of the transaction by which the appellants agreed to convey the property to the plaintiff under certain conditions set out in an escrow agreement between the appellants and the plaintiff as follows:
“It is hereby agreed between John It. Wright and Grant Arnold, parties of the first part, and the Wichita Duntile Company, party of the second part, that with reference to a transaction entered into on this date, the party of the first part have deeded to the party of the second part, the following-described property: the west 160 feet of lot 3, block 6, on Mead avenue in Perry’s addition to the eity of Wichita; that the same is issued in consideration of seven shares of preferred stock and seven shares of common stock in the Wichita Duntile Company, stock to be issued, three and one-half shares of each to John R. Wright and three and one-half shares of each to Grant Arnold.
“It is further agreed that said stock is to be placed with the deed to the above property in the Fourth National Bank of Wiohita, Kansas, and that as soon as the second party is in operation, operating its machinery and doing business in making the materials for which the company is organized, the deed is to be turned over to the party of the second part, and the stock turned over to the parties of the first part.
“It is further agreed that if the plant is not in operation by the first of May, 1926, that the party of the first part shall have the option of withdrawing said deed and turning the stock back to the party of the second part.
“It is further agreed that the conditions of the transfer of the stock and the deed are dependent upon the ability of the parties hereto to straighten out the matter with reference to the mortgage held by Carl Woltz, which is now in the sum of approximately eight hundred eighty ($880) dollars, which said mortgage is past due.”
The appellants contend that the transaction between them and the plaintiff was void because the stock transferred was what is denominated as speculative securities under section 17-1202 of the Revised Statutes and that no permit had been secured from the bank commissioner to sell such securities. To meet this contention the plaintiff pleaded and now argues that the appellants by their conduct are estopped from saying the transaction was void.
The evidence tended to prove that the plaintiff paid a substantial amount on the mortgage mentioned in the escrow agreement, paid taxes on the land in controversy, constructed a building thereon, and installed machinery therein.
The plaintiff introduced in evidence the following record of the minutes of the plaintiff corporation:
“May 27, 1926.
“Annual stockholders’ meeting of the Wichita Duntile Company, held at 1113 Bitting Bldg., for the purpose of electing directors for the ensuing year and for such other business as might properly come before the meeting. Meeting called to order by president.
“The following stock was represented in person: Theo Smith, 158 shares; W. E. Craiglow, 65 shares; L. E. Morris, 10 shares; J. R. Wright, 3½ shares; H. E. Tavender, 5 shares. By proxy: Theo Smith, 19 shares; W. E. Craiglow, 5 shares.
“Minutes of the first stockholders’ meeting were read and approved. The meeting was open to discussion and after general discussion the motion was in order for election of board of directors for the ensuing year. J. R. Wright moved that the regular methods be suspended and that the secretary be instructed to cast a unanimous ballot for the members of the present board; with the exception of M. D. Craiglow, and that Dr. H. L. Mills fill that vacancy. ...”
Under the circumstances disclosed by the evidence, the defendants John R. Wright, Ada H. Wright, Grant Arnold and Effie C. Arnold are estopped from claiming title to the real property as' against the plaintiff. Although not directly in point, Wickersham v. Chicago Zinc Co., 18 Kan. 481; McKinnis v. Mortgage Co., 55 Kan. 259, 39 Pac. 1018; and Burgess v. Hixon, 75 Kan. 201, 88 Pac. 1076, give some support to the conclusion reached by this court. (See, also, 21 C. J. 1206.)
Another proposition argued by the appellants is that the conditions of the escrow agreement were not complied with in that the plant was not in operation by May 1, 1926. There was evidence which tended to prove that a building had been erected, or partially erected, that machinery had been installed, and that some of the material sought to be produced had been manufactured and sold before May 1, 1926. There was evidence which tended to prove that the plant was in operation, although its operations were limited.
The judgment is affirmed.
Jochems, J., not participating.
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The opinion of the court was delivered by
Johnston, C. J.:
The defendant was convicted of statutory rape upon Dorothy Ewings, committed when she was about thirteen and one-half years old. The information contained seven counts charging that number of criminal acts, and the jury found him guilty on two of the charges. The sentence imposed was confinement at hard labor in the state penitentiary for a term of from one to twenty-one years on the first count, and the same penalty was adjudged on the second count, the sentences to run consecutively and not concurrently. The defendant appeals, and his principal contentions are that the verdict is contrary to the evidence and that a new trial should have been granted upon that and other grounds, including misconduct of the jury.
An extended discussion of the evidence is made in regard to the sufficiency of the evidence. The contention is not so much that there is a lack of evidence tending to support the verdict, but rather that it is so unusual, unnatural and unreasonable as to be beyond belief. The evidence has been carefully considered and we have no hesitancy in holding that the finding of guilt is abundantly supported. It is not necessary nor would we be warranted in recounting in detail the repulsive story of the defilement of the little girl as revealed by the testimony in the record. No good reason is seen why the jury should have discredited the evidence upon which its verdict was based, nor why the court that approved the verdict and pronounced the sentence should have granted a new trial for lack of supporting evidence.
Misconduct of the jury is assigned by^defendant as a ground of error. The taking of testimony, it appears, occupied the most of two days, and the case was submitted to the jury on the evening of the second day. The jury had the case under consideration for a few hours on that evening, and not having arrived at a verdict they were duly admonished and allowed to separate until the following morning, when deliberation was resumed, and a verdict was reached and returned the evening of that day. The claim of the defendant is that there were communications between outsiders and members of the jury while they were deliberating upon their verdict. The jury room was in the second story of the courthouse and the most that can be claimed in support of the charge was that the wife of a juror on the ground near the jury room saw her husband near a window of the jury room and asked him how long he would be in there and offered to throw him a sandwich. He told her not to do it and motioned her to go away. All of the jurors were brought into' court and each testified that during their deliberations no one communicated with them as to the case under consideration or anything pertaining to it. Whether there was undue interference by outsiders or misconduct of members of the jury in this respect was a matter for the determination of the court, a question of fact, and when its decision is based on conflicting evidence it should not be reversed. (State v. Brooks, 74 Kan. 175, 85 Pac. 1013; State v. Stewart, 85 Kan. 404, 116 Pac. 489.) On examining the evidence we find nothing in the record which warrants the inference that there was misconduct of the jury or anything showing a reasonable ground for the complaint of defendant.
On the motion for a new trial the affidavit of Elmer Kunze, a member of the jury, contained statements as to a matter which influenced him to join his fellow members in finding the defendant to be guilty. The substance of his affidavit was that in the early deliberations of the jury he voted “not guilty” and continued to so vote until near the time that the jury arrived at a verdict, and he added that although he still believed that the testimony did not show guilt he joined in the verdict that was returned. The reason given by him as to his final agreement was that he and his brother had purchased a bunch of cattle which was to be delivered to them in Oklahoma about four days after September 11, 1929, the day the verdict was returned, and that it was necessary for him to start to Oklahoma on that day in order to reach the place of delivery on September 15, 1929. He further stated that if he had failed to be at the place of delivery at the time mentioned, he would have sustained a loss of $800, and to avoid this loss he said he joined the others in rendering the verdict. His explanation, if it is to be believed, is not creditable to him. To have united in a verdict for such a reason would have been a violation of his oath as a juror and a violation of law. Whatever were the real facts in the case and whatever his motive may have been, the verdict cannot be impeached by a juror upon evidence as to the considerations which actuated him in agreeing to a verdict of guilty. It has been said that—
“It is a general rule founded on sound public policy that jurors are not permitted to impeach a verdict to which they have deliberately agreed under the sanction of an oath. There would be little virtue or finality in verdicts if they could be impeached and overthrown by the evidence of dissatisfied or unduly influenced jurors. It has been said: ‘It would result in perjury and bribery and there would be no end of litigation in eases tried before juries.’ ” (State v. Busemen, 124 Kan. 496, 499, 260 Pac. 641.)
In Ohlson v. Power Co., 105 Kan. 252, 182 Pac. 393, it was said:
“A juror may testify as to what transpires in a jury room (citing cases), but he may not tell what considerations constrained him nor give the reasons for his verdict. In short, he cannot be heard to confess his own recreancy in order to impeach his own verdict.” (p. 254.)
In the late case of State v. O’Keefe, 125 Kan. 142, 145, 263 Pac. 1052, affidavits had been offered which attempted to show what caused some of the jurors to agree to a verdict of guilty. It was said:
. “On this point, the affidavits were not proper to be considered by the court, and perhaps were not considered. It is well settled that a juror cannot be heard to impeach his verdict by saying that he agreed to it upon consideration of matters other than the evidence and the instructions of the court.” (Citing many cases. See, also, State v. Kearney, 130 Kan. 474, 287 Pac. 261.)
No error was committed in denying the motion for a new trial because of what was stated in the affidavit of juror Kunze.
The failure of the court to make a specific declaration that he approved the verdict is assigned as error. It seems to be seriously argued that as the court did not in set terms say that the verdict was approved when the motion for a new trial was overruled or when the sentence was pronounced, the judgment should be reversed. It appears that the verdict was returned on September 11, 1929. On that day a motion for a new trial assigning ten different grounds therefor was filed, one of which was that the verdict should be set aside. That motion was heard on October 4, 1929, and overruled. Upon the request of defendant sentence was deferred until October 8, 1929, when, as the journal entry recites, the defendant was present and “is asked by the court whether he has anything to say why the judgment of the court should not be pronounced upon him at this time. No legal reason or sufficient cause being alleged or shown by said defendant, H. N. Casebier, no sufficient cause appears to the court why judgment should not now be pronounced upon him by the court. It is therefore in open court considered, ordered and adjudged by the court herein that said defendant, H. N. Casebier, is guilty of the crime of statutory rape upon the person-of one Dorothy Ewings, a female child under the age of eighteen years,” as charged in two counts of the information described at some length followed by the imposing of the penalties already men tioned. When the court overruled the motion for a new trial, which asked the court to set aside the verdict, the defendant was fairly well informed that the court was satisfied with the verdict rendered; and when the court came to sentence the defendant, upon asking him whether he had anything to say why judgment should not be pronounced, he was unable to state any sufficient cause why it should not be pronounced, and this was followed by the declaration that the court considered and adjudged the defendant to be guilty of the crime of statutory rape, there was a manifest approval of the verdict. No intelligent person could have had a misconception as to the approval of the verdict by the court. It would be difficult to indicate a concurrence in the finding of the jury more clearly than was evidenced by the court in the present case.
Some objections are also'made to rulings on the admission of evidence and to instructions given, but an examination of these indicate clearly enough that the objections are not well founded and further that they do not warrant special comment. No material error appearing in the record; the judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a hail insurance policy. The plaintiff recovered, and defendant has appealed. The principal point argued by appellant is the failure of plaintiff to furnish proof of loss.
Plaintiff owned 200 acres óf growing wheat, which he insured in the defendant company against loss by hail. On June 19 the crop was damaged by hail. Plaintiff promptly sent notice of loss. On June 28 a duly authorized agent and adjuster of the defendant called at plaintiff’s premises to' adjust the loss. He and plaintiff signed an instrument called a “nonwaiver agreement” which recited, in substance, that the parties desired to determine, without delay, the percentage of loss; that it was mutually agreed that any action taken in ascertaining the percentage of loss should not waive any of the conditions of the policy or the application, nor invalidate any rights of either party; that it was agreed no representative of defendant had authority to waive or modify any of the conditions of the policy or application, and that the sole object and intent of the agreement was to provide for the determination of the percentage of loss and an investigation of the circumstances without regard to the liability of the insurance company, and to preserve the rights of the parties. After inspecting the fields the adjuster thought the loss was 85 per cent. The parties finally agreed upon a 90 per cent loss, conditioned on plaintiff surrendering his policy to defendant. This was done, and the adjuster calculated the amount of money due plaintiff to be $1,440. Plaintiff thought he signed some other paper at the time, but the court construed the evidence as being insufficient to sustain a finding to that effect. On August 11 defendant sent written instructions and a questionnaire to plaintiff in which it made formal demands, under certain paragraphs of the policy, that certain information be furnished within five days of the receipt of the notice, and requesting plaintiff to be guided by the policy stipulation. Defendant knew plaintiff then had no policy to which he could refer, it having been taken up on June 28. Plaintiff promptly answered the questionnaire. No further request for information was made by the defendant.
Plaintiff in his petition alleged, among other things, that he had furnished proof of loss. Plaintiff apparently thought defendant had the proof of loss and that the same would be furnished at the trial with other papers which had been demanded. At the trial defendant’s counsel stated he could not produce the proof of loss for the reason that none had been given. At the close of the evidence plaintiff, with leave of court, amended his petition to conform to the evidence by setting out the facts with respect to the taking up of the policy, determining the amount of the loss, answering the questionnaire, and other matters previously stated.
The trial court held that the nonwaiver agreement signed by plaintiff and the adjuster went only to the question of determining the percentage of loss; that in fact the agent and adjuster of defendant did more than that by agreeing on the actual amount of the loss on condition that the policy should be surrendered, which was done, and that the defendant, by the examination and agreement of its adjuster, and by the information contained in the questionnaire which it sent out, had received all the information which would have been contained in a formal proof of loss.
We see no objection to this holding. It was within the discretion of the trial court to permit plaintiff to amend his petition (R. S. 60-759; Wait v. McKibben, 92 Kan. 394, 140 Pac. 860). The court correctly construed the nonwaiver agreement as pertaining to the ascertainment of the percentage of loss only. The agent and adjuster of defendant did more than that. As to what he did in excess of determining the percentage of loss, the nonwaiver agreement was noneffective. The evidence discloses that he thought it would be to the advantage of his company not to have a policy outstanding on which there might be a 10 or 15 per cent loss by another hailstorm, so he proposed to plaintiff to allow a 90 per cent loss if plaintiff would surrender his policy. Plaintiff agreed to that, and did surrender his policy. The amount due plaintiff on that basis was computed. This was a settlement of the loss and a cancellation of the policy. There was no further need of proof of loss. Appellant argues that there is no evidence that the insurance company agreed to this arrangement, but it seems quite clear that when the company received the report of its agent and adjuster it made no objection to this arrangement, and it did retain the policy and stamped or wrote on the nonwaiver agreement the words “policy canceled.” There is no contention now that the formal proof of loss would have given defendant any information in addition to that which it had received. There is therefore no merit in the contention that the formal proof of loss was not furnished.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
This was an action brought upon an order made by the city court of the city of Wichita, upon trial had in that court on the truthfulness of a garnishment answer made by the defendant herein.
The record disclosed the following situation:
On May 7, 1928, the plaintiff in this action, J. E. Anderson, recovered judgment in the city court of Wichita against one W. W. Mulkey for $505.09 and costs. At the time this judgment was obtained Mulkey owned a pool hall in the north part of Wichita. About three days before the judgment was entered Mulkey gave a chattel mortgage on the fixtures and equipment of the pool hall to one Blair, who was his son-in-law. The mortgage was for $1,600, which was more than the pool hall was worth, as it appears that it was subsequently sold for $1,200.
After the plaintiff obtained judgment he caused to be issued thereon four executions on various dates. On two of these levy was made on the cash in the cash register in the pool hall and each time a small amount was realized. The third and fourth executions were returned by the marshal “nothing found on which to levy.”
The plaintiff Anderson was acquainted with the defendant Dugger. Dugger told him that he contemplated buying the pool hall from Mulkey. They discussed the matter and Anderson told Dugger to let him know if he made a deal. Thereafter Dugger reported to Anderson that he had negotiated with Mulkey and that they had entered into a written contract whereby Dugger was to buy the pool hall for $1,200; that he had given his check for $100 and was to pay the remaining $1,100 the next day. Anderson told Dugger that there was a mortgage on the pool hall and Dugger said that he would see to it that it was released. The next morning, which was on December 15, 1928, Dugger, together with Blair, the mortgagee, went to the courthouse and released it. Immediately after the mortgage was released the plaintiff Anderson caused garnishment summons to be issued on the judgment which Anderson had against Mulkey. Anderson and the marshal of the city court went to Dugger’s place of residence immediately and served the garnishment on Dugger. The following conversation then took place, according to Anderson’s testimony: Anderson asked, “Well, Bill, how is it?” Dugger replied, “It is all right.” They then served the garnishment and Dugger said, “I am going down and settle with those fellows.”
It further appears from Anderson’s testimony that Dugger told him afterwards that when he went down to settle with those fellows he showed them the garnishment, and Mulkey said: “That money is not mine; that belongs to my stepson-in-law, Blair; the money will have to be paid to him. You can’t do that.” Mulkey, Blair and Dugger talked the matter over and finally concluded that Dugger should pay the money over to Blair, and Blair gave him a bill of sale. After the mortgage first above referred to was released on December 15, 1928, later during the same day a similar mortgage from Mulkey to Blair was recorded. This mortgage was different in terms and was made to run from December 5, 1928, to January 5, 1929, but was released on December 17, 1928, after the defendant Dugger had made settlement with Mulkey and Blair. After making settlement the garnishee Dugger filed an answer to the garnishment reading as follows:
“Made bargain with Mulkey but paid his son-in-law; Mulkey having turned the pool hall over io his son-in-law the day before.”
Thereupon Anderson gave notice to Dugger that his answer in garnishment was unsatisfactory and demanded a trial of the truth of the same. A trial thereon was had in the case of Anderson v. Mulkey above referred to, and on December 31, 1928, judgment was entered therein by the city court against the garnishee Dugger for the unpaid balance of the original judgment which Anderson had against Mulkey in the total sum of $465.19. The garnishee Dugger failed and refused to pay said money into court as ordered by the judgment and thereafter this action was brought upon the judgment entered in the city court against the garnishee. Trial was had in the district court before a jury. The issues were found in favor of the plaintiff herein, and the defendant appeals.
The appellant raises three questions upon appeal. First, that the appellee did not exhaust his remedy by execution; second, that the evidence showed the appellant did not purchase the pool hall from Mulkey; ^and third, that at the time the garnishment was served there was no absolute liability of the appellant to Mulkey and that the liability, if any, was only contingent, so that the appellant was therefore not subject to garnishment.
We shall take these up in their order.
In support of the first proposition the appellant cites the case of Madden v. Railroad Co., 89 Kan. 282, 131 Pac. 552. In that case goods belonging to the debtor were delivered to the railroad company and ordered shipped to a person other than the judgment debtor. Further, in that case it is pointed out that the railroad company had no knowledge that the goods belonged to the judgment debtor and had no reason to suppose they belonged to anyone except the consignee. The court took the view that a simple execution would have been the proper remedy. In the instant case the evidence shows that the defendant Dugger knew of the situation existing between Anderson and Mulkey; that he had full knowledge concerning Anderson’s judgment against Mulkey and that the property concerning which he dealt belonged to Mulkey, subject to a mortgage to Blair. His original dealings were all with Mulkey, and the stepson-in-law, Blair, came into the picture only after the bargain had been made between Dugger and Mulkey. The two cases are not analogous in fact. Furthermore, it appears in the instant case that the plaintiff had made numerous bona fide efforts to levy an execution. He had caused four executions to be issued and everything indicated that he had put forth diligent effort to collect his judgment by means of an execution. The mortgage standing against the pool hall was for more than the pool hall was worth. It was apparent to the marshal and to the plaintiff Anderson that there was no equity in the pool hall which could be realized upon a sale or execution, assuming that the mortgage was a valid mortgage. There is nothing in the record to show that the plaintiff Anderson had reason to believe that the mortgage was other than a bona fide mortgage, at the time the executions were issued, or that he then had any means of proving that the mortgage was fraudulent. Under such circumstances, where it appears that the property is mortgaged for as much or more than it is worth, it follows that an execution on the particular property so mortgaged would avail nothing. The law does not require the performance of a futile or useless act.
As to the second point urged by the appellant, the verdict of the jury disposes of this contention. It had the testimony of Anderson to guide it, which was to the effect that he and Dugger had talked about Dugger making the deal on the pool hall; that he had told Dugger about the mortgage after Dugger had told him that he had contracted to buy the pool hall; that Dugger was fully informed as to Anderson’s judgment and that the matter of Blair being the owner of the property did not come up until after the garnishment had been served. When matters had reached this state, according to Anderson’s testimony, Dugger went down to “settle with” Mulkey and told him about the garnishment, and Mulkey then said that the money belonged to Blair; that he would have to pay it over to Blair and take a bill of sale from Blair. At this stage- of the matter Dugger should have consulted an attorney, but he chose not to do so and went ahead, acting as his own judge of the facts and of the law, assuming the responsibility of paying over the money to Blair and ignoring the garnishment. The verdict of the jury was a finding that the deal was in fact made with Mulkey and that the defendant was not justified in disregarding his obligation to Mulkey and paying over the money to Blair. The jury further determined that the mortgage was not a bona fide mortgage, and that the transaction was in effect an effort to defeat Anderson in the collection of his judgment.
We will now take up the last question urged by the appellant, to the effect that he should not be held liable because there was no absolute liability on his part to Mulkey on the contract of purchase, and that his liability, if any, was only a contingent liability. It must be borne in mind that under the provisions of R. S. 61-1222 the garnishee is obliged to answer concerning the amount owing by him to the judgment debtor, whether due or not. This point was discussed and decided adversely to the contention of the appellant in the cases of Bank v. Dondelinger, 103 Kan. 444, 175 Pac. 109, and Winterscheidt v. Wilson, 110 Kan. 649, 205 Pac. 600. Those cases construed the sections of the statute relative to garnishment proceedings in the district court, and among others construed section 7134 of the General Statutes of 1915, which is our present R. S. 60-954. The wording in the latter is: “From the time of the service of the summons upon the garnishee he shall stand liable to the plaintiff to the amount . . . and of all debts due or to become due to the defendant.” The wording of this section being to that extent identical with that of R. S. 61-1222, under which the instant proceeding was brought, the foregoing cases apply by analogy, and, following those cases, we hold that under the provisions of R. S. 61-1222 unmatured and contingent liabilities are properly subject to garnishment proceedings.
We find no error in the record, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The petitioner, John Mick, invokes the original jurisdiction of this court in habeas corpus to secure his release from the Mitchell county jail.
• On March 2, 1927,' Mick was arrested by the sheriff of Mitchell county on charges of various infractions of the prohibitory law. On arraignment on January 12, 1928, he pleaded guilty to one count of unlawful possession of intoxicants, and was sentenced to thirty days in jail and to pay a fine of $100 and costs.
Upon Mick’s application execution was stayed until the following day so that he might submit a showing to justify the court in granting him a parole. This matter was again passed over until January 14, 1928, at which time defendant submitted a petition with 107 signatures praying the court to grant Mick a parole. A doctor also gave evidence touching the state of Mick’s health. Thereupon the court continued the application for a parole until the next term of court and granted a stay of execution until that time. For several succeeding terms of court the matter was similarly continued and' execution stayed — sometimes upon application of Mick or his counsel, but on one or two instances the judge’s notes, (which were the only record) do not show why it was continued.
The deposition of the county attorney who prosecuted Mick avers that he objected to a continuance and stay at the January term, 1928, and advised the court that Mick should be put in jail. He also avers that at no time did he consent to a continuance.
The sheriff testified that he personally knew that the county attorney did not consent to a continuance at either the April or September terms of that year.
A new county attorney was inducted into office in January, 1929. He deposed:
“At the January term of. the district court of Mitchell county, 1929, . . . the weather was bad and we set several days for the hearing on the parole of John T. Mick in case No. 841, at all of which times . . . [the] attorney for Mr. Mick had some excuse for not taking this matter up, his witnesses or the defendant being absent each time, and the case was carried over until the 18th day of February, 1929, when . . . [counsel for Mr. Mick] made an oral request for continuance for the term, and due to the inability to secure witnesses the court granted this over the objection of the county attorney and sheriff. At the April term of court ... on application of the defendant the case was again continued until the September term. At the September term the case came on for hearing and the defendant was committed to the county jail of Mitchell county, [September 23, 1929] and was released on bond after the habeas corpus proceeding was commenced in this court.”
On January 26, 1929, the petitioner paid the fine and costs.
Counsel for the petitioner propounds two questions for our determination :
“1. Has the district court or any other court the right to sentence a person to any punishment without any plea of guilty or finding of guilty of any offense whatever?
“2. Did the district court have any authority to continue this case from time to time from January 12, 1928, until September 23, 1929, and then without further authority commit the petitioner?”
The first of these propositions is provoked by the mere paucity of recitals in the original journal entry of judgment. It failed to state that on arraignment defendant pleaded guilty. That defect, however, has now been corrected by an amended journal entry which, of course, the trial court had a perfect right to make, notwithstanding the pendency of this proceeding in habeas corpus. (State v. Johnson, 91 Kan. 180, 136 Pac. 940; State, ex rel., v. City of Stafford, 99 Kan. 265, 269, 161 Pac. 657.) Moreover, in his. application for the writ the petitioner himself supplied the fact which was wanting in the original judgment roll. He alleged:
“Comes now said petitioner, John Mick, and shows . . . that on the -day of January, 1928, he was convicted for violating the prohibitory liquor law of the state of Kansas, by the district court of Mitchell county, Kansas,
Touching the second proposition raised on petitioner’s behalf, the court holds that while the practice of deferring for extended periods, or from-term to term, the judicial determination of any matter addressed to the trial court’s discretion cannot be commended, yet here it appears that the long delay in issuing a commitment for the petitioner’s incarceration was brought about by his own maneuvers —his application for a parole, the showing that his health would be jeopardized by putting him in jail, and his repeated applications to have the action on the matter postponed and continued. (In re Jackson, 107 Kan. 167, 190 Pac. 608.) The court discerns no substantial analogy between the instant case and those cited by counsel for the petitioner — In re Strickler, 51 Kan. 700, 33 Pac. 320; State, ex rel., v. Sapp, 87 Kan. 740, 125 Pac. 78; In re Krig, 105 Kan. 695, 185 Pac. 1044. Here there was no uncertainty of sentence, nor did its execution depend upon the future good behavior of the petitioner or other contingency not sanctioned by statute. . In this case, also, as in State v. Massa, 90 Kan. 129, 132 Pac. 1182, the judgment of January 12, 1928, has become unassailable; and as the jail sentence has not yet been fully executed the' petitioner’s release by habeas corpus must be denied, and he is remanded to the custody of the sheriff of Mitchell county. (State, ex rel., v. Piper, 103 Kan. 794, 176 Pac. 626.)
The writ is denied.
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The opinion of the court was delivered by
Johnston, C. J.:
The North American Finance Corporation sued Henry Cannavan and his wife, Mamie Cannavan, and in its petition set forth two causes of action. The first was based upon a promissory note in the sum of $5,000 secured by a mortgage on real estate for which a foreclosure was asked. The second cause of action was based on sale contracts or title notes taken by the defendant from customers who had purchased furniture from defendant on the installment plan, and upon which plaintiff claimed a recovery of $13,317.20. An itemized account was set up by the plaintiff which included 124 items. The defendant filed an answer and cross petition in which the execution of the note and mortgage was admitted. Defendants allege that Cannavan was engaged in the furniture business, selling furniture on the installment plan and taking sales contracts or title notes, and that in November, 1926, defendants entered into a contract with plaintiff by which plaintiff was to advance money to defendant to pay an amount which he had borrowed from a bank,'and also an advancement of $1,000, making a total indebtedness of $10,850, and that he indorsed and delivered to plaintiff title notes secured by chattel liens upon furniture he had sold to many customers amounting to $16,701. Afterwards other contracts of a similar nature were made, and title notes delivered by him to plaintiff. That he has received from plaintiff $16,857.58, and that during the whole period defendant had turned over to plaintiff title notes and the real-estate mortgage note to the amount of $32,077.20, and had made additional payments in the sum of $10,256.29, making in all $42,333.89, which plaintiff has received from defendant. There was a further allegation that plaintiff has taken from defendant’s customers furniture sold on which he had liens and has failed to account to him for such payments. That he is unable to ascertain the exact amount, as the papers are in possession of plaintiff and it refuses to make an accounting of the same although he had orally and in writing often demanded an accounting. He prayed that plaintiff be restrained from collecting on the notes now in its hands, that plaintiff be required to account to defendant for money collected from his customers on sales contracts for furniture that he had turned over to plaintiff, and that he be awarded judgment against plaintiff for $25,476.31, being the excess of the amount owing by him to plaintiff.
With his answer Henry Cannavan filed a cross petition setting up a cause of action in the nature of a set-off in tort, alleging that plaintiff had willfully and maliciously slandered him and his business integrity by visiting the homes of his customers and telling them not to pay money to defendant, and if they did plaintiff would not get it and they would have to pay claims a second time. Also saying that defendant was overcharging the customers for the goods sold and that he was “the biggest crook” in Kansas. It was further alleged that plaintiff was reporting that he was going to padlock his doors and close up his business, and that plaintiff had sent out false written statements of accounts to his different customers and thereby had deprived defendant of customers in order to procure them to deal with plaintiff instead of defendant. Defendant alleged that he had been damaged to the extent of $10,000 by the slanders and he asked judgment for that amount, and also that punitive damages be allowed to the extent of $5,000.
Two separate demurrers were filed by plaintiff, one to the amended answer of defendant and the other to the cross petition setting up charges of slander. The court overruled the demurrer to defendant’s answer but sustained the demurrer to his cross petition. Defendant appeals from the ruling sustaining the demurrer to the cause of action for slander.
That ruling was based upon the ground that the complaint of slander was a matter between Henry Cannavan and the plaintiff alone, and that Mamie Cannavan, the other defendant in the case, is in no way interested in it. The demurrer was rightfully sustained. There is a lack of mutuality necessary to the maintenance of the defenses pleaded, as one defendant cannot set up a counterclaim or set-off existing in his favor alone. The suit, as we have seen, was brought against both defendants. The cross petition of Henry Cannavan avers that plaintiff had slandered him and no claim is made that Mamie Cannavan, the other defendant, is interested or concerned’ in the cause of action for the alleged tort. It has been decided that, “In an action upon a verified account against two partners for an indebtedness of the partnership, a cross demand by one of the partners individually for damages to her caused by an unrelated tort of the plaintiff, cannot be used as a set-off or counterclaim against the plaintiff’s action.” (Crockery Co. v. Cleaver, 104 Kan. 642, 180 Pac. 273.) In the opinion it was said:
“Causes of action which the code permits to be united, other than to enforce liens, are those which affect all parties to such cause of action, and cross petitioners are plaintiffs in effect. [Citing a number of cases.]” (p. 645.)
It was further added:
“It will thus be seen that while the grievance of one of these defendants, Mrs. Hodgson, may be the subject matter of a meritorious separate lawsuit against the plaintiff, the want of mutuality between her and her codefendant prevents consideration of her individual grievance in this action against her partner and herself on plaintiff’s verified account for goods sold and delivered to them.” (p. 646.)
See, also, Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961; State, ex rel., v. Addison, 76 Kan. 699, 92 Pac. 581; Ruby v. Baker, 106 Kan. 855, 190 Pac. 6; Dunn v. Mortgage Co., 113 Kan. 169, 213 Pac. 655; Roberts v. Donovan, 70 Cal. 108.
Another ground of complaint is of the ruling of the court appointing a referee to try the issues in the case. Defendants objected to the referee, insisting that they were entitled to a jury trial. In its decision the court said that an examination of the pleadings shows that long and tedious accounts are involved which will require' an examination to determine the indebtedness of one party to the other. The referee, T. F. Railsback, was directed to take an accounting between plaintiff and defendants, and try out questions of law and fact touching that' indebtedness as presented by the pleadings, exclusive of the defendants’ claim for damages. The suit is equitable in its nature, involving, as it does, the foreclosure of a mortgage lien and an accounting. The code provides that references may be made on consent of parties and in case they do not consent the court may direct a referee where a trial requires an examination of mutual accounts or where there is a long account on one side (R. S. 60-2923). Here there are mutual accounts. Plaintiff, as shown, has set out an account of more than 100 separate transactions -and defendants add many more. In the answer defendants are demanding that plaintiff account to them for moneys collected from customers from time to time, of furniture taken from them without accounting for the proceeds. They are complaining because no account has been furnished to them by the plaintiff, and in their prayer they ask the court to require an accounting. It is clear, therefore, that the case is peculiarly one for a trial by a referee and certainly it cannot be said that there was an abuse of discretion in making the appointment. (Bank v. Myers, 104 Kan. 526, 180 Pac. 268; Drovers and Merchants Bank v. Williamson, 121 Kan. 301, 246 Pac. 676.)
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one of mandamus to compel a school-district board to call an election to determine whether the school district should become attached to a union district. The writ was granted, and the board appeals.
The proceeding was initiated by electors of school district No. 40, who, on September 12, 1929, petitioned that their district be attached to union district No. 35, pursuant to R. S. 72-906 to 72-910. The petition was favorably acted on by the board of district 35, which voted to receive district 40, and so notified the clerk of the board of district 40 on September 13, 1929. The board of district 40 refused, however, to call an election for determination of the question whether the district should be attached to district 35. The refusal was based on the fact that the petition to the board of district 35 was not a legal petition.
Before incorporation in the Revised Statutes, the statute govern ing the proceedings was chapter 230 of the Laws of 1921, which contained five sections reading as follows:
“Section 1. That any school district in the state of Kansas, adjacent or contiguous to a consolidated or union district already established under the provisions of chapter 275 of the Session Laws of the state of Kansas for 1911, shall become a part of said consolidated or union district upon complying with the following requirements: It shall present a petition signed by at least fifty-one per cent of the qualified electors residing in said district, to the district board of the consolidated or union district; which petition shall state the indebtedness of the petitioning district and the indebtedness of the consolidated or union district; and shall agree that if its petition is granted it will assume its proportionate share of the existing indebtedness of the consolidated or union district.
“Sec. 2. That upon receipt of the petition provided for in section 1 of this act, the board of the consolidated or union district shall by vote determine whether it desires to receive the petitioning district into the consolidated or union district, and transmit its action to the clerk of the district board of the petitioning district. If said notice be favorable, the district board of the petitioning district shall upon receipt thereof call an election in said district, submitting to the qualified electors therein, the proposition of annexing said district to the consolidated or union district already existing, and such submission shall cany with it the proposition of the petitioning district assuming its proportionate share of the indebtedness already existing in said consolidated or union district, so that an affirmative vote upon the proposition of annexation shall be considered as a vote in favor of assuming its share of the existing indebtedness. The proportion of said indebtedness to be assumed by the petitioning district shall be based upon the ratio between the total taxable valuation of the petitioning district and the total taxable valuation of the consolidated or union district. The election above provided for shall be called and conducted in the manner provided for in the General Statutes for conducting bond elections in school districts.
“Sec. 3. That a majority of the votes cast at said election shall be sufficient to carry the proposition. The vote at said election shall be by ballot, which ballots shall read ‘for annexation and assumption of proportionate share of indebtedness,’ or ‘against annexation and assuming proportionate share of indebtedness.’
“Sec. 4. That upon such proposition being carried the clerk of the petitioning district shall in writing notify the county superintendent and the district board of the consolidated or union district of such action, and thereupon and thereafter said petitioning district shall be and become a part and portion of said consolidated or union district, with all the rights, privileges, duties and obligations of said consolidated or union district, and shall be liable for its proportionate share of the existing indebtedness of said district.
“Sec. 5. That all property belonging to the petitioning district shall become a part of, and belong to, the consolidated or union district, and the debt of the petitioning district, as stated in the petition, shall be assumed by, and become a part of the indebtedness of the consolidated or union district.”
The petition of the electors of district 40 stated that their district had no indebtedness, and that district 35 had no indebtedness. In the answer to the alternative writ the board of district 40 stated that when the electors’ petition was presented, district 40 was indebted in the following items:
Contract with' school teacher to teach eight months’ school, commencing in September, 1929...................................... $660.00
Account at a drug store............................................. 8.25
Telephone bill..................................................... 4.00
The answer also alleged that district 35 was indebted in the following items:
Salary of ten teachers and a janitor for the school year 1929-’30----$9,500.00 Obligation to pay bus drivers and other expense items, amounts not stated.
The state moved for judgment in its favor, on the ground the answer stated no defense.
The board contends the indebtedness of each district described in the answer was the kind of indebtedness which should have been stated in the electors’ petition; the petitioning district was required to assume its proportionate share of the indebtedness of district 35; the debt of the petitioning district, as stated in the petition, would become a. part of the indebtedness of the union district; and it was indispensable that the amounts be stated. The board also contends district 40 would be disorganized by attachment to district 35, district 40 could not levy or collect taxes or sue or be sued, creditors of district 40 could not be paid, and creditors would be remediless.
The answer did not allege that either district had any .bonded debt, or debt consisting of outstanding orders or warrants for the redemption of which no funds had been provided, and the brief for the board concedes it should be presümed tax levies would be sufficient to defray all current expenses of both districts.
The indebtedness described in the answer consists of nothing but ordinary items of expense of maintaining schools — school supplies, telephone bill, salaries of teachers and wages of bus drivers, payable as they accrue On accustomed pay days from current revenues duly provided. With every engagement of each district duly provided for as it matured, by money in the hands of the treasurer or available to him, there would be as a practical matter nothing to assume so far as current expenses were concerned.
In this instance the case Was decided by the district court on November 7, 1929. Suppose there had been no litigation, aii election had been called in district 40, and the election had occurred on November 7. A statement of indebtedness embodied in the petition of September 12 would have given no information to a voter seeking to know what district 40 would assume, because in the ordinary course of business the September and October bills, would have been paid.
It will be observed at a glance that the statute lacks details essential'to carrying it into effect. If district 40 were attached to district 35, district 40 would go out of existence as a separate corporation. The territory of district 35 would be enlarged, and its boundary would be changed. A reorganization of district 35 to that extent would be effected; and there is no provision in the statute for bringing the enlarged district on the records so that future tax levies might be properly made and extended. For the duty of the county superintendent in this respect we must look to section 4 of chapter 305 of the Laws of 1901, and the fact is, the statute of 1921 is merely a supplement to chapter 275 of the Laws of 1911, which was merely amendatory of and supplemental to the statute of 1901.
The statute of 1901 authorized independent school districts to consolidate and form a new union district. The idea was developed by a statute of 1903, which authorized a district adjacent to a union district to disorganize and to become attached to a union district by order of the county superintendent. The statute of 1911 was of the same general type. The statute of 1921 permitted the matter of annexation to be determined by electors of the petitioning district and the board of the union district.
The act of 1901 dealt specifically with bonded indebtedness of the several districts uniting to form a union district. Such indebtedness continued to attach to the territory of the old districts, and provision was made for tax levies to take care of such indebtedness. Provision was also made for payment of the “floating indebtedness” of the disorganized districts by application of “assets and property” to discharge such indebtedness, the surplus to be applied on bonded indebtedness.
The legislature of 1901 passed another act providing for disorganization of certain school districts and annexation of the disorganized districts to other districts. The act contained a provision in effect defining floating indebtedness as consisting of school orders, and the term is elsewhere used as including warrants and orders. The act also contained a provision throwing light on what the assets of a disorganized district may be:
“Sec. 8. If at the time of the disorganization of any school district as herein provided for, such district shall have in the hands of its treasurer or of the county treasurer of the county moneys belonging to it, or any unpaid taxes levied for the payment of its indebtedness, bonded or floating, such money shall be first applied to its indebtedness, floating and bonded; . . .” (Laws 1901, ch. 307.)
It would be a bootless task to go further into the confused mass of legislation relating to the subject of combining and disorganizing school districts. But so far as consistent purpose is discernible it is clear that current expenses, for payment of which funds have been provided, have not been regarded as indebtedness requiring special legislative attention in connection with disorganization.
Nobody needs to be informed that if annexation takes place unider the act of 1921 during a school year there will be current expenses which will vary in amount from month to month. On disorganization a district does not forfeit any of the fund already specifically provided to pay those expenses; and because there is a fund so provided, whether in the hands of the district treasurer, or the county treasurer, or available in unpaid taxes, they are not important in considering the financial consequences of consolidation. Assumption and apportionment of bonded debt attaching to territory is quite another matter. The board of district 35 would want to know what the burden on the new enlarged district resulting from annexation would be, and the electors of district 40 would want to know how heavily district 35 was burdened before assuming their proportionate share of the debt. Therefore this court concurs in the judgment of the district court that the petition of the electors of district 35 was not defective.
The judgment of the district court is affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Marshall, J.:
The action is one to recover taxes paid under protest. Judgment was rendered in favor of the plaintiff on the pleadings, and the. defendants appeal.
The pleadings show that in 1925 a regular bridge tax of 1.50 mills was levied on all the property in Atchison county, and for the purpose of repairing and constructing bridges that had been destroyed or rendered impassable by flood and high water, another tax of one mill, designated as an emergency tax, was levied. No question is raised concerning the 1.50 mills tax. The controversy is over the one-mill tax. The validity of that tax depends on the interpretation of section 68-1103 of the Revised Statutes, under which section the county commissioners acted. That section reads:
“That whenever it is necessary to construct or repair any bridge or culvert on any county road in any county of the state, the county engineer’s estimated cost of which does not exceed $40,000, the board of commissioners of such county shall appropriate from the bridge fund a sum sufficient to meet the entire expense of said work and the board shall immediately make all contract's for labor, material and all other expense necessary for- the construction or repair of such work in the manner provided in this act or shall make and let a contract for the construction or the repair thereof: Provided, That in any county having a population of more than 30,000 and containing two or more cities of the second class the board of county commissioners shall determine the necessity of building or repairing any bridge or bridges; shall pass a resolution declaring that such a necessity exists and shall immediately build such bridge or bridges at a cost to be determined by the county engineer’s estimate of not to exceed $50,000 per bridge and appropriate money therefor: Provided, The levy for such purpose shall not exceed two mills upon the assessed valuation of the county: Provided further, That in any such county or counties where.there has been constructed prior to the passage of this act or shall be hereafter constructed any bridge or bridges which shall have been destroyed or rendered impassable or shall be hereafter destroyed or rendered impassable by flood or high water, then such board of county commissioners shall immediately thereafter repair and reconstruct such bridge or bridges; shall adopt a resolution finding and determining a necessity for such repair or reconstruction and shall at once proceed to repair or rebuild the same at a cost to be determined by the county engineer’s estimate not exceeding $50,000 per bridge and shall appropriate a sufficient amount of money therefor. Such board is hereby authorized and empowered to levy and collect taxes for the purpose herein named which shall not exceed three mills upon the assessed valuation of the county, any prior limit on said levy to the contrary notwithstanding: Provided further, That under the provisions of this section those bridges which are situated across any stream oh any county road are hereby declared to have a preference over the bridges on other roads and shall be repaired and reconstructed before any other bridges are repaired and reconstructed.”
The controversy turns on the meaning of the words “in any such county or counties” contained in the third proviso. The plaintiff argues that those words restrict the power of the county commissioners to repair bridges that have been rendered impassable by flood or high water to counties having a population of more than 30,000 and containing two or more cities of the second class. The defendants argue that those words apply to all the counties mentioned in the section.
The second division of section 77-201 of the Revised Statutes reads:
“Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.”
The phrase “in any such county or counties” refers to a county or to counties previously described. The county or counties referred to may be ascertained by understanding what is meant by the use of the word “such.” It is the controlling word in the phrase.
In 37 Cyc. 513 the word “such” is defined as follows;
“Such. Same, p. v.; the same as previously mentioned or specified; not other or different; of that class; of that kind; of the ike kind; like, q. v.; resembling; similar, q. v.; having the particular quality or character specified; used to represent the object indefinitely, or particularized one way or another, or one and another not there mentioned; of that kind, of the like kind.”
When a word or language is used which refers to something which preceded it the reference is to that which last precedes it and to which it can apply.
Following these rules, it is held that the phrase “in any such county or counties” found in the third proviso refers to the county or counties described in the first proviso. The first proviso describes counties of more than. 30,000 population and containing two or more cities of the second class. Atchison county did not come within that description. That county did not have authority to levy a tax under section 68-1103 of the Revised Statutes. The one-mill tax was illegally levied and can be recovered by the plaintiff.
A question concerning interest is presented in the briefs, but is not now urged and appears to have been adjusted.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
In a petition for rehearing defendant presents a matter not urged in the original brief, and of course not referred to in the original opinion. The information contained nine counts, and defendant was convicted on the ninth count only. The third count charged that defendant, with intent to deceive the bank examiner, willfully misapplied money, funds and credits of the bank, by accepting, receiving and purchasing three notes totaling $10,500, which were not genuine obligations, and which were credited to the account of the oil company. The notes referred to in this count were those referred to in the original opinion as fictitious. Defendant was acquitted on-the third count, arid the contention is every fact put in issue by the plea of not guilty to the third count was conclusively determined in his favor. The contention is un sound. Defendant may have been acquitted on the third count because just one material fact alleged was found in his favor— that defendant did not accept or receive or purchase the notes. The fact was he made them himself. Besides that, the issues in the two counts were not identical, res judicata may not be invoked, and the principle applies which was discussed at length in the opinion in the case of State v. Jackson, 121 Kan. 711, at pages 714 and 715, 249 Pac. 688.
The petition for rehearing reargues the whole subject of concealment. In the course of the argument defendant makes much of a statement contained in the original opinion to the effect the error entries of May 25 “exposed” the true condition of the oil company’s account. The word “exposed” was not used in the active sense of an exposer revealing something to a beholder. What was meant was that the oil company’s account on the ledger was again overdrawn, and'in view of the banking department’s complaint of overdrafts, a searching investigation might lead to discovery of the embezzlement. Defendant knew very well the next bank examination would not extend to a complete audit of the bank’s books. There was nothing new in the fact that the oil company’s account was overdrawn, and there is no evidence in the record to support defendant’s contention that the examiner who examined the bank in June knew the oil company’s overdraft was due to reversal of a false entry.
After reconsidering the entire case the court remains of the opinion the crime charged was effectively concealed by a series of acts designed by defendant to conceal.
The petition for rehearing is denied.
Jochems, J., not participating.
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The opinion of the court was delivered by
Dawson, J.:
This was an action by F. E. Devlin, a civil engineer, against the city of Pleasanton, on alternative causes of action, one on a city warrant for $2,750 issued by defendant to plaintiff, and another upon a settlement agreement whereby defendant' obligated itself to pay plaintiff $2,750 for engineering services.
This controversy had its inception as follows: On April 14, 1924, the city of Pleasanton determined to pave certain of its streets, and to that end it employed the plaintiff, a civil engineer whose headquarters were in Wichita, “to prepare maps, plans, profiles, specifications, estimates of quantities and costs, and to supervise the construction of paving, grading, curbing, drawing and otherwise improving streets and alleys, within the city of Pleasanton, to connect the terminals of the short-line road project through said city.”
The contract of employment also obligated the plaintiff-to consult with and advise the city council touching the engineering work, to provide forms of ordinances, resolutions, notices and the like, to be present at all lettings of construction work, and to furnish an experienced supervising engineer who should reside in Pleasanton while the construction work was in progress and whose duty it would be to lay out all work for the contractor, set grade stakes, inspect and test all materials, and to furnish an experienced chemist and complete laboratory equipment for testing the asphalt, brick, cement, sand, gravel and rock used in the improvement and to make daily tests thereof. For these services satisfactorily performed plaintiff was to receive a consideration of 5 per cent of the cost of the improvement, less $500 preliminary payment and whatever other advances might be paid to him as the work progressed.
Certain details of the contract of employment which may need particular attention stipulated:
“That this contract shall remain in force and effect ... if the work of paving or otherwise improving is done in Pleasanton within a period of ‘one year from the date [April 14, 1924].”
“For the above services, the party of the first part hereby allows the party of the second part the sum of $500 when the plans and specifications are approved by the state highway commission and the mayor and council of the city of Pleasanton.”
Pursuant to this contract plaintiff set about its performance. He and his employees made surveys. He made various preliminary plans and estimates and eventually drafted the plans and specifications upon which the improvement was constructed. The work itself was greatly delayed in the hope and expectation that the board of county commissioners and the state highway commission would contribute to the payment thereof. In 1927 the city council felt assured that these contributions would be forthcoming and that a considerable part of the work which the plaintiff had agreed to perform would be done by employees of the state highway commission, so the mayor and council entered into negotiations with plaintiff for a new agreement with him whereby he would terminate his contract and retire. Such an agreement was effected on April 4,1927. Plaintiff agreed to accept the sum of $2,750 in full for his services already performed, and a city warrant for that sum was issued to him. Shortly thereafter the city administration changed. The new city treasurer refused to pay the warrant, and this lawsuit followed.
The cause was tried by the court without a jury. No material issue of disputed fact was developed in the evidence. It was shown that the cost of the improvement was $89,702.71, so that if the original contract for plaintiff’s services had not been canceled by the agreement which gave rise to this lawsuit, plaintiff would have been entitled to $4,485.13 upon his satisfactory completion of all the services he had undertaken. The trial court made findings of fact, some of which read:
“ (3) The engineering work . . . was a pavement through the city . . . to connect up with a benefit-district road under R. S. 68-706.
“(4) The plaintiff, under his contract with the defendant, has partly performed the work required of him under paragraph one and he has partly performed the work required of him . . .
“(5) The plaintiff has wholly failed to perform the things required of him under paragraphs two, three, five, six, seven and eight of said contract.
“(8) The paving project was constructed under the plans made by the plaintiff and approved by the state highway engineer, but several ‘change orders’ were recommended by the resident engineer and approved by the state highway engineer, which resulted in total overcharges on the contract- in the sum of $1,302.95 and undercharges in the sum of $3,942.91. Eight of these ‘change orders,’ were necessary because of errors in the plans prepared by the plaintiff.
“(10) The contract attached to the plaintiff’s petition was prepared by the plaintiff and submitted to the city council and signed by the acting mayor and city clerk, on motion passed by the council.
“(11) There was no act of agreement on the part of the city that would continue the contract beyond the period of one year fixed in paragraph three.
“(12) Sometime prior to April 4, 1927, the city expressed a desire to have the construction work supervised by the county engineer, and a representative from the state highway engineer’s office proposed to the plaintiff that. he cancel his contract with the city. These negotiations resulted in an agreement whereby the city was to pay, and the plaintiff was to receive, in full satisfaction of the contract, the sum of $2,750, and a warrant was issued and delivered to the plaintiff for that amount. A copy of this warrant is attached to the plaintiff’s petition.
“(13) On April 14, 1924, when the contract was entered into, the plaintiff, with the intent to mislead and deceive, represented to the city council and acting mayor, and led them to believe, and they did believe, that it would be necessary for the city to hire an engineer to make specifications and estimates on ’ different types of pavement, prepare the necessary legal procedure, in order that a contract might be let according to law, notices, bidding blanks, forms of contract, contractor’s bond; for such engineer to be present at the letting of the contract and advise the city in awarding the contract to the lowest and best bid; to furnish an experienced supervising engineer who would reside in the city of Pleasanton while the construction was under way; that it would be necessary for such supervising engineer to stake out all work for the contractor, set all grade stakes, lay out all work, inspect and test all material going into the construction; to see, as inspector for the city, that all work was installed in a suitable manner and according to the'plans and specifications; that it would be necessary for the city to furnish an experienced chemist and complete laboratory equipment set up in the city of Pleasanton to make daily tests during the construction of asphalt tops, and furnish the city certified copies of the results of such tests; to furnish the city necessary equipment, either at Pleasanton or at the plant where the brick was manufactured, to test all brick; to make necessary analysis of cements and test all sand, gravel, and rock entering into cement work.
“(15) On April 4, 1927, when the warrant for $2,750 was issued and delivered to the plaintiff, the city officials of Pleasanton still believed that it was necessary for the city to furnish an engineer for all the purposes set out in finding No. 13, and that the plaintiff was entitled to 5 per cent on the cost of such improvement.
“(16) On April 14, 1924, when the contract was entered into between the plaintiff and defendant, the plaintiff knew that the things enumerated in finding No. 13 would be done and furnished by the state highway engineer’s office a$ far as necessary, and that neither he nor the defendant would have any control or supervision over them. The city officials had no such knowledge.
“(18) Just prior to April 4, 1927, when the city proposed to the plaintiff that they cancel the contract', because they preferred to have the work supervised by other engineers, there was no dispute whatever existing between the plaintiff and defendant over the amount due the plaintiff from the city, and there was no dispute existing between the parties over the plaintiff’s rights under the contract. They merely agreed t'o terminate the contract and that the plaintiff’s compensation up to date should be fixed at $2,750.
“(20) A fair and reasonable compensation to the plaintiff for all services rendered the city by the plaintiff, including all changes made in the plans and all changes made in routing the road through the city, is $750.
“Conclusions of Law.
“(1) The contract was lawfully entered into by the city.
“(2) Under the circumstances disclosed by the evidence, the plaintiff was under a peculiar obligation to the defendant to inform the city officials that the greater part of the work he was contracting to do came under the duties of the state highway engineer and could not be delegated to the plaintiff. The relation created by the contract was one of trust and confidence, and the plaintiff was under a high moral and legal obligation to disclose to the city officials the knowledge possessed by him peculiar to his profession, and not possessed by the city officials, in regard to the construction of such improvements.
“(3) The defendant is not precluded by the agreement of April 4, 1927, to pay the plaintiff $2,750 and the issuance of a warrant for that amount, for the reason there was no dispute existing between them; there was no actual controversy at that time, and none was anticipated; and neither of the parties to the contract was doubtful of his rights under the contract. There was no consideration to support the settlement and the well-established rule as to the finality of a compromise and settlement does not apply.
“(7) The warrant for $2,750 should be canceled, but the plaintiff is not precluded from recovering upon quantum meruit. Judgment should be for the plaintiff for $750 and costs.”
Judgment was entered in favor of plaintiff for $750.
Plaintiff appeals, contending that he was entitled to judgment for the full amount prayed for, and that there was no issue between the litigants to justify a judgment on quantum meruit; that there was no issue of fraud, misrepresentation or concealment raised by the pleadings and no evidence of either of these vices to justify the findings; and that the findings which controlled the trial court’s judgment were outside the issues and not supported by evidence.
It will be helpful, we think, in this appeal to consider what' arguments appellee may be able to advance to uphold the findings and judgment of the trial court rather than to follow in detail the errors assigned by appellant against it.
Counsel for appellee say: “The fundamental difficulty with appellant’s position is that he is trying to collect |2,750 and interest for services rendered to the value of $750.”
The value of plaintiff’s services was not an issue in this lawsuit. Defendant employed plaintiff upon a contract which if carried to satisfactory completion would have entitled him to $4,485.13. After rendering certain services in accordance with that contract, off and on for about three years, the city made a new contract with him whereby he was to terminate his services and accept $2,750 in full satisfaction thereof. All discussion of the value of his services is therefore beside the point.
It is argued in support of the judgment that plaintiff could not perform the contract of April 14, 1924, because many of the matters which by its terms he had undertaken to do fell within the scope of the powers and duties of the state highway commission. The simple answer to that proposition was that at the time that contract was made neither party to it could have had any assurance that the state highway commission would take an active interest in the improvement, or lend the services of one or more members of its engineering staff to further it; and that obvious answer also demolishes the argument of appellee in support of the findings of fraud, misrepresentation and concealment, so elaborately made by the trial court. There is no evidence in this record to support those findings, nor was any such issue tendered or suggested in the pleadings filed by either party.
A labored argument of appellee is constructed around the proposition that there was no controversy or dispute between plaintiff and defendant which could form a legal basis for a compromise settlement at the sum agreed upon between them. Quite true. There was no complaint that plaintiff’s plans and specifications and surveys and estimates were defective, no grievance because of “change orders” made or suggested by the state highway commission, no suggestion of fraudulent concealment of facts which plaintiff should have disclosed to defendant before entering into the contract of April 14, 1924, no complaint because plaintiff’s services had extended over three years, when it was originally contemplated that the improvement itself could be completed in one year. And if the fact that there were none of these or any other matters of grievance to form a basis for the agreement and settlement of April 4, 1927, was fatal to a recovery, plaintiff’s case would be hopeless indeed. But plaintiff’s cause of action was not formulated on the basis of a compromise and settlement of matters of substantial disagreement. So far as this record reveals, there was amity and concord between plaintiff and the city from first to last. The city hired him to do a work which on completion would have yielded him $4,485.12. Eventually the city discovered that it could save considerable money by getting unexpected free services from the highway commission, and by negotiation with plaintiff a satisfactory second agreement was made with him whereby he should receive a stipulated price for what he had already done and expended in connection with his employment, and release the city and be released himself from further performance of the contract of 1924. There was no infirmity in that second contract, no want of power to make it, and no necessity that it be based upon some artificial or fictional controversy to sanction it. The task this court has so far unsuccessfully pursued is to discover any legal or equitable excuse for the city to relieve it from living up to its agreement of April 4, 1927. One quite futile suggestion is that the original contract of employment was for one year. We" have quoted above just what the contract said on that point. Time was not of the essence of the contract; the delays were not occasioned through the fault of plaintiff; defendant continued after the year expired to use the services of the plaintiff, and eventually used his plans and specifications in the actual work of constructing the improvement. The findings speak of many “change orders” as if these indicated faults and errors of plaintiff, but the evidence does not warrant such an interpretation. Moreover, no set-off on account of "change orders” or errors of plaintiff was pleaded in diminution of defendant’s liability. Indeed, the trial court ignored the “change orders” when it decided the case on its theory of quantum meruit.
Appellee calls attention to the fact that plaintiff testified that the reasonable value of his services up to the time he retired was $3,000. It is suggested that this would contribute to the formation of a basis for the judgment entered on quantum meruit. We think not. We do not overlook defendant’s evidence on this point. It adduced no evidence on the subject of plaintiff’s expenses which necessarily had to be taken into account in determining his compensation. Plaintiff testified that his out-of-pocket expenses for himself and his employees and his office overhead was. $1,862.21, but this testimony the trial court found to be unbelievable. It is, however, quite believable, and also a matter of judicial notice which needs no proof, that those expenses running over a period of three years would amount to a substantial sum; and it is also quite believable without formal proof that if plaintiff had not agreed to accept $2,750 and retire, and had held on to his original contract, his stipulated 5 per cent consideration based on the cost of the completed improvement would have yielded him a fair compensation together with all his expenses and a fair profit as well.
A painstaking perusal of this record fails to disclose any justification for the judgment or any legitimate defense to plaintiff’s demand. In this case the issues were clearly defined by the pleadings. Plaintiff’s petition stated a good cause of action and the evidence in its support was sufficient and not controverted. No 'meritorious defense was suggested by the answer nor developed by defendant’s evidence. In such a situation it becomes the duty of this court under the mandate of the civil code to order the proper judgment. (R. S. 60-3317; Manufacturing Co. v. Porter, 103 Kan. 84, syl. ¶ 3, 172 Pac. 1018; Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437.)
The judgment of the district court is reversed and the cause remanded with instructions to enter judgment for plaintiff as prayed for in his petition.
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The opinion of the court was delivered by
Burch, J.:
Plaintiffs were C. A. Little and others. Defendants were the Kansas Wheat Growers Association and the Kansas Cooperative Marketing Association. The state intervened. A demurrer to the intervening petition was sustained, and the state appeals.
Plaintiffs, as stockholders of the wheat growers association, sued for themselves and other stockholders. The petition charged abuses of corporate power and alleged that the wheat growers association had transferred property to the marketing association without consideration. The prayer was for recovery of the property or its value from the marketing association, for removal of officers of the wheat growers association, for appointment of a receiver, and for winding up the affairs of the wheat growers association. The material allegations of the state’s intervening petition were substantially the same as those of the petition; but the intervening petition contained no prayer for any kind of relief, and neither defendants nor the district court had any information concerning what fixed purpose the state had when it came into the case. In this court the state indicates it intervenes under the statute relating to corporate dissolution, which provides for removal of officers, appointment of a receiver, and winding up of affairs. The remedies are invocable in case the corporation is insolvent, or in case it “perverts or abuses its corporate privileges.”
Neither the stockholders’ petition nor the state’s intervening petition alleged insolvency, nor stated facts from which insolvency was made to appear. There was no statement of facts showing the association owed any money to anybody, and both petitions disclosed the corporation has some assets.
The intervening petition alleged the wheat growers association was irregularly and fraudulently organized, its corporate powers have been abused, its property has been dissipated, the business for which the corporation was chartered has terminated, and its corporate objects have been abandoned. Leaving at one side the transfer of property to the marketing association, the pleaded facts justifying the charges were presented to this court a year ago by the attorney-general in the case of State, ex rel., v. Kansas Wheat Growers Ass’n, 127 Kan. 669, 274 Pac. 731. The syllabus reads:
“Where it appears that the principal object of an original action in quo warranto is the state’s espousal of a series of private controversies between a corporation and some of its members, and to prevent the corporation from litigating with its members certain demands of disputed merit, and where there is no serious charge against the corporation of any breach of its corporate duty towards the state itself, the proceeding will be dismissed.”
The state says the first action has nothing to do with this one, the first action was in quo warranto and was destructive, and this action is visitorial and constructive.
The quo warranto statute under which the first action was prosecuted reads as follows:
“Third, When any association or number of persons shall act within this state as a corporation, without being legally incorporated.
“Fourth, When any corporation does or omits acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or when any corporation abuses its power or exercises powers not conferred by law.” (R. S. 60-1602.)
In the case of State, ex rel., v. Oil and Gas Co., 105 Kan. 340, 182 Pac. 547, the syllabus reads:
“In a proceeding in quo warranto in which a corporation is charged with abuses of the franchise granted to it, and with unlawful practices by its board of directors, the charges are found to.be in part sustained, and, exercising the discretion vested in the court, it is adjudged that there be a partial ouster by the prohibition of the abuses and unlawful practices and the selection of efficient and law-observing directors.” (¶ 2.)
Therefore, so far as form of action is concerned, the quo warranto action affords ample opportunity for visitorial correction.
The petition in quo warranto made the same charges which are now made. The prayer, except the formal prayer for ouster, was for a receiver, for dissolution, and for winding up. The prayer of the stockholders’ petition in this action was for a receiver, for dis solution, and for winding up. What did the state want done? Its intervening petition was silent. In its brief, however, its notion of what ought to be done is revealed. After a recapitulation of corporate irregularities and misdeeds, it is said:
“It is time its affairs should be wound up, the property thus alienated restored to its possession, and if necessary, a receiver appointed to this end.”
The result of the foregoing is the intervening petition contains but one ground for appointing a receiver and winding up the affairs of the corporation, which has not been considered and rejected.
It appears from the petition and the intervening petition that the wheat growers association transferred some property to the marketing association without consideration. There is no allegation in either petition giving any clue to the nature or quantity of property transferred or its value. The petition alleges the transfer was made about 1925. If so, claim for restoration or for damages is barred by limitation. The intervening petition significantly omits to state when the transfer was made. Whenever it was made, qualified persons, the stockholder plaintiffs, have an action pending to recover the property or its value. If the help of a receiver is needed the court may appoint one. When the stockholder plaintiffs secure restoration of the misappropriated assets to the treasury of the corporation that abuse of corporate power will be remedied; and the present public interest in the behavior of the wheat growers association in the matter of the stale transfer is too faint and too remote to make the state a real party in interest in this litigation. Everything else in the case is covered by the syllabus of the former decision, quoted above, and by the following quotation from the opinion:
“It would be a very disturbing situation if every internal controversy between members of a corporation based on alleged fraudulent practices on the part of some towards others of their number should be permitted to drag the state itself into litigation and cast upon it the burden of maintaining or defending causes of that sort. In such cases the state does its whole duty when it furnishes courts where such private grievances can be aired and redressed at the instance of the individuals concerned.” (State, ex rel., v. Kansas Wheat Growers Ass’n, 127 Kan. 669, 672, 274 Pac. 731.)
The judgment of the district court is affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Harvey, J.:
These five cases are similar in their facts and involve identical legal questions. Plaintiffs sued the bank and its receiver for the amount of notes sold to them respectively by the bank, which notes .were secured by a mortgage to the bank, which the bank was to hold for their benefit, and which mortgage the bank released by its president, since which time title to the mortgaged property has passed to innocent purchasers. At the time of the release of the mortgage the legal title to the real property was in the name of the president of the bank. The defense in these actions is that the release was not effective to discharge the mortgage. The trial court made findings of fact and conclusions of law and rendered judgment for plaintiffs. Defendants have appealed.
The pertinent facts may be summarized as follows: On March 1, 1921, Mary Ann Strahm, her son Matthias Strahm, and his wife Lena Strahm, were indebted to The Citizens State Bank of Sabetha in the sum of $34,400, and on that date they executed a series of twelve notes, in different sums, aggregating that amount. In October of that year the Strahms, to secure the payment of these notes, executed and delivered.to the bank their mortgage on land owned by them in Nemaha county (subject to a prior mortgage of $17,000). The mortgage was duly recorded. In this mortgage the notes of March 1,1921, were listed as to date, due date, amount and number. At the time the notes were executed the name of the payee was left blank, but the payee in each of the notes was, in fact, the bank. The Strahms renewed these notes March 1, 1922. The active managing officers of the bank appear to have been F. C. Woodbury, president; J. C. Lichty, cashier, and E. E. Morris, assistant cashier. The bank, through these officers, or some of them, sold some of the Strahm notes — to the plaintiff Trees, note No. 11 for $3,900; to the plaintiff Hollister, note No. 1 for $2,000 and note No. 8 for $2,000; to the plaintiff Meyer, note No. 6 for $3,000 and note No. 7 for $1,000; to the plaintiff Arick, note No. 12 for $4,000, and to plaintiff Mills, note No. 5 for $2,500. The names of the respective purchasers were inserted as payees of the notes. At the time of these respective sales the bank, by its president and cashier, represented to plaintiffs that the bank had good security for the notes sold, and it did in fact have the mortgage given by the Strahms to the.bank to secure the payment of the notes, and kept the same in trust for the benefit of plaintiffs and other holders of these notes. The land was of sufficient value to secure the notes. As it became due the bank paid the interest on the notes to the holders thereof, money for that purpose having been collected by the bank from the Strahms. On May 6, 1924, the Strahms conveyed the land described in the mortgage to F. C. Woodbury, J. C. Lichty and E. E. Morris, the grantees assuming the mortgages of record, which included the mortgage to the bank in the sum of $34,400. They appear to have paid nothing for this conveyance, but did give the grantors a repurchase agreement, which was later abandoned or surrendered. Lichty' died, and in February, 1925, his widow and children, through their guardian, conveyed their interest in the land to F. C. Wood-bury. Morris also executed a conveyance of his interest in the property to Woodbury. On February 24, 1926, The Citizens State Bank of Sabetha, by F. C. Woodbury, its president, released of record the mortgage which had been given to it by the Strahms. This was unknown to the plaintiffs, who were holders of the Strahm notes. Woodbury thereafter sold the land. The plaintiffs did not receive any of the proceeds of the sale. Whether the bank received the proceeds of the sale was not disclosed by the evidence. The bank failed March 22, 1928. Plaintiffs did not learn of the release of the Strahm mortgage until after the failure of the bank.
Appellants cite and rely on Hier v. Miller, 68 Kan. 258, 75 Pac. 77, and allied cases. These authorities are not in point. This is not an action by the bank to set aside the release of the mortgage and to hold the real property liable therefor. Neither is it an action against F. C. Woodbury for a wrongful release of the mortgage. As the court found the facts, a summary of which has been stated, the bank was the holder of the mortgage to secure the notes originally given to the bank, and which the bank had sold to the individual plaintiffs. As to these plaintiffs the bank was a trustee, holding security for their benefit. In such a situation the bank violated its trust by executing and recording this release without the knowledge or consent of the holders of the notes. Woodbury was president of the bank. Under the statute (R. S. 67-318) the release was valid, in form at least, when executed by the president of the bank and attested by its corporate seal, as was the release in this case. It is argued that the directors and officers of the bank other than the president did not know that Woodbury had executed this release. The court made no finding on that point, and the most that can be said of the evidence is that some of the officers and directors did not know of it. The stockholders and directors of the bank had chosen Woodbury as its president, and are responsible for having placed him in a position in which he could execute a valid release of mortgages held by the bank. Plaintiffs had nothing to do with placing him in that position, or giving to him that authority. It is well settled that the holder of a mortgage or trust deed in trust for the benefit of the owners of notes secured thereby is liable to the holders of such notes for a wrongful release of the mortgage or trust deed. (41 C. J. 605, 607, 1035, 1036; 39 Cyc. 513; 26 R. C. L. 1321 et seq.)
The bank had authority to take mortgages on real estate (R. S. 9-101) and to deal in notes. The indebtedness was substantial in amount. The bank took a series of notes secured by the one mortgage. It sold these notes to various purchasers, retaining the mortgage as security for all of them, and thus became a trustee for the holders of the notes. As such trustee it was bound to the utmost good faith (Morrow v. Comm’rs of Saline Co., 21 Kan. 484) to keep the mortgaged security intact, and is liable in damages for its failure to do so. (7 C. J. 597; Bank v. Bank, 106 Kan. 303, 187 Pac. 697; Stone v. Bank, 107 Kan. 332, 190 Pac. 1094; Fulton v. Farmers Nat’l Bank, 122 Kan. 400, 252 Pac. 242, 123 Kan. 1, 253 Pac. 561; Bock v. First Nat’l Bank, 123 Kan. 304, 255 Pac. 68.)
The judgment of the trial court is in harmony with these authorities and must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff prosecuted this action against the defendants, including the Cleburne State Bank, to recover on a promissory note given to the defendant Clara B. Irby by the defendants Frank Hanzlik and Mary Hanzlik and assigned by Clara B. Irby to the plaintiff. Judgment was rendered in favor of the plaintiff, and the Cleburne State Bank appeals.
The petition alleged the execution of the note and its assignment to the plaintiff, and also alleged that at the time the note was assigned to the plaintiff it was in the custody of the bank for safekeeping; that upon the bank being informed that the note had been transferred to the plaintiff, the bank pretended that the note was lost and for that reason could not deliver the same to the plaintiff; that afterward the bank found the note but refused to deliver it to the plaintiff, although requested so to do by the plaintiff and by Mrs. Irby; and that the bank attached the note for a debt due to it from Clara Irby, obtained judgment against her, and sold the note under order of the court to pay the judgment. The written assignment of the note was dated October 26, 1922. The order of attachment was issued on October 26, 1922, and was levied on October 27,1922.
The answer of the bank alleged:
“That on the 23d day of October, 1922, the defendants, A. W. Irby and Clara B. Irby, were indebted to the answering defendant for moneys loaned the said defendants by the bank, in the sum of about four thousand dollars and some accrued interest. That the credit had been obtained from the bank and the loans had been obtained on the strength of ownership of property as follows: That said A. W. Irby was the owner of a certain quarter section of land which he had used and occupied as his homestead for a number of years. In addition thereto, the said A. W. Irby had purchased and bought and was in control of a certain quarter section of land, farmed by himself and his sons, the homestead quarter section and the second quarter section being encumbered with a mortgage for $4,500, being considerably less than the actual value. The equity in the second quarter of land was considered in part, by the bank, as a basis for credit to the said Irbys. In addition thereto and as a further basis for credit, the bank held in its possession and under its control a certain note secured by a real-estate mortgage, in the'sum of one thousand dollars, the note and mortgage being the subject of this action, the same being the debt and obligation of Frank Hanzlik to Clara B. Irby. Said note and mortgage had been in the bank for some years prior to and up to and on the 26th day of October, 1922. That A. W. Irby had personally borrowed certain other sums from the bank, in part secured by chattel mortgage.
“That the said loans of four thousand dollars had been obtained by the Irbys from the defendant bank, on the financial strength and credit of the ownership of the real estate mentioned herein and the note and real-estate mortgage mentioned herein.”
The evidence disclosed that Clara B. Irby and the wife of the plaintiff were sisters; that Mrs. Irby became indebted to the plaintiff and his wife in 1915 in the sum of $750, evidenced by a note bearing six per cent interest; that at some time prior to October 26, 1922, it was agreed that Mrs. Irby should pay this indebtedness by assigning the note in controversy and the mortgage given to secure it to the plaintiff; that the value then placed on the note was the sum of $1,040; that on October 26, 1922, the plaintiff gave to Mrs. Irby a check for $290, the difference between the value placed on the note and the amount of the indebtedness from Mrs. Irby to the plaintiff; and that the note and mortgage were not then turned over to the plaintiff by Mrs. Irby for the reason that they were in the bank.
The evidence was submitted to a jury, which answered special questions as follows:
“1. When did the officers of the defendant bank first have notice or knowledge of the execution of the assignment in question with reference to the time of the levy of the attachment? A. Morning of October 26, 1922.
“2. Did the officers of the defendant bank receive actual notice or acquire knowledge of the assignment of the Hanzlik note and mortgage before the date of its being filed for record in the office of the register of deeds of Riley county, Kansas? A. Yes.
“3. If you answer the last foregoing question in the affirmative, then state the exact time and from whom such notice was received or such knowledge imparted. A. Prom Mrs. Clara B. Irby, the morning of October 26, 1922.
“4. Did Mrs. Irby, on October 26, 1922, demand from the defendant bank the note and mortgage in question? A. Yes.
“5. If you answer the last foregoing question in the affirmative, did she at that time state for what purpose she desired it? A. Yes.
“6. If you answer the last foregoing question in the affirmative, then state what she told the officers of the bank. A. Mrs. Irby told the officers of the bank that she had sold the note and wanted to assign the note and mortgage to Mr. Raines.
“7. If you answer question No. 4 in the affirmative, then state whether the bank or its officers had such note and mortgage in their possession at the time. A. Yes.
“8. If you answer question No. 7 in the affirmative, then state why the officers of said bank did not deliver said note and mortgage to Mrs. Irby at the time. A. To prevent Mrs. Irby from delivering note and mortgage to Mr. Raines.”
1. We quote from the brief of the appellant as follows:
“The bank based its claim upon the fact that the transfer of the note and mortgage to the appellee was prima facie void under the statute of frauds.”
The appellant cites section 33-103 of the Revised Statutes, which reads:
“Every sale or conveyance of personal property unaccompanied by an actual and continued change of possession shall be deemed to be void as against purchasers without notice and existing or subsequent creditors, until it is shown that such sale was made in good faith and upon sufficient consideration. This section shall not interfere with the provisions of law relating to chattel mortgages.”
The note was assigned on October 26, 1922, and would have been placed in the hands of the plaintiff on that day but for the failure of the bank to turn over the note when requested so to do. Everything was done that could be done by Mrs. Irby and the plaintiff to place the note in the possession of the latter. The bank prevented that being done. It cannot now urge that it was not done.
The facts alleged in the answer did not show any fraud practiced by Clara B. Irby on the bank. The bank had possession of the note, but according to the answer it did not have any lien or any right to retain that possession against the desire of Mrs. Irby. The bank may have extended credit to her on the strength of her ownership of the note, but credit on the strength of ownership of property does not prevent the owner from transferring the property. Such a transfer can be made without any fraud on a creditor unless the transfer is made for the purpose of hindering, delaying or defrauding the creditor in the collection of the debt. There is nothing in the answer that says or amounts to an allegation that the note was transferred for the purpose of hindering, delaying or defrauding the bank in the collection of its debt.
In Van Vliet v. Halsey, 37 Kan. 116, 14 Pac. 482, this court said:
“Real property, conveyed before judgment, cannot be subjected to the payment of such judgment, unless, in an action brought for the purpose, it is alleged and proved that it was conveyed with intent to prevent the judgment being enforced against it.”
Bearing somewhat on this question, although not directly in point, are L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kan. 169; Lewis v. Burnham, 41 Kan. 546, 550, 21 Pac. 572; Gleason v. Wilson, 48 Kan. 500, 29 Pac. 698; In re Johnson, 92 Kan. 59, 62, 139 Pac. 1161.
2. The bank contends, “that the district court of Riley county had acquired jurisdiction of the subject matter of the suit before the assignment became effective, if it ever was valid.” The attachment was levied on the note after the bank had notice that the note had been transferred by Mrs. Irby to the plaintiff. All the rights of Mrs. Irby in and to the note had been transferred to the plaintiff before the attachment was levied. That transfer was good unless it was made with the intent to hinder, delay and defraud the bank in the collection of its debt. The transfer would have been good in the absence of a fraudulent intent on the part of Mrs. Irby, even if the bank had not received any notice of the transfer before the attachment was levied. (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152, 12 Pac. 705; Bank v. Fleming, 63 Kan. 139, 141, 65 Pac. 213; Julian v. Oil Co., 83 Kan. 440, 111 Pac. 445; Fairbanks, Morse & Co. v. Inglitt, 106 Kan. 488, 188 Pac. 248; Bailey v. Pierce, 123 Kan. 359, 255 Pac. 37.)
The judgment is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
This action was tried between the plaintiff Hard-man Lumber Company and the defendant H. F. Kline as an action in conversion. Plaintiff alleged that defendant had converted to his own use some corn belonging to plaintiff. Judgment was rendered in favor of the plaintiff, and defendant appeals.
Judgment was entered on March 8, 1929. Motion for a new trial was filed March 9, 1929, and was overruled on March 26, 1929. The journal entry of the order overruling the motion for a new trial was entered on the same date.
Appellant gave notice of appeal which, omitting caption, reads as follows:
“To the Hardman Lumber Company and to W. H. Wagner, its attorney:
You will take notice that H. F. Kline, the above-named defendant, appeals from the judgment of the district court of Trego county, Kansas, to the supreme court.
Herman Long, Attorney for said Defendant.”
The appellee contends that the notice of appeal was insufficient to invoke the appellate jurisdiction of this court. The appellant did not include in his notice of appeal anything to indicate that he appealed from the order overruling the motion for a new trial.
In the case of Tucker v. Tucker, 97 Kan. 61, 154 Pac. 269, a judgment was rendered on April 17,1914. Motion for new trial was filed in time, but was not decided until November 14, 1914. The notice of appeal recited that the intervener appealed “from the judgment and decision of this court entered herein about April 17, 1914,” and it was held that such notice was too late, and the appeal was dismissed for want of jurisdiction. On page 62 of the opinion the.court said:
“When the motion for a new trial was decided the time for appeal from the original judgment had already expired. Hence it was necessary in order to present a matter of which we would have jurisdiction to appeal from the order denying the motion for a new trial. This was not done. The notice limited the appeal to the original judgment, or to such part thereof as upheld the validity of the mortgage. . . . This jurisdiction is vested by statute only, and no estoppel, laches or informality of a party can confer it. Neither does failure to raise the question relieve us of the duty to decline, even of our own motion, the exercise of jurisdiction which we do not possess.” (Citing numerous cases.)
In Buzbee v. Morstorf, 105 Kan. 270, 182 Pac. 644, it was held:
“The serving and filing of a notice that a party appeals from a judgment rendered against him on a specified date does not effect an appeal from an order made after that date, and before the service of such notice overruling a motion for a new trial. (Tucker v. Tucker, 97 Kan. 61, 154 Pac. 269, and Bank v. Bank, 102 Kan. 412, 171 Pac. 10, followed.) Such an appeal, when taken more than six months after the judgment referred to, presents nothing for the consideration of this court and will be dismissed.” (Syl.)
In the above authorities it is clearly established that a notice of appeal which appeals from a judgment does not appeal from an order overruling a motion for a new trial which is entered subsequent, to the entry of the judgment. In the case last cited the court further said:
“The judgment here involved, immediately upon its rendition, was capable of sustaining an appeal in which any prior rulings could be examined, excepting those made in the course of the trial of the issue of fact (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718), or those which would have supported an independent appeal on which the bar had run. (Slimmer v. Rice, 99 Kan. 99, 160 Pac. 984.) After six months no rulings were open to review, excepting those involved in the motion for a new trial (Bank v. Harding, 65 Kan. 655, 70 Pac. 655), and these only by means of an appeal taken from the decision on that motion.” (p. 271.)
Since the errors which are alleged by the appellant as grounds for appeal are only such as were made on the trial of the cause, they can only be reviewed on appeal after they have been brought to the attention of the trial court by a motion for a new trial. In this case a motion for a new trial.was properly filed and was overruled, but the appellant did not take an appeal from the order overruling the motion for a new trial. He did not include this order in his notice of appeal.
In Withroder v. Elmore, 106 Kan. 300, 187 Pac. 863, it was held:
“Inasmuch as the plaintiff recovered a judgment, from which the appeal was taken, and filed no motion for a new trial, no review can be had herein of any trial ruling made against him.” (Syl.)
See, also, Blomberg v. Bank, 119 Kan. 691, 241 Pac. 242.
It clearly appears, therefore, that in order to bring to this court for review errors made upon the trial of a cause two steps are necessary:
(1) A proper motion for a new trial must be filed in time and have been duly presented and overruled.
(2) A proper notice of appeal must be given and this notice of appeal must specify that appeal is being taken from the order overruling the motion for new trial.
The notice of appeal herein specified only the judgment. It did not include the order overruling the motion for new trial. Since the errors complained of were trial errors, if any, this court has no jurisdiction to consider such alleged errors on this appeal. This court cannot and will not assume jurisdiction unless it is clearly authorized by the constitution and the statutes of the state of Kansas.
The appeal is dismissed for want of jurisdiction.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Jochems, J.:
The plaintiff sued defendant for damages for false arrest. Plaintiff recovered judgment in the sum of $142.68, and defendant appeals.
The evidence showed substantially the following: That shortly prior to June 26,1925, the plaintiff and his wife were divorced. The action had been decided in favor of the wife and the district court ordered plaintiff to turn over to his wife as alimony a portion of his property. This he did. The order of the court was fully complied with. Following the decree in the divorce action and the full compliance therewith by the plaintiff, on June 26, 1925, the defendant came to the place where plaintiff was working and told him that plaintiff’s wife and her attorneys were conspiring to bring some sort of claim against the plaintiff for' more, alimony, and that plaintiff would lose all his property unless he took steps to protect himself. The defendant then suggested that the best thing for plaintiff to do would be to give the defendant a mortgage on all of his personal property. After some discussion the plaintiff agreed to do this, providing the defendant would give him back a writing to the effect that the mortgage was void as against the plaintiff. This arrangement was agreed upon and a written memorandum was executed. Plaintiff alleged in his petition that he had lost his copy of the memorandum, and at the time of the trial both parties had lost their copies of this memorandum. They differed, however, as to its contents, plaintiff claiming it was a memorandum showing that the mortgage was void as against him, and the defendant claiming it was a memorandum providing that as to any excess derived from a sale of the property over what the plaintiff owed the defendant, the mortgage was to be void.
The evidence showed that after the memorandum was drawn and signed the plaintiff executed to the defendant a chattel mortgage on all of his personal property he had left after having complied with the alimony order of the court. The mortgage was to secure the sum of $423. After this mortgage was given the plaintiff sold a span of mules covered by the mortgage and thereafter, on December 6, 1927, the defendant caused a warrant to be issued by a justice of the peace and had the plaintiff arrested for unlawful sale of mortgaged property. The sheriff arrested the plaintiff on December 9, 1927, took him into custody, and when he was arraigned he explained the circumstances to the justice and the county attorney, and his case was continued until December 15, 1927. On that date he again appeared before the justice of the peace. He was then discharged and the case was dismissed.
The defendant pleaded by way of set-off a judgment which he held against the plaintiff for $78, and an itemized statement of account for a number of items totaling $63.20. In addition thereto he set up a general denial and that in obtaining the complaint he was not actuated by malice and did not act without probable cause, but that the action was taken upon the advice of competent counsel.
The appellant contends that the court erred in admitting any evidence under plaintiff’s petition because the petition showed that the mortgage was given for a fraudulent purpose, namely, that of defrauding the wife of the plaintiff, and contends that a suitor should not be permitted to plead his own rascality as ground for recovery against another. This sounds plausible, but it must be remembered that the petition alleged that the giving of the mortgage was induced bj^ fraud on the part of the defendant. Furthermore, the plaintiff was not bringing any action based upon the fraudulent mortgage, but the circumstances relating thereto were pleaded by way of giving a preliminary statement of the situation leading up to the false arrest. The gist of plaintiff’s action was false arrest. This false arrest was not induced or brought about by any fraud on the part of the plaintiff. Therefore this contention of the appellant is without merit.
The appellant urges several assignments of error upon the instructions given by the court. We have examined these instructions and on the whole find that they fairly stated the case to the jury, and we do not find reversible error therein.
The appellant further complains that the court refused to give an instruction requested by the appellant relative to the issue of probable cause. It appears from the record that after plaintiff’s attorney had made his opening argument to the jury at the close of the case, and while counsel for defendant was in the process of making his argument to the jury, he turned to the court and made request for a special instruction on the question of probable cause. The court refused this instruction and noted thereon that his reason for refusal was that the evidence did not indicate that the defendant consulted the county attorney as to the course he should pursue and did not act upon counsel of the county attorney. The record does not disclose that the defendant took the advice or counsel from any lawyer. It does show that he went to the county attorney and asked for a warrant, but the county attorney did not testify that the defendant asked him to advise him as to the law. His testimony as set out in the counter abstract of the appellee appears as follows:
“Q. And can you tell the jury about what Mr. Morrison, said to you at that time? A. Well, he said that Mr. Parmenter had sold two mules on which he had a mortgage, and sold them to Jim Mathis, and he wished to have Mr. Parmenter arrested for selling mortgaged property, and I think he told me Mr. Spealman (an attorney) had investigated the sale and there was no question but what a sale was made, and that’s all I remember.
“Q. Well, do you remember whether or not he asked you anything of that kind — about it being a violation of law? A. No, I don’t think he did. I don’t think there was anything said as to the law; I think he knew it, or presumed he knew it, and presumed I knew it.”
It appears from the record that when the defendant obtained the mortgage from the plaintiff he was accompanied by an attorney named Spealman. Spealman testified as a witness on the trial of thé case at some length, both as to the situation existing when the mortgage was obtained and as to the substance of the written memorandum executed at that time, which both parties had lost, but he did not testify that he at any time advised or counseled the defendant to obtain a warrant for the arrest of the plaintiff. In view of the fact that the record shows that there was no evidence whatsoever before the jury that the defendant had consulted an attorney, or taken any advice or counsel before obtaining the warrant, the trial court quite properly refused the instruction requested.
The appellant contends that the court failed to submit the issue as to the right of the defendant to recover against the plaintiff on his set-off consisting of a judgment and costs, and that the jury failed to give any credit therefor. A special question was submitted to the jury and answered as follows:
“Q. Did W. H. Morrison on June 6, 1925, recover a judgment against Frank Parmenter in the sum of $78 bearing 10 per cent interest from date, together with costs in the sum of $17.55? A. Yes.”
The appellant contends that the jury while making this special finding did not allow the defendant any credit therefor on the judgment. The itemized account of $63.20 claimed by way of set-off was disallowed by the juiy in another special finding.
The appellee argues forcibly that, inasmuch as the jury in its special finding did find in favor of the defendant on the judgment of $78 and costs, and then returned a verdict for $142.68, the very fact that the amount determined in the general verdict is not even money would indicate that the jury deducted the amount of the judgment found by way of set-off. The appellee points out that what the jury did was to allow damages for the false arrest in the amount of $275. It then figured the interest on the judgment and the costs allowed by way of set-off. The judgment and costs amounted to $95.55 and interest on this from June 25, 1925, the date of the rendition of the judgment, until May 11,1929, amounted to $36.77, making the judgment, costs and interest aggregate $132.32. This amount deducted from $275 leaves the amount of the general verdict, namely, $142.68.
The rule is that a general verdict and special findings should always be harmonized, if possible; that every reasonable presumption is indulged in favor of the general verdict. (See Moore v. Connelly, 119 Kan. 35, 237 Pac. 900, and cases cited therein.) Taking this view of the matter and taking into consideration the fact that the trial court has approved the verdict, we conclude that the general verdict of the jury should stand.
We have examined other specifications of error made by the appellant relative to the refusal of instructions and find no error therein.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, a riparian owner of land on the Kansas river in Pottawatomie county, commenced this action, one in ejectment, to recover from Fred J. Bernritter land which the latter had purchased from the state of Kansaspmder section 72-2128 of the Revised Statutes. Will J. French, as state auditor, and the state of Kansas, on the relation of William A. Smith, attorney-general, intervened and contested the title of the plaintiff. Judgment was rendered in favor of the plaintiff; and Fred J. Bernritter, Will J. French, as state auditor, and the state appeal.
The plaintiff claimed title to the land in controversy by reason of accretions to the land owned by him along the Kansas river. Fred J. Bernritter, Will J. French, as state auditor, and the state-claimed that the land in controversy, prior to 1903, had been a part, of the bed of the Kansas river and that in the flood of that year the river abandoned that channel and made a new one in an entirely different place. The point at issue was whether the land in controversy had been added to the land owned by the plaintiff by accretion or whether the land had been made by avulsion in the flood of 1903.
At the trial the appellants demurred to the evidence of the plaintiff. That demurrer was overruled. In their brief the appellants say:
“The questions involved in this appeal are: (1) Is there any evidence to support the claim of accretion, and the verdict therefor? ... (2) Did the court err in overruling objection to testimony of witness Itz and remarks of counsel? ... (3) Were the instructions complete and correct; and were certain instructions requested by appellants properly refused? ... .”
The principal contention of the appellants is that their demurrer to the evidence of the plaintiff should have been sustained. The same question was presented to the court by a motion of the state and of Will J. French as state auditor for judgment in favor of the state notwithstanding the verdict, which motion was overruled. The appellants argue that the evidence of the plaintiff was not sufficient to warrant the submission of the case to the jury, nor to sustain a judgment in his favor. Such a proposition is easy to state but hard to establish when facts have been found by those who knew nothing about them except what they learned from the evidence. Contentions of that kind impose on this court the duty of carefully examining the evidence to ascertain whether or not the contention made is correct unless the parties contending for the sufficiency of the evidence point out evidence sufficient to sustain the finding or judgment. That has been done by the plaintiff in the present action. In a counter abstract the plaintiff sets out in detail the evidence of six witnesses which not only tended to prove, but fairly conclusively established, that the land in controversy had been formed by accretion before 1903. No good purpose will be served by setting out that evidence.
Complaint is made of the admission of certain testimony of Felix Itz, the county engineer of Wabaunsee county, and of remarks of counsel concerning an exhibit identified by that witness. We quote from the brief of the appellants as follows:
“The plaintiff called as a witness Felix Itz, the county engineer of Wabaunsee county, who had made a survey in 1927 of the land in controversy. After identifying this survey the witness was asked the following questions, and the following proceedings were had:
“Q. And where had the river been running? Did it show the old river bed there from where you were measuring — I mean the river bed in 1903? A.' The river bed was south of this line — of this bank.
“By Mr. Harvey: We move to strike out the answer as to where the river bed was in 1903, for the reason that the witness has not shown himself qualified to answer; that he does not claim any knowledge back to 1903.
“The Court: Objection overruled. Motion denied.
“Q. I mean where the river had been flowing. At the time you measured it did it show where the river had been flowing prior to that time?
“By Mr. Harvey: Same objection; same motion.
“The Court: Objection and motion denied.
“A. Yes, sir.
“Q. And show which side of that bank was that river at that time? This river bed — where the river had been flowing? A. South of the bank.
“By Mr. Crane: Now we will offer this to the jury to look at the map.
“By Mr. Crane (addressing the jury): This (indicating) is the mark where the old river bank was in 1862 — this is the government survey in 1862; lot 4 on the other line is down there (indicating) somewhere — it is not marked. Lot 4, this (indicating) is the lot we are talking about on which we claim the accretion has been; the river now comes here and cuts off a little corner. Now we will call your attention to the fact that this is where that bank was that is marked ‘seven to eleven feet high,’ and the river lies there. This is where the witnesses have testified that the 1903 water was running here.
“By Mr. Harvey: We object to going into that; all the witnesses have said to the contrary.
“The Court : When you get ready you can show that.
“By Mr. Crane: And that is what our witnesses say has been the bank as long as they can remember. (Mr. Crane shows to all of the jurors.)”
Neither the admission of that evidence nor the remarks and conduct of counsel furnish sufficient ground for reversing the judgment.
The appellants argue that the court committed error in refusing to give instructions requested by them and in the instructions given to the jury. The appellants requested fourteen instructions, six of which are set out in the abstract as having been refused. The instructions given by the court correctly and fully gave to the jury the law concerning the questions at issue in the action. The principal question at issue was one of fact, whether or not the land in controversy had been formed by accretion or was created by avulsion. (Pessemier v. Hupe, 121 Kan. 511, 247 Pac. 435.) The court defined each of those terms and the rights of the parties to the action under the facts as they should be found by the jury. The court told the jury that if the land in controversy had been added to the land of the plaintiff by accretion the verdict should be in his favor, but if the land had been created by avulsion the verdict should be for the appellants. That was all that was necessary for the court to say.
No reversible error has been made to appear, and the judgment is affirmed.
Harvey, J., not sitting.
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JAMES W. BROADDUS, Special Commissioner.
This is an appeal by Regional Realty and Investment Company, one of the defendants, from a judgment in a court-tried case declaring that appellant Regional holds as trustee for plaintiffs-respondents Rodekohr a note made by defendants-respondents Gibson for $15,000, on which $255 was to be credited, and ordering said note to be assigned to respondents Rodekohr and delivered to them with the deed of trust securing said note.
The case was tried on the pleadings and a stipulation of facts, which stipulation incorporates several documentary exhibits.
The issue is whether appellant Regional or the plaintiffs Rodekohr must bear the loss resulting from the defalcation of a real estate broker of $14,198.15, the net proceeds of a loan made by appellant Regional to defendants Gibson in connection with the latter’s purchase of certain real estate from the plaintiff’s Rodekohr.
Plaintiffs Rodekohr owned the real estate at 6042 Indiana Avenue in Kansas City. On April 27, 1963, they listed their property for sale with Kenneth C. Conway Realty Company, and Kenneth C. Conway, the proprietor of said business, obtained an FHA appraisal of the property for loan purposes. On August 21, 1963, Conway obtained an offer of $15,500 from defendants Gibson, which was accepted by plaintiffs Rodekohr. Said parties promptly executed a real estate contract. Under the contract the earnest money was deposited with Conway, and the contract was to be closed at his office by delivery of a deed and payment of the purchase price.- It was “to be financed on an FHA loan for thirty years”. Before execution the contract was examined and approved, without change, by plaintiffs’ counsel.
Conway prepared the necessary FHA loan application documents and submitted them to appellant Regional, which agreed to make the desired loan. After obtaining a title report, Conway asked plaintiffs to send in their warranty deed. On September 21, 1963, plaintiffs executed their deed conveying the property and delivered the deed, with no directions or instructions, to Con way so that the matter could be closed. Plaintiffs knew that their deed conveyed their title, and that they were not to receive the balance of the purchase price at that time. On the same day the defendants Gibson executed a note for $15,000 payable to appellant Regional, with a deed of trust securing the same, and delivered them to Conway. On September 23, 1963, Conway obtained from plaintiffs approval of the loan discount of $450, of which document appellant had no knowledge. Conway at the same time informed plaintiffs of other expenses chargeable to them, and obtained their authorization to deduct and withhold the same.
The warranty deed, note, deed of trust and other documents, not including a sellers closing statement, were sent by Conway to appellant, which forwarded the warranty deed, deed of trust, and note to McDaniel Title Company for recording, and the deed and deed of trust were filed for record on September 27, 1963. Appellant had.no direct contact with either plaintiffs or defendants Gibson and received no instructions or documents from either of said parties except through Conway.
On October 4, 1963, appellant issued its check for $14,198.15, being the net proceeds of the loan, according to its statement, to Kenneth C. Conway Realty Company, and Kenneth C. Conway acknowledged receipt of the check and that his company would be responsible for disbursing all of the funds except selling expenses chargeable to plaintiffs. On the same day Conway told plaintiffs they should have their money either the following Monday or Tuesday. Plaintiffs expected no one else to come to them, but expected Conway to have the money for them on one of the days stated. On the same day, October 4, 1963, Conway cashed said $14,198.15 check, and, so far as known to any of the parties, appropriated all the money to his own use.
The only question involved here is: Does an agent’s possession of and authority to deliver a warranty deed authorize payment to the agent, either in cash or by check made payable to the agent ?
In Missouri and in the majority of the other jurisdictions a real estate broker, under the ordinary contract of employment giving him authority merely to produce a purchaser willing to contract with a seller upon the terms prescribed, or a broker whose authority is specifically limited to finding a purchaser for the property, has no implied authority in the absence of additional circumstances to receive from the purchaser the purchase price in the form of a check made payable solely to the broker. Stewart v. Wood, 63 Mo. 252; Compton v. Vaughan, 222 S.W.2d 81, Mo.Sup.; 12 Am.Jur.2d, 832, sect. 80.
Appellant does not contend that there was anything in the contract from which it might be implied that the agent had authority to receive payment for the warranty deed. It cannot imply such authority from the fact that the plaintiffs signed a written authorization for appellant to withhold a three per cent loan discount in the amount of $450, because such authorization was never seen by appellant. It could not have been implied by appellant from the fact that Conway may have ordered a title report from a title company, because there is nothing in the stipulation of facts to indicate that appellant had any knowledge one way or the other of that fact. Appellant cannot contend that the agent had such implied authority from anything that was stated to or shown to them by plaintiffs, because appellant had no instructions, directions or information, either written or oral, from plaintiffs other than the contract and the deed.
It is common knowledge that it is not the usual and customary practice in the lending or real estate trades for a lender to pay for a warranty deed by a check made payable to whoever delivers the deed. Neither is it the usual practice or custom' to pay the proceeds of a loan in cash or by check made payable to whoever delivers to the lender a note and deed of trust. Under nor mal business practices the lender would have made its check out, not to the messenger or agent bearing the document, but, rather, to the principal to whom the amount was due.
Appellant made it possible for Conway to perpetrate the fraud which resulted in the loss. The well settled rule is that when one of two innocent persons must suffer for the wrongful act of another, he must suffer who placed the party doing the wrong in a position to do it. Baade v. Cramer, 278 Mo. 516, 213 S.W. 121; Pashalian v. Big-4 Chevrolet Co., 348 S.W.2d 628, Mo.App.
The judgment should be affirmed. Your Special Commissioner so recommends.
PER CURIAM:
The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court and the judgment is affirmed.
All concur.
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The opinion of the court was delivered by
Wedell, J.:
Plaintiffs, Oscar Lyon and Dale Lyon, doing business as the Salina Coffee House, instituted an action on an insurance policy to recover for the loss of an automobile on the theory it was lost by theft. Judgment was for the defendant insurer and plaintiffs appeal.
In view of this court’s conclusions it is deemed unnecessary to narrate the testimony of the various witnesses. The district court made conclusions of fact and law, including pertinent terms of the policy. Exclusive of terms of the policy the pertinent facts as found are:
“6. In December, 1947, plaintiff, Dale Lyon, with the express consent of his co-partner, Oscar Lyon, took said automobile to California for the sole purpose of selling said automobile.
“7. Not having received what he considered a satisfactory bid for said automobile said Dale Lyon, on December 21, 1947, started back from the area of Los Angeles, California, to return to Salina, Kansas.
“8. In the early morning of December 22, 1947, at Wickinburg, Arizona, said Dale Lyon approached and opened negotiations with one Theodore Roosevelt Morris, also known as Ted Morris, and offered to sell said station wagon to him.
“9. As a result of said negotiations said plaintiff, on behalf of the Salina Coffee House agreed to sell, and said Morris agreed to buy said automobile for $2650.00.
“10. On December 22, 1947, at Wickinburg, Arizona, the said Dale Lyon voluntarily endorsed, assigned and delivered the Kansas certificate of title to said automobile to said Morris, and delivered the possession of said automobile to said Morris, and said Morris simultaneously executed and delivered to said Dale Lyon a check dated December 26, 1947, drawn on the Valley National Bank of Wickinburg, Arizona, payable to the order of the Salina Coffee House in the amount of Two Thousand Six Hundred Fifty ($2650.00) dollars.
“11. Said Dale Lyon knew at the time said check was drawn by the said Morris, that said Morris did not have funds on deposit in said Valley National Bank to cover the amount of said check.
“12. Morris did not have any funds in said Valley National Bank, and did not deposit or transfer any funds to said bank, and did not intend that said check should ever be paid, and he has never paid plaintiffs for said automobile.
“13. On December 24, 1947, said check was deposited in the Planters State Bank of Salina, Kansas, to the account of the Salina Coffee House.
“14. On January 9, 1948, plaintiffs were advised by an officer of said Planters State Bank that said check had been returned with the notation that the Valley National Bank, Wickinburg, Arizona, had no account for said Morris.
“15. On January 10, 1948, plaintiff Oscar Lyon, in company with an attorney, left Salina and went to Wickinburg, Arizona, and San Pedro, California, in an effort to locate said Morris and said automobile, and expended $326.10 on said trip.
“16. On January 13, 1948, said Oscar Lyon learned from the sheriff at Phoenix, Arizona, that Morris was wanted by state and federal authorities, and so advised Dale Lyon by long distance telephone.
“17. On February 9, 1950, plaintiffs contacted said Otho Schmidt and told him the general story of what had occurred in connection with the automobile and said that while they understood that the matter was not covered under the policy of insurance, they would like to have the help of the insurance company in locating the automobile; the question of insurance coverage was discussed and Mr. Schmidt stated that it was his opinion such a loss was not covered under the terms of the policy, but stated that he would write the insurance company and ask if it could assist in locating the automobile. As a result of this conversation the letter, dated February 9, 1948, (Exhibit C) was written and a copy of said letter was received by the plaintiffs.
“18. Otho Schmidt at no time denied liability under said insurance policy but did state that it was his opinion that there was no coverage.
“19. The letter, Exhibit D, dated February 12, 1948, was in reply to the letter Exhibit C, and was received by said Otho Schmidt on February 13, 1948, and a copy of said letter was by him given to plaintiffs on February 14, 1948. This letter was not intended to be a denial of liability under the policy.
“20. On December 26, 1947, Morris sold said automobile to one Alfred A. Thibault, at Newburyport, Massachusetts, and re-assigned the Kansas certificate of title to him.
“21. Shortly after February 9, 1948, plaintiffs learned the location of said automobile in Newburyport, Massachusetts, but took no action to recover possession of said automobile and have voluntarily abandoned said automobile,
“22. There has been no waiver or change of any of the terms or conditions of said policy of insurance.
“23. No proof of loss was filed within sixty days of December 22, 1947, nor within sixty days of January 9, 1948, nor within sixty days of January 13, 1948; nor has any proof of loss ever been filed with the defendant, and the time for filing proof of loss has never been extended in writing by the company or in any other manner.
“24. The value of said automobile on December 22, 1947, was $2600.00.”
The court, in substance, concluded: Proof of loss as required by the policy was a condition precedent to the right of recovery; appellants did not make proof of loss; there was no intention on the part of appellee to deny liability and there was no such denial within the time provided for filing proof of loss; appellee did not waive proof of loss and this was not the type of loss contemplated by the terms of the policy but was excluded thereby.
Other conclusions of law relative to who presently had title to the car and whether appellants were barred from recovery by reason of abandoning the car after locating it in Massachusetts need not, in our opinion, be considered.
Appellants assert the first question is whether the policy covers the loss as a theft or larceny under the facts of this case. Appellants argue it does and rely on Motor Co. v. Insurance Co., 111 Kan. 225, 207 Pac. 205, in which it was held,
“Under a contract of insurance issued to protect a dealer in automobiles against ‘theft, robbery or pilferage/ the act of a swindler who deprived the insured of an automobile by means of a preconceived plan which involved impersonation, misrepresentation and fraud was a species of theft for which the insurance company was liable ....”(Syl.)
and on later cases to the same effect.
Appellants assert the other question is whether appellee waived the terms of the policy which required sworn proof of loss within sixty days. Those undoubtedly were the two principal questions involved in the trial and the court ruled thereon.
Assuming, without deciding, the cases relied on by appellants are determinative of insurance liability in a case of loss occasioned entirely by misrepresentations and fraud for the reason they constitute a species of theft, larceny, robbery or pilferage, we find other elements involved here among which is appellants’ participation in an unlawful act by the acceptance of a check for the car with knowledge the maker did not have the funds in the bank at the time the check was delivered. There is also the further question whether appellants abandoned the car in Massachusetts and, if so, what the legal effect of abandonment was upon their right of recovery on the policy. Some other legal questions intrude.
However, further assuming appellee’s liability under all these circumstances insofar as the policy coverage is concerned, appellants nevertheless are confronted with the duty to make proof of loss as a condition precedent to recovery. We, therefore, shall direct our initial attention to that question.
It is conceded the required proof of loss was not.made. Appellants argue such proof was waived by appellee and it is estopped to claim otherwise. The correctness of that contention depends upon the facts by which this court is bound on appellate review and not on whether there is evidence to support appellants’ contention.
In order to establish the waiver of a legal right there must be a clear, unequivocal and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part. (Green v. Insurance Co., 106 Kan. 90, 92-93, 186 Pac. 970; Cure v. Insurance Co., 109 Kan. 259, 261-262,198 Pac. 940; Leach v. Metropolitan Life Ins. Co., 124 Kan. 584, 589, 261 Pac. 603; Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 808, 262 Pac. 571;, Brown v. Metropolitan Life Ins. Co., 166 Kan. 616, 623, 203 P. 2d 150.)
It is the trier of the facts, in this case the court since a jury was waived, who was required to be convinced appellee waived proof of loss. Proof of loss is a condition precedent to recovery under the terms of the policy. The burden of proving waiver of proof of loss was on appellants, the parties asserting it. (Brown v. Metropolitan Life Ins. Co., supra, p. 622; Brown v. Great American Ins. Co., 170 Kan. 281, 224 P. 2d 989.)
Upon the entire record consisting of oral and written testimony the court concluded appellants did not establish waiver of proof of loss and that appellee was not estopped to deny liability by reason of failure to make the required proof. There was ample testimony from which the court properly could conclude appellants did not claim and did not believe appellee was liable under the policy and so advised appellee’s local agent. In fact there was no contrary evidence. Thereafter the local agent notified appellee of appellants’ position and that appellants desired only to obtain appellee’s assistance in locating the party who had obtained possession of the car. As previously stated, no proof of loss had been filed and no liability of appellee had been claimed by appellants. In view of those circumstances the main office of appellee advised its local agent that it could not obtain the assistance of the National Rureau, an investigating agency, to assist in apprehending the culprit.
That information was conveyed to appellants by the local agent. It was not until many months after the loss that appellee learned for the first time appellants believed the loss was covered by the policy. It was then that the company first denied liability. We have not overlooked giving careful attention to testimony cited by appellants. The trial court did not interpret such testimony as appellants do or did not place great weight thereon or it may have disbelieved it entirely. A court, as a jury, may disbelieve testimony which it deems unworthy of belief although there is no contrary testimony. (Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966; Duran v. Mission Mortuary, 174 Kan. 565, 258 P. 2d 241.) Conflict on material portions of the testimony was resolved against appellants. That was the court’s privilege. There was substantial testimony from which the court could, and did, find appellee did not intend to, and did not, deny liability until long after the time for making proof of loss had expired and that it did not otherwise waive proof of loss. The findings made by the court, in preference to those requested by appellants, support the conclusions of law. Under these circumstances the judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This is an original proceeding in quo warranto, brought by the state of Kansas on the relation of the attorney general, and the county attorney of Wyandotte county (hereinafter referred to as the State), against the Redevelopment Authority of Kansas City, Kan., and the city of Kansas City (hereinafter referred to as the Authority, and the City), for the purpose of testing the constitutionality of chapter 106 of the Laws of 1953 (G. S. 1953 Supp., ch. 17, art. 47), known as the Redevelopment Authority Law.
The pertinent portion of the petition alleges that the mentioned law provides in general for the creation of redevelopment authorities in certain cities of the first class having the duties, liabilities, exemptions and powers prescribed in tire act, for the purpose of acquiring and clearing substandard and insanitary areas, and redeveloping such areas in the interests of public health, safety and morals; thát the Authority purports to be a body corporate and politic created and existing by virtue of the provisions of that law, and has by resolution duly approved the exercise by the Authority of the powers granted; that the Authority has duly organized itself and begun operations in specific particulars therein set out, and incurred obligations which will be paid for by moneys provided by the City from public funds; that said law authorizes the City to aid and cooperate with the Authority in undertaking and carrying out redevelopment projects, and the City will, unless ousted or enjoined, furnish the Authority services and other things of value and will contribute to the Authority public funds raised by general taxes; that the Authority and the City are without right to proceed under the law for the reason that it violates article 2, section 17, of our state constitution in that it is a special law where a general law could have been made applicable, and that under the act as amended it is applicable only to the cities of the first class having a population of more than 125,000, and in which there is a townsite which has been incorporated for more than ninety years, and is therefore applicable only to the city of Kansas City. The petition further alleges that the act is in violation of our state constitution on other grounds, which need not be detailed here in view of our conclusion reached on plaintiff’s first contention as related. It is further alleged that the Authority and the City are acting in an unconstitutional and illegal manner and, unless they are ousted and enjoined by this court, they will proceed to so act.
The State’s prayer for relief seeks to restrain and enjoin the Authority and City from proceeding further with the preparation and adoption of redevelopment plans under the mentioned law, and that the act be declared unconstitutional; that the City and Authority are without power to perform any act thereunder, and that the Authority be ousted of all rights and privileges as a body corporate.
The answer of the Authority and the City admits plaintiff’s allegations as related, but denies the act is unconstitutional, and alleges that they have been and are now undertaking to exercise the powers granted them under the provisions of the law, and that the mentioned law is a valid and constitutional enactment of the legislature of Kansas, and asserts that they are entitled to proceed to exercise the powers therein provided.
We shall discuss only those matters necessary for the disposition of the State’s contention that the act is unconstitutional in that it violates article 2, section 17, of our state constitution, and that the Authority and City are without power to perform under the statutes. We do not deem it necessary to make a complete and exhaustive review of the statute in question. Quotations from the statute will not be complete paragraphs or sentences, but only sufficient to discuss the question presented.
The title of the 1953 act now under consideration reads in part as follows:
“An Act to provide for the clearance of substandard and insanitary areas for redevelopment in accordance with plans approved by the governing body of certain cities; to create for this purpose a public body corporate and politic, to be known as the redevelopment authority, in certain cities of the first class in this state;”
The remainder of the title, broadly stated, is a table of contents of the powers granted by the act.
Section 1 of the act provides that it shall be cited as “redevelopment authority law.” Section 2 sets forth the purpose of the act and reads:
“Findings and declaration of necessity. It is hereby found and declared that there exist in certain cities of the state, substandard and insanitary areas (as herein defined) which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and welfare of the residents of the state; that the existence of such areas contributes substantially and increasingly to the spread of disease and crime, necessitating excessive and disproportionate expenditures of public funds for the preservation of the public health and safety, for crime prevention, correction, prosecution, punishment and the treatment of juvenile delinquency and for the maintenance of adequate police, fire and accident protection and other public services and facilities constitutes an economic and social liability, substantially impairs or arrests the sound growth of cities and retards the provision of housing accommodations; that this menace is beyond remedy and control solely by regulatory process in the exercise of the police power and cannot be dealt with effectively by the ordinary opera ■ tions of private enterprise without the aids herein provided; that the elimination of substandard or insanitary conditions, the acquisition and preparation of land necessary to the redevelopment of substandard or insanitary areas and its sale or lease for redevelopment in accordance with comprehensive plans and redevelopment plans of cities and any assistance which may be given by any public body in connection therewith, are public uses and purposes for which public money may be expended and private property acquired; and that the necessity in the public interest for the provisions hereinafter enacted is hereby declared as a matter of legislative determination.”
Section 3 of the act is made up of many definitions of words used in the act. Subsection (b) defines the word “city” and reads:
“ 'City’ shall mean any city of the first class in the state having a population of more than one hundred twenty-five thousand (125,000) and in which there is a townsite which has been incorporated for more than ninety (90) years.”
Section 4 provides for the creation of a redevelopment authority; section 5, the powers of an authority; section 6, the preparation and approval of redevelopment plans; section 7, the disposal of property in a redevelopment project area; section 8, the right of eminent domain; sections 9, 10 and 11 provide for the issuance of bonds, powers in connection therewith, and the rights of obligee; section 12 provides for exemption from taxes and from levy and sale by virtue of execution; section 13 provides for co-operation by public bodies; section 14, for grant of funds by city; section 15 has reference to title of purchaser; section 16, separability of provisions; section 17, for inconsistent provisions; section 18, additional conferred powers, and section 19 repeals the "urban redevelopment law” (G. S. 1949, ch. 17, art. 47, and G. S. 1951 Supp., ch. 17, art. 47).
The controlling question in this case is whether the act violates article 2, section 17, of our constitution, which reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.” ,
Prior to its amendment in 1906 the above section did not contain the last quoted clause, and whether a general law could be made applicable was early held to be a question for the legislature to determine. In one of the first cases coming before this court after the amendment of 1906 (Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583), we held that the section as amended took from the legislature the, right to determine finally when a general law could be made applicable, and devolved upon the courts the duty to determine it as a judicial question without regard to any legislative assertion on the subject. We said in that case it was the duty of the courts, when the question arises, to apply the established tests to determine whether an attempted classification by the legislature is a proper one, based upon some apparently natural reason suggested by necessity and occasioned by a real difference in the situation and circumstances of the class to which it applies, or whether it is arbitrary or capricious and excludes from its provisions localities to which it would naturally apply, except for its own limitations. It has been held that for an act to have uniform operation throughout the state, it need not affect every individual, class or community, but that it is competent for the legislature to classify and adopt a law general in its nature to a class, but the classification must be a natural and not a fictitious one. While the legislature has power to enact general laws applicable only to a portion of the state, or a community, or a certain class, if they operate uniformly on all members of the class created, the classification must be a natural one resting upon a genuine and substantial basis. The legislature has power to pass laws which apply to and operate uniformly on members of the class, but the classification made must be a natural and genuine one, not arbitrary or fictitious, and based upon distinctions which have a reasonable and substantial relation to the subject matter involved. A law to be regarded as general must embrace all and exclude none whose conditions and wants render such legislation equally necessary or appropriate to them as a class. A law may be special by being so restricted as not to include all of the subjects of a class, and also where it excludes subjects of a class from its operation. (Redevelopment Authority of the City of Kansas City v. State Corp. Comm., 171 Kan. 581, 588-590, 236 P. 2d 782, and authorities therein cited.)
Our legislature first enacted the Urban Redevelopment Act in 1943 (G. S. 1949, 17-4701 to 17-4723). That act provided for the creation of redevelopment corporations to carry out the general purpose of clearing and rehabilitating substandard, insanitary and blighted areas in cities of the first class, having a population of over 110,000. This act was amended by chapter 206 of the Laws of 1951. (G. S. 1951 Supp., 17-4703 to 17-4721.) The act as amended created a redevelopment authority and conferred powers upon it to accomplish the same purposes and objectives as the redevelopment corporation. The amendment applied to cities of the first class having a population of more than 125,000 and less than 150,000. At the time of the enactment of the 1951 amendment, Kansas City was the only city falling within the established classification. Shortly after the amendment became effective, Kansas City proceeded under the provisions and authority of the act as amended. An action challenging the constitutionality of the act was immediately instituted in this court and we held the attempted classification by population was not a natural one based upon distinctions which have a reasonable, substantial relation to the subject matter, but was arbitrary, fictitious and capricious, and the act as. amended was a special act where a general act could have been made applicable, and that it contravened article 2, section 17, of our state constitution. (Redevelopment Authority of the City of Kansas City v. State Corp. Comm., supra.)
Following the decision in the mentioned case, the legislature in 1953 repealed the Urban Redevelopment Act of 1943, as amended in 1951, and enacted chapter 106, aforementioned, as a new Redevelopment Authority Act, now being challenged in this proceeding. The title of the 1953 act clearly provides for clearance of substandard and insanitary areas in certain cities of the first class. By section 2 of the act the legislature definitely provided the purpose for creating the redevelopment authority law, and declared that there existed in certain cities substandard and insanitary areas which constituted a serious and growing menace injurious to the public health, safety, morals and welfare of the people of the state. It is clear that the legislature recognized such conditions existed in cities of the first class which were laid out and townsites organized many years ago, when streets were narrow, lighting conditions inadequate, and buildings were constructed closely together in small areas, such buildings becoming old, dilapidated and insanitary, and in some instances were fire hazards, and that it would be to the best interests of all that they be cleared and the property be redeveloped. However, in spite of this worthy cause, recognized by the legislature by section 3 they limited the applicability of the act by defining the word “city” to mean a city of the first class having a population in excess of 125,000, and in which there was a townsite which had been incorporated for more than ninety years, thereby making the act applicable to Kansas City alone, and innoculating the act with the same fatal disease of special legislation as was dealt with in Redevelopment Authority of the City of Kansas City v. State Corp. Comm., supra.
We observe that three conditions must be met if a municipality is to qualify under the provisions of the act: (1) it must be a city of the first class, (2) it must have a population in excess of 125,000, and (3) in which there is a townsite which has been incorporated for more than ninety years.
The ten oldest and largest cities of the first class in Kansas, their population and date of townsite incorporation are as follows:
Date of townsite
City Population incorporation
Wichita ....................... 192,182 1871
Kansas City.................... 126,886 1859
Topeka ....................... 82,734 1857
Hutchinson .................... 34,771 1872
Salina......................... 29,102 1859
Atchison....................... 12,568 1855
Coffeyville..................... 17,960 1872
Lawrence...................... 19,863 1858
Leavenworth................... 21,095 1855
Pittsburg ...................... 22,108 1879
Analyzing the foregoing table with section 3 of the act in mind, we find two cities with a population of more than 125,000, i. e., Wichita and Kansas City, and of these cities, Wichita is eliminated for the reason it does not have an existing townsite of more than ninety years. The cities of Topeka, Atchison, Lawrence, Salina and Leavenworth qualify with a townsite of more than ninety years but are eliminated by reason of population. A further analysis will disclose while many of the cities have townsites existing many years, and are now and may be confronted with substandard and insanitary areas constituting a growing menace, injurious- to the public health, safety, morals and welfare, they are excluded from the act by reason of population requirement. While there is a faint possibility certain of the cities mentioned will grow into the population requirement of the act, it is improbable that they will do so. Although the act states the prescribed conditions exist in cities of the first class, the limitations provided therein are effective and available only to Kansas City, and other cities of the first class are excluded therefrom.
No better discussion of the problems involved and the legal precedents to be considered in this case can be made than those contained in the recent exhaustive decision written by Mr. Justice Thiele for this court in Redevelopment Authority of the City of Kansas City v. State Corp. Comm., supra, in which we had under consideration the same constitutional provision as applied to the former Urban Redevelopment Law of 1943 as amended, and repealed by the act of 1953 now under consideration, wherein a dis cussion of the facts and analyses of the applicable authorities are made, construed and applied. Therefore, in order to avoid reiteration, the decision in that case is adhered to and made a part of this opinion.
We conclude the attempted classification by population of a city in which there is a townsite which has been incorporated for more than ninety years, is not a natural one based upon distinctions which have a reasonable and substantial relation to the subject matter, but is arbitrary, fictitious and capricious; that the act is a special act where a general act could have been made applicable, and contravenes article 2, section 17, of the state constitution.
Judgment is rendered for the plaintiff.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This is an original proceeding in habeas corpus in which the petitioner, Clara L. Heilman, a resident of California, seeks to obtain custody of her minor son, Jack Arthur Heilman.
Respondents, Fred and Marie Heilman, are the grandparents of the child, and reside in Riley County.
David W. Heilman, son of respondents, is the father of the child.
The allegations of the petition and of the answer and return thereto will appear as the facts and the contentions of the parties are related and discussed.
On August 25, 1942, Clara and David were married at Clay Center. Their son Jack was born on January 11, 1946.
In 1949 David filed an action for divorce in the district court of Riley County on the grounds of extreme cruelty and gross neglect of duty. His petition asked that custody of the child be granted to him.
Clara filed an answer in the form of a general denial, and a cross-petition in which she prayed that in the event a divorce be granted she be given the care, custody and control of their child.
On June 1, 1949, a decree of divorce was awarded to David, and custody of the child was granted to David’s parents, Fred and Marie Heilman, of Clay County, with reasonable visitation rights given to Clara. Pursuant to this decree the child lived in the home of his grandparents.
On October 20, 1949, David and Clara were remarried to each other at Manhattan, and within a few days thereafter left for California to make their home, taking their son Jack with them.
It appears that the three lived together in California until June, 1951, at which time David and Clara again separated. Clara returned to Kansas with the child and left him with respondent grandparents for a couple of days. Following this she took the child and departed, their whereabouts being unknown to the grandparents and to David, who was still in California.
In September, 1951, the grandparents filed an affidavit for attachment in the district court of Riley County in which they alleged concealment of the child by Clara, and that she was in contempt of court because of her violation of the decree of June 1,-1949, granting custody of the child to them, and which judgment and decree had never been modified or set aside and was still in full force and effect.
On October 2, 1951, David filed an action for divorce in California, in which, we are advised, he alleged that the custody order made by the Kansas court on June 1, 1949, had never been modified or set aside, and that the grandparents still had legal custody of the child.
On the same date, October 2, 1951, Clara commenced a divorce action in Idaho, and we are advised that her petition did not ask for custody of the child, and alleged that custody had previously been granted to the grandparents.
Upon being served with process in the California divorce action Clara brought the child back to that state and filed a cross-complaint seeking a divorce from David. This pleading was later amended so as to ask for custody of the child.
In October, 1952, after a hearing thereon, the California court awarded temporary custody of the child to Clara. The grandparents, although not parties to the action, were personally present at that hearing.
In November, 1952, Marie Heilman, the grandmother, met the child one day while he was on his way to school and brought him back to Kansas, where he has ever since remained.
In December, 1952, the California divorce action came on for judgment, and Clara was granted a divorce from David on her cross-complaint, and was awarded custody of the child.
David appealed from this judgment to the District Court of Appeal, Fourth District, and the decision of that court, affirming the judgment of the trial court, was filed on January 25, 1954, and is found at Heilman v. Heilman, 122 Cal. App. 2d 771, 266 P. 2d 148.
In the meantime, on January 18, 1953, Clara filed the instant application for a writ of habeas corpus in an effort to obtain custody of the child, who, at the time, was still residing with his grandparents in Riley County.
After the pleadings and issues were joined this court appointed a commissioner to hear the evidence and file suggested findings of fact and Conclusions of law. Following a lengthy hearing thereon the commissioner filed his report with this court, his conclusion being that the application for a writ of habeas corpus should be denied.
Petitioner contends that the remarriage of the parties in October, 1949, both legally and as a matter of fact, nullified the judgment of the district court of Riley County of June 1, 1949, granting custody of the child to the respondent grandparents, and thus ended that court’s jurisdiction over the parties insofar as custody is concerned; that the decree of the California court awarding her custody of the child is entitled to full faith and credit in this state; that by that decree she was found to be a fit and proper person to have custody of her child, and therefore is entitled to custody as against the grandparents and others, and that the findings of the commissioner to the effect there has been a change of conditions and circumstances since the rendition of the California decree are not supported by the evidence.
In the main, it may be said respondents contend that, the child being within this jurisdiction, the courts of this state are not precluded by the judgment of another state from inquiring into and determining what is for the best interests of such child; the custody order made by the district court of Riley County on June 1, 1949, having never been modified or vacated, remains in full force and effect, and that from all of the evidence before the commissioner it is definitely established that the best interests of the child require his retention by the grandparents.
Conceding, solely for the sake of argument, the general rule is that as between divorced parents, when the custody of their child has been awarded to one of them, their remarriage, to each other, has the legal effect of nullifying the former custody order pertaining to the child, still, those are not the facts of this case. When petitioner and her husband were divorced in Riley County in June, 1949, neither was awarded custody of the child. Custody was awarded to the paternal grandparents, respondents here. That decree has never been vacated or modified in any way. In fact, no application to vacate or modify such decree has ever been made. It is true that upon the remarriage of the parents they took the child to California with the consent of respondents. In so consenting perhaps respondents did the only natural and normal thing— they permitted the child to go with his parents to California where the latter were about to embark upon married life all over again. The fact that in September, 1951, respondents commenced attachment proceedings against petitioner is evidence that they did not consider their relinquishment of the child to his parents, following the latters’ remarriage, as a legal relinquishment and voluntary dissolution of the binding effect of the custody order previously made.
With respect to the scope and effect of the California divorce decree which granted custody of the child to petitioner, we do not read the opinion of the appellate court of that state, supra, as ignoring the earlier Kansas decree relating to custody. In fact, the California court recognized the Kansas decree, but, in substance, held that as the parents and child were then living in California the court had jurisdiction to render such order pertaining to custody as changed circumstances, which it found existed, warranted.
The child is now in Kansas and, by the same token, the courts of this state are not precluded by any judgment or order of a sister state from inquiring into and determining what are the best interests of the child, and in determining such question there is no breach of the full faith and credit rule relied upon by petitioner.
We think it unnecessary to encumber this opinion with a detailed review of the evidence relating to the child’s life during the period between the summer of 1951 and November, 1952, when he was living with petitioner, and neither is it necessary to discuss the conflicting evidence relating to the question of fitness of petitioner to have custody of her child, or the evidence of changed circumstances subsequent to the California decree. Further, we are in no way concerned with the Idaho divorce proceeding, for it has been established that whatever judgment was rendered in that state was subsequently set aside.
Orders pertaining to child custody always are subject to modification as circumstances warrant. The order of the district court of Riley County made on June 1, 1949, granting custody to respondents, is still in full force and effect. The doors of that court are open to assume jurisdiction of the matter upon proper application being made therefor. And, insofar as the instant action is concerned, a careful review of the evidence and of the authorities leads us to the same conclusion as that reached by the commissioner, namely, the petition for a writ of habeas corpus should be denied.
It is so ordered.
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from orders sustaining demurrers to plaintiff’s amended petition.
The plaintiff commenced the action by filing a petition in the district court of Sedgwick county on December 28, 1951. This pleading was attacked by divers motions to make its allegations more definite and certain in which the defendants sought to require plaintiff to state whether the contract relied on for recovery was oral or written and, if written, to have the instrument attached to the petition and to give further particulars, of little importance to the issues involved, respecting its terms. At first such motions were sustained in part and overruled in part. Following these rulings plaintiff filed a supplement to the petition. Subsequently demurrers were filed charging the petition disclosed the action was barred by the statute of limitations. Thereafter, and notwithstanding its previous rulings, the court made an order sustaining all portions of the motions to make more definite and certain. Plaintiff then filed an amended petition. Certain of the defendants immediately demurred to this pleading on grounds it failed to state a cause of action and showed on its face the cause of action sued on was barred by the statute of limitations. Instead of demurring other defendants moved to make such pleading more definite and certain. When their motion was overruled they also demurred to such pleading on the same grounds assigned by their co-defendants. After a hearing the trial court sustained all such demurrers. Thereupon plaintiff perfected the instant appeal.
All parties agree the law of the forum governs and that the question of primary importance involved on appellate review is whether the cause of action relied on for recovery, in the amended petition is based on an oral agreement to which our three-year statute of limitations (G. S. 1949, 60-306, Second), is applicable or on a written agreement to which the five-year statute (G. S. 1949, 60-306, First) applies.
With commendable candor appellant’s counsel concede the established rule (See Hatcher’s Kansas Digest [Rev. Ed.], Limitation of Actions, § 189, and West’s Kansas Digest, Limitation of Actions, §§ 180, 182) that a pleading which shows on its face the cause of action relied on is barred by the statute of limitations is demurrable for failure to state a cause of action. They also frankly admit that the instant action was commenced more than three years after his cause of action accrued and that therefore, if the contract as pleaded is held by this court to be oral, the trial court committed no error in overruling the demurrer to his amended petition on the ground it failed to state a cause of action because the right to relief therein claimed was barred by the three-year period of limitation.
The essence of all contentions advanced by appellant in support of his position on appeal is that his amended petition is subject to a liberal construction, that when so construed its allegations do not affirmatively show that the contract relied on is oral, and that hence, under our decisions (see, e. g., American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468; Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194) , the demurrer was erroneously sustained. This, of course, requires an examination of the challenged pleading which, for present purposes, we think can be given a liberal construction notwithstanding there may be some merit to contentions advanced by appellees to the effect that under the confronting facts and circumstances it should be strictly construed. However it must be kept in mind that even when construing a pleading in such manner the liberal doctrine prevailing in this jurisdiction with respect to the sufficiency of its allegations when challenged by demurrer is not to be extended to the point where it requires an obviously erroneous construction of their meaning.
Nothing of material benefit would result from detailing the allegations of the lengthy amended petition which, we pause to note, are substantially the same as those of the original petition. Therefore, except for an occasional quotation of particular significance, we shall summarize such of the allegations of the involved pleading as are deemed essential to a disposition of the issue involved. Highly summarized they can be stated thus:
That on or about April 2,1947, R. W. Alcorn and the A. L. Conder & Company, exporters and importers, representing appellees, the Kansas Milling Company and the Lawrence Milling Company, employed appellant as a commission agent to negotiate and handle the sale of one million bags of flour to the government of Sao Paulo, Rrazil.
That “said employment was negotiated and consummated by oral conversations, cablegrams and writings carried on between” the two Milling Company appellees, Alcorn and Conder, and the appellant.
That “as a direct result of the writings and oral conversations as alleged herein, there was a meeting of the minds between the plaintiff and the defendants, the Kansas Milling Company, Inc., and the Lawrence Milling Company, a co-partnership on the proposition.” And that by reason thereof appellant was to receive as compensation for his services, upon the completion of the sale of the flour the sum of fifteen cents per hundred weight commission of the total poundage of the flour sold.
That in furtherance of his employment as alleged appellant obtained a written order from the government of Sao Paulo, Brazil, for a quantity of flour, describing it, which order was approved by Alcorn as such appellees’ agent.
That appellant firmly believes that as the direct and proximate result of his efforts a contract for the purchase of such flour was entered into between the appellees, last above named, and the government of Sao Paulo, Brazil, sometime prior to August, 1947, and that by virtue of his employment as alleged he became entitled to the commission theretofore agreed upon.
That by virtue of his employment appellant received payments aggregating $3,043.12 from appellees by various checks commencing with September, 1947, and ending in November or December of that year, but appellees have wrongfully failed, neglected, and refused to pay him the balance remaining due on his commission for the sale of such flour for which he is entitled to judgment.
In addition to the foregoing allegations appellant attached to and made a part of his petition several exhibits, all dated subsequent to the date fixed by him as the date on which the contract was entered into, none of which purport to set forth, detail or describe the terms and conditions of that agreement.
In the face of allegations such as have been heretofore related, particularly those specifically quoted, we have little difficulty in concluding that the most that can be said for the cause of action set forth in the petition from appellant’s standpoint, giving it the benefit of every inference to which it may be .entitled, is that it is based upon a contract which is written as to certain portions and oral as to others. Of a certainty since appellant himself deemed it necessary to make certain written instruments, subsequently executed, a part of his cause of action in order to establish the terms and conditions of the contract sued on it cannot be successfully argued that agreement when consummated, even if it be conceded there was some written memorandum evidencing its execution, was so full and complete that it did not require proof of extrinsic facts- or, as sometimes otherwise expressed, evidence aliunde in order to round out its terms and conditions and supply the elements essential and necessary to the existence of a binding contract.
Under conditions and circumstances such as have just been outlined we think this court has decided, and is committed to the rule, that for purposes of determining application of the statute of limi tations a contract such as is here involved is to be considered and regarded as an oral contract, an action on which is governed by the limitation period governing oral contracts generally, i. e., the Second subdivision of G. S. 1949, 60-306. See Fairbanks v. Koelling, 167 Kan. 361, 205 P. 2d 930, particularly what is stated and held on pages 364 and 365 of its opinion, including quotations from numerous well recognized textbooks and legal treatises to which we adhere and by reference make a part of this opinion. In addition to what is there stated and held see 34 Am. Jur., Limitation of Actions, 76, § 92, which reads:
“Limitation statutes customarily provide a period, frequently less than that for actions upon written contracts, for the commencement of actions upon contracts, obligations, or liabilities not founded upon instruments in writing. As has been noted, such a provision is applicable if the promise arises only upon proof of extrinsic facts, or if the agreement may be proved only by evidence aliunde, or if the liability sought to be enforced is imported into an agreement from some external source. It seems that it also applies if the agreement is partly oral and partly written. Thus, a letter assuming' the existence of a previous contract and narrating what has been done under it, but not professing to be a statement of the whole contract in writing as previously made, nor professing to be itself the contemporaneous expression of a contract then being made, is not such evidence of an indebtedness in writing as is required to relieve the contract from the operation of the statute of limitations relating to written instruments, but leaves it to be governed by such statute relating to parol contracts.”
Rased on the foregoing authorities and what has been heretofore stated relating to concessions made by the parties respecting the appellate issue involved we are constrained to hold the trial court did not err in sustaining the demurrer to the amended petition.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This was an action in peaceable entry and forcibledetainer and for recovery of money on a verified account for rent due. From an adverse judgment, one of the two defendants has appealed.
The action was filed in the city court of Wichita and personal service of summons was made on defendant DeHay. Subsequently plaintiff filed a motion to make Ora Mae Smith, his wife, a co-owner of the property in question, an additional party defendant. This motion was sustained. Such additional party defendant then filed a verified answer seeking relief against defendant DeHay in harmony with plaintiff’s verified complaint.
Following several hearings and continuances, defendant DeHay’s (hereinafter referred to as defendant) demurrer to the pleadings on the ground they did not state a cause of action was overruled. On April 21, 1953, the matter came on for trial, and at the conclusion thereof the court rendered judgment against defendant in the amount of $532 for rent due to date of judgment, and for restitution of the premises. Defendant then appealed to the district court.
In July, 1953, the action came on for trial. Plaintiff and the additional party defendant moved for judgment on the pleadings as to rent due on the ground that defendant had not filed a verified denial to the verified rent account filed by plaintiff. The record then shows that after informal argument and colloquy between court and counsel it was stipulated by the parties that the monthly rental of the property in question was $120, and that no rent had been paid by defendant since the date of the judgment in the city court. Defendant was in default of pleadings but through her counsel stated that she was standing on her oral demurrer. This demurrer was overruled, and after further proceedings the court rendered judgment for the restitution of the premises and entered a money judgment for rent due in the amount of $1,188, and for costs.
Defendant’s motion for a new trial was overruled, and she has appealed through counsel other than the attorney who represented her in the courts below.
Defendant alleges some eleven specifications of error which attack each and every step and action taken by the trial court leading up to and including the overruling of her motion for a new trial. In our opinion it is unnecessary to take up and discuss each alleged error. An examination of the record indicates that all proceedings below were had in conformity to the various provisions of Article 13, Chapter 61, G. S. 1949. Furthermore, there is no merit to defendant’s contention with respect to the rendition of judgment for double rent from the date of the appeal bond to the date of judgment. (G. S. 1949, 61-1011.) We pause to note, however, in answer to a request contained in the brief of appellees, that with respect to the matter of double rent the extent of this court’s jurisdiction is to affirm, reverse or modify the judgment below.
Despite the urging by counsel for defendant that this court should take this opportunity to clarify previous interpretations concerning actions of this nature, we are of the opinion, as heretofore stated, that applicable provisions of our detainer statutes were followed in the trial of this case and that further discussion thereof would add nothing to the law on the subject.
A presumption of validity attaches to a judgment of a district court, and this presumption obtains and continues until it has been made affirmatively to appear that error, which is never presumed, has been committed. (Quivira, Inc. v. Quivira Co., Inc., 173 Kan. 339, 245 P. 2d 972.)
No error being shown, the judgment of the trial court is therefore affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action in replevin and from an adverse judgment the plaintiff appeals.
The abstract discloses that plaintiff commenced its action by filing its bill of particulars in the magistrate court of Johnson county seeking to recover possession from the defendant Warsop of a particularly described Ford automobile, hereafter referred to as the car, alleging its value to be $950.00. The defendant filed an answer admitting that plaintiff owned the car and a cross-petition alleging that defendant conducted a garage business and that the car was delivered to him in a damaged condition by John O’Keefe representing himself to be the owner and who requested that the car be repaired; that defendant did repair the car, furnishing labor and materials in the amount of $179.32, the date of the final charge being March 17, 1949, and on said date he delivered the car to O’Keefe, believing him to be the owner; that later he learned plaintiff was the owner and made demand on O’Keefe and plaintiff for payment of his bill; that at the time the car was delivered to defendant, O’Keefe had possession with the knowledge and consent of plaintiff and that O’Keefe was acquiring title by virtue of a sales agreement with plaintiff; that by reason of the car being in possession of O’Keefe with consent of plaintiff and by virtue of authority granted O’Keefe by plaintiff to drive the car and have it in his custody plaintiff impliedly consented to have repairs made; that on April 15, 1949, he filed his lien statement in the register of deeds office under the provisions of G. S. 1949, 58-201, a copy being attached; that he notified plaintiff of the filing of his lien statement and later took possession of the car until the sheriff of Johnson county took possession from him under the writ of replevin; that defendant had a first lien on the car and was entitled to possession for the purpose of enforcing his lien; that plaintiff was indebted to him for repairs in the sum of $179.32 and he prayed judgment for that sum, for a judgment declaring his lien to be a first lien and for foreclosure, and, in the alternative that he have judgment for possession of the car. The plaintiff filed a verified reply alleging the lien statement did not comply with the law and answered the cross-petition alleging it failed to state a cause of action and denying O’Keefe had any right to contract for repairs and any authority to charge any repairs to the plaintiff or that defendant had a lien on the car.
The trial in the magistrate court resulted in a judgment for defendant for $2.00. An appeal to the district court followed. The trial in the district court resulted in a judgment that defendant recover against plaintiff for the sum of $179.32 and his lien in that amount was declared a first lien and further that plaintiff deliver possession of the car to defendant within five days or in lieu of such delivery that defendant recover his judgment upon the replevin bond of plaintiff and his surety.
Plaintiff’s motion for a new trial was denied and in due time it perfected its appeal to this court. In its abstract it specifies as error: 1. The rendering a personal judgment against plaintiff in favor of defendant for $179.32; 2. In adjudging the defendant’s lien was a first and prior lien on the car; 3. In its order that plaintiff deliver the car to defendant within five days or in lieu of such delivery that defendant have judgment on the replevin bond; and 4. In refusing to grant a new trial.
As a preliminary to discussion of the specifications of error, it is advisable to summarize the evidence. Butel the president of the appellant corporation testified that O’Keefe was driving the car with his knowledge; that he let O’Keefe have it under a kind of conditional sale, when O’Keefe paid the money Butel was to give him title; that Butel Motors owned the car; O’Keefe was driving it; that O’Keefe said he was getting some money from his wife’s estate and would pay for the car within the next week; that Butel had known O’Keefe and thought he was trustworthy; when Butel didn’t get the money appellant demanded that O’Keefe return the car and learned it had been wrecked. He got hold of O’Keefe, who told him he didn’t want it so Butel took it from him; that he hadn’t attempted to take it before; that Butel had no business transaction with defendant. Defendant demanded pay for repair of the car.
Appellee Warsop testified as to repairing the car which O’Keefe brought into his garage. After the repairs to the car were completed on March 17, 1949, it was delivered to O’Keefe. Thereafter Butel told him the car belonged to Butel and he demanded payment from him. Later he had possession of the car and kept it until it was taken by the sheriff on replevin; that the car bore O’Keefe’s license tags; that he found out the car belonged to Butel before he filed his lien statement. The lien statement includes that the car was delivered to him by O’Keefe who represented himself as owner; that at the time the car was placed in his possession O’Keefe was purchasing the car from Butel under an agreement the terms of which were unknown to him.
Taking up the questions which appellant states are involved, we note the first is whether the court had jurisdiction to render a personal judgment against appellant under stated circumstances all of which involve appellant’s own version of the evidence. No purpose can be served by a detailed statement as to why those circumstances may not be considered, in view of the fact the trial court’s judgment constitutes a general finding in appellee’s favor and is not to be stricken down by resolving all disputes or inferences against him. We think it clear that Rutel gave possession of the car to O’Keefe under what may be called, as Rutel did call it, “a kind of conditional sale,” and a sale which was never consummated either because O’Keefe couldn’t raise the money, or having wrecked the car, no longer wanted to carry out his bargain. In our opinion the title of O’Keefe was sufficient that when he took the car into defendant’s garage and had it repaired, under the circumstances disclosed, defendant was entitled to a lien on the car under G. S. 1949, 58-201. The matter of the sufficiency of the lien statement is treated later, but assuming now its sufficiency, we think the matter of the type of judgment to be rendered in a case like this is controlled by G. S. 1949, 60-1010 which in substance provides that in an action to recover possession of personal property, if' the property has been delivered to the plaintiff and the defendant claims a return thereof, judgment may be for the return thereof or the value thereof in case a return cannot be had. In the instant case the appellant may not complain that the judgment of $179.32 rendered against it is less than the value of the car, which it. fixed in its bill of particulars at $950.00.
Appellant also contends that the action on the cross-petition may not be maintained for two reasons: 1, That a lien could not be created against the owner of the car by a stranger to the title; and 2, A lien cannot be created by filing a statement which does not contain the items of the account and a description of the property on which the lien is claimed. In our opinion what has been said heretofore answers the first proposition and that O’Keefe who caused the work to be done was no stranger to the title. As to the second proposition the defendant was given permission by the court to amend his mechanic’s lien statement by attaching an itemized list of repairs and materials used in the repair of the car. In view of the judgment we may not assume the amendment was not made. Appellant cites no authority that such an amendment may not be allowed. Although amendment of a different type was involved, in National Bond & Investment Co. v. Midwest Finance Co., 156 Kan. 531, 134 P. 2d 639, it was held that although the artisan’s lien law (G. S. 1949, 58-201) does not expressly provide for the amendment of a filed lien statement, an amendment thereof, in the furtherance of justice, is permissible when it does not prejudice the rights of others. Whether the analogy is close or not, the statute for mechanic’s lien statements claiming liens on real estate provides for amendments thereof in the furtherance of justice. On the latter proposition see Thomasson v. Kirkpatrick, 174 Kan. 52, 254 P. 2d 329. In our opinion the instant amendment was in furtherance of justice and did not prejudice the appellant. Insofar as the contention pertains to a description of the property on which the lien is claimed, little need be said. The lien statement describes the Ford by the same motor number as the appellant states it to be in its bill of particulars. The only difference we discern is that appellant states the car is a Ford two door automobile while the hen statement says it is a Ford sedan. In view of the fact that there is no dispute that one and the same car is involved the contention will not be noticed further.
Appellant also compjains that the trial court erred in the form of its judgment. Whoever prepared the journal entry of judgment might well have followed the statutory order more closely, but we think the judgment sufficiently follows G. S. 1949, 60-1010. Complaint that there was judgment against the surety on the replevin bond is technically good as the surety was not a party to the action. If resort to the bond becomes necessary the surety may then present such defenses as it may have.
Appellant’s last- contention that the trial court erred in denying its motion for a new trial raises no question not heretofore discussed. There was no error in the ruling.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Parker, J.:
This action was instituted in the district court under the declaratory judgment statute to determine and adjudicate the rights of the plaintiff and the defendant to a portion of a lot, located in the city of Coffeyville and owned by plaintiff, upon which one-half of a division stairway was resting. Judgment was rendered in accord with plaintiff’s theory of the case and the defendant appeals.
The pleadings are not in question and require little consideration. For the present all that need be said respecting them is that the controversy responsible for the filing of the action arose by reason of claims asserted by defendant to the involved real estate and the stairway resting thereon on the basis of an easement by written grant, an easement by prescription, or in the alternative, the existence, under conditions and circumstances estopping the plaintiff from revoking it, of a license to use such property, all of which claims were denied by plaintiff on asserted theories that whatever rights defendant may have theretofore had in such property were based on a revocable implied license which had been terminated and revoked prior to the institution of the action.
During the course of the trial by the court, and on motion of the plaintiff that an election as to defenses be made, the defendant announced that it elected to stand upon its defenses of a written grant and estoppel, thereby abandoning prescription. At the close of such trial the court, at the request of defendant, made findings of fact and conclusions of law. The findings of fact reveal the contentions of the parties as disclosed by the pleadings and the facts given credence and found by the trial court to exist on the basis of the evidence adduced. On that account they will be stated at length in lieu of the general factual statement usually to be found in an opinion of the events, conditions and circumstances giving rise to the controversy therein involved. Such findings of fact, omitting portions of no particular significance to the issues, read:
“1. The plaintiff is the owner of Lots One and Two, Eldridge’s Sub-Division of Lot 15, and Sixteen, Block 50, Original City of Coffeyville, Montgomery County, Kansas; and the defendant is the owner of Lots Three (3) and Four (4) in said Sub-Division.
“2. Said lots are each 23% feet in width, fronting east on Walnut Street and are each 100 feet in length, east and west. Lots Two and Three are contiguous and have a common boundary, the north boundary of Lot Three being the south boundary of Lot Two. Lot Two lies adjacent to and north of Lot Three. Lot Four lies adjacent to Lot Three on the south.
“3. On or about the 24 day of June, 1924, the defendant purchased Lot Four, on which was located a two-story building. The sole access to the second story of said building was and is now by a stairway, hereinafter called the south stairway, which is located on the south boundary of Lot Four.
“4. On or about March 24, 1920, the defendant purchased Lot Three upon which was located a two-story building. That at the time of the purchase the sole access to the second story thereof was by a stairway, hereinafter called the north stairway, which was located on the boundary line of Lots Two and Three. Said stairway was and is 36 inches in width and 20 feet in length east and west; and 18 inches of the width of the said stairway lies upon and over each of said Lots Two and Three. That said building purchased by defendant and located on Lot Three was built by W. L. Hoffman, and is hereinafter referred to as the Hoffman Building.
“5. That the plaintiff, on or about the 10th day of August, 1925, purchased Lot Two (2) and thereon was located a two-story building built by John S. Lang and hereinafter referred to as the Lang building. That at the time of the said purchase the sole access to the second floor thereof was by the aforesaid north stairway.
“6. That on the 30th day of June, 1884, the said John S. Lang and W. L. Hoffman entered into a written agreement which was duly recorded in tire office of the Register of Deeds for said county on the 10th day of July, 1884, and a true copy of said agreement was introduced into evidence as defendant’s exhibit 1'. And a true copy of said agreement is hereto attached and made a part of this finding.
“7. On the 7th day of November, 1884, John S. Lang and wife executed and delivered to W. L. Hoffman an instrument in writing designated quit claim deed which was introduced in evidence as defendant’s Exhibit 2. A. copy of which is attached hereto and made a part of this finding.
“8. Under the terms of the agreement dated June 30th, 1884, John S. Lang was to build a partnership wall upon the line between Lots Two (2) and Three (3), and Hoffman was to pay one-half of the costs of the same whenever she attached her building to said wall, and that each party shall have the right to the free use of said wall and every part thereof to the extent that it may be necessary or convenient to the erection, construction or maintenance and occupancy of any buildings or improvements upon said lots. This agreement was filed for record in the office of the register of deeds of Montgomery County, Kansas, on the 10th day of July, 1884, and recorded. . . .
“9. The quit claim deed dated November 7th, 1884, John S. Lang for a recited consideration of $331.00 quit claimed all right, title and interest in said Lot Three, and recited ‘this deed being intended among, other things as a receipt for all claims on that portion of the division wall and stairway erected on. the line between Lots Two (2) and Three (3) in said sub-division of Lots Fifteen (15) and Sixteen (16), in Block Fifty (50) aforesaid, that W. L. Hoffman and her husband were obligated to pay under a certain contract between tifie said John S. Lang and wife and the said W. L. Hoffman and husband, which contract was filed for record in the office of the register of deeds in and for said County on the 10th day of July, 1884, . . . and duly recorded . . and we hereby acknowledge receipt for all amounts that- said W. L. Hoffman and husband were under said contract to pay under any and all provisions and contingencies therein set forth.’
“10. Under the aforesaid party wall agreement, a party wall was erected in about the year 1884 by John S. Lang on the boundary line of Lots Two (2), and Three (3) one-half of said wall being on each of said lots. That the stone foundation and said wall began at the east end of said boundary and extended more or less the full eighty (80) feet mentioned in the agreement aforesaid. That said stone foundation is still in existence. That the wall resting on said foundation now begins aproximately twenty (20) feet west of the east end of said boundary line and extends westward the full length of the said lots. That the said north stairway occupies the space over the stone foundation projecting beyond the east end of the party wall to the east end of the boundary line. That the stone foundation is about 24 inches in width and the said north stairway is 36 inches in width and overhangs beyond the width of the said stone foundation.
“11. That the said north stairway as it existed at the time of the filing of the action was constructed wholly of wood and consisted of two stringers of two inch by ten inch (2" x 10") lumber notched in which was nailed the risers and steps. The bottom or foot of the stairs rested upon a granite sill or step on the ground at the east end of the boundary and the top of the stringers rested upon a platform located at the entrance to the second floors of the building; this platform was supported solely by two (2) headers of two inch by 8 inch (2" x 8") wood lumber set about four (4) inches into the walls on either side of the stairs. The sole support of the stairs was the headers at the top and the sill at the bottom and the stringers had no support between and were not connected nor supported by the walls on either side. That on the north of the stairway was the south wall of the Lang Building which to the length of the stairway, was located wholly on Lot Two (2), and to the south of the stairway was the north wall of the Hoffman building which to the length of the stairway was located wholly on Lot Three (3).
“12. That at the time of the filing of this action the said stairway was in a weakened and unsafe condition because: (1) the steps were worn so the tops thereof were pitted, hollow and dished so that it is difficult to walk thereon without carefully placing one’s feet; (2) the steps were narrow in depth being only ten (10) inches, whereas a normal step should be twelve (12) inches; (3) the steps are very steep; (4) the stringers at the bottom of the steps were eaten by termites; and (5) the guardrail is unsafe to use as a support for a person using the stairway. . . .
“13. The Lang- building was constructed in about the year 1884 and at that time the Hoffman building had not been erected. At that time John S. Lang constructed an outside stairway as access to his second story which said stairway was not the same as the north stairway now existing. That about six (6) or seven (7) years later the Hoffman building was erected at which time said north stairway was built. That about the time the Hoffman building was erected the east twenty (20) feet of the said party wall on Lots Two (2) and Three (3) was tom down and the said north stairway was built.
“14. At the time the defendant purchased the Hoffman building the arrangement of the second story was as is shown in Plaintiff’s Exhibit ‘B.’ That about the year 1929 the defendant remodeled the two buildings located on Lots Four (4) and Three (3) by removing the 19 inch stone wall separating them on the first floor and rebuilding the fronts of said buildings by making one front wall for both buildings. That the defendant at that time joined both buildings into one building as far as the first floor is concerned. That on the second floor at said time the defendant opened the 19 inch wall between his buildings to the rear so that the occupant of the rear room of the Hoffman building who was L. J. Benefiel, d/'b/a Benefiel Studio, could occupy the rear rooms of the building on Lot Four (4). That from that time the occupant of the rear rooms of the Hoffman building used the south stairway for about two (2) or three (3) years between 1929 and 1934 there was only one occupant in the front office rooms of the Hoffman building and after he vacated about 1934 there was no occupant of the front office rooms in the Hoffman building until about 1941 when Mrs. Zelma Sutton, d/b/a Zelma’s Beauty Shop, moved into all the front rooms of the buildings located on lots three (3) and four (4).
“15. When Zelma’s Beauty Shop became a tenant of the defendant he completed the joining of his two buildings by making two more openings in the nineteen (19) inch wall. . . . Thereafter the combined buildings on Lots Three (3) and Four (4) have been and now are referred to as the Krigel Building. That access to all second floor of the Krigel building since said time has been by the south stairway.
“16. . . .
“17. By the remodeling and repairs made in 1929 and 1941 the defendant has rearranged the second floor of his building so that the same is served by the south stairway and whereas formerly the north stairway served as the sole access to the second floor of Lot Three (3) is now and has been since the remodelings aforesaid not used as such and because of its condition and inconvenience has ceased to be used by the defendant and his tenants. That now the occupants of the rear rooms on Lot Three (3) have no means of using said north stairway as formerly, except by a door which is kept closed between the rear rooms and the Zelma’s Beauty Shop storeroom . . .
“18. The original function and purpose of the north stairway was to serve as the sole access to the second floors of tire Hoffman building and Lang building. That since at least 1941 this function and purpose has ceased to exist as far as the Lot Three (3) is concerned.
“19. In 1952 the plaintiff razed the Lang building in preparation for building a new bank building occupying both Lots One (1) and Two (2).
“20. Now the original purpose and need for the said north stairway no longer exists because the Lang building no longer exists and the defendant has joined the Hoffman building with Lot Four (4) into one building served by the south stairway and thereafter ceased to use the north stairway as a means of access.
■ “21.' The plaintiff ip reliance upon the defendant’s nonuse of the said north ■stairway; and his ■ rearrangement of his second floor so as not to use the north stairway, planned its new bank building so that it could use the portion of Lot Two (2) covered by-the stairway. That a contract was let based upon said design, that facing stone was cut for its new bank to fit over the entire front of Lot Two (2).
“22: After the bank began its construction and when the plaintiff contacted the defendant about how and in what manner the fronts of the new building and his building ought to be joined, the defendant objected to the removal of the north stairway because he stated he might want to use the north stairway sometime in the future.
“23. No grant of an easement in Lot Two (2) for a stairway to serve Lot Three (3) has ever been made by any of the owners of Lot Two (2). That the said Party Wall Agreement between John S. Lang and W. L. Hoffman made no mention of a stairway easement. That the quit-claim deed, . . .
from John S. Lang and wife to W. L. Hoffman dated November 7, 1884, conveyed no such grant of an easement, but merely constituted a receipt for the payments to be made under the party wall agreement. The receipt for payment of a stairway mentioned in said deed is not for the same stairway now existing as the north stairway, but rather said payment was for a different stairway. That the north stairway was built six or seven years after said quit-claim deed was executed.
“24. The said north stairway was used by the owners of the Lang and Hoffman buildings under an oral permissive license implied from the facts, whereby the stairway was to be used as an access to their respective second floors because there was no other.
“25. At the time plaintiff and defendant purchased their buildings neither had any notice of any claim of the other upon their lands except that the north stairway located one-half upon each lot served as the sole access to their second floors.
“26. The defendant and his predecessors in title have expended no money in reliance upon nor have paid any consideration for any right to use part of Lot Two (2) to support a stairway. The defendant, since the purchase of his Lot Three (3), has spent substantial sums in remodeling his buildings on Lots Three (3) and Four (4) to join the two buildings into one and to avoid using the north stairway as an access to his second floor.
“27. The defendant no longer needs the said north stairway as an access to his second floor.
“28. Defendant would suffer no substantial injury or damage to his building by reason of the plaintiff’s removal of that part of the north stairway overhanging his said Lot Two (2).
“29. Since the plaintiff purchased the Lang building it has not used or occupied the second floor thereof except on a few occasions when it stored or allowed others to store small packages therein for short times.
“30. Because of the non-use of said stairs the same have not been maintained or kept in a safe condition during at least the past eleven (11) or twelve (12) years.
“31. If the plaintiff is deprived of the use of all its Lot Two (2) its new building will have to be altered in design, will have less floor space, will be architecturally imperfect, and be of substantially less value because of said north stairway. The front of building will be marred in appearance by the unsightly, old, worn out stairway adjoining it.”'
Ordinarily conclusions of law, which as has been heretofore indicated were returned by the trial court along with its findings of fact, would be quoted at length. However, for reasons to be presently disclosed, that action is not required on this occasion. It suffices to say that after making such findings and conclusions, and pursuant thereto, the trial court rendered judgment against the defendant, substantially in accord with its conclusions of law, wherein it declared the rights of the parties to the real estate to be as follows:
“1. The defendant has no easement by any grant in plaintiff’s lot 2 for a stairway to his building.
“2. That the said North stairway referred to in plaintiff’s amended Petition, and being located on the division line of Lots 2 and 3 of said sub-division was used under an implied license by the owners of lots two (2) and three (3). That said license was based upon the necessity of both owners using the said stairway as the sole access to the second floor of their respective buildings located on lots two (2) and three (3).
“3. That the plaintiff is not estopped from revoking said license to defendant for there exists no sufficient equitable grounds for raising such a bar against -the plaintiff and in favor of the defendant.
“4. That the defendant’s own actions make it inequitable for him to oppose the removal of that part of the north stairway on lot two (2) and it is inequitable to bar the plaintiff from removing the same.
“5. That the implied license of the plaintiff to the defendant to use part of Lot two (2) for stairway to the defendant’s building located on lot three (3) was revoked by the plaintiff in the month of June, 1952, when the plaintiff notified the defendant that it was going to remove that portion of the stairway which rested upon and over lot two (2). That plaintiff had the right to revoke the said license and remove the same.
“6. That the defendant has no right, title or interest in and to that part of plaintiff’s said lot two (2) upon which and over which rests the said north stairway.”
Following the rendition of the foregoing judgment defendant filed its motion for a new trial. Sometime later that motion was overruled. On the same date the trial court, which theretofore had taken under advisement the plaintiff’s demurrer to defendant’s cross-petition asking damages for the revocation of what the court had previously found to be an implied license, sustained such demurrer. Thereupon defendant gave notice and perfected his appeal from the judgment in favor- of plaintiff declaring the rights of the parties, from the order overruling the motion for new trial, and from the judgment sustaining plaintiff’s demurrer to his cross-petition.
The first and principal proposition relied on by appellant as grounds for reversal of the judgment is that the party wall agreement and the quitclaim deed, each executed and recorded in 1884, the contents of which, we may add, are accurately set forth in findings of fact Nos. 8 and 9, constitute an easement by grant to the division stairway described in the findings. In connection with this contention it is suggested, although not strenuously argued, that notwithstanding the express terms of the first agreement relate only to a party wall and contain no specific reference to the stairway, the inclusion of the phrase “that each party shall have the right to the free use of said wall and every part thereof to the extent that it may be necessary or convenient to the erection, construction or maintenance and occupancy of any buildings or improvements upon said lots,” warrants this court in holding the parties intended the granting clause of that instrument to include a stairway as well as a party wall. We do not agree. To construe such instrument in accord with appellant’s suggestion would result in our rewriting the instrument and including something therein which the parties themselves did not see fit to put there at the time they executed it.
Nor are we willing to hold as a matter of law, as appellant would have us do, that the deed (described in finding No. 9) quitclaiming all the right, title and interest of the grantor Lang in property which he had never owned, i. e., lot 3, is to be construed as a written grant of an easement to other property owned by him, but not mentioned or described therein, even though such instrument recites that it is intended, among other things, as a receipt for all claims the grantor might have on that portion of the division wall and stairway erected on the line between property conveyed by the quitclaim deed and the property owned by him. Standing alone, and without reformation of any kind or character, the very most that can be said for such instrument, and for that matter for it when construed in connection with the party wall agreement, is that the two instruments, when construed together, may afford some basis for concluding that the quitclaim deed was intended to convey the grantor’s interest in the portion of the party wall and stairway located on his own property, i. e., lot 2, as well as his interest in the party wall and stairway located on lot 3.
Assuming, without deciding the point for there is much to be said to the contrary, that the language of the deed on which appellant relies to support his position is sufficient to warrant a construe- Ron of the terms of that instrument on the basis of intention, it must be conceded such language is so ambiguous that the question whether the parties intended it should have the import appellant seeks to give it is a factual one to be determined by the trier of facts which, it is to be noted, under the express terms and provisions of its findings Nos. 13, 23 and 26, found that the stairway menRoned in the deed had reference to an entirely different stairway and that the division stairway here in question was not even constructed until some six or seven years after the date of the execuRon of such deed and the party wall agreement. Obviously, unless such findings are to be overthrown there is no sound basis for holding appellant had any right to the property in question under an easement by written grant.
No rule is better established in this jurisdiction than the one that findings of fact supported by substantial competent evidence are conclusive and will not be disturbed on appellate review even though the record discloses some evidence which might have warranted the trial court in making findings to the contrary. See, e. g., Doman Hunting & Fishing Ass’n v. Doman, 159 Kan 439, 443, 155 P. 2d 438; Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209; Oetken v. Shell, 168 Kan. 244, 248, 212 P. 2d 329; Thom v. Thom, 171 Kan. 651, 653, 237 P. 2d 250; Shotzman v. Ward, 172 Kan. 272, 279, 239 P. 2d 935; Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784; Freeman v. Keltner, 175 Kan. 37, 259 P. 2d 228; Spencer v. Supernois, 176 Kan. 135, 268 P. 2d 946.
Touching the sufficiency of the evidence to support the foregoing findings on the point now under consideration it may be stated that upon examination of the cold printed record we are inclined to the view our findings might not have been the same as those of the trial court. However, we are aware of the fact that in making such findings that tribunal was in a position to observe the witnesses and had a much better opportunity to pass upon the credence to be given their testimony. We are also mindful the rule has application regardless of how we construe the evidence so long as there is testimony to support its findings. Moreover, we are convinced there is such evidence of record. Therefore, notwithstanding appellant’s contention to the contrary, we are constrained to hold the Rial court’s findings Nos. 13, 23 and 26, to the effect that no written grant of an easement has ever been made by the owners of lot 2 must be upheld.
Having reached the conclusion just announced, since the claim appellant had acquired an interest in lot 2 and the portion of the stairway resting thereon by an implied easement and/or by prescription is no longer in the case, it is apparent the issues remaining for decision relate to rights acquired by appellant under and by virtue of an oral license to use the portion of the division stairway resting on the appellee’s land.
In view of what has already been stated the.next error assigned by appellant to the effect the trial court committed reversible error in permitting parol testimony to contradict documentary evidence requires little if any attention. All arguments advanced with respect thereto are based on his erroneous assumption the terms of the party wall agreement and the quitclaim deed were clear and unambiguous. This court is committed to the rule (See Stapleton v. Hartman, 174 Kan. 468, 471, 257 P. 2d 113; Hatcher’s Kansas Digest [Rev. Ed.], Evidence, § 185; West’s Kansas Digest, Evidence, § 448) that parol evidence is admissible to explain the terms of vague, uncertain and ambiguous contracts. It follows, that where — as here — the particular terms of the agreement relied on are of that character, a claim that evidence explanatory of the intention of the parties in the use of such terms is admitted in violation of the parol evidence rule has no merit.
The next question raised by appellant is predicated upon the premise the license under which he acquired the right to use the involved property was irrevocable. The gist of all arguments advanced in support of his position on this point is that such license was given for a valuable consideration, that in reliance thereon he expended money and labor in the maintenance of the stairway and that therefore such license, even if it were not so at its inception, was irrevocable. It must be conceded that where tire facts on which appellant bases his claim are admitted the rule is as he contends. (See, e. g., Kastner v. Benz, 67 Kan. 486, 73 Pac. 67; Smyre v. Kiowa County, 89 Kan. 664, 132 Pac. 209; Page v. Lydic, 123 Kan. 122, 254 Pac. 316; Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 106, 45 P. 2d 846.) The difficulty from his standpoint is that the trial court refused to find facts which would bring him within the scope or application of such rule. Indeed it found directly to the contrary. See finding No. 26 where, on the basis- of controverted but nevertheless substantial evidence, it found in clear and unequivocal language that appellant as well as his predecessors in title had expended no money in reliance upon, nor paid any consideration for, any right to use a part of lot 2 to support a stairway.
Nothing would be added to our reports if we were to detail or set forth at length the evidence on which the trial court based its findings of fact. It suffices to say that after a careful review of the entire record we find some evidence, although it must be conceded that in most cases the testimony was highly conflicting, to sustain each and all of such findings of fact, including findings as to nonuse of the division stairway and the licensee’s lack of need for the same, of which the appellant bitterly complains on the ground there was a complete lack of evidence to support them. In that situation, as we have heretofore indicated, it is not the province of this court to weigh the testimony but its duty to adopt the findings as made and give them full weight and credence in determining the rights of the parties. When that is done we have little difficulty in concluding and are constrained to hold the conclusions of law and the heretofore quoted judgment in the form of declarations outlining the rights of the parties under the pleadings and evidence as made and rendered by the trial court must be upheld.
Heretofore no specific mention has been made of errors assigned in connection with the overruling of the motion for new trial and the sustaining of appellee’s demurrer to appellant’s cross-petition. The first of these claims of error is based on the same contentions heretofore discussed and disposed of and hence requires no further consideration. The second is dependent entirely upon the legal status of appellant’s rights in the involved property and ceased to have merit upon the adverse determination of contentions advanced by him respecting them.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by the receiver of the State Bank of Superior, Nebraska, in the district court of Jewell county, Kansas, against one of its former depositors for $5,608.50, which plaintiff claims was improperly placed to the credit of the defendant on his deposit account by the officers of the bank on December 6, 1926, and had been used and checked out by defendant, except $101.42, when the bank failed on April 28, 1927. The answer was in effect a general denial except admitting the credit to his account. The case was tried to a jury which returned a verdict for the defendant, and from the judgment thereon in favor of the defendant the plaintiff appeals.
Error is assigned in overruling appellant’s motion for judgment on the pleadings and opening statements, in excluding exhibit No. 6, in giving certain instructions to the jury and in overruling plaintiff’s request for a directed verdict and its motion for a new trial.
While the above statement briefly presents the question brought here on appeal, it does not give a satisfactory or necessary view of the case as it was presented and tried in the court below. To avoid confusion let us for the purpose of this statement disregard what is described as a cash item of $108.50, which is. not vitally important and not well explained or connected with the other transactions mentioned in the petition and evidence, and we will refer to the claim as being even money, $5,500.
The petition recites in great" detail a series of irregular transactions by the president and cashier of the bank commencing back more than a year before the failure of the bank, wherein they kept a firm account in the name of Weir & Aldrich, and on April 30, 1926, when three separate notes of customers were paid, amounting to $5,500, instead of sending the money to the Tootle-Lacey National Bank, which held them on rediscount, new notes were supplied with different numbers in the files and on the books, and the $5,500 placed to the credit of the firm of Weir & Aldrich. On August 18, 1926, the defendant had on deposit in his checking account in the bank more than $6,000, and the president and cashier transferred $5,500 of it to their firm account, placing a debit slip in the records showing the transaction. On the 6th of December, 1926, the president and cashier reimbursed the defendant’s account by the return of the $5,500, placing it to his credit, making a deposit slip of it, and it is alleged that this credit of $5,500 appeared on the adding-machine list given to defendant with his pass book and checks in January, 1927.
The following paragraphs from the petition will complete the history of the case and -show the theory of the plaintiff at the time the petition was filed:
“That on said date Joseph E. Weir and George S. Aldrich with the consent of the defendant borrowed of him and took from his said general account said sum of $5,500, evidencing the withdrawal thereof by placing a debit slip in the records of said account in said bank. . . .
“That plaintiff charges that the taking of said sum of $5,500 of the money of the defendant by said Joseph E. Weir and George S. Aldrich constituted a loan to them by defendant at the interest rate of 7 per cent per annum, and which said money was borrowed by said Joseph E. Weir and George S. Aldrich for the purpose of taking up and reimbursing said the State Bank of Superior for the aforesaid three notes of Headrick, Bargen and Green, after they, said Joseph E. Weir and George S. Aldrich, had wrongfully diverted and converted the money paid by the makers of said notes as hereinbefore recited. . . .
“That plaintiff further charges that prior to said 18th day of .August, 1926, the defendant had permitted said Joseph E. Weir and George S. Aldrich to borrow various sums of money from his general checking account. . . .
“That on said 6th day of December, 1926, said Joseph E. Weir and George S. Aldrich wrongfully and without right or authority so to do appropriated and converted the cash and money of said the State Bank of Superior in the sum of $5,608.50 to their own individual use and benefit and the use and benefit of the defendant as hereinafter shown without payment by them or reception by said bank of any benefit or consideration whatsoever and without record except the placing by said Joseph E. Weir and George S. Aldrich of a certain debit slip in the records of said bank. . . .
“That the aforesaid money of said the State Bank of Superior wrongfully converted by said Joseph E. Weir and George S. Aldrich was by them paid to and to the use and benefit of the defendant, with his knowledge and consent.”
The record shows that the plaintiff substantially followed the petition in making his opening statement, and that the opening statement of the defendant was in part as follows:
“Now if the officers of that bank misappropriated their depositors’ money, as the statement indicates here, we contend that the defendant, Mr. Douthitt, is in no way responsible for it, because he knew nothing about it, and that all Douthitt did, as any customer.of the bank would do, he put his money in there and checked it out, and he doesn’t owe them a dollar.”
On March 12, 1928, the attorneys for the receiver wrote the defendant the following letter:
“We write you in behalf of E. J. Dempster, receiver of the failed State Bank of Superior, Nebraska. On August 18, 1926, it appears that you loaned Messrs. Weir & Aldrich the sum of $5,500. That you received on December '6, 1926, the sum of $5,608.50, which was taken from the funds of the bank. This was the individual debt of Weir & Aldrich, to you, and you were charged with the duty of seeing that they would not pay it out of the funds of the bank. S'ince it was returned out of the funds of the bank, you are liable for the repayment of the same to the bank. In the event of your failure to repay the sum of $5,608.50 together with interest at 7 per cent from and after December 6, 1926, we will be obliged to commence suit against you for the same. Please let us hear from you.”
The assignment of error in overruling appellant’s motion for judgment on the pleadings and the opening statements can be easily •disposed of when we observe the nature and character of the cause of action stated in the petition. It unmistakably states a cause of action based upon the improper return of the sum of $5,500 to the account of the defendant from the funds of the bank, which sum the defendant a few months before had definitely loaned to the president and cashier of the bank personally, and with full knowledge had permitted them to withdraw this amount from his checking account. The answer denies all of this except the return of the $5,500, and thereby, raised many issues of fact, and the opening statements following the pleadings did not eliminate any of those issues.
It appears that the trial court was not favored with the testimony of the two witnesses who necessarily and naturally knew more than all others about this transaction. The only witness produced by the plaintiff was the special agent in active charge of the failed bank under the receiver. He produced books and papers belonging to or found in the bank, and testified from them and as to the handwriting of the officers, and explained some of the entries. On cross-examination he said:
“In. many instances Weir & Aldrich took money from depositors and put it into their own account, without authority from the depositors.”
He explained that he had been unable to find any checks or debit, slips of the defendant in the bank, and that after the bank closed he saw the defendant bring to the bank and hand to Hogland, a special officer then assisting the receiver, his pass book and checks together with an adding-machine list of checks which included the $5,500 item of August 18, 1926. The witness in great detail gave the matters shown by the bank records as to the $5,500 paid by the three-customers on their separate notes, and traced it to the account of the officers’ firm; later he showed the withdrawal of that amount, from defendant’s account and the payment that same day of this amount to the holder of the three original notes, and then showed the later reimbursement of the account of the defendant.
The defendant testified in part as follows:
“That he was engaged in the live-stock business and had been a customer of the State Bank of Superior for many years. That he had never authorized either Weir or Aldrich to take any money from his account and he had never heard of their doing so until after the bank closed. After the bank closed the-witness gave his bank book to Hogland and has never seen it since. . . . That he delivered to Hogland his pass book and other papers, including checks- and notes and an adding-machine statement of the charges made against hi& account. The witness did not remember any charge of $5,500.”
The appellant argues that since the receiver entirely failed to. establish any of the allegations as to the making of a loan by the: defendant to.the officers of the bank or his permitting them to withdraw money from his account, that such matters should be considered as collateral — preliminary history, as it were, and only for the purpose of leading up to the vital point of final reimbursement of the appellee on December 6, which would in and of itself be an enrichment of the defendant to that extent out of the funds of the bank, and entitle the receiver to recover the same. This is the case as it was stated in the first paragraph of this opinion as embodying the present theory of the appellant.
If the appellant had filed his petition starting with the act of December 6, 1926, alleging an improper enrichment of the defendant, the answer would certainly have supplied that allegation of the prior depletion of the defendant’s account. In a court of review the pleadings are not usually amended nor allegations eliminated therefrom. Even if amended during the trial, the original may be introduced in evidence. S'o the whole story is here as it was before the jury and the trial court. The skill with which the petition was drawn does not suggest that the draftsman needlessly and thoughtlessly included the several strong and forceful allegations about the defendant making a loan to the president and cashier, and permitting them to withdraw this large amount from his checking account for their personal benefit.
If the appellant should desire to forget the preliminary history and begin with December 6, the court in the interest of common justice and good conscience would want to know what became of the $5,500 that was in defendant’s account on August 18. The defendant was not on that date carrying a deposit with the president and cashier of the bank, but with the bank. What did the bank do with the deposit intrusted to its care? If it had remained solvent would any court have sustained its claim on one side when it ignored its responsibility on the other?
The receiver is here representing the bank, its depositors and creditors.
Appellant cites many cases showing that an officer of a bank cannot give away the funds of the bank nor use them to pay his individual debts, and if he does the bank can recover them from the party to whom they are given. In the case of Cobe v. Coughlin, 83 Kan. 522, 112 Pac. 115, the officers permitted a creditor of a stockholder to check on the bank to the amount of the debt of the stock holder to him without anyone making a deposit in the bank to justify the same.
In the case of Hier v. Miller, 68 Kan. 258, 75 Pac. 77, the cashier entered in the pass book of his creditor a credit to the amount of his individual indebtedness and allowed the creditor to check it out of the bank, and the creditor was required to return it to the bank because the giving of credit in the bank book for the individual indebtedness of the cashier was sufficient to put him on his inquiry.
The case of State Bank v. Richardson, 117 Kan. 695, 232 Pac. 1070, was where the managing officer of the bank gave an executed deposit slip for his individual debt and the creditor had reason to know that the bank should not pay the officer’s debt.
A statement in Bank v. Telephone Co., 88 Kan. 287, 128 Pac. 357, cited by appellant covers the question here involved at page 294.
“One who receives from an officer of a corporation the securities of the corporation, either in payment or as security for the personal debt of such officer, does so at his peril; prima jade the act is unlawful.”
Other citations are to the same effect, but they all hark back to the fact that the party benefited knew, or ought to have known, that he was dealing with an officer and not with the bank. That takes us back to the petition again — well drawn. It is all in there, fully stated and developed, but without any testimony to support it as to the knowledge of the defendant.
Appellant cites 41 C. J. 59, under the heading of “Money received,” and the following paragraph therein we think correctly states the rule about recovering back money received:
“As a defense to the action defendant may and ordinarily must show such faots as will entitle him to retain the money on either equitable or legal grounds. The main principle by which to test the matter is whether in equity and good conscience, in view of the special facts of the case, defendant is entitled to retain the money as against plaintiff, not necessarily whether he has an absolute right to the money as against any person, but whether his right thereto is equal to plaintiff’s right.”
Great stress is placed on the fact that the adding-machine list in the pass book given to the defendant shortly before the bank closed should have put the defendant upon inquiry, and that it was his duty to have examined it when it was given him, but his neglect to do so promptly will not put him upon inquiry, and his testimony is that he did not remember seeing this item and did not know of it until after the bank closed.
The motion for a directed verdict for plaintiff was properly overruled because there was no testimony of the making of a loan to the officers, or the withdrawing of the funds from defendant’s account with his knowledge or permission, but evidence to the contrary; and the evidence of notice to put defendant upon inquiry was not in itself conclusive.
Appellant insists that it was error for the court to exclude exhibit No. 6, which was a debit slip showing an earlier withdrawal of $9,500 from the defendant’s checking account by the same bank officers, which was placed in their firm account and returned in about three weeks. The record shows nothing in the way of bringing this transaction to the knowledge of the defendant and nothing to put him upon inquiry. Without some evidence along these lines, the exhibit was properly excluded.
Appellant complains of the instructions given, in that they make the knowledge of the defendant of the wrongful acts of the officers a required factor in the appellant’s case, in that the jury was permitted to consider as an open question whether the officers of the bank wrongfully appropriated bank money, and in that the jury was authorized to consider the question of the defendant making a loan to the officers and the withdrawal of his deposits in connection with the wrongful reimbursement.
The instructions of the court were necessarily based upon the evidence as well as the pleadings, and the absence of proof on an essential element of the plaintiff’s cause of action will not withdraw that feature of the case from the consideration of the jury, especially when the evidence of the defense was directly and positively to the contrary. We find no error in the giving of the instructions or 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
Dawson, J.:
This was an action on a policy of fire insurance on a farmhouse. The defense was based on plaintiff’s want of insurable interest.
The material facts were these:
On June 4,1909, one George Miller died seized of a 320-acre farm in Edwards county. By his will he devised a life estate in the farm to a brother, Jonas W. Miller, Sr., and the remainder to that brother’s son, Jonas W. Miller, Jr.
The life tenant had a daughter who was married to James Hohn, following which Jonas told Hohn “to take the land and do what he pleased with it, and farm it, it being agreed that the said Jonas Miller, Sr., should have a room in the house and board with the family.”
Accordingly, sometime in 1909 Hohn and wife moved on the farm and occupied it for many years, and Jonas made his home with them. Jonas and Hohn neglected to pay the taxes for several years, and in 1913 a tax deed to the farm was issued to M. M. Rummell, and in 1915 Rummell conveyed it by quitclaim deed to Hohn. In June, 1922, Hohn assumed to convey it by quitclaim deed to M. C. Tubbs, and in November, 1923, the heirs of Tubbs conveyed it by quitclaim deed to the plaintiff, C. B. D. Colver. The quitclaim deeds to Tubbs and Colver were “given as security for indebtedness and being in fact mortgages.”
On October 17, 1924, Hohn and wife also gave Colver a mortgage on the farm to secure the payment of their promissory note for $5,795.82, payable on demand.
On December 1, 1925, Colver instituted an action in the district court of Edwards county against the life tenant, the remainder-man, and the administrator of the deceased testator who had devised the property as above. The object of the suit was to obtain a declaratory judgment on the validity of the tax deed of 1913, and other matters of no present concern. That action was tried in June, 1927, and the court took the case under advisement for several months.
While the matters were in that situation and waiting the decision of the trial court, on October 12, 1927, Colver obtained from defendant a policy of fire insurance for $1,500 covering the farmhouse, loss payable to himself, "mortgagee, as his interest may appear at time of loss.” In December, 1927, the trial court rendered its decision in the tax-deed case, in which it defined the status of Hohn with reference to the farm as that of a tenant at will. That judgment was reviewed by this court, where it was held that Hohn, being merely the tenant at will of the life tenant, could not acquire title adversely to the remainderman, and that his acquisition of the tax title by quitclaim deed from Rummell had the effect of a redemption from tax sale. (Colver v. Miller, 127 Kan. 72, 272 Pac. 106, decided December 8, 1928.)
Four months prior to this court’s decision just stated, on August 8, 1928, the farmhouse was destroyed by fire, and on September 5, 1928, this action to recover on the policy was begun.
. On issues joined the cause was tried by the court. Aside from & question of veracity between Colver and the agent who wrote the application, touching Colver’s statements concerning the nature of his interest in the property, the evidence provoked no serious controversy.- The trial court made findings of fact which included a recital of the pertinent matters involved in Colver v. Miller, supra. In part, these read:
’ “I. About October 12, 1927, J. F. Motter, soliciting agent of the defendant insurance company, solicited the insurance on a number of properties owned by the plaintiff, among them being the property in controversy; that several properties were discussed, and plaintiff at that time told Mr. Motter that he field a tax-deed title as security and a mortgage on the property in controversy, and that the matter of the title was then in litigation; that he would like to have insurance on the property, and that Mr. Motter, if he chose to do so, could examine the record title and also examine the property. Mr. Motter did make an examination of the property in question, and at that time talked with James Hohn, and later Mr. Motter prepared an application for insurance which was signed by the plaintiff. . . .
“II. That said company later issued to the plaintiff a policy of insurance •upon the dwelling house. ...
“III. At the time of the issuance of the policy of insurance herein sued on the plaintiff [himself] was a soliciting agent of the defendant insurance company, and he did not at any time notify the defendant of the results of the .litigation in [Colver v. Miller] ...
“IV. On August 14, 1928, the dwelling house included in said policy of insurance was destroyed by fire, such dwelling house being insured in said policy .against loss by fire in the sum of $1,500.
“V. ... On August 29, 1928, [defendant] notified plaintiff by letter that it would not pay said loss, and denied liability under said policy, and tendered back to the plaintiff the sum of $72.66 for the premium paid by plaintiff.
“IX. On December 1, 1927, the district court made findings of [act and conclusions of law, in said action of Colver v. Miller et al., finding that said [Rummell] tax deed was invalid, from which judgment and findings plaintiff appealed to the supreme court, where the judgment and findings of the district court were affirmed. . . .
“X. On October 17, 1924, James Hohn and Sadie Hohn, his wife, executed a promissory note to the plaintiff herein for the sum of $5,795.82, whereby they promised to pay said amount on demand; said note was secured by a real-estate mortgage executed on said date, and covering the real property herein described.
“XI. Jonas W. Miller was born on September 28, 1847, and died December 3, 1928, and at the time the fire loss under the policy in this action occurred, his life expectancy, according to the American experience table of mortality, was 4.05 years. James Hohn performed his contract with said Jonas W. Miller, Sr., until the time of the death of the said Miller.
“Conclusion of Law.
“The court concludes, as a matter of law, that the plaintiff should have judgment against the defendant for the sum of $1,591.50, together with the costs of this action, and that there should be taxed as costs herein the sum of $500 attorney fees.”
Judgment was entered accordingly and defendant appeals, pressing its main contention that Colver had no insurable interest in the farmhouse on the Miller property.
Counsel for these litigants are in practical agreement as to the general rule of law which governs this appeal. Both parties cite textbook authorities and decided cases holding that any person who has an interest in property which may be adversely affected by its destruction has an insurable interest in it. It need not be a certainty that he will suffer a loss if the property is burned; it is enough if he may possibly be damaged thereby. So, too, cases and rules of law are cited holding that a mortgagee, a life tenant, or one in possession of property under claim of right, although such claim is invalid, has an insurable interest. There is authority which holds that even a tenant at will may have an insurable interest. Most of this is familiar law. Our concern is to discover how this plaintiff, C. B. D. Colver, brings himself within this liberal rule of law. Colver holds a mortgage executed by Hohn, the tenant at will under the life tenant. A tenant at will cannot be assured of a longer occupancy than the time which the statute requires as a sufficient notice to terminate such tenancy — thirty days. (R. S. 67-504.) So, while Hohn might have insured his very limited interest in the farm home as tenant at will because its destruction within the time he could have held possession under the statute would have been a loss to him, that interest was too shadowy to be made the basis of a real-estate mortgage. What could Colver do with such a mortgage? If it were foreclosed what could the sheriff sell and deliver to a purchaser at foreclosure sale? Nothing.
“Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him.” (Coke upon Littleton, 1st Am. Ed. § 68.)
This is still law in this state, except that thirty days’ notice in writing is necessary to terminate the tenancy unless the tenant commit waste, in which event no notice is necessary. (R. S. 67-504, 67-509.) The purpose of the statute was to provide a peaceable and fair method of determining the precarious estate, and enabling the landlord promptly to regain possession.
It was an intrinsic quality of an . estate at will that it was personal, and could not pass to an assignee. In this instance the service to be rendered by the tenant at will was in fact personal, and an assignment of the tenancy would ipso facto determine the estate. While under modem law a mortgage does not constitute a conveyance and merely creates a lien, the essence of the lien is that the mortgagee has power to procure a sheriff’s sale of the land to a purchaser to satisfy the debt secured by the lien. Exercise of the power would of necessity defeat itself by terminating the tenancy.
Counsel for the appellee put their own construction upon what was decided in Colver v. Miller, supra, and assert that it was there decided that Hohn had acquired the entire interest of Jonas W. Miller, Sr., the life tenant; that Hohn was in effect the life tenant; and the point is made that- a life tenant may mortgage his interest as life tenant. It is useless to waste words on that point. Either the decision of the trial court in Colver v. Miller, supra, affirmed by this court, that Hohn’s interest was that of a tenant at will is res adjudicata, or the matter is still open for decision in this action, and we are bound to hold, as heretofore, that such was the nature of his interest. He was not the life tenant, nor did he acquire all the interest of the life tenant. What the life tenant did do was what any elderly man in his circumstances who was on good terms with his daughter and her husband would naturally do. He wanted' to live on that particular farm with his own daughter and her family, and to accomplish that purpose he permitted Hohn and wife to take charge of the farm, and gave Hohn the privilege of conducting it to suit himself, to do what he pleased with it, provided he was given a room and board in the farmhouse with Hohn’s family. Such an arrangement was a purely personal one between Jonas W. Miller, Sr., and Mr. and Mrs. Hohn. It did not pass the life interest from Jonas to his son-in-law. It did not transfer an assignable interest in the farm to Hohn. The intimate domestic relationship of the parties which inhered in the contract and was its essential and controlling element and purpose- could not be the subject matter of a mortgage nor sold at sheriff’s sale to the highest bidder. It is clear to this court that when this farmhouse burned, Colver’s mortgage was a nullity; consequently he suffered no loss. He had no insurable interest in the property which burned.
But what about estoppel? Appellee contends that having apprised the agent of the company of the facts concerning his interest in the property, and of the litigation pending to determine that interest, defendant undertook the risk and accepted the premium therefor, and therefore it is estopped to raise the defense that plaintiff had no insurable interest. It seems a sufficient answer to this point to observe that although Colver may be accredited with entire good faith in believing he had a substantial interest in the property as quitclaim title holder under the tax deed and as the holder of a mortgage given by the tenant at will, yet the policy itself provided that the loss would only be payable to Colver,' “mortgagee, as his interest may appear at time of loss.” Ere that time arrived it had been made to appear that the tax deed was invalid and it had been held that its acquisition by Hohn had extinguished it. Consequently Hohn’s quitclaim deed passed nothing through Tubbs and his heirs to Colver. Ere then, also, it had become perfectly apparent that Hohn, the mortgagor under whom Colver claimed, was a mere tenant at will under a conditional contract of occupancy of such an intimate and personal nature that it furnished nothing substantial which could be the subject of a mortgage. Furthermore, a salutary public policy will not give judicial recognition to a contract of insurance on the life or property of another person issued in behalf of one who has no insurable interest therein. Such insurance is regarded as a mere wagering contract which the courts will not enforce. Consequently the doctrine of estoppel invoked by plaintiff cannot be applied here nor does it vitiate the defense set up against this action. (32 C. J. 1109-1112; 26 C. J. 36; 14 R. C. L. 905-910.)
The judgment is reversed and the cause remanded with instructions to enter judgment for defendant.
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The opinion of the court was delivered by
Dawson, J.:
This was an action by resident taxpayers of Atchison county to enjoin the board of county commissioners from levying a tax upon their property to raise funds to construct an insane ward as an addition to the county poor farm.
Various constitutional and statutory objections to such an undertaking were pleaded. The county board’s demurrer to plaintiffs’ petition was sustained, and the cause is here for review.
The constitution provides that institutions for the benefit of the insane, blind, and deaf and dumb, and such other benevolent institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be prescribed by law. (Art. 7, § 1.)
From this constitutional provision plaintiffs postulate that the care and maintenance of insane persons cannot be cast on the individual counties, and they argue how unjust it would be for the taxpayers of Atchison county to have to contribute, as they must do, to the support of the several state hospitals for the insane recruited from all over the state, and at the same time to have to pay for the erection of a county institution of the same sort to house Atchison county citizens who may be thus afflicted.
This argument would be more potent on the floor of the legislature than in the court room. The constitution contains another provision equally potent with the one quoted above. It reads:
“The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants who, by reason of age, infirmity, or other misfortune, may have claims upon the sympathy and aid of society.” (Art. 7, § 4.)
This section of the constitution is just as broad and all-inclusive as the one relied on by plaintiffs, and the fair construction of both of them is that it is the duty of the state and also of the several counties to make suitable provision for the care of the insane, subject to such regulations “as may be prescribed by law.” (Art. 7, §§ 1, 4.) These constitutional provisions, which are manifestly not self-executing (State, ex rel., v. Deck, 106 Kan. 518, 188 Pac. 238), virtually give the legislature a free hand to impose the cost of care and maintenance of mentally infirm persons upon the state or the counties or on both according to the lawmakers’ notions of wisdom and expediency.
Plaintiffs’ next objection to the threatened imposition of taxes to erect an insane ward at the county poor farm cannot be so readily disposed of. They contend that there is no statute conferring power upon the board of county commissioners to erect an insane asylum or ward on the county poor farm.
Counsel for the county board do not cite any statute which contains such grant of power in express terms, but our attention is directed to a number of statutory provisions from which counsel infer that the county board has power to carry out the project it has undertaken. The argument is to this effect:' A statute, R. S. 76-1204 et seq., provides for the temporary detention and custody of persons suspected of lunacy, for inquests in lunacy, and prescribes a procedure to secure the admission of lunatics into a state hospital for the insane. This statute also requires the state hospital authorities to advise the probate judge having jurisdiction of any such lunatic whether he can be received or not (R. S. 76-1213); and it is also provided that the county shall receive from the state a sum not to exceed two dollars per week for each destitute insane person in the county whose admission to the state hospital has been refused for want of room. (R. S. 76-1218.) Pursuant to the provision of statute just quoted, counsel for the county board directs our attention to the very substantial sums the state has had to pay to Atchison county in recent years for the care of destitute insane persons which the state hospitals could not receive:
Laws 1923, ch. 53 .................................... $620
Laws 1925, ch. 21 .................................... 1,048
Laws 1927, ch. 68 ..................................... 1,416
Laws 1929, ch. 68 .................................... 1,614
The two dollars weekly allowance was specified in the statute of 1901 (ch. 353, § 65), when costs of care and maintenance were much lower than at present, and it needs no evidence to advise this court that there is a wide disparity between what it costs Atchison county to care for the destitute insane in 1930 and the amount it receives from the state in reimbursement for such expenditures under the statute of 1901. However, the wisdom or expediency of the county building an annex to the poorhouse as a more economical method of caring for the destitute insane is not the question we have to •decide. Our search is for statutory power to justify the county commissioners in what they propose to do. In State, ex rel., v. City of Coffeyville, 127 Kan. 663, 274 Pac. 258, the city sublet its municipal airport to a private concern. In an action to enjoin the carrying out of the contract it was said:
“The fact that the unauthorized power which the official board or governmental agency assumes to exercise may be a good stroke of business will not justify it.” (p. 667.)
In State, ex rel., v. Bradbury, 123 Kan. 495, 256 Pac. 149, where a school board sought to justify its unauthorized purchase of omnibuses to haul children to school rather than pay for their tuition in other schools more accessible, it was said:
“Touching the principal matters specially pleaded in defendant’s answers — the alleged saving of the district’s funds by the purchase and operation of the busses to carry to and from school the pupils who lived at a considerable distance therefrom rather than pay their tuition in other more convenient districts. ... If the cost of paying tuition of some of the district pupils attending school in other districts is a lawful charge on the funds of the Labette county community high-school district and is more than it would cost to furnish transportation for such pupils to and from school in their own district, that is a matter which the legislature could and probably would correct if the fact were called to its attention. . . . However, we have to deal with the law as it is, not as it might be.” (pp. 497, 498.)
We do not overlook that provision of the statute which says that where a person is adjudged to be insane the probate court shall enter a proper order for his disposition—
“. . . Such order may discharge the patient with or without conditions, •or remand him to the custody of his friends, or commit him to some hospital, public or private, in this state, or to a county insane asylum or the insane •department of a county almshouse, if there be a county insane asylum or a •department- for the insane in the almshouse in the county where such alleged insane person resides.” (R. S. 76-1214.)
The language quoted gives authority for the disposition of the lunatic. Manifestly this section of the statute has been inconsiderately copied in haec verba from the statute of some state where •county insane asylums and almshouses, and insane departments in almhouses are in vogue. They do not exist in Kansas, and we must •continue our quest for statutory authority for their construction— particularly for the construction of “an insane ward as an addition to the poor farm.”
There is a statute which makes it the duty of the, county to relieve and support all poor and indigent persons lawfully settled therein, whenever they shall stand in need thereof (R. S. 39-304), and of course insane persons who are poor and indigent are just as much entitled to the benefit of this' statute as any others. There is also statutory authority for the county board to acquire land and establish thereon an asylum for the poor, or for two or more counties to do so jointly (R. S. 39-324), and express authority is granted to employ a superintendent to conduct it and a physician to attend to it (R. S. 39-325, 39-326), and to levy taxes for its support (R. S. 39-324, 39-340). There is also statutory authority under which county buildings can be erected (R. S. 19-1501 et seq.); and R. S. 19-1801 authorizes counties like Atchison (population, 26,567; statistics of the state board of agriculture) to establish county hospitals. This summary of statutes may not be entirely complete, but it shows rather clearly, we think, that the authority of the county commissioners to levy taxes to construct county buildings — courthouses, poorhouses or asylums, hospitals and the like — is conferred by express provisions of statute; and very little, if any, authority to construct county buildings of any sort is vested in the board by mere implication. And as no explicit statutory authority to erect an insane ward as an addition to the present county poor farm exists, a majority of this court deems it imperative to hold that defendant’s demurrer to plaintiffs’ petition should have been overruled and that plaintiffs are entitled to the injunction for which they prayed.
It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover from the Bankers Mortgage Company and Austin Dumond the sum of $500 paid by the plaintiff to Austin Dumond for a coupon bond to be issued by the Bankers Mortgage Company, which was offered for sale and being sold by defendant Dumond.
The case was here before on appeal, by the mortgage company, from the decision of the trial court overruling a motion to quash the service of summons and a demurrer to the petition. The ruling of the trial court was affirmed and the case is reported in 126 Kan. 655, 270 Pac. 578.
Later the mortgage company filed an answer setting up, among other defenses, the limited authority of defendant Dumond to sell its coupon bonds only to such applicants as should deliver to him a check for the amount of the bonds purchased, made payable to' the Bankers Mortgage Company, and that the application signed by plaintiff notified and advised plaintiff of such limitation of authority. To this answer a reply was filed pleading waiver of such limitation by the mortgage company and ratification of the acts of its representative, Dumond. No answer or further defense was made by defendant Dumond.
The trial was had to the court without a jury. Extended findings of fact and conclusions of law were made and judgment was rendered in favor of the plaintiff against both defendants, from which the mortgage company appeals.
The court found that the application which the plaintiff signed for the purchase of the coupon bond and the receipt which the defendant Dumond gave him for the $500 had printed on the bottom thereof, under the signatures of the plaintiff and defendant Dumond, the following words, which agree with what is printed on one of the exhibits introduced in evidence:
“The Bankers Mortgage Company is not responsible, unless check or draft for the full amount is made payable to the Bankers Mortgage Company and indorsed by one of its officers.”
The court further found the application and receipt were dated May 3, 1927; that plaintiff that day gave Dumond $500 in government bonds in lieu of cash or check; that Dumond wrote the mortgage company on June 4, 1927, sending his own personal check in favor of the mortgage company for $485 and the application of the plaintiff for a $500 coupon bond, with the statement that he had taken Liberty bonds in on the deal which had been cleared at his bank; that the mortgage company on June 6 acknowledged receipt of the same, thanking him for the business and hoping he might get more like it, and the same day forwarded the check to the bank on which it was drawn, asking for a draft; that on the same day the plaintiff wrote the mortgage company to know the cause of delay in sending the coupon bond and demanding that if it be not in his hands by June 9 he would expect a refund of the $500; that the mortgage company answered plaintiff on June 9, stating that Dumond had sent his own personal check, and assured him the coupon bond would be sent as soon as the check could be cleared; that on June 20 plaintiff wrote the mortgage company demanding the return of the money and stating he did not now care to have the coupon bond; that on June 23 the mortgage company wrote plaintiff it was returning his application to Dumond and also the personal check of Dumond which had failed to clear, and called his attention to the printed requirement at the bottom of the receipt; that other letters and telegrams were sent the mortgage company by plaintiff and his attorneys demanding the return of the money and declining to accept the coupon bond; that on August 10 the mortgage company acknowledged receipt of telegram from plaintiff, dated August 5, declining to accept the coupon bond; that on August-11 the mortgage company sent plaintiff the coupon bond, which was not accepted.
The concluding findings of the trial court are as follows:
“The court further finds that the defendant mortgage company fully ratified the transaction of its representative, defendant Dumond.
“The court further finds that it waived the conditions of the contract of purchase made by • plaintiff by acknowledging from its representative, defendant Dumond, the receipt of the order on June 6, which order was executed and dated May 3, by congratulating him for the business and the manner of its procurement.
“Further finds that on the 23d of June, having returned the contract of purchase signed by plaintiff, sending the same to its representative, Dumond, that it afterwards negotiated with its representative Dumond and made settlement with him for the full amount, and that this was long after plaintiff had demanded the return of his money, and declined to go through with the contract of purchase.
“The -court further finds that plaintiff should have and recover of and from the defendants, Dumond and the Bankers Mortgage Company, the sum of $500, together with six per cent interest from May 3, 1927, and costs of action.”
The record further shows that just prior to the trial the mortgage company tendered plaintiff a coupon bond for $500 and thereafter, when rejected, it tendered cash for $250 and assignment of a note- of Dumond for $250 with the cash for the payments thereon, reducing it to $117 not paid, which offer was also refused. The record -further shows that the officers of the mortgage company had taken up the Dumond note for balance of $117 and paid the mortgage company therefor, the mortgage company in that way receiving the full amount of $500.
Appellant insists that it should be protected by the limitation of authority printed on the application and receipt of which the plaintiff had full knowledge when he disregarded it and gave the government bonds to Dumond instead of a check in favor of the mortgage company. This limitation was reasonable and -made expressly for the protection of the interests of the mortgage company, and it may be conceded for the purposes of this case that if the mortgage company had strictly adhered to its own rule and requirement, and insisted upon a compliance therewith, the plaintiff might have been compelled to look to Dumond alone for the value of the government bonds he gave.Dumond in disregard of the express direction. The mortgage company might have returned the application and Dumond’s check for a check of plaintiff in compliance with the requirements. Anything it might have done to have the plaintiff meet the requirement would not have lost the company the protection intended to be afforded by the printed requirement, but when it accepted something as a substitute for the thing required from the plaintiff it waived its rights under such protection. The letters acknowledging the receipt of the application and the Dumond check, the acceptance of the Dumond check, the endeavor to get a draft therefor and the subsequent efforts to collect the check from Dumond all show a waiver of the right of the mortgage company to stand upon the strict requirement as to limited authority and show a ratification of the act of the defendant Dumond as its representa-, tive in taking the bonds instead of a check made payable directly to the mortgage company. There can be no question but that these acts of the mortgage company were with an intention on its part to relinquish its contract rights and to treat the Dumond check as a substitute for the direct check to it from the plaintiff, and constituted a waiver of its rights under the limitation of authority.
“To constitute a waiver of a contract right there must be a clear, unequivocal and decisive act of the party showing an intention to relinquish the right, or acts amounting to an estoppel on his part.” (Cure v. Insurance Co., 109 Kan. 259, syl. ¶ 2, 198 Pac. 940. See, also, Quigley v. Comm’rs of Sumner Co., 24 Kan. 293; Capper v. Paper Co., 86 Kan. 355, 121 Pac. 519; Street Lighting Co. v. City of Wichita, 101 Kan. 452, 168 Pac. 1090; Harpham Brothers Co. v. Perry, 118 Kan. 457, 235 Pac. 1039; Hurlbut v. Butte-Kan. Co., 120 Kan. 205, 243 Pac. 324; Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 Pac. 571; Arkansas River Gas Co. v. Molk, 130 Kan. 30, 285 Pac. 561.)
Appellant further contends that the evidence does not support these findings of the trial court as to waiver and ratification. The evidence was nearly all documentary and there is no apparent conflict in the oral evidence introduced. The appellant’s attitude was consistent with the limitation to the extent of withholding the coupon bond, but there was an abundance of evidence showing an intention to accept a substitute in disregard of the contract requirement.
Appellant suggests that the subsequent act of the mortgage company in attempting to collect the money from Dumond was in response to a personal appeal of the plaintiff and with a desire to assist him, and therefore the company should not be penalized for Its efforts in his behalf. The prompting sentiment is commendable, but we think the requirement was sufficiently relaxed on the 6th of June, when the substitute check was accepted, at which time its acceptance appeared to have been prompted by the natural desire for additional business, and the subsequent helpful efforts could not restore the matter to the status originally intended.
Although the defendant Dumond has permitted the judgment to be rendered against him by default, yet the mortgage company still adheres to its original position maintained in the former appeal, that the court is without jurisdiction because the facts do not warrant or justify a judgment against the defendant Dumond, and, if not, then the district court of Woodson county would be without jurisdiction over the appellant on service made in another county. The findings of the trial court cover the acts and obligations of defendant Dumond as well as those of the appellant, and as far as w'e can observe every necessary element of liability of Dumond is covered in the findings and supported by the evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Defendant appeals from an order and decision striking a paragraph from her answer.
On September 9, 1952, plaintiff commenced his action against defendant to recover damages resulting from his unlawful restraint by the defendant. To this petition defendant demurred on the ground another action was pending between the same parties for the same cause and that demurrer being overruled she appealed to this court which sustained the trial court, holding, as more fully set forth in its opinion, that where it did not appear on the face of the petition that another cause was pending between the same parties for the same cause, the demurrer was properly overruled. See Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194. After the above decision was rendered defendant filed her answer, the only portion of which we need notice reciting as follows:
“That the Court is without jurisdiction in this cause for the reason that prior to the time of the filing of this action the plaintiff herein had filed an action against this defendant in the District Court of Sedgwick County, Kansas, the same being Case No. A-41875, which cause of action previously filed in this Court between the same parties is based upon the same cause of action and arises out of the same transaction set forth in plaintiff’s petition filed herein.”
It will be noticed that the above pleading in no way set out the particular allegations of the pleadings in the other action nor made the. pleadings in that case a part of her answer.
Thereafter plaintiff filed his motion that the above quoted language be stricken from the answer “by reason of the fact that the issue set forth therein has already been settled and decided by this Court.” On hearing the trial court did not rule on the ground urged in the motion to strike but found that the attack upon the court’s jurisdiction was not good “at this point in the proceedings and that the pendency of both actions did not deprive the court of jurisdiction in either” and that the motion to strike should be sustained and it ruled accordingly. From that ruling the defendant has appealed to this court.
In considering the appeal we shall refer to the parties as they appeared in the trial court. References to the civil code hereafter made are to chapter and section numbers in G. S. 1949.
In our opinion the trial court erred in its ruling. Plaintiff concedes that his motion to strike was equivalent to a demurrer, and in effect, raised the question whether it stated a defense. In partial support of the ruling plaintiff states that under 60-2702 of the civil code only an issue of law is presented by a demurrer. That is true, but under repeated holdings of this court, the demurrer admits facts well pleaded and the issue is whether the pleading under attack discloses a cause of action or a defense, as the case may be, or a ground of demurrer had the defect appeared on the face of the petition. The statement in the stricken paragraph that the court was without jurisdiction might be said to be a conclusion, but the remaining part clearly alleged that another action between the same parties for the same cause had been filed, and that allegation was admitted for the purpose of the ruling. Apparently the tidal court examined the petition in the other action, but it was no more authorized to do that in ruling on the demurrer to the answer than it was in ruling on the demurrer of defendant to the plaintiff’s petition as was considered in Lorey v. Cox, supra.
It will be noticed that the ground for striking as set out in the motion was that the issue set forth had been determined, which was only an indirect way of stating the matter was res judicata. If that were true, that defense should have been raised by reply under 60-748 of the civil code and not by motion. However, the trial court did not rule on that basis — it held that the stricken allegation was not good “at this point in the proceedings” and that the pendency of both actions did not deprive the court of jurisdiction in either.
When it is borne in mind that under 60-705 a demurrer may be lodged if it appear on the face of a petition that there is another cause of action between the same parties for the same cause, and that under 60-707 if the defects enumerated under 60-705 do not appear on the face of the petition the objection may be taken by answer and if not so taken shall be deemed to have been waived, defendant did the only thing she could do without sacrificing her right. Not only did the stricken paragraph raise a question necessarily included in her answer unless it was to be waived, but it stated a fact which the motion to strike (demurrer) admitted, and the truthfulness of which was not subject to trial on motion to strike. In a sense we have a demurrer to a demurrer. The effect of the trial court’s ruling was to put the defendant in the position of having to waive her right to raise the question. That may not be done.
In the briefs there is discussion of joinder of causes of action and of splitting causes of action. Unless we take into consideration the allegations of the petition in the other cause of action, there is no basis for discussing joinder and splitting of causes of action. As heretofore indicated the trial court was not warranted in considering the allegations of the petition in the other action, and if it was not in position to consider them, neither are we.
As the matter now stands the issues have not been fully joined, and the cause has not been tried. When those things have occurred the questions of joinder or of splitting of causes of action may be of importance but they are not now subjects for discussion.
The ruling and judgment of the trial court is reversed and the cause is remanded with instructions to the trial court to overrule the plaintiff’s motion to strike.
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The opinion of the court was-delivered by
Btjrch, J.:
The action is one of mandamus commenced in this court, which has original jurisdiction in such cases. The petition was filed on March 1, 1930. The cause was advanced, and was set for hearing on March 5, on application for a peremptory writ. On March 5 the cause was submitted on oral arguments and typewritten briefs. The court conferred immediately after the arguments were concluded, and decided the writ should be denied. The decision was announced at once, and the purpose of this opinion is to state the reasons for the court’s judgment.
The petition alleged, in substance, that plaintiff is the owner of real estate in the city of Lawrence, in Douglas county; that the first half of the taxes assessed against the real estate for the year 1929, at the general-property rate, was duly paid in December, 1929, and the second half of the taxes was payable on or before June 20, 1930; that on February 20 plaintiff tendered to the county treasurer of Douglas county, as full payment for the second half, a sum of money sufficient to discharge the taxes if computed at what is known as the intangible rate, which is much lower than the general-property rate, and that the tender was refused. The prayer was that a peremptory writ issue requiring the county treasurer to accept the tender and to receipt in full for the whole amount of the second half of the taxes.
Previous to 1923 sections 1 and 2 of article 11 of the state constitution, relating to finance and taxation, read as follows:
Ҥ 1. The legislature shall provide a uniform and equal rate of assessment and taxation; but [provision relating to exemption from taxation],
“§ 2. The legislature shall provide for taxing the notes and bills discounted or purchased, moneys loaned, and other property, effects, or dues of every description (without deduction) of all banks now existing, or hereafter to be created, and of all bankers; so that all property employed in banking shall always bear a burden of taxation equal to that imposed upon the property of individuals.”
The legislature of 1923 submitted to the qualified electors of the state an amendment of these sections, reading as follows:
“Section 1. . . . That sections 1 and 2, article 11, be amended and combined into one section, to read as follows: Section 1. The legislature shall provide for a uniform and equal rate of assessment and taxation, except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature shall provide. [Provision relating to exemption from taxation.]” (Laws 1923, ch. 255.)
The amendment was adopted by a vote of 250,813 for to 196,852 against. Under authority of the amendment, the legislature enacted the mortgage-registration law, the intangible-tax law, and the secured-debts law, providing for low rate of taxation on classified property, which, for convenience, will be called the intangible rate. In the case of Voran v. Wright, 129 Kan. 601, 284 Pac. 807, the court decided, in substance, that shareholders in state banks were entitled to the benefit of the intangible rate, and plaintiff’s contention is based on his interpretation of the effect of that decision.
The problem for solution in Voran v. Wright involved application of the intangible rate in taxation of shares of state bank stock. The relation of the intangible rate to the general tax law of the state was not involved, and the question presented in this case was not decided. Students in accredited law schools, all of which use the case method of instruction, are taught that a court decision is not authoritative except with respect to the matter decided, and that the language of a judicial opinion is to be construed as referring to the subject under decision. In this instance the court did not put on “syllogistic seven-league boots” and leap from a particular premise to a universal conclusion which would wreck the tax system of the state and plunge the state into financial chaos.
The precise contention of plaintiff is this: A share of bank stock is not property falling within any of the classes mentioned in the amendment to the constitution. It is not a mineral product, nor money, nor mortgage, nor note, nor other evidence of debt. Therefore, a share of bank stock is simply a species of common unclassified property. Under the decision in the Voran case a share of state bank stock is to be taxed at the intangible rate. This being true, other common unclassified property, such as plaintiff’s land, must be taxed at the intangible rate. Unless so taxed, land'is discriminated against, and the discrimination is unlawful under the uniform and equal-rate clause of the constitution.
By way of approach to solution of the problem, it may be observed that deductive reasoning may land us in endless difficulty. Refractory facts cannot be reconciled with the conclusions, and it becomes necessary to reexamine premises. It will be recalled that Adam Smith created a science of political economy on the premise of an economic man. The economic man is dead, and economists jest among themselves as to who killed him. When legal theory finds itself confronted with contradictory theory in the field of taxation, it may be necessary to retreat to the low and humble ground of fact, and try- to make the law conform to fact. Otherwise we might have the result of the famous fight between the gingham dog and the calico cat. Quarreling theories might eat each other up, and there would be no money to run the government. In this state the difficulty arises in the adjustment of taxation, placed in constitutional strait-jacket when life was simple, to the complexities and heterogeneities of a highly developed, progressive, industrial society.
It will be observed that section 2 of article 11 of the constitution, before it was amended, prescribed in detail a method for taxing banks. A tax law was framed according to the constitution, and state banks were organized and employed property in the business of banking. Then came the national banking system, and congress made a concession to the states relating to taxation of national banks.
The power to tax is an attribute of the state’s own political sovereignty, and it has full power to tax its own people and property in its own way. In the case of Michigan Central Railroad v. Powers, 201 U. S. 245, the supreme court of the United States, speaking through Mr. Justice Brewer, said:
“We have had frequent occasion to consider questions of state taxation in the light of the federal constitution, and the scope and limits of national interference are well settled. There is no general supervision on the part of the nation over state taxation, and in respect to the latter the state has, speaking generally, the freedom of a sovereign both as to objects and methods. It was well said by Judge Wanty, delivering the opinion of the circuit court in this case:
“ ‘There can at this time be no question, after the frequent and uniform expressions of the federal supreme court, that it was not designed by the fourteenth amendment to the constitution to prevent a state from changing its system of taxation in all proper and reasonable ways, nor to compel the states to adopt an ironclad rule of equality, to prevent the classification of property for purposes of taxation, or the imposition of different rates upon different classes. It is enough that there is no discrimination in favor of one as against another of the same class, and the method for the assessment and collection of the tax is not inconsistent with natural justice.’ ” (p. 292.)
The. federal statute relating to state taxation as affecting national banking is a statute removing to a limited extent the bar to exercise of the state’s power to tax a federal agency. All the property and effects of national banks, except real estate, were withheld from taxation by the state, just as public buildings of the federal government, situated within the territory comprising the state, are withheld from the state’s jurisdiction to tax. That did not prevent the state from taxing its own banks according to its own constitution. The federal government had no interest in that subject. Its sole interest was, and is, to see that the limited jurisdiction conceded to the state with reference to taxation in connection with national banking is not transgressed. So far as power was concerned, the legislature of this state might have continued to tax state banks according to the explicit command of the constitution. Did the legislature do that? It did not. Why? The legislature encountered the tough economic fact that to do so would kill off state banks. They could not compete with national banks. The legislature was faced with' two necessities: necessity to observe federal law, and necessity to observe the state constitution. The situation did not admit of logical or philosophical solution; and by way of practical solution, the constitution was ignored. Section 2 of article 11 was printed in the law books until after the election in 1924, but because of dire economic consequences not foreseen or foreseeable when the constitution was framed in 1859, the section became a scrap of paper.
In due time the state’s tax law was revised to equalize taxation pertaining to national banks and state banks, and in 1891 a statute intended further to accomplish that purpose was enacted. The first section began as follows:
“Stockholders in banks and banking associations and loan and investment companies organized under the laws of this state or the United States, shall be assessed and taxed on the true value of their shares of stock. . . .” (Laws 1891, ch. 84.)
Method of assessment was prescribed, and provision was made for deduction of real estate belonging in fee simple to the bank and taxation of such real estate under the general law. Provision was also made for payment of shareholders’ taxes by the bank, which was given a lien on the shares. This statute was interpreted in the case of Bank v. Geary County, 102 Kan. 334, 170 Pac. 33. Confusion of theory and ambiguity of terms used in the statute were noted, and impossibility of executing the statute according to its phraseology was pointed out. As interpreted by the court, the statute became a workable tax law. Paragraphs 1 and 2 of the syllabus of the decision read as follows:
“The tax contemplated by section 11236 of the General Statutes of 1915, relating to taxation of national banks, state banks, and loan or investment •companies, is a tax on shares of stock in the hands of stockholders, and not a tax on capital stock or assets, the property of the corporation.
“Shares of stock are to be assessed at their true value, which may or may not coincide with their bookkeeping value.” (p. 334.)
In the opinion emphasis was placed on the distinction between property of the bank, which was not taxed, and property of the shareholders, which was taxed, and the standard according to which stockholders were to be taxed on their property was stressed. That standard was “the true value.” Elements of true value were enumerated by the court.
The statute contained an implied exemption from taxation. On the theory of distinction between property of the bank and property of the shareholder, the value of property of the bank is one economic unit, unit A. The value of all the shares is a separate and distinct economic unit, unit B. The residue of unit A, after deduct ing real estate, is not taxed. That residue is not a part of unit B, any more than Smith’s property is a part of Brown’s property. Early in the constitutional history of the state it was held, in accordance with the common understanding when the constitution was adopted, that the constitution prescribed a minimum exemption, which may be enlarged according to the wisdom and discretion of the legislature. Power to exempt is not, however, without limitation, and the court has frequently been confronted, in the field of taxation, with the problem, “When is far too far?” In the case of Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977, the court dealt with this problem, and held the legislature’s attempt to tax mortgages at a low rate and exempt them from further taxation could not be justified under the constitution then in force. In this instance the exemption should be considered in the light of the facts.
A private banker has all his wealth invested in the banking business. He incorporates, and gives a qualifying share to each of four persons, members of his family, or relatives, or friends, to comply with the law and form a board of directors. All the funds and property go to the corporation, part as capital stock and part as assets. No new taxable value has in fact been created, except value of the privilege to use the corporate form of organization in conducting the business. This would be true if the same persons, or other persons, took of their own wealth and started a bank. This is a fundamental fact-foundation beneath the doctrine of separate interests in things the subject of corporate ownership. Therefore, the court regards the implied exemption as a mere incident to operation of a tax law framed under the constraint of economic necessity, and in view of the results, not of sufficient moment to defeat the law. Likewise, if the increment of corporate privilege were not taxed, the omission would not invalidate the whole scheme of taxation, which cannot be made perfect.
The opinion in the Geary county case was filed in January, 1918. The next legislature, which convened in January, 1919, evidently regarded the decision as too severe on shareholders, and the law was amended in a manner which relegated portions of the opinion to innocuous desuetude. The statute of 1919 was amended in 1925, and as amended will be considered later.
As stated above, the constitution was amended, and the intangible-tax laws were enacted. The legislature did not intend that these laws should apply to taxation of bank shareholders, unless attempted exclusion of shareholders from benefit of the acts should not be constitutionally permissible. But whatever the intention, whether the laws had an effect on taxation of national-bank shares depended on two things- — fact and federal law. The fact to be ascertained was whether there was moneyed capital in the hands of individual citizens of the state coming in competition with the business of national banks. The fact that such capital exists cannot be denied. What is the federal law? The tax shall not be at a greater rate than is assessed upon other moneyed capital coming into competition with the business of national banks. (U. S. Rev. Stat. 5219.) This statute looks to the tax burden placed on those who furnish the money to finance a government agency which is the ultimate subject of protection; and that burden may not be made greater than the burden on competitive moneyed capital, directly or indirectly. This was made perfectly clear by the supreme court of the United States in the case of People v. Weaver, 100 U. S. 539 (1879).
An early form of section 5219 of the Revised Statutes of the United States provided that shares of national bank stock might be included in the value of personal property of the shareholders, “subject only to the two restrictions. . . .” One of the restrictions is not material here. The other was that the taxation should not be at a greater rate than that assessed on other moneyed capital coming into competition with the business of national banks. The state of New York passed an act which permitted shares to be valued higher in proportion to their true value than competitive moneyed capital was valued. This was accomplished by permitting certain deductions by holders of competitive moneyed capital, not permitted in assessing shares of bank stock. An equal rate was then applied. The express and definite provision of the law was “shall not be at a greater rate,” which was the “only” restriction. The rate was precisely the same, and, starting with the philological premise, the conclusion arrived at by faultless logic was that the federal law was observed. What did the supreme court of the United States say about it? The court penetrated through form of expression to the substance of the state’s privilege to tax, and the syllabus of the opinion reads:
“The provision in sec. 5219 of the Revised Statutes of the United States, that state taxation on the shares of any national banking association shall not be at a greater rate than is assessed on other moneyed capital in the hands of individual citizens of the state, has reference to the entire process of assess :ment, and includes the valuation of the shares as well as the rate of percentage charged thereon.
“The statute of a state, therefore, which establishes a mode of assessment by which such shares are valued higher in proportion to their real value than other moneyed capital, is in conflict with that section, although no greater percentage is levied on such valuation than on that of other moneyed capital.” (People v. Weaver, 100 U. S. 539.)
Applying the federal law to the facts, it is manifest that, when moneyed capital in competition with the business of a national bank is assessed at the intangible rate, the same kind of moneyed capital employed by the bank in its business and to be taken into account in fixing the tax burden cast on its shareholders must be assessed and taxed at the intangible rate.
In the Voran case the federal law was presented in such a manner that the court was obliged to discuss it. It was not regarded and could not be regarded by the court as law governing the decision. The federal statute was considered to discover what consequences resulted from it which might have a bearing on taxation of state banks under state law.
In the Voran case it appeared that more than 97 per cent of the personal property of the bank consisted of intangibles which, in the hands of others, would take the intangible rate. The shares were taxed at the general-property rate of $3.50 per $100. The shares of national banks, into the valuation of which the same kind of intangibles enter, and property of individual citizens consisting of the same kind of intangibles, pay 50 cents per $100. The combined capital, surplus and undivided profits of the state banks then in existence amounted to more than $41,000,000. The court refused to sanction a method of taxation producing such utterly indefensible discrimination, even though rejection of the method caused present financial loss to the state by reducing the amount of property taxed at the general rate. The court preferred to maintain the integrity of the constitution as amended.
Persons have interests in things, and those interests constitute the property of the possessors of the interests. The things are also called property, and, using the term in that way, the constitution permits classification of property, and not of owners of property. Property of a state bank which, if taxed to the bank as owner, would take the intangible rate is within the state’s jurisdiction to tax. The legislature could not constitutionally exempt from taxation such an immense quantity of property, and does not do so. The purpose is to tax it. In devising a mode of taxation the property was exempted from taxation to the owner, the bank. Intangibles are intangibles, and the nature of the property was not changed by exempting it from taxation to the owner, the bank. The same property still lay in the bank’s vault, untaxed. What mode of taxation was adopted in order to tax the exempted intangibles? Different property belonging to somebody, else is taxed. His property, whatever it is, is subject to taxation just as the bank’s property is subject to taxation; and how does taxing his property subject the bank’s property to taxation? The method resorted to is this: The valuation of the property of the other owner is determined by taking into account the bank’s intangibles. Now this removes the exemption, and reaches intangibles for the purpose of taxation, or it does not. If it removes the exemption, intangibles are taxed, the burden of the tax falls on the shareholder, and the effect of the intangible-tax law was to discriminate outrageously between actual owners of intangibles and those who, because they bear the burden, are economically the exact equivalent of owners of intangibles.
Realizing the gravity of the question involved in the Voran case, the court invited briefs from constitutional lawyers, lawyers expert in corporation and taxation law, and all others who could aid the court. Valuable assistance was received from amici curim, as well as from counsel in the case. The cause was argued, the court reached a conclusion, and an opinion was drafted. There was great pressure on the court for announcement of its conclusion, and because of exegencies in the court’s work, the draft of the opinion was filed, with full realization that it was not in final form. Filing the draft accomplished the end in view. It furnished a definite basis for further critical study of the problem by all who were interested, .and the court heard the case a second time, as it expected to do when the opinion was filed. The second argument was helpful, and among other suggestions attention was called to a statement made with only the provisos of a statute in mind, but which covered the entire act. The opinion was revised, reduced to final form, and filed. (Voran v. Wright, 129 Kan. 601, 284 Pac. 807.)
. The people themselves, by the solemn process of constitutional amendment, granted to the legislature power to provide for taxation of some classes of property of enormous value at a much lower .rate than other classes. The provision of the constitution requiring uniform and equal rate of assessment and taxation was not otherwise changed by the amendment; and so far as taxation of bank shares was affected, the new wine had to be poured into the old constitutional bottles through a federal funnel. The legislature performed its task as dexterously as it could, but some glass was broken; and the court, whose duty is to preserve and not to destroy, could save the moneys-and-credits act in part only.
The origin of this case and the question involved have been stated. The answer to the question has been indicated in the discussion of the Voran case.
There is an old philosophical premise about the essence of things. The essence of a thing is its true nature, which classifies it. Speculative reasoning from the premise led to some absurdities, but the premise may be accepted as sound. The name of a thing does not change its nature. If the taxable animal has long ears, and brays instead of neighs, its essence will not be changed by putting on it the label “a horse.” In one case the court was asked to perform a feat of verbal acrobatics and call an oil refinery a branch penitentiary. (The State v. Kelly, 71 Kan. 811, 81 Pac. 450.) In taxation we penetrate to essence; and if, in final analysis, that which is assessed and taxed consists intrinsically of intangibles, the burden of taxation may not be made greater by sticking in the bark of terminology.
As indicated, the standard for valuing shares of stock assessed to stockholders, established by the statute interpreted in the Geary county case, was true value:
“The value of all tangible assets of every kind, including the value of all real estate owned, should be considered. Intangible elements of value — rights, privileges, good will, capacity and opportunity to achieve financial success, results of past business and the outlook for the future — should be considered. In a word, the entire potentiality of the corporation to profit by the exercise of its corporate franchises should be taken into account.” (Bank v. Geary County, 102 Kan. 334, 343, 170 Pac. 33.)
The present statute reads as follows:
“Shares of stock issued by national banks and by state banks and savings banks, or other banking organizations, and by loan and trust companies, located in this state, shall be assessed to the individual shareholders at the-place where the particular bank or loan and trust company is located. The president, cashier or other managing officer of each and every institution of the kind named herein which has issued shares of stock shall furnish to the assessing officer, upon demand, during the month of March of each year, a list of all the shareholders and of the number of shares owned by each share holder, and the assessing officer shall list to each shareholder for taxation purposes the assessable value of such shares as hereinafter provided. To aid the assessor in fixing the value of such shares, the returning officer shall furnish to the assessor, under oath, a statement correctly showing the amounts of capital stock, surplus and undivided profits as of March, first of the current tax year. By undivided profits is meant all earnings of the institution which have not been carried to surplus or paid out in dividends under whatever account carried, whether as undivided profits, exchange, interest, stockholders’ account, or other account representing interests Of the shareholders. The assessor from such statement shall base his valuation upon the capital, surplus, and undivided profits, the latter ascertained as provided herein, unless an investigation shall show incorrect returns, in which case he shall determine what returns should have been made to correspond with the facts disclosed by the investigation, and shall revise the returns and use such revised returns as the basis of the assessment; . . .” (Laws 1925, ch. 276, § 1.)
Analyzing this statute, it will be observed that provision for taxing shares of stock at their true value was stricken from the law. According to all rules for interpreting legislative action, this was done intentionally, and the assessor was required to base valuation on capital, surplus, and undivided profits. Aid to the assessor was provided for. This aid consisted in furnishing him with a list of names and a list of figures for doing a sum. Items to be included in undivided profits were specified, covering every account on the books representing “interests of shareholders.” Shareholders have no property interest in undivided profits. Exchange, interest and earnings hidden from taxation in stockholders’ accounts all belong to the bank. If the “return” should be incorrect, the assessor was given authority to correct it; that is, to make it show true capital, surplus, and undivided profits. The assessor was then directed to use the revised return as the basis for assessment; and he was given no authority to take into account anything but the sum of capital, surplus, and undivided profits. Perhaps experience had demonstrated it was unwise to give assessors freedom to value bank shares. If one bank does not belong to our financial group, or does not support our candidate, it may have its taxes raised. The practice in valuing bank shares corresponds to the statute, and the former method of valuing a share of stock, the individual property of the shareholder, comes near to being a Hamlet performance with Hamlet out of the cast.
The statute provides for deduction from gross valuation of capital stock, surplus and undivided profits of real estate up to a certain amount, and the real estate is taxed to the bank under the gen eral law. The assessed value, not the actual value, of the real estate is deducted. The net valuation thus ascertained is apportioned among stockholders. Getting our feet on the ground again, the law is a property-tax law. No jugglery with method of listing and valuation can change that fact. The result is, net valuation set off to stockholders finally rests on intangibles, and rests on intangibles to such an engrossing extent that, for purpose of practical administration of the law, they characterize the valuation.
After rate has been applied to assessed valuation, the bank pays the tax. The bank absorbs the tax, deducts the amount in making its federal income-tax return, and it may be difficult for the uninitiated to see how, under the statute, shareholders can be taxpayers. They do, however, pay the tax on shares of stock in a sense which fully satisfies the state and federal law. It is not necessary to demonstrate'the fact here. The important question is, What is the essence of the burden which they bear?
The books are full of cases which say that if by varying form substance may be changed, little would remain of constitutional limitations. Constitutional provisions cannot be evaded in that way. We are not to be deceived when the hand is the hairy hand of Esau, but the speaking voice is the voice of Jacob; and an intangible valuation set off to one person for payment of taxes may not be given a rate of $3.50 per $100, while persons owning intangibles pay'only 50 cents-per $100.
Since by going to the bottom of the. matter we find that the ultimate subject of taxation is intangibles, reached for taxation through shareholders, it is not material that a share of bank stock, regarded simply as a share of bank stock, is not mineral, nor money, nor mortgage, nor note, nor evidence of debt.
This disposes of the case, and disposes of the case of Malinda Cratt's v. C. J. Houston, as county treasurer of Reno county, which is of the same nature as this one, but involves tangible personal property.
The writs have been denied.
Johnston, C. J., Marshall, Dawson, Hutchison and Jochems, JJ., concurring.
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The opinion of the court was delivered by
Harvey, C. J.:
This appeal is from an order of the district court denying the claim of the State Department of Social Welfare of Kansas against the estate of Augusta Carlson in which Albin Carlson had been appointed guardian of her estate.
On March 17, 1953, the State Department of Social Welfare filed its petition in the probate court of Saline county in the estate of Augusta Carlson, incompetent, Albin Carlson, guardian, in which it presented its demand against the estate in the sum of $5,445.29 on account of the claim of the state of Kansas for the maintenance, care and treatment of Augusta Carlson, incompetent, for a period of time from March 19, 1934, to June 30, 1951, at $5 a week, and from July 1, 1951, to December 31, 1952, at $12 a week as shown by its verified claim attached to its petition. As the duly appointed and acting guardian of the estate of Augusta Carlson, Albin Carlson filed his written defense in which he alleged that the money in his hands was a part of the proceeds of selling her homestead and it was therefore exempt and that on March 19,1934, when Augusta Carlson had been declared incompetent and committed to the state hospital the probate court had made an investigation and found that neither she nor her husband had any funds with which to pay for her care and that she should be admitted to such hospital as a state patient which order had not been rescinded, for which reason the state could not collect for that purpose for her care and maintenance.
John Carlson, filed a written defense to the claim in which he alleged that he was the husband of Augusta Carlson on March 19, 1934, which marriage relationship still exists; that he was the record and fee simple owner of the described 80 acres of land upon which he and his wife resided as their homestead and that he continued to occupy the same as his homestead until it was condemned by eminent domain proceedings by the United States of America in the District Court of the United States for the District of Kansas by which action the United States acquired title to said property; that at the time of the eminent domain proceedings the guardian of the estate of Augusta Carlson joined in the conveyance inasmuch as Augusta Carlson had an inchoate interest in the real estate; that the guardian of the estate of Augusta Carlson, an incompetent person, had only an inchoate interest in the funds in his possession which said interest is subject to being divested in the event Augusta Carlson predeceases her husband, John Carlson, who is now the rightful owner of the funds in the hands of the guardian of Augusta Carlson; that the funds in the hands of the guardian of Augusta Carl son are proceeds from the sale of the previously described property, and that the funds are exempt as homestead property from the payment of all debts as provided by G. S. 1949, 60-3501. The prayer was that the petition for allowance of demand filed by the State Department of Social Welfare of Kansas be denied and in the event that said claim is allowed that the court make an order prohibiting the guardian from disbursing the funds in his hands inasmuch as Augusta Carlson had only an inchoate interest in such funds and that this deponent is the rightful owner thereof. The claim was denied by the probate court. The claimant appealed to the district court of Saline county where the facts were agreed upon by the attorneys for the State Department of Social Welfare and the attorney for Augusta Carlson’s guardian and for John Carlson, which read:
“That Augusta Carlson was on March 19, 1934, declared incompetent by the probate court of Saline County, Kansas; and that the said Augusta Carlson has never been declared competent and is as of this time still an incompetent person.
“That Augusta Carlson was on March 19, 1934, admitted to the Larned State Hospital for care and treatment and is still a patient at the Larned State Hospital.
“That on March 19, 1934, and at all times since that date, the said Augusta Carlson was, and still is, the wife of John Carlson.
“That at the time of the commitment of Augusta Carlson, Incompetent, it was necessary for the probate court to include in its application to the State Board of Administration, a financial statement, a copy of which is attached hereto, and marked Exhibit ‘A’; that there have been no further findings or orders of the probate court relative to this financial statement.
“That on March 19, 1934, said Augusta Carlson was residing with her husband John Carlson on the following described premises, to wit:
“The South Half (SK) of the Southeast One-fourth (SEK) Section Thirty-three (33), Township Fourteen (14), Range Three (3) West of Sixth (6) principal meridian, Saline County, Kansas.
“and that the same was her homestead when declared incompetent.
“That by civil action No. 4703 in the district court of the United States for the District of Kansas, First Division, the premises described in paragraph five (5) were made subject to condemnation proceedings under the authority of eminent domain by the United States of America; that after the condemnation proceedings were commenced that the owner of the premises, John Carlson, and the guardian of Augusta Carlson entered into voluntary conveyance of the above property to the United States of America; and that the condemnation proceedings were dismissed as to the above captioned property; that the office of the Register of Deeds of Saline County, Kansas, shows that on September 19, 1942, John Carlson and Albin Carlson, as guardian of Augusta .Carlson, executed a deed to the United States of America covering the above captioned property.
“That Albin Carlson was appointed guardian of the estate of said Augusta Carlson by order of the probate court of Saline County Kansas.
“That the total consideration received for the sale of this property was Eight Thousand ($8,000) Dollars for the premises and One Thousand and Seventy Three ($1,073) Dollars for the growing crops; that the guardian has in his possession four thousand one hundred fifty ($4,150) Dollars, the same being one-half (&) of the proceeds of the sale of the land.”
In the district court after argument by counsel and due consideration the court made conclusions of fact which embodied the agreed statement of facts, somewhat extended, and also made the following conclusions of law:
“Inasmuch as said condemnation proceedings were wholly abandoned and dismissed by the United States insofar as the real estate here involved is concerned, there has been no taking of said real estate by the United States of America under its right of eminent domain.
“The voluntary conveyance of said premises by John Carlson to the United States of America is void as against the admitted right of homestead of Augusta Carlson, Incompetent.
“The conveyance to the United States of America by Albin Carlson as guardian of the estate of Augusta Carlson, Incompetent, purporting to convey said Incompetent’s right, title and interest in said real estate, which real estate was in fact her homestead, was and is wholly void, contrary to law and contrary to the provisions of the Constitution of the State of Kansas; and that such conveyance does not divest said Augusta Carlson, Incompetent, of her right of homestead in and to said described real estate.
“There have been no joint alienation of said homestead and as against the right of homestead of Augusta Carlson, Incompetent said attempted alienation by tire husband and guardian is void and of no legal effect.
“While the guardian of the Incompetent would be barred by the Statute of Limitations from maintaining an action to set aside and cancel the deed of conveyance purporting to convey tire homestead of the Incompetent, yet the Incompetent herself would, by virtue of existing statute, to wit: Section 60-305, G. S. 1949, have two additional years after the removal, if ever, of her disability, in which to commence such an action.
“If the Statute of Limitations would in any manner preclude the husband from maintaining an action to cancel such purported deed, yet such fact would in no manner affect the Incompetent’s right, upon removal of her disability, either to affirm tire conveyance of her homestead or to commence an action to cancel the purported conveyance thereof.
“If, upon removal of her disability, tire Incompetent affirmed the conveyance, she would nevertheless still be entitled to a reasonable opportunity thereafter to reinvest said funds in another homestead.
“There is no presumption of law that the disability of the Incompetent always will continue nor that she will never be restored to competency.
“It is not within the power of the court, under the circumstances shown to exist and in view of the provisions of Article Fifteen Section Nine of the state Constitution of the state of Kansas either to declare there has been a joint alienation of this homestead or that the portion of the proceeds of the attempted sale now in the hands of the guardian are subject to taking by the State Department of Social Welfare under forced process.
“There is no analogy between the cases from other states cited by the claimant and which involve the rights of such other states to subject to the payment of state claims funds of a veteran which by federal law are made exempt, and the situation which obtains in the case at bar and which involves the constitutional right of homestead of the Incompetent.
“The funds amounting to $4,150.00 now in the hands of said guardian do not accrue from or through any condemnation by the United States under its right of eminent domain, in which manner of proceeding the value of Augusta Carlson’s right of homestead could have been appraised and judicially determined, and she compensated therefor; on the other hand they accrue from an attempted sale and conveyance of her homestead right by her husband and guardian which sale and conveyance is as to her wholly void, illegal and of no effect.
“There is no evidence before the Court that Augusta Carlson, Incompetent, owns or is possessed of any assets or estate. Her financial condition is unchanged since her admission to the Lamed State Hospital as a state patient on March 19, 1934. Inasmuch as she has never had and does not now have any estate the costs of her maintenance, as between herself and the State Department of Social Welfare, must be borne by the latter.
“The burden of proof herein is upon the State Department of Social Welfare and it has not sustained such burden.
“Judgment herein is rendered against the State Department of Public Welfare for the costs hereof including the costs of appeal.”
To these conclusions of law the court attached a note as to how the United States might proceed to perfect its title to the 80-acre tract of land purchased.
In harmony with its conclusions of law the court denied the claim of the State Department of Social Welfare. This appeal followed.
We think the trial court was too much concerned with the title of the property purchased by the United States. It was not a party to this action. Before its title to real estate is held bad it should be a party to an action where that question is properly put in issue.
We think the contention of Albin Carlson, guardian of the estate of Augusta Carlson, to the effect that when she was pronounced incompetent the court found she had no money to pay for her care and maintenance and that she should be placed in the state hospital at state expense, which order was never revoked, prohibited the state from collecting anything from her estate now, is not well taken. In The State v. Bryan, 105 Kan. 483,185 Pac. 25, it was held:
“A judgment and finding of the probate court in 1902, at the time an insane person was committed to the state hospital, to the effect that the insane person had no estate, and imposing the cost and expense of his support upon the state, is construed merely as a determination of the financial status of the insane person at that time, and as meaning that so long as the status remained the same his support should be charged to the state.”
On behalf of John Carlson it is argued that Augusta Carlson was not entitled to anything out of the sale of the homestead property for the reason that the title to that real property was in his name; that his wife had nothing but an inchoate interest in it, and that none of it should have been given to her guardian in the first place. This argument is of no consequence now. He is not suing his wife’s guardian to recover this money. If he gave her $4,150 out of the sale of the 80-acre tract of land, or out of any other fund, it became her separate property and so remains as such in the possession of her guardian.
We see but two questions in this case. First, whether the Department of Social Welfare has an existing claim against the estate of Augusta Carlson; and, second, if so, can the funds of her estate now in the hands of Albin Carlson, guardian, be used to pay the claim.
The statutes relating to who should pay the cost of maintenance of one committed to one of our state hospitals at the time Augusta Carlson was committed are §§ 39-231 and 39-233 of our revised statutes of 1923. They read:
“The expense attending the support, care and safe-keeping of such person shall be paid by the guardian out of his estate, or by any person who by law is bound to provide for and support such person, or the same shall be paid out of the county treasury.” (39-231.)
“The following relatives shall be bound by law to provide for and support the persons referred to in sections 31 and 32 of this act: The husband for the wife and the wife for the husband, the parent for his or her children, and the children for their parents.” (39-233.)
Our present statute, G. S. 1949, 59-2006, though worded differently is to the same legal effect. Under either, the estate of a person committed to a state hospital is primarily liable for the maintenance and care of such person, and spouses, parents and children are secondarily liable. See, In re Estate of Colclazier, 157 Kan. 125, 139 P. 2d 152.
We think it clear that the State Department of Social Welfare of Kansas has a valid claim against Augusta Carlson and any estate she has that is subject to the payment of claims.
The next question is whether the sum due the state may be collected from the estate of Augusta Carlson now in the hands of Albin Carlson, guardian of her estate. The guardian and also the husband of Augusta Carlson contend that this money is exempt being the proceeds of a homestead. It does not appear that this claim was raised at the time of the appointment of a guardian, or at any time prior to the time defenses were filed to the state’s claim here under consideration. A somewhat similar claim was raised in' Smith v. Gore, 23 Kan. 488, where it was held:
“Where a person sells his homestead and does not at the time have any intention of rising the proceeds thereof in purchasing another homestead, and has no intention of purchasing another homestead immediately with any funds, such proceeds are not exempt from the payment of his debts. Nor can such person, after an action has been brought against him to subject such proceeds to the payment of a- debt, render such proceeds exempt from the payment of such debt, by then forming an intention to use such proceeds in procuring another homestead.” (Syl. 1.)'
And on p. 490 it is said:
“The law does not, in express terms, in any case exempt money or credits, merely because they are proceeds of a homestead. They are exempted only by a sort of equitable fiction drawn from the spirit of the homestead-exemption laws, and adopted for the purpose of enabling persons to change their homesteads when they desire. This sort of exemption, however, is not allowed in several of the states. (Thompson on Homesteads, § 748 to § 751.)”
The rule expressed in the above case has been recognized and followed in subsequent cases. See First National Bank v. Dempsey, 135 Kan. 608, 610, 11 P. 2d 735. The money in the hands of the guardian of the estate of Augusta Carlson cannot be regarded as exempt on the grounds that it is the proceeds from the sale of a homestead. Since the United States government is not a party to this action we are not determining its rights, if any, to such funds.
The result is the judgment of the trial court must be reversed with direction that the trial court enter judgment in harmony with this opinion. It is so ordered.
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The opinion, of the court was delivered by
Marshall, J.:
The plaintiffs prosecuted this action to enjoin the defendant from cutting fences placed by the Santa Fe railway company around a lake constructed on land owned by the defendant, but which had been condemned by the railway company for the purpose of building a reservoir to secure water for the operation of its railroad. After condemnation, the railway company leased the property to the Havana Country Club as a site for a clubhouse and other pertinent buildings for the purpose of maintaining a hunting, fishing, bathing, boating and pleasure resort. The defend ant asked that the plaintiffs be enjoined from interfering with him in the use of the reservoir for the purpose of watering his cattle and from using the reservoir for any purpose other than by law granted to the railway company. Judgment was rendered enjoining the defendant from cutting the fences erected by the plaintiffs-around the reservoir on the land that had been condemned, and enjoining the plaintiffs from using any part of the land condemned for hunting purposes. The defendant appeals.
Findings of fact and conclusions of law were filed as follows:
“1. Both plaintiffs are corporations, duly organized.
“2. Prior to the year 1912 the defendant was the sole owner in fee simple of the S. W. quarter of section 17, and S. B. quarter of section 18, all in township 34 south, range 14 east, in Montgomery county, Kansas.
“3. About May, 1912, the plaintiff, railway company, took steps to, and did, have condemned, for the purposes of constructing a dam and impounding water for railroad purposes, a strip of land, irregular in boundary, but extending substantially through the center of the two quarter sections, above described, and containing 132 acres, more or less.
“4. Prior to this, or about the same time, the plaintiff, railway company, purchased a tract of land, about eleven acres, adjoining and lying just west of the above tract, and upon this last-described acreage it subsequently constructed a dam and thereby impounded water which covered substantially the lands of the defendant which were taken by such condemnation proceedings.
“5. After report of the commissioners in the condemnation proceedings, an appeal was taken therefrom by the defendant and the matter tried out in the district court, and damages awarded therein to the defendant, which damages were paid and accepted by the defendant.
“6. During the trial of this appeal the plaintiff, railway company, made an offer, in open court, to grant to the defendant the right to water for stock purposes from the lake which it proposed to make. It being contemplated that such offer was made for the purpose of being taken into consideration by the jury in the award of damages, this offer was by the defendant refused and he objected to the making of same and to having such so considered, and thereupon the court sustained the objection to such offer and withdrew it from the consideration of the jury, and thereafter instructed the jury that such should not in any way be considered in determining the amount of damages to be allowed to defendant for the appropriation of his property.
“7. In the latter part of the year 1912, or first part of 1913, the plaintiff, railway company, constructed around the property so taken in the condemnation proceeding, a good and substantial fence.
“8. Some time subsequent to this, and in July, 1913, the defendant wrote to the plaintiff, railway company, with reference to the matter of securing water for his stock, and in reply thereto the company gave him permission to open the fence at various places for the purpose of temporarily watering his stook, and further suggested that an arrangement might be made by which the company would lease to the defendant certain water rights for stock pur poses t'o said lake. To this the defendant made no reply, but did open the fences so as to permit his stock to go to the lake for water. Nothing further was done with reference to making arrangements for the permanent use of said water.
“9. In the year 1918 or 1919 the plaintiff, railway company, had the fences around this property rebuilt and put intact. Thereafter the defendant again opened the fences so as to permit his stock to go to said water. Subsequent thereto the railway company again repaired said fences and same were again cut down by the defendant, Hamilton, and Hamilton has at all times claimed and now claims that the plaintiff has no right to fence said property, and when so fenced that he has the legal right to cut the same, and does cut the same for the purpose of allowing his stock to run to the lake for water.
“10. At one time when the defendant cut these fences he put in from the main fence a part of the way out into the lake what is called ‘drift’ fences for the purpose of keeping his cattle from going to all parts of the lake, and to confine them for drinking access to certain part's of the lake.
“11. After the plaintiff, railway company, fenced this property it left to the defendant about fifty acres of land in one tract south of the lake, in the S. E. quarter of section 18. Also about sixty acres north of the lake in the same quarter section. Also about eighty acres east of the lake in the other quarter section. There was no permanent water left on any of these tracts of land for stock purposes, and each of these tracts were separate and apart, and no way for stock to go from one tract to the other.
“12. A few years after constructing this lake the plaintiff, railway company, leased the property to the plaintiff, country club, for the purposes of a recreation ground, and under whioh the country club had a right to picnic, bathe, fish, boat, hunt, shoot and do other such acts incident to a recreation club, and under which grant the country club agreed to take care of the property, police the same, keep the premises and water in good clean condition, and pay a small rental value therefor. This lease is in evidence and marked ‘Exhibit B,’ attached to the petition.
“13. Thereupon the country club entered into possession of said property and ever since has been using it for the purposes above set forth. The defendant has at all times known of the use of the property by said country club and its members, but until the commencement of this action did not' know that there had been a formal or written grant made therefor.
“14. The use of said property by the country club in bathing, fishing, boating, picnicking, and in general recreational activities, except in the matter of hunting and shooting, does not create any greater burden upon the property condemned by the railway company than was contemplated by the condemnation proceedings, and in no way injures or damages the defendant to any greater extent than was contemplated by said proceeding, and does not, in any way, constitute a nuisance as against him.
“15. The country club erected several cottages and a number of shooting ‘blinds’ around the edge of said lake, and one of these cottages is occupied by a regular caretaker and custodian of the property, employed by the club. These buildings do not constitute any extra burden upon the property, but are incidental to its use for general recreational purposes.
“16. During the occupancy of this property by the country club three of the animals of the defendant were shot. It does not appear from the evidence whether these animals, at the time they were shot, were upon the land that had been condemned or upon the other part of the land owned by the defendant, and the evidence does not' disclose that they were shot by members, of the country club, but the natural inference to be drawn from all the evidence, and circumstances disclosed by the evidence, is that they were shot as a result of the hunting and shooting upon said lake by members of the country club. There is some evidence indicating that a few other animals of the defendant were killed, or died, at times that this property was being used by the country club, but not' sufficiently definite to warrant the court in finding that the same came to their death by reason of the operation of the members of said club.
“17. The hunting and shooting upon said lake and around the same, by members of the club, disturbs and makes restless and excited the live stock of the defendant when upon his part of the land above described which was not condemned by the railway company, and such acts on the part of the members of said club injures and damages the defendant in this respect and thereby constitutes and creates a nuisance as against him, and these acts create a greater burden upon the premises taken by the railway company than was contemplated in the proceedings whereby the same was condemned and so taken by it.
“18. Some members of the country club, in going back and forth to the lake, have passed over the lands of the defendant, not condemned, both walking and by automobile. This is not an issue in the case as the pleadings now stand, but the defendant asks that the pleadings be considered as amended or broadened to cover this feature of the case, and such permission is given. The court further finds, however, that such have been the acts only of certain individual members of said club, and that such acts have not been authorized or in any way countenanced by the club as a corporation or organization.
“Conclusions of Law.
“1. The plaintiff, railway company, has the legal right to fence, and keep fenced, the property which it took from the defendant by the condemnation proceedings, and the defendant has no legal right to cut, injure or destroy the same.
“2. The plaintiff, country club, has a right, under its lease or grant from the railway company, to the use of said property for the purposes as -set forth in its lease or grant, except for the purpose of hunting and shooting upon said premises.
“3. The plaintiffs are entitled to injunctive relief as against the defendant to prevent him from cutting or destroying the fences around the condemned property.
“4. The defendant, Hamilton, is entitled to injunctive relief as against the plaintiffs to prevent hunting and shooting upon the condemned property during all times when the defendant has live stock upon the other parts of his said described land than that covered by the condemnation.”
There was evidence which tended to prove that the cattle of the defendant, when wading and standing in the water, polluted it and rendered it unfit for use by the railway company, but no finding was made on that subject.
The defendant contends that the land was condemned for the purpose of constructing a reservoir in which to gather water for the use of the railway in operating its road, and that the leasing of the reservoir and property condemned to the Havana Country Club increased the burden upon the land and was not within the purposes for which the land was condemned.
In Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251, this court declared that —
“When a railroad company has regularly condemned a tract of land for a water station and caused it to be flooded with water for its use, the leasing thereof to a club for fishing, hunting, bathing and skating, reserving to itself the actual possession for all purposes for which the land was condemned, with the right to cancel the lease at any time, upon thirty days’ written notice, is not, as matter of law, an abandonment by said company of the land as a water station.” (Syl. ¶ 4.)
In 32 C. J. 29 the writer says:
“Except in cases where a statute gives an absolute right to an injunction, an injunction, whether temporary or permanent, cannot as a general rule be sought as a matter of right, but its granting or refusal rests in the sound discretion of the court under the circumstances and the facts of the particular case.”
In Railway Co. v. Shriver, 101 Kan. 257, 258, 166 Pac. 519, this court said:
“Granting or refusing an injunction is a subject of equitable cognizance over which the district court has a large discretion, depending on all the facts and circumstances.”
This rule has been applied in a number of instances where temporary injunctions have been granted. (Stoddart v. Vanlaninghan, 14 Kan. 18; Akin v. Davis, 14 Kan. 143; Conley v. Fleming, 14 Kan. 381; Olmstead v. Koester, 14 Kan. 463; Wood v. Millspaugh, 15 Kan. 14; Mead v. Anderson, 40 Kan. 203, 19 Pac. 708; State v. Telephone Co., 77 Kan. 774, 95 Pac. 391; Ramsay v. City of Oxford, 124 Kan. 713, 261 Pac. 572.)
If it be conceded that the plaintiff railway company had no right to lease the reservoir to the country club, what damage was done to the defendant by such lease? The court is unable to perceive wherein he was damaged in any way, except by the hunting and shooting. The railway company has the right to police the reservoir in such manner as it thinks best. Its contract with the Havana Country Club provided for that policing. The policing is done as part of the consideration for the privileges granted by the lease. If Dillon v. Railroad Company, supra, is followed, if the granting of an injunction was within the discretion of the trial court, and if the defendant has not sustained any damage by reason of the operation of the country club under its lease, it must be held that the defendant has no right to enjoin the plaintiffs from operating under that lease.
The defendant contends that the railway company by its condemnation proceedings did not secure the right to fence the reservoir and exclude therefrom the right of the defendant to water his cattle therein. If the railway company had not fenced the reservoir and the defendant had in some way sustained damage caused by the reservoir not being fenced, he could probably compel the railway company to compensate him for the damage he would thereby sustain. The law compels the railway company to fence its right of way, which may properly be construed to include all land occupied for railroad purposes. That would include the land occupied by the reservoir which occasioned this litigation. Outside the statute, the railway company has the right to fence the reservoir to protect it from trespassers and from injury that might come to it from the land adjoining it. When the railway company condemned the land it acquired the right to fence it and exclude therefrom the defendant for all purposes inconsistent with its occupancy by the railway company.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal brings up for review the capacity of a Masonic lodge to take real and personal property bequeathed and devised to it by will.
The question is raised by a demurrer to the petition of plaintiffs in which it was alleged that Warren Henry Crippen, who died in 1927, had executed a will leaving all of his property to Cable lodge, No. 299, of the Ancient Free and Accepted Masons, located at Arlington, Kan., a charitable, benevolent and fraternal association, and that the will had been duly admitted to probate. It was alleged that plaintiffs and others named are the heirs of Crippen; that the lodge under the law is not authorized to receive and hold the property bequeathed and devised to it and therefore the will was void. It was further alleged that the property descended under the law to the heirs of Crippen. There is an allegation, too, that the property in question is not necessary to provide suitable accommodations for the holding of lodge meetings. The property consisted of real estate of the value of $3,000, on which there was a mortgage lien of $400, making the net value $2,600. There was personal property which, according to the appraisement made, was of the value of $1,374.64, making the entire value of the estate $3,974. 64. Defendants filed a demurrer to the petition on the ground that it failed to set forth facts sufficient to constitute a cause of action, which the court sustained, and plaintiffs have appealed. The ruling must be sustained.
The contention of the plaintiffs is that the Masonic lodge was incapable of taking .the property left it by the will. The .whole argument of plaintiffs is based on the holding in Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, and an opinion on rehearing, 89 Kan. 4, 130 Pac. 691. In that case it was held that under- a statutory provision (R. S. 17-1703) a camp of Modern Woodmen, a fraternal insurance company whose legal source of income was limited to dues, premiums and assessments, could not take and hold property given to it by will. The ruling was based on the fact that the camp was a fraternal benefit insurance order whose powers and duties are limited by statute, and who could only act within the provisions prescribed by the legislature. In the opinion it was said of the camp:
“There is no trust for charitable uses, there is no charity. There is simply a gift outright to the local camp of a fraternal order of a large amount of property, real and personal, to be used, not as the' law provides but as the camp may see fit. While, corporations usually are not prohibited from accepting devises and bequests, and while one of sound mind may give his property to whatsoever persons he desires, it appears to be the legislative policy of the state that fraternal beneficiary societies are to be governed by rules and restrictions applying specifically to them; and indeed this may well be, because such societies are not corporations of the ordinary kind or in the usual acceptation of the term. They are associations' of men who voluntarily combine for mutual benefit, but who can do so only under the terms and provisions prescribed by the legislature.” (Kennett v. Kidd, 87 Kan. 652, 659, 125 Pac. 36.)
The court carefully distinguished fraternal insurance companies from charitable organizations like a Masonic lodge, which the petition states is a charitable and benevolent organization, and proceeded to say:
“But the case is not one of an ordinary corporation, which all agree may take by will unless expressly precluded; it is the case of a local fraternal beneficiary body, which the legislature has confined within a narrow zone of activity, dealing out its powers with a sparing hand. . . . The decision is not to be carried beyond its terms and does not interfere with the privileges accorded the societies and associations, including Masons and Odd Fellows, mentioned in section 1830 of the General Statutes of 1909. [R. S. 17-1701.]” (Kennett v. Kidd, 89 Kan. 4, 6, 7, 130 Pac. 691, on rehearing.)
The case is not an authority that the Masonic lodge is incapable of receiving the gift made by the testator. The plaintiff not only pleads that it is a charitable organization but the Masonic organization is a recognized institution of charity and benevolence. No reason is seen why it may not become a beneficiary under a will and apply testamentary and other gifts to charitable, uses. It has been said:
“It is the settled rule that courts will look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law.” (Lehnherr v. Feldman, 110 Kan. 115, 117, 202 Pac. 624.)
In a note in 5 A. L. R. 1175, where many cases are cited, it is said:
“Although the authorities are not in entire harmony, it may be stated as a general rule that a gift to a fraternal order will be upheld as a valid charitable gift.”
In 1 Schouler on Wills, 6th ed. 45, in speaking of associations like the one in question, it was said:
“It has been recently held that such associations can be put into bankruptcy, and also there are various recent decisions in line with modern thought to the effect that they may be the recipients of testamentary favors.”
See, also, Cruse et al. v. Axtell et al., 50 Ind. 49; Helpers of the Holy Souls v. Law, 267 Mo. 667; Schneider v. Kloepple, 270 Mo. 389.
The discussion in the present case has taken a wide range, but we confine our decision to the question whether the petition stated a cause of action, and it appearing that the beneficiary named in the will is a charitable association and capable of receiving the gift •for a charitable use the court ruled correctly in sustaining a demurrer to plaintiffs’ petition.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
Anderson, an employee of the refining company, suffered an accidental injury arising out of and in the course of his employment. The commissioner of workmen’s compensation denied compensation. On appeal to the district court the court allowed compensation for permanent partial disability, consisting of loss of use of claimant’s left leg and foot. The employer appeals, and the question for determination is whether there was substantial evidence to sustain the judgment of the district court.
The accident occurred on July 12, 1928. The claimant came in contact with a high-tension electric wire, and a heavy charge of electricity passed through his body. He was unconscious for several hours, and was severely burned and shocked. He was given hospital treatment until December 18, 1928, when he resumed work for the employer. When injured he was a laborer, doing whatever he was called on to do in the pipe-line department of the company. When he returned to work he did so as an engineer pumper. The new work was lighter in kind, claimant’s hours were longer, and he received higher wages. When the accident occurred the bottoms of claimant’s feet were burned, but the scars do not hurt him any. He was also burned on his arms and head, but the scar tissue does not adhere, and does not contribute to disability. Claimant testified as follows:
“My feet and my left knee have hurt me and pained me ever since. My feet burn just like you are standing on a hot sidewalk or a hot iron; something like that. They pain me all the time, day and night. I cannot sleep when it is lightning. The goose flesh will raise on my arm like it will in the winter time when it is lightning, and I just walk the floor out at the station at night whenever it is lightning. I have a shortage of breath. When I try to go to kick that engine out there, if it don’t go the first time, I am just all out of breath, and I have to sit down to rest before I can kick it again. I feel that way now. I can’t wear a dress shoe at all, and I have to wear a shoe a size too big for me. I wear common thin leather sole shoes. Whenever there is an electrical disturbance or a thunder shower my feet burn worse than at any other time. I never was bothered with my feet sweating before, but now I can put on a clean pair of socks, and in an hour I can wring water out of them. My left knee aches right in under the kneecap all the time, and if I step on something and turn it the least bit, I can hardly walk for forty or fifty yards until it gets over it. There is tenderness to the touch on my knee just under the cap. I favor my knee all the time, and limp.
“At the time I was hurt I was working in the pipe-line department, and was helping Johnny Berger build a kitchen on a house belonging to the company. ... I was doing ordinary common labor, helping carpenters, concrete work, anything that came up in the pipe-line department, including digging ditches. I can’t do that kind of work at this time on account of my feet and knee and the shortness of breath. I can’t go out and do a day’s work like I did before. ... I can’t use my foot and leg like I did be fore. ... I just have to carry that left leg along. I can’t use it in any active work.”
Physicians of undisputed qualifications who had treated the claimant and who had examined the claimant testified there are no discoverable physical causes for the claimed burning and sweating of feet, pain under the kneecap, shortness of breath, or other physical disability. The physicians testified there was no evidence of change of nerve structure in either central or peripheral nervous system, or other pathological indication. Claimant’s lung expansion was good, his heart was in proper position, his heart action before and after testing exercise was normal, his blood pressure was normal, and no muscular defect was discoverable.
On the foregoing testimony the commissioner of compensation, who saw the claimant and the physicians and heard them testify, found against the claimant. On the transcript of the proceeding before the commissioner, the district court found in favor of claimant. The question whether claimant was suffering disability as a. result of the accident was a question of fact. Both the commissioner and the district court had jurisdiction to determine, the question. This court has no such jurisdiction. Its jurisdiction is iimited to determination of matters of law only. The principal law question has been indicated: Was there substantial evidence to sustain a finding a disability? The answer is obvious.
The district court found the loss of. use of claimant’s left leg and foot was permanent. The commissioner of compensation heard the claim on July 10, 1929, a year after the accident, lacking two days. On November 27, 1928, less than a month before claimant returned to work, the physician who had been in charge of the case made a report of a physical examination of the claimant. The report follows:
“Examination: On November 26, 1928, date of examination, the patient shows very much improvement in his condition since the previous examination. The left knee does not pain him so much, and the swelling is almost absent, but he still complains of tenderness under the kneecap. ,His feet are still' tender, but they cease to swell, and he is doing quite a bit of walking. The tenderness has also greatly improved since the last examination.
“Prognosis: This case is improved very much in the last few weeks, as, the applicant shows evidence from the present symptoms that he will have a total recovery, but in my opinion it will be well to give him ample time,, as the joint conditions following a severe electric shock are very prone to recur, and I have instructed the patient to continue light exercise for one month, and if unable to resume his former work then to return to this office for further observation.”
On December 29, 1928, after claimant had returned to work, the physician made another report, which contained the following:
“Prognosis: This case from a physical examination looks very good, but from a history and past experiences of joint condition in severe electric shock, would have to be guarded, as I know of no treatment other than heat which benefits the condition any, and they are prone to become of a chronic nature.”
If the claimant’s testimony relating to his condition at the time of the hearing be accepted the physician’s predicted likelihood of recurrence of disabling conditions had proved true, and the conditions had apparently become chronic.
As indicated, compensation was allowed for permanent partial loss of use of claimant’s left leg, including the foot. Nothing was allowed because claimant suffers discomfort or pain or nervousness caused by lightning. (See Welden v. Edgar Zinc Co., 129 Kan. 422, 422 Pac. 618.) No complaint is made of the finding of percentage of loss of use or of method of computing compensation.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
When this case was here before (127 Kan. 539, 274 Pac. 200) the main question presented was whether the giving by a merchant of a chattel mortgage on his stock of merchandise and fixtures, and taking possession of the mortgaged property by the mortgagee, in accordance with the terms of the mortgage, constituted a sale and disposal of the property within the meaning of the bulk-sales law (R. S. 58-101). It was held so to be. Since there had been no attempt to comply with that statute, it was further held that such disposal of the property was void as to the creditors of the mortgagor, and further that the mortgagee must account for the property so taken to the trustee in bankruptcy of the mortgagor. After our mandate had gone down the mortgagee accounted to the trustee in bankruptcy to his apparent satisfaction, except as to one item, but this item has caused this appeal. This item is a Eord truck, of the agreed value of $125, which the mortgagor had used in .delivering merchandise sold, and which was covered by the chattel mortgage. The mortgagee contended that this truck did not pass to the trustee in bankruptcy for two reasons: First, the mortgage was not void as to the truck because it was not “merchandise” or “fixtures” as those terms are used in the bulk-sales law; and, second, that it was property exempt from execution for debts of the mort gagor, and hence did not pass to the trustee in bankruptcy. The trial court held in favor of the mortgagee, and the trustee in bankruptcy has appealed.
Appellant contends that this court having held the mortgage void, the trial court should have followed it and held the mortgage void in its entirety and for all purposes. This argument misconstrues the former ruling of this court. The mortgage was held to be “void as against creditors of the mortgagor.” It is not void for all purposes. (See Grocery Co. v. Ridgeway, 115 Kan. 685, 689, 224 Pac. 38.) Appellant argues that the truck, used by the merchant, who in this case was a dealer in furniture, to. deliver merchandise sold, is a fixture within the meaning of the bulk-sales law, but he cites no authorities in support of that view. Authorities cited by appellee (People's Sav. Bank v. Van Allsburg, 165 Mich. 524, and cases there cited) are to the contrary. But we do not rest our ruling on that point alone. The truck was exempt property in the hands of the mortgagor (Federal Agency Investment Co. v. Baker, 122 Kan. 460, 252 Pac. 262), and hence would not pass to his trustee in bankruptcy. And it has been held that the bulk-sales law was not intended to modify or curtail the benefits of the exemption law. (Saunders v. Graff, 103 Kan. 261, 173 Pac. 413.)
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The opinion of the court was delivered by
Jochems, J.:
This was an original action in mandamus brought by the plaintiff in this court to compel the defendant, M. H. Templeton, as principal of rural high-school district No. 3, and other defendants, as the board of directors of the district, to admit the two children of plaintiff, Kenneth and Eleanor Jacobs, to the rural high school.
The petition charged, in substance, that plaintiff is the father of Kenneth and Eleanor Jacobs; that at the opening of the school term in September, 1929, Kenneth Jacobs was admitted by the faculty of the rural high school to the junior class, and Eleanor Jacobs to the sophomore class; that they continued to attend classes up to and including the first half of Friday, Semtember 20, 1929; that on the afternoon of that date they absented themselves from school for the purpose of attending a football game in a neighboring town. Plaintiff alleged that when school convened the following Monday his children returned to school prepared to resume their work, but that the defendant, M. H. Templeton, principal, refused to permit them to proceed with their school work because they had so absented themselves on the preceding Friday; that thereafter on September 25, 1929,. Kenneth Jacobs and Eleanor Jacobs again presented themselves for the purpose of resuming their school work, but that they were ordered to leave the school by the principal; that he threatened to use physical force to eject them from school, if necessary; that he did seize and push Eleanor Jacobs and forced the pupils to leave the school, telling them not to return. Plaintiff further alleged that he called upon each of the members of the board of directors, defendants herein, and protested against the expulsion of his children, requesting them to take steps to permit them to return to the school; that the board met several times, but took no action whatever as a board of directors, although M. J. Worcester, clerk of the board, had indicated a willingness to restore the rights of the pupils to attend the school. Plaintiff further alleged that he had no adequate remedy at law.
The defendants filed a motion to quash the alternative writ in mandamus issued at the institution of this action, and the matter is now before the court upon this motion. Defendants contend that under the provisions of R. S. 72-3509 and 72-1029 the plaintiff at the time of filing his application for the writ had a plain, specific and adequate remedy at law. R. S. 72-1029 reads:
“The district board may suspend, or authorize the director to suspend, from the privileges of a school, any pupil guilty of immorality or persistent violation of the regulations of the school, which suspension shall not extend beyond a period of sixty days: Provided, That the pupil suspended shall have the right to appeal from the decision of said board of directors to the county superintendent, who shall, upon a full investigation of the charges preferred against said pupil, determine as to his guilt or innocence of the offense charged, whose decision shall be final.”
The portion of R. S. 72-3509 which is applicable to the facts in this case reads:
“. . . and county superintendents of public instruction shall have the same general supervision over rural high schools as they have by law over district schools, and rural high-school districts shall be governed as provided by law for school districts except as provided in this act.”
While it is clear that the above-quoted statutes apply to rural high-school district No. 3, of Graham county, Kansas, it does not appear from these sections of the statute that the plaintiff had a plain, adequate and complete remedy at law. The petition of the plaintiff does not set forth a statement of facts which are contemplated by the provisions of R. S. 72-1029, supra. Plaintiff’s petition charges an expulsion by the principal of the high school — not by the district board. Again it is an expulsion as distinguished from the suspension for which the above section provided. Plaintiff’s petition charges an expulsion without limitation as to time. The above statute limits the suspension to sixty days.
Under the facts alleged by plaintiff it is clear that he had no right to appeal to the county superintendent as provided in said section, because the expulsion was not made by the district board, but, on the contrary, it was made by the principal of the school. The board took no action whatever, as shown by plaintiff’s petition. Under these conditions the plaintiff could take no appeal. He had no right of appeal to the county superintendent for three reasons:
(1) The expulsion was by the principal of the school and not by the district board.
(2) It was an expulsion without limitation as to time and not a suspension for a period of sixty days.
(3) It was an expulsion for a single infraction of the rules and not for persistent violation.
For the foregoing reasons we hold that under the situation, as shown by plaintiff’s petition, he did not have a plain, adequate and complete remedy at law, and the motion to quash should therefore be overruled. It is so ordered.
From an examination of the files in the office of the clerk of the supreme court it appears that the defendants have filed answer, by which they state that the doors of the school have been open to the pupils Kenneth Jacobs and Eleanor Jacobs since November 21, 1929. It is suggested, therefore, that the matter is now moot and that probably no useful purpose could be accomplished by further proceedings herein.
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The opinion of the court was delivered by
Jochems, J.:
This action was brought by plaintiff seeking to have title to a half section of land decreed to be vested in him by reason of an implied trust existing by operation of law, or to obtain specific performance of an oral contract relating tp said lands. Plaintiff alleged, in substance, that he was the son of C. M. Roberts, deceased; that the defendant was the second wife of C. M. Roberts and was the sole legatee and devisee under his last will and testament; that on August 19, 1895, the plaintiff reached the age of twenty-one years and that his father requested that he remain at home with him; that about that time there was a quarter section of land near by, known as the Thurston quarter, which was under foreclosure on a mortgage in the amount of $535; that the father, C. M. Roberts, told the plaintiff that the fee title could be obtained for $50 and that it was agreed, in substance, between the father and the plaintiff that the father should loan plaintiff the $50 with which to buy said land subject to the mortgage; that if the plaintiff would remain at home and work with him for several years after he reached lawful age, that he should then have the title to this quarter of land; that in the meantime he should farm the land, which was understood to belong to plaintiff, and thereby would be enabled to procure the funds to repay the father the $50 advanced by him and the amount of the encumbrance against the land and clear up the title thereto; that plaintiff did, under such agreement, farm the land for five or six years, during all of which time the father received all of the proceeds from the crops thereon, and the proceeds so obtained by the father were more than sufficient to repay him the amount of the money advanced by him in paying for said land, and the encumbrance thereon; that later the plaintiff learned that title had been taken in his father’s name and upon calling this to his father’s attention was told that it would be all right; that it made no difference; that the land belonged to plaintiff and he (the father) would see that plaintiff eventually got said land the same as if the legal title had been taken in the name of plaintiff; that for a period of five or six years after making such agreement, and the purchase of said land, the plaintiff continued to remain at home and render all such services as were directed by the father, receiving no compensation whatsoever therefor; that about 1901 the plaintiff married and moved away from his father and established a home of his own and began farming for himself; that about 1906 there were two quarter sections of land in section 18, township 28, south, range 23, west, in Ford county, for sale; that these lands lay near some land owned by the father; that the father advised plaintiff that it would be more advantageous to sell the Thurston quarter and invest the proceeds in this land in section 18; that plaintiff, relying upon the advice and counsel of his father, agreed that the Thurston land might be sold and the proceeds invested in the land in section 18; that in the summer of 1906 the Thurston land was sold for $4,000 and the land in section 18 purchased for $2,800 and the father retained the remainder of the proceeds from the Thurston land; that again, without the knowledge of plaintiff, the father took title to the land in section 18 in his own name, and later when plaintiff learned of this the father again said that it made no difference; that the land belonged to plaintiff the same as if it stood in his name and that under their old agreement the plaintiff would eventually receive and secure said land, but that the plaintiff’s father desired to use the land in connection with his stock and farming operations, and plaintiff, relying upon his father, permitted this arrangement to continue.
Plaintiff further alleged that at or about the time he learned that the land in section 18 had been taken in the name of his father, it was further agreed between them that such land in section 18 would belong to the plaintiff and that the plaintiff would eventually secure the same after the father had finished using the same; that in any event, in consideration of such services performed by the plaintiff in favor of his father, it was agreed between them that the plaintiff should have such land at the time of or prior to the death of his father, and that before or at such time the father would convey to the plaintiff the land in section 18. The plaintiff alleged that he had demanded possession of the land from the defendant, which had been refused, and prayed the court to adjudge and decree that plaintiff is the owner of the real estate described in section 18; that his title thereto be quieted against the defendant; that he be found entitled to the possession thereof; that the defendant be ordered to convey to him the proper record legal title thereto and that defendant be ejected from said real estate.
The defendant answered by general denial, pleaded the statute of limitations and set up adverse possession on the part of the deceased C. M. Roberts and herself running for a period of more than twenty years. She further alleged that at the time she married C. M. Roberts he promised to devise to her all lands which he owned in his last will and testament. She pleaded a property settlement between C. M. Roberts and his former wife, Maggie L. Roberts, and set up in her answer that the written agreement under which the lands in controversy in section 18 were reserved by C. M. Roberts was witnessed by the plaintiff; that the plaintiff assisted his mother, Maggie L. Roberts, in the making of the contract; that at no time, either before or after her marriage, did the plaintiff ever claim to defendant to have any interest in said real estate until about the time he filed the action; that C. M. Roberts had willed her his property in accordance with his promise made at the time she married him.
The action was tried by the court and a jury was called to act in an advisory capacity. The jury made findings of fact which were adopted and approved by the court. The findings material to the decision of the case are as follows:
“1. Do you find that C. M. Roberts bought the southwest quarter of section nine (9), township twenty-eight (28), range twenty-two. (22), with his own money and took the title in his own name, and made a verbal agreement with plaintiff that if he remained at home several years after he became of age and worked for his father, and as he directed, that he should have that quarter of land as his compensation for such services? A. Yes.
“4. Did the plaintiff and C. M. Roberts make a verbal contract about July, 1906, changing the terms of the original contract, by which it was agreed that C. M. Roberts should sell the said quarter of land for $4,000, and that in exchange for that quarter plaintiff should have the northeast quarter of section 18, township 28, range 23, which C. M. Roberts had bought with his own money and had taken the title in his own name on January 19, 1906, and that C. M. Roberts would buy the northwest quarter of section 18, and that the plaintiff should have that half section instead of the southwest quarter of section 9? A. No.
“6. At the time of making the first verbal agreement in 1895, or at the time of making the second verbal agreement in 1906, if you find said agreements were actually made, was it agreed therein that plaintiff was to have possession of said land when he performed the agreement? A. No.
“7. Was it orally agreed that C. M. Roberts should have the possession and use of such land until his death or until he was through with it? A. Yes.
“8. Do you find that there was any other verbal agreement between C. M. Roberts and the plaintiff which changed in any manner the terms and conditions of the first and second verbal agreements? A. No.
“12. Were the friendly relations which existed between the plaintiff and his father at the time they entered into the first and second agreements changed before his father’s death? A. Yes.
“13. If you answer question No. 12 in the affirmative, how long had those changed feelings existed before the father’s death? A. At division of property.
“14. Did plaintiff, Fred L. Roberts, and his father, C. M. Roberts, orally agree near the time plaintiff became of age that if the said Fred L. Roberts would continue to remain at home and work with and assist his father for a few years that his father would advance the funds to purchase for plaintiff the southwest quarter of section 9, township 28, range 22, in Ford county, Kansas? A. Yes.”
An additional question was submitted by the court at the request of the plaintiff, as follows:
“Did the plaintiff, Fred L. Roberts, and his father, C. M. Roberts, orally agree about July, 1906, or March, 1907, that the land in section 18 in controversy should go to Fred L. Roberts on the death of his father? A. Yes.”
Numerous other findings were made by the jury, and in addition thereto the court on its own motion made additional findings, but we believe the foregoing are all that are material to a determination of this case.
The court found as a matter of law: (a) That the alleged verbal agreements between the plaintiff and his father, C. M. Roberts, were within the statute of frauds and void. (6) That there was no express trust, (c) That no trust arose by implication of law.
The plaintiff contends that he is entitled to recover on two theories: (1) That under the evidence and the findings a trust resulted by implication of law in his favor; (2) that he is entitled to recover the real estate by reason of the agreement found by the additional question submitted by the court' that the lands in section 18 should go to plaintiff on the death of his father.
It should be noted that following the agreement set forth in finding No. 1, the other findings show, in substance, that about six years later the plaintiff married and the year following, which would be about seven years after making the agreement, he quit working for his father and went to farming for himself; that when he began farming for himself he went to live upon a quarter of school land and left his father in full possession of the Thurston, quarter without any change of title; that the father always had possession of the land in section 18 from the time he first purchased it, and that there was no agreement that plaintiff should have possession of the said land when he had performed his agreement; that it was orally agreed that the father should have possession and use of the land until his death and “until he was through with it.” That some time in the spring of 1927 the plaintiff knew that his father would not make a will or deed giving him the land in section 18; that the friendly relations between the plaintiff and his father were changed by reason of the divorce proceedings between his father and mother and the division of the property which occurred at that time. It appears that the plaintiff began farming on his own account and moved away from home in 1902 and that he did not make any attempt to claim the land in controversy until the spring of 1927, when he tried to get Mr. Van Riper, an attorney, to have his father deed him the land in section 18, and also attempted to have Mr. Dugan, a banker, obtain the same result. Both testified that they did make an effort to get the father to deed the land over to the plaintiff, but that he refused, stating, that “Fred had had enough.” It further appears from the record that soon after the Thurston quarter was purchased, the plaintiff learned that title had been taken in his father’s name, and again soon after the purchase of the land in section 18, he learned that title in that land had been so taken.
Finding No. 1, above set out, does not fit the requirements of the statute. (R. S. 67-408.) In other words, the situation contemplated in the statute is one in which A advances or furnishes the purchase-price to B and B uses the purchase price in payment of the land and takes the title in his name; or where it is made to appear “that by agreement and without any fraudulent intent the party to whom-the conveyance was made or in whom the title shall vest was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.”
Under the facts in the case herein the purchase money for this; land was all advanced by the father, and giving the finding its most liberal construction it simply states an arrangement whereby the-father took the title to the land purchased by his own money and then agreed that if the son would remain at home several years after he became of age and work for the father as he directed, that he (the father) would then convey to him the quarter of land as-compensation for such services. In other words, it sets forth an oral agreement with reference to the acquisition of a tract of real estate.. Nothing more; nothing less. It is clearly void because it is within the statute of frauds. (R. S. 33-106.) Neither can it be enforced as an express trust because of the provisions of R. S. 67-401.
In Engelbrecht v. Herrington, 103 Kan. 21, 172 Pac. 715, it was held:
“A parol contract for the sale of lands or of any interest therein is within, the statute of-frauds and unenforceable unless it is taken out of the statute by some fact or circumstance connected with it.” (Syl. ¶ 3.)
In the opinion the court said:
“Plaintiff contends that performance of the contract on his part was sufficient to take it out of the statute. Performance by him is the equivalent of payment of the purchase price of one-half the farm, but, under the authorities, that will not take a parol contract concerning lands out of the statute.” (p. 23.)
Further, the court said:
“The general rule is that every parol contract concerning lands is within the statute of frauds and perjuries and unenforceable except where the performance cannot be compensated in damages. The fact that the consideration for the contract was to be paid in services, and not in money, makes no difference in the application of the rule. If the value of the plaintiff’s services may be determined and compensation made in money the case is not taken out of the statute. (Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591.)” (p.24.)
But the plaintiff further contends that even though the original contract set forth in finding No. 1 was void as being within the statute of frauds, nevertheless he is still entitled to recover because of the agreement set forth in the finding of the jury in answer to the additional question submitted by the court, which finding was that the land in section 18 “should go to Fred L. Roberts on the death of his father.”
The trouble with this contention is that this finding, which shows that the oral agreement to that effect was made about July, 1906, or March, 1907, amounted substantially to an agreement on the part of the father to devise real estate to the son. It was not in writing and was therefore void.
The appellant cites the case of Stahl v. Stevenson, 102 Kan. 844, 171 Pac. 1164, at which place the opinion on rehearing is set forth. The original decision was reported at page 447 in the same volume. In that case the oral agreement relied upon was that the grandfather of the plaintiff had promised that she should have a one-third interest in his estate in consideration of her signing a release on an insurance policy. It should be noted that the agreement was to leave her a one-third interest in his estate of whatever it might happen to consist. This would not necessarily be real estate. In the opinion on rehearing the court in discussing this question further said (near the bottom of page 845):
“A promise to devise a specific' tract of land is within the statute.”
The Stahl case was tried and decided upon the theory that the contract involved did not necessarily concern real estate; that at the time it was made, it was possible that it might be fully carried out without the passing of title to any lands whatever and the judgment was that that view is in accordance with reason and not out of harmony with the effect generally given to the statute of frauds, although exceptions and decisions to the contrary may be found.
Under the additional question submitted by the court the jury found that in July, 1906, or March, 1907, the plaintiff and his father orally agreed that the land in section 18 should go to Fred L. Roberts on the death of his father. This is an agreement to devise specific lands. It is within the statute of frauds (R. S. 33-106) and is void. (See Baldwin v. Squier, supra; Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147.)
The appellant further argues that his contract so found should be upheld because of the services he rendered. Agair^ it must be noted that the finding above set forth does not present a case wherein an agreement is made between two persons (A and B) such that A agrees to leave his real estate to B at his death in consideration of B rendering services to A by looking after his property, taking care of his physical needs and rendering services such as looking after him in his old age, nursing, providing medical care, etc. In the instant case the agreement which was made back at the time the Thurston quarter was acquired is the only agreement under which services were rendered. As pointed out by the appellee, the evidence does not show that the value of those services was incapable of being definitely ascertained. The decisions (and they are many) which uphold contracts of the nature last indicated, where they relate to real estate are based upon the proposition that the value of the services rendered cannot fairly be measured in money. Whenever the services are of a character that they can be measured in money and recovery had, equity will not enforce such a promise. See Glover v. Fillmore, 88 Kan. 545, 129 Pac. 144; Darnell v. Haines, 119 Kan. 633, 240 Pac. 582; Foster v. Foster, 129 Kan. 132, 281 Pac. 902.
The contract found by the jury was not one which clearly took the case out of the statute of frauds.
The plaintiff’s theory in this case originally was that he- and his father made the agreement concerning the Thurston quarter which is covered by finding No. 1, supra, and that thereafter, about the year 1906, the Thurston quarter was sold for $4,000 and $2,800 of this amount was used to purchase the lands in section 18. The remainder of the proceeds from the sale of the Thurston quarter was retained by the father. His theory was that at the time the Thurs-ton land was sold, which was July 16,1906, said land then belonged to the plaintiff and that the proceeds from its sale were used to pur chase the lands in section 18, under verbal contract between him and his father that the lands in section 18 should be substituted for the Thurston quarter. That inasmuch as the title was taken in his •father’s name and the plaintiff had in this manner furnished the purchase price, a trust resulted in favor of the plaintiff. In this connection it is interesting to note that the evidence showed the following situation:
The northeast quarter of section 18 was conveyed to the father, C. M. Roberts, January 19, 1906, about six months before the Thurston quarter was sold. The deed made by C. M. Roberts on the Thurston quarter was dated July 16, 1906. The northwest quarter of section 18 was conveyed to C. M. Roberts March 29, 1907. It is further to be noted that the record shows that when C. M. Roberts, the father, sold the Thurston quarter, he received in payment therefor only $1,000 in cash and took back a $3,000 mortgage. The quarter section of land in section 18 had been purchased by the father about six months prior to the time he sold the Thurston quarter, and it is therefore manifest that it was purchased by some means other than the proceeds from the Thurston land. The same conclusion applies to the other quarter in section 18. At the time it was purchased the $3,000 mortgage taken back on the Thurston quarter was still unpaid. The plaintiff failed entirely to establish this theory of his case, as is indicated by finding No. 4, sufra.
Plaintiff further urges upon the court that since the jury found he had a contract (finding No. 1), and inasmuch as he had executed his part of that contract in rendering services, and further, that the right of action for the value of his services was barred by the statute of limitations, he should by reason of that situation be granted specific performance. It must not be overlooked that the agreement found in the first finding related to the Thurston quarter in section 9. We therefore have this situation:
The oral agreement executed by plaintiff upon which he demands specific performance related to lands in section 9, but he wants the agreement specifically performed by a decree awarding him the half section of land in section 18. This idea is contrary to the meaning of the term “specific performance” and is therefore not consistent. In short, a contract relating to one quarter of land, entirely separate and apart from other lands and lying some distance therefrom, cannot be specifically performed by awarding other lands, different in description and situated far distant from the lands covered by the contract. Against the idea of specific performance as to the lands in section 18 is the finding of the jury No. 4, swpra.
We have examined the cases decided by this court which compel specific performance where there is an oral agreement to give lands at death or by will in return for services rendered, and so far .as we are able to ascertain these decisions are all founded upon the fact that services had been rendered which were of such character that the value thereof could not be readily ascertained or computed in money.
In Bichel v. Oliver, 77 Kan. 696, 700, 95 Pac. 396, the court said:
“If, as there held, the contract is sufficiently certain and definite in subject matter and purpose and has been clearly and certainly established by the evidence, and the facts are such as to take it out of the operation of the statute of frauds, and there are no circumstances or conditions which would, make enforcement inequitable, courts do not hesitate to give effect to a contract, although it is not in writing. An oral agreement that operates as a transfer of land must, of course, be made out by clear and satisfactory proof, but it is not essential that it be established by direct evidence. If the facts and circumstances brought out are such as to raise a convincing implication that the contract was made and to satisfy the court of its terms, and that there would be no inequity in its enforcement, it is enough (italics •ours).”
In the same case, at page 701, the court said:
“The services were rendered and her part of the contract performed •during the lifetime of Adolph Fredericks. Her services in the family and her care and ministrations to the old people were not intended to be measured •by any financial standard, and, as the court found, there is no measure by which she can be adequately compensated for the things she has done, •nor would there be any estate from which she could be paid if this action .should fail.”
In the present case the value of the services rendered by the plaintiff could have been easily ascertained. According to' the contract found by the jury, he was to have the quarter section of land known as the Thurston quarter in exchange for his services. The value of that quarter was readily ascertainable and had been for years. It was readily ascertainable at a time when plaintiff •qould have sued his father during his lifetime and reeovered the value of the land upon which the contract was executed. That cause of action is, however, barred by the statute of limitations, and plaintiff says that because his right of .action is so barred he ought to be granted specific performance. We cannot see any logic in this argument. It is manifest that relief will not be granted in every case where a cause of action is barred by the statutes. If this were true the various statutes of limitation would become idle gestures on the part of the legislature. There would never be a time when people could feel any sense of security with reference to their property rights. The sound purpose of such statutes could always be defeated if appellant’s contention were good. The trial court was evidently not satisfied that plaintiff’s case was entirely “free from circumstances and conditions which rendered the claim inequitable.”
Among other things bearing upon this question the record disclosed that in 1911 the father and mother of the plaintiff were divorced; that plaintiff took part in the property settlement made between the parents at that time and acted as a representative of his mother; that he witnessed the contract of settlement under the terms of which his father retained certain lands and agreed to give to the mother certain lands. The legal description of the land in section 18 was not set forth in this contract, but the court could well infer from the record that plaintiff had full knowledge of what lands were being retained by the father, inasmuch as he was familiar with his father’s affairs. It further appears from the findings of the jury that on account of plaintiff’s action in behalf of his mother in the divorce proceeding and consequent division of the property between his father and mother, the friendly relations between him and his father changed. This was in 1911 and the early part of 1912. In view of the changed relations between the plaintiff and his father at that time, he might well have instituted proceedings then to protect his rights. Again, in the spring of 1927, before his father’s death in October following, he knew that his father did not intend to keep the alleged agreement. In either instance he could have acted before his father’s death and brought about a determination of his rights while his father was still living and able to appear in court and give his testimony as to the situation between the parties.
In view of all these circumstances and the state of the record, it does not satisfactorily appear that this case is one of tho'se which is free from “circumstances or conditions which would make enforcement inequitable.”
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
In a petition for rehearing the insurance company suggests in a deferential way that the writer of the original opinion assumed to exercise that power, always to be contemplated with reverence and awe, which is capable of creating something out of nothing. The criticism is well founded. The court was under the impression that the whole endowment coupon was invented to serve the needs of the company in meeting Texas competition. This is not true, and the cash payment of $250 on payment of the seventh premium is common to the company’s twenty-payment nonparticipating policies.
By way of getting the whole record straight the court would like to suggest in a deferential way that eminent counsel representing the insurance company display considerable creative competency. In the petition for rehearing they say:
“The court’s assumption that laws regulating contracts in Kansas follow the company everywhere will not bear analysis.”
The court made no such assumption.
After reconsidering the case, the court adheres to its original conclusion. In the original opinion the court said:
“There is no question of conflict of laws in this case. Plaintiff is a domestic insurance company, suing a public officer of this state, in a court of this state, to require the officer to do an official act in this state with respect to an insurance policy in this state. The question arises virtually between creature and creator, and the question is not what standing or effect the policy might have in Texas, but what the law of this state requires.” (National Savings Life Ins. Co. v. Hobbs, 129 Kan. 663, 669, 284 Pac. 397.)
The insurance commissioner is required to certify policies of insurance. The document the commissioner of insurance refused to certify consisted of two parts, an insurance policy, and something haying the appearance of a stock sale contract but which was without substance and which constituted a special inducement to insure condemned by the public policy of this state expressly declared by the legislature. Under the law of this state the commissioner of insurance may not be coerced.
The court is requested to express its views regarding certain subjects having a relation to the unsatisfactory position of the insurance company regarding its Texas business. Anything said would be dictum, and the court must refrain from going beyond what is necessary to a decision in the instant case. It seems a paragraph in the original opinion, designed to elucidate the debated subject of effect of state law in a foreign state, was not helpful.
The petition for rehearing is denied.
Johnston, C. J., and Jochems, J., dissenting.
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin enforcement of a judgment. Plaintiff prevailed, and defendants appeal.
The court found the facts in detail. The findings disclosed judgment was taken under circumstances which amounted to fraud on the judgment debtor, plaintiff in this action. The evidence was conflicting. The findings were sustained by ample evidence.
Defendants say the court could not enjoin a valid judgment. The court could enjoin a judgment procured by fraud.
A temporary injunction was allowed at the commencement of the action, but no bond was given. Defendants say the court lost jurisdiction. The statute and cases they cite merely say the injunction was of no effect. The action for injunction was not abated, and it is not now material whether the temporary injunction ever became operative.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
This was an action brought by the plaintiff to recover on the official bond of the commissioner of finance and revenue of the city of Topeka on account of the loss of city funds which were on deposit in the Peoples State Bank of Topeka at the time it became insolvent and was closed. Plaintiff recovered, and defendant appeals.
The plaintiff filed its petition charging neglect of duty against the commissioner of finance and revenue, Frank L. Stevens, and attached to the petition a copy of the bond given by the defendant as surety for the commissioner. Thereafter a motion to strike and a demurrer were filed by the defendant. These were overruled, and the defendant appealed from these orders. This appeal was docketed as No. 28,758 in this court. Subsequently the defendant filed its answer and amended answer. The plaintiff replied, and upon the issues joined the cause was tried to a jury. The jury returned a general verdict against the defendant and made special findings of fact. Upon these the trial court rendered judgment against the defendant, and defendant appeals therefrom. This last appeal is No. 29,327 in this court. They have been submitted together and will be so considered.
The petition charged, in substance, that one Frank L. Stevens, during all of the times complained of in the petition, was the duly elected and qualified ’ commissioner of finance and revenue of the plaintiff city, and that the defendant had executed his official bond, a copy of which was attached to the petition; that during the time the bond was in full force and effect the commissioner had failed, neglected and refused to faithfully perform and discharge the duties of his office. Several grounds of negligence were charged, and it was alleged that through his neglect of duty the city had sustained a loss of approximately $65,000. The petition further alleged that demand had been made upon the defendant to pay the face amount of its bond of $10,000, but that payment had been refused. Judgment was sought against the defendant for the amount of its bond and interest. The commissioner of finance and revenue was not made a party defendant.
Defendant filed a motion to strike and a demurrer to the petition, which were overruled, and subsequently the defendant answered, pleading, among other things, a general denial; admitting execution and delivery of the bond sued upon by plaintiff; admitting that at the time of the execution of the bond the commissioner, Frank L. Stevens, was the duly elected commissioner of finance and revenue of the plaintiff city, but denied specifically that he had performed, or been guilty of any act constituting a violation of the conditions of the bond, and denied that it assumed any liability for any acts alleged in the petition which were required by law to be performed by Frank L. Stevens as commissioner of finance and revenue of the plaintiff city.
The evidence showed, in substance, that the Peoples State Bank began business in 1925 and that it became insolvent and was closed on December 3, 1926; that soon after the bank opened, the city of Topeka began to use it as a depository, and according to a report made by a certified public accountant on April 1, 1925, the city had on deposit with that bank $15,049.07; that the bank never was properly designated as a city depository by resolution of the board of commissioners, as required by city ordinance; that detailed written reports were submitted by the city auditor from time to time to the board of commissioners, which showed various sums of money on deposit with the Peoples State Bank, and that the board of commissioners knew the bank was being used as a city depository for more than a year prior to its failure.
The record further shows that about November 15, 1926, one Newell Abrahams came to the office of Frank L. Stevens, who was then commissioner of finance and revenue of the city of Topeka, and told him in substance that he (Abrahams) understood that the Peoples State Bank was in very bad financial condition. He asked Stevens how much money the city had on deposit with the bank. Stevens stated that the amount on deposit at that time was approximately $75,000. Abrahams then said: “Well, Frank, I question very much if you drew a check against that bank for $25,000 if it can be honored.” He stated further that it was “purely a rumor.” Abrahams was in the insurance business and represented the bonding company which executed the bond for the city treasurer which at that time was in effect, and this fact was known to Stevens. The evidence shows that after the interview with Abrahams, Commissioner Stevens studied over the matter. It was late in the afternoon. He knew the city attorney was out of town, so he could not consult him. He went across the hall to see the mayor, but found the mayor was out of the office. He came back to his own office and thought some more; then went across the hall to the city treasurer’s office and told her to check the November pay roll against the Peoples State Bank. This was about the middle of November and the pay roll of the city is made up on the 1st and 15th of each month. The checks which are made up about the 15th are usually delivered about the 20th of the month. The treasurer was working on the November pay roll, and the record shows that the current pay roll amounted to $26,374.97, and that an ordinance appropriating that amount for the current pay roll was passed on November 19, 1926. Stevens did not tell the city treasurer why he wanted her to check the November pay roll against the Peoples State Bank. After he returned to his own office he told the city auditor, Clyde Knowlton, that he had directed the city treasurer to check the city pay roll against the Peoples State Bank. The auditor made no comment. The record shows that thereafter Stevens had no further conversation with the city treasurer, the city auditor or any of the city commissioners about the Peoples State Bank until after it was closed on December 3, 1926. The city treasurer testified that when Stevens told her'to check the November pay roll out of the Peoples State Bank she asked him: “Are you leery of that bank, Mr. Stevens?” and he replied: “Oh, no.” She proceeded to carry out his orders and had checked out $5,200 on the pay roll from the Peoples State Bank when Knowlton, the auditor, came to her and told her not to draw any more money out of the Peoples State Bank. After that time, at the request of the city auditor, she deposited $5,200 in the Peoples State Bank, and at a later date, at his request, deposited an additional sum of $10,000 in the Peoples State Bank. She never told Mr. Stevens about these deposits, as she regarded Knowlton as being Stevens’ messenger. She testified further that Knowlton had frequently given her instructions relative to city funds.
On November 18, 1926, the city had on deposit with the Peoples State Bank $76,010.41. On that date the cash and sight exchange of the bank was $36,297.31. When the bank closed on December 3, 1926, the city had on deposit approximately $86,000.
The appellant raises twenty questions on appeal, all of which are interesting, but to keep this opinion within bounds we will not attempt to discuss each in detail. We will endeavor, however, to treat the various grounds urged as error.
With the general verdict the jury returned special findings as follows:
“1. Did Prank L. Stevens, commissioner of finance and revenue of the city of Topeka, fail or neglect to perform or discharge or fulfill any of the duties of the office of commissioner of finance and revenue of said city, during his term of office and prior to December 3, 1926? A. Yes.
“2. If you answer the foregoing question in the affirmative then state: (a) In what respect or manner he failed to perform his official duties, and (b) the date or dates thereof. A. (a) In failing to see that his instructions to subordinates were carried out; (b) between November 15, 1926, and December 3, 1926.
"3. Did Frank L. Stevens, as city finance commissioner, request the city treasurer, on or about November 15, 1926, to check from the Peoples State Bank the money with which to pay the November 15, 1926, pay roll? A. Yes.
“4. If you answer the last question in the affirmative, then state what amount, if any, the city treasurer checked out to pay on said pay roll. A. $5,200
“5. Was the city treasurer requested by the city auditor not to check out the-November 15, 1926, pay roll from the. Peoples State Bank after she had been requested by Frank L. Stevens, as city finance commissioner, so to do? A. Yes, according to the evidence.
“6. Did the city treasurer subsequently make two deposits of city funds in the Peoples State Bank, in the sum of $10,000 and $5,200 at the request of the city auditor, after Frank L. Stevens, as city finance commissioner, had requested said treasurer to check out the November, 1926, pay roll from said bank? A. Yes.”
Numerous grounds of negligence on the part of Commissioner Stevens were alleged by the plaintiff, and some evidence was introduced on some of these grounds, but the above findings eliminate all except the one count of negligence found by the jury. See the following cases: Pullin v. Railway Co., 96 Kan. 165, 150 Pac. 604; Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348; Morlan v. Atchison, T. & S. F. Rly. Co., 118 Kan. 713, 236 Pac. 821; Clark v. Atchison, T. & S. F. Rly. Co., 127 Kan. 1, 272 Pac. 128.
It is to be noted that the act of negligence found by the jury is that Commissioner Stevens, between November 15, 1926, and December 3, 1926, failed to see that his instructions to subordinates were carried out.
Did this constitute neglect of official duties for which the defendant bonding company is liable?
The duties of each commissioner under the commission form of government are fixed by the statutes. The evident purpose of the plan is to divide the business of the city into departments — to place a commissioner at the head of each department and make him directly responsible for that portion of the city’s business which falls within his department.
R. S. 13-1808 fixes the duties of the commissioner of finance and revenue. It provides, among other things:
“The ‘commissioner of finance and revenue’ shall have under his special charge the preparation of an annual budget and the levy of taxes and the collection of revenues belonging to such city, from whatever source the same may be derived, and the management of the finances of such city. . . .”
R. S. 13-1805 provides that the mayor and each commissioner shall before entering upon their duties give a good and sufficient bond, which in a city of 30,000 or more shall be in the sum of $10,000. This section provides that the bond shall be “conditioned for the faithful discharge of his duties and that he will save such city harmless from all loss caused by his neglect of duty or misfeasance in office or for the willful expenditure of any moneys of such city in violation of law.”
The appellant contends that the ground of negligence found by the jury does not show a neglect of any official duty assigned to the commissioner of finance and revenue by the statute fixing his duties.
The appellee, on the other hand, takes the position that under the clause — “and the management of the finances of such city” — the conduct of the commissioner shown by the evidence which supports the finding made by the jury, does show a neglect of official duty by the commissioner.
The appellant contends that the board of commissioners is a little legislature; that each commissioner is to consider matters with special reference to his departnlent and to report thereon to the entire commission, giving his best judgment as to what the body should do. It is suggested that no one ever thought of suing a member of the legislature, or of congress, for negligence and that the members of this little legislature — the board of commissioners— cannot be held for negligence. If the negligence relied upon for recovery was an act or omission in connection with the passage of an ordinance (legislation), it is true that the commissioner could not be held accountable, but the statute fixing the duties of the commissioner of finance and revenue (R. S. 13-1808, supra) assigns to him certain administrative duties, among others the “management of the finances of such city.” If the theory of defendant were correct, then it is very difficult to conceive how there could ever be any liability for negligence on the part of a city commissioner, and the act of the legislature (R. S. 13-1805) in requiring each commissioner to give a bond conditioned for “his neglect of duty” would become meaningless and of no effect.'
The appellant further takes the position that the city treasurer is a very important officer; that he is given important duties under the statutes; that he is elected by the entire board of commissioners, and that in this case the city treasurer had the handling of the money and the finance commissioner had nothing to do with it. It is further contended by the appellant that the city treasurer is not a subordinate of the finance commissioner because he is the appointee of the entire board of commissioners, and that even if he were a subordinate, a public official is not liable for the failure of a subordinate to observe the law. In support of this position the appellant cites 5 Thompson on Negligence, 2d ed., § 6378, pp. 833, 834; Story on Agency, § 319; Robertson v. Sichel, 127 U. S. 507. While it is true that the city treasurer has important duties to perform in connection with the handling of the funds of the city, yet it must not be overlooked that the “management of the finances” is vested in the commissioner of finance and revenue. Management has been defined in the case In re Sanders, 53 Kan. 191, 197, 36 Pac. 348. The court quotes with approval the definition of “management” in this opinion as follows:
“‘Management’ is defined as ‘government; control; superintendence; physical or manual handling or guidance; the act of managing by direction or regulation; administration, as the management of a family, or of a household, or of servants, or of great enterprises, or of great affairs.’ ”
Now if the appellant’s contention that the city treasurer is not a subordinate of the commissioner of finance and revenue is tenable, then it would logically follow that the city treasurer is not the subordinate of any of the other commissioners. Is it logical to say that the city treasurer, after being appointed by the board of commissioners, stands out independently from that board as an official of the city, free and independent of any supervision or control by the board of commissioners? This would in effect make the creature greater than the creator. If the city treasurer is the subordinate of the board of commissioners, then it necessarily follows that he is the subordinate of each commissioner. It is not reasonable to assume that the city treasurer could not be subject to instruction or guidance except through a meeting of the entire board of commissioners. If this position were carried out to its logical conclusion it would mean that if any one of the commissioners had some act which appeared to be necessary and proper and advisable to be done in the treasurer’s office, he could not make a suggestion or criticism or request without first having a meeting of the board of commissioners and getting them to make an official order on the city treasurer. This is contrary to the spirit of the commission form of government because that plan was designed to do away with red tape and bring about a greater efficiency in city government. Further, the fact that the legislature placed the “management of the finances of such city” under the commissioner of finance and revenue, and the fact that the city treasurer is engaged primarily in working with, handling and caring for the finances of the city, would indicate a clear intention on the part of the legislature to fix in the office of the commissioner of finance and revenue a supervisory duty over the city treasurer in financial matters.
The appellant contends — and correctly so — that it can only be held liable for a neglect of duty which is properly imposed by law upon the commissioner of finance. In support of this it cites 46 C. J. 1068, § 399, in which is found the following:
“Liability on an official bond arises as a rule only with reference to acts of the officer which pertain to some function or duty which the law imposes upon his office.”
It further cites 22 R. C. L. 506, § 190, in which it is said:
“But where an individual is injured by the private and personal acts of an officer, and not by acts which he has done either by virtue of his office or under color of his office, his sureties are not liable.”
The appellant contends that since the law does not specifically impose any duty on the commissioner of finance and revenue to direct the treasurer respecting the care and safe-keeping of city funds, the negligence found by the jury in this case is not such a neglect of duty as makes the appellant liable on its bond.
This, then, is the real question in this lawsuit: Does the negligence found by the jury constitute an act or omission of the commissioner of finance and revenue which comes within the condition of the bond?
The condition of the bond reads:
“Now, therefore, if the said Frank L. Stevens shall faithfully perform, discharge and fulfill all the duties of the office of commissioner of finance and revenue of the said city of Topeka, Shawnee county, Kansas, and shall save such city harmless from all loss caused by his neglect of duty or malfeasance in office or willful expenditure of any moneys of such city in violation of law and shall render a trae and faithful account of all moneys that may come into his hands by virtue of his said office during his continuance therein, then this obligation shall be void; otherwise to be and remain in full force and effect.”
Does the negligent conduct found by the jury constitute a neglect, of duty? The appellant contends strenuously that since the city treasurer is assigned by law the important duty to “safely keep all moneys intrusted to his care” that he is thereby made the accounting officer; that the commissioner of finance, therefore, had no duty in connection with the handling and safe-keeping of money. Further, that “management of the finances of such city” refers to a wider zone of action than “safely keeping” the funds. That the commissioner had the duty of making general plans for the financing of the city and was politically responsible to the people for their success. Appellant argues further that the fact that the commissioner of finance and revenue is required to give only a $10,000 bond, while the city treasurer is required to give a $50,000 bond, indicates clearly that the commissioner w;as not to be held accountable for the handling of the city funds in any manner.
We find nothing inconsistent in the fact that two officers of a city may be assigned certain duties with respect to the same subject matter. There is nothing inconsistent in permitting the treasurer to deposit funds and in giving the finance commissioner the duty of “management of finances.” In 43 C. J. 737, § 1254, it is said:
“Power of a certain department is not necessarily inconsistent with the exercise of jurisdiction over the same subject matter by other municipal authorities. . . .”
The difference in the size of bonds of the respective officers is a matter for the sound wisdom of the legislature. Doubtless it felt the opportunities for embezzlement and misappropriation of funds were greater in the office of the treasurer than in that of the commissioner of finance. Hence the difference in size of bonds.
We cannot agree with the appellant’s interpretation of the word “management.” As used in the statute “management” implies action. The manager of a corporation is the man actively in charge of its business. We can think of the president of a corporation as being in a more or less inactive position' — one having little to do with the actual business affairs of the company — but we think of the “manager” as being the man on the job, always in action; “managing” the business. Certainly in this case, unless we-approve the interpretation of the word given to the jury by the trial court and previously by this court, it would become practically meaningless. Manifestly “management” as used in the statute requires something more of the commissioner of finance and revenue than that he sit in his office and twiddle his thumbs and glance over the quarterly or monthly reports of the treasurer in a cursory manner. It would seem that after having received the information from Mr. Abrahams ordinary prudence should have prompted Commissioner Stevens to confide in the city treasurer or to consult the other commissioners— to act. But he sat idly by and let a few weeks pass without saying anything to the other commissioners or anyone else other than the treasurer and the auditor. If he was so afraid of circulating a rumor about the bank as he testified at the trial, he could easily have asked the mayor to call an executive session of the board of commissioners. The treasurer could have been invited into this meeting. The whole matter could have been gone over and the treasurer could have been given instructions which would doubtless have saved the city more than the amount of the commissioner’s bond. If such neglect of duty as is shown by the record in this case does not impose a liability, then the requirement of the statute that the commissioner of finance and revenue give a bond indemnifying the city against his neglect of duty affords no protection to the city. The giving of the bond, so far as neglect of duty is concerned, becomes an idle gesture — a source of revenue without risk for surety companies.
The appellant calls attention to R. S. 21-2452, prohibiting the circulation of false rumors about banks with the intent to injure their financial condition, and to the testimony of the commissioner to the effect that he knew of this statute and that that was why he did not tell the treasurer why he wanted the money checked out; that he did not want to spread a rumor and cause a run on the bank. This was a commendable spirit, but the trouble with his conduct was that it did not measure up to the “prudence, caution and attention which careful men usually exercise in the management of their own affairs.” (22 R. C. L. 461, § 124.)
The court properly instructed the jury on the degree of care required of an official. The jury decided that Commissioner Stevens did not exercise that care, and was therefore guilty of neglect of duty.
The appellant makes the further contention, however, that the negligence as found by the jury was not the proximate cause of the loss to the city. Upon this point the record shows that after the commissioner told the city treasurer to check out the current pay roll, she actually did check out $5,200; that subsequently she made a deposit of $5,200 and another deposit of $10,000. If the commissioner in the discharge of his duties in the management of the finances of the city had followed up his instructions, if he had exercised that care required by the law, which the jury found he did not exercise, then it is clear that the city could have retained at least the $5,200 which had been checked out against the pay roll, and the two subsequent deposits of $5,200 and $10,000. This makes a total of $20,400 which was lost because of the negligence of the commissioner found by the jury. We think that under the evidence the jury fairly and correctly inferred and concluded that the negligence, as found by the jury, caused the loss to the city of more than the face amount of defendant’s bond, and the verdict against the defendant was a proper one.
We have examined the claims of error urged by the appellant, both as' to the refusal and in the giving of instructions by the court. We have also noted the contention of appellant that the instructions of the court gave undue prominence to plaintiff’s side of the case. Considering the instructions of the court as a whole, we do not believe that these objections are well founded.
We find no reversible error, either in the refusal or in the giving of instructions. Neither do we find that the ruling of the court in overruling defendant’s motion to strike and demurrer to plaintiff’s petition were erroneous.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This action involves the respective rights of a creditor who attached a crop of growing wheat and of mortgagees whose mortgages on the wheat were given after the attachment. The trial court held for the mortgagees, and the attachment creditor has appealed.
Plaintiff owned a half section of farm land which he rented to Harold L. Westerman, who, in the fall of 1928, sowed 300 acres of the land to wheat. Soon thereafter Westerman went to Colorado, where he has since lived. On February 27, 1929, while the wheat sown by Westerman was growing and immature, the plaintiff filed an action in the district court against Westerman on a promissory note for $4,060.10 and caused an attachment to issue on the ground, among others, that Westerman was a nonresident of the state. The attachment was levied on certain farm machinery and personal property of Westerman and also upon the 300 acres of growing and immature wheat. The only service of process on Westerman was by publication, and he has made no appearance in the case. On March 9, 1929, the plaintiff made application for the appointment of a receiver for the attached property. A receiver was appointed and he qualified and gave bond, and thereafter proceeded to protect and preserve the growing wheat, and when the same became ripe he proceeded under an order of the court to cut and thresh the same and hauled the grain to market and sold it for the best price obtainable, and out of the proceeds paid the necessary expense of the harvest and held the remaining proceeds to be disposed of by the order of the court.' On June 29, 1929, Westerman gave D. C. Munford a mortgage on the wheat to secure a bona fide indebtedness of $150, and on the same day gave L. R. Brumfield a similar mortgage for $150. Westerman gave other mortgages on this wheat, but no question concerning them is before the court at this time. Munford and Brumfield filed intervening petitions in the action brought by plaintiff asking that sufficient of the proceeds of the wheat then in the hands of the receiver be paid to them, respectively, to pay the debts secured by the mortgages on the wheat given them by Westerman. The court set aside the attachment in favor of plaintiff on the wheat and directed payment to the interveners of the amount of their respective claims from the proceeds of the wheat. The plaintiff has appealed.
In Isely Lumber Co. v. Kitch, 123 Kan. 441, 256 Pac. 133, it was held:
“Annual crops, which are the product of industry and care, are not, while growing and immature, such personal property as subjects them to attachment and sale on execution.”
In the opinion- it was said:
“The principle of the common law that a growing crop can be sold on execution to satisfy the claims of a creditor is not suited to the conditions and wants of the people of this state.” (p. 445.)
The point determined in that case was referred to approvingly in Soeken v. Hartwig, 124 Kan. 618, 619, 261 Pac. 590, and in Citizens State Bank v. Clark, 126 Kan. 162, 266 Pac. 932. The question was reconsidered and the former decision followed in Danville State Bank v. May, 126 Kan. 714, 271 Pac. 302, where it was held:
“A crop of immature growing wheat is not property of a kind that is subject to be levied upon and sold under execution.”
Appellant contends that the decisions above referred to apply only when there was a levy and sale of the immature crop under-execution, but in Isely Lumber Co. v. Kitch, supra, the court specifically overruled the case of Polley v. Johnson, 52 Kan. 478, 35 Pac. 8, which was an attachment case, and the point now argued was-fully considered at that time. We have no disposition to recede from the views then reached.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Marshall, J.;
The plaintiffs, Helen M. Mullen and Claude L. Peterson as administrator of the estate of Joseph C. Hume, deceased, prosecuted this action against Thomas J. Hume and against. James Stewart as register of deeds of Wyandotte county to have-Thomas J. Hume declared a trustee of certain real property for the-use and benefit of plaintiffs; to have certain deeds .signed by Joseph C. Hume where Thomas J. Hume was named as grantee declared illegal, void and of no effect; to have the plaintiffs declared to be the owners of the property; and to restrain the register of deeds from, filing for record any instruments affecting the title to the property. Judgment was rendered in favor of the defendants on the petition of the plaintiffs and the opening statement of their counsel. The-plaintiffs appeal.
The petition alleged—
“That prior to the death of the said Joseph C. Hume, the deceased, without consideration and as a matter of convenience, signed deeds to the above-described real property, wherein Thomas J. Hume was named as grantee, the-exact reason for said conveyances being unknown to these plaintiffs, but known to the defendant herein and him only, which deeds were thereafter placed upon record by some one unknown to these plaintiffs . . . and said conveyances as hereinbefore set out were for the use of and to the con venience of said deceased, and made to the defendant, Thomas J. Hume, as trastee, for the use and benefit of deceased as hereinbefore alleged . . .
“That on or about the 10th day of January, 1921, said deeds were recorded in the office of the register of deeds of Wyandotte county, Kansas, by some one unknown to these plaintiffs . . . that said deeds were never delivered. . . .”
Copies of the deeds, three in number, were attached to the petition. They were recorded on January 10, 1921. One was acknowledged on July 26, 1915, one on November 1, 1917, and one on September 11, 1918. The petition alleged that at the time of his death Joseph C. Hume was the owner of the property in controversy; that the plaintiff, Helen M. Mullen, was his daughter and only heir at law; that Thomas J. Hume was his brother; and that close reía-. tions existed between Joseph C. Hume and Thomas J. Hume. Joseph C. Hume died on October 11, 1927.
We quote from the trial statement of the appellants, as shown by their abstract, as follows:
“By Mr. Carson : In. this action, if your honor please, this plaintiff is Helen M. Mullen. This is an action brought by Helen M. Mullen and Claude L. Peterson as administrator of the estate of Joseph C. Hume, against Thomas J. Hume and James Stewart as register of deeds of Wyandotte county, Kansas, to set aside certain deeds that were made.
“I cannot give you the exact date when these deeds were made, but they were made — some of them — in 1915, I think, and some in 1917, and some in 1918, by Joseph C. Hume. I don’t know whether your honor will remember him or not. He was a cripple that used to live here on Minnesota avenue. He was somewhat crippled.
“The Court : What do you charge — fraud?
“Mr. Carson: Well, we can charge constructive trust, and the nondelivery of the deeds, and also the fact that the property was conveyed back to this man after he — before his death, by his brother. Here are the facts, as I understand them: . . .
“These conveyances were made to Thomas Hume of convenience, the exact reason I don’t know. At any rate, the deeds never appeared on the records here till 1921, and the evidence will show that Thomas J. Hume, who now claims that he did not have a thing to do with that until sometime right near or immediately after the death of Joseph C. Hume, or maybe a little before that time — anyway, these deeds stayed in the register of deeds’ office and never were taken out by anybody. . . .
“The evidence further discloses that the filing of these deeds by somebody was not a delivery . . .”
The deed dated September 11, 1918, showed the cancellation of $4 in revenue stamps by “T. J. H.”
There is no allegation in the petition that any trust was created by any writing; neither was there any statement made by counsel for the plaintiffs that a trust had been created in that manner. The petition did not charge any fraud and when counsel for the plaintiffs, in his trial statement, was asked by the court if fraud were charged, he did not say it was, but said, “We can charge constructive trust and the nondelivery of the deeds.” The petition alleged facts which showed that the deeds had been delivered by the grantor to some one for the purpose of having them recorded. The petition did not allege that the deeds had been recorded without the consent of Joseph C. Hume, the grantor therein, and in the trial statement it was not stated that the deeds had been recorded without his consent.
Section 67-401 of the Revised Statutes reads:
“No trust concerning lands except such as may arise by implication of law shall be created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.”
Under the circumstances disclosed by the petition and trial statement a constructive trust could arise only if fraud had been practiced by the grantee on the grantor. (Clester v. Clester, 90 Kan. 638, 135 Pac. 996; Silvers v. Howard, 106 Kan. 762, 768, 190 Pac. 1; Small v. Small, 107 Kan. 122, 125, 190 Pac. 623; Winkler v. Korzuszkiewicz (Shusky), 112 Kan. 283, 286, 211 Pac. 124; Ogg v. Ogg, 122 Kan. 244, 252 Pac. 205.)
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action upon a fire insurance policy covering a stock of drugs, store fixtures and some household furniture, in which judgment was rendered for plaintiff, and the insurance company appeals.
The main question involved is that of compliance with the iron-safe clause contained in the policy, particularly with reference to the making of an inventory and the keeping of books showing a complete record of purchases and sales, and incidentally in connection therewith are the questions arising on the trial as to the admissibility of testimony, the ruling upon the demurrer, the giving of instructions, the sufficiency of the evidence and the excessive amount of verdict rendered.
The loss was total. There was no iron safe kept in the place of business. None of the books and papers that were kept were destroyed by the fire.
The iron-safe clause is as follows:
“Inventory — Iron-safe clause. — (Requirement to keep books and inventory.) It is made a condition of this insurance: (1) That the assured under this policy shall take an inventory of the stock and other personal property hereby insured at least once every twelve months during the term of this policy, and unless such inventory has been taken within one year prior to the date of this policy, one shall be taken in detail within thirty (30) days thereafter; (2) that the assured shall keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and credit; (3) that the assured shall keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store mentioned in the within policy is not actually open for business, or in some secure place not exposed to a fire which would destroy the building where such business is carried on; (4) that in case of loss the assured shall produce such books and last inventory.”
The courts of Kansas have regularly recognized the reasonableness of this provisiqn in fire insurance policies and have enforced the terms thereof, adopting, however, the theory of a substantial rather than a literal or technical compliance therewith. (Insurance Co. v. Knerr, 72 Kan. 385, 83 Pac. 611.)
Appellant concedes the requirement to be only a substantial compliance, but insists that the attempted compliance in this case is no compliance whatever.
The policy was issued by appellant February 15, 1926, to Earl M. Minor, who was at that time operating a drug store in the small town of Bogue, Graham county, Kansas, nine miles from Hill City. He also served lunches in the store. It was issued against loss by fire to a stock of merchandise to the extent of $1,000 (except as modified by the three-fourths-value clause), to store and office furniture and fixtures to the extent of $2,000, and to household goods and kitchen utensils to the extent of $400. On September 13, 1926, Minor sold the insured property to J. A. Bundy, the plaintiff, a physician residing at Hill City, and the policy was assigned to him by the insurance company the same day. He took charge two days later and retained Mrs. Minor, mother of the vendor, to operate the store for him, which she did until the fire which occurred on January 29, 1927. She and her children lived in the back part of the store building until shortly before the fire. The serving of lunches was discontinued some little time before the fire. Much of the household and kitchen furniture in the store when plaintiff purchased it was sold to Mrs. Minor and removed. The claim of the plaintiff was $1,198.36 for merchandise, $1,167.75 for store fixtures and $82.50 for household goods and utensils.
The iron-safe clause requires that the insured shall take an inventory of the stock and appellant urges that the pretended inventory offered in this case was not an inventory, but an invoice; that it was not taken by the insured, but by the vendor for the purpose of making a sale and transfer of the goods, and was not complete nor made at the required time. It was an itemized, detailed list of articles, merchandise or stock in trade of a merchant with valuations. (3 Joyce on Insurance, § 2063k.) It consisted of nine pages of articles in detail as to kind and number of each with price set opposite each kind. It is true it was made up by Minor, the retiring druggist, for the purpose of effecting a sale to the plaintiff, and given by Minor to the plaintiff, but that does not make it an invoice as distinguished from an inventory, because it lacks the contingency of safe arrival at destination, no shipment being here contemplated. (3 Joyce on Insurance, § 2063n.) The contention that because it was in fact made by the vendor instead of the plaintiff, the insured, might be serious if the record had not shown that the plaintiff had carefully gone over the list by comparing it with the articles found by him on the shelves and in the store; that he had spent considerable time in verifying it before accepting it. He disclaimed an actual verification of each and every article contained in the list, but did make such detailed examination and verification to fully satisfy himself that it was correct. He further showed he, as a physician, was familiar with prices and knew those used in this list to be correct. After this examination and comparison, he adopted this list and inventory as his inventory, and we know of no good reason why it should differ from one made for him by an assistant or subordinate. The evidence shows it was compiled between the 1st and 15th of September, and appellant complains of the discrepancies that must exist as to sales during that period or between its completion and the turning over of the stock to plaintiff. We have no showing that the sales during the invoicing period were not reflected into the inventory, as they usually are or should be. It was dated September 9 and naturally should show the stock as it existed that day rather than September 1, when the listing began. The four days intervening between the date of the inventory and the date of the bill of sale, or the six days to the time plaintiff took over the stock, and the failure to account for sales and purchases during that time are not of sufficient moment, in a limited business like this was said to be, to affect the validity or the practical sufficiency of the inventory. The situation here is not like that in some of the cases cited, where the invoices from the wholesale houses were substituted for inventories, nor where an inventory was made after the thirty-day period had expired, nor as in the case of Pennsylvania F. Ins. Co. v. Malone, 56 A. L. R. 1075, where the inventory was made by the vendor and left in the safe when he sold the store and the purchaser did nothing with it or anything toward adopting it or making a new inventory until many months later.
In the case of Springfield F. & M. Ins. Co. v. Shapoff and Goldstein, 179 Ky. 804, where the owner of a stock of merchandise took a complete inventory of it and then shipped it to himself at another town, carefully checked it out there and compared it with the inventory previously made, and the loss occurred two or three weeks after beginning business in the new town and taking out insurance on the stock, it was there held:
"This checking of the invoice list and the handling and counting of each article was equal to the taking of an invoice of the stock. It amounted to the same thing because each item was found as listed and accounted for. The evidence of Shapoff, if it can be relied upon, clearly proves that each item of the invoices offered in evidence was actually in the store at Belzoni at the time of opening the store only a few days before the fire, and that the sales from stock during the few days which intervened between the time of the opening and the fire, were inconsiderable. The trial court in telling the jury to find the inventory and book exhibited in evidence, a sufficient compliance with the requirements of the policies if the jury believed said book and invoice truly showed the amount of goods and the sales, correctly stated the rule.” (p. 816.)
In the case of Miller v. Home Ins. Co. of N. Y., 127 Md. 140, where the insured made the inventory for the purpose of purchasing the stock of goods which were destroyed by fire a few weeks after his purchase, it was held such inventory was within that contemplated by the policy, as follows:
“It is clear from the appellant’s own description of the schedule made by him at the time of his purchase of the store, that it had every feature which an inventory could be supposed to possess. It was a complete and itemized list of the various commodities embraced in the stock in trade, with quantities and values indicated in detail. The prices listed therein by the appellant were those representing in his judgment the worth of the corresponding articles as forming part of the general stock he was proposing to buy. Upon the basis of the schedule thus prepared he purchased the stock and fixtures at a price closely approximating the value it disclosed. While it was made with a view to the purchase of the property and before the appellant had taken charge of the store, it was exactly the kind of an inventory that would ordinarily be expected to be made in the course of the business to meet the requirements of the contract of insurance.” (p. 143.)
The fact that a preliminary or basic list was made by the former owner of the stock certainly does not detract from the correctness of the schedule when the purchaser, thoroughly familiar with such goods and their prices, carefully checked the list over and compared its entries and items with the articles found on the shelves and in the store; but it should be an additional assurance of its reliability. And when after such careful checking and comparison the insured, as a purchaser, adopted it as his inventory and a correct schedule of the stock of merchandise, it is certainly such an inventory as to constitute a substantial compliance with the requirements of the policy in this particular.
The record in this case shows that the insured really kept no books showing his purchases and sales, but introduced the original invoices showing the purchases made by him during the period of a little more than four months that he operated the store, and the bank records to show the deposits made from sales, with the oral explanation that all the sales were made for cash except two items of $8 and $2 during that period, and that the cash was taken about every other day from the cash register to the bank and deposited to the credit of the plaintiff, by Mrs. Minor, who had charge of the business during that period. He did keep a bank pass book which showed all such deposits, the entries having been made in it by the cashier of the bank, and that such pass book was not destroyed by fire, but had been in the possession of the insured long after the fire, but was mislaid and could not be found at the time of the trial; hence, as secondary evidence, resort was had to the bank records to show such deposits.
The evidence showed that nothing but two or three small bills for freight or dray age was ever paid out of the cash register; that all bills were paid by the insured from other funds or by check on the funds deposited.
Complaint is made of Mrs. Minor and her children eating at the lunch counter without compensation while that was in operation. This would, of course, lessen the amount of cash receipts which could be deducted from the value of the stock on hand or goods purchased. So would every sale at reduced price or less than cost, which is a feature of modern business. On the other hand, sales at 25, 50 or 100 per cent advance would, if deducted from the inventory total, in due time wipe out the’ value of the entire stock and invoices. These are incidents to the business and necessary inaccuracies, especially in a small business without an intricate bookkeeping system.
“The provision as to keeping of books of account requires that the insured shall keep such books in such a manner as that they shall constitute a record of business transactions which a person of ordinary intelligence accustomed to accounts can understand.
“It is not necessary that the books should be kept according to any particular system, nor that they should be such a scientific system of books as would satisfy an expert accountant in a large business house in a city.” (3 Cooley’s Briefs on Insurance, 2d ed., 2818, 2819.)
“. . . The object or purpose of the clause should be considered, as it evidences to some extent what was contemplated by the parties as to compliance with the requirement, and from this standpoint the nature and extent of the business, whether the stock insured is that of a large department store with expert assistants, or merely the stock of a small country store, should be considered, as should also the custom of the place and the customary manner of doing business, . . . if it can be approximately ascertained from the assured’s invoices of purchases, and his books and entries of cash and credit sales, what the amount of goods in stock was at the time of the loss, there is a substantial and sufficient compliance.” (3 Joyce on Insurance, 2d ed., § 2063f.)
. . The ‘book warranty’ clause in the policy is complied with by the assured if he keeps such a set of books that a man of ordinary intelligence can from them reasonably ascertain the amount and value of the stock of goods at the time of the fire.” (Springfield Fire & Marine Ins. Co. v. Halsey, 52 Okla. 469, 474.)
“In the case at bar it appeal’s that the insured had taken an inventory within the time prescribed in the policy, and after taking the inventory had retained the invoice of each bill of goods which he had purchased and added to his stock up to the time of the fire. He had a cash account showing the amount of each cash item taken into the business from the date of the inventory, with the exception that it was shown that small bills for drayage and the like had been paid out of the cash drawer before the accounts were taken at night, and listed in the cash book. . . .
“The rules of law applicable to insurance policies must be applied with some view to common sense and to common justice. In a mercantile business, where a credit was given extensively and no account kept thereof, or where large running expenses were paid out of the cash, without any account being kept, it might very consistently be said that a set of books, failing to show the credits and expenses, were not a substantial compliance with the conditions of the policy, but in a case like the present one, that of a small country merchant, where the store was operated by himself and wife, where the expenses paid could not have been large, and where, as shown, the credits extended are not put on the books, were so small that the plaintiff himself thought so little of them that he did not keep an account of them, and where it further appears that the relation of the amount of the policies to the size of the stock was such that the taking into account the reasonably probable expenses of the business and credit sales, still there must clearly remain such an amount of stock that the full amount of the policies would be payable to the insured, then we think that such a set of books as was here shown to be kept was a substantial compliance with the terms of the policy within the rule. . . (Queen Ins. Co. of America v. Dalrymple, 60 Okla. 28, 29.)
In Dorough v. Reliance Ins. Co., 289 S. W. 703 (Tex.), the sales were made for cash, as here, and entries made in the pass book by the cashier of the bank. It was there admitted that in a few instances small sums had been taken out of the cash drawer for expenses, and it was held that such entries were a sufficient record of sales within the provisions of the policy.
“There is no particular divinity that surrounds this clause, nor is there any particular system of bookkeeping that must be used. The books of a country merchant can hardly be expected to exhibit the same accuracy as those of a large city institution. This clause has been of frequent consideration by the courts, and the proposition is now well established that a substantial compliance therewith is all that is essential.” (New York Underwriters’ Fire Ins. Co. v. Malham & Co., 25 Fed. [2d] 415, 421.)
Appellant complains that part of the proof with reference to sales and purchases was made by parol evidence. From careful examination of the record we are not so impressed. Parol evidence was used, and is proper to be used, to explain the written evidence. (Pennsylvania F. Ins. Co. v. Malone, 56 A. L. R. 1075.)
Many criticisms are made of the invoices and account of sales, but none of the defects pointed out is of serious moment or of such character to prevent the parties from arriving at a conclusion substantially accurate.
The conclusions above indicated dispose of the assigned errors in the admission of testimony, the overruling of the demurrer to the evidence and in the giving of instructions, unless it might be instruction No. 7, where the court instructed that the knowledge of the-cashier of the bank with reference to the deposits of the insured being made from the sales, was the knowledge of the insurance company because he was the agent of the company. We are inclined to agree with appellant that the rule here given does not apply except m such matters as are connected with the business of the principal, and the keeping of an account at the bank and making deposits of all the money derived from sales had no connection with the insurance business. We fail, however, to see wherein the appellant could have been prejudiced by such instruction. The insurance company did not need to know prior to the loss how the sales money was being handled, so that feature was wholly immaterial and certainly could not have been in any way decisive or prejudicial. He did have such a double interest with reference to the chattel mortgage mentioned in an earlier instruction.
We find no reversible error in the giving of any of the instructions.
We have no difficulty in harmonizing the amount of the verdict with the testimony, and as being within the reasonable limits thereof. The rearrangement of the items of the verdict by the jury in combining two of them is not inconsistent with the claims made or the proof offered, and can be readily understood.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for the specific performance of a contract pertaining to a family settlement of property rights and obligations.
The litigants are the four sons and the only daughter, of the late Thomas M. Babst, who died testate on February 2, 1920, seized of certain city property in Topeka and 800 acres of land in Wabaunsee county. His will was probated on March 8, 1920. By its terms he devised a life estate in all his property to his widow, Lola B. Babst, and the remainder in equal shares to these litigants, Harry L. Babst, Thomas M. Babst, Jr., Willis H. Babst, Daniel K. Babst and Maude L. Babst. Lola died on November 8, 1926, but the estate of Thomas had not been fully administered when the transaction occurred which gave rise to this lawsuit.
For some years past Harry L. Babst has been a resident of California. Maude and Thomas have been in possession of the family property in Topeka, and the defendants, Willis and Daniel, have been in possession of the Wabaunsee county land.
In their petition the plaintiffs, Harry, Maude and Thomas, allege that shortly after the death of Lola, in 1926, certain differences arose between plaintiffs and defendants, chiefly concerning the most advantageous way to dispose of the Wabaunsee county land, and concerning the rent thereof which defendants should pay, and concerning certain moneys borrowed by Maude and Thomas for the benefit of Lola, and about a certain sum of $2,000 paid by Willis and Daniel to their father in his lifetime.
On May 26, 1929, the four brothers and sister, and Medora, wife of Harry, and Gertrude, wife of Willis, met in Topeka and effected a family compact and settlement of the principal matters which had been the subject of controversy between them. This contract was incorporated in a memorandum in writing and signed by the parties concerned. By its terms Harry, Maude and Thomas agreed to sell their three-fifths interest in the Wabaunsee county land to Willis and Daniel for '$19,200, and the relative liability of the five persons touching the mortgage on the land was defined, and its assumption by Willis and Daniel was agreed to. A liability of $2,000 of their father’s unsettled estate in favor of Willis and Daniel was assented to by the parties, and Willis and Daniel agreed to accept $1,200 as the amount due from the other three in liquidation of their share of this $2,000 obligation. It was also agreed that certain minor matters such as rent and interest should be left to future adjustment.
Plaintiffs’ petition alleged the foregoing matters at length, set up a copy of the memorandum agreement, alleged that they were ready, able and willing to carry into effect their part of the agreement, and that they had executed conveyances for the performance of the contract and had tendered them to defendants, but that the latter had refused to accept the deeds and to pay the stipulated price, and that defendants were threatening to institute suits in partition of the real estate in disregard of the family settlement. Plaintiffs prayed for a decree of specific performance, and for an injunction to restrain defendants from instituting partition suits in breach of the memorandum agreement of May 26, 1929. Its terms were as follows:
“Harry L. Babst and Medora E. Babst, his wife, Maude L. Babst, single woman, and Thomas M. Babst, single man, agree to sell to Daniel K. Babst and Willis H. Babst their undivided three-fifths of the T. Babst farm in Wabaunsee county, Kansas, being section 15 and the S% of SWlá and SV¡¡ of SE% of section 10, T. 13, R. 13, for $19,200.
“Purchasers assume the mortgage of $5,000 now on part of the same farm. Of said mortgage all of the said parties owe equally and jointly $4,234.67, and Maude and Tom Babst owe equally the balance, $765.33.
“The T. Babst estate owes to Dan and W. H. Babst $2,000. The question of interest on it shall be later adjusted.
“W. H. and D. K. Babst own one-tenth each of lots 181 and 183 on Broad-moor avenue, Topeka. Maude and Tom shall either sell or pay this two-tenths promptly, and for the purposes of this contract it shall be valued at $1,000 and deducted from the $19,200.
“Adjustment of purchase price—
$19,200.00 gross.
$2,400.00 owed on mortgage by the three-fifths.
765.33 owed on mortgage by Maude and Tom.
1,200.00 owed on $2,000 debt of Babst estate.
1,000.00 estimated two-tenths of value of 319 Broadmoor street.
$5,265.33
$13,834.67 — Balance of purchase price, to be paid $10,000 cash at least, and all cash if it can be raised; settlement to be made within 60 days of date.
“Signed this 26th day of May, 1929.
Harry L. Babst. Thomas M. Babst.
Medora E. Babst. Daniel K. Babst.
Maude L. Babst. Willis H. Babst.
Gertrude E. Babst.”
To this petition defendants filed a motion to dismiss, a motion to strike out parts of it, and lodged two demurrers. These were severally overruled, and these adverse rulings are brought to this court for review.
The basis of the motion to dismiss was the fact the estate of Thomas P. Babst was still being administered under the supervision of the probate court, and it was alleged that important matters affecting that estate were there pending and undetermined, that the probate court had ample jurisdiction of the entire matter of that estate, and that the district court “is without jurisdiction to hear or determine any of the issues presented in this cause.” The grounds of this motion were unfounded. The district court, and not the probate court, is the forum for the enforcement of a contract of family settlement. Such jurisdiction of the district court did not interfere in the slightest degree with the probate court’s jurisdiction to administer the estate of the deceased father. The district court will determine the issues involved in this lawsuit, nothing more. If it finds this family settlement was made — and as against a demurrer it must so find — it will probably say to defendants, “Carry out, in good faith, the family compact you have made with your brothers and sister.” How could such a decree interfere with the matters still pending in the probate court? We can readily see how a prompt compliance by defendants with the terms of the family settlement, with or without the mandate of the district court to that effect, would tend to expedite a final winding up of the estate in the probate court. Furthermore, the real estate belonged to the heirs and they could bargain concerning it between themselves, or with third parties, without regard to the pending administration. Of course, if the probate court should find it necessary to subject the real estate to the satisfaction of obligations of the estate it could do so regardless of what disposition of it had been made by the heirs, but that bare possibility gave no excuse for defendant’s motion to dismiss.
The motion to strike was aimed at those matters explanatory of the status and situation of the parties, the death of the father and the pending administration of his estate, the tenor of his will, the death of the widow, the matters of controversy which arose among the members of the family and of their composition by the family settlement. The motion sought to have all reference to the family settlement stricken out. Quite properly, we think, that motion was overruled. Indeed, it is seldom prejudicial error to refuse to strike out irrelevant or redundant matter from a petition unless it tends to confuse or mislead the adverse party. In pleading, it is frequently good practice to make an introductory statement leading up to the principal matter of the declaration or plea, so as to simplify, explain or elucidate the latter. Inducement in pleading is more a matter of convenience than necessity. It adds nothing to the strength of the cause of action stated, or to the strength of the defense pleaded thereto. If it tends to clarify the pleading it serves a useful purpose; if not it may be stricken. (Drake v. National Bank, 33 Kan. 634, 639, 7 Pac. 219; Sramek v. Sklenar, 73 Kan. 450, 85 Pac. 566; Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062.)
Defendants’ demurrer was based on the point that the memorandum agreement showed on its face that it was incomplete, that while it recited that plaintiffs agreed to sell, it failed to recite that defendants agreed to buy, and therefore it was lacking in mutuality and in consideration. This criticism of the memorandum contract-is overdrawn. While the words “defendants agree to buy” are wanting, there is no want of other language to evidence such agreement. Plaintiffs agreed to sell their interest to defendants for a sum of money. The purchasers agreed to assume a mortgage. Who were the purchasers?' The persons to whom the plaintiffs agreed to sell, to be sure. Who were to pay the balance of the purchase price? The purchasers, of course. Manifestly the purchasers are the persons who set their hands to the memorandum agreement and to whom their fellow signatories had agreed to sell. (Hughes v. Knapp, 109 Kan. 183, 197 Pac. 862; Heffernan v. Neumond, 198 Mo. App. 667.) This demurrer was properly overruled and so, too, was the separate demurrer of defendant, Gertrude E. Babst, wife of Willis H. Babst. She had signed the family compact and was a proper party to the action, and she was not entitled to be excused from her nominal part in the specific performance of the contract to which she had given her assent.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This action is one to recover on a subscription contract given by the defendant to the plaintiff for the purpose •of assisting in paying the indebtedness of the latter. Judgment was rendered in favor of the plaintiff, and the defendant appeals. The plaintiff was a corporation in which the defendant was a stockholder.
This is the second appeal in this action. The opinion in the first is found in 124 Kan. 430, 260 Pac. 623.
The subscription contract on which the action is based was as follows:
“We, the undersigned, members of the Thomas County Cooperative Association of Colby, Kansas, and signers of the guarantee for the payment of the association debts, dated March 21, 1921, hereby agree to pay in cash, upon demand, the sum of money set opposite our names for the purpose of paying off the present indebtedness of said association, taking a certificate of indebtedness and said association in payment as evidence by said certificate and according to the terms embodied therein.
Charles Pearson. $1,000. ”
The defendant argues that section 33-106 of the Revised Statutes prevents this action being maintained. - That section, so far as material, reads:
“No action shall be brought whereby to charge a party upon any special promise to answer for the debt, default or miscarriage of another person . . . •unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
Does the contract come within the operation of that statute? The promise for payment is direct from the defendant to the plaintiff; it is not a promise to pay a debt owing by some third person to the plaintiff. The defendant did not by the contract agree to pay any debt; he created at debt of his own. For that reason the statute does not apply.
It is urged by the defendant that the claim of the plaintiff was barred by the statute of limitations at the time the action was commenced. The record discloses that the subscription was made in the fall of 1921. This action was commenced on January 10, 1925. The basis of this argument is that the defendant did not personally sign the subscription contract. He argues that if his subscription thereto is binding on him, it is binding because his name was signed thereto at his direction by Louis Fannell, one of the persons that went to him to secure his subscription. The defendant argues that the three-year statute controls because it is his verbal statement that binds him. The defendant denied authorizing Fannell or any other person to sign his name to the contract. There was evidence which tended to prove that he had given such authority to Fannell. The contract was in writing. The name of the defendant was signed by his direction. The effect is the same that it would be if he had signed the contract himself. The action was not barred at the time it was commenced; the five-year statute controls.
Another proposition argued is that there was no consideration for the signature of the defendant to the contract. That proposition was argued when the case was here before. The court then said:
“The defendant argues that the contract was not supported by any consideration. Such promises as were made by the defendant and other subscribers are on a sufficient consideration for the contract, and are enforceable.” (Thomas County, etc., Ass’n v. Pearson, 124 Kan. 430, 432, 260 Pac. 623.)
The following authorities were there cited to support the principle-declared: 37 Cyc. 482; White v. Scott, 26 Kan. 476; McCormack v. Gas Co., 48 Kan. 614, 29 Pac. 1147; American Legion v. Thompson, 121 Kan. 124, 245 Pac. 744. That rule became the law of this case and is now followed.
It is argued that there has been a departure from the cause-of action set out in the plaintiff’s original petition. We quote from the brief of the defendant as follows:
“In the original petition filed herein, and which was before this court in 124 Kan. 430, it was alleged that the sum of SI,000 was to be paid ‘as soon as the sum of 170,000 had been subscribed and raised.’ In the second amended petition this allegation was omitted and over the objections of the defendant-the case was tried on plaintiff’s new theory.”
The cause of action set out in the original petition was on the subscription contract on which the plaintiff now seeks to recover. The-cause of action was the same then as it is now. The omission of the-words “as soon as the sum of $70,000 had been subscribed and: raised” from the allegation did not change the cause of action.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is from the order of the trial court in an ejectment action discharging the jury and holding there was insufficient evidence to sustain an alleged oral contract giving an equitable title in certain real property.
The plaintiff held legal title as devisee of the record owner of the property involved, which was a lot in Kansas City with a dwelling thereon. The defendant admitted in her answer the possession alleged in her, and by way of cross petition alleged an oral contract with the deceased record owner, who was a cousin of the defendant and an old soldier, inmate of the soldiers’ home at Leavenworth, whereby he was to assist this defendant in paying off the indebtedness and purchasing this real property occupied by her since 1877 and lost by foreclosure of a mortgage thereon, and was to have a room in the house for himself and live with the defendant, and she was to pay the taxes on the property, keep it in repair, board him when there, and do all the washing, ironing and repairing of his clothing, and when the indebtedness was fully paid then the defendant should have and own the property in her own right. She further alleged that' all the payments have been made and that she has performed all the conditions on her part to be performed, and that he lived there and made his home with her from 1916 until his death in April, 1927. She therefore prayed that the plaintiff take nothing, but that her title be quieted against the claims of the plaintiff.
A jury was called and the defendant assumed the burden of proof.
The evidence showed that the defendant and her brother inherited this property from their mother, and in 1911 executed a warranty deed to secure a loan thereon, taking back a contract for repurchase. This deed was foreclosed as a mortgage, and sheriff's deed issued to mortgagees in 1914. After this she continued to occupy the property as a tenant at $12 per month rent.
It further shows that in 1916 Oliver Brown, her cousin, the old soldier, started making his home with her. The front room in the house was set apart for his use and from that time until his death he spent part of his time in her home and part at the soldiers’ home, going back and forth two or three times a month. In 1922 a deed was executed conveying this property to Oliver Brown, he having purchased it some time before, but the payment of balance was made in subsequent installments. He was assisted to some extent in making these payments by the defendant, but it is not shown in what amount. There seems to be no question about Oliver Brown continuing to occupy the room in the house and to board and live with the defendant until his death, and that defendant cared for his room, cooked, washed, ironed and mended for him during that time.
A number of neighbor women testified that Oliver Brown had told them he was going to help Sophia, the defendant, pay off the debt or redeem the property and wanted her to have it as a home as long as she lived.
An attorney testified to having written three wills for Oliver-Brown during the time he lived with defendant, the last one devising this property to his brother, the plaintiff; and the first one gave a life estate in the property to the defendant. After the writing of the first will there arose serious differences between Brown and the husband of the defendant which led them to have each other arrested occasionally, and finally Brown brought an action of detainer as to this property against the defendant, which was decided in his favor, but a new trial was granted and the case stood in this condition at the time of Brown’s death,.and was not revived.
The trial court, after hearing all the evidence, in the case at bar, held that the oral contract giving defendant an equitable title in the property was not sustained by the evidence, and took the case from the jury and rendered judgment for plaintiff in ejectment.
If in the judgment of the court the evidence did not sustain the defense, it was perfectly proper to take the case from the jury because there was no further issue involved except the equitable title, the sufficiency of the evidence in support of which is purely a matter for the consideration of the court, but the appellant insists that the evidence of the neighbor women, the attorney and some others along the same line, was amply sufficient to establish the existence of the oral contract, citing Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568; Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Bateman v. Franklin, 114 Kan. 183, 217 Pac. 318, and other cases. In the first case cited one of the two features mentioned by the court in favor of the performance of an oral contract was the entry into possession, which is not an element in the case at bar, for the defendant was in possession long before the time' the contract was claimed to have been made. In the second case cited the evidence is not summarized, but the court found “there was testimony of an express agreement to pay for the services rendered.” In the third case cited above an objection to the introduction of evidence was sustained and, as far as the oral contract is concerned, we have only the allegations of the petition and none of the testimony. In reversing the ruling and sending the case back for a trial on the issues, the court said with reference to matters of this character:
"Of course, this- is the sort of case where the triers of the facts, and especially the trial judge, must be alert to see that estates are not plundered through the false and fraudulent claims, and where there must be careful and conscientious sifting of the evidence. But such claims may be bona fide, and when they are- such and are established by clear and. convincing evidence they are perfectly legitimate and must be respected and enforced.” (p. 185.)
The difficulty in this case, as we see it, is the utter lack of evidence tending to prove the making of a contract. All the evidence of the neighbor women and the attorney at most is corroborative of such contract, but there is no evidence giving the facts constituting the contract, as alleged in- the cross petition, which is absolutely necessary.
In the case of Nash v. Harrington, 110 Kan. 636, 205 Pac. 354, which was just like this one concerning such evidence, it was said:
“In the cases where oral" contracts for the conveyance of land have been Upheld by this court, it will be found that there was evidence tending to prove the primary facts constituting the contract. Once some such evidence was forthcoming, then such testimony as that of the witnesses Casey and Kleinneger, quoted above, would perform the valuable function of reinforcement or corroboration, by showing that the evidence to support the main proposition was true. But the testimony of Casey and Kleinneger (and the other testimony to the same effect) is corroborative of what? Nothing, because of an utter want of the matter of prime importance — some evidence that Johanna and her father made the contract relied on. The evidence to prove the contract need not be direct, but it must, in sum, be established by clear and satisfactory proof.” (p. 643.)
In the case of Pantel v. Bower, 104 Kan. 18, 178 Pac. 241, very similar to this one in allegations, proof and ruling, it was said:
“The rule adhered to in cases of this general character is, that there must be facts and circumstances sufficient to raise a convincing implication that the contract was made, and to satisfy the court of its terms; and there must be no inequity in its enforcement.” (p. 22.)
The very recent decision in the case of Rayl v. Central Trust Co., 127 Kan. 131, 272 Pac. 147, exactly applies to the situation in the case at bar. There the husband promised his dying wife he would purchase the outstanding interests in her farm and convey it to their son, Thomas, after her death. He did purchase all the interests and procured a complete title to the land, then told his daughter to tell Thomas he was going to give the farm to him and later sent another message to him by his daughter about putting improvements on the farm. He told neighbors that the farm belonged to his son, and signed a war affidavit that his son owned the farm, and told a number of persons that he had nothing to do with that farm, but there was no evidence whatever of the necessary transaction of either actually giving it to him or promising to give it to him, and the court held:
“In an action involving the title to and ownership of real property, a person who claims to own the land by gift from the deceased record title owner, in addition to evidence of a- corroborating nature, must, in order to prove title or ownership, show that the deceased owner had formally given the land to the party claiming to own it as donee.” (Syl.)
The same principle and rule is recognized in Stout v. Hyatt, 13 Kan. 232; Hoover v. Hopkins, 122 Kan. 65, 251 Pac. 411; Nordboe v. Frye, 107 Kan. 291, 191 Pac. 282.
We think the trial court was correct in determining there was no evidence of the facts constituting the contract, nor of the making of the contract alleged, and under such circumstances there was no error in taking this case of an equitable nature from the jury and rendering judgment for the plaintiff in ejectment.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in ejectment wherein the plaintiff, the Bankers Mortgage Company, a corporation, alleged that it had a legal estate in a section of McPherson county land and was entitled to its possession and'that the defendant B. E. Dole and certain members of his family unlawfully withheld its possession.
The pleaded defense was a general denial.
Plaintiff’s title was based upon a sheriff’s deed issued pursuant to its purchase of the land at foreclosure sale. The principal defense was that the land had been redeemed and the judgment satisfied of record. The evidence covered a lengthy chronicle of mortgages, mortgage foreclosures and the sheriff’s sales thereunder, and of redemptions from such sales by substantial payments of cash and by the acceptance of a new mortgage to satisfy deficiency judgments, interest and costs, and matters pertinent thereto.
The jury answered a number of special questions and returnéd a general verdict for defendants. Judgment was-entered accordingly. Plaintiff appeals, assigning various.errors.
At the outset in their brief counsel for plaintiff stress the importance of getting a correct grasp of the complicated facts. In that we agree, and to acquire such an understanding the court has repeatedly read the voluminous abstract, counter abstract, appellant’s brief, brief of appellee, appellant’s supplemental abstract and reply brief, and supplemental brief of appellee. From these we deduce the controlling facts to have been substantially as follows:
For a- number of years prior to the incidents which culminated in this particular lawsuit, the defendant B. F. Dole owned a section of land (sec. 1, T. 19 S., R. 1 W.) in McPherson county on its eastern border. His homestead was on that section, and perhaps the homesteads of two adult sons also — but this latter fact was contested and may not have to be determined. He also owned a section of land immediately adjacent thereto on the east in Marion county (sec. 6, T. 19 S., R. 1 E.). He also" owned forty acres immediately north of his McPherson county section (SW¼ SW¼, sec. 36, T. 18, R. 1 W.). All these lands were encumbered with various different mortgages; and in 1925 to 1927, owing to defaults, some of these mortgages were foreclosed. A mortgage for $1,600 and interest, covering the isolated forty acres in section 36, township 18, range 1 west, was foreclosed about 1925. Section 6 in Marion county was covered by a first mortgage for $17,500 held by the Putnam Investment Company, which figures in this lawsuit but is not one of the several mortgages foreclosed. The Bankers Mortgage Company' held a mortgage on section 1 of McPherson county and a second mortgage on the north half and the southwest quarter of section 6 in Marion county to secure the payment of an indebtedness of $13,200 and interest. All this land was also subject to a junior lien for the sum of $780.64 and interest, and the entire section 6 in Marion county was also subject to other junior liens for $1,259.15 and $1,455.68 respectively. On December 31, 1926, judgment in foreclosure of both the Marion and McPherson sections was decreed in favor of the Bankers Mortgage Company for the sums set -out above, and separate orders of sale were issued to the sheriffs of Marion and McPherson counties. Pursuant thereto, on February 21, 1927, the McPherson county section was sold at sheriff’s sale to the Bankers Mortgage Company for $12,000; and on the same day the Marion county section was likewise sold to the same purchaser for $3,000, subject to the first mortgage of the Putnam Investment Company. On June 8, 1926, the Bankers Mortgage Company had procured an assignment of the first mortgage on the Marion county section for $17,500 held by the Putnam Investment Company, and thereby became its owner.
Sometime in the summer of 1927 Dole negotiated a sale of 240 acres of the Marion county section (E½ NW¼ and NE¼) to Henry Jantz for $16,500; and in Dole’s behalf Westbrook, cashier of the State Bank of Canton, wrote to plaintiff offering to turn over that sum less commission and expenses, and suggesting its acceptance and the taking of a new mortgage covering the remaining 400 acres of the section. Plaintiff answered expressing pleasure at the fortunate turn in Mr. Dole’s affairs, and submitted a counter proposal to this effect: It expressed its readiness to accept the net proceeds of the sale to be applied thus: “(1) to the deficiency judgment; (2) to the amount remaining to redeem; (3) to the interest on $17,500; (4) to the principal of the first mortgage of $17,500.”
In the same letter, dated August 18, 1927, plaintiff expressed its readiness to carry back the balance due on the judgment under which the two sections had been foreclosed and sold, a new mortgage to be given therefor on the remaining 400 acres of the Marion county section and the 40 acres in section 38, township 16, range 1 west — 440 acres in all. Part of this letter reads:
“It might be well for you to call Mr. Dole’s attention to the fact that the 40 acres on which we made a loan of $1,600 a sheriff’s deed will be issued to us for this particular land under our foreclosure the last of this month, and it occurred to me that since Mr. Dole was able to sell this land for this price that he might prefer to have the amount of our judgment, together with interest on this 40, included in our mortgage to be carried back on the 400 acres and make our mortgage cover the 440 acres.”
Considerable correspondence passed thereafter between the plain tiff and the different officers of the State Bank of Canton touching the details of this matter. The letters tend to show that the parties did not exactly understand each other, which may be partly explained by the fact that different persons participated in the correspondence, Westbrook and Anderson for Dole, and Cave, president, and Fleming, secretary, for the plaintiff company. Dole himself was an elderly man who had been adjudged a feeble-minded person in 1918, and two of his sons had been appointed guardians of his estate, but they do not figure in this lawsuit in that capacity. Be that as it may, negotiations did go forward upon, the general lines of the correspondence indicated above, and on August 24, 1927, plaintiff wrote to the sheriff of McPherson county:
“Answering your favor of the 17th. relative execution in the Dole case, . . . There are some negotiations now pending which if carried through as planned would result in the judgment on which execution was issued being paid.
“It will be satisfactory with us if you will hold execution until you hear from us further. ... J. A. Fleming, Secretary.”
On October 7, 1927, plaintiff accepted a remittance of $15,938.32, being the net proceeds of the sale of 240 acres of section 6 in Marion county to Henry Jantz, and accepted a new mortgage for $13,275 from Dole and wife, dated September 12, 1927, on 440 acres consisting of the remaining 400 acres of section 6 and on the 40 acres in section 36, township 18, range 1 west. On the same day an entry of satisfaction of the judgment in the district of Marion county rendered on December 31, 1926, pursuant to which the two sections of land had been sold in foreclosure, was made as follows:
“Satisfied in full this October 7, 1927. — J. A. Fleming, Atty. jor Bankers Mortgage Company."
The three junior judgments for. the smaller amounts rendered at the same time contained identical entries of satisfaction. The clerk of the court testified as to the circumstances under which Fleming as attorney for the plaintiff made these entries of satisfaction and signed the judgment record.
It does not appear that any later communication passed between the plaintiff and the sheriff of McPherson county, or that the latter was notified that the judgment had been satisfied of record on October 7, 1927; and on August 24, 1928, the sheriff executed to plaintiff a sheriff’s deed to section 1, McPherson county, pursuant to its purchase at sheriff’s sale eighteen months previously. This deed was filed for record three days later, August 27, 1928. On October 30, 1928, plaintiff procured a writ of assistance to dispossess the defendants, B. E. Dole and wife and others. That proceeding brought a joinder of issues,-a trial, and a judgment in favor of defendants. Thereafter the present action in ejectment was begun.
There is an argument in plaintiff’s brief to the effect that in the correspondence leading up to the acceptance of the $15,938.22 and the new mortgage of $13,275 it was plaintiff’s proposition that only the redemption of section 6 in Marion county from its foreclosure sale for $3,000 was contemplated, and that after satisfying the deficiency judgment, the $3,000 redemption, and interest in default on the $17,500 mortgage, whatever was left of the $15,938.42 should be applied towards the extinction of the outstanding first mortgage of $17,500; and that nothing was intended to be done about the redemption of section 1 in McPherson county which had been sold under the same judgment. Why any sane man should set about the payment of a mortgage not due for several years, and let his home farm and the farms of his two sons (all included in section 1) go to sheriff’s deed for a mere fraction of its value cannot be conceived; and it is not surprising that the jury rejected that construction of the negotiations and the doings of the parties. The reasonable interpretation of the terms proposed by plaintiff — at least the interpretation Dole had a right to put upon them — was that “the amount remaining to redeem” meant the total amount, $12,000 on section 1 and $3,000 on section 6. Touching the cryptic line: “(2) to the amount remaining to redeem,” which plaintiff’s correspondents so punctiliously reiterated in their letters to Dole’s bankers, counsel repeatedly take pains in their brief to explain its meaning to this court, viz.: “Second amount necessary to redeem, $3,000.” And again: “Second amount necessary to redeem (sec. 6-19-1, E. Marion Co.), $3,000.”
How easy it would have been to have similarly amplified the line, “to the amount remaining to redeem)” so that Dole would also have understood that it was only intended to devote enough of the $15,938.22 to redeem the Marion land and not the McPherson land. Given the interpretation that plaintiff intended — that after paying the deficiency judgment of $2,632.36 and the $3,000 required to redeem section 6 and interest and costs out of the remittance of $15,938.22, the balance should be applied toward the extinction of the $17,500 first mortgage on section 6 not yet due, and that Dole should let section 1 go by the board for good and all for a fraction of its value — would be a travesty on justice which this court would be loath to countenance. There is an eleméntary rule of law that where one party to a contract is privileged to set down in writing the terms to which another party is to give assent, and a controversy arises as to their meaning, the contract should be construed strictly against the writer and liberally toward the other party. (Graff v. Osborne, 56 Kan. 162, 42 Pac. 704, syl. ¶ 1; Anson on Contracts, [4th American ed.] 426.)
In plaintiff’s endeavors to account for the proper application of the $15,938.22 in cash and the new note and mortgage for $13,275 which it received from defendants in the autumn of 1927 and which culminated in the entries of satisfaction of the judgments in foreclosure of sections 1 and 6 in the Marion county district court, by Fleming, secretary and attorney for the plaintiff on October 7, 1927, plaintiff argues that the entire unforeclosed Putnam mortgage of $17,500 was paid off, and that such was the purport and intention of its correspondence with the local bankers who acted for Dole. That contention must be greatly discounted because of the fact that on the very day the settlement was wound up, October 7, 1927, and obviously as a part of that settlement, plaintiff made a partial release of 240 acres of section 6 covered by that $17,500 mortgage — ■ the 240 acres released being the northeast quarter and the east half, northwest quarter, which Dole had sold to Henry Jantz, by means of which the large sum of $15,938.22 was delivered to plaintiff. This release contained this significant language:
“Partial Release op Mortgage.
“Filed Oct. 7, 1927. ...
“. . . The Bankers Mortgage Company . . . acknowledges satisfaction of and releases the certain mortgage dated December 6, 1924, for $17,500 made by Benjamin F. Dole and Cynthia A. Dole, his wife, to the Putnam Investment Company in so far as the same covers the following-described lands situated in Marion county, Kansas, to wit:
“The northeast quarter and the east half of the northwest quarter of section 6, township 19, range 1, . . ; Provided, however, that said lien shall be and remain upon the balance of the land therein described the same as though this release had not been executed.” [Italics ours.]
If the entire mortgage for $17,500 was satisfied by the settlement, of October 7, 1927, of course the release would not have been a partial one, nor would the concluding [italicized] lines of the release have been at all appropriate. Another significant incident was that the $17,500. note and mortgage were never surrendered to Dole. Without attempting to summarize all of the evidence in favor of defendants and by no means ignoring the astute and plausible argument of counsel for appellant, we think we have sufficiently shown that the main issue of fact was one for the jury’s determination, and that the verdict and special findings were supported by substantial evidence. Plaintiff does have one ground of criticism on account of the jury’s answer to special question No. 10:
“. . . State when, where, in what manner, and by what means he [Dole] redeemed the said land from the said sheriff’s sale.
“A. . . . Before August 21, 1928, in Marion county court. By payments; mortgage of $13,275, cashier’s check $15,938.32, $7,201 check at Farmers Bank of Canton by Lundgreen, and balance by check given by W. M. Anderson.”
The check for $7,201.87 was given to release another quarter section of the land covered by the new mortgage for $13,275. The incident occurred on July 28, 1928, many months after the conclusion of transactions relied on to prove the redemption of section 1. That sum was not necessary to consummate its redemption. Counsel for appellees concede that the inclusion of this item in the jury’s answer is erroneous, but it is not at all prejudicial. The facts of this check did have some probative bearing on the main issue in this, respect: It was shown that plaintiff had not given credit on the new note and mortgage for $13,275 for any part of the $7,201.87, and consequently it did tend to discredit the methods practiced by plaintiffs in relation to their mortgage business.
Passing briefly to the legal questions suggested by appellant, it is urged that defendants did not comply with the statutory provisions for payment of the judgment and redemption of the property sold in foreclosure. But plaintiff concedes that the Marion county land was redeemed, and, of course, whatever method of payment and redemption was sufficient to redeem the Marion land was equally sufficient to redeem the McPherson land. Under the rule announced in Hess v. Conway, 92 Kan. 787, 142 Pac. 253, the court must hold that plaintiff was estopped to question the legal sufficiency of the method used to redeem the land in controversy.
It is also gravely contended that the judgment is inequitable, and that defendants are unjustly enriched thereby, and that it will cause financial loss and injury to plaintiff. We discern neither of these features in the judgment. If in its eagerness to acquire for a fraction of its value a section of McPherson county land with the homes of three families thereon, and to strengthen its position in the proceedings for a writ of assistance to dispossess, these defendants, plaintiff has fumbled somewhat with respect to its $17,500 Putnam mortgage, that is plaintiff’s affair and no fault of these defendants. Even so, if or when that mortgage or whatever balance is still due thereon becomes a subject of judicial controversy, equity will not fail to do justice between the parties. The record does not show the value of section 1, but at the prices paid for other Dole lands in that locality which the evidence did reveal, it should be worth from $35,200 to $41,600, and probably a good deal more. An aggravated case of unjust enrichment would certainly appear if the trial court had felt impelled to hold that section 1 had not been redeemed from the foreclosure sale at the ruinously inadequate price of $12,000.
The interesting question whether plaintiff’s defeat in its lawsuit with the Doles growing out of the issuance of the writ of assistance was res adjudicata and should have halted the present protracted and complicated action at its inception need not be determined. Neither is it necessary to consider if section 1 had not been redeemed whether the rights of the sons of Dole and their spouses in parts of section 1 would have been barred by the Marion county judgment of December 31, 1926, in which they were not parties.
The other matters urged upon our attention by the litigants have been carefully considered but do not warrant further discussion.
The judgment is affirmed.
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Per Curiam:
On March 3, 1930, the plaintiff insurance companies and the superintendent of insurance, defendant herein, by their respective counsel presented to this court certain matters which have transpired in this cause since this court announced its decision herein on October 8, 1927 (121 Kan. 802, 257 Pac. 337, 124 Kan. 350, 259 Pac. 1068). It appears that following our decision the plaintiffs applied to the supreme court of the United States for a writ of certiorari. This was denied (Ætna Insurance Co. v. Baker, 276 U. S. 628, 72 L. Ed. 740). It also appears that thereafter the plaintiff insurance companies, some one hundred and forty-nine in number, instituted proceedings in the United States district court, the exact nature of which is not shown, but apparently raising questions affecting certain moneys impounded during the pendency of this litigation. Following these maneuvers and perhaps because of them the plaintiffs and the superintendent of insurance, by their respective counsel, negotiated a settlement of whatever matters were in controversy between them, which settlement includes an agreement that the fire insurance rate orders of the superintendent of insurance dated January 20, 1922, .which were the subject of the litigation in the cause determined by this court on October 8, 1927, should be modified in various details and now construed to be effective as of March 1,- 1922, and certain other insurance rates should be promulgated and made effective as of January 1, 1930. This settlement agreement is now submitted to us. Attached thereto are orders of the superintendent of insurance ■ dated February 28, 1930, promulgating the modified insurance rates as agreed to by the litigants, and the agreement contains the following paragraph of present concern to this court:
“It is the intention of the parties to apply to the supreme court of Kansas in the case pending there to review the rate order, for an order, judgment and mandate of said court which will permit the district court of Shawnee county to enter a final judgment in said case to carry out this agreement of settlement as to the controversy there pending, and the parties will also apply to said district court of Shawnee county, Kansas, for said purpose.”
It is in accordance with this agreement of the parties plaintiff and defendant and of their counsel that the joint motion is now made that this court amend its judgment as announced on October 8, 1927, and remand the cause to the district court with directions to enter judgment according to the stipulation of the parties dated February 18, 1930, based upon the amended orders of the superintendent of insurance promulgated February 28, 1930.
It is rather obvious that the matters just outlined extend quite measurably beyond the scope of this court’s appellate jurisdiction. The action originated in the district court of Shawnee county to restrain the superintendent of insurance from putting into effect the insurance rate promulgated by him on January 20, 1922. That court granted the injunction prayed for by the plaintiff insurance companies. Our appellate jurisdiction was invoked by the state to review specified errors inherent in that judgment. That constituted the scope of our appellate jurisdiction. Nothing more. In Wideman v. Faivre, 100 Kan. 102, 107, 108, 163 Pac. 619, where this court was asked to consider affidavits, blue prints and photographs not presented to the trial court, we said:
“This court has jurisdiction of a cause in one of two ways — by an invocation of its original constitutional jurisdiction in mandamus,- quo warranto, or habeas corpus, or through its appellate jurisdiction where it reviews alleged errors of trial courts. ... In the latter, when we sit to review the work of a trial court, we are limited to the record made in that court; . . . The supreme court’s jurisdiction is invariably and exclusively original or appellate. There is never a confusion or blending of both. (Hess v. Conway, 93 Kan. 246, 144 Pac. 205; and other citations.)”
The matters involved in the settlement agreement and in the orders of the superintendent of insurance modifying the insurance rates for the period covered by this litigation, and promulgating other rate orders effective for the future, have not had the attention of the trial court. We therefore deem it outside the scope of this court’s appellate jurisdiction to deal with them. Moreover, the courts of this state do not have rate-making powers. Our functions are judicial, not legislative or administrative. Rate making is a legislative function, and this court has consistently and scrupulously refrained from every appearance of exercising rate-making power. (State, ex rel., v. Flannelly, 96 Kan. 372, 382, 152 Pac. 22; City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 354, 355, 264 Pac. 68.)
However, this court has no inclination to lean backwards on this important subject. It would merely observe that the superintendent of insurance has ample authority to approve, modify or change insurance rates, and he needs no judicial sanction of this court or of the district court to exercise the functions of his office. The legislature has vested him with power, and his is the responsibility. So, too, within the limits of R. S. 75-702 and other statutory provisions in pari materia the attorney-general has discretionary power to prosecute, defend, compromise and dismiss lawsuits in which the state is interested; and while the joint motion to amend our judgment will have to be denied for the reasons outlined above, its denial should not be construed to mean a denial of the right of the parties to carry their agreed settlement into effect, nor as a restriction on the power of the district court to deal as it may be advised with all such matters incidental to the main cause as have arisen since its judgment was entered on October 24,1925.
Of necessity this court must retain jurisdiction with respect to the bonds filed in this court pursuant to its order of November 28, 1927, for the purpose of dealing with matters which may arise pertaining thereto.
It is so ordered.
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The opinion of the court was delivered by
Harvey, C. J.:
This is an appeal by attorneys from a judgment of the district court denying their claim for attorneys’ fees and expenses for representing the losing party in an action to construe a will.
On July 10,1942, T. H. Reynolds, a resident'of Wyandotte county, executed his will by which he devised to his wife, Mabelle B. Reynolds, his real and personal property except $200 which he gave to his adopted daughter, Josephine C. Reynolds. The will contained a clause to the effect that in the event of the death of his named beneficiaries the remainder of his estate would go to his wife’s sister, Bertha J. Blue, and her brother, Joseph L. Blue, of Cincinnati, Ohio, share and share alike. The testator died on October 11, 1950. His wife had predeceased him, and also his wife’s brother. His adopted daughter, Josephine C. Reynolds, whose surname then was Washington, caused the will to be admitted to probate on November 16, 1950, and she was appointed executrix. Sometime thereafter Mrs. Washington filed in the probate court a petition to have the will construed. Bertha J. Blue entered her appearance in the proceedings by her attorneys who are now appellants here and by answer made a similar request. The trial in the probate court resulted in a judgment that Bertha J. Blue had no interest in the property. She appealed to the district court where there was a trial de novo with the same result. She then perfected an appeal to the supreme court where that judgment was affirmed. For more detailed facts and analyses of the case reference is made to the opinion filed May 10, 1952, in In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234.
On May 14,1952, the appellants herein filed in the probate court a claim for attorneys’ fees and expenses for representing Bertha J. Blue in the litigation above mentioned. That claim was heard in the probate court and allowed in part only. Mrs. Washington appealed from the order of allowing the claim in part to the district court where the claim of appellants was denied after a hearing. They filed a motion for a new trial which was duly considered by the court and overruled. This appeal followed.
Generally, it may be said that attorneys’ fees in actions may not be allowed unless some statute authorizes it. See, Vonachen v. Pratt Glass Co., 172 Kan. 545, 241 P. 2d 775, and authorities there cited.
The general statutes pertaining to the allowance of costs in the district court, G. S. 1949, read as follows:
“Where it is not othérwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.” 60-3704.
“Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last section.” 60-3705.
“In other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.” 60-3706.
Actions to construe wills are of a class that the trial court under the authority of the last section quoted is authorized to tax costs and allow attorneys’ fees to one party or the other, or to both, as in its discretion it may think right and equitable.
Counsel for appellants cite Singer v. Taylor, 91 Kan. 190, 137 Pac. 931, where the syllabi read:
“In an action other than for the recovery of money only or for the recovery of specific real or personal property the court, in its discretion, may tax costs and apportion the same between the parties as, in its discretion, it may think right and equitable.” Syl. 1.
“Where there is ambiguity in the provisions of a will and a real controversy as to its construction it is competent for the court to allow reasonable attorneys’ fees out of the estate to the defeated as well as the successful party.” Syl. 2.
After the decision of the court in the principal case, Singer v. Taylor, 90 Kan. 285, 133 Pac. 841, counsel filed a motion, to allow costs and attorneys’ fees which involved the question whether costs and attorneys’ fees should be allowed to an unsuccessful party out of the estate of the testator. The court pointed out that the estate was large, about a quarter million dollars; that the daughter had been given only $500, plus the income for life from $10,000; the widow had been given the income for life from certain property; and, the son had been given practically all of the remainder of the estate. The daughter had brought an action to set aside' the will on the ground of undue influence and to have certain portions of, the will construed. She was unsuccessful in setting aside the will but the terms of the will were construed in several respects. This court expressed the view the trial court would be justified in allowing her attorneys’ fees and expenses but referred the matter to the trial court for allowance.
In Hurst v. Weaver, 75 Kan. 758, 90 Pac. 297, a testator who had considerable property and eight children gave each of the children property but as to one daughter, Christiana Hurst, he provided that her property should be held and invested by the executors for her sole use; not giving it to her directly. The executors sued to have the will construed. Mrs. Hurst filed an answer and joined in the construction of the will with respect to her interest. The trial court’s construction of the will was unsatisfactory to her and she appealed. From the opinion it appears that the trial court ordered all the costs and attorneys’ fees to be paid out of Mrs. Hurst’s share. The court cited the section last quoted here and said:
“. . . authorizes the trial court in this class of actions to tax and apportion the costs as in its discretion seems right and equitable. There seems, at least, to have been no abuse of discretion in this case. It appears by the pleadings and agreed statement of facts that none of the other beneficiaries was interested in the result of this action. The issue was between Mrs. Hurst and the trustee-executors: whether her share should be paid over to her by them, as executors, or should be retained by them as trustees and invested for the benefit of herself and her children.”
In Chapman v. Kennett, 94 Kan. 535, 146 Pac. 1153, it was held:
“A testator whose estate was valued at $13,000 made bequests of two town lots, $500 and $1,000 respectively, to three elderly women who had befriended him; $1,000 to a children’s home society; directed monuments to be erected over his grave and the graves of his son and stepson; and bequeathed the residue to a fraternal organization, and cut off a son and daughter with five dollars each. The daughter brought contest proceedings to set aside the will on account of mental incapacity and undue influence. The beneficiaries, except the fraternal organization, could ill afford the expense of litigation. The probate court authorized the executor to employ attorneys to maintain the will. The will was sustained, but the bequest of the residuary estate failed. Held, that under all the circumstances it was not error to charge the expenses of the litigation against the estate.”
In Householter v. Householter, 160 Kan. 614, 164 P. 2d 101, it was held:
“Attorneys’ fees ordinarily should not be allowed to counsel for an unsuccessful litigant when the action is brought for the personal benefit of the litigant rather than for the benefit of an estate or trust even though the litigation results in perfecting the title of the successful party to property and requires construction of a will which did not contain ambiguous provisions.” Syl. 2.
In the opinion p. 619 it is said:
“Counsel for the appellant contend that the district court should have allowed them attorneys’ fees even though they represented the unsuccessful party in the case. They assert that the sole question to be decided is the proper construction of a will and that without a decision on such question, the appellees would have been unable to perfect title to the involved real estate. In support of their contention they cite Singer v. Taylor, 91 Kan. 190, 137 Pac. 931, and other cases. In the present case, however, the appellant sought the recovery of a specific interest in described land. The appellees were forced involuntarily to uphold a will which did not appear on its face to be ambiguous. No estate or trust fund was benefited by the litigation. From a standpoint of construction and equity there appears to be no more reason why the appellees should pay attorneys’ fees to counsel for appellant than the other devisees named in the will even though they were not parties to the action. The appellant sought to recover for his personal benefit — -not for the benefit of all parties incidentally concerned with the litigation. In such cases attorneys’ fees ordinarily are not properly allowed to counsel for the unsuccessful party. (See Bartlett v. Mutual Ben. Life Ins. Co., 358 111. 452, 193 N. E. 501, and annotation in 142 A. L. R. 1459.)”
Tomb v. Bardo, 153 Kan. 766, 114 P. 2d 320, was an action for declaratory judgment to construe a will and to determine rights of the legatees and devisees thereunder. The opinion involved the interest of many parties. On p. 776 the court had occasion to say:
“Complaint is made of the action of the court in taxing the costs to the residuary assets of the estate. Under the statute, G. S. 1935, 60-3706, this was a matter within the discretion of the trial court.”
The same may be said in this case. The ruling of the trial court from which the appeal is taken here was within the trial court’s discretion under what is now G. S. 1949, 60-3706. Many other cases might be cited but those, and the ones we have cited, all recognize the basic principle involved as being the discretion of the trial court. Whex'e the services of the claiming attorney have been beneficial to the estate or are necessary for its proper consideration, fees have been allowed attorneys, but where the attorney acts for the benefit of his own client, or for other purposes not helpful in the administration of the estate, such fees are not allowed.
The opinion In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234, makes it clear that the portion of the will which counsel for Bertha J. Blue sought to have construed needed no construction. The language is clear. The efforts of her attorneys were for her own benefit. The trial court obviously was of the opinion that such services were not helpful in the administration of the estate and that there was no reason why the estate should have to pay it. We find no error in the record. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This is an original proceeding in the nature of quo warranto brought by the State upon the relation of the county attorney of Shawnee county against the City of Topeka, hereafter referred to as the City, and its officers, to oust the City of Topeka from exercising its right of eminent domain in acquiring off-street parking facilities, alleging the statutes in question to be unconstitutional; that the acquisition and appropriation of the properties in question were not taken for a public use, and that the contract for a lease entered into between the parties was invalid.
This action arose out of the authority conferred upon cities of the first class as provided by G. S. 1953 Supp., 13-1388 to 13-1391, inclusive, which grants power to all such cities to acquire by eminent domain, real estate for the purpose of off-street parking, and for the improvement of such land by construction of a building thereon so as to provide parking facilities, the financing of such project to be derived from the sale of revenue bonds payable out of the income from the operation of the parking facilities, and in the event of any deficiency, authority is given for payment of bonds out of the net proceeds of revenues derived from the on-street parking meters.
In December, 1950, the city acting under the provisions of the mentioned statutes caused an investigation and survey to be conducted for the purpose of determining the extent of on-street parking, the need of and suitable locations for off-street parking facilities, and the approximate acquisition and improvement costs. The survey was made by the state highway commission which made a report and filed the same with the City in its final form, prior to September 30, 1952. A further survey was made in behalf of the City by Donald A. Seltsam and filed with the City on March 13, 1952.
On September 8, 1952, defendant City entered into a contract to lease certain parking facilities to be later acquired by the City to Park and Shop, Inc., a private corporation, hereafter referred to as Park and Shop, specially organized by a group of individuals, most of whom were merchants operating businesses on Kansas Avenue, for the purpose of entering into a lease contract with the City of Topeka for the operation, management and control of municipally-owned parking lots or stations.
After the contract between Park and Shop and the City had been executed by the parties, the City met November 18, 1952, in regular session and presented for first reading a resolution, the substance of which was that the City deemed it advisable to acquire certain properties for off-street parking (describing them), stating the aggregate cost for acquiring and improving the property to be acquired and other costs incident thereto, and authorizing $2,000,000 of revenue bonds to be issued by the City to pay the aggregate cost, and further providing a date certain for public hearing for any protests to the resolution. On December 16, 1952, the City heard all protestants.
On December 23, 1952, the City adopted an order for condemnation of the properties to be taken, and on December 30, 1952, it adopted Ordinance No. 8364, which declared it necessary to condemn and appropriate for its use for the purpose of establishing off-street parking facilities two separate pieces of property, one to be cleared and paved for surface parking and the other to be cleared and a ramp-style building constructed thereon as quickly as possible, consisting of a basement and three levels to provide parking accommodations for approximately 400 automobiles, and authorized the City to make application to the district court for the appointment of appraisers and to make appraisement of damages occasioned by the acquisition. Other provisions of the ordinance relating to the improvements thereon need not be noted.
On March 28, 1953, the City instituted its proceedings in condemnation of the properties hereinbefore mentioned for the establishment of two municipally-owned parking lots, and petitioned for the appointment of appraisers who later filed their report awarding damages. On April 5, 1953, the City by ordinance authorized the issuance of revenue bonds for the purpose of paying for the acquisition and improvement costs of the two parking sites and for other incidental costs.
We shall discuss the three questions presented here in their order:
1. Does G. S. 1953 Supp., 13-1388 to 13-1391, inclusive, constitute an illegal delegation of legislative power to the city?
2. Does the taking of private property for off-street parking constitute a public use?
3. Is the contract for a lease for the operation, management and control of off-street parking facilities valid?
The State first contends the mentioned statutes violate section 1, article 2, of our state constitution, “the legislative power of this state shall be vested in a house of representatives and senate,” in that no adequate standards are prescribed by the statutes, and are therefore an unlawful delegation of legislative power.
It is a well-settled rule that an act duly passed by the legislature is presumed to be constitutional and, before the courts can declare it invalid, it must clearly appear to be unconstitutional. (State, ex rel. v. Richardson, 174 Kan. 382, 389, 256 P. 2d 135; Board of Education of School Dist. No. 1 v. Robb, 168 Kan. 368, 212 P. 2d 306; State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677; West’s Kansas. Digest, Constitutional Law, § 48, and 1 Hatcher’s Digest [Rev. Ed.], Constitutional Law, § 16.)
Courts do not inquire into the motive or wisdom of legislation. Such considerations are solely the province of the lawmakers. The duty of the court is to make the legislative will effective whenever reasonably possible to do so. (State, ex rel., v. Russell, 171 Kan. 709, 237 P. 2d 363; Campos v. Garden City Co., 166 Kan. 352, 355, 201 P. 2d 1017.)
Do' the statutes in question set forth sufficient standards so as not to contravene section 1, article 2, of the state constitution?
Section 13-1388 provides as follows:
“Any city of the first class may, as hereinafter provided, acquire by purchase, lease, gift or condemnation any land in or near areas zoned as business, commercial or industrial districts in such city for off-street parking facilities, and may improve any such land by the construction of a building thereon, or otherwise, so as to provide parking facilities. In acquiring any land for off-street parking facilities by condemnation the provisions of article 2 of chapter 26 of the General Statutes of 1949 or any amendments thereto shall, insofar as applicable, apply to and be followed in such condemnation proceedings. Title to any land condemned under this act shall vest in the city upon the payment by the city of the amount of the award in the manner provided in article 2 of chapter 26 of the General Statutes of 1949 or any amendments thereto.”
Section 13-1389 provides in substance that when such a city desires to acquire land for off-street parking it shall conduct a survey and investigation for the purpose of determining suitable locations, the approximate cost of acquisition and the improvements to be placed thereon, providing for the employment of appraisers and engineers, and fixing the cost of the survey as a part of the acquisition and improvement of the property to be acquired, and when the survey is completed if the city deems it advisable to acquire land for off-street parking, shall adopt a resolution describing the land, the amount to be expended for acquiring the property for off-street parking, cost of survey, and that revenue bonds be issued to pay the aggregate cost thereof. The remaining portion of the statute provides for the publication of the resolution, and when an action to contest the validity of such proceeding may be brought.
Section 13-1390 is as follows:
“Whenever the governing body of any city of the first class shall adopt the resolution provided for in section 2 [13-1389] of this act said governing body may proceed to acquire the land described in said resolution by purchase, lease, gift or condemnation and may proceed to improve such lands acquired so as to provide off-street parking facilities. The governing body of such a city shall issue and sell revenue bonds as hereinafter provided to pay all costs involved in the acquiring and improving any such lands. The governing body of any such city is hereby authorized to determine the kind or type of off-street parking facilities to be established, the rates or fees to be charged for the use thereof, the method of operation, including the leasing thereof, and the rules and regulations governing use and operation thereof.”
Section 13-1391 provides that the revenue bonds so issued shall not be general obligation bonds of the city, but such- bonds shall be paid from the revenues derived from the parking facilities themselves, and the city shall not have any right to levy any taxes to pay any of the principal or interest on the bonds, or any judgment against the issuing city on account thereof. Provision is also made for the manner of maturing the bonds, their tenure, the rate of interest to be charged, as well as to what recitals shall be included therein, one such recital being that should the revenues be insufficient to pay the interest and principal as they become due, any deficiency may be paid from funds derived from on-street parking meters. Provisions are made that the bonds shall be a specific lien upon the property and the improvements thereon, and that they shall be negotiable. The closing part of the section provides that all revenues shall be deposited in a special fund out of which operational and maintenance costs shall be paid, and how such revenue funds shall be used and expended.
As early as the year 1871, Mr. Justice Valentine speaking for this court, said in Coleman v. Newby, 7 Kan. 82, 88:
“While the legislature possess all the legislative power of the state, and while it is true that they cannot delegate any portion of that power to any other body, tribunal, or person, yet it is generally found impracticable for them to exercise this power in detail. They may do so if they choose, or they may enact general provisions and leave those who are to act under these general provisions to use their discretion in filling up the details. They may mark out the great outlines, and leave those who are to act within these outlines to use their discretion in carrying out the minor regulations. . .
In the case of In re Sims, Petitioner, 54 Kan. 1, 11, 37 Pac. 135, it was said:
“It is highly important to separate the legislative, judicial and executive functions, and that the officer of one department should not exercise the functions conferred upon another. Under our system, however, the absolute independence of the departments, and the complete separation of the powers is impracticable, and was not intended. . . .”
In State v. Railway Co., 76 Kan. 467, 474, 92 Pac. 606, it was held, notwithstanding the well-established maxims of the law, the separation of the powers of government is complete only in theory.
The constitutional maxim which prohibits the legislature from delegating its power to any other body or authority is not violated by vesting municipal corporations with certain powers of legislation as to matters purely of local concern of which the parties immediately interested are supposed to be better judges than the legislature. (11 Am. Jur. 935, Constitutional Law, § 224.)
It has been well said that to deny to the legislature the right to delegate the power to determine some fact or state of things upon which the enforcement of an enactment depends would stop the wheels of government and bring about confusion, if not paralysis, in the conduct of the public business. (Schaake v. Dolley, 85 Kan. 598, 613, 118 Pac. 80.)
It thus appears that under certain circumstances the legislature does have power to delegate legislative powers, and this power has been recognized in conferring on cities powers of local regulation, in providing for drainage districts, and in creation of boards and commissions authorized to administer and execute certain specific powers. (State, ex rel., v. Hardwick, 144 Kan. 3, 6, 57 P. 2d 1231.)
It appears that while the legislature possesses all the legislative power of the state, it is impracticable for them to exercise that power in minute detail. It is their function to enact general provisions, leaving to those who know their local problems best the right to fill in the details in carrying out the general provisions granted by the legislature.
An examination of the mentioned statutes reveals -that certain standards have been prescribed by the legislature for the acquisition and construction of municipal off-street parking facilities. The legislature specifically provided:
(1) The method of acquisition of any property by the city; (2) the location of such facilities within the city; (3) the improvement for parking facilities; (4) the procedure to be followed in condemnation; (5) when and how title is to vest; (6) the method for gathering information necessary for the determination of the existence of a public need and of the advisability, necessity and benefit to the city; (7) the procuring'of experts to obtain the necessary information; (8) the means of paying such experts; (9) the circumstances under which property may be acquired and improved, the procedural steps to be followed in the publication of resolutions, including the contents thereof and the frequency of publication; (10) the method of financing such project; (11) the specific provisions in regard to the revenue bonds issued, the character thereof, the method of paying the bonds, the interest thereon, and the terms thereof.'
The matters to be determined by the governing body of the city are:
(1) Whether the facilities are advisable and are of benefit to the city; (2) the amount of money to be expended therefor and, consequently, the amount of the bonds to be issued; (3) the kind or type of facilities to be established; (4) the rates or fees to be charged for the use thereof, and the method of operation of the facilities, whether through lease or otherwise, and the rules and regulations to be adopted concerning the operation of the facilities; (5) the locations and number of facilities to be established.
It is apparent that the standards set out by the legislature were ample, and any further standards might so restrict every city in its attempted operation as to make compliance therewith inoperative. Matters to be determined by a city are purely local in character, and dependent upon the existing conditions and needs of the respective city. It cannot be said that the legislature, a body composed of individuals from 105 counties of the state, could decide with any degree of accuracy whether any specific city of the first class needed municipal off-street parking facilities, or whether such facilities would be of benefit to any city and, if so, where they should be located, and how many.
Found in our general statutes are many instances where powers and authorities have been specifically granted by the legislature, such as section 8-508, the city may regulate the standing or parking of vehicles on its streets; section 12-602, that cities may grade, pave or improve streets and levy assessments for the payment thereof; section-13-443, the city may vacate or close any street or reopen the same; section 13-401, the governing body shall have the care, management and control of the city and its property and finances; and shall have power to enact ordinances for all the purposes named and provided for, not repugnant to the constitution and laws of this state; section 26-201, the city may open or widen the streets; section 13-1023, the city may condemn private property for the improvement of streets and alleys; section 13-423, the city may make all needful police regulations necessary for the preservation of good order; section 13-412, the city is authorized to adopt all measures as may be necessary for the protection of strangers and the traveling public in person and property. Other sections of the statutes might be cited of similar effect.
The case of Brown v. Arkansas City, 135 Kan. 453, 11 P. 2d 607, involved the establishment of a city court. The legislature had en acted what is now G. S. 1949, 20-1401, providing that when it appeared to the satisfaction of the governing body of a city that a need for establishing a city court existed, it might establish such city court by ordinance. This act prescribed certain standards but failed to provide for the repealing of such ordinance, and it was contended that since the city determined the need, it should determine when the need ceased to exist. We held that the legislature had limited its delegation of authority to the city to one feature only, and that was the determination of a need for its establishment (the court), and that was in the nature of a finding of fact, and not necessarily legislative in character.
In Barrett v. City of Osawatomie, 131 Kan. 50, 289 Pac. 970, an action was brought to enjoin the city commission from levying and collecting special assessments on land outside the city limits to pay the costs of construction of a water main on property outside the city. It was contended the levying of the assessments was unconstitutional as it delegated legislative authority to the petitioners in violation of section 1, article 2 of the state constitution. We said:
“Chapter 120 of the Laws of 1925, being entitled ‘An act concerning cities of second class, enabling them to extend water mains and water service to territory lying beyond but adjacent to city limit,’ is not unconstitutional and void as delegating legislative power to petitioners in violation of section 1 of article 2 of the state constitution, because the request of the petitioners is in no sense imperative, but contingent and conditional upon tire discretion to be exercised by the governing body of the city in finding the extension desired and proposed by the petitioners to be of benefit to the city.” (Syl. ¶ 1.)
It is apparent from the mentioned statutes that the legislature provided adequate general standards and provisions for cities of the first class to use their discretion in carrying out local details for acquiring off-street parking, and that such details are in the nature of findings of fact and not legislative in character.
In view of what has been said, we are of the opinion that G. S. 1953 Supp., 13-1388 to 13-1391, inclusive, do not constitute an illegal delegation of legislative power to cities of the first class, and are not repugnant to section 1, article 2, of our state constitution.
This brings us to the second question — does the taking of private property for off-street parking constitute a public use?
That the legislature may authorize the acquisition and appropriation of private property for public use is well entrenched in our law of eminent domain.
In Irrigation Co. v. Klein, 63 Kan. 484, 488, 65 Pac. 684, it was said:
. . It is equally well settled that the legislature may authorize the taking of private property by private persons or corporations for public uses, the owner of such property being compensated therefor. Courts determine what is a public use; legislatures, when the power of eminent domain may he exercised in its promotion. Courts may not interfere to limit or control the discretion of the lawmaking power as to the character, quality, method or extent of the exercise of the power of eminent domain by a private person or corporation engaged in the promotion of a public use, when once it has been determined that such use is a public one. . . .”
In Poole v. City of Kankakee, 406 Ill. 521, 94 N. E. 2d 416, it was stated that the final determination of whether a use or purpose was within the limits of the legislative discretion was a judicial function. Thus it is for the courts to decide whether a given use is a public use. Courts of last resort have departed quite widely in their efforts to define public use. The local conditions and needs of the people have much to do with the question. Since the determination of what constitutes a public use is a judicial function, it becomes necessary for us to determine if the acquisition and appropriation of privately owned property by a city for off-street parking constitutes a public use.
While this is a question of first impression in Kansas, this court recognizes that in the exercise of police powers conferred by statute, a city of the first class has the authority to enact an ordinance providing for the regulation of traffic on its streets by means of parking meters. (City of Hutchinson v. Harrison, 173 Kan. 18, 244 P. 2d 222.)
In recent years, in determining what is a public use in cases involving municipal off-street parking facilities, the findings and holdings of the courts have been to a great extent directed by the consideration of, first, legislative provisions; and second, common knowledge of necessity, although a few courts have considered other rationale. Accordingly, where a state or municipal legislative body has made a provision for the establishment of municipal off-street parking, and has provided for the condemnation of private property for such establishment, most courts have accepted such provisions as indicative that a public use is involved.
In the case of Bowman v. City of Kansas City, 361 Mo. 14, 25, 233 S. W. 2d 26, which involved the validity of off-street parking facilities, the question of public use was ably discussed. The Missouri court said:
“ ‘To be guided solely by whether a given activity had, at some previous time, been recognized as a public purpose would make the law static. Such a standard would compel us to retain in the law, as appropriate for public expenditure, activities which have ceased to be of public concern; and would prevent us from adopting new public functions regardless of how essential to the public welfare they riiay have become by reason of changed conditions. Nor can we be governed alone by the fact that only a portion of the public will be directly benefited, or benefited in a greater degree than the public generally.' ”
In City of Richmond v. Dervishian, 190 Va. 398, 57 S. E. 2d 120, a question involved municipal off-street parking. The Virginia court stated, in substance, that the granted powers authorizing a city to acquire property for public uses and for the purposes so conferred is an express declaration of the legislature that the uses contemplated are public ones. Such declaration is not conclusive but raises a presumption that the use is a public use.
In McSorley v. Fitzgerald et al., 359 Pa. 264, 268, 59 A. 2d 142, it was said:
“It is true, of course, that the question whether the use to which a governmental agency intends to devote property taken under the alleged right of eminent domain is a public one, is a judicial question for the determination of the court: (citing cases). But a legislative declaration with respect to that question, while not conclusive, is entitled to a prima facie acceptance of its correctness: (citing cases) . . .”
(See, also, Wayne Vil. President v. Vil. Clerk, 323 Mich. 592, 36 N. W. 2d 157, 8 A. L. R. 2d 357; Brodhead v. Denver, 126 Colo. 119, 247 P. 2d 140; Gate City Garage v. City of Jacksonville, (Fla.), 66 So. 2d 653.)
In the instant case, the legislature has provided for the condemnation of private property for municipal off-street parking facilities (13-1388). It is also recognized that such a condemnation would be for a pubilic use (13-1389). In addition, the City of Topeka has found that additional parking facilities are essential to the welfare and benefit of its people, and has declared it advisable and of benefit to the city that land be acquired for such facilities. This, at least, raises a presumption that such condemnation is for a public use. We are cognizant of the fact that cities are becoming more and more concerned with the question of what to do about the parking problem and congested traffic conditions in cities generally throughout this state, and in an effort to solve this problem have directed attention to off-street parking of automobiles through the use of parking lots and municipally-owned parking garages. Cities have found that their commercial, business and industrial districts can no longer satisfy the needs of the public by on-street parking such as is found on both sides of the main streets of our cities. Some cities have been content to remain passive to this problem, while others have tried to manage with the same available space by installing parking meters, limiting the time for parking and assessing a fine against those who overpark, but such efforts have afforded little more than temporary relief and have only delayed the approach to the real problem. In the larger cities, the public is reminded daily of the inadequacy of on-street parking. When downtown trafile becomes congested, double and triple parking in some instances have become hazardous, not only to drivers of vehicles but to pedestrians alike. Traffic divisions of police departments have tried every conceivable plan to eliminate the traffic jams and hazards occasioned thereby, but with little success. Governing bodies of cities are aware of the increasing number of automobiles that appear yearly, and the increase in the injury and death rates to citizens, due to improperly controlled traffic. The courts cannot help taking judicial notice of tírese existing conditions. There can be no question but that it lies within the power of the cities of the state to regulate and control the traffic upon their streets. Since the regulation of traffic upon the streets of a city is in the interests of public safety, convenience and necessity, and the stopping or parking of vehicles along the streets is a legitimate use of the streets, subject to legislative control, it therefore follows that the provisions of G. S. 1953 Supp., 13-1388 et seq., providing for the acquisition of property for off-street parking facilities, is for a public purpose and use.
This brings us to the final question to be determined in this action. Was the contract for a lease, entered into between the City and Park and Shop for the operation, management and control of off-street parking facilities, valid?
It is so well settled that cities generally possess authority to lease municipally-owned property for public use that no authorities need be cited. The contract for a lease of certain described property between the City and Park and Shop was entered into on September 8, 1952. This contract consisted of twenty-four paragraphs, some of which are subdivided, and is quite lengthy. The lease was to run for a period of thirty years from the date of the first issuance of bonds, or until the retirement of the revenue bonds issued pursuant to authorization, if they be retired in less than thirty years. At the termination of the lease, other than by forfeiture, Park and Shop was to have the first right and option to re-lease the parking facilities covered by the agreement under the same terms and con ditions which the City would be willing to lease to any other tenant or operator. Paragraph 17 of the contract reads, in part, as follows:
“Should first party, from the proceeds of said bond issue above referred to, (a) acquire any additional parking sites or facilities, or (b) build any additional parking garages or facilities on any of the sites acquired under said bond issue, then second party shall have the option to lease such additional parking facilities, . .
It was early held, and over the years the rule has been, that a municipal corporation is a creation of law and can exercise only powers conferred by law and take none by implication, and that the only power it may acquire in addition to that expressly granted is the power necessary to make effective the power granted. (Yoder v. City of Hutchinson, 171 Kan. 1, 8, 228 P. 2d 918; Johnston v. City of Coffeyville, 175 Kan. 357, 361, 264 P. 2d 474; State v. Hannigan, 161 Kan. 492, 170 P. 2d 138.)
Section 13-1390 authorizes a city to lease parking facilities and to contract accordingly. However, it does not contemplate or purport to authorize a city to contract to lease all parking facilities to be acquired in the future. As stated, a city has only such powers as are granted by the legislature, and this does not, by implication, confer upon a present governing body the authority to bind its successors in office to lease parking facilities not yet in contemplation. For the present governing body to agree to lease to Park and Shop all future acquired parking facilities is clearly an unreasonable abuse of authority.
Paragraph 11 of the contract reads, in part:
“Hours of operation and fee schedules, as well as all rules and regulations governing the conduct or operation of each site, shall be mutually agreed upon in writing by the parties hereto. . .
Section 13-1390 provides that the city shall establish the rates and fees to be charged for the use of off-street parking facilities and the method of operation. Nowhere in the statute can it be found that the city has any authority to delegate any portion of its duties, either wholly or in part, to any private individual or corporation, nor does the statute contain any implication to that effect. It is clear that this provision of the contract is an unlawful delegation of the city’s power granted by the legislature.
Paragraph 19 of the contract provides, in part, that in the event any of the parking facilities be totally destroyed or damaged beyond use, the City shall rebuild or restore the premises within a reasonable time within their financial ability so to do. This provision is un reasonable in that should the property be destroyed at some future date it would require the City to rebuild or repair, even though subsequent governing bodies might determine that it could no longer serve a public use and that it would not be advantageous to the general public to rebuild or repair. Under the authority delegated to a city by the statute, the matter of rebuilding or repairing would be a question to be determined by the then governing body of the city. The present governing body may not bind future bodies with the advisability of rebuilding or repairing such structures.
The contract also provides that Park and Shop shall have the right to approve the plans and specifications for the improvements on said sites, the contracts for the improvements, and for clearing and paving the lots. This contravenes section 13-1390, in that the obligation of approving the plans and specifications, the contracts for the improvements, clearing and paving the lots, are duties and functions to be performed by the governing body of the city, and any attempt to delegate that power or any portion thereof to an individual or private corporation is a direct violation of the power conferred by the legislature.
Other provisions of the contract need not be discussed. However, the failure to so discuss them does not amount to an approval of their terms. It is sufficient to say that those mentioned are adequate for us to hold that the contract for the lease entered into by the City is invalid.
It is the judgment of this court that: (1) the provisions of G. S. 1953 Supp., 13-1388 to 13-1391, inclusive, do not constitute an illegal delegation of legislative power to cities of the first class; (2) the mentioned sections do not contravene section 1, article 2, of our state constitution; (3) the acquisition of private property for off-street parking facilities constitutes a public use, and (4) the contract for a lease entered into between the City and Park and Shop for the operation, management and control of off-street parking facilities is invalid.
It follows that conclusion No. 4 requires a judgment for the plaintiff for costs, notwithstanding our conclusions Nos. 1, 2 and 3.
Judgment is rendered for the plaintiff for costs in accordance with the views herein expressed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by plaintiff (appellee) against defendant (appellant) to cancel a contract to dig a lake and to enjoin the assertion of rights thereunder. The trial court made findings of fact and conclusions of law, rendered judgment for the plaintiff, and defendant appeals.
Plaintiff’s petition consists of two causes of action. In his first cause of action he seeks to establish that the oral contract under \yhich defendant was removing sand from plaintiff’s land had been revoked, and by the second cause of action the plaintiff sought to establish that a written agreement between the parties was not a contract,- had not been delivered, was obtained by defendant through fraud and without consideration, and had been fraudulently altered and recorded by defendant.
Defendant’s demurrer to plaintiff’s petition was overruled and defendant answered by way of general denial, except as to certain allegations which were either admitted or qualified. Plaintiff replied by general denial. A jury was waived and the case-- was tried by the court. To certain evidence presented by the plaintiff concerning the execution of the written instrument in question, defendant objected. At tire close of plaintiff’s evidence, defendant filed a motion to strike certain oral testimony and demurred to plaintiff’s evidence on the ground it failed to show a cause of action in favor of plaintiff, both of which were by the trial court overruled. Defendant then proceeded with his evidence. At the close of the case the court made findings of fact and conclusions of law. The pertinent facts are summarized as follows:
Plaintiff was the owner of 100 acres of land located south of Wichita bordering on the Arkansas river. In February, 1951, defendant orally agreed to dig a lake from one to three acres in size for plaintiff on what was known as a garden spot. In consideration for creating the lake the defendant, who was engaged in the sand business, was to receive free of any cost the sand removed from the lake site. In further consideration, defendant was to build a dike to prevent the intrusion of surface water; an. all-weather road around the lake, and to do such landscaping as would be necessary to put the premises in an attractive condition--. Pursuant to this oral agreement, defendant commenced operations to build the lake. On March 10, 1951, plaintiff and his wife were at the union station at Wichita ready to board a train to attend a medical meeting in Louisiana. Defendant met them at the station with a prepared document which he said was a contract covering his operations on the land, and asked that they sign it. Plaintiff refused, stating that he did not have time to inyestigate or consider the matter, and did not want to make a written contract with defendant before doing so. Defendant stated the paper would amount to nothing and if plaintiff would sign, he (defendant) would use it to assure prospective customers or. contractors in the Roeing Aircraft area that he had a source of supply for sand during the time plaintiff was out of town, and that was the only purpose for which he would use it. Defendant suggested that plaintiff sign and deliver the agreement to plaintiff’s sixteen year old son, Frank, Jr., who was with plaintiff at the station but was remaining in Wichita; that during his absence defendant would pick up the agreement from the son, only if he needed it for the purpose indicated, and that he would return the agreement to plaintiff when he came back from his trip in about ten days. With this understanding, plaintiff and his wife signed the document and delivered it to their son. Defendant did not sign either the original or the copy of the agreement. Three or four days later, defendant went by the plaintiff’s home while he and his wife were still out of town and picked up the agreement from plaintiff’s son. The agreement reads as follows:
“This Agreement, made and entered into this 10th day of February, 1951, by and between Frank Emery and Nellie M. Emery, his wife, parties of the first part, and Harry Graber, party of the second part, Witnesseth:
“The parties of the first part, in consideration of the agreement hereinafter contained on the part of the party of the second part, give and grant to the party of the second part, for a period of three years from this date, the privilege of removing sand and other material from the land described as follows: (legal description)
“In consideration of the above agreement on the part of the parties of the first part, the party of the second part agrees to remove said sand and material from said land for a period of three years and to build a lake on said land, and to build up and leave a levee around the entire excavated part of said land to keep out ordinary flood waters, and when through with excavating, to level off the part not excavated so as not to leave any unsightly hills and holes around the lake to be so created.”
Not only was the mentioned agreement unsigned by defendant, but the description of the land contained therein included the 100 acres owned by plaintiff, and also other properties that did not belong to him. Moreover, after the defendant had obtained the agreement from plaintiff’s son, as aforementioned, he signed and acknowledged it before his attorney on June 23, 1951, and filed the same of record in the office of the register of deeds on June 25, 1951. The instrument was never acknowledged by the plaintiff, and he was not advised by defendant of his execution and recording of the instrument.
In May, 1951, plaintiff complained to defendant in a telephone conversation that he had not returned the agreement he had obtained from plaintiff’s son. Defendant then stated he could have the agreement at any time. Immediately after the recording of the instrument, defendant entered into a contract with The Western Contracting Corporation under which he gave them the exclusive right to remove sand from all the lands described in the aforementioned agreement, whereby defendant was to receive a royalty of ten cents per cubic yard for all material removed. The Western Contracting Corporation was engaged in building the concrete ramps and runways on the B-47 Air Base in Wichita which required vast quantities of sand. Plaintiff’s land was so situated that between fifteen and twenty acres of it could be cleared and the sand used. As a result, the contracting firm moved in power equipment and stripped almost the entire area to a depth of fifteen or twenty feet. Prior to the commencement of these operations by The Western Contracting Corporation, defendant had not done any landscaping or filling, and had failed to build a road or levee around the garden spot and, as a result of the contracting company’s operations, that work cannot now be done, and since the execution of the contract between defendant and The Western Contracting Company, he has placed himself beyond the power to perform his contract with the plaintiff.
The trial court found the fraudulent acts of the defendant consisted of his subsequent signing of the mentioned agreement, procuring the acknowledgment of his signature thereto on June 23, 1951, placing the same of record in the office of the register of deeds, and in the execution of the contract by him with The Western Contracting Company. The trial court concluded as a matter of law that the plaintiff and defendant had entered into a valid oral contract wherein the defendant was to remove sand from what is known as the garden spot on plaintiff’s land, and create a small lake of from one to three acres in size, to build a road around it and landscape it, for which the defendant was to receive in return the sand therefrom; that the defendant breached the terms of the oral contract, and plaintiff filed the action electing to terminate it, and further concluded there was no consideration given by defendant to plaintiff for the written agreement, and that it was entered into under mutual mistake of fact as to the property covered, as it was intended to cover only the one to three acre lake, and that the agreement was therefore void. The court concluded defendant had no interest in the property in question, and judgment should be entered quieting the title in the plaintiff.
Defendant’s motion for a new trial was overruled and he appeals. Although defendant listed thirteen specifications of error, his argument is based on two propositions, the first being that the trial court erred in overruling his demurrer to the petition, in that plaintiff’s first cause of action was insufficient because he pleaded that the oral agreement between plaintiff and defendant was a license and, therefore, was revocable at the will of the plaintiff, when in fact the agreement was more than a license. It was defendant’s contention that the agreement was a mining lease or a profit a prendre, the same as an oil and gas lease. We find no merit in defendant’s contention. While the petition is quite lengthy and contains irrelevant matter, it clearly states a simple oral contract whereby defendant agreed to dig a lake of from one to three acres on plaintiff’s land, encircle it with a road and landscape it, in consideration for the sand taken therefrom, and that the defendant breached his oral contract by failing to perform, and by entering into a subsequent contract with The Western Contracting Company whereby defendant made it impossible for him to perform. By reason thereof, the contract should be canceled and the defendant ousted from plaintiff’s land. The second cause of action made certain allegations of the first cause of action a part thereof and, in substance, alleged that the defendant fraudulently secured the written agreement on the representations it would be used only for certain purposes while the plaintiff was out of town on a ten-day trip, and that it would be returned to plaintiff when he came back, and that the contract was without consideration, all as hereinbefore summarized in the trial court’s findings, and asked that the contract be declared void for the reasons therein set forth. It would serve no useful purpose for us to set forth in detail the allegations in plaintiff’s petition as contained in the two causes of action. Suffice it to say that we have examined the petition and find it sets forth sufficient facts to constitute a cause of action against defendant.
Defendant contends the petition stated no cause of action based upon fraud. It is his position that the petition failed to allege defendant had no intention of using the memorandum for the purpose of securing a favorable contract with Boeing, which fact was insufficient to state a cause of action in fraud. We cannot agree with defendant’s contention. Plaintiff’s petition in this regard, after alleging the meeting at the union station, and the conversation wherein defendant explained the only purpose for which the agreement would be used reads as follows:
“. . . Plaintiff alleges that all of the statements made by defendant to plaintiff as alleged in the next preceding paragraph were believed and relied upon by the plaintiff and his wife, but that such statements were false and known by the defendant to be false and were made for the purpose of cheating and defrauding the plaintiff, as will hereinafter more fully be made to appear.” (Italics supplied.)
Surely the defendant cannot seriously contend this is an insufficient allegation of fraud. We have no difficulty in holding that this language is entirely adequate to allege fraud against defendant in the execution of the agreement.
Defendant’s second and main contention is that the trial court erred in admitting oral testimony to show agreements, statements and promises regarding the subject matter of the written agreement. He contends it is a general rule of law that whenever an agreement is clear and unambiguous upon its face, parol testimony is not admissible to alter, contradict or change the terms of the contract, and cites authorities to sustain that contention. However, this rule has certain exceptions. In Rice v. Rice, 101 Kan. 20, 165 Pac. 799, we held in a foreclosure suit between the immediate parties to the note and mortgage, parol evidence is always admissible to show a failure of consideration or that the note and mortgage were given merely as accommodation to the payee. In Rartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016, we held that as between the original parties to a written instrument, the rule excluding parol evidence in contradiction of the written agreement is not infringed by proof that the instrument was never delivered, or was delivered to take effect only upon the happening of some future event, and at page 67, we said:
“The plaintiff insists that the evidence offered by the defendant violates the rule that parol testimony is not admissible to contradict a written instrument. We do not understand that tire evidence was offered for the purpose of contradicting the instrument itself, but only for the purpose of showing that it was not in fact delivered, and, therefore, never became a binding contract.”
(See, also, Greenleaf State Bank v. Monteith, 173 Kan. 799, 802, 252 P. 2d 621; Malir v. Maixner, 174 Kan. 26, 28, 254 P. 2d 282, and cases cited therein.) The rule excluding parol evidence in contradiction of a written instrument presupposes the existence of such an agreement. Consequently, between the immediate parties to the instrument, the rule is not infringed by proof of the want of due execution of the instrument by reason of the fact that it was never delivered, or was delivered to take effect only upon the happening of some future event and not to become a binding contract between the parties. (Malir v. Maixner, supra.)
Under the evidence and findings of the court in the instant case, it is disclosed that at the time plaintiff signed the agreement the defendant’s signature did not appear thereon, and it was not delivered to the defendant but to the plaintiff’s son at the suggestion of defendant that he would only use it during the absence of plaintiff if it was necessary to show the Boeing representatives he had a source of sand supply, and that the contract would be returned to plaintiff’s possession upon his return to the city. This did not amount to a delivery of the contract to the defendant which would give him the right to later sign and have the contract acknowledged by himself and placed of record for the purpose of entering into a contract with The Western Contracting Company to take from fifteen to twenty acres of sand from plaintiff’s land. Lack of delivery can be and, of necessity, is often established by parol evidence and the question of what constitutes delivery is largely a matter of intention, the usual test being whether the grantor by his words or acts, or both, manifested” an intention to make the instrument his deed or agreement and place it in the hands of his grantee beyond his control. (Wuester v. Folin, 60 Kan. 334, 337, 56 Pac. 490; Doty v. Barker, 78 Kan. 636, 97 Pac. 964; Sample v. Reed, 130 Kan. 524, 531, 287 Pac. 614; Poteet v. Knappenberger, 139 Kan. 534, 31 P. 2d 1003.) Defendant argues that these cases deal only with deeds and do not deal with bilateral contracts. True, but certainly the same rule applies to written instruments of this type as well as deeds. 32 C. J. S. 937, Evidence, § 977(b)-, reads as follows:
“Delivery of a deed or other written instrument is the final act of'the parties by which the party executing tire instrument puts it into the possession of the other party, both intending thereby to make it operative and binding; but it is not a part of the contract and is not proved by it. While the intent and purpose, thereby to make the instrument effective is generally inferred from the act thus changing the custody, or from the fact that the party lo whom it purports to be executed has it in his possession, this may be explained and rebutted by parol evidence, and declarations of intentions connected with the execution and delivery and the circumstances attending the same may properly come in as part of the res gestae.”
(See, also, 20 Am. Jur. Evidence, §§ 1094, 1095.)
It is clear in this case that the plaintiff did not intend to execute a valid contract such as the instrument in question, 'that it was to be used for only one purpose, i. e., to satisfy prospective customers of the defendant, of a source of sand supply,- and was to be returned to plaintiff. The trial court did not err in admitting the parol testimony.
In conclusion, the findings of fact made by the trial court were supported by substantial, competent evidence. Therefore, under the rule prevailing in this jurisdiction (Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209; Shotzman v. Ward, 172 Kan. 272, 279, 239 P. 2d 935; In re Estate of Jones, 174 Kan. 506, 514, 257 P. 2d 116; In re Estate of Davis, 175 Kan. 107, 259 P. 2d 211; 1 Hatchers Kansas Digest [Rev. Ed.], Appeal and Error, § 507; Wests Kansas Digest, Appeal and Error, § 1010[1]), such findings must be regarded as conclusive and will not be disturbed on appellate review.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action on an insurance policy to recover for the loss of wheat destroyed by fire while binned on plaintiff’s farm.
The action was filed December 17,1952. The cause was submitted with consent of the court on the pleadings and stipulations. Appellant’s answer admitted the first ten paragraphs of the petition. Parts of those paragraphs are contained in the stipulations. In order to avoid needless repetition we shall omit from our summary of the first ten paragraphs of the petition portions therof contained in the stipulations. Other portions of the petition, in subsance, are:
The policy was issued to plaintiff, owner of the grain, on June 17, 1952. The loss occurred July 29, 1952. The policy provided it insured the plaintiff:
“. . . to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind -and quality within a reasonable time after such loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture, nor in any event for more than the interest of the insured. . . .”
The policy also provides:
“It shall be optional with this Company to take all, or any part, of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.”
Proof of loss was made July 30, 1952. Defendant promptly inspected and determined the grain which was destroyed or materially damaged.
In paragraph 11 of the petition plaintiff claimed a balance due on the basis of $2.22 per bushel of wheat, that being the amount for which he would have been able to obtain a loan from the Commodity Credit Corporation had he applied for it. The only portion of the answer we need consider is paragraph 2, which reads:
“2. The defendant denies the allegations made in paragraph 11 of plaintiff’s petition and on the contrary alleges that the correct sum due the plaintiff by reason of the allegations contained in plaintiff’s petition is $5,199.64 and this defendant herewith confesses judgment for said amount.”
In the reply plaintiff denied any new matter set up in defendant’s answer which was inconsistent with plaintiff’s petition.
The only new matter contained in the answer was the above paragraph 2. The parties entered into two stipulations. The first was:
“1. The plaintiff, Ora Lambert, is a resident of Pratt County, Kansas.
“2. The defendant, St. Paul Fire & Marine Insurance Company, is a corporation lawfully organized and existing under and by virtue of the laws of the State of Minnesota. Said defendant has qualified to transact business in Kansas and is engaged in business in Kansas. It has entered its appearance herein by counsel.
“3. Exhibit ‘A’ attached to plaintiff’s petition is a true and correct copy of a policy of insurance issued to plaintiff by the defendant.
“4. On the 29th day of July, 1952, the plaintiff was the owner of 4,480 pounds of maize, 150 bushels of oats and 4,018 bushels 30 pounds of wheat, all of which grain was stored in bins located on plaintiff’s farm.
“5. The defendant has waived all policy defenses and the sole controversy between the parties is the determination of the actual cash value of the property at the time of the loss. The parties have agreed that the cash value of the maize was $116.48 and that the actual cash value of the oats was $135.00. Plaintiff contends drat he is entitled to be paid die amount per bushel which he could have borrowed from the Commodity Credit Corporation, pursuant to the terms of the Agricultural Adjustment Act of 1938 and all amendments thereto. Under the terms of said Act plaintiff was eligible for one of two types of loans:
“(a) A farm storage loan which would have required plaintiff to provide suitable storage facilities meeting regular inspection standards until August of 1953 and thereafter for such length of time as might be prescribed by the Commodity Credit Corporation. On this type loan plaintiff would have received $2.22 a bushel. Plaintiff would have had the right at any time to pay off the loan and use, sell or otherwise dispose of said wheat.
“(b) The second type of loan service which plaintiff was eligible for was a loan against warehouse receipts. He could have delivered the wheat in question for storage and thereafter could have pledged the warehouse receipts as collateral for a loan to the extent of $2.09 per bushel. Plaintiff would have had the right at any time to pay off the loan and use, sell or otherwise dispose of said wheat.
“6. Under the terms of the Agricultural Adjustment Act of 1938 and amendments thereto a loan made upon either of the two bases above outlined would not have subjected the plaintiff to a deficiency judgment upon foreclosure of the collateral.
“7. Plaintiff had not arranged for either type of loan when the loss occurred.
“8. The cash market price for wheat at the point nearest to the location of the grain when the loss occurred was $2.02 per bushel. The reasonable hauling charge for said wheat was 34 per bushel. A sale of said wheat at the nearest market on the day when the loss occurred would have netted the plaintiff $1.99 per bushel.
“9. On June 18, 1952, Frank Sullivan, Commissioner of Insurance for the State of Kansas issued a directive to all insurance companies operating in Kansas in reference to the method of settlement of lossés involved in this case. A true and correct copy of the directive is attached hereto marked Exhibit ‘A.’ ”
In the directive, exhibit “A,” referred to in the last above paragraph, the commissioner advised insurers in this state it had come to his official attention that some insurers were not making adjustments with owners on lost grain on the basis of their filings. That directive pertained to wheat lost in the field before it was harvested and also took into account the duty of a tenant to deliver the landlord’s share to the elevator where the tenant had contracted to do so. It is not factually in point here.
Paragraphs 10 to 13, inclusive, of this first stipulation consist of four letters exchanged between counsel for plaintiff in the instant case and the commissioner of insurance in which the former called the commissioner’s attention to plaintiff’s instant case and also took issue with the commissioner’s directive above mentioned.
We need not burden this record with copies of those letters. In them appellee’s counsel advised the commissioner appellee’s grain had been harvested and binned; they took the same position then as now, namely, that an insurer is liable to the producer of grain in the amount per bushel for which he might' have obtained a government loan. The commissioner, in substance, stated insurance policies such as the instant one existed and had been interpreted by the courts long prior to the government price-fixing program and his opinion was based thereon; that if the insurer undertook to replace the destroyed or damaged grain, which it had the right to do under the terms of the policy, the insurer certainly would not be required to pay the amount the government agreed to loan on the wheat but could go into the market and pay the current market price for replacement grain of like kind; that he believed the policy required the insurer to pay to the insured the market price less the cost of delivery but that this was only his opinion and the interpretation of the policy was a matter for the courts to decide.
Paragraph 14 of the first stipulation reads:
“14. Under the administrative procedures of the Agricultural Adjustment Act of 1938 plaintiff could have substituted wheat of the same quality and quantity for the wheat which was destroyed and would have been eligible to have obtained either type of loan described in number 5 above.”
The supplemental stipulation reads:
“1. The storage facilities owned by the plaintiff were suitable storage facilities to qualify for farm storage facilities under the rules and regulations issued pursuant to the Agricultural Adjustment Act of 1938 and all amendments thereto.”
Thereafter, the supplemental stipulation contains lengthy copies of forms involved in applying for government loans, including copies of such instruments as the producer’s note and supplemental loan agreement and the commodity chattel mortgage.
Under the issue before us we deem it unnecessary to include copies of these forms in the opinion. A provision which probably should be noted is that contained in the supplemental loan agreement which requires the producer, on maturity of the commodity loan note, to pay the note or deliver the grain at his own expense. It provides:
“(e) (i). Upon maturity of the note (i. e., the date specified therein or such earlier date as the Corporation may make written demand for payment), the note shall be satisfied by payment and/or by delivery of the commodity subject to the provisions of this section. If a producer desires to deliver the commodity to the Corporation, he should prior to maturity give the county committee which approved the loan written notice of his intention to deliver. The producer shall bear any expenses incurred in connection with the delivery oí the commodity to the delivery point shown in the delivery instructions issued to him, such delivery point to be, insofar as practicable, the customary shipping point of the producer, or, shall pay to the holder of the note any costs incurred by the holder as a result of such failure to deliver the commodity to the designated delivery point.”
The sole issue before the trial court was the proper measure of damage. It rendered judgment in favor of appellee and assessed the damage at $2.22 per bushel of wheat, without deducting the cost of delivery.
It has been observed the parties stipulated only that appellee was eligible for the two specified types of loan. It was, however, also expressly stipulated he had not arranged for either type of loan. Appellee argues he intended to procure such a loan. The fact he may have intended to apply for one of the two types of loan at some future time, and we do not know which, manifestly would give him no present enforceable right to collect the “pegged” price even from the government itself at the time the wheat was destroyed. Surely his rights against the appellant insurer could be no greater than the rights against the Commodity Credit Corporation. The fact, if it be a fact, that most producers of wheat apply for loans under the Commodity Credit plan does not mean they are required to do so or that they necessarily will do so. Some of them do not. In passing it is interesting to observe if appellee had ever participated in the loan program there is nothing in this record to indicate it. That observation, however, is not of controlling importance now. Succinctly stated, we have here an action for damages by a producer of grain based upon the terms of his insurance contract in which action, for the measure of his damage, he relies on a contract with the government which he does not have.
Whatever this court might hold in the event the government had made a loan to appellee, on which we presently express no view, it is clear that in this case appellee must recover on the contract of insurance without regard to the amount of the loan he could have obtained from the government had it made such a loan.
The cost of delivery manifestly is an element in determining the value of the grain. The parties expressly stipulated tire cost of delivery was three cents per bushel; the market price for wheat at the point nearest the location of the grain when the loss occurred was $2.02 per bushel and the wheat at the nearest market on the day the loss occurred would have netted appellee $1.99 per bushel.
In its memorandum opinion the court stated, “It may be remarked that apparently neither party has considered replacement.” To be sure appellant, the insurer, may have waived its right, under the quoted provisions of the policy, to replace the grain. Assuming it did the question still remains, how much may appellee collect as damages under the policy? The policy provides the appellee is insured,
“. . . to the extent of the actual cash value-oí the property at the time of tire loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss. . . .” (Our Italics.)
Surely there could be no great difficulty, if any, in ascertaining what it would have cost the insurer to replace the grain within a reasonable time after the loss.
It is possible the parties intended by their stipulation that the amount at which the insurer might have purchased such grain was the same amount as they stipulated appellee could have obtained by selling his grain at the time. We, however, cannot assume that fact. It may be the appellant insurer would have been obliged to pay more for grain of like character than would have been paid for it had appellee sold it at the elevator. The evidence is not clear on that subject and we shall not speculate concerning it.
The judgment is reversed and the cause is remanded with directions to try the action in harmony with the views herein expressed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action for damages for the alleged breach of contract of employment. Issues were joined by appropriate pleadings, and at the trial of the action plaintiff moved for judgment in his favor on the pleadings and opening statement of defendants’ counsel, and from the order of the trial court sustaining the motion and entering judgment thereon in favor of the plaintiff, defendants appeal.
Appellee Raymond J. Hengel will be hereinafter referred to as plaintiff, and appellants K. W. Thompson and Andrew Thompson as defendants.
The petition alleged in substance that defendants were architects, and plaintiff was a student majoring in architectural engineering. On May 28, 1951, plaintiff and defendants entered into a parol contract of employment for the summer or building season of 1951 at an agreed monthly wage as a supervisor and design engineer. At that time it was ascertained that an additional semester of school was required in order to fulfill requirements for plaintiff’s graduation as an engineer and, as an additional consideration, defendants orally agreed to pay plaintiff $200 per month for a period of approximately four months while plaintiff attended either the fall 1951 or spring 1952 semesters in order to graduate. It was also ascertained that plaintiff would have time during his final semester to devote to practical work other than school, and it was agreed that defendants would supply plaintiff with drafting and other engineering work of sufficient quantity so as not to interfere with his studies, and plaintiff would obtain practice in analyzing structures and perform design engineering which would prove beneficial, and provide experience for him. Plaintiff accepted the offer on May 31, 1951, and entered the employment of defendants under the contract; that said employment continued past the starting of the fall or first school semester of the year 1951, and continued until November 20, 1951, at which time plaintiff was discharged by defendants. Plaintiff alleged that the parol contract of employment had been breached by the defendants without fault on his part, and sought damages in the sum of $800.
Defendants’ answer denied generally all the allegations of the plaintiff’s petition, and alleged in substance that plaintiff was employed by defendants as a design engineer, construction supervisor and architect inspector on a monthly salary, and that such employment was subject to plaintiff’s performing satisfactory work, and that such work was to be done at defendants’ satisfaction. The parties agreed that if plaintiff performed satisfactory work for defendants, the defendants would pay him the sum of $200 a month for a period of four months while plaintiff completed one semester of school, and while doing so plaintiff was to perform drafting and engineering work for defendants; that plaintiff commenced work for defendants June 1, 1951, and continued in their employ until November 21, 1951, at which time the plaintiff was discharged by defendants for the reason that his work was unsatisfactory to the defendants in that he failed and refused to construct buildings upon which he was placed as supervisor, according to the plans and specifications and according to instructions from the defendants; that his work showed neglect and inattention and caused serious damage to the defendants; that as an architect inspector for the defendants, plaintiff failed and refused to see that buildings were constructed according to plans and specifications and, by his neglect and inattention, allowed the contractor to perform much of the construction work, contrary to the plans and specifications, and caused the defendants serious financial loss and tended to destroy confidence in the defendants’ clients in the ability of the defendants; and without any approval or permission, took pictures of preliminary sketches and prospectives drawn in the office of the defendants for promotion work for prospective clients and showed such photographs to other persons to the damage and detriment of defendants; that during all of the time the plaintiff was in defendants’ employ, he was paid his salary at the times and in the amounts provided in the contract of-employment; and at the time the plaintiff was discharged he was paid by defendants all money plaintiff was entitled to under said contract. Plaintiff’s reply was a general denial.
Defendants’ opening statement was brief. It was a mere outline of anticipated proof, and did not contain a complete recital of all the facts alleged in their answer. It detailed some of the alleged acts of omission and commission on the part of the plaintiff indicating his failure and refusal to comply with the architectural drawings, specifications and instructions of the defendants at the time he was supervisor of construction, and his failure and refusal to see that the contractors did the construction work according to plans and specifications prepared by defendants on the work on which plaintiff was acting as inspector, and that these failures on the part of plaintiff caused considerable damage and expense to defendants, and by reason thereof the plaintiff was discharged. In substance, the opening statement concluded that plaintiff breached his contract and he was discharged by the defendants for the reason that he failed to comply with defendants’ instructions and to perform his work as directed, all to the damage and financial loss to the defendants, and that his discharge was justified.
Defendants contend that the court erred in sustaining plaintiff’s motion for judgment based solely upon the pleadings and opening statement of defendants’ counsel. We agree the ruling of the court was erroneous.
Issues were framed by the pleadings, and the defense alleged was not waived or shown to be groundless by the opening statement. Entering judgment on an opening statement is a summary but ordinarily not a satisfactory approved method of settling disputed issues of fact. A litigant’s cause should not be concluded by an incomplete or ambiguous statement made to the court or jury as to the proof he will offer at the trial.
In Stewart v. Rogers, 71 Kan. 53, 80 Pac. 58, we held:
“The statute authorizing a party upon whom rests the burden of the issues briefly to state his case and the evidence by which he expects to support it is permissive only. He may or may not make such statement, at his own election. The issues are made not by such statements but by the pleadings. If a party elect to make such statement, and there be a substantial variance between it and his pleading, it is not a sufficient ground upon which to base a motion for judgment in favor of the opposite party, unless such statement in effect admits facts which preclude the party’s right of action or defense as stated in his pleading.”
It is the general rule of law in this state that opening statements of counsel are generally no more than outlines of anticipated proof, and not intended as a complete recital of the facts to be produced on contested issues. Judgment should not be entered on such state ments unless they are understandingly and completely made and the facts so stated absolutely preclude a recovery or a proposed defense. Where there is doubt or ambiguity in the opening statement of counsel upon which judgment is asked, the counsel who makes it is entitled to the presumption that he did not intend to make an admission that would be fatal to his case. (Smith v. Insurance Co., 108 Kan. 572, 196 Pac. 612; Caylor v. Casto, 137 Kan. 816, 22 P. 2d 417.) The pleadings and not the statements of counsel, make the issues, and no matter how deficient a statement may be from an artistic standpoint, or what its shortcomings may be in the estimation of the critical attorney on the other side, the court is not authorized to end the case because of them unless some fact be clearly stated or some admission be clearly made which evidence relevant under the pleadings cannot cure, and which, therefore, necessarily and absolutely precludes recovery. (Brashear v. Rabenstein, 71 Kan. 455, 80 Pac. 950; Caylor v. Casto, supra; Rodgers v. Crum, 168 Kan. 668, 673, 215 P. 2d 190; Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899; In re Estate of Modlin, 172 Kan. 428, 437, 241 P. 2d 692; West’s Kansas Digest, Trial, § 109; 5 Hatcher’s Kansas Digest [Rev. Ed.], Trial, § 69%. See annotation, 83 A. L. R. 221.)
This court on occasion has approved or directed judgment on the pleading of a litigant and the opening statement of his counsel, but we have said such summary disposition of an action should only be made when it is clear that on no theory of the facts pleaded and stated can the pleader’s cause or defense prevail. (Taylor v. Coleman Lamp & Stove Co., 141 Kan. 168, 170, 40 P. 2d 457.)
An examination of the mentioned pleadings and opening statement by defendants’ counsel reveals that at least some of the issues presented by the pleadings were (1) what were the terms and conditions of the contract of employment; (2) did the plaintiff perform his part of the contract, and (3) was the termination of the contract by the defendants wrongful or justified? It is clear that defendants’ answer stated a valid defense to the plaintiff’s claim, and our search of the record fails to disclose where defendants made any statement or admission which necessarily and absolutely precluded their defense or compelled a judgment for plaintiff. It follows the judgment must be reversed and the case remanded with instructions to the trial court to set aside the judgment rendered and to grant a new trial.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This is an action to reform a written cattle-feeding contract to conform to an alleged prior oral agreement between the parties, and to recover judgment for an alleged balance due under the contract as reformed. As a basis for reformation plaintiff alternatively alleges mutual mistake of the parties and fraud.
Defendant has appealed from an order overruling its demurrer to the amended petition.
The demurrer contains three paragraphs, the first being directed to the allegations of fraud, the second to those of mutual mistake, while the third is directed to the entire amended petition on the grounds such pleading contains a confusion of theories and does not state a cause of action. The order does not indicate upon what ground or grounds the demurrer was overruled, but we are advised that it was considered as a general demurrer which challenged the sufficiency of the entire amended petition to state a cause of action upon either theory advanced by plaintiff. Under the general rule, therefore, if the amended petition states a cause of action on any theory the demurrer was properly overruled. (Allen County State Bank v. Wilson, 140 Kan. 577, 579, 37 P. 2d 1002, and Marchant v. Layton, 173 Kan. 341, 245 P. 2d 973.)
This is a companion case to Myers v. Fleetwood Farms, Inc. (case No. 39,417), 176 Kan. 508, 271 P. 2d 257, this day decided, and, with two exceptions, the facts and issues are substantially identical. The exceptions are that in the instant case the written contract was mailed to plaintiff for his signature and plaintiffs grounds for relief are pleaded in the alternative.
Under the circumstances we consider it unnecessary to set out the allegations of the amended petition and the contentions of the parties. All have been examined and given careful consideration, but, in a general way, the decision in the companion case is controlling on the questions here involved.
In our opinion the allegations of the amended petition are sufficient to state a cause of action, and the order of the lower court overruling defendant’s demurrer thereto is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This action was brought by a dependent to recover compensation for the death of a workman under the provisions of the workmen’s compensation act. The trial court made findings of fact and allowed compensation. Respondent brings the case here and contends there was no evidence justifying a finding that an accident occurred or that decedent’s death was the result of an accident arising out of and in the course of his employment.
Under G. S. 1949, 44-556, appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether the record contains any evidence which tends to support the judgement rendered, and in so considering, this court is required to view all testimony in the light most favorable to the prevailing party below. If when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed; being conscious at all times of the fact that this court has little concern with disputed questions of fact in ordinary lawsuits and none whatever in workmen’s compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence would justify the trial court’s finding or conclusion of fact. (Rothman v. Globe Construction Co., 171 Kan. 572, 235 P. 2d 981; Burns v. Topeka Fence Erectors, 174 Kan. 136, 254 P. 2d 285; Andrews v. Bechtel Construction Co., 175 Kan. 885, 267 P. 2d 469; Shue v. LaGesse, 173 Kan. 309, 245 P. 2d 966; Addington v. Hall, 160 Kan. 268, 160 P. 2d 649; Woodring v. United Sash & Door Co., 152 Kan. 413, 417, 103 P. 2d 837; Johnson v. Arma Elevator Co., 146 Kan. 965, 967, 73 P. 2d 1018; Bull v. Patti Const. Co., 152 Kan. 618, 628, 106 P. 2d 690; Leamos v. Wilson & Co., 136 Kan. 613, 616-617, 16 P. 2d 490; Shay v. Hill, 133 Kan. 157, 158, 299 Pac. 263; Vocke v. Eagle-Picher Co., 168 Kan. 708, 709, 215 P. 2d 185; 5 Hatcher’s Kansas Digest [Rev. Ed.], Workmen’s Compensation, § 153; West’s Kansas Digest, Workmen’s Compensation, § 1940 and § 1969.)
It is also a well-established rule in this state that in a compensation case it is not required that the claimant shall establish his right to an award by direct evidence alone, or that he produce an eyewitness to the accident. Circumstantial evidence may be used to establish the claim, and it is not necessary that the circumstantial evidence should rise to that degree of certainty as to exclude every reasonable conclusion other than that found by the trial court. (Supica v. Armour & Co., 131 Kan. 756, 293 Pac. 483; Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820; Evans v. Western Terra Cotta Co., 145 Kan. 924, 67 P. 2d 426; Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P. 2d 841; Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793.)
With these well-established rules of law in mind, we will consider respondents’ contention whether there is sufficient evidence to sustain the trial court’s findings that the death of claimant’s husband was the result of an accident arising out of and in the course of his employment. It is admitted that decedent was employed by respondent as a tool dresser on a drilling operation. A review of the record discloses that his working hours were from 3:30 to 11:30 p. m., and on November 10, 1951, as usual he drove his caito work in company with Mr. Ritchie, a driller who was the only one working with him on the well. He was apparently normal and healthy and acted just as he had on previous days. On the lease there was an electric power plant used for lighting purposes. This plant was located about fifteen feet from the tool house where the workmen spent their time when not actually engaged in drilling. This power plant was operated by a diésel engine which required cranking to start the motor. Trouble and difficulty had been incurred numerous times in cranking and starting the motor, and on such occasions it took quite a bit of exertion, particularly in cold weather. On the evening in question, the motor was cold and had not been in operation since the preceding night. It was part of decedent’s duty as a tool dresser to start the motor in the light plant. About dusk that evening he went to the power plant and started the diesel engine or motor by cranking it, after which he came back to the tool house and had his supper consisting of chicken noodle soup which had been heating on the stove in the tool house. Shortly thereafter he became very ill. His fellow workman testified that about thirty minutes after decedent had eaten the soup he looked sick. His color was bad and he broke out in a sweat. As tire evening progressed, his color became worse. Big drops of sweat were standing all over him. At about 10:30 that evening, decedent became so ill that he was compelled to leave the job and go to the hospital at Russell where he was admitted at 11 p. m. He was immediately examined and treated by Doctors Pettijohn and Schulz, practicing physicians at Russell, who testified he was in a very acute, critical condition. Doctor Schulz stated that he was suffering from extreme shock, had cold, clammy, sweaty skin, was pale and seriously ill; blood pressure unobtainable, heart tones were very faint, and that he looked like he was going to die immediately. Doctors Pettijohn and Schulz were of the opinion that the decedent was suffering from a peptic ulcer and a coronary occlusion or bad heart, and because of his critical condition the doctors were unable to operate upon the decedent for his ruptured or perforated ulcer, although that would have been the proper treatment had his condition warranted such. The evidence disclosed that the immediate cause of the decedent’s death on December 9, 1951, was infection and complications resulting from a perforated or ruptured duodenal ulcer. Electrocardiograms were taken, and other treatment administered by the mentioned doctors in the hospital at Russell until November 24, 1951, at which time he was removed to the Veteran’s Administration Hospital in Wichita, where he remained until his death on December 9.
Mrs. Silvers testified that she was called to the bedside of her husband the night he was admitted, and he was broken out with perspiration on his hands and face. He had a peculiar clay color. She asked him why he had gone to work if he didn’t feel well, and he answered he was all right until he cranked that blankety-blank engine to start the light plant, and he kept repeating this. He said he had trouble starting the motor that night. The decedent also had informed the doctors upon his admission to the hospital that his first symptoms started after he cranked the motor.
Doctor Pettijohn testified that he viewed the same diesel engine cranked and started by the decedent. The doctor himself attempted to start the same engine and he was satisfied with the amount of exertion required in starting the motor. Both doctors testified that in their opinion the exertion of cranking the motor could have caused and resulted in the physical condition in which they found the decedent the night of his admission to the hospital, and that the exertion expended in cranking and starting such motor was sufficient to precipitate, or result in the rupture or perforation of an ulcer and coronary occlusion. The respondents’ own doctor testified on cross examination that intra-abdominal pressure caused by the exertion in cranking a motor of the kind explained to him was sufficient to cause the perforation of an ulcer.
Without further detailing the evidence contained in the record, we are of the opinion that the facts and circumstances of the case amply support the trial court’s conclusion of fact that the injury resulting in decedent’s death was due to an accident arising out of and in the course of his employment with respondent. It follows that the judgment of the lower court must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
This was an action brought by the plaintiff to foreclose a subcontractor’s mechanic’s lien against real estate owned by the defendants Dunn. Certain defendants filed cross-petitions seeking foreclosure of their subcontractor’s mechanic’s liens. From a judgment foreclosing the liens of the plaintiff and two of the defendants later mentioned the defendants Dunn appeal.
Insofar as the cross-petition of The George W. Ultch Lumber Company is concerned we note that it was there alleged that the cross-petitioner was known to the public as above named and as Stock Yards Cash and Carry Lumber Company and that its lien was filed in the latter name, and it prayed for an ordef authorizing it to amend its lien statement and for foreclosure of its lien.
Neither the abstract nor the counter-abstract disclose that the petition of the plaintiff or the cross-petitions of defendants, The George W. Ultch Lumber Company and Charles W. Callison, were ever attacked by motion or demurrer, but they do disclose that in the answers thereto by defendants Dunn it was alleged that no lien statement sufficient to create a lien was ever filed in time and manner as required by law. It may be said that at the trial there was no contention but that the three claimants above mentioned had furnished the labor and materials which were the basis of their alleged liens.
During the course of the trial defendants Dunn objected to the plaintiff’s lien statement as not being an itemized statement whereupon plaintiff moved for permission to amend to conform to the proof as to the items furnished. A little later in connection with the proof of the claim of The George W. Ultch Lumber Company, objection was made to the lien statement as being made by Stock Yards Cash and Carry Lumber Company, whereupon a motion to amend under the name of The George W. Ultch Lumber Company was made. Both of the above motions were allowed. In connection with the claim of Callison the objection was only that the statement was not sufficiently itemized — there was no request for amendment. Later the trial court made findings of fact which need not be noticed, and rendered judgment finding the amounts due the several claimants and ordering foreclosure of the liens.
Thereafter the defendants Dunn filed their motion for a new trial on grounds which included that the trial court erred in awarding liens to the three claimants named above for the reason no valid lien statements had been filed, and in permitting the amendments above mentioned. This motion was denied and defendants Dunn served a notice of appeal from the ruling of the trial court in permitting The George W, Ultch Lumber Company to amend its lien statement, in refusing to dismiss the plaintiff’s claim because no itemized statement was attached and in permitting the amendment of his lien statement, in refusing to dismiss the claim of Callison be cause of failure to file an itemized lien statement, and from the judgments of foreclosure rendered, and the specification of errors is in accordance. There was no appeal from the ruling on the motion for a new trial,- and, if otherwise permissible, there is no specification of error pertaining to the ruling on that motion.
We do not find it necessary to treat at any length the question of. amendment of mechanic’s lien statements as authorized under G. S. 1949, 60-1405, a question considered at some length in our recent decision in Thomasson v. Kirkpatrick, 174 Kan. 52, 254 P. 2d 329, where many of our former decisions are cited and reviewed, for the error, if any, and. that is not conceded, was' a trial error. Although the question of amendment was called to the court’s attention on the motion for a new trial, no appeal was taken from the ruling denying the motion and nothing is now presented for review. See Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, syl. No. 2, 291 Pac. 935, and Skaggs v. Callabresi, 145 Kan. 739, syl. No. 2, 67 P. 2d 566.
Insofar as the Callison claim is concerned, appellants made the contention that no itemized statement was attached to his lien statement, and that no attempt to amend was made. It is true no amendment was made. It is the fact, however, that attached to Callison’s lien statement was an itemized statement showing the contract price was $1,600; that extra colored fixtures were furnished at the request of the owner amounting to $157.10; that $693.84 had been paid and that the amount due was $1,063.26. The trial court gave judgment for the latter amount. Appellants’ argument is that a lien statement which does not have an itemized statement of the account is not good. They do not argue the question generally and cite no specific authorities except to say “See the authorities hereinafter cited.” Many of those authorities treat the matter of amendment, and none of them reach the precise point now under discussion. The instant case comes squarely within the rule laid down in Lumber Co. v. McCurley, 84 Kan. 751, 115 Pac. 590, where it was held:
“A subcontractor’s lien statement for material furnished and labor performed under a completed contract for a stipulated gross price is sufficiently itemized which gives the contract price, and extra items stated separately.” (Syl. No. 2.)
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is whether the trial court erred in quashing service of process.
briefly stated the plaintiff alleged in its petition that it is a corporation organized under the laws of the state of Kansas with its principal place of business in Topeka, and that each of the defendant corporations is a corporation organized under the laws of another state setting forth its principal office in the other state and that each was duly authorized to do business in the state of Kansas and by virtue of G. S. 1949, 17-501 had filed its written consent with the secretary of state for the state of Kansas that service of process could be had on the secretary of state, and that each defendant corporation had a place of business in Topeka; that the defendants maintained cold storage plants and that plaintiff had stored certain food products therein and through alleged negligence of the defendants set out in detail in the petition plaintiff’s products were destroyed for which it sought damages.
As the situation with reference to each defendant is the same, we shall hereafter refer to them as one defendant in stating the facts.
Shortly after the petition was filed plaintiff filed a praecipe directing the clerk of the court to issue summons against the defendant by serving the secretary of state, directed to the sheriff of Shawnee county and returnable according to law. Thereafter a summons was issued directed to the sheriff of Shawnee county commanding him to notify the defendant by serving the secretary of state that it had been sued by the plaintiff and unless it answered by a stated date the petition would be taken as true and judgment rendered accordingly. Within time the sheriff filed his return showing receipt of the summons and a $2.50 check and served the same by delivering a true and certified copy of the summons and $2.50 check “to the within named (defendant) by serving Paul R. Shanahan, Secretary of State, State of Kansas, personally” on a stated date.
The record also discloses that on the same date the above summons was issued, a second summons of identical form was issued. Just how the secretary of state received the summons is not disclosed, but shortly thereafter he made a return thereon showing that he served it by forwarding a true copy by registered mail to the secretary of the corporation (at the address of each corporation alleged in the petition to be the principal office of the defendant corporation).
After returns of the summonses each defendant filed identical motions that the court quash the pretended service of summons for four reasons: (1) The summons was not directed to the secretary of state; (2) the summons was not forthwith forwarded by the clerk of the court to the secretary of state; (3) the secretary of state was not authorized to serve summons on the defendant nor to make return of service thereof on the defendant; and (4) the sheriff of Shawnee county was not authorized to procure service of summons on the defendant by serving the secretary of state nor to make return of service thereof on the defendant.
The trial court heard the motions to quash and sustained them generally, the journal entry not disclosing that reliance was placed on any particular ground urged. In due time the plaintiff perfected its appeal.
By reason of the facts disclosed by the record, it seems advisable to limit our consideration of the grounds of the motions to this extent. As to ground 1, it is true that neither summons was directed to the secretary of state. As to ground 2, the record does not disclose how the second summonses above mentioned reached the secretary of state — in any event they were not directed to him and without discussion it may be said the secretary of state was not authorized to serve or make return of a summons not directed to him. We therefore shall discuss only the fourth ground that the sheriff was not authorized to serve summonses upon the defendants by serving the secretary of state, nor to make return of service.
Both appellant and appellees recognize, and do not contend otherwise, that the rule recently stated in Freeman v. Keltner, 175 Kan. 37, syl. No. 8, 259 P. 2d 228, is that the various methods for service of process on a foreign corporation are cumulative and the plaintiff may select any one of them. See, also, G. S. 1949, 17-510 to the same effect. In a summary way, it may be said that appellant contends the service in the instant case was sufficient ■ under G. S. 1953 Supp., 17-501, while appellees contend that service was attempted under G. S. 1949, 17-504, and did not comply with the requirements of that section. Although we have had numerous appeals pertaining to sufficiency of service of process against a foreign corporation authorized to do business in this state, no decision of this court is called to our attention nor does our research disclose any where the precise point here involved has been considered. In view of the issue it is not necessary that we discuss at any length the provisions of the code of civil procedure with reference to service of process for generally spealdng such provisions are not in question here. In the interest of brevity, we shall refer to the above mentioned statutes and others to be found in the General Statutes of 1949 only by chapter and section number.
Insofar as pertinent here it is provided by 17-501 that:
“Any corporation organized under the laws of any other state . . . seeking to do business in this state, shall make application to the state charter board . . . Such application shall set forth: . . . (8) The written consent of the corporation, irrevocable, that actions may be commenced against it in the proper court of any county in this state in which a cause of action may arise or in which the plaintiff may reside by the service of process on the secretary of state, and stipulating and agreeing that such service shall be taken and held, in all courts, to be as valid and binding as if due service had been made upon the presideiit and secretary of the corporation . . .” (Emphasis supplied.)
Insofar as pertinent here it is provided by 17-504 that:
“An action against a corporation organized under the laws of any other state . . . and doing business in this state, may be brought in the county where the cause of action arose or in which the plaintiff may reside. The summons shall be directed to the secretary of state . . . Said summons shall be forthwith forwarded by the clerk of the court to the secretary of state, who shall immediately forward a copy thereof to the secretary of the corporation sued; and thereupon the secretary of state shall make return of said summons to the court whence it issued, showing the date of its receipt by him, the date of forwarding such copy, the name and address of the person to whom he forwarded said copy, and the costs for service and return thereof, which in each case shall be two dollars and fifty cents. Such return shall be under his hand and seal of office, and shall have the same force and effect as a due and sufficient return made by the sheriff on process directed to him . . .” (Emphasis supplied.)
For the reason the check for $2.50 is later made a part of appellees’ contention we note that under 17-221 treating generally with capitalization and other fees of corporations it is provided in subdivision (6) that:
“. . . When an action is brought in any court of this state against a foreign corporation doing business in this state, the plaintiff in the action shall deposit with the clerk of such court a fee of two dollars and fifty cents to be taxed as costs in the case and called the service of process fee, which fee shall be sent to the secretary of state by the clerk of such court along with summons in such case.” (Emphasis supplied.)
A mere reading of the petition discloses that the residence of the plaintiff is in Shawnee county and that the cause of action arose in that county and that each of the defendant corporations is a corporation organized under the laws of another state and authorized to do business in this state and therefore each is within the purview of both 17-501 and 17-504. The petition further discloses that each defendant corporation gave written consent that an action might be commenced against it in a proper court by the service of process on the secretary of state, such service to be as valid and binding as if due service had been made upon its president and secretary, and in this aspect, the situation is within the purview of 17-501.
So far as pertinent to the question before us is concerned the essential difference in the two sections is that under 17-501 the corporation consents that in an action against it service of process may be had on the secretary of state, without doubt referring to a summons directed to the sheriff of the county in which the action is commenced and of the kind referred to in 60-2501, while under 17-504 the summons is directed to the secretary of state to be served by him in the manner provided. The two methods are different and one does not supplement the other — one or the other, but not both, may be followed. In other words, they are cumulative methods.
Appellees argue that appellant did not attempt to invoke the method of service provided by 17-501, but did invoke that provided by 17-504, and contend that this becomes apparent when it is noted that a check in the amount of $2.50 was delivered to the secretary of state as required by 17-504. We cannot agree. The praecipe for summons requested issuance of a summons, against the defendants (appellees) by serving the secretary of state, directed to the sheriff of Shawnee County, a request in accord with 17-501 and not in accord with 17-504. Such a summons was issued and was so served as the sheriff’s return shows. The fact that a check for $2.50 accompanied the summons cannot be interpreted as an election to proceed under 17-504 for by reason of 17-221 quoted above such a fee must be deposited with the clerk of court and sent to the secretary of state with the summons in such case.
The parties direct our attention to various cases treating sufficiency of summons or the service thereof in instances where the factual situation is not comparable to that under discussion. These cases have been examined but will not be discussed. The appellant, however, places its main reliance on Freeman v. Keltner, supra, while appellees place their reliance on Butler County Comm'rs v. Black, Sivalls & Bryson, Inc,, 169 Kan. 225, 217 P. 2d 1070. In each of the above cases the plaintiff did not seek to obtain service under 17-501, that statute is not mentioned, and in that aspect it may hardly be said either opinion controls the question before us.
In our opinion the Keltner case is not decisive here. While there is some reference in the opinion to service of summons on a foreign corporation and it is held that the various statutory methods for obtaining service are cumulative, the question was whether the service had was upon a “managing agent” of a defendant corporation under G. S. 1949, 60-2524. The opinion does not refer to the sections under consideration here.
In the Black case the question for decision was the sufficiency of the summons issued, and no question was raised that the plaintiff was proceeding under any section other than 17-504. It is true it was said in the opinion that jurisdiction over the person of the defendant can be acquired only by the issuance of process in the manner prescribed by the statute or by voluntary appearance and this statutory method is exclusive of any other method, but that language is not to be read apart from the whole context of the opinion and as though the service may be obtained only under 17-504. To so read that opinion is to ignore the provisions of 17-510 and our many decisions to the effect that methods of service upon a foreign corporation are cumulative. See the short analysis of the last mentioned opinion made in Groat v. Shallow Water Refining Co., 173 Kan. 346, 352, 245 P. 2d 1208.
In Betterment Co. v. Reeves, 73 Kan. 107, 114, 84 Pac. 560, it was said that: “Statutes which provide for service of process on foreign corporations should be liberally construed for the accomplishment of the purpose intended, namely, that of bringing such persons into court. They are permitted to enter the state by comity only, and in the methods of subjecting them to the jurisdiction of the courts they cannot insist upon a technical or strict construction in their favor.” In Freeman v. Keltner, supra, the above was quoted approvingly.
In the case before us each of the appellee corporations has filed written consents that actions could be commenced against it by service of process on the secretary of state. A résumé of the record discloses that the first summonses above were issued in accordance with the only praecipes filed, were directed to the sheriff of Shawnee county for the appellee defendants by serving the secretary of state and were properly returned by the sheriff showing such service, all in accord with 17-501, and that the second summonses were not issued in accordance with the only praecipes filed, were not directed to the secretary of state who attempted to serve them in the manner stated in his return and in form provided by 17-504 and in legal effect were nullities.
In our judgment the first summonses were sufficient in law and the appellee defendants were properly served with process, and the trial court was in error in sustaining the motions of the appellee defendants to quash such service of process. Its rulings and judgments are reversed and set aside and the cause remanded with instructions to deny the motions.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action in quo warranto brought by the state on the relation of the attorney general to determine the boundaries of Lost Springs rural high-school district M and D No. 2 of Marion county and the boundaries of Herington school district No. 113 of Dickinson county and to oust the Lost Springs rural high-school district from the exercise of power to levy taxes over certain territory. The trial court made findings of fact and conclusions of law and rendered judgment in harmony with plaintiff’s petition. The Lost Springs rural high school and the county superintendent of public instruction of Marion county have appealed.
The pertinent facts may be summarized as follows:
The Lost Springs rural high school is located at Lost Springs in Marion county about two miles south of an east and west line which forms the northern boundary of Marion county and the southern line of Dickinson county. About 28 sections of the area composing the Lost Springs rural high-school district are in Marion county but prior to April 1, 1951, its territory included 3 sections of land in common-school district No. 90 and 4 sections of land in common-school district No. 114, both of Dickinson county, which lies directly north of the south boundary line of that county. Adjoining these common-school districts in Dickinson county is school district No. 113 of Dickinson county which includes the city of Herington, a city of the second class. Its schools function under laws pertaining to boards of education of cities of the second class. It operates an accredited high school and also grade schools.
This case involves § 10, Ch. 396, Laws of 1951, effective April 1, 1951, which reads:
“Every common-school district that was not maintaining on November 1, 1950, and which has not, for three school years immediately preceding September 1, 1950, maintained a school within its boundaries, shall be disorganized as of luly 1, 1951. The county superintendent having jurisdiction over any such district shall, immediately upon this act becoming effective, issue an order declaring such district disorganized as of luly 1, 1951. In addition to giving notice of such order in the manner provided by law, the county superintendent shall send a copy of this section to each officer of the district within three (3) days after the issuance of such order. Upon such disorganization the county superintendent of' the county in which such district is located, and in the case of joint districts, the county superintendents of all counties in which any part of such district is located, shall attach, in the manner hereinafter provided, the territory of such district to an adjoining common or city school district or districts which are maintaining a school or to the district where the majority of the pupils of said disorganized district were attending school on November 1, 1950. At any time prior to July 1, 1951, an election may he held in such district for the purpose of designating the district or districts to which the electors desire the territory of such district to be attached, and if such election be had, the cleric of the board shall notify the county superintendent or superintendents of the action taken. Upon receipt of such notice such county superintendent or superintendents shall issue an order or orders attaching the territory of such district to the district or districts in accordance with the election. If no such designation by election be made by the electors of such district before July 1, 1951, such county superintendent or superintendents shall call and hold a public hearing for the purpose of determining to which district or districts the territory of such disorganized district shall be attached. Within ten days after such hearing and prior to August 15, 1951, such county superintendent or superintendents shall issue an order or orders attaching the territory of such disorganized district to another district or districts in such manner as to comply, as nearly as practicable, with the wishes of the majority of the electors in the various portions of the disorganized district, having due regard for the educational interests of the residents thereof. The selection of the district or districts to which the territory of such disorganized district shall be attached, whether by election in the disorganized district or by the determination of the county superintendent or superintendents, shall be restricted to an adjoining common or city school district or districts maintaining a school or to the district where a majority of the pupils of the disorganized district was attending school on November 1, 1950. In the event a county superintendent shall fail or refuse to issue the order disorganizing any such district, or to attach the territory of any such district to another district or districts prior to August 15, 1951, the state superintendent shall issue such orders of disorganization and attachment as may be necessary to carry out tire provisions of this section.”
Amended by Laws of 1953, Ch. 319, Sec. 2, now 1953 Supp. G. S. 1949, 72-831.
On April 1,1951, common-school districts No. 90 and 114 of Dickinson county had not for more than 3 years immediately preceding September 1, 1950, maintained a school within their respective boundaries and were not maintaining such a school on that date. On April 9, 1951, Frank Correll, county superintendent of public instruction of Dickinson county, issued an order disorganizing common-school districts No. 90 and 114 of Dickinson county under the provisions of the statute just quoted, and gave the notices re quired by statute. On May 18, 1951, the school board of common-school district No. 90 of Dickinson county had a meeting at which all members attended and called a special election of the electors of the common-school district to designate to what district or districts the territory of such district should be attached, such election to be held at the schoolhouse in the district on June 4, 1951, at 2:00 o’clock p. m. The required notices were duly published; the meeting was held, and a majority of the electors voted to have the territory of their district attached to school district No. 113 ,of Dickinson county. Like action was taken in common-school district No. 114 with a like result. The clerks of these respective common-school districts notified the county superintendent of public instruction of Dickinson county of the result of said election. On June 26, 1951, the county superintendent of public instruction of Dickinson county issued an order attaching to Herington school district No. 113 of Dickinson county real estate which was formerly within common-school districts No. 90 and 114. Notices were duly posted in the respective districts and sent to the clerks of the district boards and copies were sent to the state superintendent of public instruction.
The county superintendent of public instruction of Marion county certified to the county clerk of Dickinson county to levy a tax for operation and maintenance of Lost Springs rural high school M and D No. 2 upon all the land that district had previously had in the common-school districts No. 90 and 114 in Dickinson county. The county superintendent of public instruction of Dickinson county certified the same identical property to the county clerk of Dickinson county upon which to levy a tax for operation and maintenance of the Herington school district No. 113 of Dickinson county. On July 1, 1951, the Herington school district No. 113 of Dickinson county took physical possession and control of the property of common-school districts No. 90 and 114.
On June 27, 1951, a petition signed by voters resident in the territory overlapped (as to taxes claimed by the two districts) was presented to the county superintendents of Marion and Dickinson county asking for the “detachment” of such overlapped territory from the rural high-school district. The usual local hearing on the petition took place, the county superintendents were divided in decision, and an appeal followed to the state superintendent. He held a public hearing on the matter and on October 22, 1951, made a formal decision from which we quote as follows:
“Section 10, Chapter 396, Session of 1951, is regarded as fully controlling the disposal of all the territory of the two districts disorganized, No. 90 and No. 114. The procedure laid down in that section was accurately followed and the territory of these districts is now a part of the school territory of the city of Herington.”
As to “detaching” the territory from Lost Springs rural high-school district to the Herington school district No. 113 of Dickinson county the state superintendent concluded that no statute gave him authority to make an order detaching or transferring the property.
This decision is helpful here for two things: first, it held that all of the territory of the two districts of No. 90 and 114 in Dickinson county is now a part of the school territory of the Herington school district No. 113 in Dickinson county; and second, it declined to make an order for detachment or transfer of the territory of the Lost Springs rural high-school district to the Herington school district No. 113 of Dickinson county for the simple reason that the legislature had not given the state superintendent authority to make such a detachment or transfer. We note that the legislature of 1953, Ch. 319, § 2, amending § 10 of Ch. 396 of the Laws of 1951 did give the state superintendent that authority but this was too late to be applicable here.
Following the decision of the state superintendent of October 22, 1951, this action was filed by the State upon the relation of the Attorney General in Dickinson county. Honorable James P. Coleman, presiding judge of the district court of Dickinson county, filed his disqualification to sit in the trial of the case and Honorable Marvin O. Rrummett, judge of the district court of the 12th judicial district, was duly appointed as judge pro tern for the trial of the case. After a trial which went into all features of the case the trial court made detailed findings of fact and conclusions of law. We find it unnecessary to set these out in full but do set out the crucial conclusions of law as follows:
“That the orders of attachment made by the County Superintendent of Dickinson County, attaching the territories of Common School District No. 90 and Common School District No. 114 in Dickinson County, Kansas, to Herington School District No. 113, affected a detachment of such territory in said districts from Lost Springs Rural High School District M & D No. 2.
“Lost Springs Rural High School District M & D No. 2 has no control or authority over the following described real estate, to-wit:” (The territory in question is described.)
“When the property, immediately hereinbefore described, became attached to Herington School District No. 113, it became detached from Lost Springs Rural High School District M & D No. 2.
"The levy made by the County Clerk of Dickinson County, Kansas, on the property hereinbefore described for the support and maintenance of Lost Springs Rural High School District M & D No. 2 is illegal and void and of no force and effect.
“Lost Springs Rural High School District M & D No. 2 should be and is hereby ousted from the exercise of authority or control, which includes the authority to levy and collect taxes for the maintenance of its high school, over the territory hereinafter described, to-wit:” (The territory in question is described.)
“Judgment should be and is hereby entered in favor of the plaintiff in conformity with these findings of fact and conclusions of law. Costs are assessed to the defendants.”
In this court counsel for appellants (defendants below) discuss a number of questions pertaining to the action of the county superintendent of Dickinson county and the school boards of districts No. 90 and 114; the legal status of the members of the district boards; the calling of the election in each district, and the form of the ballots used. Each of these questions was raised in the trial court and decided adversely to appellants. While we have examined those questions and find no error in the ruling of the trial court respecting them we think they were not proper questions to be raised by defendants in the court below, or questions for review here for several reasons, only one of which we need to state: Namely, certain taxpayers complained to the county superintendents, as they had the right to do, and when they were of different opinions appealed to the state superintendent of public instruction, as they had the right to do under Ch. 396, § 17, Laws of 1951, now 72-838 of the 1953 Supp. to General Statutes of 1949. In that part of the decision of the state superintendent, not previously copied, we are told that the matter was argued before the state superintendent mostly on legal points without stating those legal points seriatim, and held: The procedure laid down in that section (Laws of 1951, Ch. 396, § 10) was accurately followed and the territory of these districts (No. 90 and 114) is now a part of the school territory of the city of Herington. The statute pertaining to these appeals, 72-838, supra, provides: “. . . the decision of a state superin tendent shall be final.” See, also, State v. Miller, 173 Kan. 516, 249 P. 2d 659.
Counsel for appellants also complain of the conclusions of law by the trial court that the orders of attachment made by the county superintendent of Dickinson county attaching the territories of common-school districts No. 90 and 114 of Dickinson county to the Herington school district No. 113 effected a detachment of such territory in the districts from Lost Springs rural high-school district M & D No. 2, and other conclusions of the court which necessarily followed from this. We regard this as the only real question in this case. The effect of this holding, of course, is that the property in question cannot be taxed for the support and maintenance of the rural high school but can be taxed for the support and maintenance of the Herington High School No. 113 which operates both an accredited high school and grade schools. It is correctly pointed out that Ch. 396, Laws of 1951, pertains only to common schools and we also point out that § 10 of that act is the only one that pertains to this disorganization of common-school districts which have not maintained schools for as long as 3 years. It may be conceded that the section does not deal with the situation where a part or all of the territory of such a disorganized school is within a rural high-school district and the property is transferred to another district which maintains a high school. This fact is not a complete answer to the question before us. In Bunning v. Rural High-school District, 105 Kan. 320, 182 Pac. 387, where there was a similar question the court stated, p. 323: “. . . We can hardly attribute to the legislature a purpose that the people of the attached territory should be required to help maintain two high schools, one in the city, and one outside of the city. . . .”
Counsel for appellant argued that even though the disorganized common-school districts were attached to Herington district No. 113 of Dickinson county that fact alone did not effect a detachment of the territory from the Lost Springs rural high-school district. It is true that no statute makes that specific provision in situations such as we have here but it is also true that no statute denies such result. In State, ex rel., v. Board of Education, 128 Kan. 487, 278 Pac. 741, which involved a similar situation and where the same argument was made as is made here, this court denied that contention and at p. 491 said:
. . If territory be added to the school district of a city of the first class it must of necessity be taken from some other school district. . . .”
In State, ex rel., v. Board of Education, 173 Kan. 780, 252 P. 2d 859, it was said in the opinion p. 791:
“Plaintiff also appears to argue that one school district is not permitted to attach the property of another district. This cannot be true. Every foot of territory is within some school district. The result is that the attachments of territory to any school district must involve the territory of some existing school district. ' It is well established by a long line of decisions that there are no vested rights in the existence of a school district and that the legislature has authority to extend or limit its boundaries, consolidate two or more as one, or to abolish a district altogether.”
Citing, State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677, which cited State, ex rel., v. Board of Education, 128 Kan. 487, 278 Pac. 741. To the same effect is State, ex rel., v. Board of Education, 173 Kan. 780, 252 P. 2d 859.
The effect of each of these cases is that when territory of one school district is lawfully attached to another, such attachment, unless limited by statute, is for all purposes even though the territory so attached may be included in some type of high school district.
Other cases might be discussed involving various features of our school laws with respect to the territory of school districts, each dealing with situations somewhat different than the one before us, but we think it not necessary to do so. We agree with the state superintendent in holding that Laws 1951, Ch. 396, § 10, is fully controlling in the disposition of the territory of the disorganized districts No. 90 and 114 of Dickinson county. In fact, it is the only section of our statute specifically dealing with the disorganization of common-school districts for the reason that no school has been held in the district for as much as 3 years. We concur also with the conclusion of the state superintendent of public instruction that the procedure laid down in that section was accurately followed, and in his further holding that the territory of these districts is now part of the school territory of the school district of the city of Herington No. 113 in Dickinson county. There is no statute dealing with the subject of what, if anything, should be done with that part of such territory which was also in the Lost Springs rural high-school district, but since that territory was placed in the territory of the Herington school district which maintains an accredited high school, as well as grade schools, and makes but one levy for the maintenance and support of such schools, and since we cannot attribute to the legislature the intention that the portion of the territory of the rural high school which was within the two districts which were disorganized would pay a double high school tax, we feel compelled to agree with the trial court that the attachment of that territory to the Herington high-school district effected a detachment of it from the Lost Springs rural high school.
There isn’t much else in this lawsuit. We have studied the record carefully and have examined all the authorities cited by counsel and find no error in the record. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from a ruling of the trial court striking from appellant’s answer a substantial portion of his defense.
Appellee Jack Conrad will be hereinafter referred to as plaintiff, and appellant Wayne Dillinger, as defendant. The pertinent portions of the pleadings may be summarized as follows:
The petition alleged that plaintiff was riding a saddle horse in an easterly direction on U. S. highway 160 approximately eight miles east of the city of Parsons, when the defendant negligently and carelessly drove his truck into the horse upon which he was riding, throwing him to the concrete pavement and seriously injuring him. He alleged defendant was guilty of certain acts of negligence which were the proximate cause of his injury, and prayed for damages and costs.
Defendant answered by way of a general denial and further alleged that the plaintiff was guilty of negligence in certain particulars barring his recovery, and specifically alleged in the second paragraph of his answer that on December 27, 1952, in the dark of the evening plaintiff rode his horse out on the highway without any light or warning signal of any kind, in violation of the traffic laws of the State of Kansas, and without regard to his own safety or the safety of others who were using the highway, and alleged as a defense in the third paragraph of his answer that it was the duty of the plaintiff at tire time and place if he intended to use the highway in the dark of the evening, and more than thirty minutes after sunset, to have equipped himself with at least one lighted lamp or lantern exhibiting a white light visible from a distance of 500 feet to the front and with a lighted lamp or lantern exhibiting a red light visible from a distance of 500 feet to the rear; that it was negligence on the part of the plaintiff to ride a horse on the highway without lights and without regard for his own safety and the safety of others, and that the collision and resulting injuries were proximately caused by plaintiff’s own negligent conduct and his failure to have lights as required by the traffic laws of Kansas and in violation of G. S. 1949, 8-501, 8-506, 8-580, 8-581 and 8-588. These statutes were copied verbatim in the defendant’s answer. Defendant concluded with a prayer for judgment for costs.
Plaintiff moved to strike from defendant’s answer all reference to the quoted statutory provisions, for the reason that a saddle horse does not fall within the definition of a vehicle as defined by the act, and that the act has no application to a ridden animal and, therefore, the violation of the mentioned traffic laws is not a defense to the action. Plaintiff’s motion was sustained, and the italicized portion of paragraph second and all of paragraph third were stricken from defendant’s answer. From this order, defendant appeals.
For the purposes of this appeal, we will consider plaintiff’s motion to strike as tantamount to a demurrer to the mentioned portions of defendant’s answer.
This court has always adhered to the rule that a defendant may set forth in.his answer as many grounds of defense, counterclaim, setoff and for relief as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. (G. S. 1949, 60-710; 4 Hatcher’s Kansas Digest [Rev. Ed.], Pleading, § 103; West’s Kansas Digest, Pleading, § 90.) Moreover, as will be disclosed by the cases cited under section 60-710, a defendant has a right to form his pleadings so as to meet such conditions' and contingencies of tihe case as his opponent might possibly attempt to prove. (State, ex rel., v. Leopold, 172 Kan. 371, 373, 240 P. 2d 138.)
The question which concerns us is whether the saddle horse, under the facts alleged, is a vehicle within the meaning of the statute, thereby subjecting plaintiff to the traffic regulations applicable to the driver of a vehicle or, if not a vehicle, whether a person riding a horse upon a roadway is subject to the provisions of the act applicable to the driver of a vehicle.
G. S. 1949, 8-501 et seq., are designated as Uniform Act Regulating Traffic on Highways.
Section 8-501 defines the various words and phrases used in the act. “Vehicle” is defined as every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks. “Traffic” is defined to include ridden or herded animals while using any highway for purposes of travel.
Section 8-506 provides that every person riding an animal upon a roadway shall be subject to the provisions of the act applicable to the driver of a vehicle.
Section 8-580 makes it a misdemeanor for any person to drive or move on any highway, any vehicle or combination thereof, which does not contain or is not at all times equipped with such lamps as required by the act.
Section 8-588 provides that all vehicles, including animal-drawn vehicles, and those not hereinbefore specifically required to be equipped with lamps, shall at all times specified in 8-581 be equipped with at least one lighted lamp or lantern exhibiting a white light visible from a distance of 500 feet to the front of such vehicle and with a lamp or lantern exhibiting a red light visible from a distance of 500 feet to the rear. The term “vehicle” has been variously defined:
“That in or on which a person or thing is or may be carried from one place to another, esp. along the ground, . . .; any moving support or container •fitted or used for the conveyance of bulky objects; a means of conveyance.” (Webster’s New International Dictionary, Second Edition, Unabridged.)
“That in or on which anything is or may be carried; . . .” (Funk & Wagnalls Practical or Standard Dictionary.)
“Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, . . .” (G. S. 1949, 8-501.)
It will be observed when the legislature adopted section 8-501, it expressly made the definition of the word “vehicle” in that section :so broad that it included not only automobiles and animal-drawn vehicles, but every device upon or by which any person or property may be transported, and this definition is sufficiently broad to cover ridden animals and bicycles. This same section defines the word “traffic” to mean ridden animals while using any highway for purposes of travel. Moreover, the legislature in adopting section 8-506 definitely made all the provisions of the act applicable to persons riding animals upon a roadway, irrespective of whether such animals came under the definition of a vehicle.
We are of the opinion that the court erred in striking the italicized portion of the second paragraph, and all of the third paragraph from the defendant’s answer. The case is reversed and remanded with instructions to reinstate the stricken portions, with the exception of that part quoting the mentioned sections of the statutes verbatim.
It is so ordered.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note. The defense was the note was given for the purpose of guaranteeing, conditionally, bank paper adjudged to be badj and the condition to liability on the note was not performed. Defendant prevailed, and the bank appeals.
In connection with reorganization of the bank, which had been closed by the bank commissioner, Harry S. Kennedy sold the capital stock and surplus to E. S. Kirkland, R. H. Craig and H. C. Smith. Kennedy was to take out of the assets of the bank slow paper to the amount of $15,000. To secure the bank against loss on other assets turned over to the bank, Kennedy agreed to assign the slow paper to the bank, which he did. The contract provided that collections, if any, on slow paper were to be placed in a separate account, to guarantee any paper adjudged bad within a fixed period, which was afterwards extended. Further to secure against loss on paper determined to be bad within the period, Kennedy assigned to the bank his personal assets and his equities in lands which he owned. Kennedy further obtained an outside guaranty, to the extent of $15,000, of paper which should be adjudged to be bad within the period. The outside guaranty was not to become effective until Kennedy’s assignment was exhausted.
The outside guaranty was effected in part by contracts, pursuant to which the guarantors gave notes to the extent of the individual liability each one assumed. Seven notes of this character were executed and delivered to the bank, totaling $11,500. One of the notes was that of defendant for $2,500. The note sued on, for $1,800, is a renewal of the original note. To complete the outside guaranty to the extent of $15,000, Baxter B. Austin made a deed of 400 acres of land to the bank for an agreed consideration of ,$5,000. The Kennedy lands and the Austin land were mortgaged. Some of the mortgages were foreclosed, and the bank claimed nothing was realized to apply on the guaranty. Guarantors other than defendant paid their notes, and the guaranty fund was credited accordingly with $9,000.
The assignments of error which are of consequence are that there was nothing to submit to the jury, judgment should have been rendered for plaintiff on the evidence, and the judgment for defendant is not sustained by any evidence.
Craig became cashier when the reorganized bank commenced business, and continued to be cashier during the period material to the controversy. He was the bank’s chief witness, and gave the following testimony:
“We charged off $13,187.34. We collected over $1,100 of this amount. We Selected other notes to make up the $15,000. Among them was the Dick Fister note of $900. The Fister note was paid, but we didn’t credit the guaranty account with the money. We charged off J. K. Moore $781.34, Dick Fister $2,480, and Dick Fister $800. We were paid the $2,400 Fister note and the Moore note and the $900 Fister note. These notes were not credited to the guarantor’s account. We charged off so many notes, I wouldn’t attempt to say which ones were charged to the guaranty fund.”
The bank furnished a list of notes charged off on January 7, 1922, to the total amount of $13,187.34. This was regarded as maturing the guaranty to that extent, and on the following day the notes given by the guarantors were put in the bank, and interest subsequently paid on them was appropriated by the bank. Later, four other notes were charged off, bringing the amount up to $24,927.34. The bank’s brief contains the following:
“It will be observed from the foregoing tabulations that on these several dates notes aggregating $24,927.34 were charged off, which, it is needless to say, is equivalent to being ‘adjudged bad.’ . . .
“The record shows that on January 7, 1922, notes aggregating $13,187.34; on June 27, 1922, notes aggregating $7,050, and on September 23, 1922, notes aggregating $4,690, were charged off. This certainly comes within the terms of the contract of March 10, 1921. How, more certainly than was done in these instances, the particular assets in question could have been adjudged bad, it is impossible to conceive.
“The act of charging off the several notes that were removed from the assets of the bank constituted an adjudication that they were bad. . . .”
There was some dispute about whether the guaranty fund should be credited with a Richardson note. The bank’s brief contains the following:
“Let that be as it may, giving the guaranty account credit for the amount of the Richardson note, it will stand thus:
“Guarantors’ notes, not including defendant...................... $9,000.00
Collected on paper that was charged off........................ 1,159.82
Check to Harry S. Kennedy that should have been credited to the
guaranty account ........................................... 231.29
Richardson note .............................................. 1,200.00
■ Total ................................................... $11,591.11”
The list of notes charged off on January 7, 1922, amounting to $13,187.34, will be called, for convenience, list A. The four notes subsequently charged off need not be further considered.
In order to define what the guarantors were guaranteeing, it was' provided in the contract that paper should be adjudged bad within a time limit. List A was charged off in compliance with the contract, or it was not. In its brief the bank took the position list A was paper adjudged bad. The same position was taken in the oral argument when the cause was submitted. That being true, the guaranty fund was properly given credit for $1,159.82 produced by list A. Craig, however, said list A did not embrace paper adjudged bad, and the guaranty fund should not be credited with the $1,159.82 produced by list A. In a supplemental brief filed by the bank since the cause was submitted, it is said:
“The amount collected on paper that had been charged off was $1,159.82. This should not be credited to the guarantors’ account any more than should the amounts collected on the good notes that were in the bank.”
Pursuant to this theory, the supplemental brief states the guaranty fund account as follows:
“The amount collected by the plaintiff from the guarantors, other than the defendant, was.................................... $9,000.00
The total amount realized out of Harry S. Kennedy’s property was........................................................ 231.29
Making a total of ....................................... $9,231.29”
It will be recalled that, according to the bank’s view, to charge off a note was to adjudge it bad, within the meaning of the guaranty contract. Craig testified the J. K. Moore note of $781.34 and the Dick Fister note of $2,480 were charged off, were paid, and the guaranty fund received no credit. Craig further testified so many notes were charged off (adjudged bad) he would not attempt to say which ones were charged to the guaranty fund. The result is, there never was any list of notes adjudged bad constituting a body of paper to which the guaranty would apply'; there never was any action in the nature of adjudging paper to be bad as related to the guaranty; and the bank took a course which left it free to juggle the paper so that if a note which was charged off was subsequently paid, the note had not been adjudged bad as against the guarantors.
As indicated, there was a dispute about the Williamson note. The bank relied on Craig’s testimony, as it did with respect to other matters concerning which the bank’s brief says, “Mr. Craig’s testimony must be accepted.”
It will be recalled Kennedy took out of the bank slow paper amounting to $15,000, which he put back in the bank further to secure paper adjudged to be bad. Concerning these notes Craig testified in his first cross-examination, “These were of no value.” Concerning these notes the bank’s brief says:
"They proved to be of no value whatever, and no part of any one of them was ever paid.”
Referring to list A, Craig testified, as quoted above, list A was not the list of slow paper amounting to $15,000 which Kennedy took out of the bank and then put back. Craig said other notes were selected to make up the $15,000, the Dick Fister note of $900 was one of them, and that note was paid but the guaranty fund received no credit. If Craig was referring to some selection of paper adjudged to be bad amounting to $15,000 he was guilty of bad faith toward the guarantors in handling the guaranty fund. The result is, Craig’s credibility was a matter for the jury to determine, and it may have disregarded a lot of his statements and explanations.
Plaintiff assigns as error a ruling of the district court imposing the burden of proof on plaintiff. No such ruling is disclosed by the abstract, which merely shows that plaintiff introduced its evidence first. It is not now material who opened. It was a fair inference from the evidence that plaintiff did not in good faith comply with the condition on which liability of defendant on his note depended. Consequently, it is not necessary to state a guaranty-fund account. If it were, some queer things might be considered.
Kennedy assigned to the bank his equity in his lands to guarantee paper adjudged to be bad, and this equity was to be exhausted before the outside guaranty came into effect. In a supplemental agreement made with Kirkland as president of the bank and for the bank, Kennedy listed the various tracts of land. Kennedy could not dispose of his equities, because they were pledged to the bank. The bank could dispose of nothing except what it got by Kennedy’s assignments. Whatever the bank received would go to the credit of the guaranty fund. Any other disposition of Kennedy’s land by Kennedy or the bank would violate the terms of the guaranty.
Craig bought lots on which Kennedy’s residence stood, and paid $3,000 in cash for them. Craig also bought a tract of land containing 100 acres, and paid $4,000 for it. Afterwards Craig sold the lots and land for $8,500. The guaranty fund got nothing. Kirkland took all the money. Kirkland held a mortgage on the Kennedy lots, and Kirkland applied the purchase price of the lots on his mortgage. Kirkland had held a Kennedy mortgage on the 100-acre tract, but had assigned it. Kirkland applied the purchase price of the tract on the mortgage. Kirkland himself got a 67-acre tract of Kennedy’s land. Kirkland did not testify at the trial.
The counter abstract contains the following:
‘‘Cross-examination (of Craig):
“Q. I want to go back to what is known as the Mount land. A. Yes, sir.
“Q. That land was listed among the assets of Harry Kennedy, wasn’t it? A. Yes, sir.
“Q. Do you know what became of that? A. Yes.
“Q. What was done with it? A. We gave $40 an acre for that land.
“Q. Who? A. Mr. Kirkland, and there was something over $8,000 against it to Benton & Hopkins.
“-Q. What was done with the difference between the $40 an acre and the indebtedness? A. Credited it up to some of Harry Kennedy’s and Bud Austin’s notes in the bank.
“Q. That was a private transaction between Mr. Kirkland, yourself, and Harry Kennedy, wasn’t it? A. Yes, sir.
“Q. And not a dime of. the money went into the guarantor’s fund, did it? A. I don’t think it did.”
Without pursuing the subject further, the court concludes there was sufficient evidence to sustain the verdict.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover on a certificate of deposit issued by the State Exchange Bank of Yates Center to Charles Desmond Ricketts in the name of Rachel E. Ricketts, and collected by Charles Desmond Ricketts through the Commercial State Bank. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
Judgment was rendered on the pleadings and the opening statement of counsel for the defendants. The petition in substance alleged that Rachel E. Ricketts had died; that before her death the certificate of deposit had been .issued to her by the State Exchange Bank of Yates Center in the sum of $600, and that after her death the defendant Charles Desmond Ricketts presented the certificate to the Commercial State Bank, which with knowledge that the certificate belonged to Rachel E. Ricketts, paid the same to Charles Desmond Ricketts. The answer in substance alleged that Charles Desmond Ricketts was the owner and holder of the certificate of deposit. The trial statement of the defendants showed that J. M. Ricketts, the husband of Rachel E. Ricketts, had died some years previous to the commencement of this litigation; that he owned land in Wilson county in which he devised a life estate to his wife and after his death the fee thereof to his children and grandchildren, describing the land that was to go to each; that the part of the land so devised to Charles Desmond Ricketts, who was a son of J. M. Ricketts, had a house and other improvements on it; that J. M. Ricketts had procured a policy of insurance on the house in the sum of $1,200; that after his death the house burned and the insurance was collected by Charles Desmond Ricketts; that after consultation with different members of the family, it was determined the proceeds from the insurance should be deposited in banks and the interest thereon should be paid to Rachel E. Ricketts; that the money was deposited, $600 in the Commercial State Bank of Yates Center and $600 in the State Exchange Bank of Yates Center; that the interest on the $600 deposited in the State Exchange Bank was paid to Rachel E. Ricketts; that the certificate of deposit was renewed by Charles Desmond Ricketts a number of times, but each time it was renewed in the name of Rachel E. Ricketts, and possession of all the certificates was always held by Charles Desmond Ricketts; that Rachel E. Ricketts died, and a few days thereafter Charles Desmond Ricketts presented to the Commercial State Bank of Yates Center the certificate of deposit issued by the State Exchange Bank, indorsed his name on the back of it, and received the money for it; and that at the time of the trial these wox-ds appeared about an inch below the indorsement of Charles Desmond Ricketts, “Executor of estate of Mrs. Rachel E. Ricketts.” Counsel stated, “How those words got there or who put them there, counsel for the defendant Ricketts does not know.” Charles Desmond Ricketts was not the executor of the estate of Rachel E. Ricketts; Judge Cope has been appointed and was the administrator of her estate.
The pleadings put the ownership of the certificate of deposit directly in issue. The trial statement of counsel for the defendants did not admit that the ownex*ship was ixx Rachel E. Ricketts unless the facts shown by that statement placed the ownership in her. This compels a consideration of the facts shown by the trial statement and of the law; applicable to them. Rachel E. Ricketts had a life estate in the real property when the house was burned. Charles Desmond Ricketts was the owner of the remainder, which included the fee.
In 21 C. J. 955 it is said:
“If a building is already insured prior to the creation of the life estate and is afterward totally destroyed, the property is in effect converted into personalty and the tenant for life is entitled to the income of the insurance money for his life and the reversioner to the principal after the tenant’s death.”
The headnote to Graham v. Roberts, 43 N. C. 99, reads:
“Where premises devised to A for life, remainder to B, are insured, and after the testator’s death, are consumed by fire and the insurance paid: Held, That A, the tenant for life, is entitled to the interest on the insurance money, in lieu of her right to the premises devised, during her life, and, after her death, the principal is to be paid to B, the remainderman; that the executors are not authorized to pay the money to A, but it is their duty to keep it secure, paying to A the interest annually, and that the premiums of insurance are a proper charge against A and B.”
Another case is Haxall v. Shippen, 37 Va. (10 Leigh) 536, where the court used the following language:
“Testator, having insured his dwelling house against loss by fire, by a covenant of assurance to himself, his heirs and assigns, devises the same tenement and the farm on which he lived, to his wife for life, remainder to his two daughters in fee; the house is burnt down during the life of the wife; she receives the insurance money, and, without the concurrence of the devisees in remainder, expends it in the building of a new house on the premises; and then dies, leaving the new house standing, which devolves with the farm to the devisees in remainder, who are then both jemes covert, and they and their husbands both survive the tenant for life: Held, . . . That the tenant for life had a right to receive the insurance money; but when received, it was mere personal estate, of which she had a right to the use for life, and her daughters to the remainder; and upon the marriage of the daughters, the marital rights of their husbands attached to it, as to any other personalty to which their wives were entitled in remainder.”
See, also, Clark v. Leverett, 159 Ga. 487; Convis v. Citizens’ Mutual Fire Ins. Co., 127 Mich. 616, 623; Sampson v. Grogan, 21 R. I. 174, 186; Clyburn v. Reynolds, 31 S. C. 91, 119; Green v. Green, 50 S. C. 514, 532, 533; 7 Cooley’s Briefs on Insurance, 2d ed., 6262; 11 Harvard Law Review, 519, 520.
According to the trial statement, the insurance money belonged to Charles Desmond Ricketts. It was his money when it'was deposited in the State Exchange Bank. Under- the life estate, it may be conceded that Rachel E. Ricketts was entitled to the interest arising from the insurance money. With that concession, Charles Desmond Ricketts would be the owner of the money, but would be compelled to account to Rachel E. Ricketts for the interest arising therefrom. She received that interest. Rachel E. Ricketts could not become the owner of the money unless Charles Desmond Ricketts made a gift of it to her. If he undertook to make a gift of the money to her, it was never completed because Charles Desmond Ricketts never delivered any of the certificates of deposit to hen He retained possession of them all the time. The money' being his when it was paid by the insurance company, and no gift ever having been made by him to Rachel E. Ricketts, she was not entitled to receive the principal of the certificate of deposit. The ownership of the certificate was directly in issue. The trial statement of counsel for the defendants did not confess that the ownership of the certificate had at any time been in Rachel E. Ricketts. It was error for the court to render judgment in favor of the plaintiff on the pleadings and the trial statement of the defendants.
The judgment is reversed, and a new trial is directed.
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The opinion of the court was delivered by
Jochems, J.:
This action was brought by plaintiffs to foreclose a mortgage on 320 acres of land in so far as they claimed to own it through subrogation to the rights of the original holder. Plaintiffs were the owners of one-half the oil and gas royalty on the land. Oil had been produced on the land and the royalties of plaintiffs had been applied by the holder of the mortgage to the payment of one-half the mortgage indebtedness. The other half of the mortgage indebtedness had been paid by applying the oil runs accruing to the credit of the one-half royalty interest owned by the defendant Shaffer. Plaintiffs sought to have the mortgage foreclosed against the surface rights of the land and in the alternative, in the event the surface did not bring a sufficient amount to reimburse them, against the other one-half royalty interest owned by Shaffer. Plaintiffs claimed they were entitled to invoke the doctrine of inverse alienation as against the defendant Shaffer, due to the fact that his royalty conveyance was made subsequent in time to the one under which plaintiffs claim, and that in neither royalty conveyance was the mortgage mentioned.
The case was tried to the court and findings of fact and conclusions of law entered. The facts are substantially as follows:
On May 8,1923, John Leffingwell and wife, being the then owners of the two quarter sections of land in controversy, executed a mortgage to the Wichita Joint Stock Land Bank for $16,000, which mortgage was subsequently assigned to the Kansas City .Joint Stock Land Bank. On September 20, 1923, Leffingwell and wife conveyed the land to J ohn Egan and wife, who assumed the mortgage. On May 6, 1924, Egan and wife conveyed a one-sixteenth royalty interest in both quarters to Amil A. Anderson, one of the plaintiffs. In this royalty conveyance the mortgage was not mentioned. On May 31, 1924, Amil A. Anderson conveyed to E. B. Shawver, a coplaintiff, the one-sixteenth royalty in so far as it covered the quarter section. Again in this royalty conveyance the mortgage was not mentioned. At the foregoing dates there were no producing oil wells on the lands. On .November 20, 1924, Egan and wife conveyed to the defendant C. B. Shaffer the remaining one-half of the oil and gas royalty on both quarter sections and on the same date they executed separate deeds to Dora B. Stockwell and John Leffingwell, conveying to each of them an undivided one-half interest in the above-described lands.
On December 9, 1925, Leffingwell and wife conveyed the one-half interest owned by them to the Moline National Bank. This bank failed and the defendant N. M. Dudley, receiver, appears as representative of that interest in this litigation. The mortgage above referred to contained the following clause:
“And to further secure the payment of said note the parties of the first part hereby assign to the party of the second part in whole or at the option of the second party in such amounts or such proportionate part or parts as the second party may from time to time designate all of the rents, royalties, payments and delay moneys that may from time to time become due and payable on account of any and all oil and gas mining leases or mineral of any kind existing or that hereafter come into existence covering the above-described lands and all moneys received by the party by reason of this assignment shall be applied; first, to the payment of matured installments; and second, the balance if any to the principal remaining unpaid; provided that nothing herein shall be construed as a waiver of the priority of the hen created by this mortgage over any such lease made subsequent to the date of this mortgage.”
In addition to the foregoing facts the court further .found, in substance, that on November 19, 1924, Egan was indebted to the Moline bank in the amount of $8,100, and prior thereto he had executed and delivered to the bank a warranty deed for said land with the grantee’s name omitted, as security for his indebtedness to the bank; that on November 19, 1924, Egan entered into a written contract with the Moline National Bank and one A. H. Hamlin (which contract was introduced in evidence) by the terms of which it was agreed to sell Hamlin the one-half section of land, which at the time carried with it the remaining one-half royalty, for the sum of $28,800 to be paid by Hamlin assuming the mortgage of $16,000 and paying the indebtedness of Egan to the bank in the sum of $8,100, the balance of $4,700 to be carried back on the land and a mortgage given to Egan to secure the same. The court found that in the making of this contract Hamlin was cooperating with Leffingwell and Dora B. Stockwell with a view to their taking title to the surface of the land but intending to secure the remaining one-half royalty interest for the defendant, C. B. Shaffer, and that Hamlin was the agent of Shaffer in that transaction, having been connected with Shaffer for something like eleven years, but further found that Hamlin was not authorized in writing by Shaffer to execute the contract. This contract was introduced in evidence as exhibit 1.
Later, on December 1, 1924, under the foregoing circumstances the Moline bank, through its president, made another contract with Hamlin, which was introduced in evidence as exhibit 2, by which the bank agreed to convey the remaining one-sixteenth royalty interest on the half section of land for the sum of $32,000, which it was agreed should be paid by Hamlin by his assuming the $16,000 mortgage, by paying $11,300 to the Moline bank and the remaining $4,700 to be paid to John Egan when the abstract was furnished and title found merchantable. This latter contract, exhibit 2, was dated, back to November 19, 1924, but was actually drawn and executed on December 1, 1924. The court further found that Hamlin was the agent of C. B. Shaffer in the making of exhibit 2, but that he so acted without any written authority from Shaffer. At the time of the execution of exhibit 2 the Moline bank still had in its possession the deed in blank from Egan and was trying to effect a sale so as to receive payment of its indebtedness from Egan. After the execution of the first contract, hereafter referred to as exhibit 1, Hamlin informed Shaffer that he had purchased for Shaffer the one-sixteenth royalty on the half section of land for $32,000, and Shaffer sent a draft for that amount to Hamlin, but on November 28 he wired Hamlin not to use the draft until he arrived there. Shaffer then came to Howard and Moline and on December 1, 1924, he met Hamlin and they went out to the property. On November 19, 1924, an oil well was being drilled on the land, and between that date and December 1 it came in as a producer. At the time this lawsuit was tried (May 17, 1929) there were thirty-two producing oil wells on the land.
After December 1, 1924, by mutual agreement of Hamlin, Egan and the bank, the blank deed previously executed by Egan and placed in escrow with copy of exhibit 1, was destroyed, and in lieu thereof there were substituted in place of the escrow with the bank, an oil and gas royalty deed in favor of Shaffer, a general warranty deed in favor of Dora B. Stockwell covering an undivided one-half interest in the surface rights,- and a general warranty deed in favor of Leffingwell for the other undivided one-half interest of the surface rights. The deed to Shaffer was for a one-sixteenth royalty. All of these instruments were dated back to November 20, 1924. The deeds to Stockwell and Leffingwell contained this clause:
“Except a $16,000 first mortgage to the Wichita Joint Stock Land Bank; two oil and gas leases, also a one-sixteenth royalty grant to Amil A. Anderson and a one-sixteenth royalty grant to C. B. Shaffer, all of which second party assumes.”
When-Shaffer came to Howard he was advised by Hamlin of exhibit 2 and knew its terms. He had intended to buy the royalty for $32,000. After arriving he examined the records and ascertained that by the terms of the mortgage the oil royalties were liable for payment thereof as well as the surface of the land and then instead of paying the mortgage or assuming the payment therefor, as provided in exhibit 2, he told the president of the Moline bank that he had decided to let the mortgage stand and would only owe $11,000 more. He had previously, on December 18, paid $5,000 .to the bank and taken receipt of the bank therefor. With reference to the $16,000 mortgage he told the bank he was ready to pay his half, but not the other half; that he “was not going to pull Anderson’s chestnuts out of the fire,” and let it stand. The royalty deed was delivered to Shaffer with this understanding, and the surface deeds to Leffingwell and Stockwell were also delivered with the same understanding. Shaffer had paid $5,000 and on-January 11 he paid the bank $11,000, which was deposited; $8,100 to the bank for Egan’s indebtedness and $4,700 to Egan personally, whilé the remainder was deposited to the credit of E. A. Chaffin, president of the Moline bank, and A. H. Hamlin in equal amounts. Chaffin applied the amount deposited to his credit to the indebtedness of Leffingwell to the bank, and that which was paid to Hamlin was credited to Dora B. Stockwell. Shaffer was then delivered the oil and gas royalty deed in which there was no clause referring to the mortgage. At the same time the deeds to Leffingwell and Stockwell were delivered containing the assumption hereinbefore referred to.
On March 30,1925, Leffingwell commenced a partition suit against Dora B. Stockwell in the district court of Elk county. The defendant Stockwell filed an answer and cross petition in which she named as additional parties defendant the original makers of the mortgage, the royalty owners, the lessees under the oil and gas rights, and the holder of the mortgage. She made affidavit for publication service against C. B. Shaffer and others, commencing August 12, 1925. The answer date was set for September 24, 1925. Due proof of publication was filed. Answers were filed by all defendants except Shaffer. The defendant, Dora B. Stockwell, in her answer and cross petition admitted acceptance of the deed and that she was liable for payment of a part of the mortgage, but only in proportion as the value of her interest in the land bore to the total value of all the interests owned therein. The issues in the partition suit were not identical with the issues in this case. Three days before the answer date Dora B. Stockwell dismissed her cross petition without prejudice. On September 30, 1925, a hearing was had. A stipulation was drawn by the various parties who appeared and some evidence was introduced, and on November 25,1925, the court rendered judgment in that case which was introduced in this action. No dismissal was entered in the partition suit dismissing Shaffer as a party defendant. He was notified of the rendition of the judgment soon after and thereafter acquiesced in the judgment and carried out its terms and to that extent adopted and acted upon the judgment, and adopted the judgment in his pleadings in the case here. In the partition action the judgment in substance was that the surface was primarily liable to the payment of the mortgage and that the liability of the royalty to pay the same was secondary; that the holders of the royalty upon payment made from the proceeds derived from oil runs should be subrogated to the rights of the holder of the mortgage, but that it could not be foreclosed by them .until the mortgage was fully paid; that the Joint Stock Land Bank, holder of the mortgage, must make application of the proceeds from the royalty interests in equal proportion, taking the same proportionate part from the several outstanding royalties, and that after payment the holders of the royalty interests should be entitled to enforce the mortgage against the fee and surface rights in the same manner as the original holder.
At the time the action was tried the mortgage had been fully paid and there was in addition a balance of $745 derived from the royalty money which had been paid over by the mortgage company to the clerk of the court. The court found that there was no fraud worked upon Egan and wife in connection with the various deeds and royalty grants.
The court concluded as a matter of law:
“1. John Egan and wife, Dora B. Stockwell and John Leffingwell are personally liable for the payment of the claim of the plaintiffs and C. B. Shaffer.
“2. Dora B. Stockwell and the receiver of the Moline National Bank are estopped to recover as against Shaffer by reason of the proceedings and judgment in the partition case.
“3. The plaintiffs and C. B. Shaffer are subrogated to the rights of the Joint Stock Land Bank and are entitled to have the mortgage foreclosed on the surface right of said land to reimburse them for the oil which was taken and applied in the payment of the mortgage (and said rights are coordinate).
“4. John Egan and wife are not entitled to recover under their cross petition.”
The court ordered the sale of the surface rights and the payment of the proceeds to the taxes, to the costs of the action and to payment of the judgment entered in favor of plaintiffs and C. B. Shaffer. The balance, if any, was to be paid to the clerk of the court. The court further ordered that if the property did not bring sufficient to pay the judgment of plaintiffs and Shaffer in full, then the amount realized .after payment of the taxes and costs should be applied equally to the payment of the judgment in favor of plaintiffs on the one hand and the judgment in favor of Shaffer on the other and the funds held by the clerk of the court be awarded one-half to the plaintiffs and one-half to the defendant Shaffer.
The defendants Dora B. Stockwell and N. M. Dudley, receiver, appeal, claiming that the court erred in its conclusions of law. The plaintiffs Amil A. Anderson and E. B. Shawver perfected .a cross appeal in which they specifically complained of the third conclusion of the court, and contend that they are entitled to invoke the doctrine of inverse alienation.
The defendants Stockwell and Dudley take the position that the correctness of the court’s conclusions depends upon answers to the following questions:
(1) Was the judgment of the court rendered in the former case res judicata as between the appellants and Shaffer?
(2) Did the application of Shaffer’s royalty money to the payment of the mortgage indebtedness amount to an adoption of the judgment, and if so did that fact entitle him to the claim which he now makes for reimbursement?
As to the first question it is clear to us that the trial court did not find the partition suit to be res judicata as against the appellants. On the contrary the court’s finding No. 20 clearly indicates that the trial court did not so find. This finding reads:
“In this partition suit no question was specifically raised in the pleadings and no evidence introduced with reference to the contract, exhibits 1 and 2, and no question was raised as to the validity of exhibit 1, nor as to any fraud perpetrated by anyone in connection therewith. No question was raised specifically as to the validity of the royalty deed to Shaffer and the two deeds to Leffingwell and Stockwell. No question was specifically raised as to the consideration to be paid by said Shaffer for his royalty deed.”
This clearly indicates that the court found the issues in the partition suit were not identical with the issues in this case. The court based its decision upon estoppel. This is clear from the court’s conclusion No. 2, supra. We find from a perusal of the record that there was ample evidence to justify the court in finding an estoppel against the appellants. It must be noted that in the partition suit these appellants and their predecessor in title were parties to the action; that while appellant Stockwell dismissed her cross petition in that action she was not dismissed as a party de fendant; that when the judgment was entered she appeared by her attorney and the other parties appeared, except the defendant Shaffer. The parties, including Leffingwell, predecessor in title to Dudley and Dora B. Stockwell and others, entered into a stipulation which is incorporated in the journal entry of judgment and upon which the judgment was based. In this stipulation the deeds to Stockwell and Leffingwell are set forth and described and the clause hereinbefore noted as appearing in both said deeds, which set forth certain exceptions followed by the words — “all of which second party assumes” — was likewise set forth in the stipulation. After reciting the provisions in the deeds it was stipulated in connection with the .above-quoted provision:
“The parties hereby agree that, for the purposes of this suit, the assumption of said mortgage indebtedness shall be construed and considered to have been intended by the parties to said instrument that said Dora B. Stockwell should assume but one-half the mortgage indebtedness to the Wichita Joint Stock Land Bank.”
The same provision and the same stipulation were set out applying to Leffingwell with reference to his deed. It was further stipulated that the mortgage company had notified the oil company producing the oil on the premises to stop payment of royalty to the holders and that since that time Anderson and Shawver had received no royalty money.
The court adopted the stipulation of the parties and heard additional evidence and then concluded that appellant Stockwell was owner of a one-half interest in the land; that Leffingwell was owner of the other half; that Anderson and Shawver owned half the landowners’ royalty and that C. B. Shaffer owned the other half; that all of said royalties were subject to the mortgage and that the mortgage company, if it elected, had the right to demand payment of the proceeds from the royalty, taking the same in equal proportion from the respective owners, one-half from Shawver and Anderson and one-half from Shaffer. It further concluded that upon payment of the mortgage being made by the royalty owners, they should be entitled to subrogation to the rights of the holder of the original mortgage. The court entered judgment that the interests of Leffingwell and Stockwell were primarily liable for the payment of the mortgage; that Shawver, Anderson and Shaffer should have the right to be subrogated and proceed against the surface of the lands under the mortgage whenever the same had been paid from the proceeds of the oil royalties.
Neither of the appellants herein appealed from the judgment in the partition action, and the time for appeal had long since expired prior to the trial of the case at bar. The appellants had the right in the partition action to litigate as against the defendant Shaffer, whom they had made a party defendant, all the questions which they litigated against him in the case at bar. They did not see fit to do so. On the contrary, appellant Stockwell dismissed her cross petition and she and her codefendant Leffingwell, who is predecessor in title of the appellant Dudley, both stipulated as hereinbefore set forth. The judgment was entered upon their stipulation and other evidence. This judgment became a matter of record. It involved and affected substantial rights of the defendant Shaffer by applying to the payment of the mortgage the royalty moneys which were due him. Shaffer acquiesced in the judgment. He adopted it. He took no appeal although still a party to the suit. The dismissal of the cross petition of the one party did not, in our judgment, dismiss him from the case as a party defendant. But we hold, also, that even if he were not a party to the partition suit and had a lawful right to adopt the judgment therein, that when he did adopt this judgment under the circumstances hereinbefore set out, the trial court was correct in its conclusion of law No. 2. We hold, likewise, that the appellants are estopped as against Shaffer by reason of the proceedings and judgment in the partition suit. It should be noted that the court held that there was an estoppel not solely on account of the judgment entered in the partition suit, but on account of the proceedings therein; in other words, an estoppel by reason of the conduct of t’he parties in that case. We see no difference in principle between applying the rule of estoppel by conduct to the actions of the parties which occur in litigation as compared with the acts of parties outside the court room. The trial court was justified in finding an estoppel by conduct.
In support of the foregoing we quote from 2 Freeman on Judgments (5th ed.), p. 1864:
“And a suit for partition is perhaps the only proceeding known to the law in which every possible question affecting the title to real estate may be made an issue and determined, and in which every person, whether in being or not, may be bound by such determination. . . . But as to the persons who are brought before the court the judgment is conclusive of every issue necessary to its support. As already stated, all questions of title or possession may be put in issue and finally determined.”
On pages 1866 and 1867 the same writer further says:
“If one is made a party defendant under an allegation that he claims some interest in the property, the nature of which is to the plaintiff unknown, and he fails to answer, and a judgment is entered declaring other persons to be the owners of the property, and partition is made accordingly, he is estopped by the judgment and cannot afterwards show that he was a cotenant and that a portion of the land ought to have been set apart to him. ... A decree adjudging a lien on the property or part of it is conclusive of that matter. The fact that the party is described as having a particular interest will not prevent the judgment from affecting a different interest, if such he had. As the object of the proceeding is to make a final partition of the property, it is unreasonable to suppose that when one is alleged to have a particular interest he is made a party with respect to that interest only, or is left free to avoid the partition by subsequently asserting another interest.”
In the case of Cornell University v. Parkinson, 59 Kan. 365, 53 Pac. 138, it was held:
“Where a plaintiff brought an action upon a note, whereon there had been interest coupons but which had been detached, and asked judgment upon the principal note without setting up or asking judgment on the coupons, but on the contrary solemnly declared in an agreed statement of facts presented to the court.that all the coupons had been paid, and thereupon judgment was rendered and a mortgage given to secure the debt was foreclosed; other parties to the proceeding, who held liens on the mortgaged premises without actual knowledge to the contrary, had a right to presume and to act upon the presumption that the interest coupons had been paid.” (Syl. ¶ 1.)
See, also, Westerman v. Corder, 86 Kan. 239, 119 Kan. 868; Hoover v. Hoover’s Estate, 104 Kan. 635, 180 Pac. 275.
Under the provisions of the statute on partition (R. S. 60-2114) the court shall have power tó make any order that nqay be necessary to make a just and equitable partition between the parties and secure their respective interests.
Upon the proposition that Shaffer had a right to adopt the judgment in the partition suit we again quote from 1 Freeman on Judgments (5th ed.), p. 935:
“And in those cases where one not an actual party may and does elect to claim the benefit of a judgment or decree, it becomes conclusive for and against him, notwithstanding the apparent violation of the principle of mutuality.”
See, also, O’Brien v. Heeney, 2 Edwards Ch. (N. Y.) 241; Trust Co. v. Stevenson, 114 Ohio St. 1, 150 N. E. 726; Seals v. Snow, 126 Kan. 246, 267 Pac. 1105.
In 30 Cyc. 308 it is said:
“If proceedings taken in court to partition property go so far that allotments are made and possession is taken and held under them, any party so taking and holding possession or otherwise knowingly receiving the benefit of the partition thereby ratifies it and becomes estopped to assail it or deny its validity.”
As to the arguments advanced by appellants to the effect that Shaffer was bound by his agreement to assume the payment of the $16,000 mortgage and that he did not pay the full amount of the consideration which he agreed to pay for his royalty interest, we feel that these are' answered by the findings of the court. These show that the two contracts made by Hamlin were not authorized by Shaffer in writing; that although Shaffer did intend to buy on the terms of the unauthorized contract (exhibit 2) still he changed his mind. He was not legally bound by that contract. He went to the courthouse and saw the mortgage and became acquainted with its terms and then decided that he would not deal in accordance with exhibit 2, but went back and made a new contract — an entirely different contract. That is all there was to it. He is only accountable upon the basis of the contract which he finally made, and this did not obligate him to payment of the mortgage, nor did he assume it as between himself and appellants Stockwell and Dudley.
As to whether or not the court was justified in awarding judgment in favor of Shaffer to be subrogated against the appellants to the extent to which his royalty money had been applied in the payment of the mortgage, we find no error in this respect. The doctrine of subrogation is an equitable one. In 25 R. C. L. 1311, it is said:
“Subrogation in its broadest sense is the substitution of one person in the place of another with reference to a lawful claim or right, and it is frequently referred to as the doctrine of substitution. It is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by him who in good conscience ought to pay it.”
In the same volume, at page 1313, it is said:
“It does not owe its origin to statute or custom, but is a creature of courts of equity, having for its basis the doing of complete and perfect justice between the parties without regard to form. It is a doctrine, therefore, which will be applied or not according to the dictates of equity and good conscience, and considerations of public policy, and will be allowed in all cases where the equities of the case demand it. It rests upon the maxim that no one shall be enriched by .another’s loss, and may be invoked wherever justice demands its application, in opposition to the technical rules of law which liberate se curities with the extinguishment of the original debt. The right to it depends upon the facts and circumstances of each particular case, and to which must be applied the principles of justice. In the administration of relief by subrogation, it will be found that the jurisdiction of equity rests largely on the prevention of frauds and on relief against mistakes; and the expansion of the rule has so nearly covered the field that it may now be said that wherever a court of equity will relieve against a transaction, it will do so by the remedy of subrogation, if that be the most efficient and complete that can be afforded.”
In the case at bar, the court having found that moneys which accrued from the royalty interest of Shaffer had been used to pay an obligation which had been assumed by the appellants, clearly equity demanded that Shaffer be entitled to subrogation against the property of the appellants which was the security for the debt assumed by them.
This brings us to the point raised by the cross appeal of the plaintiffs Anderson and Shawver. As cross appellants they make the contention that having bought their royalty first, the rule of inverse order of alienation applies and they are entitled to reimbursement first from the surface rights to the exclusion of Shaffer from any participation therein, and further, to the right of subjecting the Shaffer royalty to reimbursement to them in the event the surface rights do not bring sufficient to fully reimburse them.
In finding No. 23 the court set forth a portion of the judgment in the partition action, which reads as follows:
“The court further concludes that the surface rights . . . are primarily liable to the payment of said mortgage, and that the liability of said royalty to pay the same is secondary; and the court concludes that although subrogation shall result pro tanto in favor of the holders of said royalty interest when and as said payments were made, the right to foreclose said land so far as said royalty holders are subrogated as aforesaid, shall not attach until all of said mortgage shall have been paid. . . . The Land Bank has neither a legal nor equitable right to make applications of the royalty in unequal proportions, but if it elect under its mortgage to apply said royalty, it must do so taking the same proportionate part of the several outstanding royalties as above described. . . . The holders of said royalty shall be entitled to enforce said mortgage to such extent and in the same manner as the said Kansas City Joint Stock Land Bank would have been and is entitled to enforce said mortgage against the fee and surface rights in said land.”
In finding No. 24 the court set forth that following the rendition of the judgment in the partition suit Shaffer was advised thereof by the plaintiff Anderson, who sent Shaffer copy of the entry of judgment. Later, on September 28,1926, Anderson in a letter to Shaffer, referring to this partition action, said:
“This gave us an opportunity which we had been looking for and we accordingly filed a cross petition and had all interests clearly defined in a trial before Judge Ayres. Your interests were, of course, protected along with our own in the suit. . . . We will then, of course, hold a mortgage on the land equivalent to the levies against our royalty money. It will probably be necessary after paying this mortgage to bring suit to foreclose the same. I feel that you will probably be willing and glad to stand your proportionate part of this suit, but will discuss this with you at a later date.”
To the above Shaffer replied on October 7, 1926:
“I am perfectly willing to go along with you and bear my share of the expenses.”
On December 11, 1926, Anderson again wrote Shaffer:
“As we have previously advised you, we were subrogated against the rights of the mortgage company. The bank cannot assign this mortgage under the law and for that reason we are forced to bring suit to foreclose. It may take a little time to close the matter out. After hearing from you, I advised our attorney that you had expressed a willingness to go ahead and work the matter out with us, so we presume he is making you a party to the foreclosure action.”
In the third conclusion of the court, which is hereinbefore set out, the court found that the rights of the plaintiffs and the defendant Shaffer to be reimbursed by a foreclosure on the surface rights were coordinate.
As to the right of plaintiffs to invoke the doctrine of the inverse order of alienation as against the defendant Shaffer we conclude from the findings that the trial court based its decision upon this point upon two propositions. First, that by the proceedings and stipulation in the partition action, and, second, by the subsequent correspondence, the plaintiffs had waived any right to invoke the doctrine of inverse order of alienation against the defendant Shaffer and that plaintiffs were thereby estopped in this action from invoking that relief. This court reaches the same conclusion, based on the findings, and the conduct of the plaintiffs in the partition action. This conclusion makes it unnecessary to determine the question now- raised as to whether the doctrine of inverse alienation applied to the situation of the parties as it existed before and at. the time of the partition suit. In this connection, while it is not necessary to a decision of this case, and while the facts are not exactly analogous to those in the case at bar, it is of interest to note a prior decision of this court on the doctrine of inverse order of alienation, viz., Newby v. Fox, 90 Kan. 317, 133 Pac. 890.
We find no error in the proceedings of the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison,’J.:
This is an action for money had and received in which the trial court sustained a demurrer to the plaintiff’s evidence on the ground that the action was barred by the statute of limitations, and to use the language of the appellant, “the only question involved in this appeal is whether or not the statute of limitations barred plaintiff’s claim under the facts and circumstances in evidence at the close of plaintiff’s case.”
The theory of the appellant throughout his well-prepared brief is that the appellant never knew the appellees had the money belonging to the appellant until shortly before the bringing of this action, and he strongly relies on the provision of R. S. 60-306 that in an action for relief on the ground of fraud the cause of action shall not be deemed to have accrued until the discovery of the fraud, and he forcibly meets the anticipated argument of his opponents that this is not an action for relief on the ground of fraud by citing the case of Guernsey v. Davis, 67 Kan. 378, 73 Pac. 101, and Washbon v. Bank, 87 Kan. 698, 125 Pac. 17, where the court held the bar of the statute of limitations did not begin to run until the discovery of the breach of trust, the former being an action for money had and received, and the latter being an action to recover upon an implied contract.
The appellant ably and forcibly argues the relation and the rights and duties of these parties as principal and agent, bailor and bailee and trustee and cestui que trust and the general rule that when either of such relations exists the statute of limitations begins to run from the date of the demand, and directs our attention to the fact that the only demand made in this case was a few days before filing this action.
This preliminary statement as to the theory of the appellant may be helpful in applying it to the following statement of the evidence introduced by the appellant:
The evidence of plaintiff shows that on July 12, 1921, he assigned to his brother, W. L. Missimore, and J. W. Steiert a certificate of deposit for $2,000 issued to him by the Peoples State Bank of Wichita, Kansas, and took from them and their wives a note payable in ninety days at 8 per cent interest, and Steiert and wife, on October 17, 1921, executed to plaintiff a third mortgage on a certain tract of land to secure the same; that on August 20, 1921, W. L. Missimore and J. W. Steiert and their wives gave a substitute note for $2,076 for the certificate of deposit, including $76 interest which the plaintiff would lose by having the certificate of deposit cashed before maturity. In preparing this second note one of the blank notes at the bank where they all did business was used and the name of the bank printed therein remained as payee instead of the name of the plaintiff C. B. Missimore, as in the original note. This new note and the mortgage were left at the bank. Later the plain tiff saw the third mortgage given him by Steiert and wife as security and gave it back with a request for additional security.
In June, 1922, the defendant bank and Hauser, its president, entered into an arrangement with W. L. Missimore and J. W. Steiert for the sale of the Steiert land on which the third mortgage had been given the plaintiff and on which the bank had the first mortgage, and a deed was given by Steiert to W. L. Missimore for .the price of $10,400, which W. L. Missimore raised by executing two mortgages thereon and giving a deed for security for an additional loan, and this amount being sufficient to cover the third mortgage held by plaintiff, was all paid to the defendant bank and defendant Hauser; that three or four months after the sale J. W. Steiert procured from Hauser the $2,076 note marked paid July 19, 1922, at which time Hauser told him, “I have taken care of Charles Missimore’s mortgage.” Later, in January, 1923, J. W. Steiert wrote the plaintiff, C. B. Missimore, asking for the return of the $2,000 note he and others had given, because it had been fully paid. Plaintiff’s answer to this letter on January 15,1923, is in part as follows:
“Comanche, Okla., Jan. 15, 1923.
“Mr, J. N. Steiert, Wichita, Kan.:
“Dear Sir — Your letter received and contents noted, and in regard to the $2,000 note and mortgage, I have a joint note of $2,000 with you and Will and your wives on it, but I have no mortgage on the farm; if I did I never did see it. The note is made payable at the Peoples State Bank at Wichita. Who did you pay this money to? They have never notified me that it was placed to my credit. I am writing- the Peoples State Bank in regard to the payment; also going to write Will at Chickasha and if this money has been paid it is right that you should have your note and mortgage.”
Plaintiff also wrote the Peoples State Bank the same day. Hauser, president of the Peoples State Bank, answered plaintiff’s letter on the 26th of January, 1923, as follows:
“The Peoples State Bank,
Wichita, Kan., January 26, 1923.
“Mr. C. B. Missimore, Comanche, Okla.:
“Dear Mr. Missimore — Answering your letter of the 15th, regarding tlie farm which was sold by Mr. Steiert, will say that it is true that Will bought the farm for $10,400, and that Will had to pay enough to cover the first mortgage, interest and expenses, and also the second mortgage which was held by us, and there was a balance due of $1,642 and some cents, and then Mr. Steiert owed $2,076, which was also included. You were supposed to have a mortgage which you did not wish to accept.
“This chattel mortgage of Steiert was signed by him and his wife. Now I know nothing of the arrangements between you and Will, but the above was the way the settlement was made when the farm was sold. If you hold an additional note against Will and Steiert for $2,000, I know nothing about that and there never has been any money deposited here to your credit in this bank. I know nothing about your and Will’s transactions.
“Trust that this will explain the matter fully.
“CH/PA Yours truly, C. Hauser, President.”
The word “chattel,” the second word in the second paragraph, is crossed out with a pen.
On the trial plaintiff testified that he never saw the $2,076 note until the day before the trial in this case; that he brought a suit against his brother and Steiert in September, 1925, on the $2,000 note; that during the progress of that trial in June, 1927, he first learned that the defendants, Hauser and the bank, had received and retained the money referred to and that he had never received any payment on either of said notes from any source.
W. L. Missimore testified that in 1922 he made arrangements with Mr. Hauser whereby the latter was to pay the C. B. Missimore mortgage and that he told his brother, C. B. Missimore, of this fact at the time when his brother was writing these letters to Hauser in 1923, at the time when Hauser wrote the letter denying that he owed it. '
Appellant strenuously insists that there was no evidence that the plaintiff was informed that the defendants had the money with which to pay his note and mortgage until during the trial of the action against his brother and Steiert in June, 1927. This is according to his own testimony, although his brother says he told him of this arrangement in 1923, when he was receiving and writing letters about the matter. But the letters alone settle the matter of his having been informed. No one can read them and further insist that they do not convey the information about the sale of the mortgaged land and the collection of the $2,076 note and interest and the mortgage belonging to appellant. Appellant’s only answer to the force of these letters as information is that he had previously received from his'brother and Steiert so many promises and assurances of payment that he had no confidence in what they told him, but did rely upon and believe what was written to him by Hauser and the bank, and calls special attention to the last part of that letter where it is stated, “There never has been any money deposited here to your credit in this bank.” An equal degree of confidence in the statements contained in the first paragraph of the letter would have informed appellant that the land on which he held a third mortgage given by Steiert had been sold for $10,400, which was sufficient to pay the first and second mortgage and the $2,076 note which Steiert owed. Appellant knew he held the third mortgage on this land given by Steiert and he knew a substitute note was to be given by Steiert and his own brother for the $2,000 loan and the lost interest on the certificate of deposit. The first paragraph shows conclusively that the defendants collected and received the money belonging to the plaintiff, while the last paragraph simply says there is none deposited to his credit — very different propositions from a banking standpoint, and this action is for money had and received. We cannot with these letters before us accept the theory of the appellant that he never knew of defendants’ receiving this money belonging to him until shortly before the bringing of this action.
With this evidence as to the appellant having such information on or about the date of the Hauser letter, January 26, 1923, several of the legal questions mentioned in the first part of this opinion are necessarily eliminated, and the case becomes almost entirely a fact case.
This action was commenced June 8, 1927, more than four years after plaintiff knew that defendants had received the money belonging to him.
Conceding all the points claimed by appellant as to concealment of fraud and the running of the statute of limitations after the discovery of fraud in cases of this character, there is nothing left along these lines to be considered when the plaintiff as a matter of fact actually knew all that was necessary to be known about defendants’ having his money more than four years before he took any steps to recover it.
It is insisted that there existed between these parties the relation of principal and agent, bailor and bailee and trustee and cestui que trust, and under such circumstances the relation is presumed to continue until severed, notwithstanding there may have been a breach of obligation and duty, and that the statute of limitations does not begin to run until a demand is made, which in this case was only a few days prior to the filing of this action. We do not deem it necessary to decide in this case the exact relation these •parties bore to each other, whether one of the three suggested by the appellant or that of debtor and creditor. The authorities cited by appellant support his contention that in certain relationships a demand is necessary before the statute of limitations begins to run, but they do not go to the extent of requiring it in any relation of the parties where it was known in advance that it would be ineffectual and unavailing. (C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 49 Kan. 399, 30 Pac. 456; Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530.)
A demand in this case, whatever we might determine the relation of the parties to be, would have accomplished nothing. The defendants in the same letter which informed the plaintiff of their having collected the note and mortgage belonging to him denied any liability therefor, and repudiated every relation and obligation that might possibly have existed. Under such circumstances no demand is necessary.
“A refusal to perform or denial of liability dispenses with the necessity of a further demand and sets the statute in motion. Where a bank, either in terms or in effect, has denied liability to its depositor for the balance of a general deposit, this is an act on the part of the bank dispensing with a demand, and the depositor’s cause of action thereupon accrues and the statute of limitations, where one is applicable, is set in motion.” (37 C. J. 963.)
And the following from 17 R. C. L.:
“A trustee cannot ordinarily plead the statute of limitations until he has previously divested himself of the trust by discharging it, or by: denying his liability to discharge it further, and knowledge of this fact has been brought home to the cestui que trust. On the repudiation of the trust, the trustee’s possession becomes adverse, and suit must be prosecuted within the time allotted by the statute of limitations.
“If a voluntary trustee does not repudiate the trust, but continues to act under and in harmony with it, the beneficiaries have no right of action against him, and the statute must remain inoperative until the trust is repudiated.
“It has been declared that as long as there is a continuing and subsisting equitable trust acknowledged or acted upon by the parties, the statute of limitations does not apply, but if the trustee denies the right of his cestui que trust, and the possession becomes adverse, lapse of time from that period may constitute a bar in equity.
“The statute of limitations does not commence to ran in favor of the bank until there has been a demand by check or otherwise and a refusal to pay, unless by some act on the part of the bank, the necessity of demand has been dispensed with.” (pp. 710, 794, 795, 801.)
“While the presentation of a check is the usual method by which a customer demands the payment of money deposited in a bank, formal demand is not essential to a recovery where the payment is refused on other grounds and the bank denies that it holds any of the depositor’s money or that it is indebted to him.” (Altman v. Bank, 86 Kan. 930, syl. ¶ 2, 122 Pac. 874.)
We find no error in the sustaining of the demurrer to the evidence of the plaintiff on account of the action being barred by the statute of limitations, nor in the overruling of the motion for new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The action is by Cornelius Jackson, Fanny Brown and Mary B. Andrews, as trustees of the Primitive Baptist Church of Johnson county, and by that church to recover from the defendants the property in which the plaintiffs and defendants had been worshipping as members of a church organization. Judgment was rendered in favor of the plaintiffs, and the defendants appeal.
The action was tried by a jury, which returned a verdict in favor of the plaintiffs and answered special questions as follows:
“1. Do the defendants-in this action constitute a majority of the members of the Primitive Baptist Church of Shawnee, Kansas, at the time the congregation divided into two factions? A. Find no such church in existence at this time.
“2. Have the defendants departed from the fundamental doctrines of the Primitive Baptist Church in any vital particular? A. Yes.
“3. If you answer the last question in the affirmative, state in what vital particular the defendants have departed from the fundamental doctrines of the Primitive Baptist Church. A. Departed in that they violated the traditions and practices of the Primitive Baptist Church by permitting the church to admit members of secret societies.
“4. Had the church voted at a regular conference of the congregation to adopt any doctrinal change prior to the time when the two factions in the church separated? A. Yes.
“5. If you answer the last question in the affirmative, state whether the plaintiffs or any of them voted to make any such doctrinal change. A. Yes. But retracted when they fully understood.
“6. Does the Primitive Baptist Church of Johnson county, Kansas, as grantee in the deed of conveyance conveying the church property and the Primitive Baptist Church of Shawnee, Johnson county, Kansas, as disclosed by the evidence, constitute one and the same religious organization? A. No.”
At the close of the evidence of the plaintiffs the defendants demurred thereto. That demurrer was overruled. The defendants argue that it should have been sustained. There was evidence which tended to prove that Cornelius Jackson, Fanny Brown and Mary B. Andrews, plaintiffs, were trustees of the Primitive Baptist Church of Johnson county, Kansas, and that the following was what is described as the abstract of faith of that church:
“First: We believe in one true and living God, the Father, and Son, the Holy Ghost.
“Second: We believe that the scriptures of the old and new testaments are the words of God and the only rule of faith and practice.
“Third: We believe in doctrine of election; that God chose his people in Christ before the faith of the world.
“Fourth: We believe in the doctrine of the original sin.
“Fifth: We believe that man is unable to recover himself from the fallen state he is in by his own free will and ability.
“Sixth: We believe that sinners are justified in the sight of God, only by the imputed righteousness of Christ.
“Seventh: We believe that God’s elect will be called, converted, regenerated and sanctified by the holy spirit.
“Eighth: We believe that a saint shall preserve his grace and never fall finally away.
“Ninth: We believe that baptism, the Lord’s supper and the washing of saints’ feet are ordinances.of Jesus Christ, and the only true mode of baptism is immersion.
“Tenth: We believe that there will be a resurrection of the dead, and the happiness of the righteous, and that the punishment of the wicked will be everlasting.
“Eleventh: We believe that no minister has the right to the administration of gospel ordinance but such as have been baptized, called and come under the imposition of hands of the presbytery.
“Twelfth: We believe that none but regularly baptized members have the right to commune at the Lord’s table.”
The evidence tended to prove that the practice of that church was not to admit or recognize any member belonging to any secret society; that the government of the church was strictly congregational ; that there was no authority higher than that of the congregation; but that at the forty-fourth annual meeting of the Kaw River Association of the Primitive Baptist Churches, the association put the following in the minutes of its proceedings:
"On motion the Kaw River Association will not knowingly fellowship any church who holds members belonging to any secret order.”
A division arose concerning the admission into the church of members of secret societies. A vote of the congregation was taken, at which a large majority voted to admit members of such societies. Afterward, when the proposition that had been voted on was fully understood, some of those who had voted in favor of admitting members of secret societies withdrew their approval of that action. The plaintiffs adhere to nonadmission of members of secret societies, while the defendants favor the admission of such persons. A controversy arose over the possession of the church property. The extent and nature of that controversy is immaterial. This action was commenced to determine whether the church property should be controlled by plaintiffs, who were the trustees of the church and adhered to the old practice of the church not to admit to membership the members of secret societies, or by the defendants, who allowed the admission of such persons to membership in the church. The evidence was properly submitted to the jury. It was not error to overrule the demurrer to the evidence.
The defendants say:
“The court erred in admitting incompetent testimony over appellants’ objection in this: That Fannie Brown, appellee, was permitted to testify that she and Cornelius Jackson and Mary Andrews were the trustees of the church which called for a conclusion of the witness and her answer was a self-serving declaration and not the best evidence, the church record of the conference and their election being the best evidence, which was never introduced by appellees in evidence.”
The real controversy in this case does not concern the question who were trustees, but concerns a principle or matter of church government. It was not prejudicially erroneous to permit one of those who were trustees to testify to that fact without producing the record of their election. If the controversy had been one be tween parties claiming to be rival trustees and the question depended on whether or not one side or the other was elected, the record of election might have been the best evidence; but, in the absence of such a controversy, the witness was properly permitted to testify whether she held a particular office and whether or not others with her held a like office. It was not reversible error to admit the evidence of Fanny Brown.
The defendants contend that “the verdict of the jury is in whole or in part contrary to the evidence produced and contrary to law pertaining to the case as given in the court’s instructions.” The church was organized in the eighties, and the real estate on which the church was built was conveyed to certain persons as trustees of “The Primitive Baptist Church of Johnson County, Kansas.” After the division in the church, the defendant faction procured a charter from the state and undertook to incorporate the church under the name of “The Primitive Baptist Church of Shawnee, Kansas." They named five persons other than the plaintiffs as trustees. The church had been organized and was in existence long before the corporation was organized. The title to the property was not transferred to that corporation nor to its trustees. It remains in the Primitive Baptist Church of Johnson County, Kansas, and did not vest in the Primitive Baptist Church of Shawnee, Kansas. Neither the corporation nor its trustees had any right to the control of the property. The organization of the corporation amounted to a withdrawal of its adherents from the old organization.
In 34 Cyc. 1167 the following will be found:
“The separation or secession of part of the members from a church does not destroy, the identity of the church nor lessen the rights of those adhering to the organization, but members seceding from a church thereby forfeit all rights to the church property, and the courts, when called upon, will award the property, and all rights pertaining thereto, to those who continue to adhere to the doctrine, tenets, and rules of the church as they existed before the division.”
There was only one church building and one Primitive Baptist Church of Johnson County, Kansas. The incorporation was a step resorted to by the defendants for the purpose of getting control of the property. Control could not be acquired in that manner. With all of this in mind, the verdict of the jury and the answers to the special questions are easily understood, and it can be safely said that they were supported by evidence and responded to the instructions given by the court.
The judgment is affirmed.-
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The opinion of the court was delivered by
Wertz, J.:
This was an action for damages for personal injuries predicated on the doctrine of res ipsa loquitur. From a verdict and judgment in favor of the plaintiff, defendants appeal. There is no controversy over the extent of plaintiff’s injuries nor the amount of the 'verdict — if plaintiff is entitled to recover. Inasmuch as the only argument presented here involves the answers to special questions returned by the jury, only facts which are pertinent to the issues involved will be narrated and discussed.
Appellee Joan Waddle will be hereinafter referred to as plaintiff, and appellants Fred Brodbeck and Lewis Schrader as defendants.
For many years the defendants were engaged in operating amusement rides under the name of Brodbeck-Schrader Shows, and on the date the plaintiff sustained her injuries were playing the Kansas State Fair at Hutchinson. About 5:45 in the afternoon of September 19, 1951, plaintiff purchased a ticket for a ride known as the Sea Cruise. The ride may be described as follows: Four tub-shaped cars and four boat-shaped cars travel on two concentric tracks, about three and one-half feet apart and at varying heights from the ground. The tracks consist of sectional steel plates, set up perpendicularly to the ground, with steel pipes welded on top to form the rails on which the cars travel. The two tracks are securely and rigidly held in place by steel keys and angle iron braces, and rest on steel sills to which they are keyed. The power unit is located in the center of the circle formed by the tracks and is connected to the cars by long arms or sweeps which propel the cars in a counter-clockwise direction when the ride is in operation. Each riding unit is mounted on a triangular-shaped heavy steel dolly, which has a wheel assembly at each point of the triangle, one traveling on the outer track, and the other two in tandem on the inner track. The outer wheel assembly consists of an aluminum alloy wheel housing and a rubber-tired wheel which travels along, and supports the car on the outside rail. Each of the two inner wheel assemblies, both front and rear, are identical in design, consisting of an aluminum alloy housing in which are mounted four rubber-tired wheels. Two of these wheels are in tandem, perpendicular to the ground, and travel along the top of the inner Rack, supporting the car thereon. The other two wheels are mounted .horizontally in the center of the housing, one traveling along the outside of the inner rail, the other along the inside of the inner rail, their purpose being to prevent outward or inward motion of the wheel assembly, and thus of the car itself, while the ride is in motion. Each wheel whether mounted horizontally or perpendicularly, has two sealed, greaseless, lifetime New Departure ball bearings, one pressed into each side of the wheel hub, permitting the wheel to revolve freely around its shaft.
A fence encloses the area occupied by the Sea Cruise ride, immediately outside of which is a ticket booth. Slightly to the side of the booth, but inside the fence, is a lever by means of which the operator, who has an unobstructed view of the entire ride, manually controls the clutch and brake for starting and stopping the ride.
Plaintiff and her escort seated themselves in one of the tubs and the ride started. After making a few revolutions the tub tipped over, throwing plaintiff between the tracks and seriously injuring her. Defendant Brodbeck, who was operating the ride, applied the brake and brought the ride to a stop within a distance of eighty feet.
The respective parties presented their testimony and the court, under instructions which are not questioned here, submitted the case to the jury which returned into court a general verdict in favor of the plaintiff, and then- answers to special questions submitted by the court, which are as follows:
“1. Was the accident the result of mechanical failure? Answer, Yes.
“2. If your answer to question No. 1 is in the affirmative, then state the nature of the mechanical failure. Answer, Sealed ball bearing disintegrated.
“3. . . .
“4. Could the defendants, their agents, servants or employees have discovered such defect or failure by the exercise of ordinary and reasonable care? Answer, Yes.
“5. If your answer to question No. 1 is in the affirmative, did any acts or omissions of the defendants contribute to such mechanical failure? Answer, Yes.
“6. If you answer question No. 5 in the affirmative, then state what acts or omissions of the defendants contributed to such failure. Answer, The bearing failure should have been detected by sound and closer inspection, lacking thorough inspection.
“7. Did the defendants, their agents, servants and employees use ordinary and reasonable care in the inspection, maintenance and operation of this Sea Cruise Ride? Answer, No.”
Defendants filed their motion to set aside the jury’s answers to special questions Nos. 4, 5, 6 and 7 for the reason that the answers were contrary to and unsupported by the evidence, and moved for judgment in their favor upon the jury’s answers to special questions Nos. 1 and 2, notwithstanding the general verdict. These motions were overruled by the trial court and judgment was entered in favor of the plaintiff. From these orders and judgment defendants appeal.
By the answers to the special questions Nos. 1 and 2, the jury found that the accident was due to a mechanical failure, i. e., the disintegration of a sealed ball bearing. These findings were not questioned by defendants.
The-question presented here for review is whether the jury’s answers to special questions 4, 5, 6 and 7 are sustained by the evidence.
Defendants do not claim plaintiff’s petition failed to state a cause of action according to the doctrine of res ipsa loquitur, nor do they contend that plaintiff’s evidence was insufficient under the doctrine to make a prima facie case so as to justify submitting it to the jury, and in all fairness they state that absent defendants’ evidence upon which the jury made special findings of fact as to the cause of the accident, the testimony presented on behalf of the plaintiff might have permitted an inference of negligence to have been properly drawn.
The direct evidence disclosed that the Sea Cruise ride equipment was purchased in 1948 and had been in use over three years and in operation over 1,700 hours; that from time to time during the three years, additional safety devices were added; that the ride equipment was disassembled and reassembled when moving from town to town; that trial runs were had and inspections were made to determine its safety from day to day. This was determined by sight and hearing. The units themselves were not disassembled but were merely lifted from the track when moved from town to town. There was testimony by one of the defendants that the ride had been involved in a.n accident in Garden City the preceding June. Three witnesses testified, in substance, that at 3:30 in the afternoon of the day of the accident they were riding in one of the tubs of the Sea Cruise ride and that the defendants’ operator stopped the ride and took a crescent wrench and worked about five minutes on the front wheel on the inside of the tub they were occupying, and it appeared that the nut on the front wheel was not completely tight but was rather loose when he left. There was testimony that a witness was standing about ten feet from the ride when he heard a rumble and a thud and when he turned around the accident occurred. A witness standing thirty or forty feet away from the ride heard a noise and turned around and saw the tub bouncing along the track. One of the defendants testified to the effect that when the carnival was on the road they do not have time to do repairing; that they maintain their winter quarters for the purpose of repairing and redecorating the rides so they can go out and tear them up again; that it was their policy if they saw something through the summertime that was weak and needed replacing, or if they could improve a ride from a safety standpoint, it was done in the wintertime. The defendants attempted to show by a mechanical engineer that the accident was occasioned by a defective ball bearing in one of the wheels of the Sea Cruise ride, and that defendants could not have detected it prior to the accident. However, the defendants failed to sustain this theory. Nowhere did the mechanical engineer definitely testify that any defect in the sealed bearing could not have been discovered by reasonable inspection. He stated that he made an examination of a portion of the wheel assembly approximately one year after the accident occurred, and that he requested of defendants all the parts of the wheel assembly, but they were not produced, and it is possible that some of the missing parts might have been a factor in determining the cause of the failure of the wheel to operate properly. In substance, he testified that the cause of the accident was the disintegration of a sealed ball bearing. The weight to be given defendant’s evidence, and the credibility of their witnesses were matters for the jury to determine.
In view of- this and other evidence in the case, both direct and circumstantial, granting to the plaintiff the benefit of all inferences and presumptions to which she is entitled, we believe the jury’s answers to the special questions were amply supported by the evidence.
It is not necessary to write at length regarding the doctrine of res ipsa loquitur in order to determine the issues involved in this action, as this subject was fully covered in the case of Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 Pac. 599, where we said:
“Literally translated the phrase means ‘the thing itself speaks,’ or ‘the thing speaks for itself.’ It is a term used in a limited class of negligence cases, referring to the method of proof of general negligence (as distinct from proof of specific negligent acts or omissions), by proving the injury, together with the accompanying circumstances, from which it may be inferred, and is reasonable to infer, that the casualty happened only because of some negligence of defendant. In actions for damages because of defendant’s negligence, the general rule is, of course, that the negligence of defendant is never presumed, but must be established by proof. The cases in which res ipsa loquitur is applicable are not exceptions to the general rule. ‘It does not dispense with proof of negligence in personal-injury cases.’ (Root v. Packing Co., 88 Kan. 413, 424, 129 Pac. 147.) Rather, in cases in which the phrase is applicable, proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the casualty and of the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of defendant.’’
And again in Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77, we said:
“Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary' course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.”
In Waterbury v. Riss & Company, 169 Kan. 271, 288, 219 P. 2d 673, we said the doctrine of res ipsa loquitur is not one of substantive law, but is one pertaining to evidence. Where it is relied upon alone, it simply means that certain facts and circumstances raise an inference or presumption of liability.
Plaintiff having admittedly made out a prima facie case under the rule, the defendants to relieve themselves from liability, were under the duty of producing evidence to the effect that the injury was not due to their negligence by showing due care on their part, or by evidence showing that it was occasioned by the acts of some third person, or by vis major. The rule was well stated in Mayes v. Kansas City Power & Light Co., supra:
“In an action for damages because of negligence of defendant, when plaintiff has introduced evidence of defendant’s negligence causing him injury, the defendant, to relieve itself from liability, is under the duty of producing evidence to offset or rebut that offered by plaintiff. This defendant may do by showing its own due care, even without showing tire real cause of the accident, or by showing that the accident was caused by some third party, or by vis major. When evidence of this kind is offered by defendant, it is peculiarly the function of the jury to determine, from all the evidence, concerning the question, whether the defendant was in fact negligent, and if such negligence was the proximate cause of the injury.” (syl. 3)
In Emigh v. Andrews, 164 Kan. 732, 734, 191 P. 2d 901, it was stated that the inference of negligence arising from the initial established fact compels the defendant, in order to relieve himself of liability, to move forward with his proof to rebut tire inference of negligence.
Defendants offered evidence to rebut the inferences and presumption of negligence by showing that they made, just prior to the accident, inspection of the Sea Cruise ride, and that the defect causing the injury could not have been discovered. However, it was clearly the function of the jury to weigh this evidence, together with all the evidence in the case, tending to show defendants’ due care, or lack of it, and determine whether the defendants were negligent in the manner of their inspection and in the operation and maintenance of the Sea Cruise ride, and whether defendants’ negligence was the proximate cause of plaintiff’s injury.
In conclusion it may be stated that in view of the aforementioned rules of law, the defendants failed to move forward with evidence sufficient to satisfy the jury that they were without fault. The answers to special questions of the jury being sustained by sufficient evidence, it follows that the judgment must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
Plaintiff sought specific performance of an oral contract for a joint adventure in oil and gas operations and for an accounting.
Defendant appeals only from the order overruling his demurrer to the amended petition. In view of his various contentions the pertinent portions of the amended petition are appended hereto for reference and made a part hereof.
The demurrer was based on the grounds (a) several causes of action were improperly joined; and (b) the amended petition did not state facts sufficient to constitute a cause of action.
We shall refer to the amended petition as the petition.
Relative to the first ground it is urged two separate, distinct and incompatible agreements were attempted to be alleged, the first being that of September, 1946, and the other that of December 15, 1949. We find nothing inherently incompatible' between what is alleged to have transpired on those occasions. We think a fair interpretation of the entire petition is that it constitutes a narrative of the conduct of the parties and events over the designated period of approximately five years. That it must be so construed is par ticularly true where, as here, there has been full and complete performance of the alleged understandings by appellee and apparently also by appellant until he repudiated the alleged agreements.
Appellant argues the petition does not directly state he agreed to appellee’s proposal in 1949 and hence there was no mutuality of contract. The allegations of agreement were sufficient when challenged by demurrer. (See ¶ 10 & ¶ 11 of petition.) Moreover, absence of inceptive mutuality constitutes no defense to the enforcement of an executed contract. (Heckard v. Park, 164 Kan. 216, 188 P. 2d 926.)
It is claimed the petition is not drawn on any definite theory; that it is more consistent with a claim for salary under an employment contract than with the theory of joint adventure. We do not think it constitutes a claim on an employment contract. (Grannell v. Wakefield, 172 Kan. 685, 242 P. 2d 1075.) When fully considered it discloses an effort to state a cause of action for relief on the theory of joint adventure.
Appellant, however, asserts .the facts alleged do not constitute a joint adventure. We shall not repeat the allegations of the petition but refer the reader thereto. The evidence on the trial may prove insufficient to establish that relationship but the allegations of the petition when challenged by demurrer were sufficient. (Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043; Flitch v. Boyle, 147 Kan. 600, 78 P. 2d 9; Potts v. Lux, 161 Kan. 217, 166 P. 2d 694; Grannell v. Wakefield, 169 Kan. 183, 217 P. 2d 1059; Grannell v. Wakefield, 172 Kan. 685, 242 P. 2d 1075; Beech Aircraft Corporation v. Ross, 155 F. 2d 615.) In the second Grannell case we held:
“A single definition of a partnership or a joint adventure which is accurate, comprehensive and exclusive for all purposes is extremely difficult. The existence of their essential elements, including the power of joint control, may be determined from the over-all facts, including an oral agreement, the conduct of the parties and the peculiar circumstances of each particular case. (Syl. f 11.)
“The requirement that joint adventurers shall have a joint interest in property, where there is property to be held as a part of the venture, is satisfied .if one of them holds an equitable interest therein while the other holds the legal title. But it is possible for one of them to have a sufficient equitable interest in an executed joint adventure, not based on joint ownership of property, to entitle him to an accounting of the profits.” (Syl. f 8.)
In Crawford v. Forrester, 108 Kan. 222, 194 Pac. 635, the court said:
“It is perfectly clear that we have here a consummated contract, acted 'on and partially carried out by both parties. It was of no consequence that preparation of formal evidence of the contract was postponed, or that the particular status of the venture at the time the writing was to be signed could not be known. The subject matter of the contract — acquisition of a block of leases, development, sale of some leases, retention of others, disposition of proceeds of sale, and division of interest in leases retained — was perfectly definite.” (p. 223.)
See, also, the Beech Aircraft Corporation case on sufficiency of definiteness of contract.
Appellant contends the oral agreement is void under the statute of frauds. We do not think so. The contract did not deal with the sale of real estate but with the personal relations of the coadventurers with respect to the properties involved and was not affected by the statute of frauds. (Duncan v. Johnson, 89 Kan. 21, 130 Pac. 655; Crawford v. Forrester, supra, p. 223.) Although oil and gas leases as between a leasor and lessee are within the statute of frauds because they involve real estate that statute does not apply to personal relations and obligations created by an agreement of partners or coadventurers to deal in such instruments between themselves and to divide the profits resulting from the venture. (Bird v. Wilcox, 104 Kan. 799, 180 Pac. 774; Goodrich v. Wilson, 106 Kan. 452, 454, 188 Pac. 225.)
Appellant asserts if the oral contract be held valid as to oil and gas leases and leasehold estates to be acquired after the commencement of the joint adventure it must be held invalid as to such interests in and to which he held the entire title prior to the agreement. It has been held otherwise. (Crawford v. Forrester, supra; Shoemake v. Davis, supra; Griffin v. Reilly, [Tex. Civ. App.] 275 S. W. 242; Motter v. Smyth, 77 F. 2d 77, 79.)
In die Shoemake case we cited the Motter case, which latter case cited our Crawford case and we quoted from the Motter case as follows:
“ ‘It is not necessary to “joint adventure” that parties furnish capital or services in equal amount, and fact that one contributes property previously acquired does not destroy validity of arrangement(Headnote 2.)” (p. 913.) (Italics supplied.)
Appellant admits appellee also seeks recovery of his share of the proceeds or profits from lease operations. It is not contended such part of the cause of action is barred by the statute of frauds. If appellee is entitled to any relief the demurrer was properly overruled.
The demurrer further admits appellant has fully performed under the contract. Appellant concedes the established rule that full performance takes a case out of the statute of frauds and that the remedy of specific performance lies if the party seeking performance cannot be compensated in money. He asserts, however, the petition does not disclose monetary relief is impossible. It may not be utterly impossible, but would that relief be certain and, if certain, is it adequate, complete and efficient? Appellee was without knowledge of the amount appellant had received for the separate leasehold properties he had sold. (See petition ¶ 16.) Knowledge of such amounts and of the amounts appellant had invested in the development of various properties, which appellant was entitled to deduct before appellee’s interest could be determined, was in the possession of the appellant. Appellee sought and was entitled to an accounting of all matters involved in order to have the actual net value of his share in the respective properties determined. At least until appellant makes such accounting appellee’s knowledge of the net value of his interest in the properties will remain uncertain and doubtful. Even if appellee by some other means might conceivably acquire accurate information concerning the net value of some of such properties and brought separate actions to recover his interest in those properties, it would result in a multiplicity of actions. In Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 205 P. 2d 914, it was held:
“In order to prevent a decree for the specific performance of a contract on the ground a remedy at law exists the latter remedy must be as plain, adquate, complete and efficient as the remedy of specific performance and not circuitous or doubtful.” (Syl. ¶ 6.) (Italics supplied.)
It may be doubtful whether a judgment for the net value of appellee’s interest, if presently known by appellee, would be collectible without further delays and uncertainty. Moreover, such a judgment if collectible might be highly detrimental to appellee in comparison with an equitable division of the properties. It well may be the motivating purpose of appellee’s participation in this sort of joint adventure was to acquire properties of this character, or an interest therein, to which he could with great advantage apply his time, energy and special ability. It reasonably may be inferred from the nature of the transaction alleged that this was one of the things for which he may have bargained. We know of no sound reason why, under such circumstances, á court of equity cannot, and should not, malee the award payable in kind in order to make the relief granted as certain, adequate and efficient as possible. (Botsford v. Van Riper, 33 Nev. 156, 110 Pac. 705.)
Is appellant correct in contending the oral agreement lacks consideration? We cannot think so. The facts alleged are tantamount to mutual promises. They constitute a valid consideration. It also is here alleged the contract was fully performed by appellee. Surely the acceptance by appellant of appellee’s services for a period of years constitutes a valid consideration. Such services were as vital to the success of the venture as appellant’s contributions of the physical properties or other capital. (Shoemake v. Davis, supra.) The fact a party has received only a nominal salary, in comparison with his interest in a venture, will be taken into account in determining the intention- of the parties. (Kasishke v. Baker, 146 F. 2d 113.) That, too, is a consideration. In view of all the circumstances there was ample consideration for the contract.
In view of the agreement appellee’s interest attached, at the time the oral arrangements were made, to all leasehold interests appellant then owned and to all others when they were procured. (Crawford v. Forrester, supra.) His interest also attached at that time to the profits when earned. Only his right to receive returns was postponed until the conditions agreed upon were fulfilled. (Kasishke v. Baker, supra.)
A court of equity will not deny specific performance of an oral contract on the ground of indefiniteness if the terms thereof, together with the conduct of the parties in the full performance thereof, disclose the manifest intentions of the parties.
Appellant argues the action is barred. The contention is grounded on the assertion the cause of action, if any, accrued in 1946 when the first alleged agreement was entered into. The contention overlooks what previously was said herein relative to the arrangements as a whole; that the parties operated pursuant thereto; that appellee had fully performed thereunder and first learned of appellant’s breach of the contract on or about September 4, 1951. The instant action was filed May 29, 1952. The relationship was a fiduciary one, based on mutual confidence and trust. The cause of action did not accrue before appellant repudiated the trust and the action was timely filed. (Flitch v. Boyle, 147 Kan. 600, 602, 78 P. 2d 9; Staab v. Staab, 160 Kan. 417, 163 P. 2d 418; In re Estate of Dieter, 172 Kan. 359, 367, 239 P. 2d 954.) The action was not barred by laches. (See anno. 13 ALR 2d 765.)
In reaching the foregoing conclusions we have not overlooked appellant’s numerous citation of authorities in support of his views. It should be conceded there is not complete uniformity in the decisions of the various courts on the subject of joint adventures or on the subject of specific performance generally, or in cases of this particular character. Nor are we unmindful of the fact that appellant’s answer and the evidence may materially affect the merits of the action. We have not ignored the motions appellant leveled at the petitions. The motions and rulings thereon were not of a character which requires stricter construction of the petition than we have given it.
Considering all the allegations of the last petition which was challenged by demurrer we think we would not be justified in reversing the ruling of the trial court.
• The order overruling the demurrer is affirmed.
AMENDED PETITION
In the first portion of the amended petition appellee, in substance, alleged:
Plaintiff had been engaged for more than fifteen years in the business of managing the offices of independent oil producers and operators (setting forth the various activities in which he had been thus engaged); defendant became well acquainted with plaintiff and was familiar with his ability as such a manager from 1935 to 1944, during which period the plaintiff was employed by Hartman-Blair Oil Company and Hartman-Blair Incorporated, corporations in which the defendant was interested; plaintiff’s employment with the Hartman-Blair interests ceased about January 1, 1945, after his employers made a sale of part of their properties and a division of others; following such actions the defendant, H. H. Blair, became engaged individually in the business of acquiring oil and gas leases and properties, drilling oil and gas wells and in the operation thereof.
The amended petition further alleged:
“5. The defendant, Blair, after his separation from Hartman-Blair Oil Company and Hartman-Blair Incorporated became engaged as an individual in the business of acquiring oil and gas leases and properties, drilling oil and gas wells and operating oil and gas producing leases.
“6. Between July 15, 1946, and September 1, 1946, plaintiff and defendant had various conversations, the exact dates of which plaintiff is unable to state, until on or about the latter date when the plaintiff became associated with the defendant in the business of operating, acquiring and developing oil and gas properties with the oral understanding and agreement that the plaintiff was to have an interest in all of the oil and gas properties to be thereafter acquired by them, and that such interest was to amount to not less than a one-eighth interest nor more than a one-fourth interest in such properties.
“7. The amount of such interest was to be determined and agreed upon at a later date, but that said properties were to be acquired and held in the name of the defendant and the income derived therefrom retained by defendant until such time as he had been reimbursed for all monies advanced by him for the acquisition and development of said properties. It was agreed that plaintiff would have no interest in the drilling rigs or equipment. It was further orally agreed that the plaintiff and the defendant would later reduce their agreement to writing and that the written agreement would specify the exact interest to be owned by each of them in such properties, and would further provide that after the defendant had been reimbursed for all monies advanced by him for acquisition and development of said oil and gas properties, the defendant would execute conveyances conveying the agreed interest in such properties to the plaintiff; or that if determined advisable by both parties the profits and monies resulting from the operation of the properties would be reinvested in other properties for the expansion and further development of the business, in which event plaintiff would have the same agreed interest and be entitled to like conveyances of such interest in all other properties so acquired.
“8. At the beginning of the joint venture between the plaintiff and the defendant, as above related, it was mutually agreed that the plaintiff should draw a salary which it was contemplated should be sufficient to meet his current living expenses. As an initial salary, it was mutually agreed that Three Hundred and Seventy-five Dollars ($375.00) per month was to be paid to plaintiff to meet such a requirement. The said sum was less than plaintiff had previously been drawing and was less than plaintiff could have received from other independent oil operators at that time.
“9. The foregoing arrangement as to salary continued until December, 1949, when plaintiff notified defendant that for some time he had been unable to meet his current living expenses on the monthly salary he had been receiving, and that plaintiff had been forced to advance considerable funds of his own in order to meet such current living expenses. Thereupon defendant gave plaintiff a check for Two Thousand Dollars ($2,000.00) on December 1, 1949, and a check for Five Thousand Dollars ($5,000.00) on December 15, 1949, to apply on plaintiff’s account and plaintiff agreed to receive said amounts as full adjustment of his salary account. Thereafter, it was mutually agreed that plaintiff was to receive Seven Hundred Dollars ($700.00) as monthly salary in order to meet his .current living expenses.
“10. On December 15, 1949, and at a time when the plaintiff and defendant were discussing the salary adjustments mentioned in the preceding paragraph, the defendant asked the planitiff what he thought would be a fair interest as plaintiff’s share of the business. The plaintiff stated to the defendant that in his opinion he should own a one-eighth interest in all oil and gas properties then held in the name of the defendant whether acquired before or after September, 1946, and a like interest in all oil and gas properties acquired thereafter which stood of record in the name of the defendant. Plaintiff further stated that he should own a one-eighth interest in all of the oil and gas business then being conducted under the name of the defendant, except for defendant’s drilling rigs, and that he should be entitled to receive a conveyance to such one-eighth interest as to each oil and gas lease whenever the defendant was repaid from production for monies spent by him in the acquisition and development of such property; or in the event of a sale, the defendant should first be reimbursed for the monies expended by him before there was to be a distribution of such one-eighth interest to the plaintiff.
“11. On the same date, December 15, 1949, the defendant stated to the plaintiff that the terms of the agreement and the one-eighth interest as set forth in the preceding paragraph were satisfactory to defendant and that henceforth the plaintiff would be considered to be the owner of an undivided one-eighth interest in all of the oil and gas leases either acquired by the defendant before September, 1946, or by the parties as aforesaid after September, 1946, or to be thereafter acquired by the mutual efforts of the parties, but that the properties would be held in the name of the defendant and that conveyances would be made to the plaintiff of his undivided one- eighth interest only after the acquisition and development expense of the properties had been paid out as aforesaid, unless it was decided to reinvest the royalties, profit, income and runs from the wells in other properties in which event plaintiff would be entitled to the same one-eighth interest in properties so acquired, and like conveyances of such interest in the properties so acquired. Defendant also stated on December 15, 1949, that he would have a written contract drawn in accordance with the oral agreement as set forth in paragraphs 10 and 11 hereof.
“12. The joint venture of the parties as herein set forth was extremely profitable through the joint efforts of the parties. .In 1946, oil runs from the properties held in the name of the defendant amounted to approximately Six Thousand Seven Hundred Dollars ($6,700.00) per month, whereas in 1949 the oil runs were greatly increased and finally attained a rate of Thirty-five Thousand Dollars ($35,000.00) per month through the efforts of the plaintiff and the defendant working together in the business, as herein set forth.
“13. The plaintiff devoted all of his time to the management and handling of the joint venture conducted as herein set forth.
“14.. The contract for the aforesaid venture was not reduced to writing nor were any assignments or conveyances of interest made to the plaintiff. From January, 1951, until about July 1, 1951, plaintiff and defendant had many conferences relative to reducing their oral contract to writing the advisability of making some conveyances of interest of the plaintiff, and the method of reporting income from the properties subject to the joint venture. That on these occasions defendant repeatedly stated to the plaintiff he would have his attorney draw up a written agreement embodying the terms of the oral agreement between plaintiff and defendant as hereinbefore set forth in paragraphs 10 and 11, but defendant failed to have such written contract drawn and submitted to plaintiff. At no time during this period did defendant ever deny to the plaintiff that the plaintiff was the owner of an undivided one-eighth interest in all of the producing leases, oil and gas leases, and oil and gas properties then held or thereafter acquired in the name of H. H. Blair, defendant herein.
“15. For some months prior to September 4, 1951, defendant was negotiating for the sale of properties in which the plaintiff had an interest as aforesaid. The first notice this plaintiff received that the defendant denied the oral contract between them and the joint venture into which they had entered as hereinbefore set forth, was on or about the 4th day of September, 1951, when plaintiff received a letter from defendant’s attorney denying that the plaintiff was the owner of any interest in the oil and gas properties then held in the name of the defendant.
“16. On or about the 13th day of October, 1951, the defendant sold a portion of the oil properties in which plaintiff owned an undivided one-eighth interest acquired in the manner heretofore alleged. That prior to making said sale defendant had consulted with plaintiff on numerous occasions, the exact dates plaintiff is unable to state, relative to the terms of the proposed sale and the parties to which the sale was to be made. Plaintiff does not know the exact amount of money received by the defendant from such sale, but is informed and therefore alleges the fact to be that the sale was made for an amount in excess of One Million Dollars ($1,000,-000.00); that plaintiff is informed and believes and therefore alleges that the propertiés so sold by defendant were all properties upon which defendant had, prior to said sale, been fully reimbursed for all monies advanced by him for acquisition and development.
“17. On the 9th day of November, 1951, after the aforesaid sale was completed, defendant served upon plaintiff a notice of termination of employment.’ The defendant did not tender plaintiff any portion of the proceeds of the completed sale, nor was any tender made of any portion of the oil and gas leases still held of record in the name of the defendant not subject to the aforesaid sale. Defendant denied and continues to deny that plaintiff has any interest either in the proceeds of the aforesaid sale or in any properties still held in the name of the defendant, although the properties so sold and held were acquired in defendant’s name for the benefit of both parties under the joint venture aforesaid.
“WHEREFORE, by reason of the foregoing allegations, plaintiff prays that:
“(a) The relationship between plaintiff and defendant as alleged be determined to be a joint venture in which plaintiff is entitled to:
“(1) One-eighth of the net profits from the aforesaid sale of the properties;
“(2) One-eighth interest in the oil and gas leases retained by defendant but acquired as an asset of the joint venture;
“(3) One-eighth of the net profits of all producing properties held or acquired during the joint venture where said profits were not reinvested in the business.
“(b) A full and complete accounting be had to determine plain tiff’s true interest in income of every kind received by defendant from the oil and gas business from and after September, 1946.
“(c) A full and complete accounting on any sales of oil and gas properties executed after September, 1946, by defendant.
“And for such further relief to which plaintiff may be entitled, and his costs-herein.”
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The opinion of the court was delivered by
Hutchison, J.:
This is an original action in mandamus brought by the state of Kansas on relation of the attorney-general against the state highway commission for a declaratory judgment and an interpretation of a part of section 18 of chapter 225 of the Laws of 1929 concerning the payment by the highway commission of the costs chargeable to the lands and improvements in a benefit district for the construction of a road accepted as a state highway, and to command and require the state highway commission to pay such costs in one payment. An alternative writ was issued, and the defendant has filed a motion to quash the writ.
The first point raised by the defendant on its motion is that this controverted provision does not apply to benefit districts in which the road was completed prior to April 1, 1929, when the new act became effective, that a tax and assessment must be levied at any rate for interest chargeable to the lands and improvements of the district which would nullify the effect of the provision, and that its provisions are so in conflict with the whole scheme of the benefit-district law that it of necessity must be ineffectual.
The provision in question is, in part, as follows:
“Provided further, That when no tax or assessment has been levied against the lands and improvements in said benefit districts the state highway commission shall pay the portion of the cost chargeable to the lands and improvements in such benefit districts, in which event no special assessments shall be levied against the lands in said benefit district or districts.” (Laws 1929, ch. 225, § 18.)
This provision is not new in road matters in this state. Substantially the same language, except the reference to the highway commission, was used in section 1 of chapter 213 of the Laws of 1925, and section 9 of chapter 255 of the Laws of 1927, in both of which the county commissioners were the paying parties and were to pay the same out of the state-aid road funds of the county, which is the same fund now being used under the act of 1929, only under a different supervision.
Defendant urges that under section 1 of chapter 252 of the Laws of 1927 the county commissioners were required to levy the assessment on the benefit district when the road was completed, and therefore if any road was completed prior to April 1, 1929, an assessment must be levied at once. This section provides for different times and amounts of assessments as the work advances and for a deficiency assessment when completed, but this act must be read in connection with the law of 1925 reenacted in 1927, as referred to above, where the county commissioners might pay the whole or any portion of such construction cost out of the state-aid road fund and, of course, if they did no assessment shall be levied, as all three of these statutes specifically state. (Laws 1925, ch. 213, § 1; Laws 1927, ch. 255, § 9) Laws 1929, ch. 225, § 18.)
It is significant to observe in-section 17 of chapter 225 of the Laws of 1929 that in turning everything over to the highway commission and relieving the county commissioners of the several duties formerly imposed upon them, the matter of levying an assessment upon the lands and improvements of the benefit district was not noted as an exception, while the issuing and selling of bonds was made an express exception from which duty they are not yet relieved, and it was quite largely upon this particular feature of the new law that the decision was based in the recent case of State, ex rel., v. Leavenworth County Comm’rs, 128 Kan. 453, 279 Pac. 10.
By another recent decision of this court, viz., State, ex rel., v. State Highway Commission, 129 Kan. 192, 281 Pac. 855, interpreting a part of this same section 18, the state highway commission was relieved of the duty and burden of paying interest on reimbursements made by it in the benefit-district plan, but neither that decision nor any other that has been cited justifies the conclusion urged by the defendant that since the highway commission is not required to pay the interest an assessment will be necessary. There may be other and possibly many different ways of caring for the accruing interest.
We are not convinced by the forcible argument of counsel for defendant that the particular part of section 18, here under consideration, cannot be read in connection with other parts of the same act and with other acts on the same subject without being completely nullified and rendered ineffectual. It is the same method of payment that had been in operation four years before this enactment, only the county commissioners made the payments then instead of the state highway commission. The very apparent purpose of the new law was to substitute the highway commission for the county commissioners, and to dispense with the county supervision and control as far as possible, and where a road that had been commenced under the benefit-district plan and was just being completed at or about the time the highway commission assumed control, it is businesslike and proper that it should be handled under the new management the same as if it had been 'entirely constructed under such new supervision.
“It is the duty of the court, if possible, to give effect to all portions of a statute and yet make the enactment an harmonious whole.” (Noecker v. Noecker et al., 66 Kan. 347, syl. ¶ 1, 71 Pac. 815.)
“Where a statute is open to two interpretations, one of which would invalidate and the other uphold it, the court, if it is reasonably possible, should give it the latter construction.” (Bailey v. Baldwin City, 119 Kan. 605, syl. ¶ 2, 240 Pac. 852.)
Defendant contends that this portion of the statute under consideration violates section 1 of article 11 of the state constitution and section 1 of the fourteenth amendment to the constitution of the United States. It is admitted that certain classifications may be made with reference to taxation, but defendant insists that the only classification or grouping under this provision is arbitrary and cannot be in good faith.
We are cited to many definitions and interpretations of terms found in the excellent work of Cooley on Taxation, and to the recent case of State, ex rel., v. Leavenworth County Comm’rs, 128 Kan. 453, 279 Pac. 10, which is by defendant construed as far as this particular matter is concerned as causing an inequality to exist between taxpayers in different benefit districts where assessments have been made and in districts where assessments have not been made. Other differences in taxation are pointed out as to the amount of reimbursement landowners will receive if an assessment has been made and if assessment has not been made — 80 per cent in one instance and 100 per cent in the other, and only 50 per cent in another instance, all of which argument is plausible if an equality was required for public-improvement work of this kind and if it were a tax under the contemplation of the constitutional provision. But it has been long and uniformly held in Kansas not to be so regarded. It was held in Hines et al. v. The City of Leavenworth et al., 3 Kan. 186, that—
“The ordinance of March 9, 1864, providing for levying the cost of street improvements on the adjacent lots, according to area, held not to be in conflict with section 1 of article 11 of the state constitution, which provides that ‘the legislature shall provide for a uniform and equal rate of assessment and taxation.’ ” (Syl.)
In Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 Pac. 788, the last case cited and Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234, were referred to and in connection therewith it was said:
“This court has ruled that section 1, article 11, of the constitution of the state, providing for a uniform and equal rate of assessment and taxation, relates to taxes, and does not apply to such special assessments or taxes as are imposed upon abutting lot owners in cities for street improvements.” (p. 754.)
The same ruling was referred to with approval in City of Wichita v. Board of Education, 92 Kan. 967, 142 Pac. 946. But getting down to the very road law itself as first enacted in 1917 (ch. 265) and amended in 1919 (ch. 246) with all the different rates of taxation and lack of uniformity in different benefit districts, as has since prevailed, it was held that the constitutional limitation had no application to special assessments levied on land in benefit districts.
“Of course, there will be different rates of taxation for the improvement in the several municipalities upon which levies are made for the improvement, but that does not constitute an infringement of the constitutional limitation as to uniformity. That limitation only requires that the rate shall be uniform in the district in which the tax is levied. Under the act in question the county is the taxing district for the part imposed on the county, and likewise each township is treated as a district for the part of the burden imposed on it. In each separate district the tax will be uniform, and that is all that is required. . . . This limitation, as had been determined, has no application to special assessments levied on lands of owners in the benefit district.” (State, ex rel., v. Raub, 106 Kan. 196, 199, 186 Pac. 989.)
A discussion of the rules as to acts being in violation of the federal requirement of equal protection of the law, is in many of the same cases where equal and uniform state taxation is required, but in the case of Watts v. City of Winfield, 101 Kan. 470, 168 Pac. 319, the federal requirement was considered apart from other requirements, and no point was raised as to its application to assessments for public improvement. It involved the extension of a paving tax to the middle of the blocks abutting on the street that was paved. It happened that the blocks on the west side of the street were only 300 feet wide while those on the east side were 650 feet wide. The court held:
“As the blocks affected may be of different sizes, it follows that at one place the line marking the limit of the taxed district may lie farther from the improved street than at another. But this is only such an incidental inequality as may be expected from the application of any general rule designed to give approximately just results, where there is no possible standard by which exact equality may be assured. The statute fixes 300 feet as the distance for which unplatted ground abutting on an improved street shall be required to contribute to the cost of the improvement, but adds the proviso that where a different limit' is fixed for adjacent platted property by the center-of-the-block rule, that limit shall control as to the unplatted ground. The manifest purpose of the proviso was to eliminate an existing source of probable injustice and inequality, not to create a new one. . . . We do not think the inequality shewn here is sufficient to condemn the statute as unconstitutional.” (p. 476.)
We adhere to the holdings of this court to the effect that section 1 of article 11 of our constitution has no application to special assessments levied on lands and improvements of road benefit districts, and we also hold that the restrictions of the fourteenth amendment are not violated by the inequalities that may be occasioned by the use and application of the paragraph in question in section 18, chapter 225, Laws of 1929.
Again it is urged the provision in question is in violation of section 4 of article 11 of the state constitution in so far as it provides for reimbursement or payment of benefit-district assessments be cause the acts under which the taxes are raised (the motor-vehicle tax, Laws 1929, ch. 81, and the motor-vehicle-fuels tax, Laws 1929, ch. 287) limit their use to construction, improvement, reconstruction, and maintenance of roads and highways. The latest case on this question is State, ex rel., v. Saline County Comm’rs, 128 Kan. 437, 278 Pac. 54, cited by both parties. In that case it was held that section 1 of chapter 229 of the Laws of 1929 was in violation of this constitutional provision because by agreement with the board of county commissioners of Saline county it authorized the advancing or loaning to the state highway commission from the county general fund, the sinking fund, the bond fund and other funds for the construction of a state highway through Saline county, which would be a diversion of the funds to another and different object than that for which the taxes were raised, and the court said:
“This restriction, is an insuperable barrier to the loaning of the funds named or to their application to the building of state highways. The taxes were levied in pursuance of law for specific purposes, and the funds derived from these levies must be exclusively applied to those purposes. Each 'of the funds is distinct from the others and it is beyond the power of the commissioners or others to divert funds raised by taxation for one purpose and apply them to another. It would be a violation of the constitution to apply the bond fund to the building of county roads or to apply the sinking fund to the building of county bridges. No more can the funds raised for each of the specific purposes mentioned be loaned to the state highway commission or applied to the building of state highways. State highways and county and township highways are not in the same class, nor are they under the same control. In the classification made by the legislature, highways are specifically placed in groups, one of state highways and all the others into county and township roads (Laws 1929, ch. 224, § 1), and state highways cannot be regarded as county roads.” (p. 440.)
This plainly recognizes the grouping of roads as to .kind and the use of funds from any group to be limited in their application to the purposes of that group.
In the recent case of Schnatterly v. Eslinger, 126 Kan. 9, 266 Pac. 657, it was held that funds raised by taxation for the erection of a courthouse and jail could properly be used to purchase a courthouse site.
Reverting again to the .early highway case, State, ex rel., v. Raub, 106 Kan. 196, 186 Pac. 989, where by statute the excess of the general fund of the county was permitted to be used for county road purposes, the court held the act was not in violation of this constitutional provision, saying:
“The levy in question was made after this provision of the statute of 1919 was enacted. In that act the legislature has expressly provided that the surplus of the general fund thereafter to be levied may be applied to the improvement of roads. It was competent for the legislature to have declared that the improvement of roads is a current expense to be paid for out of the general fund, and having declared that such use may be made of the fund, it cannot be held that this surplus will be diverted to a purpose other than that for which it was levied.” (p. 203.)
In harmony with the group plan of county roads, township roads and others, as expressed in the Saline county case, supra, an older decision held any surplus county funds could be used for erection of permanent county buildings.
“The provision in section 1 thereof providing for the appropriation of surplus funds belonging to the county for the purpose of erecting permanent county buildings is not in violation of section 4 of article 11 of the state constitution.” (State v. Butler County, T7 Kan. 527, syl. ¶ 3, 94 Pac. 1004. See, also, State, ex rel., v. Thomas County Comm’rs, 122 Kan. 850, 253 Pac. 406; School District v. Wallace County Comm’rs, 127 Kan. 793, 275 Pac. 188.)
Reference is made to the title of the act of chapter 225 of the Laws of 1929, including not only the matter of construction, improvement, reconstruction and maintenance of the state highway system, but also the matter of reimbursement of the benefit districts which shows the act was intended to cover bo.th matters, but. it is criticized as containing more than one subject and therefore bad for another reason. It is all one subject, but setting out different details and features of that subject. After all, what is the real difference between constructing a road and reimbursing the benefit district for one already constructed? It is like purchasing a courthouse or schoolhouse already built, instead of building one, which of course cannot be done without legislative authority, but the legislature has authorized the reimbursement in this case, and the only point is whether it is a diversion of the motor-tag tax and the gasoline tax to use part of it for reimbursement for roads already constructed instead of using it for actual construction. Under the authorities on this subject we are satisfied it is no violation of the constitutional provision to so use it.
The question is raised upon a motion to quash the alternative writ in which the facts are fully stated, and our conclusion is that the motion should be overruled and the writ allowed.
It is so ordered.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the First National Bank of Garden City against James C. Tyler and other defendants, including G. W. Haflick and Elizabeth Haflick, the appealing defendants, to foreclose a mortgage given on January 29, 1921, by James C. Tyler and his wife to W. B. George to secure an indebtedness of $24,396.39, and the mortgage was assigned by George to the plaintiff bank on January 28,1922. Other liens existed against the mortgaged land, one of which was a first mortgage, not contested here, and the other was a certain judgment lien. A decree of foreclosure in favor of plaintiff was entered and defendants appeal, claiming that a sale under a judgment lien cut off the plaintiff’s mortgage.
It appears that prior to the execution of the George mortgage, and on April 3,1920, an action was brought by J. W. Gray against J. C. Tyler, the then owner of the mortgaged land, who with his family occupied it as his homestead, upon a promissory note which resulted in a judgment in favor of Gray for $760 with accrued interest. That judgment was rendered on February 19, 1921, and in the meantime, on January 29, 1921, the George mortgage was executed by Tyler and his wife. The Gray judgment was entered on one of the days of the December term of court which began on December 6, 1920, and under the statute it became a lien on the land on that date, more than a month before the execution of the George mortgage. On May 9, 1921, an execution was issued and levied upon the mortgaged land, about 1,700 acres, all of which was sold to J. W. Gray, the judgment creditor, on June 14, 1921, for $804, subject to the first mortgage. That sale was confirmed on June 18, 1921. The land, it appears, was conveyed by Tyler to L. E. Chase on February 4, 1922, and he redeemed the land from Gray, the purchaser, at the execution sale on April 6, 1922. Chase deeded the land to the appellants, G. W. Haflick and Elizabeth Haflick, on June 29, 1922. To the claim of appellants that under the operation of R. S. 60-3460 the sale and redemption by the owner cut off the plaintiff’s mortgage the plaintiff pleaded and contended, among other things, that the redemption by the owner or his grantee did not cut off an inferior lien where the holder of the inferior lien was not a party in the action.
Another contention was that the execution sale under the Gray judgment was void because the land was occupied by the owner as his homestead when the mortgage was executed. The sheriff sold the entire tract without setting off the homestead of the owner. No selection was made by Tyler, who had conveyed the tract to his grantee prior to the time of the sale, and none was made by the sheriff or by anyone else.
Taking up the homestead feature of the case, we have the question, How does the failure to make a selection and the failure of the officer to set apart a homestead affect the sale of the entire tract? Tyler occupied a part of the tract as his home and near to it he had a barn, two windmills, a chicken house and a granary, all within a compass of about an acre in a corner of a certain quarter section of the tract, with a fence around the improvements. He had land north, south and east of his home and farmed clear across three of the quarter sections without regard to their boundaries. Without question he had a homestead exemption on 160 acres of the tract contiguous to his home when the mortgage was executed, which, as we have seen, covered the entire tract. The constitution and statutory homestead right gives to the owner not only the right to occupy the homestead but also the right to sell or mortgage it and to give a purchaser or a mortgagee a valid title or a valid lien, and that right is available to the purchaser or the mortgagee, for the protection of his own right or title. In Elwell v. Hitchcock, 41 Kan. 130, 21 Pac. 109, where the question was involved, it was said:
“Of course it is true that the right to claim the benefit of the exemption law is a personal privilege, but after the owner of a homestead has sold the same the purchaser has a right, for the purpose of establishing his own title, to show that at the date of his purchase the land was a homestead, and therefore not subject to a judgment lien or forced sale. He does this, not for the benefit of his grantor, but for the protection of his own right and title. If a purchaser of land could not do this, then it would be unsafe to purchase any homestead or other exempt property. If the land was a homestead at the time Nohrenhold purchased, then the judgment of Elwell was no lien or encumbrance.” (p.132.)
See, also, Insurance Co. v. Nichols, 41 Kan. 133, 21 Pac. 111; Gas Co. v. Land Co., 54 Kan. 533, 38 Pac. 790. Under the homestead provisions of our constitution, article 15, section 9, and the statutory provision R. S. 22-102, a judgment does not attach to or become a lien upon the homestead, and although a homestead may be later abandoned the sale of the homestead under a judgment is absolutely void. (Morris v. Ward, 5 Kan. 239; Hickson v. George, 18 Kan. 253; Elwell v. Hitchcock, supra; Pitney v. Eldridge, 58 Kan. 215, 48 Pac. 854; Brewer v. Warner, 105 Kan. 168, 182 Pac. 411.)
Nothing done by the sheriff could make a judgment a lien on the homestead. Only the owner and his wife can create a lien. In the Brewer case, where it was claimed that a confirmation of the sale of a homestead under a general execution issued upon a judgment precluded a party from questioning the validity of the sale, that claim was overruled and the court, among other things, said:
“The principle just discussed applies when exempt property is sold. The sheriff suffers from a defect of power. He has no more authority to seize and sell property of the judgment debtor which is exempt than he has to seize and sell property of a stranger. He cannot create a lien, to be adjudicated by confirmation, by simply seizing and selling land withdrawn by law from the scope of his official activity.”
As the owner of the homestead owned a greater quantity of land than was exempt and did not make a selection, and as none has been made by- the mortgagee or the officer, the question arises, Was the homestead right lost by his inaction or by that of his successor as to the selection? We have a statute with reference to selection of a homestead where a levy is made on land, a part of which is exempt. It provides that—
“Whenever any levy shall be made upon the lands or tenements of a householder whose homestead has not been selected and set apart, such householder, his wife, agent or attorney may notify the officer in writing at the time of making such levy, or at any time before the sale, of what he regards as his homestead, with a description thereof, and the remainder alone shall be subject to sale under such levy.” (B,. S. 60-3502.)
The provision is permissive in character. He may make a selection and thus avoid subsequent inconvenience, subsequent contention and perhaps litigation. Its language does not purport to forfeit the homestead right if no selection is made, nor does it operate to make a judgment a lien on the homestead. In Ferguson v. Kumler, 27 Minn. 156, a like question arose, and it was said:
“The settlement of this question by the debtor householder is not made by the statute a condition, either to the creation of an exempt homestead or to his continued enjoyment of one already created. On the contrary, it distinctly recognizes the fact that an exempt homestead may exist- under the protection of the statute, when the householder is using and occupying for a home land in excess of the statutory limits, and when he has not defined the boundaries of his homestead within the prescribed limits, by setting apart the same ‘by metes and bounds’ (Gen. St. 1878, ch. 68, § 3), and, in such case, the privilege is accorded him of fixing such boundaries after a levy; but a failure to exercise this privilege is not made a cause affecting his right of exemption, either as a waiver or as a forfeiture.” (p. 160.)
See, also, Ferguson v. Kumler, 25 Minn. 183; Kipp v. Bullard, 30 Minn. 84.
The debtor, of course, cannot defeat a seizure and sale of the excess of land beyond that which is exempt, and the question arises, How shall the extent of the homestead be ascertained? The burden, it would seem, is upon the creditor to find property which is subject to a levy. The law admonishes him that the “Homestead is something towards which the eyes of the creditor may never be turned.” (Mastin v. Gray, 19 Kan. 458.) And in no event can it be sold under a general execution for debt. Whether a selection is to be made through court action or whether when the officer calls upon one holding the right to make a selection and the latter declines or neglects to do so, or whether in such a case, the officer may set apart the homestead and seize and sell the remainder, is some thing for the creditor to decide. That question is discussed at considerable length in 29 C. J. from page 967 to 972, from which it appears that varying views are held in different jurisdictions, but this is due largely to the differing statutes under which the rulings were made. Among other things, it is said that—
“The general rule is that a sale on execution or a judicial sale of property, out of which a homestead may be claimed, without setting apart a homestead for the party entitled thereto, is void, even though part of the proceeds are paid into court as the value of the homestead.” (p. 972.)
As to the matter of ascertaining the part of a tract which is subject to a judgment lien, a portion of the tract being a homestead which is exempt and no selection has been made, the Minnesota court inquires what the officers shall do in such a case, and answers it in this way:
“But in case the party, after being so called on, omit to designate the specific land which he regards as his homestead, how is it to be ascertained? How is the sheriff to know what part of the tract levied on he may sell ? It would seem that, from the necessity of the case, the sheriff must ascertain it himself and as that requires the setting apart as a homestead of the quantity of land allowed, including the dwelling house, the sheriff must do that. The failure of the party to do it, when called on, would be taken as his consent that the sheriff do it for him. The case, so far as relates to the validity of the sale, is precisely like Ferguson v. Kumler, in which such a sale was held void as to the entire tract, there being no data from which to determine what part was exempt and what part not exempt.” (Kipp v. Bullard, supra, p. 86.)
In view of the humane purpose and policy of the homestead exemption so often' expressed in the cases cited, and the liberal construction which has been consistently placed upon it, we conclude that the sale of the- entire tract including the homestead was void, and hence the defendants’ claim under the sale cannot be sustained. The fact that there was a confirmation of the sale did not operate to cure the invalidity, and in Brewer v. Warner, supra, it was held that the confirmation of a sale of land under a general execution issued upon a judgment for debt is not an adjudication that the land sold was lawfully subject to seizure and sale, and the owner was not thereafter precluded from showing that the property was a homestead and was therefore exempt from sale upon the execution. Having determined that the sale was void, it is unnecessary to consider other grounds of defense advanced by the appellants.
The judgment is affirmed.
Hutchison, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
The H. D. Lee Mercantile Company brought this action against Frank H. Dieter and Charles A. Dieter to recover on two promissory notes dated March 14,1924, due September 14,1924, payable to plaintiff in the sums of $3,816.75 and $764.38. Credits amounting to $1,341.08 were entered on one of the notes and $245.53 on the other.
The notes bore the signatures of both defendants. Frank signed the notes about the time of their dating. An issue in this case was whether Charles signed them at the same time or several months later.
Plaintiff’s petition contained the usual allegations of an action on promissory notes, with the following addition thereto:
“That after the maturity of said note, and before any payments were made and indorsed thereon, for a valuable consideration, the defendant, Chas. A. Dieter, signed and executed said note as one of the makers thereof, thereby promising and agreeing to pay the same.”
Separate verified answers were filed by defendants. In Frank’s answer it was averred that on September 16, 1924, the notes were paid and satisfied by a trust deed executed by him in favor of his creditors, one of whom was this plaintiff. By its terms a stock of merchandise in Oak Hill, -together with certain notes' and book accounts pertaining thereto, was assigned and transferred to three trustees — Federhen, credit man for the plaintiff, Myers, agent for a similar creditor, and Short, attorney for a large number of other creditors. These trustees were authorized to dispose of the assets assigned to them for the benefit of all creditors who under the trust deed would “accept the dividends in full settlement and satisfaction of their claims.”
Frank H. Dieter further answered that the trustees took possession of the stock of merchandise and sold it, and plaintiff received and accepted its proportional share of the dividends. The answer also pleaded failure of consideration.
The separate answer of Charles A. Dieter was to the same effect. It also contained a general denial and alleged that he signed the notes at the same time as his comaker.
Plaintiff replied to these answers, alleging that the release of liability in the trust deed was void because at the time of its execution Frank H. Dieter wbll knew the property assigned was wholly insufficient to satisfy the lawful demands of his creditors, and that he represented to this plaintiff and other creditors that he had no property other than the assets specified in the trust deed excepting an interest in his deceased father’s estate; and that if that interest were withheld from the assignment, indebtedness to relatives aggregating $18,000 would not be presented against the assets assigned under the trust deed. Plaintiff further replied that the trustees had relied upon such representations and did not discover their falsity until the assigned assets had been received and sold and the proceeds disbursed to the creditors. The reply further alleged that the representations touching the extent of Frank H. Dieter’s property were untrue; that at the time of the assignment he owned certain real estate, furniture and equipment pertaining to a hotel in Junction City worth $12,000, a moving picture theater equipment in Oak Hill worth $750, and town lots in Oak Hill worth $450, all of which he concealed from the trustees and retained for his own use, to the loss and damage of plaintiff and other creditors.
The reply further alleged that after the execution of the trust deed defendants Frank and Charles Dieter reéxecuted the notes in controversy. A copy of each of the notes was attached to plaintiff’s petition. Photostatic copies of them are submitted for our inspection. They are plainly dated March 14, 1924, and not otherwise, and are signed thus:
“Frank H. Dieter,
Dieter- Mercantile Co.,
By Frank H. Dieter,
Dr. Chas. A. Dieter.”
Jury trial.
To support its allegations of misrepresentation and concealment of his property by Frank H. Dieter, plaintiff exhibited a copy of a letter written by one of the trustees to the creditors concerned, which letter had been read and tacitly approved by Frank H. Dieter before mailing. It read, in part, as follows:
“Frank H. Dieter, doing business as Dieter Mercantile Co., Oak Hill, on the 16th gave to the writer, Clyde L. Short, M. H. Myers, credit man for Fitts-Smith Dry Goods Co., Kansas City, and W. H. Federhen, credit man, Lee Mercantile Co., Salina, a trust deed, covering his stock of merchandise, fixtures and book accounts at Oak Hill. The assignment was made after a conference at' Oak Hill between Mr. Myers, Mr. Federhen and the writer, representing commercial creditors, and was taken to conserve the assets of the estate and prevent bankruptcy. Many suits were pending against Dieter, many judgments were outstanding, and executions were in the hands of the sheriff.
“Indebtedness listed aggregates approximately $21,000, and will probably exceed that. An invoice is being taken of the stock and fixtures, which will probably run about $14,000. Notes and book accounts aggregate $3,000 of but little value.
“The H. D. Lee Mercantile Company and Fitts-Smith Dry Goods Company are two of the heavy creditors, and had their representatives on the ground and reached the conclusion that the action was for the best interests of the creditors and to conserve the property of Dieter and to provide for a fair and equal distribution of the proceeds of the same.
“There are no preferences under the assignment, and all of Dieter’s property is included, except his home (which is exempt and mortgaged) and a questionable equity in real estate in Clay county, mortgaged for $42,000. This is property in which Dieter has a one-fourth interest, but on account of which he claims to be indebted to his brothers in the sum of $18,000, and the brothers were not listed as creditors, do not participate in the assets under the trust deed, and for that reason the real estate was not transferred to the creditors.
“In consideration of turning this property over to his creditors for administration, Dieter insisted that the creditors accept the dividends paid by the trustees, in full settlement and satisfaction of their claims, and such clause is in the trust deed. ... ' Clyde L. Short, Trustee.”
Federhen, one of the trustees, testified that when the notes were dated and executed on March 14, 1924, they were signed thus:
“Dieter Merc. Co.,
By Frank H. Dieter.’’
Federhen further testified that on November 19, 1924, at the Planters State Bank, Charles A. Dieter signed the notes in’ suit.
Elsewhere in his testimony Federhen stated that at the time the trust deed was executed Frank H. Dieter said nothing about owning hotel property in Junction City; and after the closing of' the trust estate he [Federhen] learned that Frank Dieter owned a hotel property in Junction City worth $12,000 and owned a mortgage on real estate in Junction City of $4,000, and that Frank had told the trustees that aside from his interest as one of several heirs of his father’s estate which was chiefly Clay county realty the only property he owned was as specified in the trust deed. Certain other items of evidence were introduced, including correspondence which might have warranted the jury, if so disposed, to draw an inference that Frank H. Dieter was not quite frank with some of his creditors. On the other hand, however, it was shown, in part by evidence and otherwise by general assent of the litigants and their counsel, that the Dieter Mercantile Company had been an important business institution in Oak Hill for many years. It had been owned and operated by J. G. Dieter, who died some years ago, leaving an estate consisting chiefly of the mercantile establishment in Oak Hill, town lots and buildings in Oak Hill and Clay Center, and some 500 acres of Clay county land. At the time of his death the elder Dieter was heavily involved; and agreements pertaining to their father’s affairs were made between his sons, Frank H. Dieter, Dr. Charles A. Dieter, Dr. J. N. Dieter and their sister. These parties had acquired the interest of all other heirs. By these agreements Frank H. Dieter was to take over the mercantile establishment and endeavor to liquidate its burden of obligations to various creditors, the largest of whom was this plaintiff. It was shown and not seriously contested that Frank H. Dieter was indebted to the Dieter estate in which his two brothers and sister and himself were beneficially concerned in a sum so great that if he were forced into bankruptcy the legitimate claims of the Dieter estate and of the persons beneficially interested therein against him would have to be pressed and those claims would absorb so great a proportion of Frank’s assets that there would be less to divide among plaintiff and the other creditors than they would receive if they were content to accept an assignment of the mercantile stock and its incidents and divide its proceeds between them. Dr. J. N. Dieter testified:
“I am a brother of the two defendants and I am familiar with this transaction. I had a conversation at my office in Abilene on September 15, 1924, with my brother Frank, Mr. Federhen and Mr. Myers. I had an agreement with Mr. Federhen and Mr. Myers specifically as to what they were to cover in their assignment.
“Q. What was that agreement? A. The stock of merchandise, books and notes and not to go into outside holdings. ... I had advanced to the estate in the neighborhood- of $25,000 to $30,000 and wanted to get an agreement out of these men (they were threatening bankruptcy or trust assignment) to stay out of this other stuff. ... In that conversation the Junction City property was mentioned. It didn’t belong to Frank and they were informed of the circumstances in connection with it. Mr. Federhen said it didn’t amount to anything and he didn’t consider it anyhow. He also said the vacant lots across from the store were a minor asset. The picture show did not belong to Frank. On September 15 and 16, 1924, the estate owned the picture show.”
On cross-examination the witness testified in part:
“I had put about $25,000 in the stock and I had to be certain they (referring to creditors) didn’t get into the outside holdings.”
In the matter of the Junction City hotel it was shown that Frank had traded a herd of mules belonging to the Dieter estate for the hotel property. It was conveyed in the first instance to him, but he promptly reconveyed it to one of his brothers for the benefit of the Dieter estate.
The jury returned a general verdict for defendants and judgment was entered accordingly.
Plaintiff appeals and assigns certain errors, the first of which is predicated on its theory that the release clause in the assignment for the benefit of Frank Dieter’s creditors was fraudulent and void because that assignment had not included all of Frank’s property. But the evidence which the jury saw fit to believe was that Frank H. Dieter made no pretense that he was assigning all his property. On the contrary, the assignment was purposely limited to the assets pertaining to the Dieter Mercantile Company, and the evidence showed it was clearly understood and agreed to by the trustees that his interest in his father’s estate was not to be included — otherwise there would have been no reason or inducement for -the Dieter estate and Frank’s relatives to withhold their large claims against him, and no reason why the ordinary processes of a bankruptcy court should not have been set in motion against him. The evidence, which was quite sufficient in substance and to which the jury gave full credence, was that there was no concealment of assets by Frank H. Dieter, and that the interest in the Junction City hotel which had been temporarily conveyed to him in exchange for some mules belonging to his father’s estate was not of Frank’s property. The facts of that transaction were explained to the trustees at the time of the assignment. Neither was there any semblance of fraud in keeping the picture theater equipment out of the. assignment. It was not Frank’s to assign, and neither were the town lots in Oak Hill.
This conclusion disposes of another error based on the evidential significance which plaintiff sought to attach to Frank H. Dieter’s tacit acquiescence in the statement of facts contained in the circular letter prepared and mailed to the creditors by Short, one of the trustees. It contained no material misstatement of fact, nor any semblance of fraud.
It is next contended that the trial court misconceived the issues and instructed the jury that the voluntary assignment was one of specific property only, and even though the assignor had other property the release was binding on the creditors. In these respects the trial court’s rulings were correct. There was no ambiguity in the trust deed. Consequently its interpretation was for the court and not for the jury. (Platts v. Thompson, 126 Kan. 544, syl. ¶ 4, 268 Pac. 833; Hall v. Galey, 127 Kan. 310, 312, 273 Pac. 459; Bishop & Babcock Sales Co. v. Brogan, 128 Kan. 779, 280 Pac. 749.) Appellant presses on our attention, with copious citations of authority, the familiar rule of law that an assignment for the benefit of creditors must assign all the debtor’s nonexempt property, otherwise it is void. The transaction in the instant case was not an ordinary assignment under the statute (Woodard, Trustee, v. Morrissey, 115 Kan. 511, 223 Pac. 306), nor was it contemplated by any of the parties that it should be so construed. The assignment created a trust for the especial benefit of a certain class of creditors. It was effected by negotiation between two classes of creditors— the debtor’s relatives and his father’s estate, who held the heaviest claims against the debtor but who were disinclined to press them to immediate liquidation constituting one class, and the ordinary business creditors of the Dieter Mercantile Company, like plaintiff, who were pressing for immediate satisfaction, comprising the other. By agreement of representatives of all parties concerned a trust estate was created of the assets of the Dieter Mercantile Company for the satisfaction of the claims of plaintiff and creditors of similar character and that the other class of creditors should not participate in the dividends. Since no one questioned the authority of the trustees to act for the participating creditors, their acceptance of the trust and their performance of the trust duties and the acceptance of the dividends realized from the sale of the trust property by such creditors as plaintiff completely foreclosed all question by plaintiff touching the validity of the release, which was an integral and vital part of the trust deed.
One of the headnotes in the early case of Scott v. Edes, 3 Minn. 377, reads:
“The acceptance of dividends under an assignment, by a creditor, is an assent to, and confirmation of such assignment by him; and if he afterwards discover its fraudulent character, he must offer to return whatever hé has received under it, before he can be in a position to disaffirm it.”
In Gutzwiller v. Lackman, 23 Mo. 168, it was held:
“A creditor who knowingly acquiesces in a sale made by a trustee under an assignment for the benefit of creditors, and accepts his proportional share of the proceeds of the sale, is estopped to deny the validity of the sale.”
In the case at bar, Federhen, agent of plaintiff, took an active hand in the creation of the trust, served as one of the trustees, and his principal accepted its proportional share of the proceeds of the sale of the trust property, consequently plaintiff is estopped to question the validity of the terms upon which the trust deed was executed, and particularly is plaintiff estopped to question the validity of the release which was the inducing cause for the debtor to execute the trust deed and one of the inducing causes for the relatives and the father’s estate to forego their right to participate in the dividends.
Other authorities supporting this view are: Butler & Alford v. O’Brien et al., 5 Ala. 316; Bowden v. Spellman, 59 Ark. 251; Thompson et al. v. Peck et al., 115 Ind. 512; Adlem v. Yard, 1 Rawle (Pa.) 163; 5 C. J. 1295-1296.
Appellant suggests that the dividends have been credited on defendants’ notes, consequently that a return of the dividends is unnecessary to a disaffirmance. That contention leaves out of consideration the rights of that class of Frank Dieter’s creditors who were induced by Federhen, plaintiff’s agent, to agree not to participate in the dividends of the trust estate.
Another error is assigned on the admission in evidence of the testimony of Frank H. Dieter and Dr. J. N. Dieter touching the efforts of Federhen to collect on these notes prior to the execution of the trust deed, and also on certain testimony of Charles A. Dieter. It does not readily appear how this testimony transcended the rules of evidence. An issue in this case was whether the. notes in suit were re-signed and reexecuted by the makers after their maturity and after the execution of the trust deed. The testimony of defendants was competent as bearing on that issue.
It is finally urged that the verdict and judgment were contrary to the evidence and contrary to law. The record contains no error of law, nor does it reveal anything which would permit this court to hold that the verdict was not supported by competent and sufficient evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
JohTnston, C. J.:
This action was brought to obtain an interpretation of the will of Isaac Wilkison, who died on October 25, 1916, leaving as his heirs his widow, Mary C. Wilkison, a son, William Wesley Wilkison, the plaintiff, and another son, Harrison W. Wilkison. The will was probated on November 1, 1916, when the widow elected to take under the will. The widow and the plaintiff were appointed to execute the will, a copy of which is as follows:
“I, Isaac Wilkison, of the town of Dwight, in Morris county, state of Kansas, being of lawful age and sound mind and disposing memory, do make, publish and declare this to be my last will and testament.
“1st. It is my will and I direct that out of my estate all my just debts and all the expenses of my last sickness and funeral expenses be paid in full.
“2d. I give and devise to my son, William Wesley Wilkison, the west half of the southeast quarter of section 12, in township 14, range 7; also blocks sixty-four, sixty-five, sixty-six and C in the town of Dwight, all in Morris county, Kansas.
“3d. I give and bequeath all the rest and residue of my property, both real and personal, of which I may die seized and possessed, to my beloved wife, Mary C. Wilkison, to hold, use, possess and enjoy during the period of her natural life, and after her death I will and devise and I hereby devise to my son, William Wesley Wilkison, the southwest quarter of section 12, township 14, range 7, and the north half of the southeast quarter of section 11, township 14, range 7, all in Morris county, Kansas, and to my son, Harrison W. Wilkison, I give and bequeath the northwest quarter of section fourteen, the north half of the northeast quarter of section fourteen and the south half of the southeast quarter of section eleven, all in township fourteen, range seven, in Morris county, Kansas.
“4th. I give and bequeath to my son, Harrison W. Wilkison, the sum of three hundred dollars a year until he arrives at the age of twenty-one years, provided that he attend some good college and diligently pursue his studies in such college until he arrives at his majority. I desire to be understood that said three hundred dollars per year is for the purpose of being honestly expended by my executors for and upon the education of my said son, Harrison W. Wilkison, and should he refuse or fail to attend and study as herein specified, then he is to receive no part of said money for the time he fails to attend and study as herein desired.
“5th. After the death of my wife, I will, devise and direct that all the property left on hand by her should be equally divided between my two sons, except the property apportioned and devised to each of them herein already.
“6th. Should either of my sons or any daughter-in-law be dissatisfied with my disposition of my property as made under and in this will and undertake to contest- or set aside this will, then such son or daughter-in-law should heir only five hundred dollars out of my estate and the rest shall be'equally divided among my other heirs upon the death of my wife.
“7th. I hereby nominate and appoint my wife and son, William Wesley Wilkison, executors of this my last will and testament, and I direct that they shall not be required to give bond.
“8th. I hereby revoke all former wills made by me.
“In testimony whereof I have hereunto set my hand and subscribed my name to this my last will and testament in the presence A. Moser, Jr., and L. H. Brigham, this 8th day of October, a. d. 1906. Isaac Wilkison.”
The widow took possession of the life estate given to her and the administration of the estate proceeded to December 2, 1918, when a final settlement was made on the theory that she had been granted a life estate, and was entitled to and was the owner of the income from the lands, and the investment of the funds during her lifetime. It appeared that she had as her separate estate, apart from what was given to her under her husband’s will, quite a sum of money, amounting to nearly $12,000. In this action the district court ruled that the will gave the widow a life estate and adjudged that the plaintiff recover one-half of $2,223.97, the right of plaintiff to the amount never having been disputed, and assessed the costs against the plaintiff.
The principal contention in the case arises over the interpretation of the will, and plaintiff states that the only question involved in the case is the proper construction of the will. He contends that item 5 of the will should be construed as devising and bequeathing not only the property owned by the testator but also all the property owned by Mary C. Wilkison at her death. She died December 3, 1928, leaving a will in which W. W. Pease was named as executor. The provisions of her will are not included in the record and are not involved in this action. It is insisted that the provision of the will directing that, “After the death of my wife, I will and devise and direct that all the property left on hand by her should be equally divided between my two sons, except the property apportioned and devised to each of them herein already,” carries not only the property given by the will, but also the individual property owned by his wife at her death. It is argued that since she had accepted under the terms of the will, all the property left by her, whether it was her own individual property or that devised to her, was to be equally divided between the two sons. Did the testator undertake to dispose of his wife’s individual property? It is not lightly to be assumed that a testator intended to dispose of' property which’he did not own. It cannot be done unless there is an unequivocal expression in the will which leaves no doubt of the testator’s intention before the widow is put to an election. In 1 Pomeroy’s Equity Jurisprudence, § 472, it is said:
“In order to create the necessity for an election, there must appear' upon the face of the will itself, or of the other instrument of donation, a clear unmistakable intention, on the part of the testator or other donor, to dispose of property which is in fact not his own. This intention to dispose of property which in fact belongs to another, and is not within the donor’s power of disposition, must appear from language of the instrument which is unequivocal, which leaves no doubt as to the donor’s design; the necessity of an election can never exist from an uncertain or dubious interpretation of the clause of donation.” (See, also, §§ 473, 474.)
In 2 Underhill on Wills, §730, the subject is treated and the following is said:
“The ordinary presumption in all cases is that a man in making his will intends to dispose of his own property alone. An intention on the part of the testator to dispose of the property owned by another person must either appear on the face of the instrument in express language or must arise from necessary implication. . . . But where the testator owns property in which another person also has a part interest, or a charge thereon, or where he owns a share in property and another person owns the residue, and the testator devises the whole property in vague or general language, the question at once arises, Does he intend to dispose of the whole property, including the interest of the other person, or does he intend to confine his disposition of the property exclusively to the interest which he owns? The reasonable presumption is in favor of the latter proposition, and the courts, in construing a general disposition of property in which the testator has only a partial interest, will favor a construction which will dispose only of the actual interest of the testator.”
In 28 R. C. L. 233 it is said:
' “Another presumption recognized by the’ courts in construing wills is that the testator intended to dispose of property which he owned and that he did not intend to devise any property over which he had no power of testamentary disposition. For example, a devise in form of .particular lands in which the testator or his mortgagee only passes the mortgage interest as being that which he must have intended as his gift. The presumption is that the testator knew his own titles and the powers he had in reference to the property held by him.”
The will was in no sense a joint or mutual one. None of the wife’s property was described in the will and nothing in it to indicate that the testator owned any share in her property. The giving and bequeathing paragraph in specific terms relates to “my property, both real and personal, of which I may die seized.” The only claim that he intended to devise more than his own is the farfetched implication in the clause in item 5 that all the property “left on hand by her” should be equally divided between the sons. The reasonable inference is that he was referring to property described and given by him in item 3 of the will — the remaining part of that which he actually owned. Within the general rules for the construction of wills, there is not that clear and unequivocal language in the instrument showing an intention of the testator to dispose of the individual property of the wife so as to put her to an election.
The contention that the will is less than a complete life estate cannot be sustained. The devise was not limited to mere support and maintenance. The provision in the fifth item did not operate to cut down the estate clearly given in the third item. Under the authorities she was given a life estate with the power of disposal. In Greenwalt v. Keller, 75 Kan. 578, 90 Pac. 233, involving a question similar to the one we have here, the decision as stated in the syllabus is:
“A will contained the following clause: ‘First, I wish my wife, Eliza Bunt, to have all my property of every kind that I may own at my death, to have for her own use and benefit while she may live. And at her death all property that may be left by her’ — then follows a disposition thereof. Held, that the widow took a life estate, with power of disposal in fee.”
See, also, Otis v. Otis, 104 Kan. 88, 177 Pac. 520, and cases cited; West v. West, 106 Kan. 157, 186 Pac. 1004; Elwell v. Stewart, 110 Kan. 218, 203 Pac. 922; Mansfield v. Crane, 116 Kan. 2, 225 Pac. 1087; 40 Cyc. 1615, 1629.
Following these authorities, the judgment of the district court must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Jochems, J.:
This was an action for injunction. Defendants demurred to plaintiff’s petition and the court overruled the demurrer. Defendants appeal from that decision.
The petition alleged, in substance, that plaintiff originally owned the land upon which the city of Hutchinson is situated; that it conveyed this land to one C. C. Hutchinson, who in turn platted the town; that in the conveyance the right of way of its railroad through the said city was reserved to plaintiff in fee simple. Plaintiff alleged that C. C. Hutchinson platted the land so conveyed to him as the townsite of Hutchinson, Kan., and in so doing platted the ground situated on both sides of its right of way at the points in controversy, and divided it into the lots as shown by plats attached to the petition as exhibits A and B. (These exhibits A and B are reproduced herewith.)
Plaintiff further alleged that under ordinance No. 1980 the defendants had levied upon the abutting owners and other property-owners, to the center of what defendants contend are the blocks lying north of Second avenue between Poplar and Elm streets, and the blocks lying south of Third avenue, between Poplar and Maple streets, as described in the petition, for the purpose of meeting the cost of paving Second and Third avenues between the points shown in the plats; that the ordinance levied taxes upon the property of the plaintiff in each instance lying beyond the center of the platted lots and in fact lying many feet beyond the center line of the platted lots.
The plaintiff’s petition charged that the levy was unlawful as against plaintiff’s property, and further asked that the court enjoin defendants and all persons acting under them from certifying the assessment to the County clerk and from collecting or attempting to collect any part of the cost of paving the streets.
The appellants contend that the court improperly overruled their demurrer to the petition and that plaintiff’s petition shows .on its face that the property of the appellee was rightly included in the benefit district. Appellants take the position that the language of the statute indicates that the “block” which the legislature had in mind was one composed of either platted or unplatted ground, or both, surrounded entirely by streets, which conforms generally in-size and shape with other such tracts in the vicinity.
R. S'. 12-601 provides:
“ . . . Whenever any street or avenue in any city shall. be-. . . . paved . . . the cost of such improvement shall be paid-by and. assessed to the property on each side of said street or avenue to the middle of the block.”
The appellee contends that the lots in the platted tracts abutting upon the improved streets which lie between the improved streets and the right of way of plaintiff in each instance constitute a block and should bear the cost of the paving in that block. Further, that the fact that the block lying immediately north of Third avenue and between Poplar and Maple streets is smaller than the block lying immediately north of the improvement between these two streets makes no difference. In support of this contention it cites Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801, and Larson v. City of Ottawa, 101 Kan. 422, 166 Pac. 565.
The situation here presented is similar to that which was before the court in Atchison, T. & S. F. Rly. Co. v. City of Ellinwood, 119 Kan. 218, 238 Pac. 341; and Atchison, T. & S. F. Rly. Co. v. City of Kingman, 122 Kan. 504, 252 Pac. 220. In Railway v. Ellinwood, supra, a similar situation was carefully considered, and in discussing it the court said:
“Here the abutting ground is platted and there is no rational theory upon which the land can be treated as unplatted for assessment purposes. The city contends that'because the blocks named are not surrounded by streets it cannot be treated as platted ground. Blocks are mentioned in the statute, and in the popular understanding blocks are ordinarily to be regarded as parcels of ground surrounded by streets. (Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405.) If land is actually platted so that no street is established on one side of a block, as it might be on the outer boundary of a city or along the boundary of a river, could it be said that the ground would escape assessment entirely for the improvement of a street upon which it adjoined? Being platted, it cannot be assessed under the rule for unplatted land, and if it cannot be assessed as platted land there would be no rule under which it could be assessed at all. We think it was the intention of the legislature that platted land adjoining a street to be improved should be subject to an assessment, although it might be irregular in form or size and that streets had not been laid out on all sides of it. . . . Our conclusion is that the assessment of the right of way south of these blocks was invalid and should have been enjoined.” (pp. 221,222.)
In the same case, in discussing the situation with reference to block K, the court said: ,
“Whether it be regarded as a lot or a block it'comes within that provision of the statute that lots or blocks abutting a street to be improved shall be assessed as such to pay for the improvement. While it is exceptional in form, size and situation, it separated the right of way fro'm the improved street and hence cannot be considered to be united with the right of way and together treated as unplatted territory.” (p. 222.)
In Union Pac. Rld. Co. v. City of Russell, 119 Kan. 350, 240 Pac. 264, the court said:
“The theory of our law is that land platted into lots or blocks abutting on an improvement shall be assessed for such improvement, the block being the unit' and the levy to extend to the middle of the block. It is contended by the city' that as blocks 50 and 51 are not completely surrounded by streets they cannot be regarded as units for assessment purposes. . . . The case cited in which a general definition of a block is given as a square surrounded by streets is not to be strictly applied in exceptional cases where under the general scheme of platting a platted tract is substantially a block and has been so designated on the plat.” (p. 353.)
To the same effect is Atchison, T. & S. F. Rly. Co. v. Kingman, supra.
The decision of the trial court in overruling defendants’ demurrer was correct.
It will be noted from exhibit B that the right of way of the appellee abuts on Second avenue between Maple and Elm streets, which is a distance of about a third of a block, and to this extent, under a proper ordinance, the appellee should pay its proportionate part of the cost of the improvement. However, since it appears from the petition that the assessment of the entire cost has already been made under ordinance No. 1980, and that the ordinance is invalid and unlawful as attempting to assess a portion of the cost against the right of way of the appellee, which does not abut on the streets to be improved, the entire proceeding must fall and the order of the district court in overruling the demurrer must be sustained.
The decision of the trial court in overruling defendants’ demurrer is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff is endeavoring to recover from the Maryland Casualty Company the sum of $511.90 for building material sold to the Vaughn Construction Company to be used in the construction of a building at Emporia, Kan. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The Vaughn Construction Company had entered into a contract with the Citizens Building Company for the construction of a building in Emporia and had commenced the construction of the building. The plaintiff sold building material to the Vaughn Construction Company, which material was used in the construction of the building. After that material had been so used, the Vaughn Construction Company assigned in writing its contract to the Maryland Casualty Company in the following language:
“In consideration of one dollar, receipt of which is hereby acknowledged, and on account of the Maryland Casualty Co. becoming surety on the bond of the Vaughn Construction Co., a corporation organized under the laws of the state of Nebraska, the Vaughn Construction Co., its successors and assigns, does hereby assign, set over and transfer to the Maryland Casualty Co., a corporation organized under the laws of Maryland, all of its rights,, title and interest in a certain contract entered into between the Yaughn Construction Co. and the Citizens Building Co., of Emporia, Kan., for the erection of a banking building at Emporia, Kan.”
The abstract shows “that the specifications, which were made part of the original building contract, provided that ‘unless otherwise stipulated, the contractor shall provide and pay for all material, labor, water, tools, light and power necessary for the execution of the work.’ ” The abstract also shows that the bond was given “to indemnify the building company only against ‘loss or damage directly arising by reason of the failure of the principal to faithfully perform said contract . . ”
This action is not on the contract, nor on the bond; it is on the assignment and on that alone.
One question presented is: Did the assignment signed by the Yaughn Construction Company place on the Maryland Casualty Company any obligation to pay the plaintiff for the material that had been purchased and placed in the building by the Vaughn Construction Company before the assignment was made? The Maryland Casualty Company did not in the assignment expressly assume the obligations of the Vaughn Construction Company to persons from whom it had purchased material to be placed in the building.
Section 33-106 of the Revised Statutes in part reads:
“No action shall be brought whereby to charge a party upon any special promise to answer for the debt, default or miscarriage of another person . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
The Maryland Casualty Company did not sign the assignment.
The debt to the plaintiff was the obligation of the construction company, not of the Maryland Casualty Company. It is argued by the plaintiff that the Maryland Casualty Company, when it accepted the assignment'from the Vaughn Construction Company, obligated itself to pay the debts contracted by that company in the erection of the building. It may be that the Maryland Casualty Company was liable for the obligations of the Vaughn Construction Company to the Citizens Building Company; but even if the casualty company was so liable, it does not follow that it was liable to parties other than the Citizens Building Company.
It does riot appear that the Citizens Building Company was under any obligation to pay the plaintiff for the material sold to the Vaughn Construction Company. No mechanic’s lien was filed against the building. If one had been filed and the Citizens Building Company had been compelled to pay the plaintiff for the material sold to the Vaughn Construction Company to free the building from that lien, the building company might have had a claim against the construction company which could have been reduced to judgment. As the situation is,- the Citizens Building Company does not have any claim against the Vaughn Construction Company. If the plaintiff did not have any claim against the building company it follows that the plaintiff does not have any claim against the bonding company.
The answer alleged that “all issues raised in the plaintiff’s petition are res adjudicata, having been fully adjudicated in case No. 37,232, George W. Hargreaves v. Vaughn Construction Co. et al.”
Plaintiff, in his abstract, says:
“In said cause No. 37232 plaintiff obtained judgment for $511.90, with interest from January 21, 1924, against the Vaughn Construction Company. He failed to recover against the Maryland Casualty Company, on'the bond, it being given to indemnify the building company only, against ‘loss or damage directly arising by reason of the failure of the principal to faithfully perform said contract . . .”’
The record discloses that this is the second action prosecuted by the plaintiff to recover from the Marylánd Casualty Company for the material sold to the Vaughn Construction Company. The first-action resulted in a judgment for the casualty company. No appeal was taken from that judgment. The questions now presented could have been litigated in that action. Both actions have been prosecuted for the recovery of the purchase price of the building material sold by the plaintiff to the Vaughn Construction Company. The first action was prosecuted on the theory that the Maryland Casualty Company was liable on its bond; the present one is prosecuted on the theory that the casualty company is liable under the assignment of the building contract. Both theories could have been presented in the first action.
In Snehoda v. National Bank, 115 Kan. 836, 840, 224 Pac. 914. it was declared that—
“It is a general rule of law, indeed an elementary one, that in a lawsuit between litigants in their ordinary capacity, so far as relates to a subsequent action on the same claim, not only is everything adjudicated between them which the parties may properly choose to litigate, but also everything incidental thereto which could have been litigated under the facts which gave rise to the cause of action. (Hentig v. Redden, 46 Kan. 231, 26 Pac. 701; C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96; Marshall v. Railroad Co., 96 Kan. 470, 152 Pac. 634; Greenwood v. Greenwood, 96 Kan. 591, 152 Pac. 657; Id., 97 Kan. 380, 383, 155 Pac. 807; Tatlow v. Bacon, 101 Kan. 26, 29, 165 Pac. 835; 23 Cyc. 1295 et seq.; 15 R. C. L. 962 et seq.)”
That rule was followed in Winkler v. Korzuszkiewicz, 118 Kan. 470, 235 Pac. 1054; Lux v. Columbia Fruit Canning Co., 120 Kan. 115, 242 Pac. 656; Fletcher v. Kellogg, 125 Kan. 330, 263 Pac. 1048.
The right of the plaintiff against the Maryland Casualty Company to recover for the building material sold to the Vaughn Construction Company was litigated in the former action, and judgment was rendered therein. That judgment is final and conclusive and bars the plaintiff from prosecuting another action against the casualty company for the recovery of the purchase price of the building material.
The judgment is affirmed.
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