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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order of the district court of Leavenworth County denying petitioner a writ of habeas corpus.
From the meager record presented to us for review it appears that in May, 1950, petitioner was charged with the offense of grand larceny in Woods County, Oklahoma, and that while confined in the county jail of Beaver County, Oklahoma, he escaped. While at large he committed a Federal offense, namely, violation of the Dyer Act. Upon being apprehended he was prosecuted by the Federal authorities and entered a plea of guilty in Federal court in Oklahoma. He was sentenced to confinement in the United States penitentiary at Leavenworth for a term of five years. In December, 1953, he was granted a conditional release from the Federal penitentiary, and pursuant to extradition proceedings brought by the state of Oklahoma is being held for delivery to the authorities of Woods County, Oklahoma, for prosecution on the grand larceny charge still pending in that county.
His application for a writ of habeas corpus being denied by the lower court, petitioner has appealed.
If we understand his contentions correctly they are that the Oklahoma state autihorities waived the right to prosecute him on the grand larceny charge in Woods County by permitting him to be turned over to and prosecuted by the Federal authorities in that state, and that he is not a fugitive from justice within the meaning of the extradition act.
Both questions have on numerous occasions been decided by this court adversely to petitioner’s contentions.
With respect to the question whether petitioner is a fugitive from justice, see In re Martin, 142 Kan. 907, 52 P. 2d 1196, and Thompson v. Nye, 174 Kan. 750, 257 P. 2d 937, both of which hold that one in petitioner’s status and position is such a person within the meaning of the extradition act.
And, with respect to petitioner’s other contention, it has been held that one who is on parole from a Federal penitentiary, and thus in constructive custody of the Federal government, cannot himself take advantage of his status by way of defense to a prosecution by state authorities, and that the matter of his custody is one of comity between the two jurisdictions and is a subject over which he has no voice. (Powell v. Turner, 167 Kan. 524, 207 P. 2d 492, 338 US 835, 94 L ed 509, 70 S Ct 41; Muscia v. Turner, 169 Kan. 445, 219 P. 2d 353, and Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987, 340 US 940, 95 L ed 678, 71 S Ct 503.)
The record presents no grounds for release from custody, and the judgment of the lower court is therefore affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This appeal involves a proceeding to have a road laid out and opened over the land of an adjoining landowner in order that petitioner might have easier access to a small tract of her land without crossing a stream which separated that part from the remainder of her land.
The petitioner prevailed before the board of county commissioners and respondent landowner appealed to the district court, which sustained the order of the county commissioners. Respondent has appealed to this court.
Respondent’s exhibit 4 was admitted in evidence and is as follows:
The exhibit is included here in order that the reader may more readily visualize the location of petitioner’s and respondent’s lands, the public highways along the south and west of petitioner’s land and the location of the requested road, which is immediately to the east of petitioner’s land. The road requested was east of the
line marked “Hedge Row” in the exhibit. The purpose of the road was to give petitioner access to about a seven acre tract which we have marked “X” in the exhibit. The exact location of the requested road may be found in the findings of fact to be quoted presently. Respondent filed written objections to the petition prior to the hearing before the commissioners. The principal objection urged before the commissioners, in the district court and in this court, to the laying out of the road over his land is:
“In asking for said road, said petitioner, Wadie G. McCluggage, cannot bring herself within the purview of the Kansas Statute G. S. 68-117 for the reason the land owned by her which would be served by such road is a part of a contiguous tract of land owned by her which is bounded by and abuts upon a public highway on the South and on the West. A public highway bounds the Wadie G. McCluggage land on the South for approximately three thousand feet and on the West for approximately eighteen hundred feet.”
The pertinent part of G. S. 1949, 68-117, pursuant to which thé road was sought, reads:
“That whenever the premises of any person in this state shall be so completely surrounded by adjoining lands, the property of other persons, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie for a road, and one road only, through some portion of the adjoining lands, and the board, on presentation of such petition, shall proceed in accordance with the provisions of the sections of the act to which this is amendatory to lay out such road, make returns of plats, and allow damages, if any should be held or allowed: Provided, Said road shall not exceed twenty-five feet in width and be laid out upon the quarter or quarter-quarter section lines when practicable.” (Our italics.)
The district court made findings of fact as follows:
“1. In this matter Wadie G. McCluggage is the petitioner and M. L. Loomis is the respondent.
“2. On November 18, 1936, the petitioner became the owner of about 110 acres of land, most of which lies in the Southwest Quarter of Section 16, Township 27, Range 4 in Butler County, Kansas, and about four acres of which lies in the Southwest corner of the Southeast Quarter of said Section 16. At the time petitioner acquired said land, she also acquired an easement or right-of-way one rod wide, running north and west from the highway abutting said land on the south and being between a hedge fence and the Whitewater River. The right-of-way was used to get from the highway to a tract of petitioner’s land consisting of about seven acres, lying north of the river. Except for said seven-acre tract all of petitioner’s land lies west and south of the river. Of said seven-acre tract about three to four acres thereof is tillable.
“3. All of petitioner’s land abuts a public highway on the south and on the west and petitioner can reach either one of said highways from any point on her land without crossing the land of any other person but without using the aforesaid right-of-way petitioner would have to cross the river to get from said seven-acre tract to a highway.
“4. The river running through petitioner’s land has a rock bottom and at normal stage it is from 20 to 30 feet wide and is of an average depth of from IK to 2 feet. For a short distance it is from 3 to 4 feet deep. Petitioner owns about K mile of the river.
“5. Until about 1951, petitioner used the right-of-way to get from the highway on the south to the seven-acre tract but made no effort to keep the right-of-way in repair or from washing.
“6. The bank on the east side of the river is about twenty feet high and is almost perpendicular. The bank on the west side of the river is not quite so high and not quite so steep. Floods in the Whitewater River throughout the years have constantly washed away the east bank until it has washed away about the south 600 feet of this one rod easement or roadway. For that distance the hedge fence is on the very edge of the river bank, which at this point is not less than twenty feet above the water’s edge and the bank is almost perpendicular. This one rod roadway has been washed into the river until it is not even possible to walk between the river bank and the hedge fence, and not possible to make any use of what was formerly the easement or roadway. -
“7. When there was sufficient space between the hedge fence and the river bank, the petitioner and former owners of the 110 acres used the easement or roadway as a place of passage from the highway on the south to the seven-acre tract. During the last few years no one has been able to make any use of the south 600 feet of this easement or roadway.
“8. The respondent owns the land abutting the right-of-way on the east and north.
“9. There is no evidence that the land belonging to the petitioner and the land belonging to the respondent were ever owned by one person at the same time.
“10. On the theory that she had the right to do so, under and by virtue of G. S. 1949, Sec. 68-117, petitioner asked the County Commissioners of Butler County, Kansas, to open and lay out a road 25 feet wide over and across respondent’s land from the highway on the south to the seven-acre tract lying north of the river.
“11. Respondent filed his objections to establishing a road as asked for by the petitioner on the ground that the petitioner had no authority for such relief under Sec. 68-117 of the General Statutes of 1949, but that if said roadway be legally established that he be given damages in the sum of $3,000.00.
“12. The County Commissioners as viewers established the road and allowed damages to the respondent in the sum of $209.00 for the land taken, for fencing and for fees, and petitioner paid said amount of $209.00 in to the office of County Treasurer of Butler County, Kansas; which amount the respondent has refused to date to accept and draw from the County Treasurer.
“13. The respondent has appealed to the District Court of Butler County, Kansas, from the order of the County Commissioners on the ground that the County Commissioners had no power or authority to establish the road under Sec. 68-117 of the General Statutes of 1949, but did not appeal from the allowance of damages and no evidence of damage was introduced at the trial.
“14. The estimated cost of building a low-water bridge and cutting down the banks of the river to form an approach to the bridge would cost between $3500 and $4500. There would, in all probability, be additional cost for cleaning out the approaches and removing debris from the bridge after occurrences of high water.
“15. That two low water bridges which are already in existence on the Whitewater River at which places the width and depth of the stream, bottom of the river and banks were comparable to the condition of the width and depth of the river, banks and the bottom of the river as existed where it passed through the McCluggage land. One of said bridges is located approximately one mile north of the McCluggage land on private property and the other is approximately four miles north, where the river crossed a public highway. There was no evidence as to whether these bridges were constructed and maintained by private parties or at public expense.”
Its conclusions of law were:
“That the County Commissioners of Butler County, Kansas, did have jurisdiction to establish the road in question under and by virtue of Section 68-117 of the General Statutes of 1949, and that the respondent by claiming damages waived any objections to the power ánd authority of the County Commissioners under and by virtue of said section and that the order of the County Commissioners is sustained.”
In addition to the finding that respondent introduced no evidence of damage to his land in the district court it also should be stated he introduced no evidence on that subject before the county commissioners. His objection to the petition and hearing before the commissioners and in the district court was, as previously indicated, that G. S. 1949, 68-117 was not applicable to the facts in this case and did not authorize the laying out of the road. He expressly alleged in his written objections before the commissioners he sought damages only in the event the road was legally opened. He did not allege that he sought damages “in the event the commissioners determined it was legally opened.”
In addition to the foregoing findings it also is admitted petitioner moved to dismiss respondent’s appeal in the district court. The motion was based on the ground respondent could not claim damages to his land and at the same time contend the county commissioners were without authority to lay out the road.
The record further discloses:
In the district court petitioner demanded to know whether respondent was claiming damages or whether he was merely contending the commissioners had no legal right to lay out the road; respondent replied he was contesting solely the legal authority of the county commissioners to lay out the road under the provisions of G. S. 1949, 68-117 on which petitioner relied; the court reserved its ruling on the motion to dismiss the appeal; the court did not later sustain petitioner’s motion to dismiss the appeal but on the contrary it passed on the merits of the appeal and further concluded respondent, by claiming damages, waived any objection to the power and authority of the commissioners. (See conclusion of law previously quoted.)
In the first place we think the trial court erred in its interpretation of the statute. Neither the entire tract of petitioner’s land nor the seven acre tract alone is “. . . so completely surrounded by adjoining lands, the property of other persons, as to be without access to any public highway. . . .” (Our emphasis.) Moreover, the court did not find petitioner’s entire tract of land or the seven acre tract was so surrounded. (See finding 3.) The statute makes no provision for laying out a road over the land of another or others to a portion of a petitioner’s land which is separated from the remainder of his land by a stream, gulch, deep ravine or any other natural depression or obstruction which in its normal state renders access thereto difficult or impossible. The statute declares the precise conditions under which a person is permitted to petition the board of county commissioners for a road. County commissioners and courts are without authority or power to substitute their own conditions therefor or to read exceptions into the statute.
Furthermore if it be assumed that the statute contemplates the opening of a road over another’s land in order that a petitioner may have access to a public highway from each and every portion of his land, the facts in this case clearly disclose the statute nevertheless is inapplicable. The seven acre tract of land, even if it could be considered separately, is surrounded on the south, west and east by petitioner’s own land and by a stream across his own land. Only on the north is it bordered by the land of another, the respondent.
It follows the actions of the county commissioners were wholly without authority of law. Under such circumstances it was early held a district court has full power to review and set aside the order where the record shows the proceeding was without authority of law. (Comm'rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129; Howell v. Redlon, 44 Kan. 558, 561, 24 Pac. 1109.) The statute sets forth the conditions precedent which must exist before a person may even petition the board of county commissioners for a road. The instant petition for the road alleged none of them.
Touching the subject of damages it is clear respondent introduced no testimony on that subject before the commissioners or in the district court. He claimed no damage unless the road were legally laid out and insisted the proceedings were wholly outside the purview of the statute. He was not obliged to accept damages awarded in an illegal proceeding and he has not done so. Under the circumstances he is not precluded by the illegal award of damages from contesting the legality of the road by appeal. In fact, there could be no legal award of damages in an illegal proceeding to establish a road. The award of damages falls with the illegality of the proceedings in which it was made. (Sample v. Jefferson County, 108 Kan. 498, 196 Pac. 440.)
Of course, it often has been held a party may not file a claim for damages, litigate that issue, and thereafter appeal from the amount of the award, thereby conceding jurisdiction and power of the county commissioners to determine the extent of his damage, and at the same time contend no road was laid out. That is the class of cases decided by this court and relied on by petitioner. We need not review them. They are not controlling here. The case cited by petitioner in which no appeal was taken from the award of damages is Willis v. Stafford, 84 Kan. 570, 114 Pac. 854. In that case the complaining landowner later sought, in an independent action, to enjoin the opening of the road contending it was not laid out where it was intended to be. Injunctive relief was denied. The case is not helpful.
Respondent, at every stage of the proceedings, raised the issue of the county commissioners’ lack of authority to lay out the road under the provisions of the statute. Whether respondent, in a neighborly spirit, should accede to petitioner’s request for a road over his land is not the issue before us. If respondent is compelled to yield a right of way over his land under the facts in the instant case why may a right of way not be demanded under numerous situations, not within the scope of the statute, where an acre of land, or even less, is not easily accessible by virtue of some natural obstruction or depression on petitioner’s own land?
There may be other conditions than those prescribed in the instant statute under which it would be equitable and just to permit the taking of another’s land in order for a petitioner to obtain ready and economical access to separate portions of his own land but if that problem is to be solved on an equitable basis we think the legislature should prescribe the conditions. Petitioner admits she does not contend she is entitled to a “way of necessity” as that term is understood in the common law. Decisions from other jurisdictions cited by petitioner are not controlling under our statute.
Petitioner filed a cross-appeal from the refusal of the court to make additional findings of fact and conclusions of law. She, however, only directs attention to her cross-appeal without stressing it. Although some of the requested findings might have been made they would not affect the decision if they had been made. The requested conclusion of law, in substance, was that the petition for the road and the actions and proceedings of the county commissioners did not involve the exercise of judicial powers and, therefore, the district court had no jurisdiction to review súch actions. While it is sometimes rather loosely stated the establishment of roads involves only legislative and administrative powers such a statement is technically accurate only insofar as it involves the proceedings pertaining to the viewing and laying out of a road. Manifestly, however, the interpretation of a statute in order to determine its applicability to a given situation is not a mere ministerial act. That function is strictly judicial in character. If that function could be exercised with complete finality by a board of county commissioners they would be empowered to do whatever they pleased irrespective of the legality of their acts. The requested conclusion of law was properly denied.
. It follows the rulings from which the main appeal was taken are reversed and the rulings from which the cross-appeal was taken are affirmed. It is so ordered.
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The opinion of the court was delivered by
Parker, J.:
This was an action by an executor to recover for property alleged to have been obtained from his deceased testator by undue influence during the existence of a confidential relationship. Plaintiff recovered and defendant appeals.
At the outset it can be said that this is not a case where a detailed reference to the pleadings is essential to a proper understanding of the facts on which the rights of the parties depend or required to dispose of the appellate issues involved. Nevertheless, for present purposes, it should be stated plaintiff, as the duly appointed and acting executor under the last will and testament of Fred Johnson, deceased, commenced this action against the defendant, George Lowell Johnson, the decedent’s son, by the filing of a petition which, under appropriate allegations, charged that a discovery, disclosure and accounting concerning numerous transactions had between them would disclose that defendant had acquired a large portion of his father’s property, during the last few years preceding the latter’s death, under conditions and circumstances warranting a return of that property to the estate or judgment for its value and prayed for relief accordingly.
Following the filing of the petition it was attacked by a motion to strike certain of its allegations and to make others more definite and certain. This motion was sustained in part and overruled in part. After the petition had been amended to comply with rulings of the trial court on the motion the defendant demurred thereto on the bases several causes of action were improperly joined and the facts pleaded were insufficient to constitute a cause of action. When this demurrer was overruled he filed a lengthy answer. In substance this pleading denied in general terms all claims relied on by plaintiff as grounds for relief; specifically denied that defendant had acquired any property of any kind from his father during the existence of a confidential relationship or by the exercise of undue influence; charged that even if any such property had been so acquired any right on the part of plaintiff to recover it, or its value, was barred by the statute of limitations and by laches; and prayed that all relief sought in the petition be denied.
With issues joined as heretofore related the cause came on for trial and was tried by the court. At the close of plaintiff’s evidence defendant demurred thereto on the ground such evidence failed to establish a cause of action. When this demurrer was overruled defendant adduced his evidence. Thereupon the trial court took the case under advisement‘and announced the parties would be permitted to file requested findings of fact and conclusions of law. Subsequently, after consideration of requests made with respect to such matters, the court made and filed its own findings of fact and conclusions of law and then rendered judgment against the defendant in accord therewith.
The findings of fact and conclusions of law on which the judgment is based are so extensive and in such form that they can be used to serve the dual purpose of giving a bird’s-eye view of the complicated factual picture disclosed by a long and tedious record as well as the trial court’s version of the essential facts established by the evidence and for that reason should be quoted at length. Except for finding of fact No. 16, which in part will be summarized, they read:
“FINDINGS OF FACT
“1. Fred Johnson was bom in Sweden and came to the United States at the age of 12. He died at McPherson, Kansas, on August 21, 1952, at the age of 81.
“2. Fred Johnson was married and his wife pre-deceased him. There was born to his marriage seven children as follows:
Irene Johnson Leslie M. Johnson Mildred L. Banforth W. Lewis Johnson Earl E. Johnson Ellen Mae Hilgenfeld Lowell Johnson
“Lowell Johnson is the youngest child and is now 37 years old. In 1925 Fred Johnson and his wife took into their home Mrs. Johnson’s orphaned two twin nieces, Lila Conner and Lola Conner, who were then six weeks of age, and they lived with Mr. and Mrs. Fred Johnson until the death of Fred Johnson.
“3. Fred Johnson was a farmer and he owned a large, well improved farm southeast of McPherson, Kansas. In 1941 Lowell Johnson moved into the Fred Johnson farm home on the Southwest Quarter of Section 35, Township 19, Range 3, McPherson County, Kansas, and has resided there ever since. In 1941 Fred Johnson owned said quarter section and also the Northwest Quarter of Section 2, Township 20, Range 3, McPherson County, Kansas, as well as other land. Fred Johnson lived with Lowell Johnson in said farm home from 1941 until 1949 and they farmed together, owned livestock in partnership, and generally conducted their business together.
“4. Fred Johnson moved to McPherson, Kansas, in 1949 and lived with his two nieces and his daughter, Irene Johnson, until the time of his death. Mrs. Fred Johnson was then an invalid and died the following year. Until the time of his death, Fred Johnson kept a room at the home of Lowell Johnson.
“5. After Fred Johnson moved to the city of McPherson he continued to work with Lowell Johnson on the farm and either Lowell Johnson or Mrs. Lowell Johnson came after Fred Johnson daily during busy seasons to take him to the farm to help with the farm work.
“6. During the latter years of his life, Fred Johnson had Lowell Johnson sign notes for him and also sign his checks for him from time to time.
“7. For a number of years Fred Johnson had Lowell Johnson keep his. personal papers, abstracts of title, stock certificates, and other valuable papers for him in Lowell Johnson’s safety deposit box in the McPherson & Citizens State Bank, and such papers were in Lowell Johnson’s safety deposit box at the time of the death of Fred Johnson.
“8. During the latter years of his life, Fred Johnson was afflicted by ailments common to old age and was in the hospital at least one or more times every year for hospital treatment and care. His mental condition was about that of the average person of his age.
“9. During the last ten years of his life, Fred Johnson maintained a close relationship with Lowell Johnson and he placed his complete trust and confidence in him.
“10. On January 81, 1947, Fred Johnson conveyed to the defendant and his wife the Southwest Quarter of Section 35, Township 19, Range 3, McPherson County, Kansas, for the sum of $13,000.00. This quarter section was then reasonably worth $32,000.00 and the difference between the sale price of $13,000.00 and the $32,000.00 was a gift by Fred Johnson to the defendant and his wife. The parties orally agreed that Fred Johnson should retain the royalty oil runs from producing oil wells on the premises for the remainder of his life, although it was not mentioned in the deed. Lowell Johnson thereafter paid a part of such royalty oil runs to Fred Johnson from time to time.
“11. After said quarter section was transferred to Lowell Johnson and wife, Lowell Johnson paid off the mortgage of $8,569.82 owed by Fred Johnson by obtaining a new loan on the land and he further paid to Fred Johnson $975.18. The assumption and payment of said mortgage indebtedness and the cash payment of $975.18, the same being a total of $9,545.00, was all that was paid toward such purchase price of $13,000.00 by the defendant and his wife at that time.
“12. On July 14, 1948, Fred Johnson conveyed the Northwest Quarter of Section 2, Township 20, Range 3, McPherson County, Kansas, to the defendant for the sum of $17,500.00. This quarter section was then reasonably worth $30,000.00 to $32,000.00 and the difference between the sale price of $17,500.00 and the actual value of the land was a gift by Fred Johnson to the defendant. The parties orally agreed that Fred Johnson should retain the royalty oil runs from producing oil wells on the premises for the remainder of his life, although it was not mentioned in the deed. The royalty oil runs from these premises (the Northwest Quarter of Section 2, Township 20, Range 3, McPherson County, Kansas), were then paid by the oil companies direct to Fred Johnson until July, 1951.
“13. The $17,500.00 agreed purchase price was not paid at the time of the conveyance and the defendant and his wife gave a note to Fred Johnson for the $17,500.00 which was payable in ten years and was without interest, and a mortgage on the land to secure the payment of the note. A written agreement dated July 15, 1948, was given by the defendant and his wife to
Fred Johnson and his wife, which recited that the defendant would deliver to market for Fred Johnson the wheat produced from 40 average acres in lieu of paying any interest.
“14. The house in which Fred Johnson, his two nieces, and Irene Johnson were living in the city of McPherson was owned by Earl E. Johnson, a son of Fred Johnson. On May 5, 1951, Earl Johnson sent a registered letter to Fred Johnson stating that he wanted to sell this house to Fred Johnson for $6,500.00 and that if Fred Johnson did not buy it he wanted possession of the house by June 15, 1951. Fred Johnson then asked Lowell Johnson for money to buy the house. Lowell Johnson was unable to pay Fred Johnson that amount of money, except by making a new loan on the two quarter sections which he had purchased from Fred Johnson, but had not fully paid for. In order to obtain the new loan from the Federal Land Bank it was necessary that Fred Johnson release the $17,500.00 mortgage given him by Lowell Johnson.
“15. On June 11, 1951, Fred Johnson executed a release of said mortgage securing the note of $17,500.00 and also marked the promissory note for $17,500.00 as being paid in full. On June 13, 1951, the Federal Land Bank through the McPherson County National Farm Loan Association issued its check in the amount of $8,895.00, which was endorsed by George Lowell Johnson and cashed by Fred Johnson. The release of the note and mortgage by Fred Johnson was understood and' intended by him to be for the purpose of Lowell Johnson obtaining a new and larger Federal Land Bank loan. Fred Johnson did not intend the release of the mortgage and the cancellation of the note as releasing Lowell Johnson from his obligation of paying the difference between the $8,895.60 and the $17,500.00. The gift of the difference between the $8,895.60 and the full amount of the note as alleged and claimed by Lowell Johnson would be unfair and unjust to Fred Johnson considering his then physical and financial condition. Fred Johnson was then in poor health and owed substantial amounts of money.
“16. After January 1, 1947, Lowell Johnson became indebted to Fred Johnson or his estate for the following items, to-wit:
Balance due on purchase price of SW/i 35-19-3.......... $3,455.00
Royalty oil runs for 1947.................................. 406.48
Royalty oil runs for 1948 ........................ 796.34
Purchase price of NWK 2-20-3 ........................... 17,500.00
Royalty oil runs for 1949 ................................... 824.35
Royalty oil runs for 1950.................................. 1,510.18
Royalty oil runs for 1951............................... 1,668.20
Royalty oil runs for 1952 (Information not furnished by defendant — estimated 7/12ths of 1951 or................ 973.00
Money paid to Sears-Roebuclc for harrow.................... 132.55
Drill .................................................. 200.00
Total indebtedness .................................... $27,466.10
“Lowell Johnson made the following payment of money to Fred Johnson or m his behalf for which he is entitled to credit on such indebtednesses: (Here follows numerous payments found by the trial court to have been made by George Lowell Johnson to Fred Johnson on divers dates commencing January 31, 1947, up to and including February 4, 1952, the sum total of which was found to be $11,398.24.)
“The transactions and the amounts owed and paid as set forth in this paragraph are all a continuation of a related series of loans and payments between the father and son and these money transactions were intended to be connected and considered together. If the transactions were considered separately, justice requires that the monies paid by Lowell Johnson to Fred Johnson from time to time be applied on the oldest obligation of Lowell Johnson to Fred Johnson and the bar of the statute of limitations be tolled as to all items.
“17. Pursuant to the agreement mentioned in Finding No. 13 and as later modified Lowell Johnson has made delivery to market for Fred Johnson the wheat produced from 40 acres for all years, except the crop year of 1952. The plaintiff accepts tire correctness of such amount.
“18. From and after January 1, 1947, and until the time of the death of Fred Johnson, the defendant, Lowell Johnson, occupied a confidential relationship toward Fred Johnson. Fred Johnson had no independent advice with reference to the gift claimed by Lowell Johnson of the difference between the $8,895.60 paid and the $17,500.00 owed. Such a gift would have been the result of undue influence on the part of Lowell Johnson.
“19. Pursuant to Supreme Court Rule No. 52 and at the request of counsel for the plaintiff, the Court hereby certifies that in deciding this matter it did apply the presumption of law with respect to parties occupying confidential relationship and did require the defendant to sustain the burden of proof on the issues with reference to the gift claimed by the defendant of the balance due on the $17,500.00 indebtedness.”
“CONCLUSIONS OF LAW.
“1. Plaintiff is entitled to judgment against the defendant for wheat harvested in the crop year 1952 in the agreed amount of $1,322.55.
“2. Plaintiff is entitled to further judgment against the defendant for the sum of $16,067.86 in settlement of the transactions between Fred Johnson and Lowell Johnson.
“It Is Therefore Considered, Ordered, Adjudged and Decreed that on this 3rd day of October, 1953, the plaintiff have and recover judgment against the defendant for the sum of $17,390.41 with interest thereon at the rate of 6% per annum from this day until paid and for costs of this action.”
Following the rendition of the judgment defendant filed a motion to set aside the findings of fact, a motion for additional findings of fact, and a motion for new trial. Upon presentation of these motions the court announced that its finding of fact No. 13 should be corrected by substituting the words “at the combine or threshing machine,” in lieu of the words “to market” heretofore underlined for purposes of emphasis, as they now appear in the quoted portion of such finding. Having made this correction it overruled each and all of such motions. Thereupon defendant perfected the instant appeal wherein he now specifies forty separate and distinct errors as grounds for reversal of the judgment.
The first four of the numerous specifications of error assigned and argued by appellant relate to pre-trial errors. They are that the trial court erred (1) in overruling his motion to separately state and number the various causes of action, assumed by him to have been legal causes of action intermingled and confused in that pleading contrary to the statutory rules on pleading; (2) in denying his motions to strike certain allegations of the petition and make others more definite and certain; (3) in overruling his demurrer to such pleading based on the ground several causes of action were improperly joined; (4) in refusing him the right to a jury trial for the reason the nature of the action was legal rather than equitable.
Other sound grounds for rejecting the four foregoing claims of error appear and could be noted but the over-all reason, and therefore the only one required, is that each of such claims is fundamentally premised upon the erroneous concept that the nature of the action on which appellee bases his right to relief is legal rather than equitable in nature. We are not called upon, particularly in view of our statute (G. S. 1949, 60-201) providing the distinction between actions at law and suits in equity and the forms of all such actions and suits previously existing are abolished, to delve into intricacies of the age old arguments advanced respecting the distinctive characteristics of legal and equitable actions. Indeed, without doing so we have no difficulty in concluding that in this jurisdiction a suit by an executor, in which he seeks by discovery and an accounting to reach out and bring back into the estate of a deceased parent assets alleged to have been obtained by one of his children during the existence of a confidential relationship and by means of undue influence, sounds in equity and is to be so regarded and considered for trial purposes. The primary purpose, in fact the very essence, of such an action is to establish that the child so obtaining such property does so under conditions and circumstances giving rise to a trust by implication of law and the fact —as here — the general situation is such the executor may feel called upon to ask for the restoration and/or recovery of money does not change the nature of the action or afford grounds for a sound claim the defendant therein is entitled to a jury trial. (See, e. g., Kuhn v. Johnson, 91 Kan. 188, 137 Pac. 990; Brush v. Boyer, 104 Kan. 168, 178 Pac. 445; Sipe v. Taylor, 133 Kan. 449, 300 Pac. 1076.)
In the interest of whatever brevity can be attained under the confronting facts and circumstances we now turn, out of the order in which they are listed, to specifications of error relating to the overruling of the motion for new trial. Specification No. 10 (A), subdivided into fifteen specific complaints and relating to as many different bits of testimony, is that the trial court erred in admitting incompetent evidence offered by appellee. Obviously, it is impractical and would serve no useful purpose to prolong this opinion by detailing the evidence complained of. It may be said, however, that as to the major portion thereof the abstract fails to disclose any motion to strike was made and overruled. In such a situation, under all our decisions, since the trial was by the court, even if it be assumed the objections were otherwise good, there is no presumption such testimony if improperly admitted was considered or entered into the final decision of the case. (See In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359; In re Estate of Wittman, 161 Kan. 398, 402, 168 P. 2d 541; Bradbury v. Wise, 167 Kan. 737, 748, 208 P. 2d 209; Harrington v. Propulsion Engine Corp., 172 Kan. 574, 582, 241 P. 2d 733; Spencer v. Supernois, 176 Kan. 135, 268 P. 2d 946, [decided April 10, 1954].) Moreover, it must be kept in mind admission of incompetent evidence, irrespective whether it was considered, does not constitute reversible error if there is other competent evidence sufficient to sustain the judgment. (The State v. Harper, 84 Kan. 446, 113 Pac. 1058; In re Estate of Wittman, 402, supra.) After a careful examination of the entire record we are convinced that any evidence improperly admitted and thereafter subjected to a motion to strike was cumulative in character and hence does not warrant a disturbance of the ruling on the motion for new trial.
Specification of error No. 10 (B) contains ten separate and distinct complaints, most of them based upon the premise the trial court erred in excluding the testimony of a number of appellant’s witnesses respecting their conclusions as to the influence exercised by him over his father during the time in question. Our examination of the record discloses that most of this testimony was properly excluded upon the objections made thereto. However, there is no occasion to labor the merits of these claims. It has not been made to appear that any of the evidence excluded, all of which we pause to note is oral, was' produced at the hearing of the motion for new trial by affidavit, deposition or oral testimony in the manner con templated by our statute (G. S. 1949, 60-3004). The result under our decisions (See In re Estate of Stewart, 171 Kan. 93, 229 P. 2d 771; Babb v. City of Wichita, 172 Kan. 416, 241 P. 2d 755; Handley v. Handley, 172 Kan. 659, 668, 243 P. 2d 204; Gillen v. Stangle, 175 Kan. 364, 264 P. 2d 1079) is that none of the rulings respecting, the rejection of such evidence are subject to appellate review. The rule, it may be added, is the same in criminal actions. (State v. Beam, 175 Kan. 814, 267 P. 2d 509.)
Upon application of the universal principle (See In re Estate of Hayden, 174 Kan. 140, 254 P. 2d 813; Briggs v. Burk, 174 Kan. 440, 442, 257 P. 2d 164) that in ruling on a demurrer to evidence courts must accept all evidence as true, give it the benefit of all inference that may be drawn therefrom and consider only such portions thereof as are favorable to the party adducing it, appellant’s claim the trial court erred in overruling his demurrer to the evidence, because there was no evidence whatsoever to establish the existence of a fiduciary relationship between him and his father or the exercise of undue influence upon his part in obtaining the gifts set forth in the- trial court’s findings, has no merit and requires little, if any, discussion. Briefly stated, there was testimony showing they had been conducting business operations together, that Fred had been living with his son, that he had made gifts of both money and real estate to the latter, sometimes without being adequately compensated therefor and other times without payment of any consideration whatsoever. On top of all that, and other testimony indicating appellant’s dealings with Fred were not what one would ordinarily expect from a son who had the trust and confidence of an aged father, one of Fred’s brothers testified that appellant had not only admitted but boasted to him that he had full and complete control and domination over his father for the two years preceding his death. In the face of such a record it is asking too much of this court to hold there was no evidence to sustain the trial court’s ruling on the demurrer to the evidence.
It would be of little benefit to the bench and bar to extend this opinion by a prolonged discussion of arguments advanced by appellant of divers assignments of error to the effect the trial court erred (1) in making findings of fact and conclusions of law which were not supported by competent evidence; (2) in entering judgment based upon erroneous findings of fact and conclusions of law; and (3) in entering judgment contrary to the law and evidence applicable to the cause. Nor would it add anything to our reports to detail the evidence on which a decision of these questions must necessarily depend. , It suffices to say that after a careful and painstaking review of all the testimony we have little difficulty in concluding and are convinced the record discloses ample competent testimony which, if believed, sustains each and all of the trial court’s findings of fact, as heretofore set forth and quoted at length. The result, under the rule established by this court in a long and unbroken line of decisions, is that such findings are conclusive and will not be disturbed on appellate review even though, as appellant points out, the record discloses some evidence which might have warranted the trial court in making findings to the contrary. For some of our more recent decisions where this rule is discussed, applied and adhered to 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 Johannes, 173 Kan. 298, 245 P. 2d 979; In re Estate of Jones, 174 Kan. 506, 514, 257 P. 2d 116; In re Estate of Davis, 175 Kan. 107, 110, 259 P. 2d 211. Numerous decisions of like import will be found upon reference to West’s Kansas Digest, Appeal & Error, §§ 1010 (1), 1011 (1); Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, §§ 507, 508.
Rased on what has been heretofore stated it becomes obvious claims advanced by the appellant, to the effect the trial court erred (1) in refusing to adopt his requested findings of fact and conclusions of law; (2) in overruling his motion to set aside many of the findings made by the trial court; and (3) in denying his motion for additional findings of fact, afford no sound basis for reversal of the judgment and need not be labored.
Additional grounds relied on for reversal of the judgment are that the appellee’s claim was barred by the statute of limitations and laches. Under the confronting facts and circumstances we do not think the statute of limitations commenced to run until the appellant fiduciary definitely repudiated the obligations incurred by him by virtue of the fiduciary relationship existing between him and his father. The record fails to disclose action of that character on the part of the appellant during the life of his father. ■ This action was commenced within six months after the latter’s death. In that situation it cannot be successfully contended such action was barred by the statute of limitations. Nor are we disposed to hold that this action, where it is conceded the rights of third parties have not intervened, has been barred by laches.
Other assignments of error to the effect the trial court’s judgment was erroneous because appellee was allowed to recover more than the amount claimed in the prayer of the petition cannot be upheld. In the first place this was an action for a discovery, disclosure and accounting of all money and property claimed to have been received by appellant as a fiduciary wherein he answered and joined issue on all material questions raised by the petition. In the next resort to the prayer of the petition reveals that appellee asked for recovery of all money found to be due as a result of the accounting and that the recovery of the amount therein specifically named, which it must be conceded was less than that allowed by the judgment, was requested only in the event the appellant neglected or refused to appear in the action and make the accounting and disclosure prayed for in the petition.
Finally appellant asserts the trial court erred in applying the presumption set forth in finding of fact No. 19, heretofore quoted. We do not agree. This court has long been committed to the rule that persons enjoying a confidential relationship vwith the grantor of gifts inter vivos have the burden of showing that such gifts were made without undue influence (See Henks v. Panning, 175 Kan. 424, 264 P. 2d 483, and numerous decisions cited in its opinion).
Finding nothing in the record or in the errors assigned which either requires, warrants or permits a reversal of the judgment it must be and is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This was an action by landownérs against defendant company to recover damages for the destruction of a hedge fence along one side of their farm.
Judgment was rendered upon the jury’s verdict in favor of plaintiffs, and defendant has appealed.
The petition, which was filed on May 29, 1953, alleged that on or about June 9, 1952, defendant company sprayed the greater portion .of two hundred rods of hedge fence along the west side of plaintiffs’ farm for the purpose of killing it so that it would not interfere with defendant’s electric power line which ran along adjacent to the hedge, and that as a result of such spraying the hedge died and thus no longer served as a fence. Damages in the amount of $740 were sought.
The answer denied that defendant company had sprayed the hedge on or about the 9th of June, 1952, but admitted that it had sprayed it more than one year prior to June 9, 1951, and alleged that plaintiffs’ pretended cause of action was barred by the applicable two-year statute of limitations. The answer further alleged the execution of a written agreement in 1938 by the then owners of the land and defendant, by the terms of which defendant company was given the right to cut and trim the hedge in question to the extent necessary for the construction, operation, replacement, repair and maintenance of the electric power line. A copy of such written agreement was attached to the answer.
Upon the issues thus joined the parties proceeded to trial by a jury.
Plaintiffs’ evidence established the following:
In 1950, and again in the spring of 1951, representatives of defendant company talked to plaintiffs about removing the hedge but no agreement on the matter was ever reached. The hedge “came out normally and green in the spring of 1951,” and was sprayed by defendant company after the July 1951 flood. Shortly thereafter the leaves began to turn and fall off, it did not leaf out in the spring of 1952 or 1953, and is now dead and no longer serves as a cattle-tight fence. Although there was a hedge fence along the north side of plaintiffs’ farm it was undamaged, and the only hedge affected was that which was adjacent to defendant company’s electric power line.
Defendant’s evidence consisted only of the testimony of its manager. He testified that defendant company sprayed the hedge in the early part of May 1950, but not afterwards. His testimony left the inference that the “chemical reaction” to the spraying was slow, and that if the hedge was killed it still was the result of the 1950 spraying.
The jury returned a verdict in favor of plaintiffs in the amount of $690, broken down as follows: $240 for the removal of the dead hedge; $250 for the cost of materials in the construction of a new fence, and $200 for labor in the construction of a new fence.
This verdict was approved by the trial court, and judgment was entered thereon.
Defendant’s first specification of error is that its demurrer to plaintiffs’ evidence should have been sustained. The substance of this evidence has already been set out and will not be repeated. It is sufficient to say that it made out a prima-facie case sufficient to go to the jury.
Next it is argued that the court erred in overruling defendant’s motion for judgment notwithstanding the verdict. This was essen Rally a fact case. Plaintiffs’ evidence established that defendant company sprayed the hedge shortly after the July 1951 flood. Defendant denied that the hedge was sprayed at any time subsequent to the early part of May 1950. This disputed fact was properly submitted to the jury for determination.
Defendant complains of instruction No. 4 given by the court, in which the jury was instructed that the written agreement entered into in 1938 did not give defendant the right to spray and kill the hedge in question, but only gave it the right to cut and trim to the extent reasonably necessary for the maintenance of its transmission line. This instructton was enRrely proper and in harmony with the provisions of that agreement.
And, finally, it is contended that the trial court erred in rendering judgment in favor of plaintiffs and in overruling defendant’s motion for a new trial. These contentions are likewise without merit and may not be sustained. The enRre question of who sprayed the hedge, and when, was properly submitted to the jury, and by its verdict all disputed quesRons of fact were resolved in favor of plaintiffs. An examination of the record before us discloses no error, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a decision overruling a motion in the nature of an accusation in contempt for the violation of an injunction previously granted by the district court, and also to vacate a restraining order issued in the ancillary proceeding. An action, number 65,910, was brought by the county attorney in the name of the state against T. J. Stark and his wife, Ollie R. Stark, to enjoin the defendants from interfering with the digging of a ditch through defendant’s land to drain water from a highway to a natural watercourse. The land of defendants adjoined the highway and it was alleged that after a heavy rainfall so much water accumulated on the highway it was rendered almost impassable, and that when the officers were proceeding to make the drain defendants interfered and prevented the county engineer and his aides from entering upon defendants’ land to make the improvement. In their answer defendants denied the allegation of the accumulation of water on the highway and alleged that the board of county commissioners had entered an order as follows:
“Moved that county engineer be instructed to proceed at once to complete the ditch as per plans, draining the area of South Hillside road north of Franklin avenue, as supported by court order.”
The motion was carried, two members of the hoard voting for it and one against it. It was alleged that a commissioner and employees had- entered upon the premises to carry out the order of the county commissioners, which it is alleged is unlawful and unnecessary.
It was also alleged that no court order had been made relative to an entry upon the land to complete the ditch; that the damages and cost of the ditch are out of proportion to the benefit to the public; that no proper investigation had been made by the county commissioners as to the necessity of the work; and that the order was made by the county commissioners without due notice, in disregard of their official obligations and against the lawful rights of defendants. It was further alleged that the county engineer exercised no independent judgment in the matter. Shortly afterwards Ollie R. Stark brought an action, number 65,913, against George Bradford, then the county engineer, and the board of county commissioners, asking that they be enjoined from entering upon the premises owned by her, in which she set forth the order of the county commissioners and the allegations previously included.in the answer to the action brought by the state against Stark, number 65,910, and asking that the defendants, the county commissioners, and the county engineer, Bradford, be permanently enjoined from carrying out the order. The answer of defendants was a general denial except an admission that the plaintiff is the owner of the property and that the county engineer intends to go upon the property for the purpose of digging the ditch to drain a public highway.
Both of the actions were tried together, and upon the evidence the court granted a permanent injunction against the county commissioners, and the county engineer, Bradford, from constructing the drain. It appears that Bradford’s term of office expired as county engineer, and that George Heinig was chosen to succeed him.- Subsequently Heinig took up the question of improving the highway and the construction of a drain and later notified Mrs. Stark of his intention to make the drain and fixed the time when he would enter upon the work. She at once instituted this proceeding, in which she asked the court to require Heinig and the board of county commissioners to show cause why they were not in contempt of the injunction previously granted. An order to show cause was issued and served upon Heinig and the commissioners, and at the same time a restraining order was issued to be effective until a hearing on the application was had. The county commissioners answered, alleging that they had no part in the action taken by Heinig, the county engineer, in respect to the drain, and added to their disclaimer the demand that the restraining order as to them should be vacated. In Heinig’s answer he alleged that acting as county engineer and on his own authority, he had investigated and determined that the construction of the drain was necessary to the improvement of the highway, that he was acting under the authority of the statute, to wit, R. S. 68-115, and not in any way in contempt of the injunction previously granted, which it was alleged was directed against the enforcement of an order passed by the county commissioners. He alleged that the work he was proposing to do was based upon his own judgment as to the necessity of the drain and was done in pursuance of the authority vested in him by the statute. In his answer he set forth a communication from the judge of the district court that tried the injunction proceedings, which related to the purpose and scope of the judgment. The communication follows:
“Under section 68-115 the township trustee and the county engineer are authorized to enter upon any land adjoining a state or county road, and make such drains or ditches through the same as the county engineer or township trustee may deem necessary for the benefit of the roads. The statute therefore imposes the duty upon the county engineer, or perhaps both the county engineer and trustee, in determining whether drains and ditches shall be made.
“The evidence shows that the county engineer did not determine that it was necessary to do the work in question. On the contrary he testified, in effect, that he did not deem it was necessary, and he did not know, at the time the work was done, that the statute imposed this power upon him. The county engineer did the work at the request of the county commissioners. Since, therefore, the work was not done on the decision of the county engineer, as county engineer, that it was necessary to be done, the injunction in the case of State of Kansas, ex rel., v. Stark, will be refused, and the injunction will be granted in the case of Stark v. Bradford et al.
“If the county engineer had decided that it was necessary to do this work, the injunction would be granted in the case of State v. Stark and it would be refused in the case of Stark v. Bradford et al. If the engineer decides that a certain drain should be made or a certain ditch should be dug and acts in good faith, the court has no right to interfere by injunction to prevent the work. If the engineer decides in good faith that it is necessary to do the work, it doesn’t make any difference whether some property owners are greatly benefited and others are greatly injured.”
There was a general denial of the averments in Heinig’s answer, but no reply to the disclaimer of the county commissioners. At the trial no evidence was introduced except the pleadings and judgment in the injunction proceedings. There were some concessions and statements made by counsel and an extended- colloquy between counsel and the court in regard to the issues and the interpretation of the pleadings and judgment. The court set aside the restraining order which was granted when the ancillary proceeding was begun, overruled the accusation of contempt and awarded costs to the defendant Heinig. The plaintiff complains of these rulings.
The court based its decision on the ground that the judgment of injunction previously awarded only enjoined the carrying out of the order of the county commissioners and did not involve the determination of the county engineer respecting the necessity of the drain, and who was proceeding under his own authority, the authority conferred upon him by the statute (R. S. 68-115), and that he was not undertaking to carry out the orders of the county commissioners, the enforcement of which had been enjoined. While the matter of the drain was involved in the injunction actions, and the county commissioners and county engineer were parties in the action, the matters to be -tried and decided were not the same. In the first proceeding the question involved was the enforcement of the order made by the county commissioners which was alleged by Stark to be without authority and therefore did not warrant the carrying out of the order. The matter to be tried in the ancillary proceeding was the right of the county engineer to take the steps provided by statute under which he was authorized to determine the necessity for the improvement of a highway by a process of drainage. Heinig was the successor of Bradford, as county engineer, but he was acting in a different capacity in the steps taken under the statute. Bradford was acting merely as an agency of the county commissioners, while the county engineer, Heinig, was proceeding under authority expressly granted by the legislature and was proposing to carry out his own determination and order. Under the contempt proceeding the question was, Did the county engineer have authority to initiate an inquiry and make a determination under the statute independent of the authority attempted to be exercised by the board of county commissioners? Heinig, although a county engineer, was acting in a different capacity than had Bradford, and before the doctrine of estoppel of a judgment can apply, it must appear not only that there was identity of subject matter and of parties, but also identity in the quality of the person against whom the claim is made. It is not the form of the judgment but the matter alleged by the party upon which the recovery is based which creates the estoppel. (Benz v. Hines and Tarr, 3 Kan. 390; A. T. & S. F. Rly. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127; Morrison v. Clark, 89 Me. 103; Womach v. St. Joseph, 10 L. R. A., n. s., 148, and note. In 1 Freeman.on Judgments, 4th ed. § 156, it is said:
“It is a rule of both the civil and the common law that a party acting in one right can neither be benefited nor injured by a judgment for or against him when acting in some other right.”
In the later proceeding the county engineer was acting in another right when he initiated the improvement of the highway under the statute, and the injunction previously issued does not therefore operate to estop him when acting in the different right. It appears that the parties and the court considered the injunction was issued against the enforcement of the order of the county commissioners. In the Starks’ pleading that order was specifically set forth as being invalid and without binding effect upon them, and they prayed that the defendants be permanently enjoined from carrying out the order. It recited a direction to the county engineer to carry it out. The record shows that the county engineer acted on the order of the county commissioners, and not on his own determination within the power given him by statute. The pleadings of the Starks confirm. this where they state that the county engineer made no investigation of the necessity for the work, and that, as we have seen, is required in the action that he must take in pursuance of the statute. Bradford stated that he had not investigated nor found the improvement to be necessary and had not made any decision in the matter. In the injunction proceedings the court determined that the enforcement of the order of the county commissioners should be enjoined, but that injunction did not estop the county engineer from after-wards making an investigation,, and if he found a necessity for draining the highway, it was his duty to proceed with the work as the statute directs. The part of the statute pertinent to this con troversy first provides that the county engineer shall open all state and county roads, and the township trustee shall open all mail routes and township roads which have been laid out and established, after the required notice has been given. It then proceeds:
“And the county engineer or township trustee, respectively, shall keep the same in repair, and remove or cause to be removed all obstructions that may be found therein; for which purpose the township trustee and the county engineer are hereby authorized to enter upon any land near or adjoining such public road, to dig and carry away any gravel, sand, stone, clay, gypsum or any other road-building .material and to purchase any timber which may be necessary to improve or repair said road, and to enter upon any land adjoining or lying near to said road, to make such drains or ditches through the same as the county engineer or township trustee may deem necessary for the benefit of the roads, doing as little damage to said lands as the nature of the case and the public good will permit; and the drains and ditches thus made shall be kept open if necessary by the township trustee or county engineer and shall not be obstructed by the owner or occupants of said land or by any other person, under the penalty of being fined not exceeding ten dollars for each offense, before any justice of the peace in the county. The owner of any gravel, sand, stone, clay, gypsum or any other road-building material so taken, or the owner of the land through which ditches or drains may be made, as herein provided, or the owner of the crops thereon, shall be allowed a fair and reasonable compensation for the material so taken or for any injuries his lands or crops may sustain in consequence of the making of said drains or ditches; the amount of such compensation to be determined, allowed and paid by the highway commissioners in event such material is used upon a mail route or a township road, and determined, allowed and paid by the board of county commissioners of the county when such material is used upon a county or state road. Such claims shall be allowed and paid in the same manner as other ordinary claims against the county or township, and the claimant shall have the same right of appeal as is now provided by law in other cases.” (R. S. 68-115.)
There can be no question that the legislature has expressly provided for the action taken by county engineer Heinig, and there is no contention that the legislature is without power to confer this authority upon that officer. No reason is seen why he may not be vested with the authority exercised. Nothing is shown that he acted in other than good faith.
It follows that 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
Dawson, J.:
This is an appeal and cross appeal from the judgment in a workmen’s compensation case.
It appears that on and for some time prior to February 15, 1928, the claimant, Emile Fougnie, was employed as a miner in the respondent’s coal mine in Crawford county. On that date, while pushing a mining car loaded with rock, he slipped and sustained an injury — hernia on the left side.
On the following day, February 16, 1928, he made a claim on his employer for compensation, and in compliance therewith his employer paid him $18 per week until he had thus received an aggregate sum of $126. His employer also furnished the injured workman with medical attention. Payments of compensation ceased in April, 1928. On December 22, 1928, the claimant filed with the workmen’s compensation commission a formal application for compensation.
On March 20,1929, an examiner for the compensation commission conducted a hearing at Pittsburg, at which time both parties appeared, and claimant gave testimony in substantial accord with the recital of facts contained in his written application. Claimant also offered to prove that he went to his employer’s designated physician for treatment until May 29, 1928, during all of which time claimant was suffering from inguinal hernia which that physician did not discover. He also offered to prove that in September, 1928, he went to another doctor of his own choosing and the latter discovered that claimant was suffering from such inguinal hernia; that he underwent an operation therefor, and had incurred a liability for $228.95 for surgical services, and was unable to perform manual labor from the time of his injury on February 15, 1928, to January 1,1929. Claimant also offered to show that about April 15, 1928, he informed the insurance adjuster that he did not wish to draw further compensation if he was able to go ahead with his work as a missionary minister, and suggested that his payments of compensation be held in abeyance until he could determine what his physical condition should turn out tó be; and that it was under those conditions that the matter of his compensation rested until December, 1928, when his demand for further compensation was refused and these proceedings before the compensation commission were instituted. The foregoing offers of evidence and others of less consequence were rejected. The compensation commission ruled—
“Before a workman can maintain a claim for compensation under the workmen’s compensation act he must comply with section 20 and make written claim for compensation upon the employer within ninety (90) days after the last date of payment of compensation.
“From the claimant’s own statement it is readily seen that no written claim for compensation was made within ninety (90) days from the 11th day Of April, 1928; that the first written claim for compensation was made on the respondent herein in December, 1928, or more than a period of ninety (90) days.
“It is therefore found that claimant herein did not comply with section 20 of the workmen’s compensation act in that he did not make written demand upon the respondent herein within ninety days after the last date of payment of compensation.
“Wherefore, award of compensation is hereby denied.”
The claimant appealed to the district court, and the cause was submitted on the transcript of proceedings at the hearing before the compensation commission and its rulings thereon.
The district court made a finding and order—
“That the above cause be remanded to the commission of workmen’s compensation and that plaintiff be permitted to introduce his testimony.”
Both parties appeal. The respondent coal company contends that the district court had no jurisdiction to remand the proceeding to the compensation commission, and that it was the court’s duty to give judgment on the questions of law and fact presented by the transcript submitted for its review. The claimant’s counter contention is that it was the duty of the trial court to give him an opportunity to present the evidence which the examiner for the commission had rejected and declined to hear.
Touching first upon the points raised by the respondent coal company, it should be borne in mind that the workmen’s compensation act prescribes its own procedure. In Norman v. Consolidated Cement Co., 127 Kan. 643, 649, 274 Pac. 233, it was said:
“Id. a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. It provided an administrative method in order to avoid the delay resulting from prolonged litigation and the uncertainty and expense attending it. . . . We must look to the procedure of the act for the methods of administration. We are not warranted in borrowing rules and methods from the civil code not included in the act itself.”
The jurisdiction of the district court in compensation cases is simply its power to grant or refuse compensation or to increase or diminish any award made by the commission as justice may require. (Laws 1929, ch. 206.) It hears no new evidence, but takes the case on the transcript of the proceedings before the compensation commission and makes an independent adjudication of the facts and the law therefrom. (Corpora v. Kansas City Public Service Co., 129 Kan. 690, 692, 693, 284 Pac. 818.) The statute does not intimate that the district court may reverse and remand the proceedings to the compensation commission because of errors in the admission or exclusion of evidence before that tribunal. (See, also, Walz v. Missouri Pac. Rld. Co., ante, p. 203, 285 Pac. 595.)
It must therefore be held that the order of the district court remanding the proceedings to the compensation commission was erroneous and should be set aside.
Turning next to the cross appeal: Counsel for claimant advance three propositions for our consideration:
“1. In the hearing of this case before the commissioner, did the commissioner act reasonably without partiality, and did he give the claimant the reasonable opportunity to be heard and to present evidence that is contemplated by the statute?
“2. Under all of the provisions of the statute, is the district court authorized to go into the real facts and grant a hearing de novo?
“3. If the provisions of the statute cannot be so construed as to authorize the district court to go into the real facts of a case and to grant a hearing de novo, is the act constitutional?”
Considering these points together, it is of course both the statutory and moral duty of the commissioner to give the claimant and his adversary a fair opportunity to present their evidence; and the court sees no reason why tendered evidence excluded by the examiner could not be put in the form of affidavits or depositions and made part of the transcript which goes to the district court for its independent decision on the law and the facts. But there is nothing in the statute which contemplates that the trial court is authorized to hear further evidence or try the proceedings de novo. Touching the legal query that if the district court cannot go into the real facts of a case and grant a hearing de novo the statute may not be constitutional, it should be a sufficient answer to remind counsel that proceedings under the workmen’s compensation act are not in a strict sense a lawsuit at all. They are special proceedings essentially contractional in character, sanctioned and encouraged by statute, but not compulsorily imposed - on the parties. The workman and his employer may decline to adopt the terms of the compensation act to govern their relationship, and may adhere to such rights and remedies as are accorded them under the common law with its constitutional and statutory modifications. But having elected to operate under the compensation act, or having declined to elect to stay out from under its terms, neither employer nor employee can be heard to question its validity. (Shade v. Cement Co., 93 Kan. 257, 144 Pac. 249.) Certainly the compensation act may be the basis of a valid contract between employer and employee, regardless of the numerous fine-spun constitutional objections which have been made to it from time to time. The constitutional infirmity of the act intimated by counsel in this instance may be confidently disregarded. (Smith v. Packing Co., 115 Kan. 874, 225 Pac. 110.)
There is no justification for raising a question about the impartiality of the examiner or the compensation commission in this case. The statute explicitly provides that proceedings for compensation shall not be maintainable in cases where compensation payments have been suspended unless a written claim therefor is served upon the employer within ninety days after the last payment of compensation (Laws 1927, ch. 232, § 20) subject only to the exceptions prescribed by section 9 of the act, which reads:
“Sec. 9. In case an injured workman is mentally incompetent, or when death results from an injury in case any of his dependents, as herein defined, is mentally incompetent at the time when any right, privilege, or election accrues to him under this act, his guardian may, on his behalf, claim and exercise such right; privilege, or election, and no limitation of time, in this act provided for, shall run, so long as such incompetent has no guardian.”
There was nothing suggested in claimant’s rejected offers of evidence which would excuse claimant’s failure to make his statutory written claim within ninety days, under the text of section 9 just quoted, and additional exceptions cannot be read into it. The mandate of section 23 that the act be administered without regard to technical rules of procedure does not mean that the plain terms of the statute itself may be ignored and disregarded, or that some other excuse than those sanctioned by section 9 may be accepted for failure to serve a written demand for compensation until several months after the statutory time therefor has elapsed.
On the respondent’s appeal the judgment is reversed, and on the claimant’s appeal it is affirmed.
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The opinion of the court was delivered by
Smith, J.:
In this action defendant was charged with forgery in three counts and uttering forged checks in three counts. He was acquitted on the three forgery charges and convicted on the three uttering charges. He appeals.
The defendant states the questions to be — Did the trial court err in admission of evidence, in admitting incompetent testimony; was the verdict contrary to the evidence; did the court err in sustaining objections to evidence offered by defendant; and did the court err in the form of verdicts submitted?
There are some conceded facts which will make it a little easier to follow the arguments. The forged checks were passed in Howard on August 28, 1948. On November 17, 1948, defendant was' arrested in Wichita. Three state witnesses were brought to Wichita, saw the defendant and failed to identify him. In March, 1949, defendant was again arrested, taken to Howard and bound over for trial. The county attorney later dismissed this action.
Defendant filed a civil action against three state witnesses and three store owners. A demurrer to the petition was overruled. Subsequently the county attorney died and new counsel was hired to represent the defendants in the civil actions. On August 14, 1950, defendant was again arrested, a preliminary examination was had and he was bound over.. His trial was had on February 23, 1951. The jury failed to agree on the three counts of forgery and he was convicted on the three charges of uttering. After the motion for a new trial was overruled, the civil action against the witnesses was dismissed. On appeal we reversed for a new trial on the ground the trial court had unduly restricted the cross-examination of state witnesses. (See State v. Rowland, 172 Kan. 224, 239 P. 2d 949.) The new trial has now occurred with the result already noted.
The trial was in the main concerned with identity of defendant. He argues the trial court erred in permitting counsel for the state to ask leading questions of the witnesses who testified the defendant had passed the checks in question. The witnesses should be compelled to tell their stories without prompting. The matter of whether leading questions should be permitted in any particular case rests in a large measure in the discretion of the trial court. Unless it appears this discretion was abused, a judgment based on such evidence will not be disturbed. (See The State v. McAnulty, 26 Kan. 533; The State v. Bursaw, 74 Kan. 473, 87 Pac. 183; also Foley v. Crawford, 125 Kan. 252, 264 Pac. 59.) The permission of these leading questions under all the circumstances was not such an abuse of the trial court’s discretion as to require a reversal.
Defendant next argues that the trial court erred in unduly restricting the cross-examination of state’s witnesses. This is based on the questions asked the identifying witnesses who had been defendants in the civil action. This was the point upon which the former judgment was reversed. (See State v. Rowland, supra.) At the time this trial occurred these actions had been dismissed.
In that opinion we pointed out that the trial court by its ruling cut off completely the right of the defendant to cross-examine these witnesses. Such is not the case here. The trial court permitted at least one of these witnesses to be asked whether he had a personal interest or whether the former case was won by the- state and he stated he did have such an interest at that time. Other questions along this line, to which objections were sustained, were improper as to form.' There was no abuse of discretion in sustaining these objections.
Defendant next argues, the trial court erred in sustaining objections to questions where defendant’s former wife was asked whether the names signed to the checks were in defendant’s handwriting. This objection was sustained because the state was not contending that defendant actually signed these checks. This objection was good.
Defendant refers to other instances where the trial court sustained objections to evidence of á former sheriff and one other person. The evidence the state expected these witnesses to furnish was not furnished the trial court on the hearing of the motion for a new trial. Hence we will not consider the question of whether it should be admitted.
Defendant next argues the trial court erred in not granting him a new trial on account of newly discovered evidence. This relates to a witness who would have testified as to an alibi for defendant. The trial court overruled this motion because of no showing of diligence in having the witness present at the trial. This is a matter of discretion of the trial court. No abuse of discretion is shown.
The judgment of the trial court is affirmed.
Thiele, J., concurs in the result.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an award of damages for the widening of a street in a condemnation proceeding. The question involved is the use which could be made of the property taken. The owner contended its more favorable use was for cemetery purposes. The city contended that the property, having been zoned in the “A” residence district by a valid zoning ordinance of the city, could be used only for one- or two-family dwellings, church or temple, library, farming or truck gardening, school or college, or incidental accessory buildings. The owner contended that this ordinance was void as to this property. The trial court sustained that contention, but to prevent a subsequent trial had the jury find the damages if the property could be used for cemetery purposes, which damages the jury assessed at $1,825, and also find the damages if it could be used for the purposes only designated in the zoning ordinance, which the jury fixed at $500. The court rendered judgment for the larger figure, and the city has appealed.
In April, 1889, John Joseph Hennessey, a bishop of the Catholic Church, acquired title to a ten-acre tract of land. This was platted and used for cemetery purposes and was known as Calvary cemetery. In November, 1916, Bishop Hennessey acquired an additional tract of land adjoining the above-mentioned ten acres on the west. This tract is 630 feet north and south and 153.78 feet [163.66 feet] east and west. This tract was bounded on the west by Rutan avenue, which was thirty feet wide. The title to both tracts was later conveyed to August J. Sehwertner as bishop, who held the same for cemetery purposes and as a unit; but at the time of the condemnation proceedings, soon to be mentioned, the last-acquired tract-had not been platted into cemetery lots, although that has since been done, and there have been no burials therein.
In 1922 the city of Wichita passed its first zoning ordinance. An amended zoning ordinance repealing the first was passed in July, 1926, and is still in force. Both zoning ordinances designated an “A” residence district which included Calvary cemetery, as well as other cemeteries, within the city limits. On the map, which is a part of the zoning ordinance, the original ten acres and the later acquired tract to the west of it are platted together as one tract marked “Calvary cemetery,” and zoned into “A” residence district, and the ordinance provided:
"That in the 'A’ residence district, ... no buildings or premises shall be used, and no building shall be hereafter erected or altered . . . except for one or more of the following uses: One-family dwellings, two-family dwellings, churches and temples, libraries, farming and truck gardening, schools .and colleges, accessory buildings incidental to the above uses . . .”
Notwithstanding this ordinance the tract of ground described . .as Calvary cemetery has continued to be used for cemetery purposes, burials being made there from time to time, and generally used for all cemetery purposes as though the zoning ordinance had made a specific provision for cemeteries, designating them as such .and zoning them for cemetery purposes.
In 1927 the board of commissioners of the city, for good cause, deemed it to be to the best interests to widen Rutan street from 30 to 50 feet, and did so by taking a strip 20 feet wide and 630 feet long off the land the title to which was in the name of August J. Schwertner, as bishop, as above stated. The commissioners appointed to ascertain the damages fixed the value of the property taken at $1,500, the benefits accruing to the owner $342.50, and made an award for the difference. Deeming himself aggrieved by the award, the owner appealed to the district court, where a trial was had with the results as above stated.
Appellant argues that zoning ordinances have been upheld by this court (Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99; West v. City of Wichita, 118 Kan. 265, 234 Pac. 978), also by the supreme court of the United States (Euclid v. Ambler Co., 272 U. S. 365; Zahn v. Bd. of Public Works, 274 U. S. 325), and by many state courts of last resort (Kroner v. City of Portland et al., 116 Ore. 141; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Brett v. Building Commissioner of Brookline, 250 Mass. 73; State, ex rel., v. Houghton, 164 Minn. 146; State v. Fowler, 90 Fla. 155; State v. City of New Orleans, 159 La. 1016; Fourcade v. San Francisco, 196 Cal. 655; Pritz v. Messer, 112 Ohio St. 628; City of Aurora v. Burns, 319 Ill. 84, are some of the cases so holding), on the ground that the restrictions contained in such ordinances bear a substantial relation to the public health, safety, morals, or general welfare of the people, and some of the decisions, including our own, hold that there is an sesthetic and cultural side to city government which can be made the basis of reasonable limitations in a zoning ordinance. All of this may be conceded, but from this it does not follow that zoning ordinances valid in their general scope may not be invalid as applied to a specific property within the general description of the zoning ordinance. (See Ware v. City of Wichita, supra, p. 161; Nectow v. Cambridge, 277 U. S. 383; Seattle Trust Co. v. Roberge, 278 U. S. 116.) Court's have authority in a proper proceeding to inquire into the facts of a specific case and to determine whether, as to a specific property, the ordinance is reasonable and valid.
We reach the same result as was reached in the trial court by considering the matter from another viewpoint, which we deem to be the correct one, namely, that the zoning ordinance in question did not in fact attempt to deal with the question of zoning cerne teries existing at the time the ordinance was passed. None of the cases cited dealing generally with zoning ordinances discusses them as applied to existing cemeteries. In the wording of the ordinance in question there is no mention of cemeteries. No effort is made by the ordinance to limit the use of existing cemeteries as places of sepulcher, or to designate their boundaries, or to prohibit extension of their boundaries, or to interfere with them in any way. The plat of the city, which is a part of the ordinance, recognizes the existence of cemeteries in the city, designating them by that name on the plat, and included not only the cemetery in question, but others in the “A” residence district. This, together with the fact that since the passage of the first zoning ordinance in 1922 the cemetery has continued to be used without objection on the part of the city authorities for the burial of the dead, and has been cared for and improved in all respects as prior to the passage of the ordinance, tends to suggest that such use was intended, or at least not regarded as a violation of the zoning ordinance. But perhaps this, would be a strained construction of the ordinance.
In this connection the nature of a cemetery should be considered. A cemetery is a place or area of ground set apart for the burial of the dead. The law contemplates two classes of cemeteries, public and private. The former is used by the general community, or neighborhood, or church, while the latter is used only by a family,, or a small portion of the community. (11 C. J. 50.) In Cemetery Ass’n v. Meninger, 14 Kan. 312, 317, it was said:
“A cemetery is as public a place as a courthouse, or a market. . . . We-may keep away from the courthouse, and avoid the market, but the place of the dead none may shun.”
See, also, Davis v. Coventry, 65 Kan. 557, 70 Pac. 583; Cemetery Association v. Hanslip, 82 Kan. 20, 107 Pac. 785, as pertaining to the public aspect of a cemetery. In Kuhlman v. City of Beloit, 123; Kan. 645, 256 Pac. 806, it was held that a cemetery is not a nuisance-per se. Several sections of our statutes relate to cemeteries. (R.. S. 12-1401 to 12-1419; 13-1476,13-1477,14-505; 17-1301 to 17-1327; 21-911 to 21-914; 60-3504; 65-130 e£ seq.; 68-149; 73-301 to 73-308; 80-901.) These disclose the public aspect of cemeteries, and something of the vital interest the living have in the places of the-burial of their relatives and friends. The recent case of Dunlap v. Union Lodge, 129 Kan. 287, 282 Pac. 715, treats certain phases of the subject. Perhaps a city may enact an ordinance pertaining to cemeteries within its limits, preventing the extension of their boundaries, limiting or prohibiting burials therein in the future, or even requiring the removal of the bodies already buried there (Villa Park v. Wanderer’s Rest Cem. Co., 316 Ill. 226; Ex Parte Bohen, 115 Cal. 372; Park Hill, etc., Co. v. City of Evansville, 190 Ind. 432; Hallman v. Atlanta Child’s Home, 161 Ga. 247; Iuszkewicz v. Luther, 30 R. I. 570. See, also, 11 C. J. 51, and 3 McQuillin on Municipal Corporations, 2d ed., § 961, and cases there cited), but in the passage of such an ordinance many questions, legal and otherwise, naturally would present themselves. We are not called upon to decide these questions here. There is nothing in the zoning ordinance in question to indicate that these matters were taken into consideration in its passage. Considering these matters, and the further fact that the property in question was owned for cemetery use before the zoning ordinance in question was passed, we are forced to the conclusion that the zoning ordinance did not prohibit the use of the property for that purpose. It was therefore not error for the courto receive evidence as to the value of the property for cemetery purposes in determining the damages to be paid and in rendering judgment for damages based upon the findings of the jury for such purpose.
.The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Dawson, J.;
This was a proceeding in mandamus in the district court of Montgomery county to compel the defendant as justice of the peace to grant to Lewis Borden, plaintiff herein, a change of venue as directed by statute.
' The controlling facts were these: The defendant, S. P. Miles, was & justice of the peace in the city of Independence. On April 29, 1929, Orville Roberts filed an action against Lewis Borden and Alice Attaway in the justice court of this defendant. The bill of particulars set out nine causes of action based on certain promissory notes for $12.50 each, dated July 29, 1924. Summons .was duly served on both defendants and the case was set for trial on May 10, 1929, at 9 o’clock a. m.
On May 9, 1929, Borden filed with defendant Miles an affidavit for a change of venue on two grounds:
“1. That he verily believes that he cannot have a fair and impartial trial before said justice, on account of the bias and prejudice of said justice, against affiant.
“2. That affiant demands a jury to try said cause as provided by law, and that he cannot as he verily believes have a fair and impartial trial in the city of Independence, and in Independence township, Montgomery county, Kansas, on account of the bias and prejudice of the citizens thereof, and further affiant saith not.”
At the same time Borden filed a confession of judgment for costs.
On the day set for the trial before the defendant justice the application for a change of venue was presented and denied. Borden and his counsel then withdrew from the court room. Alice Attaway, codefendant of Borden, did not appear. The justice waited one hour; plaintiff then presented his evidence and rested; and judgment was entered against both defendants as prayed for.
Eight days later this action was begun. Plaintiff’s petition recited the pertinent facts. Attached to his petition were authenticated copies of the files in Roberts v. Borden and of defendant’s court docket relating thereto. One recital in that docket reads:
“After short arguments of counsel, the court finds the application for change of place of trial in the form presented should be overruled, as to being set out of the city of Independence, but with the consent of the plaintiff offered to transfer the same to the court of C. L. Jukes, of Independence city, to all of which the defendant objected. Thereupon, the court overruled the application for change of place of trial and called the case for trial, and asked the counsel for defendant whether he was ready for trial or desired a continuance, to which counsel said he did not want a continuance and would not go to trial, and thereupon with the defendant left the court room with his counsel, who said as a parting shot at the court, he would mandamus the court, as there was a higher court.”
In his petition for mandamus plaintiff Borden prayed—
“For an order and judgment for peremptory mandamus, a change of the place of trial, from the said justice of the peace of Independence city, and also for a change of trial from the citizens of Independence township, to some other adjoining township in Montgomery county, Kansas. That the several acts, proceedings and judgments by the said justice of the peace, be set aside and held for naught and be adjudged void. That the plaintiff recover a judgment herein against said justice of the peace, for his costs, damages and attorney fees, and for such other and further relief as to the court may seem just and equitable.”
In his answer defendant admitted a number of pertinent facts about which there could be no dispute, raised certain legal questions in the nature of a demurrer to plaintiff’s petition, and further alleged—
“VI. For a sixth and further answer and defense herein, this defendant says that he could not legally grant the change of venue as asked by defendant, Lewis Borden, as the same was not in all respects legal and proper for the reason that under the law it was his duty to send such change of venue to the justice in the same township, or an adjoining township, and that Independence township does not have a justice of the peace, and said Lewis Borden refused a change of venue to the other justice of the peace in the city of Independence.
“VII. The defendant for a seventh and further answer, and defense herein, alleges that his refusal to grant a change of venue in said action was in all respects legal, proper and just, and that he has complied with all laws respecting the jurisdiction of his court in refusing said application for a change of venue; and that this defendant has performed all duties imposed upon him by law to perform.”
Both parties filed motion for judgment on the pleadings. Defendant’s motion was overruled and plaintiff’s motion was sustained. Following these rulings the trial court was informally advised by counsel for the parties that in Drum creek township, adjacent to the city of Independence, there was-one justice of the peace, David Curliss, to whom a change of venue could be taken. Thereupon the court ordered—
“That plaintiff should be granted a writ of peremptory mandamus against defendant, S. P. Miles, justice of the peace in and for Independence city, Montgomery county, Kansas, in the action filed in his court wherein Orville Roberts was plaintiff and Lewis Borden and Alice Attaway were defendants.
“That the place of trial should be changed from said justice of the peace, S. P. Miles, to some other justice of the peace in a township adjoining Independence city, Montgomery county, Kansas, and that such trial should be changed to and had before David Curliss, a justice of the peace in and for Drumcreek township, Montgomery county, Kansas, which joins Independence city, at defendant’s cost.”
Defendant appeals.
The right of a litigant before a justice of the peace to a change of venue upon the timely filing of an affidavit with a statement of the statutory grounds therefor is absolute under the statute. (R. S. 61-701; Herbert v. Beathard, 26 Kan. 746; Weaver v. Wilson, 112 Kan. 417, 211 Pac. 142.) Prior to the revision of the code, in 1909, it had been held that while it was the duty of the justice to grant the change of venue on a proper showing, yet if he refused to do so his jurisdiction was not lost and the aggrieved litigant could only have redress by appeal. There was fair ground for such a view at the time our early cases like Barnhart & Brother v. Davis, 30 Kan. 520, 2 Pac. 633, were decided, because the code then provided for the correction of errors committed by a justice of the peace by a petition in error. Conceding the adequacy of that form of redress for the recreancy of the justice, it no longer exists, as was thoroughly explained in Weaver v. Wilson, supra.
But even before the revision of the code in 1909 this court had uniformly held that the duty of a justice to grant a change of venue on the statutory showing was a mandatory, ministerial duty, and although mandamus was sometimes refused to compel its performance such refusal was placed upon the ground that the remedy of mandamus would be unavailing. (Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62.) Such a ruling, however, is not peculiar to cases in mandamus, but is one of general application. (Jenal v. Felber, 77 Kan. 771, 772, 773, 95 Pac. 403.)
In Barnhart & Brother v. Davis, supra, this court declined to recognize the analogy between the statutory right of a litigant before a justice of the peace to the right of a litigant to remove a cause from the state court to a federal court. The court by Chief Justice Horton said:
“The statute concerning the change of the place of the trial from a justice, is not exactly similar to the law of congress providing for the removal of cases from state to federal courts. Under that law, as construed by the United States supreme court, when a sufficient cause for a removal is made in the state court, the rightful jurisdiction of that court comes to an end, and it becomes the duty of the state court to ‘proceed no further.’ The state court has no power to refuse the removal, and can do nothing to affect the right, and its rightful jurisdiction ceases eo imtanti. No order for the removal is necessary, and the state court has no discretion as to what judge or court it will send the cause. If the state court goes on to adjudicate the case after the removal is made, such action on its part is usurpation, and the fact that such party has, after the removal, contested the suit, does not, after judgment against him, constitute a waiver on his part of the question of the jurisdiction of the state court to try the case.” (p. 523.)
Since the revision of the justice’s code we think the analogy between the right of a litigant before a justice of the peace to a change of venue on the statutory showing and the right of a litigant on proper showing to remove a cause from state to federal court is quite apparent. The statutory affidavit which contains the requisite recitals literally lifts the cause out of the justice’s jurisdiction, leaving him naught to do except the performance of his ministerial duty of transferring the cause to another justice of the peace and forwarding the papers to such other justice together with a certified transcript of the proceedings. (R. S. 61-701, 61-703.) The case of McPherson v. Martinson, 115 Kan. 828, 224 Pac. 907, is not at variance with what has just been said not with the rule announced in Weaver v. Wilson, supra. That case merely held that an erroneous and oppressive ruling on a motion for a continuance which ought to have been granted did not vitiate the judgment nor warrant the issuance of an injunction to restrain its execution. Of course, that is the law. No court, not even a justice of the peace, loses jurisdiction because of merely erroneous rulings. It is another matter, however, when he makes rulings in a cause after he has been effectively stripped of jurisdiction.
It is urged that defendant should not have been required to grant a change of venue in this case because there were two defendants and only one of them made application for a change of venue. The only defendant who did appear made a sufficient application. The nonappearing defendant might be in collusion with the plaintiff; she might be judgment proof; she might be dead. Appellant cites cases from other jurisdictions holding that where an application for a change of venue is not joined in by all defendants it may properly be denied. Without committing this court either for or against that rule, certainly its application must be limited to cases where the discordant defendants are actually in court and concerning themselves with the litigation. It must be held that plaintiff herein could not be deprived of his statutory right to a change of venue because'his codefendant in Roberts v. Borden who ignored the lawsuit entirely did°not join in the application therefor.
A final argument is urged against the judgment to this effect: The statute says that if a jury be demanded by the adverse party, etc., the trial shall be changed to some other justice. (R. S. 61-701.) Appellant suggests that Roberts, the plaintiff in the justice’s court, was the adverse party to which the statute refers. We must hold otherwise. Roberts chose the forum in which he preferred to litigate when he filed his action in defendant’s court. The adverse party who demanded a jury trial and averred that he could not have a fair trial in that forum nor in Independence township was the defendant in that case, plaintiff herein.
The record contains no error and the judgment is affirmed.
Jochems, J., dissents from syllabus 3 and the corresponding part of the opinion.
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The opinion of the court was delivered by
Parker, J.:
This is a controversy between a wife and children over the estate of a deceased husband and father in which all parties are dissatisfied with the decision of the trial court. The plaintiff appeals and the defendants cross appeal.
John G. Norton, a resident of Lincoln County, Kansas, died testate on March 23, 1937. On the date of his death he was the owner of five quarter sections and an eighty-acre tract of real estate, also personal property of the approximate value of $2,500. All of his real estate was' clear except the Northwest Quarter of Section 17, Township 10, Range 10 in Lincoln County which was encumbered by a mortgage of $4,000, executed in 1930 by the testator and his wife Cora, the plaintiff herein, on which $3,000 of the principal plus unpaid interest amounting to $500 was either past due or remained to be paid.
For present purposes, except to note that it made ample provision for division of such of his real estate and personal property, as remained unsold on the date of the death of his wife among three persons, i. e., a daughter, a son and a stepson, all that need be said respecting the will is that it appointed Cora as executrix with the common directive that his just debts be paid, and contained the following terms:
“Second: I give, devise and bequeath to my beloved wife, Cora Norton, a life estate in all of my real property with full authority to lease, occupy or hold the same and to have as her personal property all rents derived from said real estate during her lifetime with full authority to sell, transfer and deliver good title to any portion of said land necessary for the payment of any debt on said land at the time of my death.
“Thibd: I give, devise and bequeath to my beloved wife all of my personal property wherever situated with full authority to sell, convey, call in, collect and convert the same into money, with power in her discretion to postpone such sale, conveyance, calling in and conversion; and after payment therefrom from my debts, funeral expense and expense of administration, to invest the residue of such moneys in her name in any of the investments authorized by law and to stand possessed of such investments and of all parts of my personal property for the time being unsold with full authority' to use any part of the proceeds or principal necessary for her own personal benefit and that she be not required to make an accounting of any of the personal property above mentioned to any Court, administrator or other officer of the law, but that said personal property be for her own personal benefit and support, or such amount as may be necessary.
“Fifth: It is my intention in this will to give to my beloved wife, Cora Norton, all of my property of every kind, both real and personal, and that she have the full benefit of all profits derived from said property during her lifetime; and that at her death said property be divided as set forth in paragraph four; that in the event it becomes necessary for said Cora Norton to sell any of said real estate to pay any indebtedness on said land existing at the time oí my death, I hereby give said Cora Norton the right to sell any portion of said real estate. In the event there is no lien or loan against said property at the time of my death, I direct that said property be held intact by said Cora Norton until her death, then the same to be divided as mentioned in paragraph four.”
The foregoing will was filed for record and admitted to probate in the probate court of Lincoln County shortly after the death of the testator. Pursuant to its direction Cora Norton was appointed executrix and proceeded with administration of the estate.
We shall not here detail receipts and disbursements of the estate as shown by reports made to the probate court by the executrix. For purposes essential to the appeal it suffices to say that, among other things, during the course of its administration the executrix paid $1,000 on the principal remaining unpaid on the heretofore mentioned mortgage, paid $594.44 for interest due and unpaid on that obligation up to and including July 10, 1937, and perhaps another payment of interest amounting to $60; also that she paid herself, pursuant to the order of the probate court, the sum of $524.52 as a widow’s allowance; that all of such sums were paid from funds realized from the sale of personal property left by the testator or from the sale of crops growing on the real estate at the time of his death and sold subsequently thereto; that all of the amounts so paid were included in the final report made by the executrix on April 14, 1938, which report was approved by the probate court on that date under a final order and judgment discharging her as executrix of the estate and specifically reciting that “It is by the Court considered and ordered that said report and account of said Executrix be and the same are, approved. . . .”
Following her discharge on April 14, 1938, on which date the sum of $2,000 remained unpaid on the principal of the real estate mortgage, Cora, as the owner of all personal property and the owner of a life estate in the real estate, left by her deceased husband, took full possession and control of all such property. She leased the real estate to Fred Norton, her deceased husband’s stepson, and from that time on received all rentals accruing therefrom. Out of funds received from that source and perhaps other money, realized from the personal estate of her husband and paid to her at the time of her discharge as executrix, she paid interest accruing on the unpaid principal of the mortgage until March 23, 1948. On that date, due to a threatened foreclosure of such mortgage and in order to preserve her life estate and the 'fee in such real estate, she paid the holder of the mortgage $1,000 on the principal remaining due under its terms. Subsequently, and on July 20, 1949, she paid the balance of the principal, namely, $1,000, together with all interest due on that date. Thereafter the owner and holder of such mortgage endorsed receipts of all payments made on that instrument, released it of record, and delivered it to Cora as fully paid and satisfied.
The record discloses surprisingly little friction among the parties in the interim between Mr. Norton’s death and the date on which his widow made the final payments on the mortgage. Nor does it affirmatively appear certain that friction existed thereafter. However, it seems certain that something happened to disturb their theretofore harmonious relationship at that time. Perhaps it was the fact that thereabouts Mrs. Norton married again and became Mrs. Cora M. Norton Morrison. In any event some two years after such marriage she commenced the instant action by that name as plaintiff by the filing of a petition, subsequently amended by virtue of a ruling on a motion to make that pleading more definite and certain, wherein she named all the residuary legatees and devisees of Mr. Norton together with their respective spouses as defendants and, after detailing all payments of interest and principal made by her on the real-estate mortgage, including those made by her as executrix, asserted that she was entitled to be reimbursed for such payments and prayed for judgment construing the will to permit such recovery; that upon construction thereof she be adjudged to be the holder of a lien against the real estate belonging to the estate for the sum total of all payments made by her on the mortgage together with interest thereon in the approximate amount of $6,807 with interest from July 1948; that she be authorized to sell one of the tracts of real estate, not encumbered on the date of the death of her prior husband, to satisfy the amount of such lien; that from the proceeds of such sale the amount of her claim be satisfied with interest from July 1948, and costs; that she have such other further relief as she might be entitled to in equity; that in addition she have relief in the nature of a declaratory judgment decreeing that the terms of the will when construed entitled her to recover all relief prayed for.
In response to the petition as amended the defendants filed an answer and cross petition. In their answer they denied each and every allegation of plaintiff’s pleading, except the existence of the will and that it had been duly probated and plaintiff had elected to take under its terms. In addition they asserted the testator possessed more than enough personal property on the date of his death to liquidate all of his indebtedness, including the mortgage in question, which property came into the hands of the plaintiff and should have been used by her to pay all principal and interest due and unpaid on the mortgage on the date of the death of such decedent and prayed that the relief sought by plaintiff be denied and they recover judgment for the costs of the action. By cross petition they set forth certain facts which they alleged entitled them to an order restraining plaintiff from removing certain buildings from one of the quarter sections left them by the testator subject to the plaintiff’s life estate. However, so far as the record discloses, questions with respect to that issue do not appear to have been pursued in district court. In any event they are neither abstracted nor briefed and hence require no further consideration or mention.
The reply filed by plaintiff to the defendants’ pleading consisted of a general denial of all allegations inconsistent with her claim and a request for judgment as prayed for in her amended petition.
With issues joined as related the case came on for trial by the court. After plaintiff had adduced her evidence, and without stating the grounds on which they based their action, defendants demurred to such evidence and moved for judgment thereon. Upon the overruling of this demurrer and motion defendants adduced their evidence. Thereafter each party requested findings of fact and conclusions of law. The record fails to disclose whether these requested findings were refused or denied but does show that subsequently the trial court made its own findings of fact and conclusions of law which are incorporated in the journal entry of judgment. This journal entry, without stating any definite amount, recites that judgment was rendered in conformity with such findings and conclusions and the costs taxed to the defendants.
Following the rendition of judgment, as heretofore indicated, plaintiff filed a motion to set aside four of the findings of fact and a separate motion to set aside fifteen of the trial court’s conclusions of law. When these motions were overruled she filed a motion for new trial. Not to be outdone the defendants did likewise. When these motions were overruled plaintiff perfected the instant appeal. Thereupon defendants gave notice of a cross-appeal.
In briefs filed in this court appellant specifies twelve errors and appellees assign six errors as grounds for reversal of the judgment.
It would serve no useful purpose to detail the evidence of record which, it may be stated, is sufficient to sustain the factual statement heretofore made, and for that matter, the factual findings of the trial court. Neither would it add anything to this opinion to labor the twenty-three extended findings of fact made by that tribunal or its twenty voluminous conclusions of law. Nor would it be of benefit to the bench and bar of this state to relate at length the specifications of error raised by the parties on appellate review. It .suffices to say that when carefully analyzed the evidence, the trial ■court’s findings and conclusions of law, and the parties’ specifications of error all make it apparent the two fundamental questions involved in this lawsuit are: (1) Whether the last will and testament of John Norton is to be construed as requiring the appellant, ■either as executrix or as an individual, to pay the encumbrance, •existing on the Northwest Quarter of Section 17, Township 10, Range 7, on the date of his death, out of funds accruing from the sale of personal property belonging to his estate and/or from funds acquired by her from rentals on real estate in which she had a life estate; and (2) if not, whether appellant is entitled to recover judgment for money paid by her on such indebtedness under conditions and circumstances heretofore described.
As indicated decision of the first question above mentioned depends upon the import to be given heretofore quoted portions of the will, which we pause to note was executed approximately five months prior to Mr. Norton’s death. Resort to that instrument, particularly the third paragraph thereof, discloses clear and unequivocal language expressing the testator’s intention to give appellant (his widow), subject only to payment of debts, funeral expense, and expenses of administration, whatever portion of his personal property might be necessary for her personal benefit and support during her lifetime with full power on her part to sell any and all of such personal property without accounting for the proceeds received therefrom to any court, administrator, or any other officer of the law. When read in the light of the second and fifth paragraphs of the will, providing for the sale of his real estate to pay any indebtedness existing thereon at the time of his death, we have no trouble in reaching a conclusion the directive of the third paragraph respecting the payment of debts had reference to debts which were not secured by a lien on his real estate. We have even less trouble when it is remembered the testator was bound to know, on the date of the making of his will, that his clearly expressed intention to leave his personal property for his wife’s benefit and support would be completely nullified if it were sold to pay liens existing on his real estate because the proceeds thereof if sold would have been less than such indebtedness and if they had been so applied would leave no personal property or proceeds derived therefrom for the use, support or personal benefit of his wife. There is, of course, no need for interpretation of the second paragraph of the will so far as it relates to income from the devised life estate. Such paragraph provides, in language so direct, clear and certain that there can be no question respecting its meaning, that appellant was to receive and hold as her own personal property all rents derived from the real estate during her lifetime. Based on the foregoing construction we are forced to hold the will did not require the appellant to pay liens existing on the involved real estate out of funds acquired from rents derived therefrom or out of money realized from the sale of personal property owned by the testator on the date of his death.
Turning to the second question w,e have little difficulty in concluding, particularly when it is kept in mind they were made to forestall foreclosure and the will gave her the right to sell the mortgaged real estate to accomplish that result, that appellant should be reimbursed for the two $1,000 payments of principal made in March and July of 1948 for the purpose of preventing foreclosure of the existing mortgage on the Northwest Quarter of Section 17 and that she is entitled to a lien on such property for the amounts so paid. However, we are unable to agree with her contentions she is entitled to payments of principal and interest made during the course of the administration of the estate and interest paid between the date of her discharge as executrix and the date of the release of the mortgage. With respect to payments of the first type she elected to pay them out of funds derived from the sale of the personal property belonging to her deceased husband. She reported those payments as having been made out of assets of the estate, procured judicial approval of her final account, permitted such estate to be closed, and accepted her discharge as executrix without having made any claim against the estate for personal funds advanced by her for its benefit. Under such circumstances she cannot now, some sixteen years after the estate has been closed, be heard to say she has a claim against it and repudiate proceedings had in the probate court to which she was a party and in which she acquiesced. As to the second we think that under the terms of the will appellant was obligated to promptly determine whether it was going to be necessary to sell any of the real estate in order to pay off the mortgage lien and if so proceed to sell it within a reasonable time. Having failed to do so and thus obtained benefits from the unsold property, which she would not otherwise have obtained, it would be unjust and inequitable to reimburse her for interest paid on the mortgage from 1938 to 1948. Ry the same token it would be equally unjust and inequitable to hold, as appellees contend, that appellant is not entitled to be reimbursed for the sum total of the last two payments made on the principal of the mortgage. The will gave her the right to sell the mortgaged property for that purpose and by holding she has a lien thereon for the amount so paid and, if not otherwise reimbursed, that it shall be sold to pay that amount appellees will lose no more than they would have lost if it had been sold in strict conformance with the terms of such instrument. Nor do we agree, as appellees contend and for that matter as the trial court held, that appellant is now chargeable with any excessive award in the form of a widow’s allowance made by the probate court in its 1938 decree of final settlement. Assuming arguendo such award was excessive the judgment of the probate court has long been final and is res judicata.
Based on what has been heretofore stated and held, and after careful consideration of all arguments advanced by counsel for the parties regarding their respective rights under the confronting facts and circumstances, we have concluded the appellant should be reimbursed in the sum of $2,000 for payments of principal made on the mortgage in March and July 1948. Since that sum is in excess of the amount allowed by the trial court its judgment should be reversed to that extent with directions to increase the amount of its award accordingly and it is so ordered. We find nothing wrong with, and therefore approve, .other provisions of its judgment decreeing the amount due and reimbursable to be a lien on the involved real estate and directing a sale thereof in the manner therein set forth to satisfy such lien and the costs of the action in the event the amount of such lien is not satisfied by the appellees prior to the initiation of the sale proceedings.
In accord with the views herein expressed the judgment is affirmed in part and reversed in part.
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The opinion of the court was delivered by
Price, J.:
The basic question in this appeal is whether, under all of the facts and circumstances disclosed, the probate court had the power and authority, under G. S. 1949, 59-2234, to make an election in behalf of an incompetent surviving spouse’s estate after the death of such spouse.
Both the probate court and, on appeal, the district court held that the probate court possessed such power, and from that ruling and another ruling incidental thereto the appeal is taken.
The facts are simple, are not in dispute, and are as follow;
Frank B. Henderson and his wife Margaret M. were residents of Leavenworth. They had no children.
In February, 1952, Frank suffered a stroke and was confined in a local hospital.
On May 5, 1952, Margaret executed a last will and testament in which no mention, directly or indirectly, was made of her husband, who at the time was still confined in the hospital. The will disposed of all of her property, including her interest in their home, which, we are told, was owned by them as tenants in common. Frank did not consent to the provisions of the will..
On June 2, 1952, Margaret died, and three days thereafter a petition for the probate of her will was filed. At this time Frank’s condition, both mental and physical, had become so serious that he was wholly unable to transact any business. •
On June 24, 1952, Lee Bond was appointed and qualified as guardian of Frank’s person and estate.
On July 1, 1952, Margaret’s will was admitted to probate, and George Goehner was duly appointed and qualified as the executor thereof.
On July 18, 1952, Frank’s guardian filed a petition in Margaret’s estate requesting the court to set aside to Frank, who was still incompetent, the homestead rights and statutory family allowances granted to a surviving spouse by G. S. 1949, 59-2235 and 59-403. The guardian’s petition further sought an order appointing some suitable person as commissioner to ascertain the value of the provisions made for Frank by Margaret’s will, as well as the value of the estate which would accrue to Frank by statute, in accordance with the provisions of G. S. 1949, 59-2234.
On July 18, 1952, the same date on which the foregoing petition was filed, and with the guardian, the executor and his counsel being present, the probate court made an order setting aside to Frank the homestead rights and statutory family allowances, and made a further order appointing Malcolm McNaughton, a member of the Leavenworth bar, as commissioner, with directions to proceed in accordance with the statute, G. S. 1949, 59-2234, hereinafter set out, and to file his verified report with the court.
On July 27,1952, just nine days later, Frank died intestate, leaving two sisters and a brother as his only heirs-at-law, and on September 2, 1952, Lee Rond, who had been Frank’s guardian, was appointed and qualified as administrator of his estate.
On September 2, 1952, the commissioner filed his report which of course showed that under Margaret’s will Frank would take nothing, whereas by statute he would inherit one-half of her estate.
On September 2, 1952, the executor of Margaret’s estate filed a petition to set aside the order made on July 18th allowing to Frank homestead rights and statutory family allowances, on the ground that as such allowances had not been paid or delivered over to him or his guardian in his lifetime, his estate, following his death, is not entitled to them. At the same time the executor petitioned the court for a further order that no election be made for Frank because of his death in the meantime, and that Margaret’s will stand as written, and that Frank’s estate should take nothing from her estate.
On September 8, 1952, the administrator of Frank’s estate, by written answer, objected to the allowance of the foregoing petitions filed by the executor of Margaret’s estate.
The probate court, after a full hearing thereon, overruled the contentions of the executor of Margaret’s estate and ordered such executor to deliver over and pay to the administrator of Frank’s estate the statutory family allowances.
The court further ordered that the report of the commissioner appointed pursuant to G. S. 1949, 59-2234, although filed subsequent to Frank’s death, should be accepted by the court as though he were still living, and the court thereupon made an election in behalf of Frank to the effect that, whereas by the terms of Margaret’s will he would take nothing, but by statute would inherit one-half of her estate, Frank’s estate was entitled to distribution of one-half of her estate, and her executor was ordered to make such distribution upon final settlement of her estate.
On appeal to the district court these orders of the probate court were affirmed, and from such judgment the executor of Margaret’s estate and all beneficiaries under her will have appealed to this court.
Two questions, therefore, are presented.
First: Did Frank’s death, prior to the actual delivery to him and payment to him or his guardian, of the statutory family allowances, render the order of July 18, 1952, providing for such delivery and payment, a nullity?
In our opinion the question must be answered in the negative.
Frank, as the surviving spouse, was entitled to the family allowances as a matter of law under the provisions of G. S. 1949, 59-403 and G. S. 1949, 59-2235, and his death prior to the actual delivery and payment to him or his guardian did not alter the application of the rule. We hold, therefore, that under the facts of this case Frank’s estate is entitled to receive payment of such allowances from Margaret’s estate.
This brings us to the second and all-important question in the appeal, namely: Did the probate court have the power and authority, under the provisions of G. S. 1949, 59-2234, to go ahead and make the election in behalf of Frank’s estate, following his death, or did such power and authority cease to exist upon his death?
G. S. 1949, 59-2234, reads as follows:
“If the surviving spouse shall be insane or incapacitated to act by reason of mental disability, it shall be the duty of the court to appoint some suitable person as commissioner, who shall ascertain the value of the provision made by will in lieu of the rights in the estate secured by statute and the value of the rights secured by statute. The commissioner shall make his verified written report to the court. Notice of the time and place of the hearing of the petition for the appointment of a commissioner and of the hearing on his report shall be given to the surviving spouse and his guardian, if any, and all other persons interested in such manner and for such length of time as the court shall direct. After the hearing on the report the court shall make such election for such spouse under disability as is more valuable or advantageous to the spouse, which election shall be deemed as effectual as if made by the spouse when fully competent.”
Counsel for all parties advise us that the precise question has never been decided by this court. Our limited research bears out such statement.
Margaret’s executor and the beneficiaries under her will first contend for the general rule to the effect that the right of a competent surviving spouse to make an election with respect to his deceased spouse’s will is a personal privilege and right, and that if he fails or neglects to make such election prior to his death the right does not survive to his heirs or personal representative, but dies with him, citing numerous decisions from other jurisdictions in support thereof. They then refer to our statute, G. S. 1953 Supp. 59-603, which reads:
“The surviving spouse, who shall not have consented in the lifetime of the testator to the testator’s will as provided by law, may make an election whether he will take under the will or take what he is entitled to by the laws of intestate succession; but he shall not be entitled to both. If the survivor consents to the will or fails to make an election, as provided by law, he shall take under the testator’s will.”
and to G. S. 1953 Supp. 59-2233, providing for the time within which an election is to be made, as authority for their contention that under the facts here presented, no election having been made either by Frank or by the probate court in his behalf prior to his death, he is deemed to take under Margaret’s will. It is further contended that as G. S. 1949, 59-2234, supra, makes no provision for an election by the court in behalf of an incompetent surviving spouse or his estate, following his death, the statute should be construed in accord with the general rule pertaining to elections by competent surviving spouses, that is, the right to make the election, even by the court, died with him.
The administrator of Frank’s estate, on the other hand, contends that as the statute (59-2234) does not prohibit the court from completing the election subsequent to the death of the .incompetent surviving spouse, equitable principles lead inevitably to the conclusion that the court, in the exercise of its general equity powers, does possess such authority.
As stated, this court has never been called upon to decide the precise question presented, but counsel concede, and we agree, that there are authorities from other jurisdictions in support of either side of the question.
No attempt to review those decisions will be made. Concededly they are in conflict, as stated in 57 Am. Jur., Wills, § 1531, p. 1042:
“With respect to the situation presented where a beneficiary suffering under some legal disability, such as insanity, during the period between the testator’s death and his own death dies before any election has been made in his behalf, the cases are not in agreement as to the right or power of the court or guardian to make a posthumous election for such a beneficiary, some cases upholding such power, and others denying it.”
Attention also is directed to Bartlett’s Kansas Probate Law and Practice, Revised Edition, Vol. 3, § 1286, p. 148, and to the annotations on the general subject found at 74 A. L. R. 452, 462, and 147 A. L. R. 336, 346, in which numerous cases are digested. •
Here we have no question concerning what the general rule is, or should be, with reference to a competent surviving spouse who dies without making an election, and neither are we concerned with what the rule is with respect to the authority of a personal representative or heirs of an incompetent surviving spouse who dies, to make an election in his behalf. Our question is concerned solely with the construction to be given G. S. 1949, 59-2234, supra, where, as here, the proceeding whereby the court was to make the election was not completed prior to the death of the incompetent surviving spouse.
A careful study of the question leads us to the conclusion that under the facts of this case the probate court did possess the power and authority to make the election in behalf of Frank, or, as in reality, in behalf of his estate.
The rapid sequence of the very unusual facts and circumstances has already been related. There is no hint or suggestion of undue delay on the part of anyone. Parties to this litigation, and including the probate court, simply could not keep up with events as they transpired. We have no way of knowing Margaret’s motive in executing her will. It may have been the result of an agreement or understanding between Frank and her. Be that as it may, he was seriously ill in a hospital at the time. She died less than a month later, at which time his condition, both mental and physical, was so serious that he was wholly unable to transact any business. The record shows that almost immediately after the probate of her will Frank’s guardian followed the only avenue open to him — he peti tioned the probate court to set in motion the machinery provided by the statute for making an election in behalf of an incompetent surviving spouse. The court forthwith appointed a commissioner, as provided by the statute, and only nine days later Frank died. Certainly, under all of the circumstances, and particularly since the inventory and appraisement of Margaret’s estate had not yet been filed no blame can be attached to the failure of the commissioner to file his verified report with the court in that nine-day interval. The fact remains, however, that during the twenty-seven-day period between the probate of Margaret’s will and Frank’s death the latter was mentally and physically incapacitated and wholly unable to make the election provided for by G. S. 1953 Supp. 59-603, supra. Furthermore, no rule or statute has been cited, and we know of none, which would have authorized Frank’s guardian, during that interim, to make an election in behalf of his ward. The guardian followed the only procedure available to him.
Under Margaret’s will, to which he did not consent, Frank took nothing. We are advised that her estate was valued at approximately $25,000. Had Frank lived, although remaining incompetent, the probate court of course would have elected in his behalf to take against the will, in which event Frank would take his statutory (G. S. 1949, 59-602) one-half of her estate, that being “more valuable or advantageous” (G. S. 1949, 59-2234) to him than nothing at all. Why, then, under the circumstances, should his death divest the probate court of power and authority to go ahead and make the election in behalf of his estate? We think that it did not.
The mere fact that our statutes (G. S. 1953 Supp. 59-603, supra, and G. S. 1953 Supp. 59-2233) providing for an election by a competent surviving spouse are so worded as to call for affirmative action if such spouse is to take against the will, does not preclude the probate court, under G. S. 1949, 59-2234, in the case of an incompetent surviving spouse, from making an election in behalf of such incompetent spouse’s estate after his death. In this connection see Ambrose v. Rugg, 123 Ohio St. 433,175 N. E. 691, reported at 74 A. L. R. 449, and Mead v. Phillips, 135 F. (2d) 819, reported at 147 A. L. R. 322.
The judgment of the lower court is in all respects affirmed.
Parker, J., dissents.
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The opinion of the court was delivered by
Harvey, C. J.:
This appeal questions the correctness of an order of the district court sustaining a demurrer against each of two petitions filed in the probate court as claims against the estate of Jerome P. Kerschen, and at the request of the petitioners certified to the district court for trial.
The abstract discloses that on September 15, 1951, Leo R. Wetta was duly appointed administrator of the estate of Jerome P. Kerschen; that he duly qualified as such and published a notice of his appointment on September 22, 1951.
It further shows that on June 21, 1952, Albert Kraus and wife filed in the probate court in the estate of Jerome P. Kerschen, de ceased, their petition for a claim against the estate. In this they alleged that they were residents of Sedgwick county and gave their post-office address; that they were the father and mother of Patricia Kraus and her next of kin; that Patricia Kraus died on September 15, 1950, as the result of the negligence of Jerome P. Kerschen, as later stated; that no administration had been had on the estate of Patricia Kraus, and further alleged the appointment of the administrator of the estate of Jerome P. Kerschen.
It further alleged that:
“On September 17, 1950, the said Patricia Kraus was riding in an automobile which was driven by the decedent, Jerome P. Kerschen, said automobile being a 1947 Tudor Deluxe Ford Sedan, bearing motor number 99A-1521419. While riding in said car she was killed because of the negligence of Jerome P. Kerschen and as a result, petitioners have a claim against the estate of Jerome P. Kerschen.
“Said Ford vehicle was being driven in a southerly direction out of Hutchinson, Kansas when, at a point approximately seventeen miles south of Hutchinson, Kansas on State Highway K-17, the decedent, Jerome P. Kerschen, caused the said vehicle to be driven over and across to the east side of the said highway into a cement culvert, thereby demolishing the said automobile, killing two of the occupants of said car and causing the death of the daughter of these petitioners.
“The said Jerome P. Kerschen in driving the vehicle into said culvert, was negligent in the following particulars, to-wit:
“(a) In driving in a reckless, negligent and careless manner.
“(b) In driving said vehicle over and across to the east side of said highway and into the said culvert, which was in full view and plain sight of the decedent.
“(c) In failing to keep the vehicle under proper control so as to stop or turn aside upon having notice of any impending danger.
“(d) By driving at a speed greater than was reasonable under the circumstances at the time and place above mentioned.
“The negligence of the decedent, Jerome P. Kerschen as outlined above, was the sole and proximate cause of the death of Patricia Kraus.”
Plaintiffs further alleged their damages; requested the cause of action be certified and transferred to the district court under appropriate statute, and prayed for judgment in the sum of $15,000.
On the same date a petition of Hugo Nett, Jr., sixteen years of age, by his father as next friend, was filed for his claim for damages for personal injuries against the same estate alleged to have resulted from the negligence of Jerome P. Kerschen whose negligence is alleged in the same language that was charged in the Kraus petition. The petition also alleged the damages sustained; requested the transfer of the cause of action to the district court; and prayed for damages in the sum of $15,570.30.
The two petitions were duly certified and transferred to the district court where they were consolidated into one case for the purpose of hearing. In the district court Leo R. Wetta, as the administrator of the estate of Jerome P. Kerschen, deceased, filed a demurrer to each petition for the reason that the petition failed to state facts sufficient to constitute a cause of action against the estate. These respective demurrers were heard by the court; briefs were furnished by counsel; and, after due consideration, each of the demurrers was sustained. This appeal followed.
As far as the grounds of liability of the estate are concerned the petitions are identical and we have printed only the grounds alleged in the Kraus case. We will speak of the cases in the singular.
In this case counsel for appellant point out that no motion of any kind was filed against the petition and argue that the petition is entitled to liberal construction; that against a general demurrer every material fact which has been well pleaded and every reasonable inference to be drawn therefrom must be construed in favor of plaintiffs. That point is well taken. It is also true that when so considered the petition must state a cause of action upon some legal principle. Counsel for plaintiffs contend that if defendant’s counsel thought the petition insufficient they should have filed a motion against it. That point is not well taken. Counsel for defendant was under no legal duty to tell counsel for plaintiffs how they might amend an insufficient petition so as to state a good cause of action. See, Willett v. McCormick, 161 Kan. 658,170 P. 2d 821, and authorities there cited.
Here the petition does not state the relationship between the one killed, or injured, and the driver of the car. The only allegation is that “Patricia Kraus was riding in an automobile which was driven by the decedent,” and “While riding in said car she was killed because of the negligence of Jerome P. Kerschen.” We are not told whether Patricia Kraus was a guest of the. driver; whether she was a paid passenger; whether she was a trespasser, or whether the parties were engaged in some joint business as in Elliott v. Behner, 146 Kan. 827, 73 P. 2d 1116,. or Le Clair v. Hubert, 152 Kan. 706, 107 P. 2d 703. Different rules of law apply to these several situations. Defendant was entitled to know what the relationship was in order to make a defense.
In Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619, it was held:
“The plaintiff must frame his petition upon a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient.” (Syl. 1.)
“The averments of the petition herein examined, and it is held, that there is a confusion of theories, and, also, that there are insufficient facts alleged to sustain any theory.” (Syl. 2.)
The rules laid down in this case have been cited and followed in many cases as shown by our citator but in some of them the force of rules stated in syllabus 1 has been somewhat diminished, but we find none of them diminished the force of the rule stated in syllabus 2.
In Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965, the rule was stated thus:
“While the general rule is that where a general demurrer is filed to a petition, no motion to make more definite and certain having been presented, the demurrer should be overruled if the facts stated constitute a cause of action, whether well pleaded or not, and inconsistent causes of action do not render a pleading demurrable, a different rule must be applied where plaintiff, as a result of procuring rules favorable to him, defeats every effort of the defendant to ascertain on what theory he founds his cause of action; and in such case, if the petition is not drawn upon a single and definite theory or there is such a confusion of theories that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient, and a demurrer thereto should be sustained.”
This was quoted and followed in Sheen v. State Highway Commission, 173 Kan. 491, 249 P. 2d 934, p. 494, and referred to with approval in Lanning v. Goldsberry, 173 Kan. 654, 250 P. 2d 812, p. 658. In 71 C. J. S. under Pleading, § 92, it is said:
“Good practice requires the plaintiff’s initial pleading to proceed on a single and definite theory; but, under modem code systems, his pleading may be held sufficient if it states a cause of action on any theory.”
Citing, Grannell v. Wakefield, 169 Kan. 183, 217 P. 2d 1059; Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947; Dellinger v. Harper County Social Welfare Board, 155 Kan. 207, 124 P. 2d 513; Lofland v. Croman, 152 Kan. 312, 103 P. 2d 772; Fleming v. Campbell, 146 Kan. 294, 69 P. 2d 718; Scherger v. Union National Bank, 138 Kan. 239, 25 P. 2d 588, 592; and, many cases from other states.’
Counsel for appellant in their briefs argue:
“Where a petition alleges facts showing a driver of an automobile to have driven his vehicle over and across to the opposite side of the highway into a cement culvert which was in his full view and plain sight; such a petition, liberally construed, does allege gross and wanton negligence.”
They point out that in many of our decisions the words “gross and wanton negligence” as used in our so-called guest statute, G. S. 1949, 8-122 (b), has been held to mean “wantonness,” citing Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573; Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822; and, Bailey v. Resner, 168 Kan. 439, 214 P. 2d 323, from which case they quote from p. 442 a definition of wantonness as follows:
, . A wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act but not necessarily so; it is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.”
In somewhat similar language wantonness is defined in many of our cases.
Counsel for appellant then cite three of our recent cases; Hanson v. Swain, 172 Kan. 105, 238 P. 2d 517. In that case the court held:
“To state a cause of action under G. S. 1949, 8-122b, commonly referred to as the automobile guest statute, the petition must allege facts tending to show that the host’s conscious conduct indicated a reckless disregard and complete indifference and unconcern for the probable consequences of his wrongful act.” Citing cases.
In that case the defendant driving an automobile and another were racing through the streets of the city of Caldwell in the nighttime. The portion of the petition set out disclosed facts to bring it within the rule laid down in the court’s syllabus.
And, Fyne v. Emmett, 171 Kan. 383, 233 P. 2d 496. In that case it was alleged that the host was under the influence of liquor; was driving his car about seventy miles an hour; took his hand off the wheel and gave his attention to his lady seat companion; refused all requests of his guest that he drive slowly; made no attempt to control his car which ran off a highway; crashed into a culvert, causing injury to his guest.
And, also, In re Estate of Bisoni, 171 Kan. 631, 237 P. 2d 404. In that case the host was driving a car which had defective steering apparatus and defective brakes; the host was driving on a sandy road with a ridge of sand at one side; switched and turned his car at a rapid speed; refused all requests of the guest to slow down and let him out; and while driving the car purposely turned it in such a manner that it upset.
In each of the three cases there were allegations of conscious recklessness with indifference to consequences, none of which is alleged here. The allegations here are that the host was negligent.
In the three cases last mentioned the opinions set out much more of the petition than has been recited here. Reference is made to the opinions for more complete allegations.
Counsel for appellant next argue:
“A petition which alleges that a person was riding in an automobile’ with the driver and makes no other allegations as to the relationship of the driver and rider, does not as a matter of law, show on its face that the guest statute is applicable and is therefore not demurrable for failure to state a cause of action.”
Respecting this they say the petition in this case does not show as a matter of law that the person riding in the vehicle driven by the deceased driver was a guest so as to fall within the guest statute. We agree that the petition does not show the daughter, Patricia Kraus, for whose death plaintiffs seek damages, was a guest of the driver of the automobile.
Counsel for appellant quote syllabus 1 from In re Estate of Wright, 170 Kan. 600, 228 P. 2d 911, which reads:
“In order for one to recover for an injury or for his representative to recover for a wrongful death occasioned while being transported in the motor vehicle of another, to avoid the limitations of our guest statute, it must be affirmatively shown that he was not a guest, that he was being transported for ‘payment,’ or that injury or death was caused by gross and wanton negligence of the operator of the vehicle.”
They point out that this says nothing about pleading. From this it is argued that even though the person were a passenger that fact need not be alleged in the petition, only that it has to be proved in the trial. That point is not well taken. Syllabus 4 of the same case reads:
“To recover damages for wrongful death under G. S. 1949, 8-122b, the petition must allege and the evidence must show that the host’s conscious conduct indicated reckless disregard and complete indifference and unconcern for the probable consequences of his wrongful act, and where the evidence fails in this respect, a demurrer thereto must be sustained. (Following Bailey v. Resner, 168 Kan. 439, 214 P. 2d 323.)”
In the following cases where payment to ride as a passenger was not made in money the facts constituting payment were alleged in the petition: Elliott v. Behner, 146 Kan. 827, 73 P. 2d 1116; LeClair v. Hubert, 152 Kan. 706, 708,107 P. 2d 703; Pilcher v. Erny, 155 Kan. 257, 260, 124 P. 2d 461; Srajer v. Schwartzman, 164 Kan. 241, 246, 188 P. 2d 971; and, Sparks v. Getz, 170 Kan. 287, 225 P. 2d 106.
Our statute G. S. 1949, 60-704, pertaining to the contents of a petition reads:
“The petition must contain: . . . Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.”
When plaintiff’s cause of action is predicated upon a fact essential to his recovery that fact must be pleaded as well as proved.
Having carefully examined the petition we find that it does not state a cause of action upon the ground that plaintiffs’ daughter was the guest of the operator of the automobile, or upon the ground that she was a paid passenger, or upon any other grounds which would enable plaintiff to recover. The result is that the petition was subject to a general demurrer and the trial court did not err in sustaining the demurrer. The judgment of the trial court is affirmed.
Smith, Parker and Wertz, JJ., dissent from paragraph 2 of the syllabus and the corresponding paragraph of the opinion.
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The opinion of the court was delivered by
Dawson, J.:
This action involved the validity of the title to a Clay county farm which the defendant, George Lenhart, purchased at a foreclosure sale pursuant to a judgment against Charles R. Butler, former holder of the fee, who had mortgaged it as a single man.
The plaintiff, Louisa Steinborn, claimed to be the common-law wife of Butler and that the farm was the homestead of herself and him. She prayed to have her title quieted and that defendant’s deed be canceled and held for naught.
The defendant, George Lenhart, joined issue as to the alleged common-law marriage, set up his title to the farm based upon its purchase for $10,400 in cash at the sheriff’s sale in foreclosure, and pleaded estoppel against plaintiff on the ground that during the fifteen years she had lived on the farm immediately prior to the foreclosure sale she had uniformly held herself out to the community as á single woman, and that her alleged common-law husband had similarly held himself out to be a single man, and that she knowingly remained silent during the time the property was being sold in foreclosure and purchased by defendant.
Butler, a nominal defendant, answered admitting all the allegations of plaintiff’s petition.
Plaintiff replied to Lenhart’s answer with an allegation that whatever instruments Butler executed purporting to affect the title to the farm were without her joint consent and therefore void, “and that the conduct of said defendant [not specified] had been such as to not enable him to claim an estoppel.”
A jury was waived and the cause tried by the court.
The evidence for plaintiff tended to show that about 1910 Louisa Steinbom and Charles R. Butler resided on neighboring tracts of government land in Oklahoma, seeking to perfect their titles thereto in accordance with the United States land laws. While residing on their respective claims, they agreed to marry as soon as they should prove up on their lands; and sometime in November, 1910, they met at the homestead cabin of Louisa, no one else being present, and agreed to become husband and wife, which agreement was then consummated by cohabitation, and that they lived together thereafter in Oklahoma for six months, after which they returned to Clay county, Kansas, to the farm in controversy, which Butler had inherited from his parents. Plaintiff’s evidence also tended to show that she and Butler continually resided on the farm after their arrival from Oklahoma until the institution of this action.
On behalf of defendant, the testimony and evidential circumstances tended to discredit the plaintiff’s evidence touching the existence of the alleged common-law marriage. Even the cross-examination of the plaintiff herself weighed strongly against her. She never took her pretended husband’s name, her excuse being that she did not know a common-law wife had that privilege. She held title to real property which she repeatedly mortgaged as a single woman, her excuse being that she signed the mortgage instruments without reading them. She had an illegitimate son who died in the army during the world war, and she applied to the government for insurance as a single woman and dependent upon that son for support. Time and again she had stated to various witnesses that she was not Mrs. Butler nor Mrs. Steinborn, but Miss Steinbom, and that she was never married.
Typical excerpts from her testimony on cross-examination read:
“Q. And at no time that these mortgages were taken or given, did you tell any of them that you were married? A. No. . . .
“Q. You signed it as a single woman? A. Yes.
“Q. You were married at that time as you now claim? A. Yes.
“Q. Why didn’t’ you sign it as Louisa Steinborn Butler? A. I didn’t think it was necessary. . . .
“Q. And your only reason for so doing is that you didn’t know you were entitled to use the name of Butler? A. That was one of them.
“Q. What was the other reason? A. I had an heir and I wanted to keep my property for my heir. . . .
“Q. You did send this postal card to Miss Marven? It is dated June, 1925. A. I suppose I did.”
This exhibit 1 was a picture post card addressed to Miss Marven and signed “Miss Louisa Steinborn.”
“Q. But you have been cohabiting there as man and wife? A. Yes. . . .
“Q. You say some of the neighbors turned their noses up at you? A. Yes.
“Q. What was the reason of that; was it because they thought you were living there with Mr. Butler unmarried? A. I have an idea it was.
“Q. And you never took the trouble to inform them differently? A. It was none of their business.
“Q. As a matter of fact you never held yourselves out to anybody as being married, did you? A. We held ourselves out to each other as being married, •but not to the world.”
■ The trial court made extended findings of fact, some of which read:
“No. 11. I further find from the evidence that the plaintiff, Louisa Stein-born, and the defendant, Charles R. Butler, never at any time held themselves out to the' public as being married -persons. That the said Louisa Steinborn never at any time introduced the said Charles R. Butler as her. husband to any person; and that the said Charles R. Butler never at any time introduced the said Louisa Steinborn as his wife to any persons whomsoever; but on the contrary each and both of said parties made denial of the fact that they were married to each other. That the general reputation of the plaintiff and the defendant, Charles R. Butler, in the community in which they resided was that they were single and unmarried and that she, while living upon the real estate in controversy, was acting in the capacity of housekeeper for the said Charles R. Butler. That the first public declaration that the said plaintiff and the defendant, Charles R. Butler, were married to each other was made when the plaintiff filed her petition in this action. That there was never any consensual marriage entered into by and between the plaintiff and the defendant Charles R. Butler.”
From this and the other findings of fact the trial court made certain conclusions of law:
“That the said plaintiff, Louisa Steinborn, and the defendant Charles R. Butler, having never legally married, had no homestead right in the land in controversy in this action and now have no homestead right therein.
“No. 2. That the said defendant, George Lenhart, is the owner of the fee-simple title in and to the real estate in controversy in this action, . . . and is entitled to immediate possession of the same and to a writ of assistance to place him in possession thereof.
“No. 3. That the title of George Lenhart to the real estate above described be quieted in him as against the plaintiff, Louisa Steinborn, and the defendant, Charles R. Butler.
“No.' 4. That the defendant, George Lenhart, do have and recover, of and from the plaintiff herein, his costs.”
Judgment was entered accordingly. Plaintiff and Butler appeal. Their counsel direct our attention to what they characterize as thrde major questions of mixed law and fact:
“1. Was there a marriage as between the appellants?
“2. If there was, was the land in controversy occupied by them as their homestead?
“3. If there was a valid marriage and a homestead as between the appellants, are appellants estopped to claim the homestead?”
As we view this appeal, however, unless there was a marriage between Louisa Steinborn and Charles R. Butler the second and third questions will give us no concern. It is adroitly suggested that the first proposition is a mixed question of law and. fact. If it were, of course, this court would be privileged to reach an independent conclusion from that of the trial court. But it cannot be admitted that the question whether there was a common-law marriage in this case was complicated with matters of law. The trial court merely declined to give credence to the testimony of Steinborn and Butler touching their alleged contract and its consummation in Oklahoma, and on all the evidence held squarely that “there was never any consensual marriage entered into by and between the plaintiff and the defendant Charles R. Butler.” Doubtless the court was strongly persuaded thereto from many other probative facts in evidence which tended to discredit plaintiff’s evidence — the long-continued secrecy of the pretended marriage, the oft-repeated denials of it, the repeated avowals of plaintiff that she was a single woman, the want of apparent bona fides and manifest disregard of conventional proprieties which caused the neighbors to turn up their noses at plaintiff, and the other circumstances and admissions of plaintiff— all these made too strong a support for the judgment of the trial court to permit it to be disturbed.
Our own decisions take it for granted that some measure of publicity is a distinguishing feature if not an essential attribute of a common-law marriage. (State v. Hughes, 35 Kan. 626, 12 Pac. 28; Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534.) In Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311, the parties concerned in a common-law marriage declared—
‘“We are man and wife, and will continue to be man and wife’; and it appears that thereafter they cohabited and otherwise lived together as such. They publicly acknowledged each other as husband and wife, assumed marriage rights, duties, and obligations,'and were generally reputed to be husband .and wife in the community.” (p. 599.)
In Meister v. Moore, 96 U. S. 76, 96 L. Ed. 826, the supreme court quoted approvingly from an opinion by Judge Cooley in Hutchins v. Kimmell, 31 Mich. 126, 130, in part, thus:
“ ‘Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, .and from that time live together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations.’ ” (p. 82.)
In 1 Bishop on Marriage and Divorce (6th ed.), 222, 223, it is :said:
“Habit and repute do not create the marriage. But it exists where, on the parties cohabiting as husband and wife, and being accepted in society and reputed as such, they are presumed, prima facie, to be married. ... It is a holding forth to the world, by the manner of daily life, by conduct, demeanor, and habit, that the man and woman who live together have agreed to take each other in marriage, and to stand in the mutual relation of husband ;and wife; and, when credit is given by those among whom they live, by their •relatives, neighbors, friends, and acquaintances, to these representations and this continued conduct, then habit and repute arise, and attend upon the •cohabitation.”
In Hulett v. Carey, 66 Minn. 327, it was held that at common law no holding out to the public was necessary to the validity of a common-law marriage, but that learned court was careful to say that the fact of secrecy might be evidence that no marriage ever took place. See, also, Dalrymple v. Dalrymple, 2 Hag. Con. 54; Id. 161 Eng. Rep. Reprint, 665 et seq.
This conclusion necessarily disposes of the other questions presented in this appeal. The judgment is affirmed.
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for injuries sustained in colliding with an alleged defect in a city street. The appeal is from an order overruling a demurrer to the amended petition.
Whether the amended pleading, hereinafter for purposes of brevity referred to as the petition, states facts sufficient to constitute a cause of action is the all decisive appellate issue involved. On that account, because it sets forth all the facts and definitely discloses the legal theory on which plaintiff bases his right to relief, we shall quote such pleading at length, omitting only formal averments, allegations of no consequence to the issue, assertions as to the nature and extent of injuries sustained, and the prayer. After stating the name and residence of the plaintiff and the corporate status of the defendant, a city of the second class, the petition reads:
“Plaintiff further alleges and says that a number of months prior to September 4, 1951, the exact time being unknown to this plaintiff, the city of Emporia installed or caused to be installed, plaintiff does not know which, traffic lights on the four comers of the intersection of Sixth and Merchant Streets in such city and, as a part of such installation, placed a substantial metal box approximately twenty inches in height, sixteen inches in width and eight inches in depth on a pole at the northeast comer of the intersection of these two streets, placing tire same about five feet above the curb and sidewalk level, the curb and sidewalk being contiguous at this point. This box juts out from the pole on the east side thereof, eight or more inches and is so located that a person of normal height would strike his head on the bottom edge of the box in stepping up from the street gutter to the sidewalk or curb. A mechanism for the control of the traffic lights is located in this box.
“Plaintiff further alleges and says that parking lanes or lines and parking meters were installed along the curb adjacent to this box and pole upon which it was mounted, such lines and meters having been installed by the city or its employees, and automobiles were permitted to be parked there by the public, and drivers of such vehicles, after parking their cars stepped from the street up onto the curb and sidewalk, that fact being well known to the governing body of the City of Emporia, and that the location of this box on the pole in such a position that a driver would strike his head against it in going from the street to the sidewalk, was so manifestly dangerous and unsafe that it constituted a defect.
“Plaintiff further alleges and says that on the night of September 4, 1951, at about ten o’clock, or shortly thereafter, he parked his automobile at the curb on the north side of Sixth Street in the defendant city, diagonally to the curb, in a parking stall marked on the pavement of Sixth Street by the defendant city or its employees, which stall was the first stall east of the intersection of Sixth Street with Merchant Street, and the west line of the stall was approximately four or five feet east of the pole upon which the metal box was mounted and approximately ten feet east of the east line of the crosswalk over Sixth Street, if there was one, or the same distance east of the property line on the east side of Merchant Street, and after locking his automobile doors, walked along the west side of his parked automobile toward the sidewalk and started to step up on the curb and sidewalk and in doing so violently struck his head against the lower edge of the traffic light control box, bruising and contusing his scalp, . . . and that all of such [temporary] injuries and damages were proximately caused by the location of the traffic-light-control-box in question so placed and allowed to remain by the governing body of the defendant city, or its servants, agents or employees.”
Before giving consideration to the petition a contention advanced by appellant to the effect its allegations should be strictly construed because a proper motion to make them more definite and certain was resisted and overruled should be noted. Without laboring the point, and conceding there are conditions under which the rule of strict construction is applied, it can be stated that even though it appears certain grounds of such motion had merit we have concluded failure to sustain them does not preclude a liberal construction of that pleading and will proceed on that premise.
At the outset counsel for appellee, with commendable candor, admit the placing of the traffic control box described in the petition on the pole therein mentioned by the appellant was a governmental function and that the same holds time of its continued operation.
It may be stated that ordinarily, under the rule prevailing in this jurisdiction, cities and other municipal corporations in the exercise of their governmental functions are not liable in damages for any neglect, or even wrongdoing, of their officers in the discharge of such duties unless such liability is expressly imposed by law. See, e. g., Harper v. City of Topeka, 92 Kan. 11, 13, 139 Pac. 1018; Butler v. Kansas City, 97 Kan. 239, 241, 155 Pac. 12; Foster v. Capital Gas and Electric Co., 125 Kan. 574, 265 Pac. 81, and decisions therein cited.
However, it must be conceded that under all our decisions, even though there is no statute expressly imposing liability, an exception to the governmental immunity rule, above mentioned, has been made which holds cities liable for damages resulting from defects in their streets and highways. (Linderholm v. Ekblad, 92 Kan. 9, 139 Pac. 1015; Hibbard v. City of Wichita, 98 Kan. 498, 501, 159 Pac. 399; Foster v. Capital Gas and Electric Co., 579, supra.) To further illustrate the rule of exception, which has been repeatedly adhered to, see the early case of Jansen v. City of Atchison, 16 Kan. 358, as originally reported, which holds:
“Cities, having the powers ordinarily conferred upon them respecting bridges, streets and sidewalks within their limits, owe to the public the duty of keeping them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for special injuries resulting from neglect to perform this duty. [The previous rulings of this court in sundry cases, in respect to this question, noticed and affirmed.]” (Syl. f 1.)
For informative purposes see, also, the first syllabus of the same case as reported in 16 Kan. (Second Edition) 358, which states the rule last above quoted as originally reported and in addition makes reference to numerous Kansas decisions of like import.
From what has been related it becomes apparent the essence of the question before this court on appellate review is whether the placing and continuous maintenance of the involved traffic control box in a position where appellee could and did collide with it, under conditions and circumstances set forth in the petition, is to be regarded as constituting a defect in the city’s street for which it is liable in a civil action. It is equally obvious that in approaching consideration of such question it must be kept in mind our determination thereof is limited and restricted to the cold printed pages of that pleading without benefit of photographs, maps, plats or other material, describing the alleged defect. Therefore, without further elucidation or comment, since there is no better way of depicting it, we refer readers of this opinion to the theretofore quoted portion of such pleading for the existing factual situation on which our decision must depend.
We have been unable to find, and resort to the briefs discloses that the respective parties are in the same situation, any cases in this jurisdiction passing upon the precise question here involved. The following cases (City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685; Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822; Kansas City v. Siese, 71 Kan. 283, 80 Pac. 626; Williams v. City of Parsons, 87 Kan. 649, 125 Pac. 60; Loftin v. City of Kansas City, 164 Kan. 412, 190 P. 2d 378), cited by appellee, all involve entirely different factual situations, hence they are clearly distinguishable and of little if no value as controlling precedents. It may be said the same holds true of the Kansas cases on which the appellant relies. More helpful, but nevertheless inconclusive because they deal with collisions between automobiles and traffic control devices within the intersections of city streets, are cases it cites from foreign jurisdictions. (See Blackburn v. St. Louis, 343 Mo. 301, 121 S. W. 2d 727; Prewitt v. St. Joseph, 334 Mo. 1228, 70 S. W. 2d 916; Edwards v. City of Shreveport, [La.] 66 So. 2d 373; Parson v. Texas City, [Tex. Civ. App.] 259 S. W. 2d 333; Auslander v. St. Louis, 332 Mo. 145, 56 S. W. 2d 778; Clain v. City of Burlington, 202 F. 2d 532.)
Nothing would be gained by a long or an intricate discussion of the distinguishing features of the foregoing Kansas cases. By the same token, particularly since it does not appear they either recognize or apply the rule of exception to governmental immunity prevailing in this jurisdiction, the same holds true of the cases cited from foreign jurisdictions. It suffices to say that upon an extended review of all such decisions and careful consideration of all arguments advanced by counsel for the parties in support of their respective positions, we have concluded that under the conditions and circumstances set forth in the petition the traffic control box relied upon by appellee as the basis for recovery herein should not be held to constitute a defect in the city’s street and that the exception to the rule of governmental immunity recognized by our decisions with respect to cities should not be extended to the point where it includes a traffic control box of its nature or character.
In concluding this opinion it should perhaps be frankly stated that we have taken judicial notice of the fact, although we do not here pass upon their status as defects, that on the streets of all cities throughout the length and breadth of this entire state, there are countless and untold devices, similar to the one here involved, such as fire plugs; fire alarm boxes; parking meters; street blinkers; stationary and permanent automatic stop and go traffic signals; street and street crossing signs; stationary stop signs; stationary no right and no left turn signs; highway marker signs; one-way street markers; traffic guides; traffic speed control signs; divers types of street light poles, including white-way poles; school signs; mail boxes; trash boxes; and even drinking fountains, necessary for the protection, health, welfare and convenience of the public, all of which might well be considered defects in city streets if we were to hold, as appellee contends, that the involved traffic control signal is to be regarded as an actionable defect. We are neither prepared nor disposed, under the confronting facts and circumstances, to ■here hand down a decision that would warrant citation as setting a controlling precedent for any such conclusion.
Based on what has been heretofore stated we hold the petition fails to state a cause of action. This, of course, makes it unnecessary to treat other matters relied on by appellant as compelling a like conclusion and it follows the case should be reversed and remanded with directions to sustain the demurrer and render judgment for the appellant.
It so ordered.
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The opinion of the court was delivered by
Price, J.:
This is an action by the named beneficiary to recover on a group life insurance policy. Judgment was in favor of plaintiff, and defendant insurance company has appealed.
The evidence disclosed substantially the following facts:
In July 1943 defendant company issued its group life insurance policy covering employees of the Consolidated Flour Mills Company (hereinafter referred to as Consolidated). Among these employees was one Kopke, who was manager of Consolidated’s elevator at Pawnee Rock, and the policy in question in the amount of $2,500 was issued to him. His wife, plaintiff herein, was named beneficiary.
In the latter part of 1949 Kopke became ill, was hospitalized, and shortly thereafter underwent surgery for a cancer of the stomach. Following the operation he resumed his work as manager of the elevator, but in the spring of 1950 his health began to deteriorate, and, while physically unable to do much work, he continued his employment in a supervisory capacity. From time to time he hired others to assist him. In May 1950 his physical condition became very serious and as a result he was able to be at the elevator very little of the time.
Certain alleged discrepancies and irregularities in connection with the operation of the elevator having been called to Consolidated’s attention, the general manager and an accountant in the home office at Wichita went to Pawnee Rock in June 1950 to make an investigation. As a result of this investigation irregularities with respect to the storage of grain and issuance of scale tickets were discovered. During the month of June Kopke was bedfast most of the time, and he was not at the elevator at any time after June 26th. He had been paid his salary every two weeks by Consolidated, and the last payment made was for the period ending June 15th. He was not paid his salary for the second half of June because in the opinion of Consolidated’s officials the shortages discovered exceeded the amount of his salary for that period. These shortages and irregularities subsequently resulted in a payment by Kopke’s bonding company to Consolidated of approximately $7,000.
On July 24, 1950, Consolidated notified defendant insurance company in writing as follows:
“The insurance on the lives of the following individuals is to terminate as indicated in accordance with the terms of the Group Policies listed above because of termination of employment. None of these coverages are being terminated at the individual’s own request or on account of physical disability unless so stated.”
This notice then listed Kopke’s name, the certificate number of his policy, the location of his employment, and stated the date of cancellation to be July 1,1950, and gave as the reason, “Discharged.”
Some seven months later, on January 30, 1951, Mr. Kopke died as a result of his illness. Proof of claim was drily made by his widow as beneficiary under the policy, and, liability being denied, this action was filed.
The petition, after formal allegations, alleged:
“4. That the deceased Otto J. Kopke duly fulfilled all the conditions of said insurance policy on his part during his lifetime and as consideration of his employment the Consolidated Flour Mills Company did make all payments of premiums as they became due on said certificate and policy and that the same were in full force and effect at the time the said Otto J. Kopke became permanently and totally disabled, which was on or before June 27, 1950, and the plaintiff alleges that the said Otto J. Kopke remained permanently and totally disabled till the time of his death on January 30, 1951.”
A copy of the certificate of insurance was attached to the petition as an exhibit, and portions of it, material for our purposes, are as follow:
“TERMINATION OF INSURANCE
“The insurance of the Employee under the Group Policy will cease automatically on the earliest of the following dates:
(a) the date of termination of employment of the Employee, which shall be the date the Employee ceased active work. However, in case the Employee ceases active work due to sickness, injury, retirement, leave of absence, or temporary layoff, employment will be deemed to continue thereafter, for the purposes of insurance hereunder, until terminated by the Employer either by written notice to the Company, or by any other means; provided that in the event of leave of absence or temporary layoff, employment shall in no case be deemed to continue beyond the limited period specified in the Group Policy; and provided further that in any event employment will be deemed to terminate on the date the Employee entered into the military or naval or air forces of any country at war, whether such war be declared or undeclared;
(b) the date of expiration of the Group Policy.
“EXTENSION OF DEATH BENEFIT IN
THE EVENT OF TOTAL DISABILITY
“If due proof is furnished to the Company on its prescribed forms that the employment of the Employee terminated with the Employer on account of total disability from bodily injury or disease, which prevented the Employee from engaging in any business or occupation and from performing any work for compensation or profit and that such disability was continuous until the death of the Employee and that such death occurred before the Employee attained age 65 and while the Group Policy is in full force and within a period dating from such termination of employment not longer than the time tire Employee’s insurance had been in force at the date of such termination of employment, but in no event longer than twelve months; then the amount of insurance on the life of the Employee at the date of termination of employment will be paid to the beneficiary, provided said proof is furnished to the Company at its Plome Office within ninety days of the death of the Employee.”
These are followed by provisions concerning a “Conversion Privilege,” but inasmuch as such privilege was not exercised by the insured they are not set out.
Defendant insurance company filed a motion to make the petition more definite and certain by requiring plaintiff to allege (1) whether Kopke was an employee of Consolidated at the time of his death on January 30,1951, (2) that if he was not an employee of Consolidated on the date of his death to state the date of termination of his employment, and (3) if employment was terminated prior to death to state the cause of termination of such employment by Consolidated.
This motion to make more definite and certain was denied, whereupon defendant demurred on the ground the petition failed to state facts sufficient to constitute a cause of action. The demurrer was overruled.
Defendant then filed its answer, and that pleading, as amended, alleged that Kopke was not an employee of Consolidated at the time of his death; that on or about July 24, 1950, Consolidated mailed to defendant a notice that it had discharged and terminated Kopke’s employment on July 1, 1950, and that the employment was not terminated on account of total disability but was terminated for cause and on account of suspected irregularities in the handling of accounts and records of the elevator.
Upon the issues thus joined the parties proceeded to trial by the court. It was stipulated that the premiums necessary to keep the group life insurance policy in full force and effect were paid by Consolidated for the years ending June 30, 1950, and June 30, 1951, and that on or about July 24, 1950, Consolidated mailed to defendant the notice that it had discharged and terminated Kopke’s employment on July 1, 1950.
After hearing the evidence, which was substantially as heretofore related, the court made findings of fact and conclusions of law. Several of the findings are as follow:
“3. That the said Otto J. Kopke became ill in December, 1949, and was operated for a cancer of the stomach at Halstead, Kansas; that following such operation he continued in his employment performing his duties as manager with said Flour Mills Company until the latter part of May, 1950, when he became permanently and totally disabled, and on June 26, 1950, he was hospitalized at Great Bend, Kansas, and was thereafter bedfast at the hospital or at his home until his death on January 30, 1951.
“4. That the said Flour Mills Company considered the said Otto J. Kopke as being in their employment up to and including July 1, 1950; that the said Flour Mills Company sent a notice of termination of insurance to this defendant showing the said Otto J. Kopke discharged as of July 1, 1950, and that no notice of any kind of discharge was given to the said Otto J. Kopke.
“6. That the insured, Otto J. Kopke, did become permanently and totally disabled while in the employ of the said Flour Mills Company and while said certificate and policy were in force and effect; that such disability was continuous until his death on January 30, 1951; that such death occurred before the said Otto J. Kopke attained the age of 65; while said group policy was in full force and effect and within a period dating from such termination of employment by total disability and within less than 12 months from the termination of said employment; that the period of employment qualified and kept in force said extension of benefits for a period of not to exceed 12 months.
“7. That certain evidence was introduced by the defendant to show the employer discharged Otto J. Kopke by sending notice of termination to the insurance carrier on or about July 24, 1950, and after the said Otto J. Kopke had become totally disabled, and certain evidence was offered to show that this was done on account of suspected irregularities in the account of said Otto J. Kopke all of which evidence was objected to by the plaintiff; however, no evidence was introduced showing any fraud on behalf of the said Otto J. Kopke, or that he received any personal gain from any such transaction.”
Two of the court’s conclusions of law are:
“The Court finds that the employment of Otto J. Kopke, now deceased, terminated with the Consolidated Flour Mills Company at the time he became permanently and totally disabled in May, 1950.
“2. That at the time said Otto J. Kopke became permanently and totally disabled, Group Policy No. 1954-G and Certificate No. 34, issued to Otto J. Kopke, naming Josephine Kopke as beneficiary, were in full force and effect and the rights of the parties became fixed and vested under said policy and certificate.”
Judgment was accordingly entered in favor of plaintiff in the amount of $2,500, together with interest, and for costs.
Defendant filed a motion to set aside findings number 3 and 7 for the reason that they are not supported by the evidence.
It also moved to set aside the conclusions of law on the ground they are erroneous and are not supported by the evidence and by the findings of fact.
Defendant also moved the court to make additional findings, the substance of such proposed additional findings having to do with the authority of Kopke in the performance of his duties as manager of the elevator; the alleged irregularities and defalcations uncovered by the investigation; that as a result of such investigation his employment was terminated and he was discharged on July 1, 1950; that his bonding company thereafter paid to Consolidated approximately $7,000 on account of such defalcations; that he was paid his regular salary by Consolidated during his illness from the latter part of 1949 and until June 15, 1950; that prior to July 1, 1950, Consolidated had paid the regular salaries of disabled employees, and would have continued Kopke in its employ until his death had it not been for the irregularities and defalcations discovered in the investigation, and that Kopke was not an employee of Consolidated at the time of his death on January 30, 1951.
Defendant sought these additional findings on the ground those made by the court did not completely cover the questions of fact and issues involved, and for the further reason that the findings so made did not set forth the reason for the termination of Kopke’s employment.
All of these post-trial motions, including a motion for new trial, being overruled, defendant has appealed.
Defendant contends the court erred in a number of particulars, but in view of the principal and controlling issue involved they may be discussed together. The main thread of defendant’s argument is that in order for plaintiff to recover it must be pleaded and established that (1) Kopke was an employee of Consolidated at the time of his death, or (2) his employment had been terminated by Consolidated “on account of total disability” and that death occurred within twelve months thereafter, or (3) Kopke had con verted the certificate of insurance within thirty-one days after the termination of his employment.
It is conceded that he was not an employee of Consolidated at the time of his death; that his death occurred within twelve months from the date of termination of his employment, and that he had not converted the certificate of insurance to an individual policy.
Defendant therefore argues that under the undisputed facts and the provisions of the policy recovery may be had only in the event Kopke’s employment was terminated because of total disability due to illness, and in this connection our attention is directed to certain remarks and comment by the trial court at the time the post-trial motions were heard and overruled. From these remarks there is no doubt but that the court recognized the fact that Kopke’s “discharge” was brought about due to the alleged irregularities in the management of the elevator.
It is equally clear, however, that the theory upon which the court tried and decided the case was that the reason for termination of employment was immaterial if prior to such termination Kopke had become totally disabled, in other words, if disability occurred while the relationship of employer and employee existed, then the position and rights of the parties with respect to the certificate of insurance became fixed.
From the record before us there is no question but that Kopke was totally disabled due to illness as early as June 26, 1950, and probably prior thereto, and that such disability continued until his death.
The question therefore narrows down to whether the subsequent action by the employer in “discharging” Kopke as of July 1, 1950, bars recovery under the policy, or whether the rights of the parties became “fixed” upon his becoming totally disabled while still in the status of an employee.
As before stated, defendant contends the risk assumed by it is where the employment is terminated on account of total disability and not when the employee is under disability, and that if recovery is allowed it will be due to the fact Kopke was able to conceal the irregularities for a long period of time and thereby prevent an earlier termination of his employment.
A careful examination of the provisions of the policy as applied to the facts convinces us that • defendant’s contentions are too “strained” and should not be sustained. Notwithstanding the trial court’s comment to the effect the employment undoubtedly was “terminated” because of the irregularities, the fact remains that Kopke became totally disabled prior to such termination, and we think there is a sound basis for the conclusion that the rights of the parties became fixed upon the occurrence of such disability. To hold otherwise would place in the hands of an employer the power arbitrarily to defeat and extinguish vested rights in such a situation merely by notifying the insurance carrier that a former employee, who had become totally disabled, had been fired or discharged due to dishonesty, unsatisfactory service, or for any other reason. We think it cannot safely be said that any such result was ever intended by the parties, or that.in equity and fairness such should be the law.
No decision in point from this state has been cited, and our limited research has failed to disclose any directly bearing on the question. Among the various decisions from other jurisdictions, most of which are not directly in point due to different factual situations and provisions of the policies in question, we are impressed by what was held in Armstrong v. John Hancock Mut. Life Ins. Co., 164 Pa. Super. 507, and reported at 66 A. 2d 468. In that case the provisions of the policy were substantially identical to the provisions of the policy before us. The insured died thirteen days after the termination of his employment. His beneficiary contended that his employment was terminated on account of his total disability due to illness. The company contended that it had been terminated due to unsatisfactory work. The jury found that employment had been terminated due to total disability and allowed recovery. The trial court granted the company’s motion for judgment notwithstanding the verdict, from which ruling the beneficiary appealed. In reversing the decision of the trial court, the Pennsylvania appellate court held:
“The only reasonable construction to be placed upon the clause is that it was intended to protect any employee who was totally and permanently disabled when his employment was terminated, whether by resignation or discharge, and any doubt as to tire intention must be resolved in favor of the insured and against the insurer. ‘A contract of insurance will, if possible, be so construed as to protect the insured and doubts, if any, will be resolved in his favor’: MacDonald v. Metropolitan Life Insurance Co., 304 Pa. 213, 218, 155 A. 491, 492, 77 A.L.R. 353. Furthermore, if the insured was totally disabled at the time of the termination of his employment for whatever cause, his right to continued protection under the policy became vested. Turley v. John Hancock Mutual Life Insurance Co., 315 Pa. 245, 173 A. 163.” (p. 470.)
Defendant argues the instant case is distinguishable from that case in that in the latter the jury specifically found that the termination of employment was due to total disability, whereas in the case before us, the court, while not specifically finding the cause of termination, clearly indicated that it was due to the alleged irregularities. However, the decision in the cited case makes it clear that the test of liability under such language in a policy is whether the insured is totally disabled at the time of the termination of employment, rather than the cause or reason for such termination.
And so here. It is undisputed that the insured was totally disabled at the time his employment was terminated, even under defendant’s own theory and evidence. Upon the happening of total disability, while still an employee, his rights under the policy thus became vested, irrespective of the reason for his subsequent discharge, and of course passed to his beneficiary, the plaintiff herein.
Careful consideration convinces us that the trial court reached a proper decision in this case, and the judgment is therefore affirmed.
Price, J. (dissenting): I am unable to concur in the decision reached in this case, and will state my reasons very briefly.
As I view the matter, recovery may be had only in the event of any one of the three following contingencies:
The first is that the insured was an employee of Consolidated at the time of his death. It is not even contended that he was, and in fact — he was not.
The second is that the insured had converted his certificate into an individual policy within thirty-one days after the termination of his employment. Under the provisions of the policy he had this privilege, without evidence of insurability, and irrespective of the cause or reason for the termination of his employment. It is not contended that he exercised this privilege, and in fact — he did not.
The third is that insured’s employment terminated on account of total disability; that such disability was continuous until his death within twelve months thereafter, and that he had not then attained the age of sixty-five years. It is conceded that such disability continued until his death, within the period provided, and that he had not reached age sixty-five.
Not being an employee at the time of his death, and not having converted the policy — it seems to me that all rights thereunder are governed exclusively by the provision with respect to “EXTENSION OF DEATH BENEFIT IN THE EVENT OF TOTAL DIS ABILITY,” which is quoted in the court’s opinion. This, in simple language, provides that if due proof is furnished that employment terminated “on account of total disability . . .” then the remaining provisions relating to extension of death benefits become operative.
I concede that insured was totally disabled when his employment was terminated, but to me that is not the decisive and controlling factor. I think the record is clear as to the reason for the termination of employment, and it was not because of total disability.
For the reasons stated I would feel compelled to reverse rather than affirm.
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SPERRY, Commissioner.
Plaintiff is the administrator of the estate of Ella S. Harris, hereafter referred to as deceased. John T. Harris, defendant, is the surviving husband of deceased who died of gunshot wounds fired from a shotgun in the hands of defendant. There were two insurance policies on the life of deceased in both of which defendant herein was named as beneficiary. Suit thereon was instituted by plaintiff, in two counts. The proceeds, $6,000.00, were paid into court and the insurance companies withdrew. Plaintiff and defendant agreed to litigate the issues between themselves. Summary judgment was entered in favor of plaintiff and the full sum involved, $6,000.00, was awarded to plaintiff. From such judgment defendant appeals.
In plaintiff’s petition, filed against the insurance companies (in two counts), he alleged “that on or about May 12th, 1963, Ella S. Harris died as a result of gunshot wounds intentionally inflicted on said date by John T. Harris; that said John T. Harris was charged with the murder of Ella S. Harris, and pleaded guilty to a charge of manslaughter, in the circuit court of Jackson County, Missouri”.
Defendant Harris filed answer. He admitted the issuance of the insurance policies. He alleged that he was, on May 12th, 1963, the legal husband of deceased; that she, on that date, died of gunshot wounds; that he was the sole beneficiary of the policies; that deceased died as the result of the accidental, not intentional, discharge of a shotgun. He prayed judgment for the full amount of $6,000.00.
Plaintiff filed “request for admission of facts”, pursuant to Rule 59.01, and defendant filed response thereto, under oath. From an examination of these instruments it appears that:
1.Deceased died May 12th, 1963, as a result of a gunshot wound inflicted by a shotgun;
2. Said wound and her death occurred in Kansas City, Jackson County, Missouri ;
3. At the time the gun discharged and inflicted the lethal wound, the gun was in the possession of, and was being held by defendant;
4. Defendant denied that he was thereafter charged with first degree murder;
5. Defendant pleaded guilty to a charge of manslaughter for the killing of deceased and was sentenced and paroled;
6. Plaintiff and defendant were legally married but were separated and not living in the same household when the lethal wound was inflicted on deceased;
7. At the time the wound was inflicted on deceased, a divorce action was pending between defendant and her;
8. Defendant denied that the gun was intentionally discharged thereby causing the death of the deceased.
Thereafter, plaintiff filed his first amended petition wherein it was alleged that Ella Harris died of gunshot wounds inflicted upon her by defendant; that defendant was thereafter charged with murder and that he pleaded guilty to the charge of manslaughter “and was convicted”. He also pleaded other facts, heretofore mentioned, relative to the issuance of the insurance policies, the payment of the proceeds thereof into the court, that defendant was not legally entitled to the proceeds of the policies because he caused deceased’s death and was thereafter charged with it and pleaded guilty to manslaughter.
Defendant filed no answer to the amended petition. Plaintiff moved for summary judgment, alleging that, under the pleadings and undisputed facts herein, defendant, as a matter of law, has no right, title or interest in the proceeds of the policies, and prayed for judgment awarding said proceeds to plaintiff. Defendant filed “sugges tions” in opposition to the motion. He filed no deposition or affidavit.
Plaintiff contends that, since defendant admitted that deceased died of wounds caused by the discharge of a shotgun held by him at the time, and since he pleaded guilty to a charge of manslaughter based thereon upon which plea he was sentenced and since defendant offered no evidence challenging said facts, the judgment was properly entered.
In Brummet v. Livingston, Mo.App., 384 S.W.2d 101, 103, we held that a summary judgment may be entered only when the party seeking it shows, by unassailable proof, that he is entitled to judgment as a matter of law. The proof submitted should leave no room for controversy and should show, affirmatively, that the other party would not be entitled to recover under any discernible circumstances.
Our duty is the equivalent of reviewing a court tried or equity case and, eventually, of resolving the question of the sufficiency of the evidence to support the summary judgment and, finally, if necessary, of entering such judgment as should have been given. Brown v. Prudential Insurance Co., (S.L.Mo.App.), 375 S.W.2d 623, 628. A summary judgment may be entered after the pleadings are filed and the issues made up.
Manslaughter is defined (all references are to R.S.Mo.1959 and V.A.M.S.) by Section 559.070 as follows:
“Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter”.
Justifiable and excusable homicide are ■defined in Sections 559.040, and 559.050. Specific situations and conditions constituting manslaughter are set out in Chapter 559. The punishment for the crime of manslaughter is prescribed in Section 559.-140.
“Persons convicted of manslaughter shall be punished by imprisonment in the penitentiary for not less than two nor more than ten years, or by imprisonment in the county jail not less than six months, or by a fine not less than five hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months.”
Defendant says that, under the statutes of Missouri, “manslaughter may be intentional homicide or it may be a crime of culpable negligence”. A reading of the statutes establishes the truth of that statement. It is also true, as defendant says, that plaintiff, in his motion for summary judgment, relied wholly upon the fact that defendant pleaded guilty to manslaughter as barring his right of recovery upon the insurance policies. Defendant does not contend that he may recover if the killing in this case was an intentional homicide as distinguished from one due to culpable negligence.
It is now well established in the law of Missouri that one who takes the life of another “without lawful provocation or excuse”, i. e., intentionally, can not benefit from such wrong by inheriting property from such deceased or otherwise participating in the benefits of decedent’s estate. See In re Laspy’s Estate (McCallop v. Laspy), Mo.App., 409 S.W.2d 725; Barnett v. Couey, 224 Mo.App. 913, 27 S.W.2d 757 and Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641, 16 L.R.A.,N.S., 244. It appears that Missouri courts have not been called upon to apply the principles laid down in the foregoing cases to the beneficiary under an insurance policy on the life of a deceased killed by the beneficiary. However, the federal courts in Missouri have applied these principles to defeat recovery by such a beneficiary. See Connecticut Fire Insurance Co. v. Ferrara, 8 Cir., 277 F.2d 388; Minnesota Mutual Life Insurance Co. v. James, D.C., 202 F.Supp. 243; General American Life Insurance Co. v. Cole, D.C., 195 F.Supp. 867 and 29 Am.Jur. Insurance, Section 1643 page 725.
If the record in this case showed that defendant did in fact plead guilty to a charge of intentionally killing deceased, then, under the principles laid down in In re Laspy’s Estate (McCallop v. Laspy), Mo.App., 409 S.W.2d 725, supra, and other authorities cited in the foregoing paragraph, he could not recover the proceeds of the insurance policies here in issue. If, on the other hand, defendant was in fact charged with and entered his plea of guilty to, some form of unintentional homicide such as manslaughter by culpable negligence, then we are faced with an entirely different problem.
The facts as to the crime with which defendant was charged and the nature of the crime of manslaughter to which he entered his plea of guilty are not developed in the record before us, in spite of the obvious fact that evidence thereof in the form of court records in the criminal case are readily available. Plaintiff alleges that defendant was charged with murder and defendant denied under oath that he was charged with first degree murder. Thus we are left to speculate as to what the true facts are, and if we were to attempt to decide the issue submitted by the parties we would be forced to reach our decision on a purely hypothetical basis. This we decline to do.
In this situation plaintiff has not shown by unassailable proof that he is entitled to judgment as a matter of law and the trial court erred in granting summary judgment in this state of the record with such a glaringly unresolved fact issue.
The judgment is therefore reversed and the cause remanded.
MAUGHMER, C., concurs.
PER CURIAM:
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.
All concur.
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JAMES W. BROADDUS, Special Commissioner.
On February 19, 1965, plaintiff filed suit in which he sought to enjoin defendant corporation from erecting on property owned by it a building for occupancy by teaching nuns of a parochial school, and from using the same as their residence as being in violation of private real estate restrictions. Plaintiff prevailed below and defendant has appealed.
The facts show that on January 28, 1955, the James H. Stanton Construction Company, Inc., being the then owner of a tract of land in Clay County caused the same to be platted and laid out in lots and blocks and designated as “Sherwood Estates”; said plat was duly filed for record with the Recorder of Deeds of Clay County. On the same date the Construction Company placed certain restrictions on the property then platted as “Sherwood Estates.” The Declaration of Restrictions provides that it is binding upon the Construction Company, its successors and assigns, and all parties claiming by, through or under it for a period of 25 years from the date of the ’instrument.
The restriction which is here involved reads as follows: “The lots shall be used for detached single family dwellings only.”
Plaintiff is the owner of Lot 10, Block 15, Sherwood Estates and has erected a house thereon and is occupying the same as a residence for himself and his family. Defendant is the owner of four lots in said subdivision.
The parties stipulated that defendant plans to erect on its property a building for occupancy by teaching nuns of the Roman Catholic Church; that said residence will have nine to eleven residents who are members of a Catholic Religious Order for women; that “said residents will teach in the elementary grade school of St. Gabriel’s Catholic Church located on premises separate from that on which faculty residence is to be located. Within said residence will be located separate sleeping rooms and common housekeeping facilities for the residents. In addition there will be located a chapel for the convenience of the residents to meditate and worship in their faith.
“Said residence or Convent is under the supervision and managerial direction of a nun commonly referred to as the ‘Mother’ or ‘Superior’ who usually remains in that capacity for a minimum period of one school year. The Mother or Superior sets the usual hours for meals, religious devotion and recreation, both within and without the Convent and is responsible for the management of the Convent’s day to day living expenses. All of the nuns residing at the Convent are members of the same order of nuns and are subject to direction of the Mother or Superior and have the obligation of obedience to her while assigned under her care. The Mother or Superior assigns the household duties to various of the nuns according to her judgment and to their capabilities. The nuns take their meals in a common dining room. The meals are prepared under the direction of one of the nuns whose responsibility is the securing of the foodstuff and its preparation for meals. Said nun also has the primary responsibility with regard to the cleaning of clothing and linen and is assisted in these duties by other nuns.”
Exhibit B shows the nature of the structure proposed to be erected by defendant. It is to be a full two story building containing 13 bed rooms, plus large central bath and toilet facilities, an office, a chapel, a community room, a parlor, a dining room, kitchen, pantry and storage facilities, plus additional laundry, storage and recreational facilities in the basement. The plot plan indicates that the structure would contain approximately 6,000 square feet of floor space exclusive of the walkout basement area.
We are mindful of the general rule relied upon by defendant that restrictive covenants will not be extended by implication to include anything not clearly expressed in them, and if there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property. As stated, however, by this court in the case of Jones v. Haines Co., Kan., 371 S.W.2d 342: “The principle that restrictions as to the use of real estate should be strictly construed and doubts resolved in favor of the free use of property should never be applied in such a way as to defeat the plain and obvious purpose of the restriction.”
The rule which governs the instant case was stated by our Supreme Court in the case of Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 129 A.L.R. 1094.
“The test of the meaning of words commonly used should be their ordinary and popular meaning and they should not be construed in the broadest sense possible to include meanings to which they would not be applied by most people.”
The Trial Judge in his “Reasons for Decision” stated:
“Would most people in this community understand ‘single family dwelling’ to include the proposed building? If we can answer that question, the dictionary definitions of the individual words become unimportant.
“Many words have one or more restricted or specific meanings, as well as a more general meaning that includes more than one of the specific meanings. But ‘popular’ usage has a tendency to confine the use of a word to only one meaning, unless there is a clear contrary indication from the context or circumstances. This is frequently accomplished by a process of elimination by which popular usage accepts other words to express all the meanings, except one. The word ‘building’ includes, among others, (1) a structure by which an area or areas is enclosed by floors, walls, ceilings and roofs, (2) a structure which permits a train to traverse a river and (3) a structure which supports a flag at its top. But in popular usage, most people would think you intended the first meaning if you used the word. They would expect you to say ‘railroad bridge’ and ‘flagpole’ if you intended to convey the latter two meanings. ‘Highway’ may be used to describe any way open to the public, but its popular meaning has been restricted by the use of such words as ‘street’, ‘boulevard’, ‘avenue’, ‘sidewalk’, ‘footbridge,’ etc.
“With regard to the use to which a building is put, there is in popular usage many words and combinations of words which permit us to be specific, and make it unnecessary to rely on broad and all-inclusive words and expressions. We have office buildings, hospitals, courthouses, taverns, clothing stores, supermarkets, etc. To describe places where people live we have the words home, residence, dwelling, single family dwelling, two family dwelling or duplex, flat, apartment building, hotel, motel, inn, rooming house, boarding house, sorority house, fraternity house, club, barracks, and possibly others.
“There can be no argument with the proposition that a building for occupancy by a group of people, all of whom are related to one another by blood or marriage, might properly be described as a ‘single family dwelling’. We believe that the proposed residence for nuns may not be so described, if for no other reason, because there are in common use other words that describe such a building without resort to a word that has another widely accepted meaning. The residence for nuns might be described as a boarding house, sorority, or club. Or if one wanted to emphasize the religious status which its occupants would have in common, one might call it a convent, as it is described in Exhibit B, an architect’s plan of the proposed building. But would most people describe the nuns that live there at a particular time as a ‘family’ or their residence as a ‘single family dwelling’ ? We think not.”
Your Special Commissioner has reached the same conclusion.
The parties have cited a number of decisions in which the Court interprets the word family. Most of those cases are from other jurisdictions. They are distinguishable from the instant case. The language which the courts were called upon to construe in the cases was not the same as in the instant case, and in some of them there were circumstances which controlled the meaning of the word, such as the purpose of a statute including the word, or a definition contained in the same ordinance in which the word appeared.
Your Special Commissioner recommends that the judgment be affirmed.
PER CURIAM:
The foregoing opinion is adopted as the opinion of the Court and the judgment is affirmed.
All concur.
|
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MAUGHMER, Commissioner.
Plaintiff husband sued for divorce. The defendant wife countered With a petition for separate maintenance. The judgment granted plaintiff a divorce, dismissed defendant’s cross action for separate maintenance and awarded custody of the 16 year old son to the defendant with an allowance of $100 per month for his support and maintenance. Defendant on her appeal asserts that plaintiff failed to prove that he was the innocent and injured party and prays for a reversal outright of the decree of divorce. No other assignment of error is presented.
Charles V. Gicinto and Marie Gicinto were married to each other on January 31, 1942, in Olathe, Kansas. Plaintiff said that his wife on four different occasions in 1946, 1949, 1952 and 1953, filed suits against him for divorce or separate maintenance. However, each time their difficulties were partially resolved and no action was pressed to final determination. These parties finally separated about March 1, 1965, and on November 15, 1965, plaintiff filed the instant suit for divorce. Three children were born to the union but at the time of trial on March 11, 1966, two were of age and emancipated. The other, Marion Carl Gi-cinto, was 16 years of age.
Apparently Mrs. Gicinto has never been employed outside of the home. At the time of the marriage, Mr. Gicinto was a truck driver. For several years prior to the divorce he worked as automobile salesman for Miller Pontiac in Kansas City. On July 8, 1953, plaintiff was sentenced to serve a ten year prison term in the Federal Penitentiary at Leavenworth, Kansas. He was incarcerated in that institution for six years and until about October, 1959, when he was released on parole. During this period his wife received federal aid of $100 per month for support of the minor children. This income was supplemented by help from relatives.
The evidence shows that plaintiff provided for his family adequately, from a financial standpoint, except for the time he was in prison. He was injured while driving a truck prior to his imprisonment and was paid $6500 in damages. After his release from Leavenworth he resumed life with his family and worked first as a truck driver and then as an automobile salesman. He had substantial earnings. He estimated that his earnings averaged $600 per month gross. The W-2 report of wages received in 1965 shows that he was paid $7,758.12. His income tax return for 1963, a period during which he was driving a truck, and prepared by H & R Block, showed a gross income of $8,728. It is conceded that he paid the bills and supported his family. His parole was terminated on November 12, 1965. From March 1, 1965, the date of the final separation, until parole termination date, he paid the family house rent, household bills, doctor bills and $45 monthly in addition as support for Marion, the minor child. After the suit for divorce was filed and under order of court he paid $160 monthly as temporary alimony and $60 monthly as child support. It was necessary for plaintiff to secure approval or consent from his parole officer in order for him to live separate and apart from his family. This permission was granted but on condition that the family support contributions as herein listed be made.
Mr. Gicinto was asked to “tell the circumstances pertaining to the separation.” We summarize his answer: “She and my son Joey gave me the ultimatum to move out. They told me to move out or they were going to put my clothes out”. “They put new locks on the doors so I couldn’t come in.” “Well, she was constantly arguing with me, falsely accusing me at all times of going out with other women when I was at work trying to sell a car. Then when I was driving on the road I’d notify her every night where I was at, where I was staying, called her every night. There was no girl there I was staying with but she would call there all hours of the morning, three or four o’clock in the morning and get me up and accuse me of being with Helen or with someone else; just always degrading me, always telling friends, people I done business with that I was an ex-convict. I wasn’t to be trusted. I was no good. Just constantly arguing with me all the time, making my life, kept me in such turmoil I couldn’t no longer sell cars or even work. I would be constantly pushing her off, trying not to argue with her, her false accusations. She kicked my shins, tried to argue, she pinched me, kept me up all hours of a night, constantly pinched me, kicked me. She threatened that she would send me back to prison and called Mr. Owens, my parole officer”; “they almost succeeded by calling a man on some checks on account they had bounced * * * I found two hundred some dollars in checks written on my account signed by my son Joey”; “Joey admitted this to the parole officer.” Plaintiff said his wife called his boss and “all the people I sold cars to,” “said she was going to bankrupt me, break me, destroy me.” Plaintiff said his wife and sons charged $2520.94 to him at Macy’s. “She was cold and indifferent. She wouldn’t have nothing to do with me”; “she said I was an old man, was this and was that, just everything; just didn’t like me, * * *. She hated me, she couldn’t stand me.” Plaintiff said when he first came home from Leavenworth defendant was living with her folks. “I got extra jobs, bought them a house in Independence, new furniture, and an automobile”; “they didn’t like to live out there and Marion wouldn’t go to school out there. He transferred to Northeast and I had to pay $225 tuition and she drove him back and forth,” “then I rented a house at 326 North Quincy for $95 a month. I had to sell the house at a loss.” Mr. Gicinto said he bought a life insurance policy on his youngest son when he was born but the insurance man told him his wife had signed his name and cashed in the policy.
Mr. Earl Miller, President of Miller Pontiac, testified that Mrs. Gicinto called him “possibly two or three times to inform me what was going on, did I know what was going on”; “I don’t recall she actually asked me to fire Charlie”. Mr. Miller said she made reference to his going out with other women. He said that in his business association with Mr. Gicinto he had found him to be honest. Mr. Donald Sloan, who worked with Direct Transports when plaintiff was a driver there, said Mrs. Gicinto told him “she would like to put Charlie away or get even with him.” He also heard her accuse her husband of running around with other women. Clarence Gi-cinto, plaintiff’s brother, said defendant called him on numerous occasions about 4:00 a. m., complained about Charlie, said she was going to put him back in jail. He said she called him (the brother) an s. b. right on the street.
Mrs. Gicinto testified that plaintiff would come home “at two or three in the morning. He had been drinking. He had makeup all over his shirt and lipstick on his face. He never had an explanation.” She admitted that she went to the home of Rose Ann Leach (one of the women she accused her husband of running around with) at 4:00 p. m. Her husband and Rose Ann’s two small children were there. The defendant just opened the door and walked in. Mrs. Gicinto said that at the time she remarked to them: “I guess I caught you right. You told me Charlie had never been in your house.” It was plaintiff’s explanation that this woman and two others were “bird dogging”; that is, locating prospective automobile purchasers for him. Defendant says that she has asthma and diabetes and that the young son also has asthma. She admitted having had the locks on the house changed. She said the reason was that they heard the landlord downstairs one day and didn’t want him to have access to their quarters. However, she admitted she never gave a key to her husband and her 23 year old son Joey ordered him to leave. She admitted the large unpaid Macy account but said it was an accumulation of several years. She and her son Joey accused plaintiff of regular drunkenness, and said he often cursed Mrs. Gicinto. Joey said he saw his father take Rose Ann Leach home one afternoon and saw her kiss him. Mrs. Gicinto disclaimed any knowledge as to what happened to the youngest child’s insurance policy although she denied having cashed it.
The scope of appellate review in a divorce case was aptly set forth in these words (Heibel v. Heibel, Mo.App., 366 S.W.2d 37, 40):
“The scope of this court’s review in divorce cases is too well known to require citation. We try such cases de novo on the record before us and reach our own conclusions. We will apply the rule of deference where there is a sharp conflict in the evidence since the trial court had an opportunity to observe the witnesses upon the stand, but this does not mean that we can invoke that rule to avoid our duty and responsibility to reach our own conclusions from a review of the evidence.”
For indignities to amount to sufficient grounds for divorce they must be such “as shall render his or her condition intolerable.” Trivial quarrels and disagreements due to a lack of conciliatory temper in both parties cannot be reckoned as “intolerable indignities,” and constitute no grounds for divorce. Capps v. Capps, Mo. App., 65 S.W.2d 661, 663.
“In divorce action by husband on ground of indignities, evidence, which revealed that indignities complained of were scattered and remote and inconsequential, was not sufficient to establish a settled or continuous course of conduct which indicated hatred, contempt, or estrangement or to establish any great in jury suffered by plaintiff”. Moore v. Moore, Mo.App., 337 S.W.2d 781, 782, syll. 9.
On this subject we quote from Heaven v. Heaven, Mo.App., 363 S.W.2d 33, 39:
“Indignities sufficient to justify the granting of a divorce ordinarily must amount to a continuous course of conduct as distinguished from a single act or occasional acts. In addition, the acts relied upon must amount to a species of mental cruelty, and should demonstrate a course of behavior by one of the parties toward the other whereby the other’s condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relationship. Clark v. Clark, supra [Mo.App., 306 S.W. 2d 641]; Coleman v. Coleman, Mo.App., 318 S.W.2d 378, 381. It should also be observed that a party to be entitled to a divorce should be an innocent and injured party but the courts of this state have repeatedly held that a party to a divorce action is not deprived of his status as an innocent party simply because his conduct has not been perfect at all times. To prevent a person from being adjudged an innocent and injured party, his or her behavior and conduct must have been such as to entitle the other spouse to a divorce. Elgin v. Elgin, Mo.App., 301 S.W.2d 869, 872”.
Applying those definitions to the evidence in the instant case, how should this appeal be decided ? Has the plaintiff husband been subjected over a long period, to such indignities as to make his condition in life intolerable? That is the ultimate question. The cold, printed record substantiates many of the plaintiff’s charges. It is quite clear that except for the time he was in prison, plaintiff worked hard and regularly. He had a substantial income. He was respected by his employer, Mr. Miller. All this belies the accusation that he was regularly drunk. He devoted his income to the support of his family. He bought them a home and when they objected to living in Independence, rented a house in Kansas City. He paid all of their necessary bills, bought furniture and an automobile for the use of Mrs. Gicinto and their son. He paid checks to which his son had improperly signed his name. He paid the excessive account at Macy’s. It is established that defendant called or visited his employer and demeaned plaintiff to him. She threatened and boasted that she would send him back to prison. There was testimony that she said these things to plaintiff, to his brother and to Mr. Sloan, a fellow employee at the trucking company. This behavior continued over a period of years. She and her 23 year old son locked him out of the house when he was paying all the bills and after doing these things she sought in court not a divorce, but separate maintenance. This is in keeping with plaintiff’s charge that she regarded and treated him as just a meal ticket.
It is conceded that plaintiff fully supported his family financially. There is no charge that he ever resorted to physical violence against his wife. The only charges of misbehavior against plaintiff are: (1) he was regularly drunk. It is difficult to accept this charge at full face value in view of his regular, productive and satisfactory work record; (2) he associated improperly with other women. We do not know if this is so; (3) he cursed and argued with defendant. It seems likely this is true; (4) he is an ex-convict. This, of course, is true, but this fact should not permanently deprive him of his marital rights, including his right to conjugal respect and consideration.
On some of the charges and counter charges there is a sharp conflict in the testimony. We do and are required to defer to the trial court as to which of these disputed versions shall be accepted. This is done because the trial court had the opportunity to observe the witnesses. The trial judge specifically stated in the record that in his opinion “plaintiff, Charles Gicin-to, is the innocent and injured party in this case; that the allegations of his petition have been supported by the evidence”. From a reading of the record we are definitely inclined toward the same conclusion. Certainly we cannot under this evidence and after according due deference as to credibility, rule that the trial court erred in finding for plaintiff. The evidence on behalf of plaintiff, if believed, showed intolerable indignities, which continued for years and indicated hatred, contempt and family estrangement. These indignities were neither single nor occasional acts, but grew into a continuous course of conduct. We believe that Mr. Gicinto was the innocent and injured party and is entitled to a decree of divorce.
The judgment is affirmed.
SPERRY, C., concurs.
PER CURIAM:
The foregoing opinion of MAUGHMER, C, is adopted as the opinion of the Court.
All concur.
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The opinion of the court was delivered by
Habvey, C. J.:
This action grew out of the collision of two automobiles in which each owner claimed damages from the other. The appeal by plaintiff is from adverse rulings on post-trial motions.
The pertinent facts shown by the record may be summarized briefly as follows:
Eighth street in Topeka is a paved east and west street; it is intersected at right angles by College avenue, also a paved street; at the intersection there is a stop sign on College on the north and also the south side of Eighth street. On the day in question plaintiff’s car, being driven west on Eighth street, and defendant’s car, being driven south on College, collided in the intersection. Plaintiff sued for $574.27, alleged to be the cost of the repair of his automobile, and for $35.00, alleged to be the reasonable value for the use of his automobile for seven days while it was being repaired, and alleged these damages resulted from the negligence of defendant. Defendant denied liability; alleged plaintiff had been compensated for damages to his car by a named insurance company and filed a cross-petition for damages to her car in the sum of $210.48, alleged to have been caused by the negligence of plaintiff’s driver. Ry an appropriate pleading plaintiff denied liability to de fendant. At a jury trial there was much conflicting evidence as to how the collision occurred, and who was to blame. The jury returned a general verdict for plaintiff for $7.00 and answered the following special questions:
“1. Did Mrs. Carson stop her automobile before entering 8th Street from College Street? A. Yes.
“2. Did Mr. Lovegren’s automobile constitute a hazard to Mrs. Carson when Mrs. Carson started into the intersection of 8th and College Streets? A. Due to weather conditions and to the indicated speed of the Lovegren auto which was not consistent with driving conditions, it is believed that a hazard existed.
“3. What was the cost of repairing the damage inflicted upon Mr. Lovegren’s automobile as a result of tire collision? A. $539.27.
“4. Did Mr. Lovegren suffer any damage from the loss of use of his automobile as a result of the colh'sion? If your answer is ‘yes>’ state the amount. A. Yes, in the amount of $7.00.”
We note that the general verdict for $7 accorded with plaintiff’s testimony that his actual expense while his automobile was being repaired was $1 per day for taxi fare.
Thereafter plaintiff filed two motions; the first was a motion for an order setting aside the general verdict and for judgment for plaintiff against defendant in the amount of $546.27 on the jury’s answer to special questions notwithstanding the general verdict, and the second motion was for a new trial on the issues of damages only. These motions were heard and considered by the court and overruled and judgment was rendered for plaintiff on the general verdict for $7 and costs. The appeal is from the orders of the court overruling these motions. As to the first of the motions appellant argues that the jury having found in answer to question three that the cost of repairing the damages to plaintiff’s car was $539.27 and having brought in a general verdict in favor of plaintiff the court should increase the amount of the general verdict by the cost of repairing plaintiff’s automobile. It is to be noticed that as to question three the jury simply answered the question asked. In answering that question the jury did not indicate that the amount should be included in the verdict for or against either party.
We think the court would have had no authority to increase the amount of the verdict as requested. The pertinent statute, G. S. 1949, 60-2919, reads:
“When by the verdict either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.”
See, Henrie v. Buck, 39 Kan. 381, 386, 18 Pac. 228; and, Courtright v. Moore, this day decided.
Appellant complains the court did not sustain his motion for a new trial limited to damages. The hearing was before an experienced trial court who heard, the evidence. The evidence was decidedly in conflict as to which party was at fault. There was no request the court grant a new trial generally. We think it was not error for the trial court to overrule the motion to grant a limited new trial.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action in mandamus wherein the plaintiff, Charles V. Kenoyer (appellee), sought to compel the defendants, the State Board of Barber Examiners and individual members thereof (appellants), to issue unto him a certificate of registration to practice as a barber within the state of Kansas. From a judgment in favor of plaintiff, defendants appeal. '
The facts, insofar as the determinative question in this appeal is concerned, are briefly as follows:
Plaintiff had been a licensed barber practicing in Kansas from the years 1913 to 1934, inclusive, at which time he retired from practice. In 1939 the legislature enacted chapter 241 of the Laws of 1939 (G. S. 1949, 65-1808 et seq.), being an act relating to the practice of barbering, creating a state board of barber examiners, and defining its powers and duties. Section 12 of the act (G. S. 1949, 65-1819) provides, in part:
“Every registered barber, . . . shall ... on or before the first day of January each year, renew his certificate of registration and pay the required fee. Every certificate which has not been renewed as required in any year, shall expire on the thirty-first day of December. . . . Any registered barber who retires fiom the practice of barbering or haircutting for more than three years, may renew his certificate of registation upon the payment of the required restoration fee.”
In September, 1946, the plaintiff made a demand by letter on the defendant board for the renewal of his barber s license. The board replied by letter advising plaintiff that anyone who was not registered as a licensed barber in 1939, the year the aforementioned act was passed, must take an examination, and included additional information relative to the examination. On March 8, 1952, plaintiff again made written demand on the defendant board for the restoration of his license to practice barbering, and invited the board’s attention to G. S. 1949, 65-1819. The plaintiff enclosed with the letter and demand the necessary fees as provided by statute. Defendant board replied, refusing'again to grant plaintiff a license unless he successfully passed an examination in accordance with the act.
On April 17, 1952, plaintiff filed in the district court of Harvey county a petition for restoration of his barber’s license. The petition alleged, substantially, that plaintiff was a resident of Newton, Kansas; that the defendant board was created under the laws of Kansas, naming the members of the board, and that the court had jurisdiction over the subject matter and the defendants therein named, by virtue of G. S. 1949, 65-1829, and further alleged that plaintiff had made written application to the board for restoration of his barber’s license, showing the board that plaintiff had been a registered barber through the year 1934; that he was free from any contagious diseases; that his application was accompanied by a check sufficient to cover the fees as provided by statute; that the board failed, neglected and refused to restore to plaintiff his license to practice barbering in the state, in violation of G. S. 1949, 65-1819. Plaintiff prayed that the court order the defendants to restore his certificate of registration to practice barbering within the state, and for all other relief incident thereto, and for costs. The defendant demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was heard on June 19, 1952, and was sustained by the district court of Harvey •county. Plaintiff made no request to amend his petition, and judgment was rendered against him for costs. No appeal was perfected from that judgment.
Subsequent thereto and on March 25, 1953, plaintiff again made written application to the defendant board for the restoration of his barbering license. This application was refused, and on April 21, 1953, plaintiff filed in the district court of Sedgwick county a motion for a writ of mandamus to compel the defendant board to issue to bdm a certificate of registration as a barber. This motion or petition .alleged, substantially, that the plaintiff was a resident of Kansas; that the defendants (naming them) were duly appointed members •of the state board of barber examiners as provided by statute, and that the plaintiff was of good moral character and held a certificate to practice barbering in Kansas from 1913 to 1934, inclusive, when he retired; that under G. S. 1949, 65-1817 and 65-1819, plaintiff, who had been retired from the practice of barbering for more than three years, was entitled to have his license restored upon the payment •of restoration and renewal certificate fees, and that on March 25, 1953, plaintiff filed an application for restoration of his barber’s certificate, along with an affidavit of good health by his doctor, an affidavit of good character by his attorney, and enclosed funds sufficient to cover the statutory fees; that no reply from plaintiff’s application had been received from defendants, and that they indicated by their past acts they would not restore said certificate of registration to the plaintiff; that plaintiff had no adequate legal remedy and was entitled to restoration and renewal of his certificate, and prayed for a writ of mandamus ordering the defendant board to issue the barber’s license to plaintiff, and for costs. On this motion or petition, the trial court issued a peremptory writ of mandamus, to which defendants lodged a motion to quash, which was overruled. Thereafter the defendants filed their answer which consisted of a general denial, except for certain allegations which were admitted, and set up the further defense that plaintiff’s action filed in the district court of Harvey county was fully and finally determined; that the disposition in that action was a final judgment of the rights between the parties, and that the same was res judicata as to this cause of action. The case was tried by the court. Plaintiff produced his evidence, at the close of which defendants interposed a demurrer to the evidence and the pleadings, which was overruled. Defendant board offered its evidence consisting solely of the record of the prior proceeding in the Harvey county district court, at the conclusion of which the court held that the Harvey county proceeding was not res judicata, and issued a writ directing the defendant board to issue the plaintiff a certificate of registration to practice as a licensed barber in the state. Within the time provided, the defendants filed their motion for new trial, which was overruled, hence this appeal.
The first question for our consideration is whether the action brought by the plaintiff in the Harvey county district court, wherein judgment was entered against him for costs on June 19, 1952, from which no appeal was perfected, was res judicata as to the present action.
This state has long followed the rule that to make a matter res judicata there must be a concurrence of four conditions, namely, (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action, and (4) identity of the quality in the persons for or against whom the claim is made. (A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127; Hofstetter v. Myers Construction, Inc., 170 Kan. 464, 227 P. 2d 115.)
We will review the petitions filed by the plaintiff in Harvey and Sedgwick counties, respectively, in order to ascertain whether the requirements of the rule above set forth have been met.
As to identity in the thing sued for: In the Harvey county action filed in 1952, the plaintiff set up that he was a registered barber under the laws of Kansas, being last registered in the year 1934; that the defendant refused to restore him a license to practice barbering, although proper application had been made therefor, and prayed for a court order requiring the defendant board to restore his barber’s license to practice within the state, and for other relief necessarily incident thereto. In the Sedgwick county action filed in 1953, he pleaded basicly the same matter, and asked the court to order a writ of mandamus commanding the defendants to issue a certificate of registration. In both cases he asserted as a matter of law and as a matter of right he was entitled to the certificate of restoration. The thing sued for was clearly identical.
As to the identity of the cause of action:' In both petitions, the essence of his cause of action was that under the same applicable statutes he was entitled to the issuance of a certificate of registration to practice as a barber.
The two final conditions were also present in this case. Identity of the persons and the parties to the action, and identity of the quality in the persons for or against whom the claim is made, were clearly present in the two suits under consideration. The plaintiff was the same, and both actions name the board of barber examiners of the state, and the individual members thereof, as parties defendant. Potentially, both actions were against the defendant board, the membership of which was the same in 1952 as in 1953, with a single exception, concerning which there was no dispute. As to the quality, there can be no dispute on that point. In each instance, the plaintiff sought a court order against the defendant board, requiring it to issue to him a certificate giving him the right to practice as a barber under the laws of the state. No essential facts were pleaded in the second action which were not pleaded in the first action. This court has long followed the rule that a right, question, or fact directly put in issue and determined by a court of competent jurisdiction cannot be re-litigated between the same parties in a subsequent action. Not only is everything adjudicated between them which the parties chose to litigate, but everything incidental thereto which properly could have been litigated. In other words, the doctrine of res judicata not only prevents the re-litigation of the same matters the second time, but equally applies to bar the litigation of all matters in the second suit which could have been litigated under the facts constituting the cause of action in the first suit. (Levi v. Levi, 149 Kan. 234, 86 P. 2d 473; Stimec v. Verderber, 152 Kan. 582, 106 P. 2d 708; Kearny County Bank v. Nunn, 156 Kan. 563, 565, 134 P. 2d 635; Wharton v. Zenger, 163 Kan. 745, 750, 186 P. 2d 287; Feldmann v. Feldmann, 166 Kan. 699, 704, 204 P. 2d 742.)
Whether the Harvey county district court was correct in entering judgment against the plaintiff, is immaterial at this stage of the proceeding. The fact that a judgment of a court of competent jurisdiction may have been erroneous does not preclude application of the principles of the doctrine of res judicata when such judgment has not been corrected by appeal or supplemental proceedings and has been allowed to become final and conclusive through inaction on the part of the litigant against whom it was rendered. (In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501; In re Estate of Rothrock, 173 Kan. 717, 252 P. 2d 598.)
It follows that when judgment was rendered against the plaintiff in the Harvey county action, and no appeal was perfected therefrom, that decision became final and the judgment rendered was res judicata, and those issues could not be re-litigated in the new action filed between the same parties in the district court of Sedgwick county.
In view of the conclusion reached, it is unnecessary to discuss other questions raised in this appeal. It follows that, the judgment of the trial court is reversed and the case is remanded with directions to the trial court to set aside the writ granted in this action and to dismiss the case at the cost of the plaintiff.
It is so ordered.
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The opinion of the court was delivered by
Smith J.:
This is an appeal from a judgment of the district court approving an order of the probate court, refusing to appoint a commissioner to make an election as to whether an incompetent spouse should take under his deceased wife’s will or under the statute.
William A. Pardun was declared incompetent in September, 1952. Prior to that time his wife executed a codicil to her will. She died on August 31, 1952. Her will was offered for probate on September 8, 1952. She left surviving Pardun, her only heir. He had not consented to this codicil. On October 14, 1952, her will and codicil were admitted to probate. On October 15, 1952, the probate judge transmitted to-Pardun a letter, as provided by G. S. 1949, 59-2233, advising him of the provision of G. S. 1949, 59-603, and 59-2233, and that since he had not consented to his wife’s will lie had a right to make an election as to whether he wished to take under the will or pursuant to the statute and that if he did not elect to take under the statute he would be presumed to have elected to take under the will. Pardun died on December 22, 1952.
On May 26, 1953, a petition asking for the appointment of a commissioner to ascertain the value of the provision made by the will in lieu of the rights in the estate, secured by statute, and the value of the rights secured by statute and to make an election on behali of an incompetent spouse, was filed by an heir of Pardun. The probate court held that the right to have such a commissioner appointed pursuant to G. S. 1949, 59-2234, did not survive the deceased incompetent person and the petition should be denied. On appeal to the district court it held the election was for the benefit of the surviving spouse and his death terminated the necessity for such an election. The petitioner has appealed to this court. Her notice of appeal stated she appealed from the judgment of the district court whereby it was adjudged that the order of the probate court refusing to appoint a commissioner be affirmed and that the probate court be not required to make an election.
The specifications of error are:
“1. The court erred in entering judgment for the respondents and against the appellant.
“2. The court erred in refusing to grant appellant’s motion for a new trial.”
The appellees filed in this court a motion to dismiss the appeal on account of the failure of the appellant to comply with Rule 5 of this court. That rule states:
“The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered.”
(See 172 Kan. XI, and G. S. 1949, 60-3826.)
As to the first specification, we have held many times that to specify simply, the trial court erred in rendering judgment for one party and against another, presented nothing for review. (See Hamilton v. Binger, 162 Kan. 415, 176 P. 2d 553, and cases there cited.)
As to the second specification, that the trial court erred in refusing to grant appellant’s motion for a new trial, attention is called to the fact that the record consisted entirely of the pleadings filed in the probate court. There was no evidence and no issue of facts was raised. The sole question decided was a question of law. “A new trial is a reexamination in the same court of an issue of fact.” (See G. S. 1949, 60-3001.)
Under the circumstances this specification presents nothing for review. (See Hamilton v. Binger, supra, and cases cited.)
It follows the motion of appellee to dismiss the appeal is good.
The appeal is dismissed.
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The opinion of the court was delivered by.
Wertz, J.:
This appeal and cross-appeal arises from certain orders of the trial court in an action for a temporary and permanent injunction seeking to enjoin the defendants and their successors in office from levying, assessing or certifying certain assessments for curbing, guttering and paving in the city of Ellinwood.
For purposes of clarity, the appellants will be referred to as plaintiffs, and appellees and cross-appellants as defendants.
Plaintiffs filed a verified petition seeking a temporary and permanent injunction against the defendants. The petition contained four causes of action relating to curbing, guttering and paving of certain streets surrounding block 90, a portion of which contained lots owned by the plaintiffs.
The first cause of action pertained to the curbing and guttering of Fifth street between Fritz avenue and the west city limits.
The second cause of action pertained to the curbing and guttering of Fritz avenue between Fourth and Sixth streets.
The third cause of action pertained to the curbing and guttering of Sixth street beginning at a point halfway between Wilhelm and Arndt avenues to the west city limits.
The fourth cause of action pertained to the paving of Sixth street between Fritz avenue and the west city limits.
The matter was set for hearing before the trial court on the petition for a temporary injunction but, before it was heard, the defendants filed a motion to make the petition more definite and certain, and to strike certain portions of the first cause of action, and a demurrer to the second, third and fourth causes of action. Hearing was had on the application for temporary injunction, after which the trial court rendered its decision denying both a temporary and permanent injunction, and assessed the costs against plaintiffs.
The plaintiffs filed a motion to set aside the mentioned decision of the trial court. This matter was heard and the trial judge, at the same term of court in which his former order was made, set aside his former decision and entered a judgment partly sustaining and partly overruling defendants’ motion as to the first cause of action, overruling defendants’ demurrer to the second cause of action, and sustaining defendants’ demurrer to the third and fourth causes of action. Plaintiffs were given ten days to amend their petition, but elected to appeal from the trial court’s ruling on the motion and demurrer. Defendants cross-appealed from all rulings adverse to them.
Plaintiffs argue at great length about the ruling of the trial court upon the motion attacking their first cause of action. These matters can be disposed of with no difficulty. It is a well-established rule that the disposition of a motion to make more definite and certain lies within the sound discretion of the trial court. (West’s Kansas Digest, Appeal and Error, § 78 [3]; 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 18.) We are satisfied after a review of the record that the trial court did not abuse its discretion in sustaining portions of the motion to make definite and certain and to strike. It is also clear that plaintiffs were given additional time to amend their petition, so they cannot be heard to complain their rights, either present or future, were substantially affected by such ruling.
The principal argument advanced by the plaintiffs is that the trial court erred in sustaining defendants’ demurrer to their third and fourth causes of action.
As stated, the third cause of action pertained to the curbing and guttering of Sixth street, and the fourth cause of action to the paving of Sixth street. All of the property bordering Sixth street on the north was owned by the defendant city. A portion of the property bordering Sixth street on the south was owned by plaintiffs. In these two causes of action, plaintiffs contend the city intended to levy and assess a portion of the costs of the curbing, guttering and paving of Sixth street against plaintiffs’ property.
Plaintiffs rely on G. S. 1949, 12-602, which, after granting authority to make certain improvements in the manner and under the conditions therein set forth, provides in part:
“The cost of grading, regrading, paving, repaving, curbing, recurbing, guttering, reguttering, macadamizing, remacadamizing or otherwise improving intersections of streets and the cost of mating any of said improvements in streets, avenues and alleys running along or through city property shall be paid for by the city at large, for which general improvement bonds of the city may be issued according to law.”
It is plaintiffs’ contention that this statute requires the city to pay the entire cost of the curbing and guttering of Sixth street as set forth in the third cause of action, and the paving of Sixth street as set forth in the fourth cause of action, for the reason that the city owns the property abutting said street on the north and, inasmuch as Sixth street runs along city property, the costs of the improvement ¡should be paid by the city at large and, therefore, any assessment which defendants would make against plaintiffs’ property for any of such improvement is a violation of the mentioned statute. We cannot agree with plaintiffs’ contention. G. S. 1949, 12-601, provides:
“Whenever any street or avenue in any city shall be graded, regraded, paved, repaved, curbed, recurbed, guttered, reguttered, macadamized, re-macadamized, or otherwise improved, 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.”
It is clear from the foregoing statutes the legislature provided that the costs of the mentioned improvements should be assessed to all of the property on each side of the street, and that it had no intention of exempting private property owners from assuming their burden of such public improvements of streets adjacent to their property, merely because the city also owned a portion of the property adjacent to such improved streets. Section 12-602 must be read in conjunction with section 12-601 and, when so read, it is crystal clear that whenever any street to be improved runs along city property, the city shall pay for its portion of the improvement the same as any private citizen would be required to pay, had such citizen owned the property. In other words, insofar as liability for the improvement of a street is concerned, the city stands in the same shoes as a private individual.
We think it is clear from the language of the statutes that the legislature chose to require cities to pay the entire cost of improvements of city streets, only when their property adjoins both sides of such streets. The court did not err in sustaining defendants’ demurrer to plaintiffs’ third and fourth causes of action.
On their cross-appeal, defendants contend that the trial court erred in setting aside its first order denying the temporary and permanent injunction and making a new order sustaining the motion and demurrer, as hereinbefore related. It is here noted that the trial court set aside its previous order within the same term of court in which it was rendered.
This court has repeatedly and consistently followed the rule that within the same term in which a judgment was rendered, the trial court has absolute power over it, and may modify, alter, change or vacate it, in whole or in part. (Shotzman v. Ward, 172 Kan. 272, 278, 239 P. 2d 935.)
Other mátters argued in the record need not be discussed. The judgment is affirmed.
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The opinion of the court was delivered by
, Harvey, C. J.:
This original proceedings in quo warranto brought by the state questions the constitutionality of section 1, chapter 83, Laws 1953 (1953 Supp. G. S. 1949, 13-1024) which amended G. S. 1949, 13-1024. The section amended and the amending section are alike in part and differ in part. We print them here putting in parentheses the language omitted from G. S. 1949, 13-1024, and in italics the new language added by the amendment (section 1, chapter 83, Laws 1953) as follows:
“13-1024. Loans and improvement bonds generally; bond election, when. For the purpose^of paying for any bridge, viaduct, public building, including the land necessary therefor, for lands for public parks and developing the same, within or without the city, for the establishment and construction of crematories, desiccating or reduction works, including the land necessary therefor, within or without the city, or for the improvement, repair or extension of any waterworks, sewage disposal plant, electric light plant, crematory, desiccating or reduction work or other public utility plant owned by the city (unless otherwise specially provided for or for any other improvements or works not otherwise herein provided for), and for the purpose of rebuilding, adding to' or extending to the same from time to time, as the necessities of the city may require, the city may borrow money and issue its bonds for the same; (but) Provided, That no bonds shall be issued for such purposes unless the same (are) were authorized by a majority of the votes cast at an election held for that purpose: (Provided, however, That cities of the first class having a population in excess of one hundred thirty thousand, may and are authorized to issue the bonds of such city for the purpose of paying for any of the improvements mentioned in this section and the land necessary therefor, without such bonds having been authorized by a vote of the people, but the total amount of bonds issued for such purposes shall not exceed the sum of seventy-five thousand dollars in any one calendar year; Provided further, That of such seventy-five thousand dollars, not to exceed fifty thousand dollars may be issued in any one year for all purposes above mentioned, other than bridges, including the land necessary therefor. The city shall make provision for the redemption of all bonds at their maturity.) Provided, however, That cities of the first class having or who may hereafter have a population in excess of one hundred twenty thousand (120,000) and less than one hundred sixty thousand (160,000) may and are authorized to issue the bonds of such city for the purpose of paying for any of the improvements mentioned in this section and the land necessary therefor without such bonds having been authorized by a vote of the people: Provided, That before any bonds may be issued under the provisions of this act without an election, the city shall adopt a resolution, finding and declaring it necessary to issue such bonds, which resolution shall state the purpose for which said bonds are to be issued and the maximum amount of bonds to be issued, and which resolution shall be published for three consecutive days in the official paper of the city, and if within thirty (SO) days after the date of the last publication of said resolution, a protest, signed by not less than five percent (5%) of the elec tors shown by the registration books of the city is filed with the city clerk, the improvement shall not be made, nor bonds issued, unless the governing body calls' an election within the time and manner provided by section 10-120 of the General Statutes of 1949 and amendments thereto, and the proposition shall receive the favorable vote of a majority of the votes cast on the' proposition. The resolution shall contain a statement relating to the provision for protest.”
It is evident the sole purpose of section 1, chapter 83, Laws 1953, was to make it unnecessary for any city of the first class in the state which has a population of more than 120,000 and less than 160,000 to have an election for the issuance of bonds for any general improvement purpose, unless a protest was filed with the city clerk within thirty days of five percent of the electors. There are twelve first-class cities in the state; only one of them, Wichita, with a population of 192,182, has a population in excess of 160,000. There is no likelihood its population will ever be decreased to less than 160,-000. Kansas City, in 1953, had a population of 126,886. The next largest city in Kansas is Topeka which has a population of 82,734. In the twenty years prior to 1953 it has gained in population at the rate of approximately 1,000 per year. At that rate it would take it approximately thirty-seven years to have a population of 120,000. Each of the other cities of the first class has a population of less than 35,000. So, the only city that would be affected by the second proviso of section 1, chapter 83, Laws 1953, would be Kansas City. The statute in question is attacked as being invalid under 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.”
A law of a general nature could have been framed for the issuance of bonds for all general municipal purposes for cities of the first class. In fact, this statute would have been so had it not been for the second proviso therein. We think the proviso inserted therein provides only for Kansas City just as definitely as though it had named that city. See, City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800. Had the statute named Kansas City alone as the city to which the proviso applied it would have been held void.
Counsel for defendant argues that heretofore this court has approved classifications of cities on the basis of population. This is true, but whatever ground is used to classify one or more cities from others must be upon some ground germane to the purpose of the legislation. Here no reason is pleaded as to why Kansas City should have a different method of issuing its bonds than the other eleven cities of the first class. It seems clear the statute in question violates article 2, section 17, of our constitution.
The validity of the statute is also attacked as violating article 12, section 1, of our constitution, which reads:
“The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.”
It is well settled in this state that municipal corporations are corporations within the meaning of this section of our constitution. See, City of Wyandotte v. Wood, 5 Kan. 603, 607. If this is a special act attempting to confer corporate powers on the city of Kansas City it is invalid. We think it is.
Naturally, if the second proviso is bad the third proviso goes with it.
There is not much more necessary to be said about this case. We have examined all the authorities cited by counsel and many more but deem it unnecessary to prolong this opinion.
Judgment will be entered for the plaintiff.
Smith, Wedell and Parker, JJ., dissenting.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover for personal injuries alleged to have resulted from defendant’s negligence.
The defendant’s demurrer to plaintiff’s petition was overruled and defendant has appealed. We here note that subsequent to the filing of the action the defendant died and that the action against him was revived against his administrator.
So far as need be noticed it was alleged in the petition that plaintiff was four years old and that defendant was engaged in selling gasoline and oil products at retail at his place of business at a stated location in Topeka and in the same block where plaintiff resided. Paragraph 3 of the petition recited:
"Plaintiff further alleges that on or about the 5th of June, 1953, at or about the hour of 1:15 p. m., one Darwin Spencer, a boy of eleven years of age, went to the aforesaid filling station holding an open tin can in his hand and asked Elbert Copeland, defendant’s employee in charge of the station, if he could buy a dime’s worth of gasoline; that in accordance with the boy’s request, Elbert Copeland, acting in the scope of his employment and for the benefit of the defendant, filled the open tin can with gasoline and delivered it to the boy; that at said time the boy advised Mr. Copeland that he was going to help bum the gasoline at a nearby house; plaintiff further alleges that the said Darwin Spencer then left the defendant’s premises and carried the can filled with gasoline to the rear of the plaintiff’s home where the plaintiff and other children were playing; that said Darwin Spencer poured a part of the gasoline on a toy plastic airplane for the purpose of burning the same and setting fire to it; that said toy plane ignited and set fire to the remainder of the gasoline in the open tin can; that thereupon the said Darwin Spencer instinctively and spontaneously threw the can of burning gasoline away from himself and toward tire plaintiff, causing plaintiff’s body to become covered with burning gasoline and causing the severe burns to plaintiff’s body hereinafter described.”
In a summary way it may be said the petition further charged that defendant by the act of his employee was negligent in delivering to an immature and inexperienced child of eleven years of age a highly inflammable and dangerous substance, gasoline, when the employee knew that the gasoline was going to be burned by the child and others at a near-by house and when he should have foreseen the child might burn himself or other children and in filling and delivering the gasoline in an open tin can without a protective covering when he knew the child was to be near a fire and knew or should have known the fumes from the gasoline would ignite when brought in proximity to the fire and endanger the safety of persons in the vicinity. Other allegations of the petition pertain to injuries received and need not be detailed here.
The defendant’s demurrer to the petition on the ground it failed to state a cause of action was overruled and an appeal to this court followed.
In his brief appellant makes no contention that the act of its employee was not negligent, its sole contention being that the injuries sustained by the plaintiff were not reasonably foreseeable by defendant’s employee and any act of his was so remote from the injury as not to constitute the proximate cause of the injury. In support appellant relies almost wholly on our decision in Greiving v. LaPlante, 156 Kan. 196, 131 P. 2d 898, where the appeal arose from orders overruling the defendants’ demurrers to the plaintiff’s evidence. Although reference to the opinion is made for a fuller statement, there two boys about ten years old had a fire in a little can and had used coal oil to make it burn better. One boy went to a filling station and told the attendant his daddy wanted some gasoline to clean a hat and bought two cents worth. Later the other boy poured the gasoline on the fire and was burned. In approaching consideration of the'evidence this court said:
“Before examining the evidence let us state the narrow issue presented. It will be helpful, we think, first to clarify the issue by elimination. We are not here asked to determine whether it is negligence per se to sell gasoline to a nine-year-old boy. Nor, is our question whether LaPlante might be held liable if the child himself to whom the gasoline was sold had been injured. Nor, whether there would be liability if the child who bought the gasoline had so used or handled it that injury resulted to another child. Our issue must be narrowed by the undisputed facts in this particular case. Our question is whether the injury to the plaintiff, under the facts and circumstances shown hy the evidence, was a result which an ordinarily prudent person would reasonably think might happen if he sold the gasoline to tire boy to whom he did sell it. . . .” (1. c. 199)
After thus narrowing the issue, the court directed attention to rules pertaining to proximate cause, that results flowing from negligent acts must be within reasonable contemplation; that the law does not charge a person with all possible consequences of a wrongful act and that he cannot be held responsible for a remote cause but only for a cause which is probable according to ordinary and usual experience, and that an injury is deemed the natural and probable result of a negligent act if after the event and viewing therefrom in retrospect to the act the injury appears to be the reasonable rather than the extraordinary consequence of tire wrong, and that there must be a material continuous sequence, unbroken by any new and independent cause which produced the injury. After reviewing testimony set out in the opinion the court concluded that both the rule and practical reason required a holding that the injury, under the circumstances of remoteness and intervening events, was not within the probabilities, the natural sequence, which the appellant was chargeable with foreseeing. The ruling and judgment of the trial court was reversed.
In our opinion the above case is not decisive here. The amount of gasoline purchased in the instant case was not a mere two cents worth, but ten cents worth, and this court is not unmindful that that sum purchased approximately three pints of gasoline. Further the gasoline was purchased with direct knowledge on the part of the seller that the purchaser was going to help bum the gasoline at a near-by house. Under the allegations as to the use to be made of the gasoline, it is not subject to debate but that the seller was guilty of negligence in making the sale to the eleven year old boy. But what of the consequent events? It has been repeatedly held that for one to be negligent, it is not necessary that he foresee injury in the precise form in which it in fact occurs, nor because the injury is greater than he anticipates. Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822; Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590, and authorities cited. When the seller sold the gasoline to the boy it was with knowledge the boy was going to bum the gasoline and he was bound to know that in the performance of that burning harm was a likely and not improbable result, and the mere fact the harm occurred to another boy instead of to the boy making the purchase cannot avail the appellant. Nor are we convinced that under the allegations of the petition the fact of the burning of the gasoline after it had been taken from appellant’s place of business was an intervening act breaking the stream of causation for the seller had specific notice that that was what was to be done with the gasoline.
The only other case relied on by the appellant is Mondt v. Ehrenwerth, 251 Ill. App. 226. The facts of that case need not be reviewed for they are sufficiently set forth in the fourth paragraph of the syllabus which reads:
“The sale of 10 cents’ worth of benzine, in a gallon-size varnish can, to a boy IS or 14 years old sent to the store therefor by his mother, was not the proximate cause of the death of a child of 5 years which resulted from burns sustained when the benzine exploded while the boy, who was carrying it home, was showing a third child how the stuff burned.”
Reference to Shepard’s Illinois Citations shows the case has never been cited as an authority. In any event, the above syllabus shows the case is not controlling here.
We have no doubt that the cases relied on by the appellant do not support his contention that the trial court erred in overruling his demurrer to the petition. The case is not yet at issue and remains to be tried and we shall not extend our views. Those interested will find lengthy annotations on the question of liability of one who sells explosives and highly inflammable substances to a child in 60 A. L. R. 434 and 20 A. L. R. 2d 119.
The ruling and judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
In the district court judgment was rendered on the pleadings. On appeal the judgment was affirmed. In a petition for rehearing defendant contends the court failed to give consideration to a material issue of fact raised by the answer and presented by defendant’s brief, which precluded judgment on the pleadings. The subject was not overlooked, but it was not discussed in the opinion because it did not seem to be of any importance.
The petition alleged that the by-law involved was in force at the time the shares were purchased and at the time the action was commenced. Defendant’s answer denied all allegations of the petition which were not admitted, and contained the following:
“Defendant further admits that at the different times when the said certificates of stock were procured or'purchased by said William Loch there was a provision designated, article 8 of the constitution and by-laws of this defendant, as quoted on the first page of plaintiff’s petition.”
So, defendant says, existence of' the by-law when the action was-commenced was not admitted.
Defendant’s answer contained the following:
“Defendant alleges that the said alleged by-law is illegal, void and ultra vires and outside and beyond the scope or power or authority of defendant corporation, its board cf directors, officers, or stockholders.”
This reference to present-tense existence of the by-law led the court to believe that, when the answer was framed, the affirmative defense pleaded was the matter of substance. Besides that, it was plain the allegation of the petition that the by-law was in existence when the action commenced did not tender a material issue. Existence of the by-law when the action commenced was not a necessary element of plaintiff’s cause of action. The allegation was pure surplusage. It is an old rule of civil procedure that only those matters which are essential to the cause of action need be considered when testing a pleading by demurrer or motion for judgment, and that only such matters need be proved at the trial. Since the petition was just as good without the allegation as with it, and just as good with the allegation as without it, the district court properly disregarded the surplusage when rendering judgment on the pleadings.
One thing more. Purchase of the shares pursuant to the by-law constituted a contract with the corporation which could not be abrogated by simple repeal of the by-law. Conceding the by-law was not in existence when the action was commenced, the pleadings disclosed no facts which discharged defendant from the obligation of the contract.
. Other matters presented by the petition for rehearing are sufficiently dealt with in the original opinion.
The petition for rehearing is denied.
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The opinion of the court was delivered by
Marshall, J.:
The action is one to set aside and cancel a deed signed by the plaintiff, to cancel and remove the deed from the records of the register of deeds of Reno county, and to quiet the plaintiff’s title to the property described in the deed. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The plaintiff alleged that on January 15, 1914, she signed a warranty deed naming the defendant as grantee, but did not deliver the same to the defendant or anyone else; and that on the 6th day of February, 1914, the deed was placed of record in the office of the register of deeds of Reno county by Lorenzo* Burch, husband of the plaintiff, without her knowledge or consent and against her wishes. The defendant answered, denying the allegations of the petition and alleging that the deed had been duly executed and delivered to her and that it passed the title to her.
'The court made findings of fact and conclusions of law as follows:
“1. For many years prior to 1914 and since the year 1876 the plaintiff, Lovina J. Burch, has been the owner of the following-described tract of real estate located in Reno county, Kansas:
“Lots 3 and 4 in section 2, township 26, south, range 5, west of the 6th P. M., and containing 157.17 acres, more or less, according to the United States survey thereof.
“2. Plaintiff was formerly the wife of Henry H. Palmer, Sr., deceased, and mother of Henry H. Palmer, Jr., who died intestate on or about September 25, 1876, leaving the plaintiff as his only heir. ■ Henry H. Palmer, Jr., was the owner of the tract of land above described, and the plaintiff inherited the land from him.
“3. Subsequently to the death of Henry H. Palmer, Sr., the plaintiff married Lorenzo Burch, who is now the husband of said plaintiff. Plaintiff is more than 86 years of age and her husband, Lorenzo Burch, is of approximately the same age. Plaintiff and her husband are the parents of six children, Delbert Burch, Edward Burch, Ira Burch, Nellie Caldwell, Henrietta, D. Cook, and the defendant, Mabel Burget, all of whom are or rather were living in January, 1914, and were adults and had been married.
“4. On January 15, 1914, the plaintiff and her husband, Lorenzo Burch, went from their home about fifteen miles from the city of Hutchinson, Kan., in an automobile driven by George Burget, husband of the defendant, Mabel Burget, to the city of Hutchinson, Kan., and in the office of J. A. Schardien, register of deeds of Reno county, Kansas, executed a warranty deed in which the defendant, Mabel Burget, was named as grantee, covering the land described in finding No. 1. The deed was acknowledged by Lovina J. Burch and her husband, Lorenzo Burch, in the office of the register of deeds, before J. A. Schardien, the then register of deeds of Reno county, at the time of its-execution.
“5. After the execution and acknowledgment of the deed in question, the plaintiff and her husband retained the deed in their possession and took it away from the city of Hutchinson with them, and deposited the deed with the cashier of the Citizens State Bank of Cheney, Kan., for safe-keeping.
“6. The deed contained the usual recitations of a warranty deed with the-following additional recital:
“‘This conveyance is made subject to the following conditions: that said grantee cannot dispose of this land for a term of twenty days [years] from date hereof, and the said first parties to retain one-third of all rents, issues," and profits of said land during their natural life.’
“7. The real estate described in finding No. 1 was the sole property of and the only separate property which the plaintiff possessed at the time of the-execution of the deed in question, all other real estate belonging to theBurches standing in the name of Lorenzo Burch.
“8. On February 5, 1914, Lorenzo Burch, husband of the plaintiff, was the-owner of two other tracts of land, and on that date Lorenzo Burch and plaintiff, as his wife, executed two separate deeds to these tracts conveying them to Henrietta D. Cook and Nellie G. Caldwell, respectively, two other daughters, and both of these deeds contained a recital like the one set forth in finding No. 6. Both deeds were left in the possession of the cashier of the Citizens State Bank of Cheney; Kan., for safe-keeping. Such deeds were recorded in the office of the register of deeds of Reno county, Kansas, February 6, 1914.
“9. On February 5, 1914, Lorenzo Burch, husband of the plaintiff, instructed the cashier of the Citizens State Bank of Cheney, Kan., to mail the Burget deed, the Caldwell deed and the Cook deed, to the register of deeds of Reno county, Kansas, for recording, and pursuant to such instructions the deeds were mailed to the register of deeds of Reno county, Kansas, and were recorded in the office of the register of deeds on February 6, 1914. The recording fees were paid by the Citizens State Bank of Cheney, Kan.
“10. At the time of the execution of the deed to Mabel M. Burget, it was the intention of the plaintiff, Lovina J. Burch, that the deed should not be recorded, and that it should not be delivered to the grantee, Mabel Burget, but that she should retain possession of the land during her lifetime, so that she could sell the land or trade it, or make any disposition she might see fit of the land, and this intention of the plaintiff was communicated to her husband, Lorenzo Burch, and was discussed between Lorenzo Burch and George Burget, the husband of Mabel Burget, the defendant herein. Plaintiff did not discover that the deed had been recorded until long afterwards, and upon being told by her husband that the deed had been recorded, she immediately objected to her husband to the deed being recorded.
“11. The deed in question covered lands upon which the defendant, Mabel Burget, and her husband, George Burget, were tenants at the time of the recording of the deed. About one year after such recording they moved off the land. Ever since they moved off the land, the farm, which is the subject of this controversy, has been rented by the plaintiff Lovina J. Burch, to other tenants and she has received the rents therefrom and the defendants have not received any rent from said land, excepting the two-thirds share they received as tenants while they were on the land prior to their removal.
“12. During the term of approximately thirteen years, prior to the filing of this action, Lovina J. Burch has rented, controlled, and operated said land as the owner thereof, without any supervision or suggestion from the defendant, Mabel Burget, or her husband, George M. Burget, and they have had nothing whatever to do with the renting of such land. No accounting for rents or profits upon said land was ever demanded or requested by either Mabel M. Burget or her husband, George Burget, prior to the institution of this action and the plaintiff exercised other acts of ownership by and with knowledge and consent of the defendant, Mabel M. Burget.
“13. The deed in question was never delivered to the defendant, Mabel M. Burget, nor to any other person as her agent, nor did she ever have it in her possession, nor did she ever see the deed prior to the time it was recorded. The deed was not deposited with the cashier of the Citizens State Bank of Cheney, Kan., for the use and benefit of Mabel M. Burget, nor was the bank or cashier thereof ever instructed by the plaintiff herein, Lovina J. Burch, to deliver the deed to Mabel M. Burget, nor to anyone else. They were not even instructed to deliver the deed to the defendant after the death of the plaintiff.
“14. It was the intention of the plaintiff, in executing the deed in question, to make a testamentary devise of the land in question to the defendant, Mabel M. Burget, and she did not intend that such deed should take effect during her lifetime, but if she were still the owner of the land at the time of her death, it was her intention that it should be passed by this deed to her daughter, Mabel M. Burget.
“15. Sometime after the execution of the deeds to Mabel Burget, Nellie Caldwell and Henrietta D. Cook by Lovina J. Burch and Lorenzo Burch, her husband, Mr. and Mrs. Burch prepared a joint will, making provisions for the inheritance by their three sons of certain portions of their property, other than that mentioned in the deeds to the three daughters. This will was likewise deposited in the Citizens State Bank of Cheney, Kan., for safe-keeping. This will was still deposited with the bank for safe-keeping at the time of the trial of this action. At the time of the execution of the three deeds to the three daughters, and the will, it was the intention of the plaintiff, Lovina J. Burch, and her husband that they should retain possession, control, management of all their real estate, and the title thereto, including the land covered by the deed to Mabel M. Burget, until after the death of Mr. and Mrs. Burch, and it was the intention of the plaintiff and her husband to retain possession, control and title to the land covered by the deeds in the same manner and to the same extent as the land covered by the will, with the same power of revocation or change in the beneficiary or subject matter. Both the deeds and the will were made for the purpose of disposing of the various tracts of land after the death of Lovina J. Burch and her husband, Lorenzo Burch.
“Conclusions of Law.
“1. The recording of the deed in question by the cashier of the Citizens State Bank of Cheney, Kan., was not a delivery thereof to the grantee therein, Mabel Burget.
“2. The deed not having been recorded with the consent of the plaintiff, there was no delivery of the deed to the defendant.
“3. The deed, never having been delivered, either actually or constructively, no title passed in the land covered thereby from plaintiff to defendant.
“4. The plaintiff intended the deed to take effect after her death, and having exercised her right of revocation prior to her death by filing this action, the defendant has no right, title or interest in or to said land.
“5. While the deed was intended to operate as a will, yet it was not executed as the statutes require a will to be executed and hence cannot be held to be a will, and if it were so held, the testatrix, if she could be held to be one, has changed her mind, revoked her will.
“6. Plaintiff is entitled to a decree setting aside and canceling the deed and removing the same from the records of the register of deeds of Reno county, Kansas, and forever barring the defendant from any right, title or interest in or to said property, and for a decree quieting title to the plaintiff in said property as against the defendant.”
The first contention of the defendant is as follows:
“The deed in question from the plaintiff to the defendant was duly executed, acknowledged and delivered and vested in defendant a good title to the real property therein described as against the plaintiff.”
Whether or not the deed was delivered was a question of fact to be determined by the court from the evidence. There was evidence from which the court might have concluded that the deed had been delivered, but there was evidence to show that the deed never had been delivered by the plaintiff and that it had been recorded without her consent. The abstract of the defendant shows the following testimony of the plaintiff:
“That Mr. Burch was present at the time of the execution of said deed. That the deed was thereafter taken by Mr. Burch, her husband, and put in a bank and thereafter recorded by the bank upon instructions of Mr. Burch.
“Q. You did not know about that, or did you? A. I didn’t know until it was done. I objected to it.
“Q. Did you want Mr. Burch to have them recorded? A. No, sir, I didn’t. I begged him not to.
“Q. Did you know he was going to record them? A. I didn’t know. He spoke about-it and I said, ‘Don’t do it. It might make trouble,’ but he went ahead and recorded them anyway.
“Q. How long after that did he tell you they were recorded? A. I think it was — well, it was the next month after the deeds were made. I think it was — I think it was in February.
“I did not want to give Mabel Burget the deed because something might turn up and we would want to sell the land.”
That was sufficient evidence to justify the court in finding that the deed had not been delivered and that it had been recorded without the plaintiff’s consent.
Another contention of .the defendant is that “assuming but not admitting that the deed in question was void for want of delivery, said deed was validated by the ratification of the grantor, plaintiff, by her subsequent words and acts.” The defendant introduced evidence which tended to prove that after the deed had been recorded, plaintiff had stated that the land belonged to the defendant. The plaintiff, on cross-examination of her evidence in chief for herself, testified that she did not remember making such statements. The evidence was not sufficient to compel a finding of ratification.
The defendant, in her brief, says:
“That the deed in question to the defendant from the plaintiff is not in the nature of a testamentary devise and the trial court was in error in making its fourteenth finding of fact.”
The court found that the deed executed by the plaintiff was intended as a testamentary devise of the land. It was not executed in conformity with- the statute concerning wills, and could not take effect as a will. (Purcell v. Baskett, 121 Kan. 678, and cases there cited.) It is not necessary to discuss that finding further.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, C. J.:
These are criminal cases. Since the appellants were prosecuted under one information and since the legal ques tions raised by them in their separate appeals are identical the cases may be disposed of in one opinion. Tire information was in two counts. Each count charged both of the appellants in count one with the possession of alcoholic liquors on premises licensed for the sale of cereal malt beverages; count two, the sale of cereal malt beverages on Sunday. The offenses were charged to have been committed on September 6,1953, which was a Sunday. Upon being arraigned each of the defendants entered a plea of not guilty. When the case was called for trial the county attorney made the opening statement and counsel for defendants asked the state to elect under which statute the prosecution was laid and the county attorney elected to proceed under 41-2704 of the 1951 Supp. to G. S. 1949, the pertinent parts of which read as follows:
“In addition to the requirements of this act the board of county commissioners of any county of the state of (or) the governing body of any city may prescribe hours of closing, standards of conduct, and rules and regulations concerning the moral, sanitary and health conditions of the places licensed and may establish zones within which no place of business may be located not inconsistent with the provisions of this act: Provided, That no cereal malt beverages may be sold ... on Sunday. ... No person shall have any alcoholic liquor in his possession while in said place of business. (G. S. 1949, § 41-2704; L. 1951, ch. 302, § 1; June 30.)” (Emphasis supplied.)
Defendants moved to be discharged upon the ground that the section relied upon by the state is not a penal section. For the penalty the state relied upon G. S. 1949, 41-27Í1, which is a part of the same act above mentioned and which in substance provides:
“Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor . . .”
and fixes the punishment. The defendant’s motion to be discharged was denied and the trial proceeded with the result that the defendant Erhart was found guilty on both counts of the information and defendant Thrasher was found not guilty on count one but guilty on count two. In the course of the trial the court instructed the jury the statute under which the state of Kansas prosecuted this action provides in substance:
“No cereal malt beverage may be sold on Sunday and no person shall have any alcoholic liquor in his possession while in a place of business in which the sale of cereal malt beverage has been licensed.”
Each of the defendants filed a motion for a new trial which was considered by the court and overruled. These appeals followed.
The appeals present only questions of law. No transcript of the testimony has been furnished. It appears the premises were searched by officers under a search warrant on Sunday, September 6, 1953. The officers malting the search found the application of the Sunflower Veterans Club of Sunflower, Kansas, for a cereal malt beverage license on which the name and signature of the defendant Randolph H. Erhart appeared. They also found a number of bottles of whiskey as well as cases of beer on the premises. These were all introduced in evidence. Also in the cross examination of Jack L. Patterson, a witness called by the state who testified that he was chairman of the operating committee of the Sunflower Veterans Club at the time of the approval of the cereal malt beverage license, defendant introduced a contract which named Er-hart as the manager of the club and prescribed his duties.
In this court the appellants raised three legal questions:
First, that the court erred in overruling their motion to be discharged. The point is not well taken. It is true that 41-2704 gives the board of county commissioners or the governing body of the city some authority to include in the license for the sale of cereal malt beverage hours of closing, standards of conduct, and rules and regulations concerning the moral, sanitary and health conditions of the places licensed and to establish zones within which no place of business may be located not inconsistent with the provisions of this act; but it also contains positive legislative directions that no cereal malt beverages may be sold on Sunday; and further provides no person shall have any alcoholic liquor in his possession while in said place of business. These were positive declarations of the legislature which the board of county commissioners or the governing body of the city could not modify.
This is the first case which has reached this court involving the violation of 41-2704. We have had two cases involving the violation of 41-2708 which authorizes the board of county commissioners and the governing body of any city to cancel licenses previously issued for the sale of cereal malt beverages for any one of a number of reasons stated in subsections, one of which reads:
“For the sale or possession of or for permitting any person to use or consume upon or in said premises alcoholic liquor as defined by the laws of the state of Kansas relating thereto. . . .”
This section contained no penal provision but for that the state relied upon 41-2711. The first of these cases was State v. Wilson, 169 Kan. 659, 220 P. 2d 121, where the defendant was convicted upon a count which charged her with having alcoholic liquor in her possession upon the premises where she had a permit to sell cereal malt beverages. This court affirmed but the question of the section not being a penal statute was not presented, nor ruled upon.
The next case was State v. Pulec, 173 Kan. 261, 246 P. 2d 270. The charge was predicated upon the subsection of 41-2708 above quoted. The case was brought in the justice court where the defendant was found guilty. She appealed to the district court where the question whether the prosecution was based upon a penal statute was presented. The trial court held it was not and discharged the defendant. The state appealed. This was reversed by a four to three decision relying heavily upon the Wilson case. One of the justices wrote a dissenting opinion in which two others joined. The case was later tried in the district court and resulted in a conviction and a second appeal followed which is reported in 175 Kan. 290, 263 P. 2d 230. At that time the court made a more careful examination of 41-2708 and found in it several subsections which could not be penal offenses and concluded the section was not a penal section and overruled its previous holding in State v. Pulec, 173 Kan. 261, 246 P. 2d 270, again with a divided court. In the meantime the legislature of 1951 in ch. 302 amended 41-2704 by adding thereto this sentence: “No person shall have any alcoholic liquor in his possession while in said place of business.” In the opinion it was said:
“. . . Had that provision been in the statute at the time defendant was charged with having violated the law, then under the provisions of G. S. 1949, 41-2711, she would have been correctly charged. . . .”
The pertinent syllabus reads:
“G. S. 1949, 41-2708, G. S. 1949, 41-2711, and G. S. 1951 Supp., 41-2704, examined, construed- — -Held possession prior to the enactment of G. S. 1951 Supp., 41-2704, of alcoholic liquor on premises by a person licensed to engage in the retail sale of cereal malt beverages thereon did not constitute a misdemeanor but only a ground for revocation of the license to sell cereal malt beverages.”
Defendants here were charged with having committed the offense named in the information on September 6, 1953. The statute, 41-2704 as amended in 1951, was in force and the defendants were properly charged thereunder.
Second, both appellants contend the court erred in the instruction given as the applicable statute. The point lacks merit as demonstrated by the analysis just given with respect to point one.
Third, both appellants complain of language used by the county attorney in his closing argument to the jury. The appellant Erhart complains of the following statement:
“That the evidence as shown here, and there hasn’t been anything to controvert it, that Mr. Randolph Erhart was the manager of the Sunflower Veterans Club.”
Both appellants complain of the following statement: “Not a thing on the witness stand, realize this ladies and gentlemen of the jury, has been disputed — not a single, solitary thing.” In this case neither of the defendants chose to testify. They contend here that the remarks of the county attorney above quoted violated that portion of our criminal code G. S. 1949, 62-1420 which, as pertinent, reads:
“. . . That the neglect or refusal of the person on trial to testify, . . . shall not raise any presumption of guilt, nor shall the circumstances . . . be either commented upon or referred to by any attorney prosecuting in the case, . . .”
The remarks of the county attorney above quoted did not violate this statute. See State v. Labore, 80 Kan. 664, 103 Pac. 106; City of Topeka v. Briggs, 90 Kan. 843, 845, 135 Pac. 1184. The county attorney made no reference to the defendants by name or otherwise in his remarks. He had ample authority to discuss the evidence that was introduced and if it was true, and apparently it was here, he was entitled to call the attention of the jury to the fact that certain important evidence had not been controverted. See, State v. Peterson, 102 Kan. 900, 171 Pac. 1153; State v. Owen, 124 Kan. 533, 261 Pac. 600; State v. Boyd, 140 Kan. 623, 38 P. 2d 665. Many other cases might be cited. 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
Johnston, C. J.:
This action was brought by Charlotte E. Berthoud against the heirs of Lyman Scott, deceased, to quiet her title to a number of lots in the city of Leavenworth, alleging that the named defendants, who are heirs, had no interest or title to the lots, and she prayed that defendants be barred from claiming any estate or interest in the property. Sonle of the defendants answered, setting up their rights as remaindermen in the property, and others disclaimed any interest in the lots devised by the testator. A tidal before the court resulted in findings and a judgment that under the will the plaintiff held a life estate in the property; that defendants were contingent remaindermen, two of whom had conveyed their contingent interest to plaintiff, and judgment was given against plaintiff for costs. Plaintiff appeals.
Lyman Scott died in January, 1864, and his will was admitted to probate on April 4, 1864, by Judge David J. Brewer, then the probate judge of Leavenworth county. At the time of his death Lyman Scott left surviving him seven children, four of whom died years ago, leaving no surviving issue. Others of them died leaving issue, who have been made defendants. Only one of the testator’s children is living now, and she and the survivor of another child conveyed their interests in the property to the plaintiff. Charlotte E. Berthoud, who was named in the will as Lottie Naylor, was the daughter of Elizabeth Lee. In the will much property was devised and bequeathed to the children of the testator and other relatives of different degrees, but this controversy involves only the lots mentioned, to which a life estate was given to the plaintiff. The provision applicable to the controversy is found in that part of item 10 of the will relating to the lots in controversy, and is a follows:
“I give, devise and bequeath to my granddaughter, Lottie Naylor, to her sole use, benefit and behoof during the term of her natural life, all of the following-described lots and parcels of land lying and situate'in the city of Leavenworth (proper), in the county of Leavenworth and state of Kansas, to wit: lots numbered seventeen (17) and eighteen (18) in block number forty-seven (47); lot number thirty-one (31) in block number forty-six (46), and lot number twenty-three (23) in block number seventy-five (75); to have and to hold the same unto the said Lottie Naylor to her sole use, benefit and behoof during the term of her natural life, and subject to the life estate herein granted in and use of the lots and parcels of land in this “item tenth” mentioned and described, and after the death of said Lottie Naylor, I do give, devise and bequeath unto such of the issue of said Lottie Naylor as may be living at the time of her death, in equal proportions, share and share alike, and in fee simple, all of the lots and parcels of land in this “item tenth” mentioned and described hereinbefore. But if said Lottie Naylor shall die leaving no living issue of her body, then and in that event I give, devise and bequeath unto such of the half brothers and half sisters of the said Lottie Naylor as may be living at the time of her death, in equal proportions, share and share alike, and in fee simple, all of the lots of land in this item hereinbefore described. But if said Lottie Naylor shall die leaving no half brothers or half sisters, living, then and in that event I give, devise and bequeath all of the lots and parcels of land hereinbefore mentioned in this “item tenth” in equal proportions, share and share alike, and in fee simple, to my children.”
It was shown that shortly after the death of the testator plain tiff entered into the possession of the property involved and had by virtue of the will held possession for more than fifty years. She had been married, but her husband’died several years ago and she never 'remarried. She never had any children and is now about seventy-five years of- age, and she produced evidence that she is incapable of bearing children. She had a half- brother, Scott M. Lee, and a half sister, Mary E. Kirkham, each of whom is dead, and plaintiff had no other half brothers or sisters than those named.
The contention of plaintiff is that under the will she holds an estate tail, a paramount title in the property involved. The defendants contend that the will devised a life estate to plaintiff with a remainder over to designated persons; that an estate tail was not devised to her; and that since the will provided for a definite instead of an indefinite failure of issue, no such estate was given. The case must turn on whether the limitation over is upon a definite or indefinite failure of issue. As the limitation over is upon a definite failure of issue an estate tail is not created. It will be noted that the testator devises the property to plaintiff for life, then to the issue of her body, living at the' time of her death, in equal proportions in fee simple, then if she should die leaving no issue of her body, the property is limited over to such half brothers and half sisters as may be living at the time she died, and in the event that she does not leave half brothers or half sisters, the property is to go in fee simple to the children of the testator. The language of the will clearly shows that a definite failure is fixed by the testator. It is not a failure of issue at some uncertain time, nor even at some time within a period when it may happen, but it is definitely fixed as of the time of plaintiff’s death. The terms of the will leave no doubt that this was the intention of the testator. His will expressly devises the property to the issue of plaintiff living at the time of her death, and the subsequent terms refer to a failure of living issue at the time of plaintiff’s death. It has been ruled that in cases of this kind effect should be given to the manifest intention of the testator. (Brown v. Boone, 129 Kan. 786, 284 Pac. 436.) The meaning and effect of a definite or indefinite failure of issue were considered in Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682, where it was said:
“A will providing that property devised to the testator’s daughter should ‘if said daughter shall be survived by issue,’ descend to such issue, ‘but failing such issue,’ should go to her brothers, means that if at the time of her death the daughter had living issue such issue should take an absolute title, and that otherwise the title should pass to the brothers.” (Syl. ¶2.)
In Farmers’ State Bank of Chase v. Howlett, 126 Kan. 610, 270 Pac. 605, it was decided:
“A testator devised lands to his wife for her sole use and maintenance during her natural life and after her death to his granddaughter and after her death to her children, but if there should be no children living at the time of her death, then to a son of the testator. Held, that the will did not create an estate tail in the granddaughter and that she could' not convey the land free and clear from the claims of her children.”
The question of what constitutes a definite failure of issue was before the Indiana court, which held that a definite failure of issue is when “a precise time is fixed for the failure of issue.” (Huxford, Adm’x, v. Milligan et al., 50 Ind. 542.) It has also been said that:
“The phrase ‘dying without issue’ or the like, standing alone, in a will is ordinarily construed at common law as meaning an indefinite failure of issue, unless a contrary construction is required by statute or unless the context of the will and the surrounding -circumstances show that a definite failure of issue living at the death of the ancestor named was intended by the testator.” (40 Cyc. 1502.)
See, also, 40 Cyc. 1600; Purl v. Purl, 108 Kan. 673, 197 Pac. 185; 10 R. C. L. 659.
A precise time being fixed, no estate tail was created. Manifestly the testator did not intend to give plaintiff more than a life estate in the property, and she was not entitled to judgment barring the remaindermen from claiming an interest therein. It appears that two of the remaindermen have sold their contingent interest to plaintiff. What they or others of the remaindermen will be entitled to under the provisions of the will cannot be determined until the death of plaintiff. While a contingent remainder may be assigned or sold, the assignee gets the interest subject to the same conditions and limitations as applied to the assignor. In 21 C. J. 998 the governing rule is stated:
“In accord with the rules of assignability elsewhere considered, a contingent remainder is alienable when the remainderman is ascertained and the uncertainty which makes it contingent is in the event on which it is limited to' take effect, because in such case the possibility is coupled with an interest, but the interest transferred, is subject to the same contingencies in the hands of the transferee as it would have been if it had not been transferred.”
Something is claimed under testimony offered to show that it will' be impossible for plaintiff to have children or to have half brothers and half sisters, and therefore that plaintiff is entitled to claim a vested interest. That contingency is to be determined by the situation and circumstances existing at the death of plaintiff. That is the prescribed event upon which contingencies are to be settled, and uncertainties made certain. It has been said that — •
“A contingent estate in favor of an unborn beneficiary does not fail until it becomes incapable of taking effect by the termination of the event or time prescribed since the possibility of issue is, in contemplation of law, extinguished only with life.” (40 Cyc. 1682.)
Some other matters are discussed which are held not to be material, and finding no error in the judgment, it is affirmed.
A stipulation has been filed by parties to the effect that a judgment rendered in another case shall be the same as that rendered in this case, with a certain exception. Judgment in the other case (No. 29,556) is rendered and will be entered in accordance with the stipulation.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order setting aside a sheriff’s sale of real property made in pursuance of an order of sale, in an action on a promissory note in which the real property had been attached at the beginning of the action. In the district court there were two cases, but since they are alike in all respects they are treated here as one. A homestead question is involved, and specifically whether the property became the homestead oí defendants prior to the levy of the attachment. The trial court held that it did, and plaintiffs have appealed.
From the record, including the findings of the court, the facts may be summarized as follows: C. H. Fry and Pearl Fry are husband and wife and the parents of three minor children. In March, 1929, they were living in a rented property in Coffeyville and owned no real estate. They had lived in town about seven years, where Mr. Fry was employed. William J. Neer, the grandfather of Mrs. Fry, owned at the time of his death, January 25, 1929, 160 acres of farm land in Labette county on which there was a residence and other buildings, and which was used together as one farm. By his will he devised this land to Mrs. Fry. Mrs. Fry was born and had been reared on this farm. About February 11 she and her husband first learned that the farm had been devised to Mrs. Fry, and then made up their minds and decided to move to the farm and make it their home. The farm was occupied by a tenant, who was renting by the month, and who had paid his rent to March 9. The Frys went to him and told him they wanted possession of the place and desired to move on it, and, although the tenant would have preferred to remain, he agreed to surrender possession, and did move off the farm on March 9, or within a day or two. Fry and his wife secured possession of the premises on March 10 or 11 and immediately began making repairs on the property, and in a few days, by March 17, moved in and took possession of the same, and have continued to occupy the property as their home. The' will was probated February 26. C. H. Fry and Pearl Fry were indebted to the plaintiff banks on two promissory notes. On February 25 the banks brought suit on those notes and caused summonses to be issued, which were served on the defendants February 26. And on that day the plaintiffs caused attachments to be issued and levied upon the real property in controversy. No notice of this attachment was served on the defendants; service was made on the tenant in possession of the property. There is some controversy in the evidence as to the date when Mr. and Mrs. Fry went to the tenant and told him they wanted possession. Their evidence fixes the time before the will was probated. Other evidence tends to show that it was after the first of March. The court found that it was before the defendants knew of the attachment proceedings. There is also evidence tending to show that defendants, about March 3, had stated to the executor of the will, in substance, that they did not care to move on the property and would like to have the tenant remain, but this was denied by defendants, and the court found against plaintiffs’ contention on that point. In the suits brought by the banks, judgment was rendered in favor of the plaintiffs May 13, 1929, and on June 4 the order of sale was issued. Plaintiffs argue that in order to constitute a homestead the property must be occupied as a residence. This may be conceded, for our constitution (art. 15, § 9) so requires. Plaintiffs further argue that when an attachment or judgment lien exists on real property the subsequent occupation of the property by the debtor as his home will not defeat such lien, and this general proposition may be conceded. (Bullene v. Hiatt, 12 Kan. 98; Robinson v. Wilson, 15 Kan. 595; Ashton v. Ingle, 20 Kan. 670, and allied cases, including Caple v. Warburton, 125 Kan. 290, 264 Pac. 47.) But the rule announced and applied in those cases is not applicable here. When one purchases a property with the intention of occupying it and making it his homestead, and takes steps to do so, and does do so as promptly as the circumstances of the case will permit, a judgment or attachment lien does not attach thereto so as to take precedence over the homestead right.
In Edwards v. Fry, 9 Kan. 417, 425, it was said:
“A purchase of a homestead, with a view to occupancy, followed by occupancy within a reasonable time, may secure ab initio a homestead inviolability.”
In Monroe v. May, Weil & Co., 9 Kan. 466, it was held:
“A purchase of a- homestead, with a view to occupancy, followed by occupancy within a reasonable time, receives from the time of purchase a homestead exemption from seizure upon execution or attachment.”
In Gilworth v. Cody, 21 Kan. 702, the defendant Cody, on De cember 1, 1877, purchased eighty acres of land with the purpose and intent of using it as his homestead. The land was vacant. Cody commenced at once to dig a cellar and haul stone for a dwelling house. On December 5 he went to a town to purchase materials, and returned on December 7 and unloaded them on property adjoining his. On the same day the property was levied upon under an attachment. Cody continued the construction of the dwelling house and completed it December 28 and moved into it with 'his family. Held, that the premises were exempt as a homestead from seizure when the attachment was levied.
In Upton v. Coxen, 60 Kan. 1, 55 Pac. 284, a judgment was rendered in Shawnee county in 1892, and on May 10, 1893, a transcript of it was filed in Wabaunsee county. A levy was made on the land in August, 1893. The owner had inherited a one-fourth interest in the land from her father and purchased one-half interest from other heirs. On May 9, 1893, she and her husband purchased lumber and building material and took the same on the land and began the erection of a house, which was later completed and occupied until they gained possession of the house, then occupied by a tenant on the farm. The tenant’s right to possession did not terminate until the late fall of 1893. The court noticed that the parties had acquired the property with the intention of using the same as a homestead. They moved there in good faith actually one day before the judgment became a lien, but the court said:
“There can be no question, however, about the time, as the land was acquired some time before the actual occupancy of the same, and it is settled that the purchase of a home, with the intention to occupy it as a homestead, followed by actual occupancy within a reasonable time, may impress it ab initio with homestead character and inviolability.” (p. 3.)
In Stowell v. Kerr, 72 Kan. 330, 83 Pac. 827, it was held that where land is purchased with the definite intention of making it a homestead, and immediately thereafter the purchaser and his family go into possession and continue to occupy it as their homestead, a judgment subsisting against him at the time of the purchase will not became a lien thereon. It seems an abstract of judgment was filed in district court December 6, 1900. Kerr induced a relative to purchase for him forty acres for his home in April, 1903, and an adjoining forty in February, 1904. It was immediately occupied by the Kerrs as their home, the title being in the relative who furnished the money. It was held that Kerr had an equitable interest in the land sufficient to establish a homestead thereon, and it was said:
“As the land was purchased with the definite intention of making it a homestead, it had the homestead character from the beginning. The law does not prohibit a judgment debtor from procuring a homestead which will be exempt from forced sale for debts, nor is there anything in its purpose warranting the view that in the purchase of a homestead a judgment hen will outrun a homestead interest. On the other hand, the homestead law is given a practical and liberal interpretation in keeping with its policy and purpose. While occupancy is an essential feature of a homestead right, it is well known that complete occupancy at the moment of purchase is frequently impracticable.” (Quoting from earlier cases.) (p. 331.)
In Randolph v. Wilhite, 78 Kan. 355, 96 Pac. 492, the owner of city property occupied as a home purchased a tract of land in the country with the intention of making it his home, but it could not be occupied until improvements were made thereon. Before purchase, but with a view of it, he agreed to convey the city lots to one who was to pay for them by making the improvements on the farm. This agreement, although oral, was executed on both sides without delay, and as soon as the farm tract was ready for occupancy the owner moved upon it and made it his homestead. The farm was deeded June 1, the city lots June 20, and the removal was made July 6 of the same year. Held, that the actual occupancy of the farm related back to the time the land was purchased with the intention of making it a homestead, and the purchaser took title free from liens of judgment against it. The case collects many of the early authorities.
In Machine Co. v. Roach, 91 Kan. 840, 139 Pac. 430, the property was left the defendant by will, September 30. An execution was levied upon the property in December. Defendants had formerly lived upon the property, which was that of the mother of defendant’s wife, and were there taking care of her at the time of her death, and continued to stay there until October 10, when they went back to a farm they had rented, where work was to be done, leaving some of their household effects on the premises inherited, intending, after the work was finished on the farm, to come back to the property and make it their home. There was testimony that defendants had rented the house, except one room, and had attempted to arrange for a removal to Texas, but if that had been planned it had not been accomplished. The trial court held that the property was exempt from levy as the homestead.' This court declined to reverse the trial court.
The trial court took the view that the facts disclosed by the evidence brought the case within the rule of the above cases from which quotations are made. We agree with that conclusion. Here Mrs. Fry, whose home had been on the land in question most of her life, and her husband, on learning that the property had been devised to her, determined to move upon the land and make it their home, and took the necessary steps and did so as soon as that was possible. There is evidence from which the court might have found that this was not their first intention, but that evidence was controverted, and the finding of the trial court on that matter is binding here.
Appellants complain that the court did not permit them to open up the hearing and introduce evidence of other witnesses. That is a matter largely in the discretion of the trial court. A statement was made on the day of the hearing of the testimony these witnesses would give, and other witnesses were present who gave substantially the same testimony, hence the testimony of these witnesses, if the case had been opened up, would have been merely cumulative. The court, having before it evidence of the same character, and having heard the evidence in conflict with it, was in good position to know whether it would influence its judgment. There is no ground for holding an abuse of discretion in this respect.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The defendant was convicted on seven counts of being a persistent violator of the intoxicating-liquor law of this state, and appeals.
He argues that there was error committed by the court in not granting to the defendant a new trial on account of the misconduct of the jury in receiving information in the jury room outside of that introduced on the witness stand. The information complained of was shown by the testimony of one of the jurors. He testified that in the jury room another juror who had been- voting for acquittal voted for conviction and, in explanation of his change of attitude, stated his son had told him something which influenced him to vote for conviction. The juror whose conduct was thus attacked, when placed on the witness stand by the state, denied making the statement attributed to him. That presented an issue of fact for determination by the court, which found against the contention of the defendant. That finding is conclusive. (Barber v. Emery, 101 Kan. 314, 167 Pac. 1044; Fidler v. Short, 118 Kan. 37, 40, 233 Pac. 1022; 46 C. J. 373.)
The defendant argues that the motion for a new trial should have been granted because of misconduct of the jury in that one of the jurors thought he was agreeing to a verdict of guilty on one count only instead of seven counts. When questioned in' the court room after the verdict had been read, concerning whether it was the verdict of the jury, that juror failed to make any response. A juror after agreeing to a verdict cannot be permitted to say that he did not agree to it. (State v. Johnson, 99 Kan. 850, 163 Pac. 462; State v. Kagi, 105 Kan. 536, 185 Pac. 62; State v. O’Keefe, 125 Kan. 142, 263 Pac. 1052.)
Defendant argues that the motion for a new trial should have been granted on the ground that one of the jurors was coerced into agreeing to a verdict of guilty on seven counts. The juror testified that he was ill, that the tobacco smoke of the jury room made him sick, and that he agreed to a verdict in order to get out of the jury room. The juror did not make known to the court the fact that he was ill. He was privileged to do so. If he chose to remain in the jury room and deliberate concerning the verdict the defendant has no cause for complaint.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the board of county commissioners of Douglas county from a judgment rendered in the district court of that county for damages done to real property belonging to appellee by the widening and deepening of a drainage ditch for the purpose of draining a county and state highway. One acre of the eighty-acre tract of the appellee was used in the widening of the ditch and in the placing of the dirt from the excavation under the provisions of R. S. 68-115. The verdict and. judgment was for $700 shown by the special answers of the jury to consist of the following items:
“Value of one acre land rendered useless................... $215
Value of wheat lost...................................... 35
Damage to entire 80-acre farm........................... 450
Total .................................................$700”
The case had been brought to the district court by the landowner upon appeal from the award made in her favor by the board of county commissioners.
The appellant here complains of erroneous instructions of the court, the overruling of the motion for new trial and the refusal of the court to reduce the judgment in accordance with the evidence. The first instruction alleged to be erroneous is in the nature of a preliminary one, and is as follows:
“There isn’t any question in this action at all but what the plaintiff, Agnes Laptad, is entitled to recover something against the county. How much is a matter that must be left to your good judgment . . .”
Appellant urges that there was evidence tending to show special benefits accruing to the plaintiff’s land from the widening and deepening of this drainage ditch; that one of the questions to be determined in the case was whether or not the plaintiff was entitled to recover anything, and if anything, then how much? The court instructed the jury as to taking into consideration the special benefits in determining the amount of damages, and correctly told the jury that such special benefits might be used in reducing the amount of plaintiff’s damage. We think of such benefits only as proper to reduce plaintiff’s damages, although they might in some case reduce it to a minimum or entirely exhaust it. Such could hardly be properly urged in this case, where the appellant board made the original award in favor of the landowner, thereby virtually admitting and confessing the right of the landowner to some damages at least. The record shows some evidence of special benefit to the land of the appellee, not such, however, as to persuade this reviewing court that the jury or trial court could have done otherwise than to find that the landowner was entitled to recover some damages, especially in face of the fact that the appellant board had so found and had previously awarded appellee substantial damages. It was held in Briggs v. Comm’rs of Labette Co., 39 Kan. 90, 17 Pac. 331, that the only question in such a case “is the amount of damages the appellant is entitled to.”
“Where the single question for the jury is the amount the landowner is entitled to recover for his land taken for a public road, and the court instructs that the damages, less the benefits, should be the verdict, but does not in terms state that if the benefits exceed or equal the damages, the verdict should be in favor of the county, held, no ground for setting aside a verdict in favor of the landowner of $748, especially when no instruction was asked by the county in respect thereto, and when upon the testimony the jury could not fairly have done otherwise than find that the landowner was entitled to recover.” (Comm’rs of Lyon Co. v. Kiser, 26 Kan. 279, syl. ¶ 2.)
It is urged by appellant that the instructions of the court permitted and directed the jury to first find the value of the one acre of land used and then find the difference in the value of the entire tract of land before and after the widening of the ditch, which difference it is claimed would include the value of the one acre taken, thereby directing the jury to include the value of that one acre a second time in its verdict. The logic of the appellant is sound, but we have difficulty in so construing the language used in the instructions, although a reference in the instructions to the remainder of the farm instead of the farm as a whole would have avoided the confusion of which the appellant complains.
In the case of McKnight v. Wichita, 83 Kan. 7, 109 Pac. 994, which was an appeal from a judgment against a city for damages for constructing a drainage ditch, the measure of damages was stated to be as follows:
“The proper basis for damages was the value of the portion of the tract actually taken for the canal and right of way, and the difference in value of the remainder of the tract immediately before and after the appropriation of the land.” (p. 10. See, also, Smith v. Wyandotte County, 113 Kan. 244, 214 Pac. 104; Schaake v. Railway Co., 102 Kan. 470, 170 Pac. 804.)
A careful reading of the several instructions given by the trial court in the case at bar convinces us there could not well be any misunderstanding or confusion on the part of the jury as to these two distinct items of damage — first, the value of the one acre taken; and second, the difference in value of the farm immediately before and after the taking of the one acre — because the court lists and enumerates the several elements that might enter into the second valuation or computation so that when read together and connectedly we see no reason for concluding that they authorized or directed the inclusion of the value of the one acre in the second computation, or difference in value before and after the work was done. The following are the instructions on these two items of damage:
“In the first instance she would be entitled to recover the fair, reasonable market value of any land that may have been used for the purpose of putting the piles of dirt on that came out of this ditch. The best way of arriving at that would be to ascertain the number of acres of that land and multiply that by what a fair, reasonable amount of one acre would be, that is for the amount of land used for that purpose. . . .
“She claims that in addition to the damage that she sustained by reason of the taking of the land . . . that the value of her farm as a whole has been decreased and has depreciated by reason of what the county did there in putting in this ditch or enlarging the ditch.
“The measure of damages is the reasonable market value of the land as a whole immediately before this dirt was laid out on a portion of the land and immediately after. . . . You may, I think, take into consideration the productiveness of the land before and afterwards, any extra work that may be entailed by reason of the making of the improvement, any inconvenience that the person would be put to in the manner in which he operated his place. Take into consideration the manner in which the farm would drain, whether or not it was as easy to get the water off of it as it was before this ditch was put in.
“I appreciate that possibly even before this ditch was there it required a little bit of work after a rain of any considerable extent to keep the little ditches open that went into the main ditch. If it required any more work to do this now than it did before, that may be taken into your consideration in determining the value of the land before and after this work was done. . . .
“Whatever the amount is, it should be compensatory only; that is, a fair, reasonable allowance, just as the statute says, for the damage that she may have sustained in connection with the enterprise.”
It is further contended that the court erred in overruling the motion of appellant for a new trial because the verdict is excessive and contrary to the law and the evidence, and that the court should have reduced the judgment in accordance with the evidence, all of which is a presentation from a different angle of the same question of the general verdict containing the value of the one acre a second time. Appellant insists that the general verdict should therefore be reduced by $215, the value of the land taken. The reasons given above for upholding the verdict, with reference to the instructions given, will apply here, as we do not have any good reason for thinking the jury duplicated the value of the one acre in the general verdict.
■ We find no substantial error in the proceedings and no grounds for reversal.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Charles W. Johnson, as receiver of the Ross-ville State Bank, which was closed on August 18, 1927, brought an action against the Peoples National Bank of Kansas City to recover the balance of a deposit, $4,879.23, standing to the credit of the insolvent bank at the time of its failure. The existence of the deposit was not controverted by the defendant, but it was charged off against an indebtedness of the Rossville State Bank of $8,000 to the defendant, for which it held the note of I. B. Alter, cashier of the Rossville State Bank, and other collateral. The trial resulted in a judgment for defendant.
The main question tried out was whether the deposit and the transaction incident to it, based as they were upon a note of I. B. Alter, was a bank transaction or a personal one with Alter. The trial court, upon quite a volume of conflicting testimony, decided that the deposit was a bank, and not an individual, transaction, holding that when the Rossville State Bank failed it was indebted to the defendant bank on account of the note of Alter, and that defendant had a right to set off its claim under the Alter note against the apparent credit on its books in favor of th'e Rossville State Bank. In his appeal plaintiff insists that the main question for determination is whether the evidence supports the finding of the court that the loan of $10,000 made by the defendant bank, September 8, 1923, upon the secured note of Alter, which was renewed from time to time, was a liability of the Rossville State Bank. There was evidence tending to show that Alter was the owner and manager of the Rossville State Bank, that it was what is commonly spoken of as a “one man bank.” He was a stockholder, also, in two other neighboring banks in the towns of Silver Lake and Delia. In the year 1923 negotiations between Alter and the defendant bank were begun relating to the opening of an account with the latter several weeks before the transaction in question was completed. At that time Alter said his bank needed money because of certain withdrawals from it, and that he wanted an accommodation for his bank from defendant. After a number of interviews and some correspondence Alter sent a letter, with a note signed by himself for $10,000 secured by collateral, that is, stock of the Rossville State Bank, Silver Lake and Delia banks. The letter, so far as pertinent, reads:
“Dear Mr. Sandeil: As per our conversation, I herewith hand you my 90-day note with bank stock for collateral for $10,000. Please place the proceeds to credit of Rossville State Bank. I am inclosing signature cards for Rossville and Silver Lake banks, and will transfer some funds for credit of Silver Lake in a few days. The county has drawn on us for $15,000, in the past six weeks and so may need to check out some of this deposit for a short time,” etc.
In an interview Alter had told the officers of the defendant bank that there had been withdrawals from Rossville State Bank, and they were down somewhat and wanted to know if the National Bank would grant the bank an accommodation. Thus it appears that Alter treated the note not as an individual deposit, but one to be placed to the credit of the bank, and used to meet the demands of the county which had placed funds in the Rossville State Bank. The letter embodied the understanding which the parties had arrived at in opening an account which ran along for a number of years until the Rossville State Bank was closed. The defendant bank accepted the note and securities and entered the amount, less discount, to the credit of the Rossville State Bank and charged the note on its liability ledger to Alter. The court found, upon what appears to be sufficient evidence, that the Rossville State Bank drew upon this account and deposited other moneys and sometimes the account was greatly reduced and sometimes overdrawn. The note was never entirely paid when it became due, and was renewed for smaller amounts from time to time and the interest on it was paid by Alter, by personal checks drawn against the Rossville State Bank. There was testimony, too, that a year or two after the credit was given to the Rossville State Bank, Alter, in conversation with officers of the defendant, referred to the note as a bank obligation and stated that the bank was expecting soon to get money from certain sources, when it would pay the note and keep a better account with the defendant than it had before. In the course of the dealings the note was sometimes spoken of as the Alter note and the transaction as one with Alter, but this may be accounted for in part that Alter’s bank was a one-man concern. It appears that the first step in the transaction was an extension of credit to the bank, and was made for its benefit. The proceeds of the loan were largely drawn out by the bank, and one test of liability in such cases is, which party got the benefit of the loan, or in some circumstances whether the bank had ratified the loan as its own. (Cherry v. City Nat. Bank, 144 Fed. 587, affirmed by the supreme-court of the United States, in Rankin v. City National Bank, 208 U. S. 541.) The case of Bank v. Bank, 96 Kan. 558, 152 Pac. 769, and the opinion therein denying a rehearing of the case (97 Kan. 8, 154 Pac. 240) has a bearing on the present case. There one bank loaned another bank $3,500. The cashier of the borrowing bank gave a note to the lending bank in his individual capacity upon grounds advantageous to the borrowing bank. The borrowing bank did not sign the obligation. The note, it was shown, was not taken by the lending bank as consideration for the loan, but as collateral security for it. It was held that as the loan was made by the lending bank to the borrowing one, which was known and understood to be the actual borrower, that it was liable to pay the indebtedness although its name did not appear upon the note. It was determined on the theory that the one receiving credit is the one responsible for the debt. Alter, it appears, committed suicide on August 18, 1927, and two days later the plaintiff was appointed receiver of the failed bank. At that time there was an apparent credit in the defendant bank in favor of the failed bank of $4,-879.23, while the defendant bank had a debit charge against the failed bank on the renewal note of'$8,000. The defendant bank then set off that debt against the apparent credit of the Rossville State Bank, and also sold the collateral held with the Alter note, the proceeds of which exceeded the amount of the indebtedness to the extent of $879.23. This amount the defendant bank tendered to the plaintiff receiver, who refused to accept it, claiming the defendant had no right to set off the indebtedness on the note against the credit of the failed bank. Upon the testimony this question was essentially one of fact and while some circumstances and bits of evidence are shown which afforded grounds for contention, the court upon the whole testimony found:
“That the loan of $10,000 made on the personal note of I. B. Alter, was made to him for and on behalf of the Rossville State Bank; that the Rossville State Bank received the proceeds arising from such note, and the renewals thereof, and that it was at all times the understanding and intention of the officers of the Peoples National Bank, and said I. B. Alter, that said transaction of I. B. Alter was a transaction in behalf of the Rossville State Bank.”
Upon the questions of fact involved it must be held that there was evidence to support the conclusions of the trial court.
There is a further contention that defendant is estopped to claim that the Alter note was a bank liability, by its conduct in making reports to the bank commissioner, which it is argued were inconsistent with such a liability. No mention of an estoppel was made in the petition, but in the reply of plaintiff it was alleged that on May 17, 1927, the defendant bank, in answer to questions submitted by the bank commissioner, reported that it did not have under discount any bills receivable of the bank named (none was named) or any on -which its official indorsement appeared or for which it was in any other way liable. To a question, were there any loans outstanding by your bank to the bank named (none was named), or any other party for which the bank was in any way liable,- the answer was, none. Another question was, had your bank at said date effected any loans for account of the bank named (and none was named), and the answer was, none; and to the question, had your bank purchased any bills receivable from the bank named (none named) indorsed without recourse, but guaranteed by the directors or other officers of the bank on which the bank is not liable, answered, none. This report was signed by A. L. Wilson, assistant cashier. Although other reports and acts are discussed, this is the only report or basis pleaded as a ground of estoppel. To be available as estoppel, it is settled that acts, representations and conduct relied on as an estoppel must be specially pleaded. (Insurance Co. v. Johnson, 47 Kan. 1, 27 Pac. 100; Palmer v. Blodgett, 60 Kan. 712, 57 Pac. 947; Langston v. Hoyt, 108 Kan. 245, 194 Pac. 654.) The making of reports to the bank commissioners on questions as to resources and liabilities of a bank is an important requirement, and failure to truthfully make them is a dereliction which is penalized by the law. The question whether acts or omissions constitute an estoppel in litigation between parties depends upon a number of considerations, one of which is that the party invoking the estoppel must have relied on and have suffered injury by the acts of which he complains. No question is raised as to the financial soundness of the defendant bank which made the report, nor is it claimed that any of its own liabilities were not reported. It might and should have revealed the obligation of the Rossville State Bank to defendant bank, but the record does not show that anyone was misled or prejudiced by the character of the report. No evidence is seen that the bank commissioner relied on the information in the report or that he or anyone else was injured by the omission in the report of the Rossville State Bank obligation. That is essential to the application of the rule of estoppel even where other elements of estoppel exist. In Dent v. Smith, 76 Kan. 381, 92 Pac. 307, it was decided:
“Before the acts of one person can be successfully invoked as an estoppel by another, such other must have relied upon and been prejudiced by the acts of which he complains.”
See, also, Brooks v. Weik, 114 Kan. 402, 219 Pac. 528; Jacquart v. Jennings, 118 Kan. 224, 235 Pac. 101; Midwest Lumber Co. v. Brinkmeyer, 125 Kan. 299, 264 Pac. 17; Robertson v. Andrus, 125 Kan. 730, 266 Pac. 53. It has been said:
“In order to create an estoppel in pais the party pleading it must have been misled to his injury; that is, he must have suffered a loss of a substantial character or have been induced to alter his position for the worse in some material respect. As otherwise expressed, where no available right is parted with and no injury suffered there can be no estoppel in. pais. And a fortiori, an act clearly beneficial to the person setting up the estoppel cannot be relied on. In the absence of injury, it is of course immaterial that the other elements of estoppel are present.” (21 C. J. 1135.)
A further contention is made that the claim of defendant became barred in three years after the loan was made in 1923, under R. S. 60-306 (2d clause). The account, as we have seen, was opened in 1923, but the note was only a part of that account. It was a mutual running account and continued until the closing of the bank, and there is no room or ground for the application of the statute of limitations.
Some objections are raised to rulings in the admission of testimony, which we have examined, but we find nothing substantial in them. The judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff obtained judgment for a freight overcharge on a carload of beans shipped from Fort Morgan, Colo., to Safford, Ariz., and the defendant appeals.
The evidence consisted largely of an agreed statement of facts, as follows:
“It is hereby stipulated and agreed by and between the plaintiff, and defendant in the above-entitled cause, by and through their respective attorneys, that the following facts are true and that the proof thereof other than by this stipulation is hereby waived:
“1. That the plaintiff is a corporation duly organized and existing under and by virtue of law and engaged in the business of buying, selling, shipping and dealing in dried beans, with a principal place of business in Fort Morgan, Colo.
“2. That the defendant is a corporation duly organized and existing under and by virtue of law and engaged in the business of maintaining and operating a railway system as a common 'carrier for hire, with lines in the state of Colorado and elsewhere and connecting with other common carriers.
“3. That on the 27th day of November, 1925, the plaintiff was the owner and holder of a paid freight bill on 48,500 pounds of dried beans, which had, prior to said date, arrived in Fort Morgan, Colo., having originated at Atwood, Colo., upon which the correct proportional rate of 24 cents per cwt. had been paid; and, that the plaintiff also was the owner and holder of a paid freight bill on 9,560 pounds of dried beans which had prior to said date arrived in Fort Morgan, Coloi, having originated at Buckingham, Colo., upon which the correct proportional rate of 41%^ per cwt. had been paid.
“4. That on the 27th day of November, 1925, the plaintiff in the usual course of business loaded into car 230441 N. Y. C. on the tracks of the defendant at Fort Morgan, Colo., 60,450 pounds of dried beans, the property of the plaintiff, for transportation and delivery to the order of the plaintiff at Safford, Ariz.; that thereupon defendant accepted said shipment as a common carrier for hire and as evidence of its acceptance of said shipment and of its contract to transport and deliver the same, issued to plaintiff, its order bill of lading therefor, and, that plaintiff surrendered its paid freight bills on the said shipments from Atwood and Buckingham, Colo., described aforesaid.
“5. That thereafter the defendant and its connecting earners transported and delivered said shipment to Safford, Ariz., where, upon the surrender of the bill of lading issued aforesaid, delivery of the said shipment was made to the order of the plaintiff.
“6. That the defendant has charged and collected of the plaintiff, the total sum of $773.23 as charges upon said shipment, $680.33 thereof being prepaid by plaintiff, and the balance of $92.90 being paid by plaintiff upon the demand of the defendant on April 2, 1929.
“7. That the above charges Were based and computed on the rates provided for in the lawfully published tariffs on file with the interstate . commerce commission at the time, being T. C. F. B. Tariff 1-X, Countiss I. C. C. 1147, item 6230, page 549, and note 25, page 154, in connection with item 4005, page 448, and rule 8, notes 1 and 2, page 182, which provided for a rate upon the transit tonnage of said shipment, being 48,500 pounds from Atwood, Colo., and 9,560 pounds from Buckingham, Colo., of $1.44 per cwt. to Bowie, Ariz., plus $0.07 arbitrary rate from Bowie to Safford, Ariz., plus $0,035 per cwt. transit charge as provided by item 1005, G. F. O. 3457L, I. C. C. 16409; and, that on the nontransit tonnage of said shipment, being 2,390 pounds from Fort Morgan, Colo., to Bowie, Ariz., said T. C. F. B. Tariff 1-X, Countiss I. C. C. 1147, item 1540, page 306, and note 25, page 130, provided for a rate of $1.28 per cwt., plus $0.07 per cwt. arbitrary rate from Bowie to Safford, Ariz., as aforesaid.
“8. That the lawfully published tariffs on file at the time with the interstate commerce commission, being T. C. F. B. Tariff 1-X, item 6665, at page 565, provided for a rate on a shipment of dried beans of $1.05 per cwt. from Cheyenne, Wyo., to Phoenix, Ariz., and a $0.07 per cwt. arbitrary rate from Bowie, Ariz., to Safford, Ariz., as aforesaid.
“9. That on or about the 6th day of April, 1928, the plaintiff made and filed its claim in writing with the defendant for an overcharge upon the said shipment.
“10. That the stations of Atwood, Buckingham and Fort Morgan, in the state of Colorado, and Phoénix, in the state of Arizona, are all stations upon the line of the defendant and its connecting carriers, on the same line or route and in the same direction, and that said distance is a shorter distance than the distance between Cheyenne, Wyo., through Bowie to Phoenix, Ariz., and said shorter distance is included in the longer distance from Cheyenne, Wyo., to Phoenix, Ariz., and in the same direction on the same line or route.
“11. That plaintiff’s .alleged cause of action, if any, is based upon an alleged violation of the laws and statutes of the United States and more specifically of the section designated as section 4 of the interstate commerce act, which said section provides, in substance* that it shall be unlawful for any common earner to charge or receive any greater compensation for the transportation of goods for a shorter haul than for a longer distance over the same line or route in the same direction, the shorter distance being included within the longer distance.
“12. That either party may introduce in evidence, without further identification or certification, such tariffs and regulations in relation to the question of the charges applicable to the shipment in controversy, subject however, to objections on the grounds of immateriality and irrelevancy; and, further, •that either party may offer any other and further testimony or proof on their behalf, but the rights of the respective parties to timely object thereto, is hereby reserved.”
Some additional evidence was introduced.
The court made findings of fact as follows:
“1. The shipment of dried beans in controversy in this action originated at the towns of Buckingham and Atwood and Fort Morgan, in the state of Colorado, and moved to Salford, in the state of Arizona, the defendant being the initial carrier.
“2. Transcontinental Freight Bureau Westbound Tariff No. 1-X, in which the defendant was a participating carrier, governs this shipment and determines the proper freight charge to be made and collected for the shipment.
“3. Under this tariff the proper freight rate to have been charged on this shipment on the 27th day of November, 1927, when the shipment moved, was $54129.
“4. The defendant charged and collected on the 27th day of November, 1927, the sum of $680.33. This was an overcharge of $156.07.
“5. On April 2, 1928, the defendant charged and collected an additional sum of $92.90 as freight upon this shipment. This was an additional overcharge of $92.90.”
The court reached the following conclusion of law:
“The plaintiff should recover of the defendant the sum of $231.94 with interest at the rate of 6 per cent per annum on $156.07 from the 27th day of November, 1927, and on $92.90 from the 2d day of April, 1928, or a total sum of $274.35.”
The defendant contends that there was no overcharge on freight charged the plaintiff, and that there was no violation of section 4 of the interstate commerce act. Section 4 of the interstate commerce act (U. S. C. A., title 49, § 4), so far as material, reads:
“It shall be unlawful for any common carrier subject to the provisions of this chapter to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance . . .”
According to paragraphs 7 and 8 of the agreed statement of facts, the defendant did charge the plaintiff more than the tariff authorized in violation of the quoted provisions of section 4 of the interstate commerce act.
The defendant argues that the plaintiff did not prove any special damage on account of the overcharge. The action is not one to recover damages on account of the overcharge, but is one to recover the overcharge. For that reason it was not necessary to prove special damages. All that was necessary to prove was that there had been an overcharge. The plaintiff was entitled to recover the amount of the overcharge without any proof of damage other than the overcharge itself.
The defendant argues that the district court had no jurisdiction to try the action. In Thomas v. Chicago, B. & Q. Rld. Co., 127 Kan. 326, 273 Pac. 451, this court said:
“A state court has jurisdiction of an action for damages against a railway carrier for the exaction of a rate in excess of its own official schedules, where the reasonableness of the scheduled freight rate is not assailed and where no question affecting the power or administrative policy of the interstate commerce commission is involved.” (Syl. ¶ 4.)
In Kellogg Huff Grain Co. v. Chicago, R. I. & P. Rly. Co., 127 Kan. 577, 274 Pac. 272, this court adhered to that rule and declared that—
“The allegations of plaintiff’s petition in an action to recover damages for an alleged overcharge for the shipment of a carload of grain, in excess of the defendant carrier’s own official tariff and rules concerning credit to be given for paid freight bills to a primary market on grain reconsigned to points beyond such primary market, considered and held that the district court had jurisdiction of the cause and its order dismissing the action was erroneous.” (Syl.)
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This appeal is taken by plaintiff from an adverse verdict and judgment in an action by him to recover a commission on a sale of real estate in Clark county.
Appellant urges in his brief three points of error in particular, as follows:
I. “Error in not directing a verdict for plaintiff. Verdict not sustained by sufficient evidence and contrary thereto.”
2. “Error in giving instruction No. 4 of the general charge and refusing the special instructions requested by plaintiff.”
3. “Payment of commission was not dependent on defendant getting the initial payment at bank.”
The testimony is confusing as to the terms used in the oral, contract between the parties as to whether the purchaser was to pay the fifty cents per acre commission if he bought the land or if he took the land. Both parties used both expressions in their testimony in a measure as if they were synonymous, whereas a wide distinction is made in them when applied to the making of a written contract of purchase and later failure to conclude the purchase. This was a proper matter for the jury, and we shall need to consider it only in connection with the instructions.
The evidence shows that the plaintiff was the attorney, of the defendant and wrote him suggesting that he become interested in the Simmons ranch of 2,480 acres that could be purchased for $15 per acre. The defendant replied and soon thereafter came to Clark county to see the land, first going to the office of his attorney, the plaintiff, where the commission of fifty cents per acre was agreed upon orally. They then went to the ranch, examined it carefully and in detail, and then went to see the owner, Mr. Simmons. The plaintiff proposed that he talk with him first while defendant wait outside. The result was the owner agreed to reduce the price by $2,200, making it even $35,000. Plaintiff then had him meet the defendant and stated to defendant that the owner had agreed to accept $35,000. The defendant then stated to the owner in the hearing of plaintiff the terras to which he would agree, namely, $1,000 to be placed in a bank until titles were approved, then the balance of above mortgage to be paid in cash. The owner accompanied them to town and plaintiff wrote a contract for the sale and purchase of the ranch containing the following two separate provisions as to payments:
“One thousand dollars cash to be paid by second party to first party at the execution of this contract, the receipt of which the said second party hereby acknowledges; . . .
“With the execution of this contract second party deposits in the Stock-growers National Bank, Ashland, Kan., $10,000, to be held in escrow until the abstracts showing title in first party are sufficient and approved.”
Otherwise the contract provided for the payment of the balance after titles were examined and an assumption of the existing mortgage and deposit of deed in bank in escrow.
The defendant seriously objected to these terms and considerable evidence is given in connection therewith. The evidence differs here not as to the objections of the defendant, but as to when they were made, whether before or after plaintiff had written the contract, and whether the contract as written was signed before or after the unsuccessful efforts had been made to procure the money from the local bank or from Frank Goebel, .as suggested by the plaintiff. Defendant says he signed the contract upon the statement of the plaintiff that arrangement could be made at the local bank for the money for a few days, and if not it could be obtained from Frank Goebel, of Kansas City; but the local bank declined, and they were unable to communicate with Mr. Goebel by telephone, and plaintiff left the papers at the bank when they went upstairs to telephone Mr. Goebel. Plaintiff says that defendant signed the contract after these interviews had been unsuccessful, defendant telling plaintiff to leave the papers at the bank and that “he would bring up a check in the morning.” Nothing further was done in the matter and about a week later the plaintiff wrote defendant, sending him the original contract and telling him of the immediate sale of the ranch to another within thirty minutes after this deal was called off.
It will be readily recognized that with these serious conflicts in the testimony as to SO' many vital points in the case and with a verdict for defendant having received the approval of the trial court, there is nothing left .for a court of review to do as to such matters except to see if there is sufficient evidence in those particulars to support the verdict.
There were only two witnesses — the plaintiff and defendant. There was sufficient evidence to support a verdict for either one of them. The statements of each were very positive, full and complete. To go further in this matter would be to invade the realm of the jury. In this connection it is urged that the evidence of the defendant was incompetent because the only answer was an unverified general denial, that the evidence was not controverted on any issuable fact, and no affirmative defense was pleaded. We note that the petition alleged that the plaintiff did on a certain date secure a sale of said real estate to the defendant for a certain sum, which was accepted by said defendant. It appears to us that the general denial of that allegation fairly puts in issue all the matters on which conflicting testimony was introduced. It certainly puts in issue whether a sale was made and the terms thereof agreed to and accepted by the defendant.
Appellant insists that there was error in giving the fourth instruction and in not giving certain instructions requested by appellant. The fourth instruction was as follows:
“4. The defendant admits that he employed plaintiff to act as his agent to effect for him the purchase of the Simmons ranch, but claims that the contract between himself and plaintiff was that he should pay plaintiff a commission of fifty cents per acre in case he actually took the land, and that he did not take the land because the owner was not ready and willing to sell according to the terms proposed by him.
“In this case if you find the contract between plaintiff and defendant to be as claimed by the defendant; that is, that no commission was to be paid unless defendant actually took the land, and if you further find that the defendant did not take the land because plaintiff had not secured an owner ready and willing to sell on terms satisfactory to the defendant, then your verdict should be for the defendant.”
The instruction preceding this one gave to the jury the theory of the plaintiff, and it was proper to fully inform the jury of the theory on each side. Two of the main objections to the instruction are the references of the court to taking the land, instead of buying the land, and the reference to the sale being “on terms satisfactory to the defendant.” Reference has already been made to the conflict and confusion in the testimony as to buying or taking the land and this is further emphasized by the effort to make the contract, as written, complete in itself and binding upon all parties. It is argued that the latter clause would readily give the defendant the privilege of changing his mind after making the contract. The force and effect of that written contract is the vital question involved in this appeal. Appellant insists that it speaks for itself, is complete in itself, showing a full and complete agreement to the sale and the terms of the sale, and is an enforceable contract not subject to any conditions as to its execution or delivery, and that its terms cannot be contradicted, varied or altered by parol evidence, especially when there are no allegations of fraud or mistake. These are sound principles and they have been fortified by numerous authorities in the exhaustive brief of the appellant, but there is a wide distinction between an attempt to contradict the terms of a written instrument and to explain the circumstances and conditions under which it was executed and delivered. It has regularly been held that where a contract is incomplete or silent in any particular, parol evidence is admissible to show the actual agreement between parties and this is not limited to cases where there is ambiguity. (Royer v. Silo Co., 92 Kan. 333, 140 Pac. 872; Kanzius v. Jenkins, 98 Kan. 94, 97, 157 Pac. 417; Handrub v. Griffin, 127 Kan. 732, 275 Pac. 196.)
“Parties to a contract know best what was meant by its terms, and are the least liable to be mistaken as to its intention, and, where the contract is silent or ambiguous concerning a vital point incident thereto, parol evidence will be received to aid in its construction.” (Berg v. Scully, 120 Kan. 637, syl. ¶ 2, 245 Pac. 119.)
This contract was not only silent as to the condition of being able to get the money at the local bank or from Mr. Goebel, but it was incomplete and inaccurate to an extent that neither party might wish to be bound thereby. It recited that the purchaser had paid $1,000 cash and the owner acknowledged receipt therefor, when no money had in fact been paid. When it was signed it was not complete because something remained to be done — not only the payment of the money for which the receipt had been given, but according to the theory of the defendant accepted by the jury on conflicting testimony, the fulfillment of the condition of getting the money from the local bank or from Mr. Goebel.
“A contract relation between the parties was not established so long as something remained to be done to perfect an enforceable contract. When the parties bargaining intend that a memorandum shall not be binding, while an essential thing remains to be done to close the transaction, it cannot be regarded as a complete contract until that thing is done.” (Weinhold v. Weinhold, 115 Kan. 395, 398, 223 Pac. 297.)
“A contract is not made so long as, in the contemplation of both parties thereto, something remains to be done to establish contract relations. The law does not make a contract when the parties intend none; nor does it regard an arrangement as completed which the parties thereto regard as incomplete.” (6 R. C. L. 616.)
“A conditional contract is an executory contract, the performance of which depends on a condition. It is not simply an executory contract, since the latter may be an absolute agreement to do, or not to do, something, but it is a contract whose very existence and performance depend on a contingency and condition.” (13 C. J. 246. See, also, Shields v. Johnson, 124 Kan. 155, 257 Pac. 926; MacLorinan v. Finley, 124 Kan. 637, 261 Pac. 587.)
In Morris v. Francis, 75 Kan. 580, 89 Pac. 901, it was said in a case involving the right of a real-estate agent to recover a commission when, as in this case, the owner offered to take less than the announced price that—
“If, however, the lower price offered by the prospective purchaser was not accepted, and a, sale was not consummated, no commission was earned. In such a case the broker has not performed his agreement to find a purchaser until he produces one who in fact becomes a purchaser.” (p. 581.)
The court in giving the fourth instruction did not regard the written contract as complete in itself and unconditional, nor as having been delivered with full purpose to be binding upon the parties thereto, as urged by the plaintiff, but framed it in harmony with the above and other authorities. The evidence of the defendant, if accepted, showed no delivery of the contract except conditional, and therefore the court was fully within the evidence to refer to the making of the sale “on terms satisfactory to the defendant.”
“A written contract, whether under seal or not, may, by parol, be proved to have been delivered to the obligee upon a parol condition that it was not to become binding until the happening of a future event, and may be avoided upon the further proof that such event has not occurred, especially if the contract is one not required to be under seal.” (6 R. C. L. 643.)
“Evidence of a parol agreement is admissible to prove that a written contract for the sale and exchange of property, signed and deposited in a bank, should not take effect until one of the parties has had an opportunity for five days to test the truthfulness of representations made concerning the property of the other to be exchanged, when such oral agreement does not contradict any stipulation in the writing.” (Stroupe v. Hewitt, 90 Kan. 200, syl. ¶ 2, 133 Pac. 562.)
In the opinion in the last case above cited it was said:
“The contract, as before stated, was deposited in a bank and the conditions of the deposit were not stated in the writing. A contract cannot be varied until there is a contract, and there is none until it takes effect. Evidence that a writing purporting to be an agreement is not to take effect until the happening of some event or the ascertainment of some fact may be received, not to contradict the writing, but to show when it took effect, or that it never took effect.” (p. 203.)
It is claimed by appellant that at least three of the instructions requested by him should have been given. They were to the effect that the written contract bound the defendant and fixed the rights of the plaintiff, and that the refusal of the defendant to carry out the terms of the contract would not release him from his obligation to the plaintiff. We think they were subject to a modification to fit the facts and circumstances of the case, and there was no error in refusing to give them, as requested, nor to give the peremptory instruction requested.
It is argued that plaintiff had a right to recover his commission even if the written contract is wholly ignored, and independent of that contract. We see nothing wrong with that contention, and think that privilege is included in the third instruction given to the jury where the plaintiff’s rights áre not restricted to the written contract.
Error is assigned in the reference to the plaintiff by defendant’s counsel,.as the trusted attorney of the defendant, and in the introduction of the letter sent by plaintiff to defendant after the close of these negotiations, and the testimony of a subsequent conversation between plaintiff and defendant about the payment of the commission, because they tended to prejudice the jury. The first should be no reflection upon anyone, either in his business or professional engagements, and the latter two concerned the question of the obligation of the defendant, and while any such matters might be used to prejudice a jury, it is not at all apparent that any such result followed.
Appellant asserts that payment of commission was not dependent on defendant getting the initial payment at the bank. It would not seem so, but it was dependent upon the defendant buying or taking the land, and this condition seemed to have something to do with the defendant buying or taking the land. The case of Orr v. Meng, 126 Kan. 723, 271 Pac. 292, and numerous other cases are cited to the effect that one cannot avoid the obligation of commission by subsequently changing his mind or attempting to avoid a valid and binding contract of sale and purchase, but we have not been able to recognize the written document in this case as such a contract.
We find no error in the giving or refusing to give instructions, nor in the introduction of evidence, nor in overruling the demurrer to plaintiff’s evidence and the motion for new trial.
The judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents a question of law under the workmen’s compensation act.
On January 19, 1929, the appellant, J. C. Murphy, was employed as a laborer about a cement mixer operated by the W. O. Cook Construction Company in Topeka. A gust of wind blew some cement into his eyes which ruined the sight of the right eye within a few hours. Murphy was taken to the hospital, where the eye was removed. On February 23, 1929, Murphy filed with the compensation commission his application for compensation. The facts of his employment, his injury, his average current wages, and other per tinent details were amicably stipulated by Murphy and his employer and by the insurance carrier. One paragraph of the stipulation recited:
“1. That J. C. Murphy while employed by W. O. Cook Construction Co. at Topeka, Kansas, on January 19, 1929, while dumping cement into a cement mixer throughout the day above mentioned got some of the cement in his right eye, by either having the cement dust blown into the eye or from a splash of the cement and otherwise injuring the eye of the claimant.”
On February 25, 1929, an award of compensation was made by the commission in conformity with the statutory schedule for specific injuries, calculated thus:
Sixty per cent of Murphy’s average weekly wages, or $11.52 per week for 110 weeks, total $1,130.48.
A further award of hospital charges, $33.40, and for the doctor’s bill was made in favor of Murphy and against his employer and the insurance carrier.
On May 25, 1929, Murphy filed with the commission an application for compensation in which he reiterated the facts touching his accident and injury on January 19, 1929, but adding that some of the cement had been blown into both his eyes; that he lost the sight of his right eye and that it was removed and a glass eye inserted in its stead; and that afterwards, on March 4, 1929, the doctor employed by the defendant insurance carrier notified him that he was ready to resume his employment and that his left eye would be strong and that he would be able to perform the ordinary duties of a laboring man, and that he, Murphy, relied thereon—
“But applicant states that his left eye was not at said time in such condition as to permit him to perform the duties of a laborer, and that since said time his said left eye has been growing constantly worse as a result of said injuries, and that at this time this applicant is and has ever since said injuries been wholly unable to work, and has lost employment on account of not being able to see to work. That his left eye is so reduced in power as to render him unable to see sufficiently to get around without difficulty, and he will never again be able to see therewith sufficiently to do the work of a laboring man. That he is therefore entitled, in addition to the compensation which he has received, to an additional sum equal to that allowed for total disability under the statute of Kansas.”
On May 27, 1929, the commission disposed of the foregoing application thus:
“Now on this 27th day of May, 1929, application having been filed herein to determine compensation with reference to an accidental injury met with on January 19, 1929;
“And whereas, on February 25, 1929, findings of fact were made with reference to said accidental injury, and there was a determination as to compensation and award was made based upon the facts as found, said award having been made by John H. Crawford, the then commissioner of workmen’s compensation, and filed February 25, 1929,
“Now, therefore, the commissioner does on his own motion deny the application made herein.”
Appellant gave notice of appeal to the district court, and certified copies of the pertinent files of the compensation commission were filed therewith.
On June 10, 1929, Murphy filed a motion that the court determine certain questions of law; and on June 22, 1929, the defendants moved to dismiss for lack of jurisdiction. On September 14, 1929, the latter motion was sustained, the cause dismissed.
Hence this appeal.
The propriety of the judgment of the district court will readily be seen by noting that the accident and injury occurred on January 19, 1929; and the present application for compensation for whatever the appellant may choose to call it — total disability, loss of the left eye, or whatnot — was made on May 25, 1929. This was four months and six days after the accident. The statute is explicit that proceedings for compensation shall not be maintainable unless a claim for compensation has been made within three months after the accident. (R. S. 44-520; Long v. Watts, 129 Kan. 489, 283 Pac. 654.) It is true, of course, that the statute contemplates the possibility that where a claim has been timely made and an award made thereon, such an award may afterwards be raised or lowered before final payment is made if subsequent developments justify it. (R. S. 44-528; Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056; De Millsap v. Century Zinc Co., 123 Kan. 570, 573, 256 Pac. 136.)
If appellant had made a timely claim for compensation for injury to his left eye, and some award had been made therefor and not paid in full, it might very well be shown by lapse of time and subsequent developments that such award was insufficient and ought to be increased. But no such case is here. Moreover, in this case the award for the loss of the right eye and for which compensation had been timely demanded had been fully paid. Here the compensation commissioner was first informed on May 25, 1929, about the alleged accident and injury to the left eye. On that belated date, for the first time complainant made a claim for compensation for an injury sustained four months and six days before — if the application dated May 25, 1929, may be considered as the equivalent of the statutory claim, there being no other.
Under our repeated precedents it is clear that the district court’s judgment dismissing the appeal was correct. (Smith v. Process Co., 100 Kan. 40, 163 Pac. 645; Jacobs v. Coal Co., 105 Kan. 234, 182 Pac. 410; Long v. Watts, 129 Kan. 489, 283 Pac. 654.)
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case involves the validity of an application for hail insurance in connection with preliminary insurance only, where the name of the owner was signed to the application by the agent of the insurance company. The trial court ren dered judgment for the owner on the preliminary insurance clause contained in the application, and from such judgment the insurance company appeals.
The owner of one-fourth interest in 120 acres of growing wheat in Stanton county resided in Newton, Kan., and wrote his-attorney, R. J. Shetlar, of Johnson City, requesting him to take out $600, or $5 per acre, of hail insurance for him on his wheat. This he undertook to accomplish by asking J. B. Cockrum, agent for the insurance company, to write up the same, giving him the name and address of the owner and the description of the land on which the wheat was growing, and guaranteed the payment of the premium to the satisfaction of the agent.
Findings 7, 8 arid 9 of the trial court give the special provisions for preliminary insurance as contained in the application and show how the application was signed, and are as follows:
“7. Upon this conversation the application for hail insurance was written up and signed, at 4:30 p. m., June 25, 1928, ‘Earl Wright, by J. B. Cockrum, applicant,’ and also signed by J. B. Cockrum as agent for the company. Mr. Shetlar did not sign the application for his principal, Earl Wright, but did, by his transactions with Cockrum, authorize Cockrum, as a subagent for Wright, to sign the same.
“8. The application signed was on the printed form furnished by the defendant company to its agent, and contained the following provision: T, Earl Wright, of (post office) Newton, state of Kansas, hereby make application to the Providence Washington Insurance Company, of Providence, R. I., for insurance upon growing crops hereafter more specifically described, against loss or damage by hail only, to the amount of 8600 beginning twenty-four hours from the hour and date of the actual signing of this application by me and the agent of this company, unless otherwise herein provided.’ There were no other provisions altering this clause contained in the application.
“9. The application further provided: ‘It being understood and agreed that this insurance takes effect from the time provided herein for the commencement thereof, in accordance with the conditions hereof, and is held binding as a special agreement until twenty-four hours after the receipt of this application by this company at its policy-writing office, during which .time this company will either complete the contract by the issuance of a policy or reject the same by telegram or registered mail to the address given above, and all liability hereunder will immediately terminate when such rejection reaches the post office or the telegraph office at the above address.’ ”
The findings further show that the application and premium reached Topeka, the policy-writing office of the company, at 8 a. m., June 29, and it and others from the same county were that day rejected by the company because of severe hail losses in that locality, such rejection being sent by unregistered mail to 'the agent at Johnson City, which information was received by the agent on June 30, after the complete destruction of the wheat by hail at 9 p. m., on the 29th.
The failure of the owner or anyone in his behalf except the agent of the company to sign the application is discussed by the appellant under two headings: First, the name of appellee was not signed with any authority; second, the failure of the appellee to actually sign was not waived by appellant.
Under the first heading appellant insists that there was no evidence to support that part of finding No. 7 which states that the owner through his representative Shetlar authorized Cockrum as subagent for the owner to sign the application. Mr. Shetlar’s evidence on this subject was as follows:
“I received á letter that requested me to secure the insurance for him (Mr. Wright): I went down to the bank and told Mr. Cockrum what I wanted, and told him where Mr. Wright lived, and gave him the description of the land and told him that Mr. Wright would want to give a note and we would have to send that note to him to be signed, and that I would guarantee the return of the note properly signed.”.
The following was the evidence of Mr. Cockrum on this subject:
“Q. Now, on or about the 25th day of June, 1928, did you receive a request to write, or apply for hail insurance on the wheat belonging to Mr. Wright, being a one-fourth interest in the wheat growing on the northwest one-fourth of section 13, township 30, range 41, in Stanton county? A. Yes, sir.
“Q. From whom did you receive that request? A. R. J. Shetlar.
“Q. Did Mr. Shetlar at that time make arrangements with you about the payment of the premium? A. He did.
“Q. Did you, pursuant to that request, make out an application for insurance? A. I did.
“Q. You signed this, both on behalf of Mr. Wright and as agent for the company, did you? A. I did.”
This testimony shows that Mr. Wright, the owner, requested Mr. Shetlar to procure hail insurance for him on his wheat. He communicated this request with the necessary detailed information to Mr. Cockrum, the agent of the company, and thus turned the matter over to him to carry out Mr. Wright’s request, making provision for the signing of the premium note. Mr. Cockrum says he received the request “to write or apply for hail insurance” for Mr. Wright and pursuant to that request, through Mr. Shetlar, he made out the application and signed it on behalf of Mr. Wright. This appears even stronger than an implied request and authorization. It very closely approaches an express request. In this connection it is proper to observe that the matters of discretion and judgment on the part of the owner had all been exercised when he determined to insure for a definite amount and directed Mr. Shetlar to procure the insurance for him. Besides, the very fact of delegating authority to Shetlar to carry out his plans necessarily implied the right to request others to put such plan into operation, even to the extent of employing a subagent.
“Express authority to appoint subagents is not always necessary, as such authority is usually to be implied when the agency obviously and from its very nature is such as to "make the employment of subagents necessary and proper. In such cases the employment of subagents is presumed to have been contemplated when the power was given, and the agent has implied authority to appoint such subagents within the limits of the necessities of the case.” (2 C. J. 688.)
“Where an agent is employed to do acts which do not call for the exercise of judgment or discretion, or where he has exercised his discretion and determined upon the propriety of an act, he may delegate to a subagent the execution of merely mechanical, clerical, or ministerial acts involving no judgment or discretion; and the acts of such a subagent, to whom such power and authority have been delegated by the agent, are regarded as the acts of the agent himself, and are therefore as such binding on the principal.” (2 C. J. 689.)
Our attention is called by appellant to the well-recognized principle stated in 21 R. C. L. 860, that—
“It is a general rule that, in all cases of delegated authority, where personal trust or confidence is reposed in the agent, and especially where the exercise and application of the power is made subject to his judgment or discretion, the authority is purely personal, and cannot be delegated to another, unless there is a special power of substitution, either express or necessarily implied.”
As we have heretofore observed, the matter of judgment and discretion was exercised by the owner before he wrote to his attorney, and it is well understood in Kansas that all insurance companies authorized to transact such business in this state are required to charge the same rate and they are all under the supervision of the commissioner of insurance, and while there may be preferences of some above others in the minds of some, even that feature was waived by the owner when he made no such intimation with his request. Neither is there apparent in this request of the owner to his attorney any element of personal trust or confidence as is definitely mentioned in the authority cited.
Appellant urges the significance of the following clause in the application, “beginning twenty-four hours from the hour and date of the actual signing of this application by me and the agent of this company,” as indicating that the application must be actually signed by the owner himself. It can hardly be contended that no such application can be effectually signed except by the party himself, which might exclude partnerships, corporations and many others, but the apparent emphasis conveyed by the use of the word “actuálly” is with reference to the time or date the application is actually signed, instead of being actually signed “by me and the agent of the company.”
Under this heading appellant urges there was no ratification by the owner or his representative before the loss, and the findings of fact do not specify the exact day or hour when Shetlar sent the note for the owner’s signature, and we shall therefore pass that matter and consider the second ground urged by appellant that the actual signing of the application was not waived by the appellant. 1 Cooley on Insurance (2d ed., p. 566) is cited as to the rule for waiving the -signing by the applicant where such is shown to be the custom and usage of the company, but without any such allegations or proof in this case the rule could not apply. We accept this as good logic, but it does not seem to cover the whole territory of waiver by the appellant. It does as far as a general custom of the company is concerned. Here we have a form of application which provides for preliminary insurance, which automatically becomes a temporary insurance policy twenty-four hours after it is signed. The company itself prepared the application in this form and sent it to its local agent, who, by his own signature on behalf of the company, can approve it and make it an effective temporary insurance policy. • The local agent to whom the company sent this form, and not the company, is the one who does the waiving of any specific details or requirements when he approves the application and sets it in motion as the instrument itself provides. Aside from the language of the application the signature of the applicant is not always necessary. (32 C. J. 1104.) The application is an offer and its acceptance makes a contract. (32 C. J.' 1105.)
Objection is made to the dual capacity in which the local agent acted in signing the name of the applicant as well as that of the insurance company to the application. The rule against such is applicable where the transaction involves the exercise of discretion and where the interests of the parties are conflicting (2 C. J. 712), but it is said in the same connection that—
“The above general rule does not apply where the interests of the two principals are not conflicting, and loyalty by the agent to one of them is not a breach of his duty to the other.” (2 C. J. 713.)
It was held in Wilson v. Insurance Co., 90 Kan. 355, 133 Pac. 715, and Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78, that in the absence of fraud or some special personal or conflicting interest the general rule against dual agency did not apply to insurance agents. (See, also, 49 L. R. A., n. s., 972.)
We conclude that there was sufficient evidence to support the finding of the trial court that the agent of the company was authorized to sign the name of the owner to the application for insurance, and that upon the approval of the application by the agent of the company the provisions therein contained became operative and binding .on the defendant company as to preliminary insurance.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The appellant was convicted of statutory rape, and appeals. After the prosecuting witness had given her testimony at defendant’s preliminary examination, and shortly before his trial in the district court, he married the girl and now contends that it was error to permit her to testify against him. He cites the statute—
“. . . No person on trial or examination, nor wife or husband of such person, shall be required to testify except as a witness on behalf of the person on trial or examination. . . .” (R. S. 62-1420.)
It does not appear, however, that the prosecuting witness claimed that privilege at the trial, and even defendant himself did not object to her testifying. On the contrary, in an effort to exculpate the defendant, when she was called as a witness for the state she voluntarily took the stand and repudiated the evidence she had given against defendant at his preliminary examination; but later the same day the prosecuting witness apparently became impressed with the fear of the possible consequences of her perjury and made a clean breast of it and gave testimony in harmony with what she had testified to at the preliminary examination.
It is contended that the prosecuting witness was “not given the protection” of the statute which relieves a wife of the requirement of testifying against her husband, and that “it was the duty of the trial court to advise this girl, the prosecuting witness, of her statutory rights so that she would have been able to protect herself.” Rights of the witness? Duty to protect the girl? She was not on trial. Nor is she complaining here that her rights were invaded. The statute does not say that a wife may not be subpoenaed as a witness at the trial of her husband on a criminal charge. She can be required to attend, and she can be required to testify in his behalf. She cannot, of course, be compelled to testify against him. (State v. McCord, 8 Kan. 232.) But she must claim that privilege, otherwise her testimony will be considered as having been voluntarily given. (State v. Geer, 48 Kan. 752, 754, 30 Pac. 236.) It is suggested that she instructed her.husband’s attorney to claim that privilege for her. The record does not show that, and the circumstances tend to discount that idea. What is rather obvious, we think, is that she was quite willing to testify falsely in behalf of defendant, but after doing so she was given the opportunity to return to the witness stand and tell the truth. Moreover, in this case, it would have been of no consequence to the state if the prosecuting witness had claimed her privilege not to testify against defendant. Her testimony given at the preliminary examination was available and could have been read to the jury. (State v. Stewart, 85 Kan. 404, syl. ¶ 6, 116 Pac. 489. See, also, State v. Taylor, 119 Kan. 260, 237 Pac. 1053; State v. Bell, 121 Kan. 866, 868, 250 Pac. 281.)
The judgment is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
This action was brought by an administrator against an heir seeking an accounting and also recovery of property obtained by the defendant from the deceased through undue influence, and because of a fiduciary relation between defendant and deceased. The plaintiff, Charles W. Beebee, as administrator of the estate of Andrew S. Beebee, and likewise as administrator of the estate of Anna L. Beebee, filed two separate actions in said estate against the defendant, Lusena B. Peterson. The actions were consolidated for trial, and the issues brought by the administrator of the estate of Anna L. Beebee were found in favor of defendant. An appeal therefrom was taken, but that matter is not now before the court. In the case brought by the administrator of the estate of Andrew S. Beebee, judgment- was awarded against the defendant by the court upon two items therein and the defendant, Lusena B. Peterson, appeals therefrom. The plaintiff likewise perfects a cross appeal as to the items found in favor of the defendant.
In substance the petition of the plaintiff charged that he and the defendant, Lusena B. Peterson, were all the heirs at law of Andrew S. Beebee, deceased, plaintiff and the defendant being brother and sister; that over a period of years the defendant had by reason of her conduct toward her parents caused them to become prejudiced against the plaintiff and that she had by means of undue influence caused the parents to deliver over to her and into her possession all of their property of the value.of approximately $19,000. Plaintiff charged that the defendant was in a position of trust and confidence with her parents; that she got them to give her a written power of attorney, and that for a period of years running from a time prior to 1920 until the death of her parents she had through her influence and domination carried out a plan and scheme to control the parents in their business affairs, and by reason of the authority granted to her in the power of attorney and undue influence exerted by her she had gained absolute control of all the property, and had refused in any manner to account for the same. Plaintiff asked that defendant be required to account for all of the funds belonging to the estate of Andrew S. Beebee, which had been converted to her own use, and for all sums of money and property of every kind and nature which belonged to Andrew S. Beebee in his lifetime, and that upon such accounting she be required to pay over and return to the administrator, for the propose of distribution in accordance with the statute of descents and distributions, all of the assets of Andrew S. Beebee.
The defendant filed answer which set forth a general denial and also accounting for the various properties and funds and told in detail what had been done with them and how the money had been used or invested and tracing the disposition of the various items, and specifically claimed that certain items had been given to her by her parents. She set up a description of the various properties and bonds owned by her father and of the transactions had. In addition, by way of a cross petition, she alleged that her parents had lived with her during the latter years of their lives; that she had provided board and room for them; had paid doctor bills and nurse hire; had furnished room and board for two nurses; that she had rendered valuable service in looking after and caring for her parents, and that they, taking all of these things into consideration and the fact that they had not been well treated by their son, the plaintiff, had delivered over the property to her with the intention that she should have all of said property; that all of the assignments and conveyances were made to her without undue influence on her part. On her cross petition she prayed for judgment for $9,807.
At the conclusion of the trial the court made findings of fact and conclusions of law as follows:
“The court further finds that the defendant has accounted in full for all money and property coming into her possession belonging to Anna L. Beebee, and all property and money coming into her possession and belonging to Andrew S. Beebee, except as will be hereinafter noted.
“The court finds that there is nothing due from defendant to the estate of Anna L. Beebee, and that the policy of insurance in the Bankers Life Company belongs to the defendant; that the proceeds of said policy having bee'n paid into court by said insurance company and amounting to $2,221.76, said company should be released from all further liability thereon and said money paid to the defendant.
“That the cross petition of the defendant in both cases should be denied for the reason that no express or implied contract has been proven to have existed between the defendant and her parents in either case.
“The court further finds that it was the intention of both Andrew S. Beebee and Anna L. Beebee to reward the defendant for her untiring devotion and care of them in their declining years by giving to her all of the remainder of their property, but that their efforts to do so are ineffective and void in the following particulars, to wit:
“That the bonds of the Kansas Power Company purchased by check dated April 18, 1924, amounting to $1,987 were paid for from money of Andrew S. Beebee and no transfer or assignment of said bonds appears in the evidence. That the administrator of the estate of Andrew S. Beebee in case No. 8481 should have judgment against the defendant for the amount paid for said bonds, $1,987, with interest from August 4, 1925, at 6 per cent per annum, amounting to $226.40, and making a total judgment on account of said bonds in the sum of $2,213.40.
“That the note of Lusena B. Peterson to Andrew S. Beebee for $3,500 and dated June 27, 1923, defendant’s exhibit No. 2, was intended by Andrew S. Beebee to be a gift causa mortis to the defendant, but that his attempt to make said gift is null and void because no delivery of the same was ever made to the defendant or to anyone for her. That the administrator of Andrew S. Beebee in case No. 8481 should have judgment against the defendant on account of said note in the amount of $3,500 with interest from June 27, 1923, to this date at 434 per cent, amounting to $664.80, or a total judgment on account of said note of $4,164.80. That the judgment of $2,213.40 should bear interest from this date at 6 per cent per annum and the judgment for $4,164.80 should bear interest from this date at 4% per cent per annum.
“It is therefore by the court considered, ordered, adjudged and decreed that the plaintiff have and recover nothing from the defendant, Lusena B. Peterson, in case No. 8480, and that the defendant Peterson have and recover nothing upon her cross petition in said case.
“It is further by the court ordered that the defendant, Lusena B. Peterson, have and recover of and from the Bankers Life Company of Des Moines, Iowa, the sum of $2,221.76 heretofore by said Bankers Life Company paid into court be paid to the defendant, Lusena B. Peterson, and it is further ordered that the defendant the Bankers Life Company be relieved from further liability herein.
“It is further by the court considered, ordered, adjudged and decreed that the plaintiff do have and recover of and. from the defendant, Lusena B. Peterson, in case No. 8481, the sum of $2,213.40, together with interest thereon at the rate of 6 per cent per annum from this date, and a further sum of $4,164.80, together with interest at the rate of 4% per cent per annum from this date, and that plaintiff have further judgment against the defendant, Lusena B. Peterson, upon her cross petition herein.
“It is further by the court ordered that the costs of said actions, Nos. 8480 and 8481, be paid one-half by the plaintiff and one-half by the defendant, Lusena B. Peterson.”
The appellant contends that the court erred in rendering judgment against her for the $3,500 note of June 27,1923, and. the Kansas Power Company bonds, and alleges that the evidence shows that the bonds were properly transferred to her before her father’s death, and that the note was given to her as a gift causa mortis.
The court found that it was the intention of Andrew S. Beebee that the note should be a gift causa mortis, but that the attempted gift was null and void because no delivery was proven.
The appellant now contends that there was sufficient evidence to show a delivery in that the note was produced by her at the trial and was put in evidence by her as an exhibit. She sets out that the circumstantial evidence showed that she had obtained possession of the note and had such possession on the death of her father, but the court found that this evidence was insufficient to establish a delivery. Of course, under the law, appellant could not go on the stand and testify to an actual delivery made by her father, because he was deceased, and she was therefore precluded from showing a delivery. That is her misfortune. The appellee urges that in view of the fact that appellant had the power of attorney from her father and was looking after his business, that the note was in her possession where it would properly be expected to be found under such circumstances, and that in view of the position in which she stood toward her father- — namely, that of agent and confidential adviser— the possession of the note was not sufficient proof of delivery. In view of the positive finding of the court on this point and the state of the record, we feel that the court’s decision on the question of delivery was correct.
The appellant further argues that the transfer of the note was not a gift causa mortis, but that in view of the court’s finding that it was the intention of Andrew S. Beebee to reward her, the indorsement on the back of the note did not necessarily mean a gift, but a payment of indebtedness. The trouble with this argument is that the court found that there was neither an express nor an implied contract between the appellant and her father. Neither was there any showing that he was indebted to her in any way. . ■
In Calvin v. Free, 66 Kan. 466, 71 Pac. 823, it was said:
“To constitute a gift causa mortis, the gift must be made in contemplation of the near approach of death, to take effect absolutely only upon the death of the donor and before that of the donee. There must be a delivery of the property to the donee or some one for him. Subject to the right of recall in case he does not die, or in case the donee dies first, the donor must part with all dominion over the donated thing.” (Syl. ff 1.)
The note in controversy bore the following indorsement on the back thereof: “In case of my death before maturity this note becomes the property of Lusena B. Peterson. (Signed) A. S. Beebee.” It must be remembered that the court below was the trier of the facts. From the above indorsement the court inferred that there was an intention to make the note a gift causa mortis. The trial court was not satisfied that the evidence was sufficient to prove a delivery of this note in contemplation of death. In 12 R. C. L. 955 it is pointed out that the doctrine of gifts causa mortis was derived from the Roman civil law. After quoting the definition as laid down by Justinian, the text further states:
“The doctrine of gifts causa mortis as thus defined in the civil law was received in England only so far as attended with delivery or what the civil law calls ‘tradition’ and it was declared that tradition or delivery is necessary to make a good donatio causa mortis. . . . It is frequently said that gifts causa mortis are not favored, but are against the policy of the law, the reason assigned being that they are donations made without the safeguards cast by the law around the execution of wills. The suggestion, however, that the law treats such transactions with disfavor and that they are not to be sustained where this can be avoided is understood as having reference to the occasion presented for fraud and mistake in cases of this kind, and therefore that care should be used to sift the evidence.” (p. 956.)
The essential element of delivery which was added to the definition by the English courts has been adopted and followed by the courts in the United States. Since there must be a delivery it follows that there must be evidence to prove the fact of delivery to the satisfaction of the trial court. The trial court, after carefully sifting the evidence, found that it was insufficient to establish a delivery. We have examined the record and agree with the trial court.
As to the second specification of error urged by the appellant— namely, the judgment of the Kansas Power Company bonds — the court found that these bonds were never properly transferred or assigned to the appellant. The appellant contends that the memorandum which was introduced in evidence reading, “5-8-1924; transfer my government bond to Lusena B. Peterson,” amounted to an assignment of these Kansas Power Company bonds; that the bank pinned the order to the bond register and transferred the bonds to Lusena B. Peterson. It appears from the evidence that there were $2,000 in government bonds which were transferred to Lusena B. Peterson on May 8, 1924. The memorandum above set out relates to these government bonds and the court evidently so construed it. It therefore could not amount to a transfer of the Kansas Power Company bonds. The record fails to show any proper transfer or assignment of these bonds, and the judgment of the court in so finding is correct.
With reference to the cross appeal taken by the appellee relative to the $2,000 government bonds, which were .transferred to the appellant by the written order of May 8, 1924, introduced in evidence, and the further complaint made by the cross appeal that the appellant should account for all funds deposited by her in the Jamestown bank, we see no error in the record. The court-having found that the parents intended to give her all of the property, concluded that there was sufficient evidence in the record to establish the fact that they had carried out-such intention and had given her all of the other property except the $3,500 note and the Kansas Power Company bonds, upon which it rendered judgment against the appellant. Since the intention of the father had been -executed by valid transfer of possession the appellant was entitled to retain the bonds and the funds which had ^been deposited in the bank and withdrawn by her.
In view of the state of the record we see no reversible error here in behalf of the appellant or cross appellant. The judgment of the lower court is therefore affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
These cases involved the title to tracts of land and the consequent rights to oil royalties, bonuses and moneys received for oil from those lands. Robert Bryden and his wife, Lydia, came to Greenwood county in 1882, and they took into their home three young girls, the daughters of Charles C. Muninger, a brother of Mrs. Bryden, soon after the death of the mother of the children. It was the intention of the Brydens to rear, educate and provide for the three sisters, Lydia, Harriett and Gabriella, as if they were their own, and this purpose was carried out. For certain reasons Gabriella was a favorite of the Brydens, and before the death of her mother they had expressed a desire to adopt her as their own child, but consent to do so was not given. While the three sisters took the name of Bryden instead of Muninger, they were never legally adopted by the Brydens. They remained as a part of the family, however, and in 1902 Harriett was married to J. S. Sample, in 1905 Lydia was married to A. A. Nixon, and in 1907 Gabriella was married to L. F. Reed. Robert Bryden, it appears, acquired several tracts of land, one of which is said to embrace more than 1,500 acres, and had inherited a quarter section of land owned by his wife, which adjoined that owned by him, and together they were designated as the Burnt Creek Ranch. Bryden owned another tract of land of 560 acres, which was known as the Bachelor creek ranch, which was of a better quality than the other land. He had also acquired real estate in the city of Eureka and had established a home there in 1903. During that year his wife became ill and was taken to a hospital in Wichita, where she died about March 14, 1913, at the age of seventy-three years, leaving Robert Bryden as her only heir. Shortly before the death of Mrs. Bryden and while she was in the hospital some statements were made by her with reference to the disposition of the Bryden property and of her desire that it should go to the three sisters. Whether there was a contract made with respect to the disposition of the property is a contested question depending upon the evidence and the findings of the court.
About a. week after the death of his wife Bryden signed three deeds containing no reservations or exceptions. In one, one-half of the Burnt Creek Ranch was described and Harriett Bryden Sample was named as the grantee. In another deed the remaining half of that ranch was described and Lydia L. Nixon was named as grantee, and a third deed was signed purporting to convey the Bachelor creek ranch to Gabriella Reed. These deeds were executed without the knowledge of the grantees therein named, and without any valuable consideration having been paid. When executed Robert Bryden took the deeds to L. F. Reed, left them with him with directions to keep them until he might call for them. Reed took the deeds and put them among his private papers in a lock box in a bank. Soon after the execution of the deeds the grantees named learned of their execution and that they had been placed with Reed. In the early part of 1918 oil was discovered in the region of the lands in question and Bryden executed a number of leases on parts of the Burnt Creek Ranch and a producing well was drilled on the land described in the deed of Mrs. Nixon. At one time Bryden received a cash bonus of $8,000 on a lease which he had made, and this bonus was divided by him into three equal parts and given to each of the three sisters, taking from each her promissory note. These promissory notes were never paid and Bryden made no effort to collect them. Leases continued to be made from time to time by Bryden on these lands until as late as 1923, and during all this time, covering a period of about seven years, the parties herein knew of the oil operations and that Bryden was in control of the lands and was collecting and receiving large sums of money from oil royalties, to which plaintiffs made no objection and had permitted him to make the leases, receive and handle the oil obtained from the lands without consultation with them.
After the discovery of oil and until his death he gave each of the three sisters $200 per month, and also furnished money to them to be used in building or improving their homes. He paid to plaintiff, Harriet Sample, in the neighborhood of $50,000, and to Lydia L. Nixon substantially the same amount. These gifts were received and accepted by the plaintiffs as gifts and the plaintiffs knew at all times that the bonus money and royalty money were the proceeds of the leases that Bryden had made. No claim to the oil royalties was ever asked by the plaintiffs, and no claim for an accounting of the bonus or royalties obtained by Bryden was ever asked. In March, 1918, Bryden obtained the 1913 deeds to Harriett'and Lydia, from Reed, and caused a new deed to be drawn which described all the land in the Burnt creek ranch, giving it jointly and equally to all of the three sisters. This deed was delivered to Reed without conditions and to be by him delivered immediately after the death of Bryden to the grantees. At that time he intended to pass a present title to the grantees, postponing only their right of enjoyment until after his death. In September, 1920, Bryden had been told by one of his friends that the recording of such a deed was necessary to convey title and he interviewed an attorney and was advised that the deeds in custody of Reed should either be recorded or they should be placed in the hands of a bank showing the conditions under which they should be held. The deeds were then obtained from Reed, including the one of 1913 to Gabriella, and placed in the bank and a receipt given for them. When placed in the bank an error was discovered in a description of land, and under’ date of Sep tember 9, 1920, a new deed was executed correcting the description. In 1916, and after a serious sickness, Bryden asked Reed to record the deeds to Gabriella, and this was done. He made a will on November 4,1919, disposing of his personal property and without mentioning any real estate. He died on August 4, 1926, and the estate is in the course of administration in which a large amount of money is in the hands of the executor, the proceeds of the oil royalties from the Burnt creek ranch. On the claim that there was a contract between Robert Bryden and his wife with reference to the transfer of their property to the three sisters the court found:
“The court is unable to find from the evidence that there was any contract or understanding between Robert Bryden and Lydia Bryden made or had at or before the death of the said Lydia Bryden, with reference to the inheritance, transfer, gift or other disposition of any property belonging to her, or any property that Robert Bryden then owned or might own at any time, and is unable to find that there was any contract or agreement that in consideration of Lydia Bryden’s making no disposition of her property, Robert Bryden, after her death, would deed or give or will his property to Harriet B. Sample, Lydia L. Nixon or Gabriella Reed.”
Upon the testimony the court concluded as a matter of law that the two deeds of 1913 in which the plaintiffs were named as grantees were never delivered by Robert Bryden with the intention of conveying to the grantees any right, title or interest in the real estate described therein, and that the deed of 1918 was delivered and became effective on March 1, 1918. The court concluded that the two deeds of 1913 to Lydia L. Nixon and Harriett B. Sample were never delivered to L. F. Reed or to anyone else with the intention of conveying title to the land to them, and that they were not entitled to recover anything under those deeds. The deed of 1918 was held to be an effective conveyance, as Bryden had parted with possession and control of the instrument and had conveyed a present interest in the lands with the intention that only the enjoyment thereof should be postponed until hia death. The deed of 1913 to Gabriella was held to have been delivered on March 1, 1918, with the intention that she should go into immediate possession of the premises. As to the oil and gas leases the court found:
“Robert Bryden was entitled to the use and benefit of and was the absolute owner of all cash bonus received for any oil and gas lease executed and delivered by him prior to March 1, 1918, and he was the absolute owner of all rents and oil and gas royalties received by him or produced prior to his death under any oil and gas lease or leases executed and delivered by him prior to March 1, 1918, and the executor of his will is not required to account to the plaintiffs for any money or property in his hands that may have been received from any such source, or any property owned by Bryden at his death that was the proceeds of any money received from such sources.
“All cash bonuses received for oil and gas leases executed and delivered by Bryden after March 1, 1918, and all rentals and royalties received by Bryden under any leases executed by him after said date was the property of and owned jointly by the plaintiffs and Gabriella Reed, in equal shares, and Robert Bryden received and held the same in trust for them during his lifetime, and the executor of the Bryden will must account to each of the plaintiffs for one-third of any money or property received by Bryden from such sources. Bryden was entitled to retain the corpus of said fund only during his lifetime, and any interest or profits earned thereon during his lifetime was his sole property and such interest or profits should not be treated as a part of such trust fund. Any money or property paid or given by Bryden during his lifetime to either of the plaintiffs or Gabriella Reed or L. F. Reed was paid or given to them as gifts and were so intended by Bryden and received by them as such. Such gifts and any other gifts or donations or expenditures made by Bryden should be held and considered as having been made from his own separate estate and not from said trust fund which he held for the use and benefit of the plaintiffs and Gabriella Reed.”
Judgment was accordingly given.
Plaintiffs concede" that the case must turn upon the findings of fact supported by evidence, but it is contended that material findings made are without support and some of them contrary to the evidence. It is urged by plaintiffs that under the testimony an understanding and agreement were entered into between Bryden and his wife, prior to her death, by which the property of both was to be given in equal parts to the three sisters, and that this agreement was carried out by Bryden when he executed the deeds of 1913 and placed them in the custody of L. F. Reed. Considerable testimony was offered as to statements made by Mrs. Bryden as to the property while she was in the hospital and just prior to her death. The testimony, however, fails to show the making of a contract between Bryden and his wife to convey the property to the plaintiffs. Aaron Nixon, the husband of Lydia, testified that Mrs. Bryden said to him in the presence of his wife, that “Uncle Bob (her designation of her husband) and I decided that we have given the Piatts and other relatives enough, and I want my stuff to go to the girls, and he decided to put his in the same; that we decided the property should go to the three girls.” It is conceded that Mr. Bryden was not present when these remarks were made with the Nixons. Mrs. Sample testified that she heard the conversation with Nixons, but they had stated that the only persons in the room with Mrs. Bryden when this conversation occurred were Mr. and Mrs. Nixon alone, who said that Mr. Bryden was not in the room at that time. There was testimony that after the death of Mrs. Bryden, Mr. Bryden said he and his wife had talked over the matter of dividing the property, that his wife wanted her property divided among the three girls and he told' her if she did that he would let his go the same way and remarked, “We were very near putting it off too long.” It was testified at other times he had indicated how the land was to be divided. That certain parts would belong to plaintiffs when he was through with it, to others he said the property was to go to the three girls, and that he had given the deeds which he had executed to L. F. Reed, that he would not be here much longer to use the property and some other similar expressions. It may be noted that Mr. Nixon recalled that Mrs. Bryden had said that she did not want Lydia Nixon, his wife, to work so hard, and Mr. Sample also testified that he heard Mrs. Bryden say to her husband at one time, “Whatever you do I want you to take care of Hattie,” Sample’s wife. The question of fact as to whether a contract to convey this large estate was established by proof, was given a negative answer by the trial court. It is necessary that such a contract be shown by clear and convincing evidence. From the facts and circumstances of the case we can readily understand that the court was not convinced nor satisfied that a contract of this nature and importance had been entered into by Bryden and his wife. Evidently they had talked of a purpose to leave their property to the three sisters instead of to relatives, but expressions of such an intention and the testimony in this case falls short of establishing a binding contract to convey. (McKeown v. Carroll, 102 Kan. 826, 172 Pac. 525; James v. Lane, 103 Kan. 540, 175 Pac. 387; Nash v. Harrington, 110 Kan. 636, 205 Pac. 354.) The claimed contract was that the property- was- to be equally divided between the three girls, but the testimony shows a purpose to prefer Gabriella, the one first taken into their home by the Brydens, and whom they sought to adopt. Upon the testimony the court rightly found that at all times it was the purpose of Bryden that Gabriella Reed should receive a greater part of his estate than her two sisters, and it appears she was given a larger part when the actual conveyance was made. The finding of the trial court that a binding contract between Mrs. Bryden and her husband to convey the property was not made cannot be set aside.
There remains the question whether there was a delivery to the plaintiffs of the 1913 deeds. These instruments were drawn and signed by Bryden and were delivered to L. F. Reed, the husband of Gabriella, for safe-keeping. Whether there was a delivery of the deeds depends largely upon the intention of Bryden in placing them in the hands of Reed. Did his words or acts or both manifest an intention to surrender control of the deeds and to part with the title to his lands? The burden rested upon plaintiffs to show an absolute and unconditional delivery of the instruments. The testimony of Reed, the depositary, was that when Bryden handed him the papers, he said:
“ ‘Here, Reed, are some papers. I want you to take charge of them. I want you to put them in your lock box where they will be absolutely safe and say nothing to any person about them,’ and he sat down in the office and had a talk for an hour or longer in regard to the place. He said, ‘This isn’t dividing it between them the way I intended to.’ Then, he did refer to them as deeds. He said, ‘These are deeds to my land, but this is not dividing it the way I want it to go, but owing to the location of the land, the Bachelor creek farm and the land out there, it seems the most convenient way to divide it to make it worth while for anybody,’ but he said, T am going to go right ahead doing business just like I expected to live a hundred years. I am going to handle cattle and I expect to use this land. I want to go ahead and do business just like I expect to be a hundred years old and I don’t know what turn may come. It might' be best to sell the land.’ He said, T really believe if I would sell it and put it into bonds, it would be less trouble to the girls than if I would leave it in the land,’ but' he repeated, ‘I want you to take them and put them in the box where they will be absolutely safe and say nothing to any person about them.’ ”
Further along in his testimony, speaking of Bryden, he said:
“He said something to me about the possibility of wanting the deeds again. He said, ‘I am going right on. I may sell the land. I am going to go ahead and do business, just like I expect to be a hundred years old. I don’t know what turn may come. I may sell the land.’
“I was given to understand those were his papers, and I was to keep them subject to his orders, all of the time.”
It is said that there is no evidence to support the finding of the court that the deeds were to be held by Reed until Bryden called for them. The testimony, however, last quoted is substantially the equivalent of the expression used by the court. There is sufficient testimony to support the finding of the court that Bryden never in tended to surrender the possession and control of the deeds he had prepared and placed in the custody of Reed. He not only kept absolute dominion of his lands, but he executed leases of them, and his statements to the depositary manifested an intention to retain the title to the lands when he told Reed that the papers were his own and they were to be kept subject to his orders as he might want to sell the land, and further that he was going to go ahead and do business on the theory that he would live to be one hundred years •old. He said, also, that he did not want to go out of the cattle business, and it appears that he did go on for years afterwards exercising the rights of an owner and doing so without challenge by the plaintiffs or any claim made by them that they had any title to the land or any claim upon the oil royalties under the leases he had executed or the bonuses paid by the lessees. There is evidence to show that Bryden never intended to relinquish control of the deeds and there was neyer a time when he could not have reclaimed them, and it is well settled that unless there is an intent of the grantor to surrender control and an understanding that the depositary is receiving the deeds for delivery to the grantee, there is no delivery in law. (Bremyer v. School Association, 86 Kan. 644, 122 Pac. 104; Alward v. Lobingier, 87 Kan. 106, 123 Pac. 867; see Note in 56 A. L. R. 746.) Since there was no delivery of the deeds and no parting with the ownership of the lands, Bryden, of course, had the right to the oil derived from these lands and the bonuses paid by the lessees until the actual conveyances were made and the title transferred. This holding practically determines the case.
There is some discussion of the question and a strong argument made that the plaintiffs were estopped to claim the oil royalties and other moneys paid under the leases, as the plaintiffs had known for years that Bryden was leasing the lands, collecting royalties and they never had claimed any right to the royalties or bonuses. They knew that Bryden was paying out large sums of money in donations to charities and in gifts to plaintiffs and others, of the moneys obtained from the oil. However, it is unnecessary to determine the questions raised as to estoppel, as Bryden’s ownership of the lands entitled him to the products of them and is sufficient to uphold the judgment rendered by the trial court.
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 a decision of the trial court overruling a motion to vacate and set aside all proceedings formerly had in an action brought by Frank Childress, a stockholder and creditor of the Fox Mining Company, alleging that it was insolvent and was no longer a going concern. The purpose of the action was to collect and preserve the assets of the mining company, establish its liabilities, provide for the allowance and rejection of the claims of creditors, and the final settlement and distribution of the proceeds of its assets. A motion to obtain a vacation of the proceedings is based on the contention that the petition asks for nothing but a receivership and that as no additional relief was asked all subsequent proceedings were a nullity. The plaintiff in its petition which was filed October 13, 1924, after naming the Eox Mining Company and certain creditors and claimants as defendants, alleged—
“That the Fox Mining Company is a corporation engaged in the mining business in Cherokee county, Kansas, and that the other defendants are creditors of said defendant corporation, who have obtained and now hold unsatisfied judgments against said defendant company on account of awards made for injuries alleged to have incurred in the mines being operated by said defendant corporation.
“This plaintiff alleges and states that he is a stockholder in said corporation. That said mining company is possessed of a mining lease on the southeast quarter of the northeast quarter of section 11, township 35 south, range 23 east of the sixth principal meridian in Cherokee county, Kansas, and the concentrating mill and appurtenances located thereon. That said company is not now engaged in the operation of its lease for the reason that at the present time it has not developed or discovered a sufficient amount of ore to justify the operation of its said mill, but that its lease is as yet not thoroughly explored by drilling, and that therefore the value of its property is problematical, but this plaintiff alleges and states the facts to be that the property of said company as it now stands is not worth an amount equal to its indebtedness, and that said corporation is insolvent, or at least is in imminent danger of insolvency.
“Plaintiff further alleges that said defendant company was insured against liability for injuries incurred in its said mine with the Associated Employers Reciprocal, a reciprocal insurance company, conducted and managed by Shérman-Ellis, Inc., as its attorneys in fact; that under the terms of its policy, when an accident was incurred by its employees in the operation of its mine, .said company immediately advised its said insurance carrier, who had agreed to pay promptly all claims established against said company, and that until .a short time ago, the said defendant company and this plaintiff as a stockholder in said company, were of the belief that all indemnity claims against said company were being adjusted by said insurance carrier, but that they .are now advised that for a considerable period of time said insurance carrier lias failed, without knowledge of said defendant corporation or of this plaintiff, to pay said claims, and that this plaintiff is now advised and states the facts to be that the other defendants named herein hold judgments or awards made .and entered against this company under the workman’s compensation law of the state of Kansas, providing for the payment of weekly indemnities, and that said defendants are now threatening to bring proceedings to recover lump-sum judgments against said company, by reason of the fact that said claims are not being paid promptly; and this plaintiff states that the contingent liability of said company on said unpaid claims is now approximately $30,000, and there is outstanding other legitimate claims against said company in the amount of approximately $20,000.
“Plaintiff respectfully shows the court that he is a stockholder and creditor of said company; that he desires to see that the interests of said stockholders and creditors of said company are conserved, that the interest of all of the stockholders and creditor’s of said concern may be protected so far as possible, but that if the assets of said company are not protected by this court, and that if separate executions are levied upon its property, that the value of the estate of said defendant corporation will be diminished and that the interests of the creditors and stockholders will be unnecessarily sacrificed.
“Plaintiff further respectfully shows to the court that he is advised that there are reasonable grounds to believe that said indemnity insurance company will be enabled to ultimately settle in full all indemnity claims outstanding against said defendant company.
“Plaintiff further shows that said corporation has failed and refused to take any proceedings to preserve or protect said property for the benefit of its creditors and stockholders, although frequent requests have been made to. said company so to do by this plaintiff.
“Wherefore, and for the reasons stated herein, this plaintiff prays that a receiver may be appointed to take charge of the assets of said company and to protect its leasehold interest, pending an adjustment of the claims outstanding against said company, and that said receiver so appointed may also be authorized and directed to prosecute such action or actions as may be necessary against said indemnity insurance company, for the recovery of moneys due said company or its creditors, and that the other defendants herein named be enjoined from further prosecuting their individual claims against said company, and that all proceedings in said matters be stayed, and that all the creditors of said company be required to file and present their claims to the receiver so appointed, all preferences or priorities which may have been obtained by proceedings brought by any of said defendants being recognized and considered in the ultimate distribution of the funds which may come into the hands of said.receiver, by virtue of this proceeding; and that plaintiff be given such other and further relief in this action as shall appear to the court to be just.”
The record shows that on October 18, 1924, the mining company accepted service of a summons and entered its appearance in the action, and the other defendants also accepted service of summons. After due notice and on October 18, 1924, a receiver was appointed, who was directed to take into his possession all the property of the-mining company; to protect and manage it under the orders of th& court; to prosecute such actions and file such claims with the indemnity company for moneys due the mining company and to employ an attorney to prosecute claims against the indemnity company. The appointment was made without objection of any of the defendants and appears to have been a friendly suit. On November 6, 1924, the receiver reported the giving of a bond required, that he had taken out insurance on the property, employed a watchman to guard it, the pendency of bankruptcy proceedings in Chicago, in federal court, against the indemnity company, the necessity for an attorney to appear and represent the receiver upon claims for compensation for the employees of the mining company, and some other minor matters which the court approved and granted. On January 7, 1925, the receiver reported that he had obtained an option, with parties to buy the mining property, which was approved by the court, but that option was soon surrendered. On April 11, 1925, the court ordered that after a notice to all parties is given the property be sold except claims against the insurance carrier and fixed April 22 for a hearing on the application. A hearing was had and on April 24, 1925, the court found and adjudged that the best interests of all the parties required that the property be sold, and that there be a liquidation of the physical assets of the mining company, including the lease, mill and equipment. The sale was made on May 16, 1925, to R. L. Kidner and Frank Childress for $18,000, and on that day the sale was approved without objection by the mining company or other defendant. The court then ordered that all persons holding claims against the mining company present their claims to the receiver within a time fixed, when the court would classify the claims, adjudicate the priorities and make an order of distribution, including allowance to the receiver and his attorney. An order of distribution was made on June 2, 1925, and compensation for the receiver and his attorneys allowed. On December 1,1928, more than four years after the proceeding was instituted and more than three years after the distribution order, the mining company filed the motion to vacate the proceedings taken, including the order of sale and its confirmation, and because they were void, claiming that the court was without jurisdiction of the persons or subject matter of the action, but mainly on the ground that the petition did not state a cause of action. This motion was overruled, and of this ruling the Fox Mining Company complains.
Throughout the many proceedings had during the four-year period and until the filing of the motion to vacate the proceedings, the mining company had not assumed an antagonistic attitude in the case or registered an objection to any of the proceedings, and now it is asking that everything done by the court be declared void because the petition did not state facts sufficient to confer jurisdiction on the court to do anything. It is argued that the appointment of a receiver is an ancillary proceeding which can only be granted in an action in which other substantial relief is sought. Defendant contends that the appointment of the receiver in this case was the primary and ultimate object of the litigation, and that no substantial relief was asked. An examination of the petition discloses plainly enough that equitable relief other than the appointment of a receiver was asked, and relief which a court of equity is warranted in granting. A stockholder and creditor brings the action for himself and for other stockholders and creditors, and before asking for a receiver states the situation in which the mining company had found itself, alleging that it had ceased to operate the lease, that its indebtedness exceeds the value of the property as it now stands, and that it is insolvent or in imminent danger of insolvency. After alleging a contract for indemnity with an insurance carrier, which it was said failed to carry out the contract, and that awards and judgments in favor of the injured employees to the amount of about $30,000 existed and that proceedings to enforce them against the property of the mining company were threatened, and further, that there were other claims amounting to $20,000, and that if the assets of the company were not protected from many separate executions or process based on lump-sum awards and judgments in favor of injured employees, it will greatly diminish the value of the estate and unnecessarily sacrifice the rights of creditors and stockholders. One source of funds mentioned is that there is reason to believe that the insurance carrier will later be able to pay the indemnified claims against the company. The company, it is alleged, is not a going concern and although requested to do so has refused to take any steps or proceedings to conserve the property.
Now what relief does the plaintiff pray for? He asks for a receiver to take charge of the assets of the company and protect the leasehold interests. He asked that the outstanding claims' against the company be adjusted, that actions be prosecuted against the indemnity insurance company for the recovery of moneys due the company or its creditors, and that the defendants be enjoined from prosecuting individual claims against the company until steps can be taken adjusting them, and that-all proceedings in that respect be stayed. It was then asked that the creditors of the company be required to file and present their claims to the receiver, who was authorized to determine preferences or priorities which may have been obtained in proceedings brought so that all these may be considered in the ultimate distribution of the funds which may come into the hands of the receiver by virtue of this proceeding, with the further prayer for such other and further relief as the court may think just. It is manifest that more was sought than the appointment of a receiver. Plaintiff asked that the property of the dormant corporation be not only conserved, but that it be subjected to the claims and rights of the creditors and stockholders. The collection of the claims against the insurance carrier is not a minor ground of relief and the prayer contemplates that when all these things are done a distribution of the assets be made among all the creditors and stockholders as the court may direct. This is substantial relief. The statute expressly provides that a receiver may be appointed to subject property or a fund to a claim of a creditor or at the instance of anyone interested in any property or fund, and where it is shown that the property or fund is in danger of being lost. (R. S. 60-1201.) It is true that some courts have held that a receivership is not available except as ancillary to a pending casé, but under our statute, which differs greatly from those of some other states, a receiver may be appointed on the grounds stated, although it may not be merely ancillary to a pending action. In re Lewis, 52 Kan. 660, 35 Pac. 287, is an example of authority to appoint a receiver in such a case as the present one. There a receiver was appointed where the business of a corporation was mismanaged so that it had become insolvent and its assets were being absorbed and dissipated to the injury of stockholders and creditors, an injunction was asked to enjoin the defendants from transferring the property, and that a receiver be appointed to take charge of the affairs of the company during the pendency of the action, and to do all that was necessary in winding up the affairs of a corporation. When the receiver sought to take possession of the property resistance was made by the president of the company on the ground that the court acted without jurisdiction in appointing the receiver, and he was held to be in contempt of the court in resisting the appointment. In disposing of the case it was said:
“While the authority to appoint a receiver should be strictly construed, and the power to wrest the property of a corporation from the management of the directors and officers should never be doubtingly exercised, we have no doubt in this case that the court was at least vested with jurisdiction to make the appointment. The facts alleged, if sustained, would seem to justify a court of equity, aside from any statutory provision, in appointing a receiver to protect the interests of stockholders against the malfeasance of the officers in charge of the corporate business and their fraudulent misapplication of its property and funds. Our statute upon this subject, while recognizing and preserving the general jurisdiction of courts of equity over corporations and in the appointment of receivers, enlarges and extends the power of courts in that respect. It not only provides that the appointment may be made in a proceeding ancillary to a pending cause, but confers authority to appoint a receiver for the preservation of rights and property, when such appointment is the principal object of the action.” (p. 662.)
In a later case where the right to a receiver was denied because the circumstances did not warrant the appointment, and that there was another adequate remedy, it was declared that while the appointment of a receiver should be sparingly exercised one may be appointed at the suit of a stockholder because of the mismanagement of the business of the company so that it has become insolvent and its assets in danger of being dissipated and lost through the negligence and fraud of negligent and guilty officers. The rule in In re Lewis, supra, was there approved. (Feess v. Bank, 84 Kan. 828, 115 Pac. 563. See, also, Bowen v. Flour Mills Corporation, 114 Kan. 95, 217 Pac. 301; Nelson v. United Elevators Co., 115 Kan. 567, 223 Pac. 814; State Bank v. Elevator & Mercantile Co., 116 Kan. 550, 227 Pac. 257.)
Defendant cites and relies on Burnes v. City of Atchison, 48 Kan. 507, 29 Pac. 579. There a stockholder asked for a receiver whose sole duty was to prosecute a liability upon a certain contract and collect dividends on stock. He was not empowered to take possession of the property, nor charged with the preservation of any funds, nor the management of the business of the company. He was simply asked to enforce a liability upon a contract which the city itself was privileged to enforce and a receivership was held to be unnecessary and unauthorized. The case of City of Parsons v. Parsons Water Supply & Power Co., 104 Kan. 294, 178 Pac. 438, is cited as an authority that a receiver cannot be appointed unless it be ancillary to an action to obtain other substantial relief and is not to be made where a receivership is the ultimate object of the action. It was held that as the sole relief asked was the appointment of a receiver, the appointment was unauthorized. This cannot be regarded as an authority in this case, as here equitable relief is sought and plaintiff states grounds which under the general principles of equity warrant the appointment that was made. (See Bowen v. Flour Mills Corporation, supra.) Other cases are referred to where a receivership was held to be unauthorized, one of which was where a receiver was appointed before an intended action was begun. (Guy v. Doak, 47 Kan. 236, 366, 27 Pac. 968.) In another it was held that a receivership could not be employed to give a minority of stockholders control of the corporation as against the majority where the latter were acting in good faith and where the irregularities charged did not jeopardize the interests of the corporation or the rights of stockholders. (Inscho v. Development Co., 94 Kan. 370, 146 Pac. 1014.) Another is Stelzner v. Iron Clad Store Co., 123 Kan. 772, 256 Pac. 818, where an appointment was made ex parte without notice to defendant, and without the giving of a bond and wherein it appeared that the only relief asked was the appointment of a receiver to manage and conduct the business of defendant, and when that was done the main purpose of the action was accomplished and judgment in fact rendered. After securing an appointment nothing was left to try, and hence the appointment was held to be error. Under our statute and the interpretation placed upon it, the plaintiff stated a cause of action .which justified the appointment of a receiver. As stated in the case of In re Lewis, supra, the statute—
“Not only provides that the appointment may be made in a proceeding ancillary to a pending cause, but confers authority to appoint a receiver for the preservation of rights and property, when such appointment is the principal object of the action.” (p. 663.)
Here the preservation of the rights and property may be regarded as the principal purpose of the action, but whether it be the principal purpose and the receivership an incident of it, or whether the appointment of a receiver to care for and preserve the property is the primary object of the action, is immaterial. In either case the appointment is justifiable under the statute and also under the general principles of equity.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is a compensation case here on appeal and cross appeal from the judgment of the district court modifying the decision of the examiner and compensation commissioner. The examiner and commissioner denied an award of compensation and the workman appealed therefrom to the district court where, upon consideration of the evidence taken before the examiner and furnished by transcript, the district court modified and changed the award to $6 per week for 407 weeks, finding for the workman as follows:
“1. The court finds that 'the said plaintiff will be permanently partially incapacitated from following his occupation or doing any manual labor for a period of 407 weeks from and after May 18, 1929.
“2. That the said plaintiff should be awarded the sum of $6 per week, as compensation for a period of 407 weeks from and after May 18, 1929, for such permanent partial incapacity.”
The appellant assigns four reasons why the district court should not have modified the award and asserts that it was error to do so: First, that the original claim for compensation was not for the activation or aggravation of an existing and long-standing disease, but for a permanent partial disability on account of a fractured rib, whereas the evidence on the hearing was largely directed toward the injury producing the activation and aggravation of an already existing trouble. Section 23 of the act under which the claim is made (Laws 1927, ch. 232) prescribes that the arbitrator and commissioner shall not be bound by technical rules of procedure. (See Norman v. Consolidated Cement Co., 127 Kan. 643, 646, 274 Pac. 233.)
“Ordinarily the issues in a compensation case are simple .and, except for certain facts which the statute makes essential, the pleadings are of little importance. Where the petition charges incapacity resulting from an accident, the employer may not unreasonably be expected to meet evidence showing that as a result of the accident a disease from which the plaintiff already suffered was aggravated, causing partial or total incapacity.” (Blackburn v. Brick & Tile Co., 107 Kan. 722, syl. ¶ 4, 193 Pac. 351.)
There is nothing to indicate that appellant was taken by surprise on account of the line of testimony offered by the workman. The testimony on both sides consisted largely of that from medical experts, and the question not specifically mentioned in the original claim was freely discussed by appellant’s witnesses. We find no error under the liberal provision of the statute for compensation cases in thus extending the scope of inquiry as to the disability of the workman.
The other three errors assigned as to the modifying of the award are: that subdivision 22 of section 10 of chapter 232 of the Laws of 1927 specifically directs that the $6 minimum referred to in other portions of the act shall not apply to cases of partial disability, assuming that the court named $6 as such minimum, and not from evidence; that the burden of proof as to the earning power and ability of the workman is upon him and not on the employer, and that there was no evidence to sustain such finding.
Subdivision 22 of section 10 of chapter 232 of the Laws of 1927 is an amendment of subdivision 19 of R. S. 44-510 and names $18 per week as a maximum compensation for partial incapacity, and then states that the $6 minimum mentioned elsewhere in the act shall not apply to injuries covered by that paragraph which result in temporary and permanent partial disability. This simply leaves the field open as to minimum allowance in such cases and necessarily requires proof as appellant insists, and without proof on the part of the workman no amount whatever could be found by the examiner nor by the court.
If there was any proof under the rules of computation on which the $6 allowance can be sustained it will not permit the conclusion that that amount was named by the court simply because it was under the earlier law (Laws 1917, ch. 226) and numerous decisions of this court construing the same authorized and used as the minimum allowance regardless of proof. Under the present law any amount not exceeding $18 per week can be found that the evidence will sustain, as being “60 per cent of the difference between the amount he was earning prior to said injury and the amount he is able to earn after such injury, in any employment.”
As to the amount he was able to earn before the injury, the evidence furnished is under subdivision (b) of section 11, chapter 232, Laws of 1927, where he had been employed less than one year by the present employer, as in this case, the calculation is to be based on the earnings of a person in the same grade, employed at the same work, by the same employer. The appellee upon the hearing produced a witness, Walter Lightsey, meeting these requirements, who testified he earned from $5 to $6 per day at the same kind of work in the same coal mine and under the same employer.
As to the amount the appellee has been or was able to earn since the injury at any employment, the appellee himself testified:
“I have never gone back to work since I was hurt. I ain’t able. Before I got this rock I did not have any pain or disability in my back. My back and right side keep me from getting about because they hurt.”
One physician who had examined the appellee and X-ray plates testified “that plaintiff is disabled from performing manual labor”; another physician testified “he will not be able to perform manual labor.” “It will totally disable him.” If this testimony was given credence by the court, it was some evidence toward showing appellee was not able to earn anything after the injury, and the difference between the earnings before and after the injury would be the whole amount of the previous earnings, 60 per cent of which would be the proper compensation not to exceed $18 per week. The court, of course, was not required to accept the full amount of earnings named by the witness, and $6 per week was fully within the testimony. It will be noticed that the testimony covers any employment as the law prescribes, but the range of opportunity for different vocations or employment would not be very great or diversified for a colored coal miner fifty-seven years of age, as the appellee was.
We think there was sufficient evidence furnished by the workman to support the findings of the trial court of $6 per week compensation under the rules of computation prescribed by the act.
Now as to the cross appeal of the workman, the grounds for which are stated by him in his brief as follows:
“The district court erred in failing to conclude as a matter of law that the plaintiff was entitled to total permanent disability at the rate of $18 per week instead of permanent partial disability at the rate of $6 per week as a result of his injury.”
Chapter 232 of the Laws of 1927, under which this action was brought, did not provide for an appeal from the decision made in such cases by the district court, but it was amended by chapter 206 of the Laws of 1929, permitting appeals to this court in compensation cases only on questions of law. It has frequently been held that questions of law involve and include the determination of whether or not there was any evidence to support the finding. Appellee here argues that the evidence not only supports the finding of the trial court, but goes further, and that as a matter of law the finding should have gone-further than it did and found the appellee not merely permanently partially incapacitated but permanently totally incapacitated. If these different conditions of incapacity differ in kind, then it may be that one is of necessity, under the evidence, right and the other is wrong, but if they .differ only in degree, then either may be right and supported by the evidence. Appellee avoids saying the finding of partial incapacity is wrong, but insists that it is hot in harmony with the evidence of the witnesses, which the court must have accepted, as all the physicians who testified that there was any incapacity at all said it was total incapacity. While the court to have reached the finding it did must have given credence to the testimony of the physicians called by the plaintiff, yet it does not follow that the court should have been convinced as to the extent of the incapacity as expressed by them, especially when the record gave the opinions and views of other physicians seriously differing from those of the former not only as to incapacity, but also as to the extent of it. If the evidence supports the finding made by the court as to the incapacity being partial, as we have already concluded that it does, it is not a matter of law only for a reviewing court to say that the trial court should have gone further than it did and found that the incapacity was total instead of partial because there was some evidence that would have supported such finding when there was on the other hand seriously conflicting evidence. It is not at all unreasonable that the court should have accepted the views and opinions of these witnesses that the plaintiff was permanently incapacitated but was unwilling to accept their judgment that it was total instead of partial, especially in the light of conflicting professional views and opinions.
Appellee cites Emry v. Cripes, 110 Kan. 693, 205 Pac. 598, as a case where this court under the old law reversed a case virtually changing the finding from a total incapacity to a partial incapacity, but that decision was based upon the special findings of the jury which were held to be inconsistent with the general verdict in that particular.
We cannot concur with appellee in his contention that the finding as a matter of law should have been total incapacity instead of partial.
The judgment is affirmed.
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The opinion of the court Was delivered by
Dawson, J.:
This was an action to enjoin the sheriff from levying upon and selling certain shares of corporate stock to satisfy a judgment against C. L. Pautz, under these circumstances:
On July 25, 1925, Pautz acquired twenty-two shares of the Sabetha Agricultural Loan and Investment Corporation, and his ownership thereof was duly registered in the books of the company.
On November 24, 1926, Pautz and wife gave their promissory note to this plaintiff, Paul Masheter, for $1,600, due November 28, 1929.
On March 22, 1928, the Citizens State Bank of Sabetha became insolvent and Charles W. Johnson was appointed as its receiver. Pautz held thirty-five shares of stock in the bank, and on June 9, 1928, the receiver commenced an action- against Pautz for $3,500 on his double liability.
On October 31,1928, Pautz assigned his twenty-two shares in the loan and investment company to Paul Masheter as security for his $1,600 note given nearly two years before. He also gave Masheter a power of attorney to sign Pautz’s name to any and all instruments necessary to sell, transfer and assign the twenty-two shares in any way Masheter saw fit, and authorized him to apply the proceeds toward the payment of the $1,600 note. No disposition of the twenty-two shares was made by Masheter, and they still stood in the name of Pautz on the books of the corporation when this action arose.
On September 17, 1929, judgment in favor of the receiver against Pautz on his double liability was rendered for $3,767; and on the execution threatened on that judgment this action followed. Plaintiff’s petition alleged some of the pertinent facts, set up the assignment executed to him by Pautz as security for the $1,600 note, and prayed that the sheriff be enjoined from levying upon and selling the twenty-two shares of loan and investment stock, or that they be sold only subject to plaintiff’s lien.
Defendants answered at length, detailing Pautz’s ownership of stock in the insolvent bank and the judgment entered in favor o,f the receiver against Pautz on his double liability, and asserting the invalidity of Masheter’s lien as against the receiver’s right to subject the shares to execution on the judgment against Pautz to satisfy the double liability.
Plaintiff’s demurrer to defendants’ answer was overruled; plaintiff’s prayer for an injunction was denied, and final judgment was entered in favor of defendants. Plaintiff appeals.
The pertinent statute reads:
“At any time after the closing of any incorporated bank if it shall appear to the receiver thereof that the assets of such bank are insufficient to pay its liabilities, it shall be the duty of such receiver to immediately institute proper proceedings, in the name of the bank, for the collection of the liability of the stockholders of such bank . . . Provided, That all transfers of property by a stockholder after the closing of any such bank and before the payment of the double liability as provided by this act, shall be absolutely void as against said double liability. . . .” (R. S. 9-156.)
This statute was amended in chapter 88 of the Laws of 1929, but our concern is with its terms as quoted. This court has held that the right of the receiver to look to the real estate of a stockholder of an insolvent bank for the satisfaction of the double liability cannot be defeated or postponed by the giving of a mortgage on the real estate to a third party after the bank became insolvent. (Glenn v. Callahan, 125 Kan. 44, 262 Pac. 583.) No distinction between a real-estate mortgage and the hypothecation of corporate stock is practicable within the purview of this statute. Upon the bank’s insolvency and until the double liability is paid, the statute declares that all transfers of property--not merely of real property-^ shall be “absolutely void as against said double liability.” Plaintiff cites Alter v. Johnson, 127 Kan. 443, 273 Pac. 167, in which it was held that the statute we are here concerned with did not create a lien on the property of a stockholder of an insolvent bank. Quite so; the statute did something more effective than that. It absolutely forbade all transfers of the stockholder’s property until tho double liability was satisfied — that all such transfers were absolutely void. Consequently the assignment of Pautz’s loan and investment stock to secure the two-year-old note held by plaintiff, being made after the failure of the bank and • before Pautz had satisfied the double liability on his bank stock, was a nullity as against the defendants’ right to have the judgment for the double liability satisfied out of Pautz’s property.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case involves the question of the termination of a tenancy at will from month to month without giving the thirty-day statutory notice, by the abandonment of the premises by the tenant and filing of a divorce action against his wife,' who continued to occupy the premises when the landlady had knowledge of such facts; and the further question of whether the landlady is estopped from enforcing such contract for the unpaid rent by having received the rent for many months from the wife. The court rendered judgment against the tenant for eleven months’ rent ending June 1, 1928, at $70 per month, less a payment of $100, or $670, from which judgment he appeals.
The appellee relies wholly upon the obligation of the tenant to pay rent under the contract as a tenant at will from month to month, until he terminates such tenancy by service of the thirty-day notice required by R. S. 67-504, and does not invoke the aid of the court on the ground' of liability of the husband for necessaries in the way of a home, furnished the wife.
The court found that a contract between landlord and tenant had been created and there was no evidence of its having-been terminated during the time involved in this action. It is admitted that there was no formal statutory notice given by the tenant to terminate the lease.'
The appellant leased an apartment from the appellee owner in July, 1925, for $70 per month, and moved his family, consisting of himself-, his wife and his wife’s brother, into the apartment August 1, 1925. He was' in the apartment only two days and nights until he -was taken ill and was removed to the hospital, where he remained until the second day of April, 1926, and never returned to the apartment except to get some clothing; and filed an action against his wife for divorce the day after leaving the hospital. He never paid any rent directly, but his wife looked after that matter.
The court allowed the wife $100 per month as temporary alimony. The divorce case did not reach final trial until April, 1928, a little more than two years after it was commenced, and during the latter part of that intervening period the court did not enforce the payment of the temporary alimony, and only $400 was paid during the eleven months before the conclusion of the case, which was in May, 1928. The court granted the husband a divorce and divided the property, awarding the wife $1,227 in cash as permanent alimony.
The wife vacated the apartment a few days later on the first of June, 1928.
The appellee, the landlady, occupied another apartment in the same building and was a witness in the divorce suit and knew of its pendency from the time it was filed.
Appellant relies strongly upon the decision in the case of Betz v. Maxwell, 48 Kan. 142, 29 Pac. 147, where-the court held:
“The'thirty days’ notice prescribed by statute to be given by a tenant to terminate a tenancy at will, like almost every other species of notice required by law, may be waived by the landlord.” (Syl. ¶ 2.)
It will be observed that the court stated such notice may be waived, and in the next paragraph of the syllabus briefly stated the facts of that case under which it was held that the notice was waived by the acts and conduct of the landlord.
“Where the landlord has actual notice that a tenant at will, who is to pay his rent monthly, is about to move and vacate his premises without written notice as prescribed by the statute, and the landlord brings an action against him for rent and recovers for one month, being one rent period, after actual notice, and for the full time of occupancy, such actual notice and conduct of the parties terminate the tenancy at will, and the landlord cannot recover any rent for the vacated premises in another action for a subsequent month or rent period.” (Syl. ¶3.)
Appellant also cites 35 C. J. 1128 and 1130 to the effect that tenancy at will may be terminated by operation of law and by change in the character of the tenancy; also, 16 R. C. L. 1153, as follows:
“A surrender of a lease by operation of law results from acts which imply mutual consent independently of the expressed intention of the parties that their acts shall have that effect. It is by way of estoppel.”
Of course, implied mutual consent furnishes the tenant the same relief from his obligation as express consent, but the acts in this case with reference to the payment of rent were substantially the same after the filing of the divorce action as before. All the payments of rent were made by the wife. The landlady knew of the pendency of the divorce action, but if she knew any of the details about it she also knew that the plaintiff was ordered to pay $100 per month as temporary alimony, which would be $30 more than what was due her for rent. There was nothing in these circumstances of abandonment of the premises by the appellant to indicate an intention to avoid the obligation of rent during the pendency of the divorce action, and nothing whatever to imply that the landlady was consenting to his release and accepting his wife as a tenant.
“While the occupancy by some one other than the lessee is a circumstance to show a surrender, yet as the new occupant may enter as the tenant of the lessee, or as his assignee, or even as a trespasser, and thus his occupancy be consistent with the continuance of the first lease, it is absolutely essential that it should be clearly proved that the original lessee assented to the termination of his term. In short, it must be proved that the lessor and lessee mutually agree to a surrender of the term.” (16 R. C. L. 1155.)
The appellant also had such an ownership or contingent interest in the household goods in the apartment as seemed to require mention in the decree and making of an order disposing of them, which is not in accord with the appellant’s theory of complete abandonment of the premises. Even if the appellant did attempt and intend complete abandonment of the premises, it is not effective for the purpose of terminating the tenancy until something is done by the lessor with reference to the premises or in recognition of the one actually occupying them to constitute a waiver, as was shown in the Betz-Maxwell case, supra.
We conclude that neither the abandonment of the premises by the appellant in this case nor the commencement of the divorce action, both within the knowledge of the appellee, nor the acceptance of the rent by the appellee from the wife of the appellant as it had always been paid, nor all these circumstances together would constitute a termination of the tenancy by the conduct of the parties, nor a waiver by the appellee of the required notice of termination of the tenancy, nor work an estoppel of the appellee from claiming the rent from appellant for the period covered by the pendency of the divorce action.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to enjoin the closing of a certain road in Cherokee county and for the abatement of fences erected to bar public travel thereon.
For a number of years theoroad had been devoted to public use and particularly to plaintiff’s use under circumstances which may be thus stated:
On and prior to 1905 Hattie Durkee and her husband owned 160 acres of land in Cherokee county which they determined to subdivide and sell in small parcels of a few acres each. Accordingly they made an informal plat of their land showing its subdivision into parcels. An interurban railway ran north and south in the west portion of the tract and the Frisco railway ran north and south in its eastward portion. Up and down through the middle of the tract the Durkees platted a forty-foot road and proceeded to sell parcels of land fronting thereon, using the informal plat to show the relative location of the parcels they were selling alongside this road. When the portions of the Durkee tract were being thus sold, it was sometimes called by the name of Stilson, in the expectation that it might grow into a city, but the city of Scammon, near by, arose in its stead.
In 1907 the Durkees sold a five-acre parcel to John Grant. It was described by metes and bounds. It was situated in the south part of the Durkee tract, bounded on the south by a section-line road and on the east by the Frisco railway. On its west frontage it was bounded for 640 feet by the platted road which is the subject of this lawsuit.
Grant improved this parcel of land to some extent and then sold it to plaintiff in 1908. She erected her house thereon, and has resided there with her family ever since. At the time she acquired the property the platted road was fenced on both sides and open for its entire length of one-half mile. It connected the section-line road on the south side of the Durkee tract with a half-section-line road on the north, which ran eastward into the town of Scammon. The township paid for putting in a culvert where the south end of the road connects with, the section line. Various persons hauled ashes to improve the road, and occasionally it was dragged. Several persons bought parcels of the Durkee land situated on this road. Like plaintiff’s predecessor in title, they also bought their parcels on the faith of the Durkee’s representation that the forty-foot road was devoted to the public use and to the especial use of purchasers from the Durkees. From 1905 to 1918 the public used the road for its entire length and much traffic passed over it. Large numbers of children used the road going to and from school.
At some time, date not shown, the defendant, Frank Zitnik, acquired all title and interest in the Durkee tract which the Durkees had not disposed of as above narrated.. On the strength of this title Zitnik assumed to fence the north end of the road in 1918; and in June, 1928, he fenced it at its south end and also at a point even with the north end of plaintiff’s property. Hence this lawsuit.
Plaintiff’s verified petition pleaded the material facts. The answer was merely a general denial.
At the trial there was a stipulated agreement touching the titles of plaintiff and defendant. A number of witnesses for plaintiff gave testimony as outlined in the above statement of facts. Cross-examination detracted little or nothing from their direct testimony. There was also introduced in evidence a crude plat of the Durkee tract showing the parcels of land into which it had been subdivided and showing the road in controversy. This plat had not been recorded in the office of the register of deeds, but had been used by the Durkees in the sale of the lots and parcels. A deed to one of the parcels, adjacent to that of plaintiff, from the Durkees to William Galloupe was introduced. In the description of that parcel there was this significant recital:
“Being the southeast comer of lot of block 18, on plat of said land kept m the office of J. H. Durkee at Scammon, Kansas!’
Defendant’s demurrer to plaintiff’s evidence was sustained. Hence this appeal.
We set about our review of this case without laboring the familiar proposition that as against a demurrer to evidence every fact and every inference of fact favorable to plaintiff’s cause of action must be indulged. Why,.then, the adverse ruling on plaintiff’s evidence as summarized above? By availing ourselves of the brief of appellee, which upholds the judgment, it would seem that because the road had not been formally dedicated to the public by filing and recording the plat of the Durkee tract in the office of the register of deeds there was not a valid and binding dedication of the road to the use of the general public, nor to the particular use of the plaintiff as successor in title to one of the original purchasers from the Durkees.
Appellee argues that although the Durkees and Zitnik as their successor in title allowed their neighbors and others to use this platted road they did not thereby suffer a loss of the strip of land by user, nor did they lose it by prescription. Such an argument wholly ignores the matter of prime importance in this lawsuit — the purchase of the parcels of land from the Durkees upon reliance on the existence of the road and the Durkees’ representations in reference thereto. It is perfectly absurd to assume that people would buy these parcels with no way of exit therefrom except across an interurban railway on the west or a steam railroad on the east. They bought on reliance of the existence of the forty-foot road as platted. We do not overlook the fact that there is a section-line road south of plaintiff’s property. To send her children to school by that road they must incur the hazard of crossing the interurban line on the west or the railroad on the east. And however that may be, she is entitled to what she and her predecessor in title bought and paid for — the use of the road which the Durkees platted to serve her property and other purchasers of the Durkee lands.
Appellee contends that plaintiff’s case was not bottomed and prosecuted upon a definite and consistent theory. We think it was. That theory was her right to the continuing use of this road without harassment or interference by this defendant. It was satisfactorily shown that the common predecessor in title of both plaintiff and defendant set aside the forty-foot strip of land as a public road through the entire Durkee tract for half a mile. All the evidence wa§ to that effect. Plaintiff has consistently and insistently contended for a continuance of the right which she acquired with her land many years ago. Defendant’s position is not one whit stronger than that of the Durkees themselves would be. Counsel for appellee stress the failure of the Durkees to record their plat in the office of the register of deeds. That negligence was not the fault of the grantees of the Durkee lands, nor does it take anything from the strength of the position of those who bought from the Durkees in reliance on the plat, although it may cause them annoyance as it has done this plaintiff.
It has long been settled that there may be an informal dedication of land for a thoroughfare without a registration thereof in a public office. If the public, or even the parties particularly concerned, actually use the property thus informally dedicated, there is in effect an acceptance which gives rise to rights which a court of equity will protect. (Giles v. Ortman, 11 Kan. 59; Cemetery Ass’n v. Meninger, 14 Kan. 312; Brooks v. City of Topeka, 34 Kan. 277, syl. ¶ 4, 8 Pac. 392; Hayden v. Stewart, 71 Kan. 11, 80 Pac. 43; Meade v. Topeka, 75 Kan. 61, syl. ¶ 1, 88 Pac. 574; Wallace v. Cable, 87 Kan. 835, 127 Pac. 5.)
Appellee reminds us that there is a public road on the south side of plaintiff’s property to which she will continue to have access. That situation sometimes permits a public board like a city council or board of county commissioners to close some other road or street without redressible right in the property owner aggrieved thereby. However, it has yet to be written in any reputable law book that a private person can arrogate to himself such authority.
The judgment of the district court is reversed and the cause remanded with instructions to issue the injunction prayed for and to require the removal of the fences which interfere with the use of the road as contemplated by the parties who platted and subdivided the Dlurkee land in 1905.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injury. Plaintiff recovered, and defendants appeal.
Mumford was engaged in the retail grocery business. White drove Mumford’s delivery truck. While delivering groceries on Georgia avenue in Kansas City, White made a turn in the middle of the block, and operated the truck in such a manner that it ran across the parking, across the sidewalk, and into plaintiff’s yard, where it struck her and knocked her down. Negligence in operating the truck was admitted. The defense was plaintiff was not hurt.
The first assignment of error is that evidence was improperly excluded. The accident occurred in March, 1928. There was abundant evidence of serious physical injury — an abrasion on the head, a large bruise over the ilium, a slipping of the sacroiliac joint, which was set only after two or three trials, strain of muscles and tendons, nerve injury, passing of blood in the urine, and other physical consequences of having been run down by the truck. In August, 1928, plaintiff consulted Doctor Krall, who examined her and made a record of his observations and of what she said. At the trial in February, 1929, Doctor Krall was called as a witness for plaintiff. He gave his testimony and was excused before plaintiff testified. Afterwards defendants called Doctor .Krall as their witness. The doctor was asked to produce his record, to show what plaintiff said to him about headache. The doctor declined to show his record unless the patient consented. Plaintiff’s attorney objected that the record was confidential. Defendants’ attorney made a statement relating to purpose of the evidence, claiming the record would contradict plaintiff’s testimony about headache. Plaintiff’s attorney said plaintiff’s testimony had been misquoted by defendants’ attorney, and objected to the evidence on the ground it was incompetent, irrelevant, and immaterial. After giving his version of plaintiff’s testimony, plaintiff’s attorney made the further objection that the memorandum was privileged. The evidence was excluded, and may have been excluded as not material. Defendants do not complain that, in view of the stated purpose of the offer, the evidence was improperly excluded. In their brief defendants now contend the evidence would have cleared up a matter of loss of weight, something the district court did not hear about when it ruled, or when the motion for new trial was considered.
Defendants requested six instructions relating to proximate cause, a subject which was fully covered by carefully drawn instructions which the court gave.
Complaint is made because the court did not set aside two special findings of the jury, which read:
“1. Q. What amount do you allow for doctors’ bills and medicines? A. $500.
“2. Q. What amount do you allow for pain and suffering? A. $2,000.”
The second special finding was well sustained by evidence.
Plaintiff proved payment for X-ray examination, medicine, and doctor bills, amounting to $238. There was no evidence of any outstanding obligation for doctor bills or medicine. Plaintiff takes medicine four time a day, for relief of an overactive thyroid gland, the only ailment for which she is now undergoing treatment. The jury allowed nothing for permanent injury. There is no substantia] basis for an inference that plaintiff will in the future pay out more than she has already expended. The amount stated in the first finding is reduced to $300, and the judgment is modified accordingly.
As modified, the judgment is affirmed.
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The opinion of the court was delivered by
Jqchems, J.:
This was an action for compensation under the former workmen’s compensation law. (R. S. 44-501 et seq.) Judgment was awarded to plaintiff, and defendant appeals.
The alleged injury occurred on December 31, 1926. Plaintiff was in the employ of the defendant and was unloading coal from a Rock Island coal car which had been sidetracked on the Burlington switch at Seventh and Choctaw streets in Leavenworth, Kan. The defendant company, by whom plaintiff was employed as a driver of one of its trucks, operates a coal yard' and an ice and cold-storage business. Its yard and plant were located between Third and Fourth streets on Choctaw street, about three blocks distant from the point where the plaintiff was working when he was injured. Plaintiff drove a truck from the yard of defendant to the car which was being unloaded. This car was standing on the public switch located as above noted. Neither the railroad car nor the switch track belonged to the defendant, but belonged to a railroad company. Defendant had nothing to do with the operation of the railway or the switch track connected therewith.
Plaintiff alleged that he was assisting in unloading a car of coal and in handling a large chunk of coal, weighing a couple of hundred pounds, as he estimated it, he claimed that in lifting the coal he suffered an injury in that he sprained his back, spine and spinal column so that he was totally incapacitated from December 31, 1926, until in March, 1927, and that from the time'he sustained the injury he suffered and is still suffering permanent partial disability. He agreed to arbitrate, but the company refused and he then brought this suit. The matter was decided before a jury which made answers to special questions, among which were the following:
“Was the plaintiff injured while working at the defendant’s trade or business on, in or about a railway? A. Yes.
“At the time the plaintiff was injured was he working at the place designated for him to work by the defendant? A. Yes.”
The jury further found that the plaintiff was totally incapacitated for work about three months and that partial incapacity was permanent;, that his injuries were ascertainable by objective examination and that while his average wage per week before the injury was $28.50, he has since then been able to earn only $60 per month. The court awarded plaintiff judgment for $3,437.40.
The appellant contends that the district court should have sustained a demurrer to plaintiff’s evidence and should have ordered judgment for defendant on the ground that the evidence showed that the injury received by plaintiff, if any, did not occur “on, in or about” the premises of the employer.
The appellee, on the other hand, calls attention to the statute, R. S. 44-505, containing the language, “that this act shall apply only to employment in the course of the employer’s trade or business on, in or about a railway. . . .,” and urges that the judgment should be affirmed. He contends that inasmuch as the act does not say “its railway” or “the employer’s railway” it is manifest that the judgment should be affirmed. He further contends that the railway was adopted by the defendant as a part of its premises for the doing of the work assigned to plaintiff; that by sending plaintiff to the point where he was injured the defendant extended "the zone of its operations to that point. The appellee cites, among other cases in support of the judgment, the following: Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190; Hoops v. Utilities Co., 116 Kan. 598, 227 Pac. 332; Pegg v. Postal Telegraph Co., 129 Kan. 413, 283 Pac. 58.
In Carter v. Uhrich, 122 Kan. 408, 252 Pac. 240, the Tierney and Hoops cases were discussed and the reasons pointed out plainly as to why the law was construed as it was in those cases. At page 411 the court said:
“The cases of Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190, and Hoops v. Utilities Co., 116 Kan. 598, 227 Pac. 332, are cited by appellant as indicating a tendency to get away from the rule applied in Hicks v. Swift & Co., and Bevard v. Coal Co., supra. Hardly so. The Tierney case and Hoops case were decided on the point that the injuries in each case arose in the course of the employments expressly covered by the terms of the compensation act. The pertinent statute in part reads:
“ ‘That this act shall apply only to employment in the course of the employer’s trade or business on, in or about a factory, mine . . . electric . . . or engineering work . . . each of which employments are hereby determined to be especially dangerous . . .’
“In the Tierney case plaintiff’s employment involved the charging of electric batteries, which constituted ‘electric’ work, and the zone of danger ‘on, in or about’ the telephone company’s ‘electric’ work was wherever its wires were strung and wherever its employees had to go to serve their employer in that kind of work. In the Hoops case the plaintiff’s injuries arose in the course of his employment in behalf of a master who was engaged in building a railroad, an ‘engineering work’ within the express terms of the statute. In the Hicks and Bevard cases plaintiffs were defeated because they could not bring their accidental injuries within the terms of the statute, while in the Tierney and Hoops cases the injured workmen were within its express terms.”
The Pegg case, supra, was one which arose under the new workmen’s compensation law (Laws of 1927, ch. 232), and was specifically based upon the proposition that the plaintiff was engaged in “electric work” within the definition as set forth in section 8 of the act. The case of Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, is one in which this court gave a very exhaustive consideration to the meaning of the term “on, in or about.” It set forth at great length some of the holdings of the courts of England in construing the same phrase in the workmen's compensation act in England and points out that our own workmen’s compensation act was modeled after the one adopted in England in 1897. In the Bevard case, supra, the court said:
“The act is a restricted one. Employments especially and inherently dangerous to life and limb, and none other, were included. The hazards were the necessary and peculiar hazards attending railroading, factory work, mining and the like. There is no anomaly in distinguishing between trainmen and yardmen working on or about a railroad, and railroad employees working in a distant office building where they are as secure from the peculiar hazards incident to railroading as the employees of a bank. Likewise, a factory drayman when in the course of his employment elsewhere than at the factory is no more exposed to extraordinary risk from the nature or condition of the work carried on there than a grocer’s drayman. Consequently the act was extended, not to employment in the course of the employer’s business generally, or wherever conducted, but the employer’s business at designated places.” (p. 214.)
The term “on, in or about” as used in the act under which plaintiff recovered his judgment has been thoroughly discussed and its meaning repeatedly determined in the following cases: Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905; Alvarado v. Rock Crusher Co., 109 Kan. 192, 197 Pac. 1091; Strosnyder v. Strosnyder, 123 Kan. 252, 254 Pac. 1040; Iott v. Mosby, 126 Kan. 294, 268 Pac. 109; Fox v. Victory Ice Co., 129 Kan. 778, 284 Pac. 382.
It requires a fanciful flight of the imagination to place a construction on the act such as the appellee contends should be done. It is manifest that when the act specifies that it “shall apply only to employment in the course of the employer’s trade or business on, in or about a railway” it necessarily means that the employer’s principal business must be that of operating the railway, or that the employer must operate the railway in connection with its principal business. In the present case the defendant was not engaged in the railroad business. It was in the coal, ice and cold-storage business —something entirely foreign to the business of operating a line of railway. Nor does the fact that the employer in this case sent the plaintiff to the switch track to unload the car of coal extend the danger zone of its factory or place of business to the railroad track. To permit such a construction as contended for by the appellee would be to say that the employer would be liable under similar circumstances even if the railway were situated several miles away from the plant. It would mean, also, that if a workman employed by a mining company in its mine were sent to a powder factory for some blasting powder, and while at the factory suffered an injury, the employer would be liable under the act for such injury notwithstanding the “on, in or about” provision of the law. Such a construction of the statute is illogical and unsound. .
The judgment is reversed and the cause remanded with .instructions to the trial court to enter judgment in favor of the defendant.
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The opinion of the court was delivered by
Jochems, J.:
The appellees have filed a motion for rehearing and make an objection to the previous decision of the court which we feel is of sufficient importance to call for additional comment.
The appellees contend that this court has assumed jurisdiction to find the facts and has found facts upon which it bases a judgment, upon the unverified petition of plaintiff, and has directed the district court to enter judgment accordingly, and that this is an erroneous assumption of authority in that it deprives the district court of any opportunity to find the facts in the litigation. The appellees also urge that the court should have gone no further than to remand the cause, with instructions to the district court to overrule the demurrer and proceed to hear the evidence and find the facts.
This was an action seeking a declaratory judgment. As the record came before the supreme court it appeared here upon the petition of the plaintiff and the demurrer thereto on the part of the defendants. On a demurrer, the petition is entitled to a liberal construction and the allegations of fact therein contained are taken as true. In addition to that the appellant made a rather comprehensive statement of facts in its brief and the appellees did likewise. The concluding paragraph of the appellees’ statement of facts, appearing in their brief, reads as follows:
“All of the matters involved in. the statements of the petition and in the above, and in the statement of the ease by appellant in its brief, were argued to the court, and while the ease really stood on a demurrer, in passing upon the matter the court took into consideration the admissions of fact of the parties as well as the statements of fact in the petition.”
Relying upon this statement,, and taking it to be an admission that the facts as set forth in the petition and in the respective statements of fact appearing in the briefs of the parties were true, this court proceeded to glean therefrom the facts set forth in the original opinion. Inasmuch as this was an action for a declaratory judgment this court desired to be of assistance in the matter as far as it consistently could upon the issues raised. It was therefore deemed advisable by the court to take the statements of fact appearing in the petition, as admitted by the demurrer, and the admissions in the briefs, and apply the law to those facts. Ordinarily the procedure would have been to reverse and remand the case to the district court with instructions to overrule the demurrer and proceed to find the facts, but inasmuch as these facts appeared to be admitted and there was no controversy concerning the facts, this court felt that additional litigation might be avoided by a simple statement of the law as applied to the admitted facts.
A declaratory judgment can only be rendered upon facts found by the court or admitted by the parties, but the record in this case did not show any disagreement between the parties as„ to the facts. Upon facts admitted the court can declare the law, and this the court did in the original opinion. If the facts as taken from the record in this appeal are not the facts as they actually exist, then, of course, the judgment rendered by this court would not apply to the real facts and could have binding force only in so far as the facts are correctly stated in the opinion. The appellees in their petition for rehearing do not point out any material differences in the facts as they actually exist as compared with the facts stated in the opinion.
The appellees further complain that this court did not indicate clearly whether or not the county commissioners could make an order under section 4 of chapter 471 of the Laws of 1903, rescinding the previous 'order establishing county high schools. It was pointed out in the original opinion that the legislature by the act of 1923 (R. S. 72-2501 to 72-2506, inclusive) disorganized the county high schools and converted them into community high schools. Inasmuch as the legislature by this act disorganized the county high school previously existing, the county commissioners of Sheridan county no longer have any authority to rescind the order previously establishing the county high schools. Any action on their part attempting to rescind the previous order would be a nullity.
Appellees in their petition for rehearing state:
“It would have been helpful if the court, since it has decided one feature of the matter, had indicated its views as to the obligation of the community school district to continue the school if rooms are not provided.”
This court pointed out in its opinion that since the county high school had been abolished by the legislature and there was no present agreement between the community high-school district and the plaintiff district relative to the use of the rooms, that the plaintiff is free from any obligation to furnish rooms for the community high school. Now, this court is not in a position to make a contract between the parties. Each district has its board of directors or trustees. In the dilemma in which they now find themselves they should certainly be able to find a businesslike way in which to handle the situation. With reference to whether or not the community high-school district wants to continue the community high school, this court is without any power to make a suggestion. That is purely a local matter and is up to the people of the district.
While we do not wish to prejudge the law nor to make any suggestion as to what the parties should do, we have read with some interest chapter 233 of the Laws of 1925. This act may be of some assistance to the parties as it relates to enabling community high schools to provide suitable quarters in which to maintain the high school.
This court feels that it can do no more to be helpful in the present situation, and the original opinion as modified by the statements herein will stand.
A rehearing is denied.
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The opinion of the court was delivered by
Dawson, J.:
A motion and supplemental motion for a rehearing in this case present certain matters for our consideration. Counsel say:
“Under the instructions the jury found B. F. Dole had paid all he owed the plaintiff. This court finds that such is not true, but that there is a balance still due, and by interpretation, holds that such amount is in the 817,500 mortgage.”
The jury made no such finding, and nothing in our opinion justifies the assumption that this court was undertaking to make an independent finding of fact on that or on any other dispute of fact in this lawsuit.
In our narrative of the facts we did say that the homestead of Dole was on part of section 1. Counsel say that in this we were in error. If so the fact has no bearing on the net result. It is also asserted that there was a mortgage on section 1 prior to the one foreclosed on December 31, 1926. The journal entry of foreclosure recited that plaintiff’s judgment was a first lien on the land.
Our only concern with the fact, if it were so, pertained to the argument on appeal as to who, if anybody, was unjustly enriched by the judgment under review. Otherwise it had no material bearing on the net result.
Appellant presses upon our attention additional tabulations of figures to prove that by no possibility could the $12,000 for which section 1 was sold be included in its dictated terms to the bankers who conducted the correspondence for Dole. This court did not undertake to determine that issue of fact. What we tried to do was to show that the evidence, which included the correspondence and all the circumstances, was quite sufficient to resolve that stoutly controverted issue of fact into one for a jury to settle; and that it would have been an unauthorized departure from proper procedure for the trial court or for this court to usurp the jury’s prerogative in respect thereto.
Counsel sharply criticize this court for the significance given to the partial release of the mortgage appearing on page 372 of this volume (ante, pp. 367, 372, 286 Pac. 258). It is asserted that this release was no part of the record and that we had no right to consider it. It is not asserted that the partial release is spurious. Indeed, a curious explanation, itself aliunde the record, is given to the transaction which gave rise to the partial release. Be that as it may, this court would have been quite within its prescribed appellate jurisdiction if it had sent for the record reciting this partial release on its own initiative. Section 580 (R. S. 60-3316) of the civil code provides that in certain circumstances the supreme court may receive further testimony and adopt any procedure not inconsistent with the code which it may deem necessary or expedient for a full and final hearing and determination of the case. This section has often been unsuccessfully invoked by litigants attempting to supply evidence which was wanting to support the judgment of the trial court, or to overthrow the judgment, but this court has repeatedly held that it may serve a useful purpose in facilitating the discharge of this court’s appellate functions where the supplemental evidence is of a character whose accuracy is beyond dispute. Quite properly, we think, the recitals of the partial release can be used in this appellate review to answer the dubious argument of counsel that the entire $17,500 mortgage was extinguished by the payment of the $15,938.22 and the execution of the new mortgage for $13,275. In Ness v. Conway, 93 Kan. 246, 250, 144 Pac. 205, it was said:
“If the statute quoted were to be interpreted as giving this court power on appeal to determine equity cases and others not triable by jury as .a matter of right, in the same way that the district court determines them, it would be unconstitutional. It must, therefore, be interpreted merely as providing this court with adequate means for exercising its true appellate jurisdiction. The nature of the court’s function is not changed and the scope of its original jurisdiction is not enlarged, but the exercise of its appellate jurisdiction is facilitated by giving it command of aids to review supplemental to the strict record of the cause and sufficient to meet the exigencies of any case.
“Sometimes the court is in need of extraneous evidence respecting some situation or fact to enable it to determine, not the propriety of the conduct of the district court, but the nature of the judgment to be directed. Sometimes a document, or probate record, or other item of evidence of like character, material to a proper determination of the appeal and substantially incontestable, is called for, or is examined if produced, and then is treated in the same way as an admission of the parties would be treated if found in the record. These instances are illustrative, and no doubt many occasions will present themselves when it will be important for the court to avail itself of knowledge of some fact not established at the trial in order that it may make just disposition of an appeal.”
In section 4 of the syllabus of this same case it was said:
“Without the aid of a statute this court may, in the exercise of its appellate jurisdiction, avail itself of authentic evidence outside the record to prevent 'a miscarriage of justice, to avoid a useless circuity of proceeding, to protect its jurisdiction, to protect itself against imposition where the controversy has been settled or for other reason no longer in fact exists, and perhaps under other peculiar and extraordinary circumstances.”
See, also, Harris v. Burbery, 83 Kan. 797, 112 Pac. 742; Robinson v. Railway Co., 96 Kan. 137, 144, 145, 150 Pac. 636.
Appellant directs our attention to page 73 of its abstract showing the following:
“Satisfaction of Mortgage.
“The within-described indebtedness is paid, and this mortgage is hereby released this 9th day of November, 1927. The Bankers Mortgage Co.
By J. A. Fleming, Secretary.”
It is not clear just what appellant wishes this court to infer from the excerpt just quoted. It immediately follows and ought to relate to the matter just preceding it — which is an assignment of a mortgage for $1,225, probably one of the four mortgages on the Marion county land involved in the judgment of foreclosure rendered on December 31, 1926.
A careful consideration of the arguments of counsel in support of their motion and supplemental motion for a rehearing discloses nothing of consequence which this court has overlooked, or which would be likely to lead to a different result than that already reached.
The rehearing is denied.
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The opinion of the court was delivered by
Johnston, C. J.:
This action involves the alleged conversion of oil-well casing valued at $2,470.40, and a recovery of that sum with $1,000 as exemplary damages was asked.
On April 18, 1924, the Arkansas River Gas Company brought the action, alleging that it was the owner and had been in the possession of 1,280 feet of 832-pound oil-well casing, at a place known as the Leydig farm, and that Isador Molk, defendant, had unlawfully taken possession of the casing and converted it to his own use. The defendant moved that the Union National Bank be made party, alleging that he had purchased the casing from that bank, and was given a bill of sale of it. That motion was first allowed and summons was served upon the bank, but shortly afterwards its motion to quash was sustained. Before the summons to quash against the bank was sustained, Molk answered and alleged first denying the ownership of the plaintiff or that he had wrongfully taken, possession of it and converted the same to his own use, and in the cross petition stated that he had purchased the casing from the bank, which had represented that it was the owner of it, and further stating that if it should be found that plaintiff was entitled to judgment against the defendant, that it recover judgment against the Union National Bank. The plaintiff claimed that the original owner of the casing, the Broadview Oil Company, sold the casing on October 9, 1923, to J. M. Reynolds, and executed a bill of sale therefor; that Reynolds in turn sold the casing to the plaintiff; that the Union National Bank held a mortgage on the casing executed by the Broadview Oil Company; that the bank had waived its lien under the mortgage; and that the casing was hauled away by the defendant and converted to his own use. The defendant claims that the Broadview Oil Company mortgaged the casing to the Union National Bank; that the indebtedness became due and was unpaid; that the bank foreclosed the mortgage and took possession of the casing; that acting through its agent, Wasson, it sold 1,280 feet of the casing to the defendant and executed a bill of sale for it, and under this authority the defendant took possession of the casing, and he claimed to be the owner thereof. The case was tried to a jury and a general verdict was returned in favor of the defendant. The plaintiff appeals and contends that the verdict is in conflict with the evidence and, further, that some instructions given by the court were misleading and erroneous.
It is insisted that there was no question of fact to be submitted to the jury as to the passing of title, and that the court erred in refusing plaintiff’s motion for a new trial. This contention is based largely on the fact that Reynolds had borrowed or obtained other casing from the plaintiff, and in payment therefor had sold the casing and had assigned the bill of sale to the plaintiff, and that before doing so he secured the approval of the bank, which was attached to the bill of sale, and delivered to the plaintiff, who accepted it in satisfaction of its claim upon Reynolds for casing previously borrowed. The bill of sale of the Broadview Oil Company, executed October 9, 1923, recited that it had received from Reynolds $1,280. This bill of sale was presented to the bank which held the mortgage on the following day, and it placed thereon the following indorsement: “O. K. Union National Bank, by W. B. Harrison, Pt., 10-10-23.” It is contended that as a matter of law this O. K. operated as a waiver of a lien or any claim of title to the property and upon the assignment and transfer by Reynolds the plaintiff became the owner of the property.
It appears that the Broadview Oil Company was the owner of the casing and that it had given a mortgage thereon to the Union National Bank. Later the Broadview Oil Company sold the casing to J. M. Reynolds, who, knowing that the Union National Bank had held a mortgage on the casing, went to the banking house, where a bill of sale was executed in the presence and under the supervision of W. B. Harrison, the president of the bank, after which the approval of the bank was indorsed on the bill of sale. The following is a copy of that writing, with the indorsement of the bank and the assignment of the bill of sale and property to the Arkansas River Gas Company:
“Bill of Sale of Personal Property.
“Know all men by these presents, That in consideration of twelve hundred eighty ($1,280) dollars, the receipt of which is hereby acknowledged, we do grant, sell, transfer and deliver unto J. M. Reynolds, heirs, executors, administrators and assigns the following goods and chattels, viz.: Twelve hundred eighty (1,280) feet of 8%, 32-pound casing, located on northwest quarter (NWlá) of section eighteen (18), township twenty-three (23), range four (4), Butler county, Kansas.
“To have and to hold, all and singular, the said goods and chattels forever. And the said grantor hereby covenants with the said grantee that it is the lawful owner of said goods and chattels; that they are free from all encumbrances; that it has good right to sell the same as aforesaid, and that it will warrant and defend the same against the lawful claims and demands of all persons whomsoever.
“In testimony whereof, The said grantor has hereunto set its hand this 9th day of October, a. d. 1923. (Signed) The Broadview Oil Co.,
By F. B. Manley, Pres.
“Executed in the presence of (Signed) O. E. Fotjlke.
“O. K. Union National Bank, by W. B. Harrison, Pt. 10-10-23. (Indorsed:) No.......... Bill of Sale of Personal Property. From................to .................
“I hereby assign the within bill of sale to Arkansas River Gas Co.
“J. M. Reynolds.”
The determination of the question involved in the action turns on the interpretation of the writing. Did the bank have anything to sell or transfer to defendant, after placing its O. K. on the bill of sale, and thus approving the statements in the writing? It will be noticed that the bill of sale, which purported to transfer the ownership of the casing to Reynolds, contained a guaranty that the seller was the lawful owner of the casing and had the right to transfer it free of all encumbrances. The purchaser desired to have a guaranty from the bank which had held the mortgage, that it was'no longer subject to that encumbrance and presented the bill of sale to the bank for a written assurance of that fact. Instead of making a full formal declaration, the bank, through its president, indorsed on it, “O. K. Union National Bank, by W. B. Harrison, Pt. 10-10-23.” What was the meaning and force of that indorsement? Defendant insists that the term “O. K.” is an equivocal and doubtful expression and should not be regarded as a waiver of a mortgage lien. Few expressions of verification or certificates of approval in business transactions are in more common use than the term “O. K.” Although an abbreviation, it is in such common use and is so well understood that there can be no uncertainty as to its meaning. Webster’s dictionary defines it “All correct,” and the Century Dictionary gives its meaning “All right; correct.” In State v. Construction Co., 91 Kan. 74, 136 Pac. 905, which involved a building contract, an O. K. indorsement was made on one of the papers by the architect, and it was held that the term was in accordance with ' common usage and was a sufficient certificate of the correctness of the estimate upon which it was indorsed. See, also, Lumber Co. v. Peterson & Sampson, 124 Ia. 599; 3 Words & Phrases, 2d Ser. 666; 3 Bouvier’s Law Dictionary, Rawle’s 3d Rev. 2388. As used in this instance there was nothing obscure or uncertain in the term. It was an authentication of the correctness of the statements which preceded the indorsement and a certificate that there was no encumbrance on the casing sold. The bank had held the mortgage on the property and the purchaser wished an assurance from the mortgagee of the correctness of the stipulation that there was no lien on it at the time of the sale. The bank, in order that the sale might be consummated, certified to that fact by placing its O. K. on the declaration that the property was free from encumbrances. The sale being consummated on the faith of its certificate, signed officially by the president, the bank could not thereafter assert a lien against the buyer or his assignee nor claim ownership through its mortgage.
Whether the bank had released its lien by the indorsement was not a question of fact to be submitted to the jury, but was rather one of law for the determination of the court. Upon the evidence touching the certificate of indorsement by the mortgagee, that it was free from liens, a fact not open to dispute, a valid release was effected of any lien the bank may have had — we think just as effective a relinquishment as if it had executed a. formal release of the specific property described in the bill of sale. Thereafter the bank had no right to claim a lien as against the purchaser of the property. As to the property described in the bill of sale, it had nothing to sell to the defendant and, of course, defendant could not acquire any interest in the property from the bank which it had no right to sell. Because this matter of law was submitted to the jury and because of the waiver it must be held that the verdict is not supported by the evidence, and therefore a new trial should have been granted.
Something is said to the effect that there was no separation of the casing sold from that of other sizes on the Leydig farm. The approved bill of sale described the property as of a definite length, weight and size, as well as of its location. It was the manifest intention of the parties that the title to the described casing should pass. The fact that there was other casing of different sizes and weights at the place or even of the same size and weight, would not require a separation of the identified articles where it was the intention of the parties'that the title should pass. Nothing remained to be done to ascertain the price or quality of the article sold. They were in a deliverable condition, one in which the buyer was bound to accept them. If there was something to be done to the property by the seller to ascertain the price — as where the price depended upon quality or quantity of the articles of property— selection or separation might be necessary to the passing of title; but in this instance nothing of that kind was necessary, nor was it the intention of the parties that separation or other action remained to be performed. (Stewart v. Produce Co., 88 Kan. 521, 129 Pac. 181, and cases cited.)
It follows that the judgment must be reversed, but a judgment cannot be directed as there remains for trial the question of the value of the casing taken and appropriated by the defendant. For the trial of that issue the judgment is reversed and the cause remanded. •
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The opinion of the court was delivered by
Johnston, C. J.:
The principal controversy in this litigation arises over an alleged assumption of a mortgage indebtedness made in an exchange of parcels of real estate. John Reinhart and Katie Reinhart, his wife, owned real estate in Florence, Marion county, upon which they had given a mortgage to the Guarantee Title and Trust Company to secure a loan of $5,700. The Benton & Hopkins Investment Company, hereinafter designated as the Investment company, of which Roy T. Wingfield was secretary, owned a tract of land in Colorado upon which there was an encumbrance of $2,600. Through an agent, A. R. Pautz, an exchange of properties was arranged. A contract was prepared in which the Reinharts agreed to accept the Colorado land and to assume and pay the $2,600 encumbrance thereon, and that the Investment company would accept the Florence property for the Colorado land, and as a part of the purchase price would assume and pay the mortgage on the Florence property which had been owned by Reinhart. In making the contract the Investment company was represented by Wingfield, its secretary, who participated in the negotiations and who signed the contract in this way: “The Benton & Hopkins Inv. Co., by Roy T. Wingfield.” The Reinharts were not present when the contract was signed by the Investment company and it was stipulated that it was made subject to the approval of the Reinharts and, if approved and signed, that deeds of conveyance should be executed by the respective parties, these to be held in escrow by Pautz, the agent, with the understanding that as soon as parties had approved of abstracts of title covering the property which they were receiving, and the escrow agent notified the parties of the approval, the deeds were to be delivered. The contract was subsequently signed by the Reinharts, and at the end of about fifty days the deeds were delivered to the respective parties. Each deed recited that the grantee assumed and agreed to pay the encumbrances existing upon the property conveyed to each grantee. The Investment company failed to pay the interest or principal on the mortgage debt against the Kansas property which it had acquired, and an action was brought by the Guarantee Title and Trust Company to recover from the Reinharts the amount due on the notes or bonds which they had signed, and which had been secured by mortgage on the Kansas property. The Reinharts, having executed the notes, had no defense to make as against the plaintiff, and personal judg ment was entered against them on the notes in the amount of $6,702.25 with the direction that execution be issued upon the judgment. The Reinharts paid this judgment and in a cross petition in the action they asked for the amount which they were required to pay in satisfaction of the judgment based upon the debt which had been assumed in the exchange of properties. Issues were joined on their claim and the alleged assumption was tried out between Rein-hart and wife on one side and the Investment company and Wingfield on the other. In the further hearing on this issue judgment was given in favor of the Reinharts against both the Investment company and Wingfield. It is contended on the part of the Investment company and Wingfield that the contract of assumption was not properly executed nor delivered; that under the testimony Wingfield had no authority to execute the contract for the Investment company, and that the evidence failed to show that the Investment company knew that the contract of assumption had been made or that the exchange of properties was made in pursuance of the contract.
On the issue of the authority of Wingfield to act for the Investment company the Reinharts apparently had difficulty in producing direct'evidence of his authority to make a binding contract. There was testimony to show that he was the secretary of the company and had admitted that he signed the name of the company to the contract, but further stated that he was. not authorized to do so. He did state in answer to a question that as secretary he had authority to bind the company in contracts concerning the sale of real estate. Pautz, who conducted the negotiations leading up to the contract, testified that the Investment company had listed other lands for sale, and that he had handled real-estate deals with Secretary Wingfield. When the deed of the Colorado property was forwarded through the mail, the envelope bore markings showing it came from the Investment company. Recognizing the shortness of direct evidence to show Wingfield’s authority, the Reinharts relied largely on the ratification of the transaction by the Investment company. The court instructed the jury that even if the Investment company had not previously .authorized Wingfield to sign the contract, they would be bound by it if afterwards it ratified the same. There was testimony to the effect that the company executed the deed to the Colorado land, which it owned, and which was made in pursuance of the contract, and the deed executed by the Reinharts to the Kansas property was sent to the company and in that deed the assumption of the mortgage was recited. It also appears that the deed was never returned to the sender. The contract provided that the deed should be made to the company or to a party it might designate. It was made to Wingfield. There was plenty, of time for the Investment company to investigate not only the abstract of title to the property, but also the provisions of the contract which its secretary had made for it, and forty-two (42) days after the contract was signed it executed the deed of its Colorado land to the Reinharts. A letter was sent by Reinhart to the company calling attention to the fact that the interest on the mortgage debt of the Kansas property had not been paid. To that notice the vice president wrote the following letter:
“We received your letter of recent date in regard to the loan on the Florence garage, and have been trying to see Mr. Wingfield, who is looking after this property for a client, but he has been very busy and has been almost continuously away from home on trips, but we are sure he will look after the matter just as soon as he gets a moment’s time.”
Notwithstanding it is claimed that Wingfield violated his duty and obligation to the Investment company in'signing the contract without authority, the evidence shows that Wingfield still holds the position of secretary of the company; that he has charge of from three hundred to five hundred quarter sections of land for the company which includes lands handled for other people, and it also appears that there was no disavowal or repudiation of Wingfield’s acts by the company until this action was brought. The Investment company appears to have • transacted business for Reinhart after the delivery of the deeds, in that the interest on the mortgage loan upon the Colorado land deeded to Reinhart was remitted by Reinhart through the Investment company. We think the acts of the Investment company, taken together, were sufficient to justify the jury in finding that the company had adopted and ratified the acts of Wingfield in the execution of the contract which he made for it, stipulating that the company would assume and pay the mortgage debt on the Kansas property. It has joined in the carrying out of parts of that contract and has availed itself of some of its benefits. It has not only procured the exchange of properties as agreed upon, but it has induced Reinhart to assume the $2,600 lien on the Colorado land and thus relieved itself from the payment of that liability.
It is well settled that if a principal who knowingly adopts and accepts the fruits or benefits of a contract made by an agent' who had assumed to act with authority and had signed the name of the principal, but who was not authorized to do so, the principal is bound to the same extent as if express authority had been given the agent at the outset. If any part of the contract is adopted and ratified it operates as a ratification of the whole. (Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074.) In that case it was said:
“In adopting the unauthorized conduct of its agent, the plaintiff was obliged to inquire and ascertain the full extent of it or be bound in the same manner as if it had done so, and it cannot now enforce a portion of Lowell’s agreement without assuming all the liabilities attached to it.” (p. 115.)
Quoting from an authority on agency, the court added:
“It is a fundamental rule that if the principal elects to ratify any part of the unauthorized act he must ratify the whole of it. He cannot avail himself of it so far as it is advantageous to him, and repudiate its obligations; and this rule applies not only when his ratification is express but also when it is implied.” (p. 115.)
See, also, Latham v. National Bank, 40 Kan. 9, 18 Pac. 824; McKinstry v. Citizens’ Bank, 57 Kan. 279, 46 Pac. 302; Isaacs v. Motor Co., 108 Kan. 17, 193 Pac. 1081; Petroleum Co. v. Gas & Fuel Co., 112 Kan. 73, 209 Pac. 826; White Sewing Machine Co. v. Edwards, 120 Kan. 151, 242 Pac. 129.
The Investment company recognized the authority of its agent to dispose of its Colorado land, and also to secure an assumption of the mortgage debt thereon by Reinhart, and having ratified the contract to the extent that it was advantageous to the company, there is carried with it, also, the ratification of the part more burdensome, namely, the assumption of the mortgage debt on the Kansas property received in exchange for its property in Colorado.
There is a contention that the clause of assumption in the contract was placed there after the signatures of the Investment company and Wingfield had been attached to it. Although there is some dispute in the testimony as to this point, there appears to be sufficient evidence to show that the contract was complete when it was signed and included all the provisions set out in the contract produced in evidence. Questions of fact on disputed evidence are conclusively determined by the finding of the jury.
Complaint is made of some of the instructions that were given. While those complained of are general in their terms, we find no error in them. It is said that they should have been more specific in some respects, but it does not appear that more elaborate or specific instructions were requested by the defendants.
A question is raised as to the right of the Guarantee Title and Trust Company to bring the action and obtain the judgment against the Reinharts or that jurisdiction was acquired over the defendants, as it was not sufficiently alleged and shown that the Guarantee Title and Trust Company was the owner of the bonds or notes sued upon. It is further said that the notes were secured by a mortgage on property in Marion county and the lien was necessarily enforceable in that county and not in Nemaha. The suit against the Rein-harts was brought to recover the debt and not to foreclose the mortgage, and no good ground is seen for these complaints. The record discloses that only a personal judgment was asked and given. The defendants came into court and filed pleadings and raised issues which the court tried out, and having thus submitted itself to the jurisdiction of the court it had the power to render a judgment against them.
Other questions discussed are held to be without merit.
Finding no reversible error in the record, it follows that the judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
These two actions, submitted together, present the same legal question. One, No. 29,279, is an original mandamus proceeding in this court to compel the clerk of the district court of Sedgwick county to issue an execution on a judgment in that court. The other, No. 29,479, is an appeal from an order of the court overruling plaintiff’s motion in the action in which the judgment was rendered to require the clerk of the court to issue an execution on the judgment.
On March 12, 1928, in an action pending in the district court of Sedgwick county, in which the Kansas Wheat Growers Association was plaintiff and J. E. Smith was defendant, the plaintiff recovered a judgment for $512.50. On the facts found, plaintiff deemed itself entitled to a larger judgment. Its motion for judgment for a larger amount was overruled, and it appealed. This court, in Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437, directed the trial court to enter judgment for plaintiff for $1,109.25, and on February 21, 1929, judgment was rendered in accordance with the mandate from this court. On February 11, 1929, J. E. Smith, proceeding under R. S. 60-3005, filed a petition for a new trial on the ground of newly discovered evidence. On the clerk’s docket this was given a separate number from the original case. The petition for a new trial was heard August 12, 1929, and denied, the court granting a thirty-day stay. Within that time Smith appealed to this court and, proceeding under R. S. 60-3322, gave a supersedeas bond, entitled in both of the cases as docketed by the clerk of the court, which recited the judgment of February 21, 1929, the filing of the petition for a new trial, and the overruling of the same, and that he intended to prosecute a proceeding to reverse the order denying him a new trial, and by which he and his sureties bound themselves to the plaintiff in the penal sum of $4,000 to “pay the said condemnation money and costs in the aforementioned case and proceeding in the event” the order appealed from should be affirmed. This bond was approved by the clerk of the court.- No question is here raised as to the sufficiency of the amount or securities of the bond. Notice of appeal was duly given from the order denying a new trial.
After this bond was filed plaintiff in the original case filed a prsecipe for an execution on the judgment of February 21, 1929. The clerk of the court declined to issue it because of the appeal and bond. Plaintiff then filed a motion in that case asking the court to direct the clerk to issue the execution. That motion was overruled, and plaintiff appealed. Plaintiff also filed a separate mandamus action in this court to compel the clerk to issue the execution.
The sole question presented here is whether the bond given stays execution on the judgment of February 21, 1929. There appears to have been no previous decision of this court directly in point. A few cases are cited from other states, but the statutes construed are not identical with ours. This much seems clear: Had the trial court sustained the petition for a new trial the effect of it would have been to set aside the judgment of February 21, 1929, and to grant a new trial; and if this court on the appeal from the order denying the petition for a new trial (which appeal has not as yet been presented) should reverse the ruling of the trial court and direct a new trial, the mandate of this court would set aside the judgment of February 21, 1929. It seems important, therefore, that the supersedeas bond should stay that judgment, for it would be futile to enforce its collection when an appropriate proceeding to set it aside is pending undetermined and the judgment creditor is amply protected by a supersedeas bond.
Much is said in the brief of plaintiff and appellant with respect to the petition for a new trial having been given a separate docket number in the district court. We do not regard that as important in so far as it affects the rights of the parties. While perhaps the petition could have been filed in the original case, it is a special proceeding, as distinct from an action, and it was not improper to give it a separate docket number. (McCamish, Kansas Forms, p. 1117, n. 3.)
In the mandamus proceeding No. 29,279 the writ is denied, and in the appeal No. 29,479 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 to quiet title. Plaintiff filed a petition which set forth the usual general allegations and in reply thereto the defendant, Samuel J. Brown, filed an answer and cross petition pleading, in substance, a general denial and alleging that he was the owner of a one-fourth interest in the real estate described in plaintiff’s petition and a one-fourth interest in the sum of $5,000 condemnation money which had been paid to the defendant county treasurer by the Atchison, Topeka & Santa Fe Railway Company in certain condemnation proceedings in which a portion of the lands was taken by the railroad. He further alleged that since 1921 (that being the year in which he obtained title to an undivided one-fourth interest in the lands) the plaintiff had collected all rents and profits therefrom and that defendant was entitled to an accounting of his one-fourth share therein. He also asked judgment for one-fourth of an amount of money received by the plaintiff as the proceeds of an insurance policy which she had collected as a result of a' fire which burned one of the buildings on the lands since he had acquired a one-fourth, interest therein. He further prayed the court that he be adjudged the owner of an undivided one-fourth interest in said lands and that a decree of partition be entered.
The defendant Guarantee Title and Trust Company answered that it was the owner of an undivided one-fourth interest in said property and asked that its rights be protected and that it be given such relief as the court might deem proper.
The plaintiff filed reply to the answer and cross petition of the defendant Samuel J. Brown. A large portion of this reply was ordered stricken out by the court on a motion to strike which was filed by the defendant Samuel J. Brown. No appeal was taken from this order on the motion to strike within six months, but in the reply the general denial and allegations of the source of plaintiff’s title, the allegation as to adverse possession and the death of Jonathan W. Brown were permitted to stand. Upon the foregoing issues the case proceeded to trial. The court made findings of fact and conclusions of law which are quite voluminous. We shall endeavor to set forth the substance of these findings.
For many years prior to 1918 Jonathan W. Brown was the owner of the lands in controversy. In the early part of June, 1918, T. C. Johnson and R. J. Pryor, who were then engaged in the oil business at Wichita, asked Park E. Salter, who was the son-in-law of Jonathan W. Brown, to ascertain whether they could purchase an interest in the oil and gas rights in the Brown lands so that they could form and promote a syndicate with the Guarantee Title and Trust Company of Wichita acting as trustee. Jonathan W. Brown and his wife, Sophronia A. Brown, plaintiff in this case, then resided on or in the neighborhood of this land. No well for oil or gas was ever drilled on the Brown land, but at the time Johnson and Pryor became interested therein an offset well was being drilled on adjoining land. The son-in-law Salter talked over the matter with the treasurer of the trust company and was informed that the company could not act as trustee unless the real estate was deeded over to the company. Thereafter Salter, at the request of Johnson and Pryor, discussed the matter with Jonathan W. Brown and told him the trust company would demand deed, and Brown orally agreed to accept $15,000 and execute a warranty deed to an undivided one-half interest in the real estate. This was agreeable to Johnson and Pryor. A general warranty deed to an undivided one-half interest in the lands in controversy was executed by Brown and wife to the Guarantee Title and Trust Company, as trustee, dated June 7,1918. This deed was delivered to Salter and he took it to Wichita, where it was left in escrow with the trust company on or about June 10, 1918. The deed was placed in an envelope and on the back thereof was indorsed:
“The inclosed deed to be delivered upon payment to you for my account the sum of $20,000 on or before ten days after abstract of title is delivered to you, and to be returned to me if payment is not made by that date; revenue stamps to be deducted from purchase. (Signed) Park E. Salter.”
While the agreement provided for payment of $20,000, the actual consideration which was to go to Jonathan W. Brown was $15,000. This escrow agreement was made to call for $20,000 at the request of Johnson and Pryor so that it would appear to the public that the property was being offered for sale at its cost price, but the $5,000 over and above the purchase price, agreed to be paid to Brown, was in fact to belong to Johnson and Pryor. In April, 1918, Brown and wife had placed an oil-and-gas lease on the lands in controversy to one E. E. Johnson. This lease was for a term of six months from July 28, 1918, and the deed to the Guarantee Title and Trust Company was made subject to this oil-and-gas lease.
On or about June 10, 1918, the trust company and Johnson and Pryor executed a trust agreement in writing which was offered in evidence. This agreement was very elaborate in form and recited that Johnson and Pryor had caused an undivided one-half interest' in the lands in controversy to be deeded to the Guarantee Title and Trust Company and then set forth a declaration that the trust company would hold the interest in said real estate so deeded to it in trust; would collect all rents and royalties and distribute the same to each beneficiary. It set forth that the unit of ownership should be 20,000 and also set forth a form of certificate of ownership which should be issued to each beneficiary from time to time as the interests were sold; provided for the keeping of a register of the units of interest; provided for the time and manner of distribution of income from the rents and royalties; for payment of state and federal taxes; for semiannual reports to the holders of certificates; for compensation of the trustee; for a committee of owners of certificates to consult with the trustee and that the trustee might resign and turn the trust over and convey the property to such person as a majority in interest of the certificate holders should designate. It provided that the trustee should convey said royalty interest or any part thereof by proper instrument of conveyance upon receiving written authority of a majority in interest of the beneficiaries to make such transfer or conveyance; that the proceeds from a sale should be distributed in the same manner as set forth for other income and profits accruing to the trustee from the trust property.
After the execution of this trust agreement Johnson sent a copy of the same to Samuel J. Brown, defendant herein, and offered to sell Brown a half interest in the syndicate for $7,500. On July 2, 1918, Johnson and Pryor by letter again offered to sell Brown 10,000 units, which they stated was one-half the interest deeded to the trust company by Jonathan W. Brown, for $7,500, and on July 3, 1918, Brown paid that amount to the trust company. Immediately upon the $7,500 being paid to the trust company and on the same date, Johnson and Pryor and Park E. Salter went to the Guarantee Title and Trust Company and indorsed upon the envelope containing the deed which had previously been placed in escrow under the agreement above set forth, the following: “Guarantee Title and Trust Company:
“You are instructed to deliver $7,500 paid to you on within escrow to Park E. Salter and record the warranty deed. July 3, 1918.
(Signed) Pryor and Johnson.
By T. C. Johnson,
Park E. Salter.”
There was also indorsed on the envelope: “July 3, 1918, received the above $7,500. Park E. Salter.”
The trust company did not record the deed until July 24, 1918. On July 23, 1918, they received a letter from Samuel J. Brown in which he notified the company that the title had been found defective, without specifying in what manner, and that he had never accepted the proposal made to him, and notified the trust company not to pay over the $7,500 paid in by him.
No one ever sent to Samuel J. Brown any units as provided for in the trust agreement.' On January 7, 1919, he filed action in the United States district court at Wichita against Pryor and Johnson, Salter and Jonathan W. Brown in which he claimed that they had fraudulently obtained $7,500 from him, and asked for judgment against them for that amount. This action terminated in favor of the defendants.
Jonathan W. Brown died intestate the early part of October, 1922, and left surviving him his widow, plaintiff herein, two sons and two daughters. On- October 5, 1922, the sons and daughters conveyed all their interest in the land to the mother, the plaintiff herein. When Samuel J. Brown paid his money to the trust company he had a copy of the trust agreement between that company and Johnson and Pryor. There was no agreement or understanding between the trust company and Jonathan W. Brown that the company should hold the real estate or any interest therein for Jonathan W. Brown or for his use or benefit. The only agreement with Jonathan W. Brown was the escrow memorandum hereinbefore set forth. The court found that about the time Samuel J. Brown paid the money to the trust company, the offset well hereinbefore referred to was completed as a dry hole and that Samuel J. Brown was the only one who ever paid any money to the trust company or purchased any interest in the real estate or the oil and gas rights therein.
On April 4, 1921, the Guarantee Title and Trust Company by special warranty deed conveyed an undivided one-fourth interest in the real estate to the defendant and on April 23, 1921, Pryor and Johnson conveyed to him a like interest by quitclaim deed. Jonathan W. Brown was in the exclusive possession of said real estate up to the time of his death, and Sophronia A. Brown, the plaintiff, was in exclusive possession subsequent to the death of her husband, paying all taxes and receiving all rents and profits therefrom, but neither Jonathan W. Brown nor Sophronia A. Brown ever questioned or disputed the right or title of Samuel J. Brown to a one-fourth interest in the real estate until about the time of the beginning of this suit.
The court concluded as a matter of law that plaintiff was the owner of an undivided three-fourths interest in the real estate in controversy and the defendant Samuel J. Brown was the owner of an undivided one-fourth interest therein; that plaintiff should be held to account to the defendant for a one-fourth portion of the net rents and profits for the years 1925, 1926, 1927, 1928 and for any other rents and profits that might be paid or due in 1929 or thereafter; that the county treasurer pay three-fourths of the $5,000 money in his hands to the plaintiff and one-fourth thereof to Samuel J. Brown; that the plaintiff and the defendant Samuel J. Brown are entitled to judgment quieting their titles in the proportion above determined, and that the real estate should be partitioned subject to the right of way of the railroad company.
Before taking up the various points urged by the appellant as specifications of error we deem it advisable to dispose of one raised by the appellee. The appellee contends that all of the questions now raised by the appellant were disposed of by the court sustaining a motion to strike numerous allegations from the reply of plaintiff to the answer and cross petition of Samuel J. Brown. It is true that the court did strike out a great portion of this answer and no appeal was taken from that order. The appellee now contends that the ruling of the court on the motion to strike settled all the points raised in this appeal. This is not true. The petition and the general denial which was allowed to stand in the reply joined issue to the answer of the defendant. The reply was verified. Striking out certain portions of the reply did not dispose of all the issues. The question of the interests of the plaintiff and the defendant remained to be determined, and under the general denial in her reply the plaintiff had the right to introduce such competent evidence as would disprove the title of the defendant. We hold that the ruling on the motion to strike from the reply did not dispose of the issues in this case.
The appellant urges the following claims for a reversal:
(1) That the evidence failed to show legal or equitable title in Samuel J. Brown, the appellee.
(2) That no authorized delivery of the deed from Jonathan W. Brown to the Guarantee Title and Trust Company was ever made and that it never became operative.
(3) That it was the intention of the parties to the deed that it conveyed only the royalty interest of the grantor under an existing lease and that parol evidence is admissible to show the true character of the transaction.
(4) That his election to rescind and the judgment in the federal court estop the appellee from relitigating the same transaction in this case and is res judicata.
(5) That under the evidence, pleadings and findings the appellant should recover and is entitled to judgment as prayed for in her petition.
We shall discuss the first two points together. Taking up the question that there was no authority to deliver the deed from Jonathan W. Brown to the Guarantee Title and Trust Company, the findings of the court, which are supported by ample evidence, show that Salter, acting as the agent of Jonathan W. Brown, was told by the treasurer of the trust company that the only way they could handle the matter was by having the land deeded to the trust company. Following this, Salter went to Jonathan W. Brown and wife and they agreed to deed over an undivided one-half interest in the land and to accept therefor $15,000. They executed a general warranty deed to an undivided one-half interest in the land, naming the Guarantee Title and Trust Company, trustee, as the grantee. This deed was placed in the care of Salter as their agent and he took it to the trust company and there placed it in escrow under the escrow memorandum hereinbefore set out. The escrow memorandum made the $15,000 which Jonathan W. Brown agreed to take for his deed payable to the account of Park E. Salter. Subsequently, and on July 3, 1918, and at a time when the evidence shows that the test well on the adjoining lands had been proven dry, the $7,500 was paid to the Guaranty Title and Trust Company by the defendant Samuel J. Brown, and the parties Johnson and Pryor and Park E. Salter went to the trust company and drew down the $7,500, which was paid over to Salter for Jonathan W. Brown, and on that occasion the additional memorandum was made by Salter authorizing the trust company to proceed to record the deed. No contention is made in the record that Jonathan W. Brown did not receive the $7,500, nor that Salter did not have authority to draw down the-$7,500 for Brown. The contention is rather that the alleged escrow memorandum having been made on the basis that Brown was to receive the $15,000 through Salter, there could be no valid delivery of the deed unless the full $15,000 was paid. The authority to record the deed was given by Salter on July 3, 1918. The trust company did not act under this authority until July 24, allowing twenty-ofie days to elapse before exercising the authority so granted to it. Then from July 24,1918, the date this deed was placed on record, nothing further was done until the suit was filed in the federal court by Samuel J. Brown against Pryor, Johnson, Salter and Jonathan W. Brown. At that time Jonathan W. Brown had knowledge of everything which was charged in the action in the federal court. In that action he was charged as one of the parties to a conspiracy on the part of the defendants. The petition alleged that he was owner of the fee of said tract of land and entered into a conspiracy to defraud the plaintiff, and it was charged that Jonathan W. Brown conveyed an interest in said land to the Guarantee Title and Trust Company and that this company had paid over the $7,500 to the defendants .for division among them. The original action was filed in the federal court in January, 1919. The amended petition upon which it was tried and which was offered in evidence was filed November 6, 1919. The case went to judgment in the federal court on November 17f 1921. Jonathan W. Brown did not die until October, 1922, but in all of this time he did nothing to repudiate the actions of his agent Salter. On the contrary, he accepted the $7,500 and retained the benefits of the transaction. Furthermore, the deed to Samuel J. Brown from the Guarantee Title and Trust Company, dated April 4, 1921, and the deed from Johnson and Pryor to Samuel J. Brown,, obtained April 23,1921, were both placed on record in Butler county December 24, 1924. The action in this case was not instituted by the plaintiff until the latter part of 1927.
A principal will be presumed to have ratified his agent’s acts unless he repudiates the action within a reasonable time after the essential facts in regard thereto have come to his knowledge. In the case Hartwell v. Manufacturing Co., 78 Kan. 259, 97 Pac. 432, the court said:
“It is trite law that where one, without authority, assumes to act as the agent of another in making a contract, the principal must repudiate the transaction within a reasonable time after all the material facts in regard thereto have come to his knowledge or he will be presumed to have ratified the contract.” (p. 263.)
It is also the law that the acceptance of benefits under a contract by the principal estops him to deny the authority of his agent. In Nation v. Clay, 125 Kan. 735, 266 Pac. 45, the court said:
“Whatever the law of Missouri may be as to the power of a private corporation to act as agent for others, it is clear that defendants should not be permitted to contest the agency after they have received the benefits of the contract procured by the agent, and where full performance has been made by the other party. The acceptance of the benefits of the contract was really a ratification of the contract as made.”
See, also, Ehrsam v. Mahan, 52 Kan. 245, 34 Pac. 800; Bank of Lakin v. National Bank, 57 Kan. 183, 45 Pac. 587.
In Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074, it was held that, a principal cannot appropriate to himself all of the advantages of his agent’s unauthorized act and at the same time repudiate its obligations. Ratification must include the entire act. (See, also, Petroleum Co. v. Gas & Fuel Co., 112 Kan. 73, 209 Pac. 826.)
We hold that Jonathan W. Brown accepted the benefits of his agent Salter’s acts; that there was never any attempt on the part of him or his widow, the plaintiff in this case, to repudiate said acts,, and that all the acts of Salter have long since been ratified and adopted by them as their acts. Furthermore, under the facts found by the court, we also hold that the plaintiff is estopped from at this time raising any question as to a lack of authority on the part of Salter to authorize the delivery of the deed. As argued by the appellee, it is apparent that Jonathan W. Brown received the $7,500 and knew from whence it came; that he could not expect to accept and retain this $7,500 and give nothing in return therefor; that the only source from which the person who paid in the $7,500 could obtain anything was through the deed which Jonathan W. Brown had made to the trust company, and he therefore must have intended that the deed be delivered. In Hoard v. Jones, 119 Kan. 138, 237 Pac. 888, the court quoted with approval from a former decision, Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699, as follows:
“The possession by a grantee of a deed, purporting to convey said real estate, duly executed and acknowledged, and which is absolute in form, is prima facie evidence of a delivery which can be overthrown only by clear and convincing evidence." (Syl. ¶ 1.)
(See, also, Balin v. Osoba, 76 Kan. 234, 91 Pac. 57; Smith v. Dolman, 120 Kan. 283, 243 Pac. 323.)
As to the contention that the evidence failed to show any legal or equitable title in Samuel J. Brown it must be noted that the deed .given to the Guarantee Title and Trust Company as trustee by Jonathan W. Brown and wife did not contain any restrictions on the power of disposition or alienation; the trust company therefore had the power to make a valid deed. In Webb v. Rockefeller, 66 Kan. 160, 71 Pac. 283, the court said:
“Unless otherwise provided the power of disposition or alienation inheres in every grant. To deprive a trustee in a grant of this power of disposition or .alienation the conveyance must contain a clause in restraint of alienation.” (p. 164.)
The deed from Jonathan W. Brown to the trust company was followed by the execution of the declaration of trust between the trust company and Johnson and Pryor, in which it was recited that Johnson and Pryor “have caused to be executed a warranty deed to the undersigned Guarantee Title and Trust Company.” Jonathan W. Brown was not a party to this trust agreement. He had no interest in the declaration of trust. His only interest was that he get paid for his deed. The plaintiff in this case is therefore in no position to complain of the subsequent acts of the trustee and Johnson and Pryor in deeding over to Samuel J. Brown the interest which he had purchased, namely, an undivided one-fourth interest in the lands. No one other than the defendant Samuel J. Brown had purchased any interest under the grant given to the trust company. He had purchased a one-fourth interest, or one-half of the interest conveyed by Jonathan W. Brown to the trust company. As to the question of what evidence of title should be given Samuel J. Brown, the only parties concerned were Samuel J. Brown, the trust company and Johnson and Pryor. The original beneficiaries of the entire interest under the trust agreement were Johnson and Pryor. They in turn sold one-half of their interest to Samuel J. Brown. He thereby became a beneficiary pro tanto. They had a right to quitclaim their interest and the trust company had a right to convey to Samuel J. Brown the interest which he had purchased. Under these circumstances the plaintiff, being a stranger to the trust agreement and having received the benefits of the money paid by Samuel J. Brown, is in no position to complain of the conveyance by the trust company and Johnson and Pryor of the one-fourth interest to Samuel J. Brown. (See Mallory v. Thomas, 71 Kan. 562, 81 Pac. 194.)
The appellant further contends that parol evidence was admissible to show the true character of the action and to show that it was the intention of the parties to the deed that it conveyed only a royalty interest of the grantor under the existing oil-and-gas lease. The deed to the trust company was a general warranty deed for an undivided one-half interest in the land. The parties could very well have made a royalty conveyance conveying only an undivided one-half interest in the oil-and-gas lease, but the court specifically found under the evidence in its third finding that Salter discussed the matter with the treasurer of the trust company and the treasurer informed Salter that the trust company could not act as trustee unless the real estate was deeded to the trust company. Salter discussed the matter with Jonathan W. Brown and told him that the trust company would demand a deed, and Brown then orally agreed to accept $15,000 and execute a warranty deed to an undivided one-half interest in the real estate. It was not competent for the plaintiff to attempt to show by parol testimony that warranty deed was something different from what it appeared-to be on its face. .
In Miller v. Miller, 91 Kan. 1, 136 Pac. 953, it was held that parol evidence is inadmissible to contradict, vary, change or restrict the terms of a valid deed. The plain provisions of the warranty deed could not be changed to make a conveyance of only an undivided one-half interest in the oil and gas rights by parol testimony. If Jonathan W. Brown wanted to make that kind of a deal — if it was his intention to sell only an undivided one-half interest in the oil and gas rights on his land — then he should not have agreed to give a warranty deed. There was a plain and simple method by which such an intention could have been carried out, but it was not carried out by the giving of a warranty deed, and the well-established parol evidence rule will not permit the plaintiff, his successor in title, to come in now and assert that the warranty deed was intended only to be a grant of an undivided one-half interest in the oil and gas rights. Other cases bearing upon the fact that parol testimony cannot be admitted for the purpose desired by the plaintiff are: Brenn v. Insurance Co. 103 Kan. 517, 175 Pac. 383; Hazelton v. Chaffin, 109 Kan. 175, 197 Pac. 870; Manchester State Bank v. Elmo Farmers Union, 119 Kan. 835, 241 Pac. 118.
The appellant contends that the action brought by Samuel J. Brown in the federal court was an election on his part to rescind and that he is now estopped from relitigating the same action in this court and that the trial in the federal court is res judicata as to the claim of title made by the appellee in this case. In the action in the federal court the appellee sought to obtain damages on account of fraud. He failed in that action. Can it then be said that because he failed to obtain damages for fraud and misrepresentation charged to have been made concerning the value of the thing he bought, that as a result of the outcome of that trial he actually lost the thing which he had purchased? This is not true. The only issue litigated in the federal court case was the question of whether or not plaintiff had been damaged by reason of the fraudulent contentions on the part of the defendants. The question of his title or lack of title to the lands was not in issue there and was not litigated. His attempted rescission was not completed. Of course, if he had obtained judgment against the defendants and been restored he could not get his money back and still claim title, but inasmuch as he failed in that action there is no bar to his now claiming title here.
In McDowell v. Gibson, 58 Kan. 607, 50 Pac. 870, the court again defined the essentials which had previously been determined in other decisions of this court, as necessary to sustain a plea of res judicata. At page 608 the court said:
“It is said that to sustain a plea of res judicata there must be a concurrence of four conditions: First, identity in the thing sued for; second, identity of the cause of action; third, identity of persons and parties to the action; fourth, identity of the quality in the persons for or against whom the claim is made.”
Applying these tests to the judgment in the federal court action, we do not find that it is res judicata to the right of the appellee to assert title in this action.
We find no error in the decision of the trial court. The judgment is affirmed.
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The opinion of the court was delivered by
Jochems, J.:
This action was brought on four promissory notes. Judgment was rendered for the plaintiff, and the defendant appeals.
The petition was in four counts, each count being based upon a separate note. To the petition defendant filed an answer and cross petition, and after alleging the preliminary relations between the parties, pleaded a certain contract which was attached as exhibit A. The defendant further alleged that in pursuance to this contract, which provided, among other things, that after funds had been raised from certain sources to defray the expense of erecting the hotel building specified in the contract, that any deficit which should remain should be made up by each of the parties (Glascock, Stamey and Mackey) contributing one-third of such deficit. In consideration of so advancing the deficit each party was to' receive one-third of the common capital stock of the corporation. The defendant further alleged that after raising the funds from the various sources anticipated in the contract, there remained a deficit of approximately $60,000, and that under the terms of the contract the plaintiff should have paid in to the Fifth Avenue Building Corporation (the corporation which built the hotel) the sum of $23,470.75, and that of said amount the plaintiff paid in only the sum of $10,159.16; that he failed and refused to pay in the remainder. The defendant alleged that after plaintiff had so paid in the above sum it was refunded to him; that plaintiff advised the defendant and his associate Mackey that he had met with reverses and was without funds, and it would be necessary for them to advance the remainder of the money and take over his share of the common stock; that he would repay them when Iris affairs were settled and he had funds available. That in order to save the investment of the three parties in the project, and in order to accommodate the plaintiff, and in response to his plea and request, the defendant and his associate Mackey took over plaintiff’s common stock and gave him their notes for the amount of his refund ($10,159.16, above mentioned), and then advanced the remainder of his proportion of the cost of the building out of their own funds in equal parts for and on behalf of the plaintiff. That pursuant thereto the defendant advanced the sum of approximately $11,735.37 on behalf of the plaintiff, and that the said advancements were made over a period beginning about October 14, 1922, and ending about October 12, 1923. That these amounts were necessary to pay for labor, material and supplies. The defendant prayed for recovery against the plaintiff for the sum of $11,735.37 and interest thereon from October 12, 1923.
To this answer and cross petition the plaintiff filed a reply ad-mitting the execution of the contract exhibit A, alleging, however, that the defendant and his associate Mackey, on October 4, 1923, purchased from the plaintiff all of his interest in the Fifth Avenue Building Corporation, and in the contract set forth in defendant’s answer and cross petition, and the interest of the plaintiff in all stock in the corporation which had been issued to the plaintiff or was to be issued to him under the terms of the contract; that as a part of the transaction the defendant and his associate Mackey were to assume all of plaintiff’s obligations under the contract set forth in the answer and cross petition, and were to receive all of the stock issued or to be issued to plaintiff under the terms of the contract. The reply further denied that the defendant and Mackey advanced any funds to the corporation for the account of or on behalf of the plaintiff.
A jury was waived by the parties and upon the foregoing issues the case came to trial before the court. After hearing the evidence the court took the case under advisement and later made findings of fact and conclusions of law. In substance the court found the facts to be as follows:
That in the spring of 1922 the plaintiff Glascock began the promotion of a project to build a five-story hotel on certain property in the city of Hutchinson, which belonged to the defendant Stamey and his associate Mackey; that a charter was obtained for a corporation to be known as the Fifth Avenue Building Corporation, capitalized at $150,000, which was made up of $60,000 preferred stock and $90,000 common stock. The court further found that the contract set up by defendant in his answer and cross petition had been duly entered into on November 2, 1922, between the Fifth Avenue Building Corporation, as party of the first part, Messrs. Stamey and Mackey as second parties, and the plaintiff Glascock as third party; that in pursuance of the terms of the contract the defendant Stamey and his associate Mackey delivered a warranty deed to the hotel company and received a consideration therefor of $30,000 par value of the common stock; that thereafter the building was erected by the corporation and completed in August, 1923, at a cost of $198,000, exclusive of the site. The court found that while the building was in the course of construction mortgages were placed on the property for $65,000; that subscriptions were obtained to the preferred stock by Glascock to the amount of $48,000 and that the solicitation of subscriptions was thereupon discontinued by mutual consent of the parties; that $15,000 was borrowed of the American National Bank in lieu of the sale of the remainder of the preferred stock. The court further found that the plaintiff was a director and officer of the corporation; that about $10,000 of the cost of construction of the building was paid from rentals after the hotel was completed; that the total amount derived from the mortgage, preferred stock subscription, bank loan and rentals was approximately $138,000, leaving a balance necessary to pay the cost of construction of approximately $60,000; that the defendant Stamey and his associate Mackey each advanced $30,000 to cover this deficit, as shown by the corporation’s books. The court further' found that under the contract- exhibit A, which was set forth in the findings in full, the plaintiff Glascock advanced to the corporation approximately $10,000 and was in return issued $10,000 of the common stock of the corporation; that on or about October 4,1923, the defendant Stamey and his associate Mackey purchased this $10,000 worth of common stock from the plaintiff and gave a series of notes payable to plaintiff, maturing over a period of years. That the first four notes of $1,000 each were promptly paid as they matured and part of the unpaid notes are those for which plaintiff sued in this action. The action was brought on such portion of the notes as were due at the time the suit was started. Several notes, in addition to those sued upon, remained undue and unpaid. The court found further that for some reason — -probably on account of financial reverses — the plaintiff in the summer of 1923 found he was unable to fulfill his obligation under the contract, and decided to relieve himself of the obligation and dispose of his stock in the building company. That he first negotiated with one C. E. Brown to take over his stock. Brown decided not to go through with the deal and he then interested Stamey and Mackey, who purchased the stock from him and gave him a series of notes, aggregating $10,000, which included the notes sued upon as hereinbefore set out. The court further found that the defendant in writing agreed to hold the plaintiff harmless on an obligation of $4,875 to the Wheeler-Kelly-Hagny Company, which grew out of the contract exhibit A, and that the defendant further agreed in writing to hold plaintiff harmless from liability on a certain bond given to the Massachusetts Mutual Life Insurance Company guaranteeing the completion of the building and the payment of material and labor bills. That defendant further agreed to hold plaintiff harmless from any liability on the notes given to the American National Bank in the amount of $15,000. That the defendant did not assume the obligation of plaintiff to make advancements under the contract exhibit A, and further, that the contract contained a clause reading:
“No assignment purporting to shift the obligations of any one of the parties as defined herein, shall be valid or shall excuse any one of the parties from performance, unless and until such transfer or assignment and assumption of the obligations by assignee shall have been approved and ratified by the stockholders of the first party.”
The court found that no approval and no ratification of the stockholders was secured, nor was any effort made to secure such ratification, and found further that the advancements made by Stamey and Mackey were made for and on behalf of the plaintiff and were consented to and acquiesced in by the plaintiff; that $30,000 par value of the common stock of the corporation was issued to Stamey and Mackey for the real estate; that they purchased $10,000 par value thereof from the plaintiff, in payment of which the notes sued upon were executed, together with the remainder of the series of notes aggregating $10,000, and the then remainder of stock amounting to $50,000 was issued in equal proportions to Stamey and Mackey.
In its conclusions of law the court set out a clause in the contract exhibit A, reading as follows:
“If for any reason any one of the parties to this contract pays a larger proportion than any other one, then the division of said common stock shall be ratably apportioned according to such increased sum paid by such one.”
The court held that this clause fixed the rights and liabilities of the parties and that under it, if one failed to pay his share when called upon, then the others could pay his share and take the stock which otherwise would have been issued to such one. That the plaintiff failed to pay when called upon and the others, including the defendant, paid what plaintiff failed to pay and took the stock he would have received had he met the call and carried out the terms of the contract; that they have no cause to complain against the plaintiff; that they did no more than they agreed to do when they entered into the contract and would have suffered no loss had the stock been worth the figures they and the plaintiff placed upon it when the agreement was entered into.
Upon this conclusion the court rendered judgment for the plaintiff for the amount of the notes sued upon, plus interest and costs.
The appellant contends that the court found all of the issues of fact in favor of appellant, but held that appellant’s defense was unavailing because of the clause set forth in the court’s conclusions of law. Appellant contends further that the trial court erred in its conclusion in that such conclusion amounted to a holding that if one party advanced more than his share of the deficit he should take the stock as a sort of liquidated .damage for breach of contract on the part of the failing party. He argues that there is nothing in this clause which is not entirely consonant with an interpretation that the party thus advancing additional funds should hold the additional stock as security for the amount advanced until repaid by the parties for whom he advanced it.
The contention of appellant is not tenable. In order to enable the appellant to maintain his position it would be necessary to read into the contract a clause providing that in the event of default by either party, that either of the others shall advance his share of the deficit and the party so advancing may hold the stock of the defaulting party as collateral security and recover from him the amount so advanced. There is no such clause in the contract and it cannot be so construed. The judgment of the court upon the construction of the contract is correct. (Henshaw v. Smith, 102 Kan. 599, 171 Pac. 616; Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 Pac. 933; White v. White, 124 Kan. 449, 260 Pac. 651.)
Other points are urged by the appellee in support of the judgment, but in view of the conclusion reached it is unnecessary to consider them.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages to a motor truck injured in a collision with the defendant’s engine at the intersection of defendant’s tracks and Fifth street in Kansas City. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.
Appellant’s principal contention is that the driver of the motor truck was guilty of contributory negligence as a matter of law. This question was presented to the court below by a demurrer to the evidence, by a motion for a directed verdict, and other appropriate motions.
Fifth street in Kansas City, Kan., is a north-and-south street. It crosses the Kansas river over a bridge. A short distance north of the bridge there is a road or street leading to the west. Fifth street is intersected by seven railroad tracks numbered, for the purpose of identification in this action, from 1 to 7, inclusive, beginning at the south. Track No. 1 crosses Fifth street about 250 feet north of the bridge, and track No. 7 about 225 feet north of track No. 1. Tracks 1, 2, 3 and 4 are tracks of the Kansas City Southern railroad, and tracks 5, 6 and 7 are tracks of the Kansas City Terminal railroad. These tracks, particularly 5, 6 and 7, cross Fifth street at an angle from the northeast to the southwest. The distance between tracks 5 and 6 is 45 feet, and between tracks 6 and 7, 10 feet, if measured at right angles, but if measured along Fifth street the distances are 64 feet and 81 feet, respectively. Tracks 6 and 7 are thoroughfare tracks used for through movements, such as interchange movements, and are never used for the storage of cars. On track 7 trains travel west only, and on track 6 trains travel east only. These tracks are used for the movement of freight cars from one part of the terminal yards to another. Tracks 1 to 5, inclusive, are cross-over tracks used for switching movements, and on them, or some of them, particularly track 5, empty cars are frequently stored to the east and west of Fifth street. These are much-used railroad tracks. Just east of Fifth street and between tracks 4 and 5 is the flag shanty, and a flagman is kept on duty. On the west side of the street between tracks 4 and 5 is the ordinary railroad-crossing sign. Fifth street is paved with brick except between tracks 5 and 6, where it is surfaced with cinders, and between tracks 6 and 7, where it is surfaced with plank. It is admitted that there is a heavy motor vehicular traffic along Fifth street across these railroad tracks, “all the way from one hundred to one hundred thousand cars a day.”
Plaintiff is a farmer and feeds hogs garbage from the city. This is hauled by a truck in large cans. He had a large two-ton Peerless truck driven by his employee, Dennis Reardon, which was used for that purpose. The truck was loaded at a dock just north of the river and west of Fifth street. Reardon had been driving this truck about three years, hauling garbage from this dock to plaintiff’s' farm, and crossed these railroad tracks on Fifth street an average of five times a day. On the day of the collision Reardon had loaded the truck and drove on to Fifth street just north of the bridge and was driving north on Fifth street across the railroad tracks. It was about 4:45 in the afternoon on February 17. It was cloudy, raining a little, or misting rain, with some fog. The street was slippery. The street was practically level, perhaps a little uphill from the point where he entered the street to the point of collision, which was on track 7. The truck, with the load on it, weighed about 14,000 pounds. It was an open truck with a covered cab for the driver. There was a curtain on the right-hand side, but in this the isinglass had been broken out. As Reardon drove north approaching track 1, and when within about twenty-five feet of that track, he stopped and looked for trains and saw none. He started to drive north, driving in intermediate gear, at a speed eight to ten miles per hour. On track 5 a number of large refrigerator cars were standing, extending from near the street some distance to the east. As Reardon drove past the flag shanty the flagman motioned for him to go on. Reardon drove on to the north. In the condition of the street and at the speed he was going Reardon could have stopped his truck in thirty-five feet. As he approached track 7 he saw defendant’s engine coming from the east, pulling six freight cars on that track. He put on his brakes and tried to stop, but it was too late. The southwest part of the engine struck the front part of the truck, smashing the engine, radiator hood and frame, and turned the truck to the west, where it stopped near the edge of the street. • It was not turned over. Defendant’s engine stopped at a distance of about 200 or 250 feet. It was going at a speed of about twenty to twenty-five miles per hour at the time of the collision. Had Reardon at the time he crossed track 5 looked to the right along track 7 there was nothing except the weather con ditions to have prevented him from seeing the oncoming train, which at that time, if the speed was estimated- correctly, was about 250 feet northeast of Fifth street. But he did not look in that direction at that time, and he did not see the train until he was near track 7, and the train was almost upon him, and he was not able to bring his truck to a full stop before colliding with the train.
There was a city ordinance which (if it is valid, and its validity is not questioned here) made it a punishable offense for those in charge of an engine to permit it to cross this street at a speed greater than six miles per hour, and which also required that if the engine were backing some one should be on the rear end of it to warn persons and avoid accidents, and there is evidence on behalf of plaintiff that the engine was backing and that no one was on the rear end of it. We might say that plaintiff’s evidence to the effect that the flagman did not try to stop Reardon, that the train was going at an excessive speed, that it was backing and no one on the rear end of it, and that it ran 200 feet or more before it stopped, is all sharply controverted by evidence on behalf of defendant, but it was the function of the jury and the trial court to weigh this conflicting evidence, and the verdict of the jury based on such conflicting evidence and approved by the trial court cannot be disturbed here. Hence we have stated the evidence offered on behalf of plaintiff on these conflicting points. In determining the legal question presented we must take it as true that the flagman was in his shanty, that he made no effort to stop the driver of the truck but, on the other hand, waved to him to go on, that the train was going at an unlawful and an unreasonable speed, and that it was moving backwards with no one on the rear end to avoid accidents. These things clearly establish the negligence of defendant. But the question still remains, Was the driver of the truck guilty of contributory negligence by the fact that when on track 5, at a distance of 81 feet from track 7, he could have looked to the right and seen the train approaching about 250 feet from the point of collision and did not see the train until he was so close to it that he could not stop before his truck collided with the train?
Appellant invokes the rule, frequently applied by this court (see Butts v. Railway Co., 94 Kan. 328, 146 Pac. 1142; Acker v. Railroad Co., 106 Kan. 401, 188 Pac. 419, and cases cited therein; also United States supreme court in B. & O. R. R. v. Goodman, 275 U. S. 66, and allied cases) to the effect that a railroad track is itself a sign of danger and that a traveler who approaches the track on a highway must use due care to look, listen, or stop if necessary, before driving upon the track, and if he fails to do so and drives upon the track and is injured he is guilty of contributory negligence barring recovery. The cases' referred to do not deal with the situation where there was a watchman, as in the case before us, and appellant recognizes that the force of these authorities is somewhat weakened by that fact.
In McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646, a traveler approached a railway crossing over a much-traveled street in a populous city where gates had been built and maintained, and finding them open, proceeded to cross the street without looking up the track. He was struck by a train and killed. In an action for his wrongful death it was contended that he was guilty of contributory negligence as a. matter of law. The court held that was a proper question to be determined by the jury. In the opinion it was said:
“Ordinarily if a traveler proceeds across a railroad track without taking the precaution to ascertain if there is a train in dangerous proximity he does so at his peril. The application of this rule is modified to some extent by the circumstances that gates have been erected and watchmen employed at crossings. In such case a traveler is not required to exercise the same vigilance when he approaches a track as he would at crossings not so guarded. The railroad track itself is a warning of danger which a traveler cannot safely ignore, but when it is the custom of a railroad company to provide gates or flagmen and thus give other warnings of danger that a train is about to pass, the absence of such warning may lead a traveler to believe that he can safely proceed or that there will be time to cross before a train will pass. The fact that gates have been erected and are open when a traveler approaches a crossing will not justify him, of course, in closing his eyes and ears when passing over railroad tracks, but it is a circumstance to be weighed by the jury in determining whether at the time he was using the care that a reasonable and prudent man would and should exercise.” (p. 30.)
And on page 34, after reciting the facts about the open gate, the .absence of watchmen, and other facts, it was said:
“. . . but these facts, in connection with all the other facts and circumstances of the case, were properly submitted to the jury, and it was for it to decide whether he observed the care for his own safety that a reasonably prudent man would have exercised under the same conditions.”
In Weston v. Hines, 107 Kan. 625, 193 Pac. 340, it was held:
“Where the driver of a vehicle is about to cross a railroad track the fact that he receives a signal from a flagman to go ahead does not relieve him from the obligation to exercise due care for his own protection; but it prevents his failure to ascertain for himself whether a train is approaching (by looking and listening, stopping for the purpose if necessary) from constituting contributory negligence as a matter of law, leaving the jury to determine whether under all the circumstances, including the giving of the signal, he acted with reasonable prudence.”
On page 627, after quoting an instruction which had been complained of, it was said:
“Under this instruction the fact that the flagman signaled the plaintiff to go ahead did not relieve her wholly from the duty of looking out for herself, but did prevent her omission to take any specific- precaution from constituting contributory negligence as a matter of law, the jury being left to determine whether, in view of all the circumstances, including the giving of the signal by the flagman, she exercised reasonable care. This view is in accordance with the weight of authority.
“ ‘It cannot be said as a matter of law that the plaintiff in such a case may rely solely upon the flagman; neither can it be said, as a question of law, that his' failure to look or listen is not contributory negligence. It is a question of fact, to be determined by the jury.’ (22 R. C. L. 1045.)”
In Bollinger v. Railway Co., 113 Kan. 124, 213 Pac. 644, the plaintiff was driving to town over a much-traveled street intersected by a railroad track. A flagman was usually kept at this intersection when trains were near. She was familiar with the crossing, with the fact that the flagman was there when trains were near, and was not present when there were no trains. There was no-flagman. At a point 28 feet from the track she could have seen the oncoming train 73 feet away. She did not see it until she was closer, then turned with the train and tried to stop, but was struck by it and injured. It was held that the question of her contributory negligence was properly submitted to the jury, citing earlier Kansas cases and cases from other states. This was followed in another case of the same title reported in 114 Kan. 669, 220 Pac. 274.
In Peterson v. Railway Co., 115 Kan. 751, 225 Pac. 116, where the railroad company had erected a wigwag at a crossing, and which was out of repair at the time of the collision, the question whether the driver of the truck was guilty of contributory negligence was said to-be a proper question for the jury. To the same effect is Whatley v. Chicago, G. W. Rld. Co., 123 Kan. 187, 253 Pac. 1096, where one driving a horse to a wagon acted upon a signal to cross, which in fact was not intended for him. The question of his contributory negligence was held to be for the jury. A number of cases dealing with gates, gongs and safety devices are collected in the annotation of 53 A. L. R. 973 and 60 A. L. R. 1096.
In Jacobs v. Railway Co., 97 Kan. 247, the driver of an automobile was held guilty of contributory negligence in attempting to cross a railroad track at a grade crossing without looking and listening for the approach of a train. Although an electric bell was maintained at the crossing, the bell was not ringing. The court distinguished that case from McClain v. Railway Co., supra, by saying:
“Human intelligence guarded the crossing and operated the gate in that case. In the present case an electrical, mechanical device was intended to give warning of approaching trains.” (p. 250.)
There is even more reason in this case than in the McClain case to rely on the human-intelligence element, for a flagman stationed at the crossing should be as alert to do his duty as one who is the operator of a gate. In the Decennial Digest, under the subject of “Railroads,” 'key number 350 (28), are collected cases where flagmen were stationed at crossings and which deal with the function of the jury in passing on the question of contributory negligence. We shall not refer to these cases other than to say that the overwhelming weight of authority accords with the rules heretofore announced by this court in the McClain, Weston and Bollinger cases above cited.
At the rate the truck was being driven it would take five to six seconds to drive from track 5 to track 7 across track 6. The driver,, if required to look at all, was under the natural duty to look first, to the left to see if trains were coming on track 6, for that would be the first track he would reach. From the time he was on track 5 until he did look and see the train on track 7 could not have been more than three or four seconds. In view of all the facts and circumstances shown by the record, including his duty in the premises, as stated in the authorities above referred to, the question of the contributory negligence of the driver of the truck was one of fact for the jury rather than one of law for this court.
It should be noted that no complaint is made of the instructions hence we must assume that the court properly instructed the- jury on the questions argued here.
Appellant complains that the trial court overruled its motion to set aside the special findings for the reason that they were not supported by the evidence. We have examined this question and! find.it to be without substantial merit.
Appellant complains of the amount of damages, $1,000, and con tends that it was not supported by the evidence, and that the court received incompetent evidence on that question. Plaintiff testified that he had purchased the truck in 1917 for $3,500 and had used it continuously up to the time of the collision in February, 1926; that he had the truck rebuilt the spring before the collision at a cost of $400 for parts, exclusive of a body and of the labor of installing the parts, and that it was in good running condition at the time of the casualty. We think there was no serious error committed in permitting the witness to testify as to the kind of car it was and the condition it was in. A garage man who had worked on and repaired trucks, and who knew this truck, who had sold quite a few cars and kept in pretty close touch with the prices of different kinds of trucks and cars, testified that he had an opinion as to the reasonable market value of the truck just before its injury and placed that value at $1,200. He further testified the reasonable market value of the truck after it was struck was $50 for 'junk. It is true that at one place in his testimony he said:
“I don’t believe there is a man in the automobile game knows what the market value is of a truck. . . . Oftentimes people ask six or seven hundred dollars for an automobile that ain’t worth a dime.”
But this went to the weight to be given to his testimony rather than to its competency. Had the jury followed the testimony of this witness accurately the judgment would have been for $1,150; but no one is complaining because it did not do so, and we pass that question.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
David Royce Pratt appeals his bench trial convictions of 11 felonies arising from two separate incidents.
SEPTEMBER 21, 1991
During the nighttime hours of September 21, 1991, defendant and Darron Edwards entered the Wichita residence of 64-year-old M.C. and her 92-year-old mother, R.C. M.C. was beaten, raped, and sodomized. Both women were forced into M.C.’s automobile and driven to Emporia. On the way, Edwards attempted to again rape M.C. From this incident Pratt was convicted of aggravated burglary (K.S.A. 1992 Supp. 21-3716); aggravated criminal sodomy (K.S.A. 21-3506); rape (K.S.A. 21-3502); attempted rape (K.S.A. 21-3502, K.S.A. 1992 Supp. 21-3301); and two counts of aggravated kidnapping (K.S.A. 21-3421). Edwards’ convictions arising from this incident were before this court in State v. Edwards, 254 Kan. 489, 867 P.2d 355 (1994).
SEPTEMBER 26, 1991
Defendant and Michael Graff entered the Wichita residence of an elderly couple, Omer and Mina Lindamood. Both residents were beaten, and items were taken from their residence. From this incident, defendant was convicted of aggravated burglary (K.S.A. 1992 Supp. 21-3716); two counts of aggravated robbery (K.S.A. 21-3427); and two counts of aggravated battery (K.S.A. 21-3414).
SUFFICIENCY OF THE EVIDENCE
For his first claim under this issue, defendant contends that, by virtue of his voluntary intoxication, he lacked the specific intent necessary for his convictions of:
1. aggravated burglary,
2. aggravated kidnapping,
3. aggravated battery, and
4. rape and aggravated criminal sodomy (convicted as an aider and abettor in these two offenses).
The standard of review when the sufficiency of the evidence is challenged on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt. State v. Wacker, 253 Kan. 664, Syl. ¶ 4, 861 P.2d 1272 (1993); State v. Stone, 253 Kan. 105, Syl. ¶ 2, 853 P.2d 662 (1993); State v. Tucker, 253 Kan. 38, Syl. ¶ 3, 853 P.2d 17 (1993). The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained. State v. Patterson, 243 Kan. 262, Syl. ¶ 1, 755 P.2d 551 (1988); State v. Willis, 240 Kan. 580, 587, 731 P.2d 287 (1987); State v. Pink, 236 Kan. 715, 729, 696 P.2d 358 (1985).
Voluntary intoxication is neither an excuse for nor a justification of crime. In specific intent crimes, however, voluntary intoxication may be raised as a defense. State v. Gonzales, 253 Kan. 22, Syl. ¶ 1, 853 P.2d 644 (1993).
K.S.A. 21-3208(2) provides:
“An act committed while in a state of voluntáry intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
Specific intent as an element of the crime charged is normally a question of fact for the finder of fact to determine and may be shown by acts, circumstances, and inferences reasonably deducible therefrom and need not be established by direct proof. State v. Dubish, 234 Kan. 708, 716, 675 P.2d 877 (1984). As this was a bench trial, the trial judge was the finder of fact.
Defendant contends that the testimony of Dr. R. Burney White established his inability to form the requisite intent necessary for conviction of the specific intent crimes because of his voluntary intoxication. White, who is certified in addictive medicine, testified that, prior to interviewing defendant, he reviewed defendant’s school and medical records. Meeting with defendant for “a litde over an hour,” White reviewed defendant’s life history, his chemical use history, his physical abnormalities, and his emotional difficulties. When White asked what drugs he had been using, defendant answered “everything,” including butane, marijuana, cocaine, speed, and alcohol, prior to the September 21 and September 26, 1991, incidents. White testified concerning the synergistic effect of combining cocaine and alcohol: “[Y]ou feel more alive but if you go over the edge you become sufficiently deranged, you can’t make any plans but you’re still awake and moving about.” White was unaware of any minimal amounts of an alcohol-cocaine mix which would cause this condition, stating, "[I]fs an unpredictable response with relatively small amounts because they augment each other.” White stated that mixing cocaine and alcohol formed a toxic, brain-damaging agent called cocaethylene.
White did not question defendant concerning his memory of events that led to the charges against defendant. White further stated that when defendant told his story of events in his life, he either chose to ignore the incidents or he did not remember what had occurred on the nights in question. White opined that defendant would, under these circumstances of mixing alcohol and cocaine, be unable to form the requisite intent because he was too sick. On cross-examination, White admitted that doctors do not, on a regular basis, offer an opinion concerning specific intent in a past event because there is no testing instrument for determining intent.
The finder of fact also had before it considerable evidence of defendant’s words and actions during the commission of the crimes from which he could determine whether or not the State had proven the element of specific intent. M.C.’s first contact with Pratt and Edwards was when they entered her bedroom and disabled her telephone. The two men were conversing as they went back downstairs. She followed them out of concern for her elderly mother, who was in a downstairs bedroom. When she arrived, R.C. had been tied to the bed. Pratt then confronted her, asking if she had a VCR, camcorder, or camera. When M.C. answered in the negative, Pratt struck her twice in the face and kicked her after she fell. While Edwards was raping and sodomizing M.C., defendant spent much of the time ransacking the house looking for valuables. He complained that the home offered so few pawn-able items that it was like a convent. Defendant was present part of the time in the room when Edwards was sexually assaulting M.C. and also actively participated in the kidnapping of the two women. As M.C. was being taken to the automobile, Pratt noticed a necklace she was wearing. Pratt asked her if it was a gold chain. When she answered that it was, he yanked it from her neck and put it in his pocket.
At the Lindamood residence, defendant was armed with a shotgun. He knocked out Mr. Lindamood with the butt of the gun after being told by Graff to take care of the man so he would not make any noise. Mrs. Lindamood received skull fractures from a beating during the robbery. Various items of value were taken from the Lindamood home.
There was sufficient evidence from which the finder of fact could conclude that the State had met its burden of proof on specific intent. The finder of fact could reasonably have concluded that the defendant entered both residences with the intent to take items of value from their occupants and did so take property using force to accomplish this purpose. The evidence also supports a finding of the necessary intent for the conviction as an aider and abettor of the sex crimes against M.C. and as a principal in the kidnappings. Sufficient evidence was present from which the finder of fact could have concluded defendant was an active participant in all crimes involved in this issue and had the requisite specific intent for their commission.
For his next claim, defendant contends there was insufficient evidence to support his conviction for attempted rape. As previously noted, defendant was an active participant in forcing M.C. and R.C. into M.C.’s automobile. Edwards was the driver. M.C. was in the passenger seat. Defendant was in the back seat with R.C. Before the vehicle left Wichita, defendant exited the vehicle at a traffic signal. There was evidence he left the vehicle because he was sick and/or believed Edwards was going to leave the state, which defendant did not want to do.
On this claim, defendant argues:
1. By virtue of his voluntary intoxication there was insufficient evidence of the specific intent necessary to convict him as an aider and abettor of the attempted rape;
2. the crime was not foreseeable; and
3. he had withdrawn from the criminal enterprise prior to the commission of the crime in question.
The first point on this claim has been determined adversely to defendant earlier in this opinion.
As to the foreseeable point, K.S.A. 1992 Supp. 21-3205 provides:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
The attempted rape was clearly foreseeable by defendant. Edwards had already raped and sodomized M.C. in her residence. Further, M.C. was under Edwards’ control in the ongoing kidnapping, and he was leaving the city with her. M.C.’s mother, 92-year-old R.C., was very infirm and in no condition to give aid to or prevent further harm to her daughter. We find no merit on this point.
Defendant’s final point is that he had withdrawn from the crime spree before the attempted rape was committed and, accordingly, could not be convicted as an aider and abettor to that crime. Defendant cites no authority in support of this point.
In People v. Brown, 26 Ill. 2d 308, 186 N.E.2d 321 (1962), four men, at least two of whom were armed, entered into a building, announced that it was a stickup, and told the individuals present to lie on the floor. Brown argued he had withdrawn from the scene prior to the felony murder of one of the victims. The Illinois Supreme Court stated:
“Defendant’s initial contention that he is not guilty of murder because he had abandoned and withdrawn from the criminal enterprise of his companions must fail in two respects. We held in People v. Rybka, 16 Ill. 2d 394, 406, that it is ‘the communication of intent to withdraw and not the naked fact of withdrawal that determines whether one who advised, encouraged or incited another to commit a crime is to be released from liability as an accessory before the fact.’ To this need may be added the further requirement that the withdrawal must be timely, that is to say it must be ‘such as to give his coconspirators a reasonable opportunity, if they desire, to follow his example and refrain from further action before the act is committed,’ and it must be possible for the trier of fact ‘to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed.’ (People v. Nichols, 230 N.Y. 221, 129 N.E. 883, 886; also see Galan v. State, 44 Ohio App. 192, 184 N.E. 40.) Stated otherwise, withdrawal may not be effectively made from a felony murder when the ‘transaction which begets it has actually been commenced.’ People v. Nichols, 230 N.Y. 221, 129 N.E. 883, 886." 26 Ill. 2d at 312-13.
Defendant actively participated in and aided in the aggravated kidnappings which were in progress when he left the vehicle. There is no evidence that he left because he wanted no further involvement in criminal activity. Rather, defendant left because he felt physically sick and/or did not want to leave the state. Crimes he had aided in starting in motion continued in his absence with the foreseeable result. An aider and abettor does not have to be physically present when the crime is committed. We conclude there was sufficient evidence to support the attempted rape conviction herein.
UNBRIEFED AND UNARGUED ISSUES
For his final contentions, defendant lists 10 other issues. These issues were neither briefed nor argued and are, accordingly, deemed to have been abandoned. See State v. Smith, 245 Kan. 381, Syl. ¶ 6, 781 P.2d 666 (1989); State v. Words, 226 Kan. 59, 63, 596 P.2d 129 (1979); State v. Mims, 222 Kan. 335, Syl. ¶ 6, 564 P.2d 531 (1977).
The judgment is affirmed.
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The opinion of the court was delivered by
Davis, J.:
The defendant, Mitchell Davis, was convicted after trial by jury of aggravated burglary, aggravated robbery, aggravated battery, attempted first-degree murder, and two counts of unlawful possession of a firearm. He was sentenced to a controlling term of 40 years to life imprisonment. The defendant contends: (1) He is entitled to a new trial because the State improperly commented on his failure to present evidence; (2) the trial court erred by denying his requested instruction that the jury may consider the witness’ prior convictions for crimes involving dishonesty or false statement; and (3) there was insufficient evidence to support his convictions for unlawful possession of a firearm. Finding no reversible error, we affirm.
All charges arose out of two incidents. The first incident involved the defendant, an individual named Gerard Fields, and other (unnamed) individuals. This group went to the home of Michael Ballance to rob and kill him. The second incident occurred the next night, when the defendant allegedly shot and wounded Gerard Fields.
Based upon a relationship Ballance had with Fields’ sister, Fields testified that he knew Ballance would have a lot of drugs and cash in his house. He planned to accompany the defendant to Ballance’s home, rob him, and have the defendant kill Ballance.
Fields and other unidentified individuals rode in the defendant’s car to Ballance’s home. Ballance let them in when Fields identified himself. Fields introduced the defendant as his cousin and asked Ballance if he knew where they could get some marijuana. The defendant pulled a handgun, pointed it at Ballance’s head, and told him to lie down on the floor. The defendant took $200 to $300 from Ballance’s pouch. At some point, a third person entered the house carrying a shotgun. Ballance did not see his face. Later, a fourth man entered the house canying what Ballance believed to be an Uzi.
Fields testified that he took a few things from Ballance’s house and left. He then heard two shots and believed “[t]here was no need to ask” what had happened to Ballance. He met the defendant and the others at the car.
Ballance also testified about the night he was robbed. In pertinent part, his testimony corroborated Fields’ testimony. He identified the defendant as the man who accompanied Fields. He testified that the defendant fired a shot at his (Ballance’s) head before leaving the premises and that an unidentified man with a shotgun fired three shots at him.
The next day, someone left a message at Fields’ sister’s house that Ballance was not dead. Fields went to see the defendant to talk about what to do about it. The defendant told him, “Don’t worry about it, tonight will be clean up night.” Fields interpreted this comment to mean that the defendant was going to go back and kill Ballance.
Later that night, Fields met the defendant at Field’s sister’s house. According to Fields’ testimony, they left together and drove past Ballance’s house. Ballance was not home, and the defendant began asking Fields about the best way to get in and out of another place that he was thinking about robbing. The defendant stopped the car, purportedly so that they could get out and see the other house the defendant wanted to rob. The defendant pointed out the house to Fields. As Fields was looking at it, the defendant said, “Hey, man, check this out. Your friend was easy to get and so are you.” As Fields turned around, the defendant shot him twice, once in the wrist and once in the neck. When the defendant fired those shots he was almost close enough to touch Fields. Fields took four or five steps and then fell to the ground; the defendant ran away.
An ambulance was called and, after it arrived, the attendants asked Fields if he knew who shot him. Fields said he did not know. He later testified that he declined to identify his assailant because it was “the code of the neighborhood,” and he did not realize he was paralyzed. Fields testified that his grandfather persuaded him to tell the truth about who shot him. As a result of the shooting, Fields is quadriplegic.
Based upon the events that occurred in Ballance’s home, the State charged the defendant with aggravated burglary, aggravated robbery, aggravated battery, and unlawful possession of a firearm. The State also charged the defendant with attempted first-degree murder and unlawful possession of a firearm in the shooting of Gerard Fields. The defendant was convicted on all counts.
(1) Comment on the defendant’s failure to present evidence:
The defendant called no witnesses in his case and did not testify. The defense counsel vigorously cross-examined the State’s witnesses, defending on the basis that the State’s witnesses were lying. After the defense counsel made his closing argument, the prosecuting attorney began her rebuttal with the following comment: “Couldn’t do it, could he? Couldn’t give you one bit of evidence throughout the course of this entire trial that would evidence — ” The defense objected immediately, contending that it was not proper argument and noting that the defense is not required to produce any evidence. The court responded to the de fendant’s objection by stating to the prosecuting attorney: “I don’t know what you were getting at, but it sounded dangerously close to — ” The prosecuting attorney then stated: “I — error on the part of an inexperienced prosecutor, Your Honor. Let me rephrase.” This final comment by the prosecutor ended the matter. Nothing further was said by defense counsel, and the court was neither asked to nor did it give a cautionary instruction. The prosecutor continued with her argument but made no further comment concerning the defendant’s failure to present evidence.
The defendant contends that he is entitled to a new trial because the prosecuting attorney improperly commented on his failure to testify or present evidence. In Griffin v. California, 380 U.S. 609, 615, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965), the United States Supreme Court held that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Kansas codified the Griffin rule in K.S.A. 60-439:
“If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.”
We noted in State v. Beebe, 244 Kan. 48, 53, 766 P.2d 158 (1988), that any comment on the defendant’s failure to testify is error “but is not per se reversible error.” In order to constitute reversible error, the comments must be prejudicial as well as improper.
The State contends the comment of the prosecutor was not a comment upon the defendant’s failure to testify. The defendant did not testify or offer any evidence. The prosecutor’s comment made direct reference to the fact that the defendant could not “give [the jury] one bit of evidence” throughout the course of this entire trial. The statement could be perceived as a comment upon the defendant’s failure to testify. It also could be perceived as a comment on the defendant’s failure to establish what he intimated in his opening statement — that the State’s case rested entirely on the testimony of two “liars.”
To the extent that the prosecutor’s comment was directed at the defendant’s failure to testify, it was improper and constituted trial error. However, the statement does not require reversal if it was harmless error. See, e.g., State v. Hamilton, 222 Kan. 341, 345, 564 P.2d 536 (1977). In order for a federal constitutional error to be considered harmless, this court must “be able to declare the error had little, if any, likelihood of having changed the result of the trial and ... be able to declare such a belief beyond a reasonable doubt.” Hamilton, 222 Kan. at 345. Accord State v. Beebe, 244 Kan. at 53; State v. Bell, 239 Kan. 229, Syl. ¶ 3, 718 P.2d 628 (1986).
In determining whether a prosecutor’s improper comments amount to harmless error, our appellate courts consider the “nature and extent of the comment in comparison with the strength of the evidence of the defendant’s guilt, and further consider whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify.” State v. Jagger, 11 Kan. App. 2d 350, 351-52, 720 P.2d 673 (1986). The nature of the comment by the prosecutor, given the fact that the defendant presented no witnesses and did not himself testify, had the effect of violating Gñffin and the provisions of K.S.A. 60-439. However, the comment was interrupted almost immediately by the defense counsel. In his objection, the defense counsel stated in front of the jury that the defendant has no burden to present any evidence. The court cautioned the prosecutor, and she apologized, citing her own inexperience as a prosecutor. These exchanges took place before the jury. We conclude based upon these brief exchanges that “the language used was [not] manifestly intended” to comment on the defendant’s failure to testify. Moreover, the statement of the prosecutor was interrupted before she could indicate what evidence it was that the defendant failed to present. In fact, the State argues that the prosecutor was simply trying to rebut the defendant’s trial contentions.
Several factors lead us to the conclusion that the State’s comments had little, if any, likelihood of having changed the result of the trial. First, the language itself, while suggesting that the defendant offered no evidence, amounted to two lines in an extended record of trial, and the prosecutor was interrupted by an objection and was thus unable to complete her statement. The evidence in this case, while subject to a jury decision on credibility, included direct evidence by the victims that the defendant was the perpetrator.
We also find it significant that the court instructed the jury not to consider the fact that the defendant did not testify: “You should not consider the fact that the defendant did not testify in arriving at your verdict.” In addition, the jury was instructed that it must assume that the defendant was not guilty and that the burden was upon the state to prove his guilt by evidence beyond a reasonable doubt: “The law places the burden upon die state to prove that Mitchell D. Davis is guilty. The law does not require Mitchell D. Davis to prove he is not guilty. Accordingly, you must assume Mitchell D. Davis is not guilty unless the evidence convinces you of Mitchell D. Davis’ guilt.”
Finally, the defendant immediately objected to the comment of the prosecutor, and the court interrupted the prosecutor, allowing no further comment on the subject. The defense counsel did not request a mistrial or limiting instruction. The court’s comment, the prosecutor’s apology, and the lack of further comment are factors we also consider. Perhaps it would have been better for the judge immediately and sua sponte to instruct the jury to disregard the comment and not to draw any inference from the defendant’s failure to give or present evidence. Yet, we are called upon to determine whether this error requires reversal. Because the jury was properly instructed not to consider the defendant’s failure to testify, and based upon the totality of the circumstances, we conclude beyond a reasonable doubt that the prosecutor’s comment had little, if any, likelihood of having changed the result of the trial.
(2) Denial of the defendant’s credibility instruction:
The defendant requested the following instruction at trial: “Evidence of the conviction of a witness for a crime involving dishonesty or false statement may be considered by you in evaluating the truthfulness or veracity of the witness’s testimony in this case.”
The court refused to give the instruction but instead instructed the jury on the standard PIK credibility instruction: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.” PIK Crim. 3d 52.09.
As a general rule, this court recommends that trial courts follow the PIK Committee’s recommendations when instructing the jury. See e.g., State v. Pioletti, 246 Kan. 49, 58-59, 785 P.2d 963 (1990). There are circumstances, however, in which it is appropriate for a trial court to depart from PIK:
“The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to juiy instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” Pioletti, 246 Kan. at 58-59.
Accord State v. Dunn, 249 Kan. 488, 492-93, 820 P.2d 412 (1991).
The evidence of the witnesses’ criminal activity may be summarized as follows. Fields, the attempted murder victim, testified that he had two prior convictions for crimes involving dishonesty or false statement (forgery and aggravated robbery). He testified that-he also had planned the robbery that gave rise to the other charges against Davis and had accompanied Davis and others to Ballance’s home to commit the robbery and intended murder. There was no evidence of any conviction based on his involvement in those crimes. According to Fields, Ballanee ran a crack house, which was why Fields believed he would be a good target for a robbery. There was no evidence that Ballanee had any prior convictions arising out of his alleged drug activity or any other activity. Davis did not testify, but the State proved that he had a “prior felony within 10 years of the occurrences here” to support the unlawful possession of a firearm charge.
The rules of evidence provide important guidance regarding what evidence the jury is allowed to consider in evaluating a witness’ credibility. According to those rules, the jury could properly consider Fields’ prior convictions in evaluating his credibility but not Davis’ prior felony conviction or Ballance’s alleged prior “bad acts.”
Although worded in the converse, K.S.A. 60-421 indicates that evidence that a witness has been convicted of a crime involving dishonesty or false statement is admissible for the purpose of impairing that witness’ credibility. It provides:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
Thus, it would have been proper for the jury to consider Fields’ prior convictions for crimes involving dishonesty or false statement in evaluating his credibility. See State v. Laughlin, 216 Kan. 54, Syl. ¶ 1, 530 P.2d 1220 (1975) (cross examination of a defense witness concerning prior robbery conviction proper impeachment because robbery is a crime of dishonesty within the meaning of K.S.A. 60-421).
On the other hand, Davis did not testify, so evidence of his prior conviction would not be appropriate for impeachment purposes. See K.S.A. 60-421. Moreover, Davis’ prior felony conviction was for possession of cocaine, which is not a crime involving dishonesty or false statement, rendering it inadmissible for impeachment purposes under K.S.A. 60-421. In addition, K.S.A. 60-422(c) and (d) render Davis’ prior felony convictions inadmissible as character trait evidence. Thus, the jury could consider Davis’ conviction only for the limited purpose of establishing an element of the offense of unlawful possession of a firearm.
Finally, there was no evidence that Ballance had any prior convictions, and there was only Fields’ testimony that Ballance al legedly ran a crack house to indicate any alleged criminal activity on his part.
The trial court properly instructed the jury that it could consider Davis’ prior felony conviction for the limited purpose of proving the unlawful possession of a firearm counts. The court also gave the accomplice testimony instruction, PIK Crim. 3d 52.18, presumably because Fields testified that he was an accomplice in the Ballance robbery; the general witness credibility instruction recommended in all criminal cases, PIK Crim. 3d 52.09, and the eyewitness identification instruction, PIK Crim. 3d 52.20.
As a general rule, the PIK Committee does not recommend expanding on the general witness credibility instruction and the committee notes explicitly state that it does not recommend giving a separate instruction on impeachment. See PIK Crim. 3d 52.09, Notes on Use; PIK Crim. 3d 52.15. This Court has held certain expansions on the general witness credibility instruction (PIK Crim. 3d 52.09) aré not clearly erroneous when not objected to at trial. See State v. Bodtke, 241 Kan. 96, 100, 734 P.2d 1109 (1987); State v. Clements, 241 Kan. 77, 81-82, 734 P.2d 1096 (1987). In State v. DeVries, 13 Kan. App. 2d 609, 780 P.2d 1118 (1989), however, the Court of Appeals applied a different standard of review because there was an objection at trial, and the court held erroneous essentially the same language that was at issue in Clements. Compare DeVries, 13 Kan. App. 2d at 617-19, with Clements, 241 Kan. at 81-82. The expanded instruction at issue in DeVries read:
“ ‘It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified. You may take into account tire ability and opportunity of the witness to observe and know the things about which that witness has testified; i.e., memory, manner and conduct while testifying; any interest the witness may have in the outcome of this trial, and the reasonableness of testimony considered in the light of all evidence in this case.’ ” 13 Kan. App. 2d at 617.
DeVries was the only witness who testified for the defense, and he testified that he could not remember any of the events because of his alcohol abuse. The Court of Appeals held that the instruction was inappropriate “[b]ecause of the limited testimony and the direct involvement of DeVries’ ‘memory.’ ” 13 Kan. App. 2d at 618. The court determined that “[t]he opportunity to mislead the jury or cause it to become unduly influenced by specific wording in an instruction which it has been told is ‘the law that applies to this case’ ” required reversal. 13 Kan. App. 2d at 618-19.
Although the language at issue in DeVries is different from that at issue here, the potential problems are the same. If the jury is told that it is appropriate under the law to consider prior convictions for crimes involving dishonesty and false statement in evaluating Fields’ credibility, it might unduly emphasize Fields’ convictions. This court has held that “[ijnstructions should be general in nature and should not be argumentative or overemphasize one particular part of the case.” State v. Norris, 244 Kan. 326, 338, 768 P.2d 296 (1989). It should be emphasized that the jury was able to consider the convictions under the general witness credibility instruction given.
The defendant relies on Fudge v. City of Kansas City, 239 Kan. 369, 376, 720 P.2d 1093 (1986), for the proposition that the requested instruction was required. His reliance is misplaced. In Fudge, we held that it was not error to refuse to give a similar instruction because the crimes involved were not crimes involving dishonesty or false statement. From Fudge, the defendant reasons that because the crimes at issue here did involve dishonesty or false statement, the instruction was required. Although we noted in Fudge that the prior convictions did not involve dishonesty or false statement, 239 Kan. at 376, that was not the only basis for our decision. The appellants in Fudge had sought the instruction because of a witness’ alleged “extensive criminal record.” The court noted that “[sjince appellants made no effort to introduce evidence of [the witness’] ‘extensive criminal record’ they cannot complain of error on appeal.” 239 Kan. at 376. Moreover, the witness’ conviction of vehicular homicide, which was in evidence, could not have been used for impeachment purposes under K.S.A. 60-421. Our holding in Fudge does not require a finding that such an instruction is required in the case now before the court.
The defense counsel in the present case also noted during the instruction conference that many jurors indicated during voir dire that they did not believe prior convictions were appropriate considerations in evaluating credibility. The voir dire was not transcribed, so there is nothing in the record to support this contention.
Although this case presents a somewhat unusual combination of evidence regarding prior convictions and alleged criminal activity, we must read the instructions as a whole and determine whether they “properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them.” If so, “then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988). We conclude that the instructions, read together as a whole, properly and fairly state the law and that the jury could not have been misled by them. The court did not instruct the jury that it could not consider Fields’ prior convictions, and it did instruct the jury that it should use common knowledge and experience in evaluating a witness’ credibility. The court gave a proper limiting instruction regarding Davis’ convictions. In Norris, 244 Kan. at 338, we said that instructions should not overemphasize certain evidence or be argumentative. In these circumstances, we hold that the trial court did not commit reversible error by failing to tell the jury how it could consider Fields’ prior convictions.
(3) Sufficiency of evidence:
The defendant was charged with unlawful possession of a firearm contrary to K.S.A. 1991 Supp. 21-4204(l)(c), which prohibits “possession of any firearm by any person who, within the preceding 10 years, has been convicted of a crime to which this subsection (l)(c) applies, or has been released from imprisonment for such a crime, and has not had the conviction of such crime expunged or been pardoned for such crime.” (Emphasis added.) The defendant contends that the State had the burden to prove that his conviction had not been expunged or that he had not been pardoned and that it failed to meet its burden.
The chief deputy of the criminal department of the district court clerk’s office testified that she checked the defendant’s file and found a record of a 1988 felony conviction and no record of a pardon or expungement. She also found no record of a pardon or expungement in papers that had yet to be filed. On cross-examination, the defense counsel confirmed that K.S.A. 1991 Supp. 21-4619(d) requires that all petitions for expungement be filed in the original criminal action (i.e., the file she reviewed to see if there was a record of expungement). There is no requirement, however, that pardons be recorded in the original district court file. K.S.A. 22-3701(3) requires written notice to the prosecuting attorney and the judge of the court in which the defendant was convicted and published notice in the county paper before the pardon or commutation of sentence is granted. K.S.A. 22-3703 requires the governor to give a list of all persons pardoned to the legislature at each regular session. The deputy clerk conceded that it was possible that a pardon could have been obtained and not appear in the file that she checked.
The State has the burden to prove the elements of the offense it charges. As 'the State notes, however, “the accused has the burden of introducing evidence as a matter of defense that he is within an exception or exemption in the statute creating the offense, where such exception or exemption is not part of the description of the offense.” State v. White, 213 Kan. 276, 280, 515 P.2d 1081 (1973). Accord State v. Braun, 209 Kan. 181, 189-90, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972); State v. Miller, 127 Kan. 487, 491, 274 Pac. 245 (1929).
State v. White, 213 Kan. 276, involved a charge of unlawful delivery of drugs in violation of K.S.A. 1971 Supp. 65-2602(1) (now repealed). That statute provided that “[i]t shall be unlawful (1) To deliver any drugs unless: (A) Such drug is delivered by a pharmacist ... in good faith upon prescription.” In White, we said
“The prohibited conduct is set forth in the phrase 'It shall be unlawful (1) To deliver any drugs . . . .’ The remainder of the above quoted statute sets forth an exception to the first phrase, and was intended merely to take certain persons or acts out of the general prohibition set forth in the statute.
“The general rule has always been in Kansas that the accused has the burden of introducing evidence as a matter of defense that he is within an exception or exemption in the statute creating the offense, where such exception or exemption is not part of the description of the offense. (State v. Braun, 209 Kan. 181, 495 P.2d 1000 and State v. Miller, 127 Kan. 487, 274 Pac. 245.) Accordingly, the prosecution has no duty to prove on its case in chief that the accused is not within the exception. This is a mere rule of procedure and does not relieve the state of its burden of proving guilt. (See, State v. Braun, supra and cases cited therein.)” 213 Kan. at 280.
The language of K.S.A. 1991 Supp. 21-4204 (l)(c) is different from the statutes at issue in White in that it does not create an exception with the words “unless” or “except.” Also, unlike the statutes in Miller, the statute we are concerned with does not set forth a separate provision stating that its prohibitions do not apply under certain circumstances. However, we conclude that there is no difference between a statute that provides it .is unlawful to engage in certain conduct unless certain conditions are met (e.g., the statute at issue in White) and the statute we examine here, which provides it is unlawful for a person with a particular prior conviction to possess a firearm if that person has not had the conviction expunged or been pardoned. Just like the language at issue in White and its predecessors, the language in K.S.A. 1991 Supp. 21-4204(l)(c) creates a condition that exempts a person from the prohibition in the statute. The specific language the legislature chose may be different, but to treat the statutes so differently as to shift the burden to come forward with evidence elevates form over substance. Requiring the State to prove that a conviction had not been expunged or the defendant had not been pardoned would require the State to prove a negative. See White, 213 Kan. at 280. The following language from K.S.A. 1991 Supp. 21-4204(l)(c) — “and has not had the conviction of such crime expunged or been pardoned for such crime” — does not constitute an element of the offense of unlawful possession of a firearm. The prosecution has no duty to prove in its case in chief that the accused’s crime has not been expunged or the accused has not been pardoned. Once the State made a prima facie case, the defendant had the burden to introduce evidence that the conviction had been pardoned or expunged. The defendant made no such showing here; the State satisfied its burden of proof.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by defendant Herbert W. Redmon following his plea of guilty to the offense of aggravated robbery.
Two issues are presented. Defendant claims the trial court abused its discretion in sentencing him to the statutory maximum term of 15 years to life. The second issue is one of jurisdiction.
Redmon was charged with one count of aggravated robbery, a class B felony, in violation of K.S.A. 21-3427. The charge stemmed from an April 3, 1992, incident in which the Handy Stop convenience store in Kansas City was robbed. Defendant pleaded guilty to the offense as charged pursuant to a plea agreement in which the State agreed not to seek imposition of the Habitual Criminal Act. There was no agreement as to sentencing.
A presentence investigation (PSI) was conducted. The PSI report revealed several prior offenses, including convictions for aggravated robbery in 1973 and 1976. For the 1973 offense, defendant served several months before being granted probation. For the 1976 offense, he was incarcerated for approximately 15 years before being paroled from a 30-year to fife sentence on February 18, 1991. The PSI report indicated that defendant was not an appropriate candidate for probation.
Sentencing occurred on September 4, 1992. Defendant’s counsel urged imposition of the minimum sentence, noting that defendant was extremely intoxicated on the day of the offense and that he had encountered financial difficulties since he was released on parole for a prior offense. Counsel stated:
“The evening of this crime, he had drank four pints of alcohol by his own admission to me. He then sat outside of the premises and from what he has told me and from going through the record observed two white males discussing how they were gonna rob the [convenience] store and arguing over who was going to do — to go in and do it. He listened to their discussion for a considerable amount of time and then walked up to them and said, 1 will do it,’ and went and robbed the [convenience] store.”
The State requested imposition of the maximum sentence, and defendant was sentenced to the maximum term of incarceration of 15 years to life.
Defendant’s counsel filed a motion for sentence modification. The Topeka Correctional Facility (TCF) report was completed October 20,1992, and included a recommendation that defendant serve the appropriate term of incarceration. The trial court denied the modification on January 8, 1993, and the journal entry was filed on January 29, 1993.
Defendant’s trial counsel filed a notice of appeal on March 8, 1993, two months after the hearing denying modification and more than one month after the journal entry denying modification was filed. Defendant’s notice of appeal was not timely.
This court raised on its own motion the issue of whether jurisdiction of defendant’s appeal was lacking due to his trial counsel’s failure to timely file a notice of appeal. It is well established that “[t]his court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal.” State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). K.S.A. 22-3608(1) requires that a notice of appeal must be filed not later than 10 days after the district court’s power to modify a defendant’s sentence expires.
In State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982), this court recognized in the interest of fundamental fairness an exception to the time frame under K.S.A. 22-3608(1) “in those cases where a defendant either was not informed of the right to appeal or was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal.” Thus, an appeal may be taken out of time despite the lack of a timely notice of appeal if one of the tests indicated in Ortiz is satisfied.
Here, defendant contends that the trial court failed to' notify him of his right to appeal. Further, he asserts he informed his trial counsel that he desired to appeal, but she failed to timely file the notice of appeal.
Before sentencing defendant, the sentencing court stated on the record:
“Before we start, I want to remind all — any defendant who should receive probation has a right to expungement of the proceedings and a right to appeal relative to jury sentencing and the probation aspect you should confer with your attorney regarding those matters.”
This does not clearly inform defendant of his rights concerning appeal.
Defendant states that he informed his trial counsel that he wanted to appeal, but she failed to perfect an appeal. An affidavit to this effect signed by defendant was submitted in response to this court’s show cause order.
A letter to defendant from trial counsel states:
“If you believe that you were sentenced too severely for the crime that you were convicted of, you may appeal your sentence. However, to discuss that more extensively you will need to contact the Appellate Public Defender’s Office and you should do that upon receipt of this letter." (Emphasis added.)
Defendant’s trial counsel informed him that.in order to pursue an appeal, he must work through the appellate defender’s office rather than through her. This directly contradicts the duty of trial counsel as stated in K.A.R. 105-3-9(a)(3).
Defendant contacted Legal Services for Prisoners, the appellate defender’s office, and the administrative judge of Wyandotte County in an effort to appeal.
Ultimately, defendant’s trial counsel filed a notice of appeal on March 8, 1993. Although this was not timely, we conclude the circumstances warrant permitting an untimely filing based on Ortiz.
Defendant was sentenced to the maximum term of incarceration, 15 years to life. He contends that certain circumstances mitigate against the severity of the offense and that imposing the maximum sentence in light of these mitigating circumstances was an abuse of discretion.
The district court has considerable discretion in determining the sentence to be imposed:
“It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” State v. McDonald, 250 Kan. 73, Syl. ¶.4, 824 P.2d 941 (1992).
See State v. Richard, 252 Kan. 872, 880, 850 P.2d 844 (1993); State v. Turner, 252 Kan. 666, Syl. ¶ 1, 847 P.2d 1286 (1993); State v. Ji, 251 Kan. 3, 40-41, 832 P.2d 1176 (1992). However, the sentencing judge’s discretion “is not boundless and is to be exercised with regard to what is right and equitable under the circumstances.” State v. Bailey, 251 Kan. 527, Syl. ¶ 3, 834 P.2d 1353 (1992).
There are certain factors which must be considered by a sentencing judge in order to properly exercise sentencing discretion. The sentence imposed must be individualized to the defendant, considering the needs of public safety and the welfare of the defendant in light of his or her “individual characteristics, circumstances, needs, and potentialities.” ’K.S.A. 21-4601. Further, “K.S.A. 21-4606(2) sets forth seven factors which, while not controlling, are to be considered by the court in fixing the minimum term of imprisonment which is consistent with the public safely, the needs of the defendant, and the seriousness of the defendant’s crime.” McDonald, 250 Kan. 73, Syl. ¶ 5. The criteria include:
“(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.” K.S.A. 21-4606(2).
When a sentencing judge imposes a sentence greater than the minimum, the judge should make on the record a detailed statement of the facts and factors considered by the court. “Such a record would be of great assistance to the appellate courts in determining whether the sentencing court has abused its discretion.” State v. Buckner, 223 Kan. 138, Syl. ¶ 9, 574 P.2d 918 (1977). See Richard, 252 Kan. at 881; McDonald, 250 Kan. 73, Syl. ¶ 6; State v. Harrold, 239 Kan. 645, Syl. ¶ 3, 722 P.2d 563 (1986). However, failure to make a statement on the record does not necessarily indicate abuse of discretion in sentencing. Whether abuse occurred is to be determined on a case-by-case basis. See Richard, 252 Kan. at 881; McDonald, 250 Kan. 73, Syl. ¶ 6; Harrold, 239 Kan. at 650. Here, defendant does not suggest that the court failed to consider the factors and policies set forth in K.S.A. 21-4601 and K.S.A. 21-4606.
The standard for determining whether a sentencing judge abused his or her discretion in sentencing is as follows:
“One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Stated another way, discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989).
See Taylor v. State, 251 Kan. 272, Syl. ¶ 3, 834 P.2d 1325 (1992); State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991).
Here, the maximum sentence of 15 years to life was imposed. The sentencing court stated on the record:
“The maximum sentence in this case has been given because of your past criminal record. The present conviction represents your third aggravated robbery conviction. Also considered was the use of the gun, to the nature of the crime, and the reason that you were on parole at the time.”
Defendant does not claim that his sentence was the result of partiality, prejudice, oppression, or corrupt motive. Rather, he argues only that the sentencing judge abused his discretion in imposing the maximum sentence. Defendant’s sole argument to show abuse of discretion hinges on an analysis of what he considers to be mitigating circumstances. However, these circumstances are not necessarily mitigating but are subject to multiple interpretations.
Appellate counsel contends defendant had a difficult time finding employment due to his status as a convicted felon and he began to abuse alcohol as a result. Defendant was allegedly intoxicated on the day of this offense. His trial counsel indicated at sentencing that defendant did not intend to commit the rob bery until he overheard two other individuals discussing it. Appellate counsel suggests that defendant’s intoxication and the spontaneity of the offense show that he did not intend his conduct to cause or threaten harm. See K.S.A. 21-4606(2)(c). However, the suggested spontaneity is supported only by the statements of trial counsel and not by other evidence. The PSI report indicates that after defendant entered the convenience store, he “displayed a semi-automatic weapon and demanded cash from the register.” One who displays a weapon and asks for money is hard pressed to claim he did not intend to threaten serious harm.
Appellate counsel also maintains that defendant did not use his weapon and therefore no serious harm occurred. See K.S.A. 21-4606(2) (b). Evidently no physical harm occurred. That is not to say, however, that there was not emotional harm. The victim underwent counseling in part due to defendant’s use of a gun. Further, just because no shots were fired does not mean that the weapon was not “used.” Defendant’s actions substantially affected the victim and it cannot be said that this does not constitute extensive harm.
Next, appellate counsel suggests that defendant was not consciously choosing to resume criminal conduct, but rather he was engaged in a misguided, impulsive act brought about by his financial and emotional difficulties. Impulsive and misguided or not, defendant must take responsibility for the crime he committed.
Appellate counsel also notes that the record does not indicate that defendant is a violent individual or that his conduct has ever physically harmed anyone. Counsel ignores, however, that this is defendant’s third conviction for aggravated robbery. The instant offense was committed only 14 months after defendant’s release on parole after serving 15 years of a 30-year to life sentence for aggravated robbery. Defendant clearly presents a danger to the public safety even if the record does not show that he has ever physically harmed anyone.
Defendant’s claim of abuse of discretion in sentencing is not supported by the record. The sentencing judge considered the statutory criteria, including the nature and circumstances of the crime committed, defendant’s prior criminal history, and the needs of defendant and public safety. What defendant views as mitigating circumstances obviously were not so viewed by the sentencing judge. Imposing a sentence of 15 years to life, although lengthy, was not arbitrary, fanciful, or unreasonable. There was no abuse of discretion in sentencing defendant to the maximum term of incarceration.
Affirmed.
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The opinion of the court was delivered by
Valentine, J.:
The city of Leavenworth caused some grading to be done on the land of Laing and Haines, two of the plaintiffs below, and levied a special tax thereon to pay for said grading. The plaintiffs refused to pay said special tax, and the treasurer of said city then sold said lands for the non-payment thereof.
Por the sake of convenience, (not that it is the most logical,) we will divide and consider the questions in this case, as follows: 1: Was the said sale valid? 2: Was the special tax valid ? 3 : And if said sale and said spe cial tax were both void, is the City of Leavenworth liable to the contractor who did the grading ?
I. We have already decided, (Paine v. Spratley, 5 Kas., 525,) and we now reaffirm the decision, that under chap. 46, art. 2, sub-div. 1, 2, 9, and 22, Comp. L. 1862, 384, et seq.,) the City of Leavenworth was not authorized to sell city lots for special taxes levied on said lots for the improvements of streets, alleys, etc.; (11 Johnson, 77; 4 Hill, 76, 93; 3 Wend., 263; 9 Iowa, 556; 23 id., 410;) that Ordinance No. 90 of said city, entitled “ An ordinance to regulate the opening, widening, grading and improving of streets, alleys, avenues, lanes, and other public grounds of the city, and levying and collecting special taxes for' such improvements,” approved June 24, 1863, was, so far as it provided for a-sale of lots for such special taxes, without authority of law, and therefore void; that the enactment of Chap. 69, Laws of 1864, p. 123, did not have the effect to make valid that portion of said ordinance which was before that time void; and that even under said chap. 69, a valid sale of lots for such special taxes could not be made until the city council of said city had first provided for such sale : (§ 6, ch. 69, Laws 1864.)
All the transactions in the case at bar, the contract, the grading, the levying of the special tax, the sale of the land for such special tax, and the issuing of the sale-certificate, were had in the year 1866, under the laws of 1864, and under so much of said Ordinance No. 90 as was valid. At the time these transactions were had, the city council of Leavenworth had made no provision under the law of 1864, for the sale of lots or land for special taxes. Therefore it is our opinion that the said sale, and the certificate founded thereon, are absolutely void.
II. Was tbe special tax itself valid ? The said grading was done under a contract between the said city and John Dugan, one' of the defendants below, ° for grading Shawnee street, from Eighth to Seventeenth street, through said plaintiffs’ lands. The court below finds, and the evidence seems to sustain such finding, that “ no road or street was ever laid out or dedicated through the plaintaiffs’ land.” The authorities of Leavenworth city seem, therefore, to have transcended their authority in employing Dugan to grade the land of private individuals — to grade land in which neither the city nor the public had any interest. The contract and the said special tax were therefore both void.
But Laing, one of the plaintiffs below, was a resident of Leavenworth city, and knew at the time that his land was being graded, and made no objection ° ° ' ° thereto; hence it is claimed that he is estopped from setting up or claiming that the action of the city authorities, in" causing said grading to be done, was void. It is not claimed that Laing, by any act of his, ever authorized any one to do said grading, or induced any one to believe that he would pay for the same. It is not claimed that he ever admitted the validity of said contract, or the validity of said special tax; nor did he admit that any road or street run through his land. No express contract on his part to pay for said work is claimed; and no implied contract can be presumed from the circumstances. The grading was not done for him, or with any intention of primarily benefitting him. It was done for the city, and the primary object was to benefit the public. With this view of the case we do not think that either Laing or Haines is legally liable to pay for said grading.
III. It is claimed that the court erred in excluding certain evidence which was offered by the city of Leavenworth, to prove that there was a road through the plaintiffs’ land. A witness for the city, J. Gr., was asked by the counsel for the city, “ whether the report of the road viewers had been approved by the board of county commissioners.” The plaintiffs below objected, claiming that oral testimony was not the best evidence, and that the records of the board of county commissioners were the best evidence. The court sustained the objection, and excluded the evidence. This ryas right.
Another witness for the city, E. S., was asked the following question: “ Do you recollect of Edw. Leonard furnishing you a map of a road laid out by _ or(ier of the Board of County Commissioners, running from Broadway, west, where IShawnee street now is?” “ Plaintiff objected, as incompetent under the proof as it now is, which objection was by the court sustained, to which’ ruling the defendant, the city of Leavenworth, excepted.” It would seem from the record that the city of Leavenworth did not inform the court what they wanted to prove by such evidence; and it will also be seen that the plaintiffs did not state why they claimed that such evidence was “ incompetent.” There seems to have been no objection to the form of the question. It is probable that this was only a preliminary question, asked for the purpose of laying a foundation for the introduction of the map spoken of. If it was for any other purpose, it was clearly and entirely incompetent. If it was for that purpose, the court might in its discretion have allowed it to be answered. A court may generally allow any link in a chain of evidence to be introduced, whether it he the first or last, or some intermediate link. And a court generally has the right to determine in its discretion which link shall be introduced first; and unless it abuses its discretion its action will not be subject to be reviewed. The object of the city was probably to prove that a road was located through the plaintiff’s land, and the court in its discretion might have allowed the map of the road to be first introduced in evidence for that purpose, or might have required that evidence of some of the preliminary or other questions tending to prove the ^location.of such a road should be first introduced. At the time this question was asked, and in fact, at the close of the trial, there were still many facts to be shown in order to prove the existence of a valid road, concerning which, no evidence had been introduced. Hence, at no time during the trial was the city of Leavenworth in a condition to demand as a matter of right, that the evidence objected to should be allowed. The court therefore, did not err.
IV. Was the city of Leavenworth liable to said John Dugan, the contractor, who did the grading ? And had the court a right to render judgment in favor of the defendant Michael Jordan, as administrator of the estate of said Dugan, and against the city of Leavenworth, for the value of said grading ? If the first question can be answered in the affirmative, it will be admitted under our code of procedure that the second question may also be answered in the affirmative.
The city of Leavenworth claims that she is not liable under any circumstances. There are other irregularities complained of, besides the one that there was no street or road running through the plaintiffs’ land. These irregularities are as follows:
1. The contract between the city and said Dugan was not executed in accordance with said ordinance No. 90, in this, to-wit: Two-thirds of the members of the city council did not vote, (as the ordinance requires,) to have said grading done; no plats, plans, or specifications were ever made out as said ordinance requires; and the bond given by the contractor was not in double the contract price of the gr'ading. 2d. The property was not appraised as provided by the said ordinance. 3d. The assessment of the special tax to pay for said grading was levied on too great an area of the plaintiff’s land.
Without commenting specially on any of these supposed irregularities or defects, we would say, that the city had full and ample power under the act of 1864, to grade streets within the corporate limits, and that it did not require a vote of two-thirds of the city council to authorize the grading to be done. The city took possession of the land when the grading was done, and claimed that it was a street; the city employed Dugan to do the grading; it accepted the bond and the contract, as binding upon the parties thereto; and the city accepted and approved the grading after it was done. All this was within the general scope of their authority. It is provided for by the city charter: §3, chap. 69, Laws of 1864, p. 126, et seq.; and the city is now estopped from denying the validity of the contract. It cannot now say that the grading was not done on a street; (Mayor v. Sheffield, 4 Wallace, 189;) nor canfihe city set up any of the supposed irregularities, to defeat the contractor’s recovery. (See authorities cited in briefs of counsel, and particularly in brief of counsel for Michael Jordan.) Whether the property was appraised or not, and whether too great or too small an area was taxed, cannot possibly affect this case. The city never had any authority either to appraise the property or assess the tax. As against the plaintiffs below the whole proceeding was void from the beginning.
The decision in the case of Leavenworth vs. Rankin, 2 Kas., 357, is not applicable to the ease at bar. That decision was under a different statute, and under a different ordinance; and the decision was correct. The city council in that case transcended their powers; they went beyond the scope of their authority, violated their own charter — a general statute, of which every one must take notice, and which the contractor is presumed to have known at the time.
"While Dugan, in this case, was bound to know the law as well as the city authorities, yet he was not bound to know that a certain supposed street, which was in the possession of the city, and claimed by the city to be a street, and used as such, had never been legally condemned, as a street, under the right of eminent domain, or had never been' legally dedicated as a street by the proprietor of the land, or had never become a street by usage and prescription. There is also a difference between executed and executory contracts. A city will generally be relieved from performing an illegal or void executory contract before any part of the same has been executed; while on the other hand a city will in many cases be compelled to perform such a contract, if it has already been executed by the other party, and if in equity and good conscience, the city ought to perform it.
The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Allegrucci, J.:
The State of Kansas appeals from the district court’s order dismissing criminal charges against the defendant, Brandon Kelly Gibson. The district court suppressed all the evidence obtained by pen register and wiretaps and, upon the State’s advising the court that there “was no evidence without this,” dismissed the charges against the defendant. The State appeals pursuant to K.S.A. 1993 Supp. 22-3602(b)(lj.;',\:
The State raises two issues on appeal:
1. Does a district judge sitting in one judicial district have power to authorize installation and use of a pen register which has the “slave unit” physically located in another judicial district if the decoding and recording unit is located in the judge’s judicial district and monitoring takes place there?
2. Did the district court err in dismissing the counts which allege that defendant used a telephone to arrange the sale or purchase of controlled substances in violation of K.S.A. 65-4141 on the ground that it is an offense “other than those specified in the order authorizing” the wiretap within the meaning of K.S.A. 1993 Supp. 22-2515(f).
On May 7, 1992, the Honorable Paul E. Miller, Judge of the District Court of Riley County, upon the application of the Assistant Riley County Attorney, signed and ffléd an order authorizing the following in the criminal investigation of Gibson and John Delbane:
(a) The Riley County Police Department may install and use a pen register dial recorder to register numbers calling to and called from 913/539-1861, which corresponds to the physical address of 5617 Elbo Bluff Drive, Manhattan, Pottawatomie County;
(b) the authorization to trap and trace calls is limited to the geographic limits of the jurisdiction of Southwestern Bell Telephone in Riley County;
(c) the purpose of the investigation was to gather information about the unlawful sale of controlled substances; and
(d) the authorization would expire in 30 days.
On May 8, 1992, the order was amended so that the authorization to trap and trace calls was “limited to the geographic limits of the jurisdiction of Southwestern Bell Telephone in Riley and Pottawatomie Counties.” The order states: “The trap/trace device is a two part component. One part will be in rural Pottawatomie County attached to Southwestern Bell’s telephone services and die second part is located in Riley County. The monitoring is located in Manhattan, Riley County, Kansas.”
On May 12, 1992, a similar authorization was obtained from Judge Miller for 913/539-6325, which also corresponds to the physical address of 5617 Elbo Bluff Drive. It, too, authorizes a two-part trap/trace device to be located in Pottawatomie and Riley Counties with the monitoring in Riley County.
On July 7, 1992, a joint application for authorization to intercept and record wire communications was made to Justice Lockett by the county attorneys of Riley and Pottawatomie Counties. The State concedes that the application was “based in part on the information obtained from die pen registers.” In addition to the two telephone lines at 5617 Elbo Bluff Drive to which the pen register devices had been connected, the order authorizing interception applies to 913/539-8845 located at 410 S. Juliette, Manhattan, Riley County. The application and the order of Justice Lockett specify that the type of telephone communications sought concern “sale and possession with intent to sell cocaine as defined by K.S.A. 65-4127a and sale and possession with intent to sell marijuana/tetrahydrocannabinol as defined by K.S.A. 65-4127b and the offenses of conspiracy to commit the above listed offenses as defined by K.S.A. 21-3302.”
In August 1992, a 10-count complaint was filed in Riley County District Court against Gibson. Each odd-numbered count alleged conspiracy to sell controlled substances, contrary to K.S.A. 21-3302, K.S.A. 65-4127a, and K.S.A. 65-4107b. Each even-numbered count alleged use of a telephone to facilitate violation of K.S.A. 65-4127a and 65-4107b, contrary to K.S.A. 65-4141. Counts I and II are based on a telephone call made on a cordless telephone on June 11, 1992. The cordless telephone call was overheard and recorded by law enforcement officers without the use of equipment which requires judicial authorization. Counts III through X are based on telephone calls which were intercepted pursuant to Justice Lockett’s order. An amended information filed in February 1993 retains this organization.
Gibson filed a motion to suppress the evidence obtained through the pen registers and the wiretaps. He contended that the pen registers were unlawful because component parts were located in Pottawatomie County and the authorizations had been issued by a Riley County district judge. He contended that the evidence obtained through the wiretaps shoüld be suppressed as fruit of the poisonous tree. Gibson also sought dismissal of certain counts for failure to specify the offenses alleged in those counts in the application for a wiretap order. On May 25, 1993, Judge Miller ordered that all evidence relating to the charges be suppressed and that all charges filed against the defendant be dismissed. The dismissal was based on K.S.A. 22-2515(6) and State v. Kuchinsky, 3 Kan. App. 2d 224, 592 P.2d 144 (1979). In the order dismissing Counts IV, VI, VIII, and X, the district court stated: “At no time were violations of K.S.A. 65-[4141] specifically brought to the attention of Justice Lockett, nor was any subsequent application made to him to include evidence of those crimes at any time, let alone as soon as practicable.” In a separate journal entry, the district court explained its rationale for suppressing the evidence relating to all of the counts. The district court stated:
“1. A pen register device is comprised of two components. One component being the Bartec monitoring device and the second component being what is referred to by the manufacturer as a ‘slave device.’
“2. The pen register system, as used in this case, required both components to intercept defendant’s telephone transmissions.
‘‘3. The monitoring device was located at Riley County Police Department, Special Investigations Unit Headquarters located in Riley County, Kansas.
“4. The slave device necessary for interception was located in Pottawatomie County.
“5. The Court finds for the reasons set forth in the record that it had no jurisdiction to issue an order authorizing a pen register unit, any part of which is outside of the court’s judicial district.
“It Is Therefore Ordered, Adjudged and Decreed, that because the Court acted outside its jurisdiction in issuing its order authorizing pen register interception of defendant’s telephone transmissions, that all evidence obtained by the State from and after the initial order authorizing pen register interception of defendant’s phone transmissions dated May 7, 1992, should be and is hereby suppressed.”
On June 18, 1993, the State filed a Notice of Appeal from the orders dismissing Counts IV, VI, VIII, and X and suppressing evidence obtained through use of a pen register and wiretap.
We first consider if Judge Miller had jurisdiction to authorize installation and use of a pen register. This question arises because Judge Miller of the Riley County District Court authorized installation and use of pen register devices on Pottawatomie County telephones. The bulk of the equipment and all monitoring were in Riley County, but one component of the equipment was lo cated in Pottawatomie County. Riley County is in the Twenty-first Judicial District. K.S.A. 4-222. Pottawatomie County is in the Second Judicial District. K.S.A. 4-203.
Neither party contends that there are any Kansas cases which directly answer this question. Neither party suggests what the appellate standard of review ought to be. The State relies primarily on federal cases and cites two Kansas cases for the proposition that federal case law is treated as controlling where wiretap statutes are at issue. The only Kansas case discussed by the State is State v. Adams, 2 Kan. App. 2d 135, 576 P.2d 242, rev. denied 225 Kan. 845 (1978), and the point of that discussion is to distinguish Adams from the present case.
In Adams, the district attorney of Johnson County applied to a judge of the Tenth Judicial District for authorization to intercept and record telephone communications on a telephone located in Wyandotte County in the Twenty-ninth Judicial District. “The telephone, the interception bridge, and the monitoring station” all were located in Wyandotte County. 2 Kan. App. 2d 135. The Court of Appeals affirmed the district court’s suppression of evidence obtained fiy the wiretap which had been authorized by the Johnson County judge. 2 Kan. App. 2d at 136.
With regard to this court’s view, the Court of Appeals stated:
“However, the Supreme Court has tended to narrowly construe the statutes governing electronic eavesdropping and has required strict compliance with their terms. In re Olander, 213 Kan. 282, 515 P.2d 1211 (1973); State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975); State v. Dowdy, 222 Kan. 118, 563 P.2d 425 (1977). The court has noted that ‘[n]o area of the law is more sensitive than that of electronic surveillance, since such activity intrudes into the very heart of personal privacy. . . .’ In re Olander, supra, p. 285.” 2 Kan. App. 2d at 138.
The Court of Appeals formulated the following rule:
“Where there is interception of telephonic communications, and the locations of the telephone as to which the intercept is conducted, the intercepting device and the monitoring are within the same judicial district, a district judge sitting in another judicial district has no power under K.S.A., 1976 (now 1977) Supp. 22-2516(3) to authorize the interception.” 2 Kan. App. 2d at 138.
The Court of Appeals relied on the language of K-S.A. 1976 Supp. 22-2516(3), K.S.A. 1976 Supp. 20-301a, and Article 3, § 6 of the Kansas Constitution, stating:
“Pursuant to the statute, a district judge may authorize the interception of wire or oral communications within his ‘territorial jurisdiction.’ The statute gives no authority to a district judge, and he has none, to grant orders for the interception of wire or oral communications outside his ‘territorial jurisdiction.’ We conclude that the ‘territorial jurisdiction’ of [the judge who issued the order], for the purpose of authorizing the interception of wire or oral communications under K.S.A. 1976 (now 1977) Supp. 22-2516(3), was the Tenth Judicial District.
“The territorial limit of the jurisdiction of state courts is defined by state statutes and constitutional provisions. In re Jewett, 69 Kan. 830, Syl. ¶ 3, 77 Pac. 567 (1904). The jurisdiction of a court may be territorially limited by constitutional or statutory provisions to a part of the territory of the sovereignty to which it belongs. 20 Am. Jur. 2d, Courts, § 153, p. 499. Our district courts have only such jurisdiction as may be provided by the legislature. City of McPherson v. State Corporation Commission, 174 Kan. 407, 411, 257 P.2d 123 (1953).
“Article 3, § 6, of the Kansas Constitution (K.S.A. 1977 Supp.) provides as follows:
Ԥ 6. District courts. (a) The state shall be divided into judicial districts as provided by law. Each judicial district shall have at least one district judge. . . .
‘(b) The district court shall have such jurisdiction in their respective districts as may be provided by law.’
“K.S.A. 1976 (now 1977) Supp. 20-301a provides as follows:
‘Classes of judges of the district court. There shall be three classes of judges of the district courts established pursuant to K.S.A. 1976 Supp. 20-301; District judges, associate district judges and district magistrate judges; and as used in this act, the term "judge of the district court” shall mean any of such judges. Such judges shall have the jurisdiction, powers and duties prescribed by this act and otherwise prescribed by law. The judicial power and authority of a judge of the district court in each judicial district may be exercised anywhere within such judicial district, and may be exercised anywhere within any other judicial district when assigned to hear any proceeding or try any cause in such judicial district, as provided in K.S.A. 1976 Supp. 20-319.’ (Emphasis supplied.)
“By statute, Johnson County constitutes the Tenth Judicial District (K.S.A. 1976 [now 1977] Supp. 4-211) and Wyandotte County constitutes the Twenty-ninth Judicial District (K.S.A. 1976 [now 1977] Supp. 4-230).
‘We believe the term ‘territorial jurisdiction’ as used in K.S.A. 1976 (now 1977) Supp. 22-2516(3), when applied to a district judge and when considered in light of Article 3, § 6 and K.S.A. 20-301a, means the judicial district within which the district judge sits.” 2 Kan. App. 2d at 136-37.
The State would have this court disregard Adams on the ground that all equipment and monitoring were in one judicial district and the judge who authorized the activity was in another. Gibson points out that “[t]he Adams court was dealing with a wire tap order and not a pen register order.”
In layman’s terms, a wiretap involves voice communications being heard and recorded; a pen register deciphers numbers being dialed. The statutory definitions pertinent to a wiretap state:
“ ‘[I]ntercept’ means the aural or other acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical or other device.” K.S.A. 22-2514(3).
“ ‘[Contents’ when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport or meaning of such communication.” K.S.A. 22-2514(6).
“ ‘[A]ural transfer’ means a transfer containing the human voice at any point between and including the point of origin and the point of reception.” K.S.A. 22-2514(17).
The statutory definitions pertinent to a pen register state:
“As used in K.S.A. 22-2522 through 22-2529:
“(2) ‘pen register’ means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached ....
“(3) ‘trap and trace device’ means a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.” K.S.A. 22-2529(2) and (3).
The scheme described in the wiretap provisions is more elaborate than that for pen registers. K.S.A. 22-2514 defines 17 terms used in the statutory provisions for the authorized interception of wire, oral, or electronic communications. K.S.A. 1993 Supp. 22-2515 limits applications for authorization to investigations of certain serious crimes and provides for the use and disclosure of the contents of intercepted communications. K.S.A. 22-2516 prescribes the form and contents of the application, issuance of an order, its contents, progress reports, recording of intercepted communications, post-interception notice to persons named in the order, evidentiary status of intercepted communications, grounds for a motion to suppress, and the State’s right to appeal an order denying authorization or suppressing evidence. K.S.A. 22-2517 prohibits the receiving into evidence of unlawfully intercepted wire or oral communications. K.S.A. 22-2518 establishes a civil cause of action for damages for any person whose wire, oral, or electronic communications have been unlawfully intercepted. K.S.A. 22-2519 requires judges who have authorized interceptions and prosecutors to file reports on the interception of wire, oral, and electronic communications to fire administrative office of the United States courts.
A comparison of the contents of the sections dealing with pen registers and the sections dealing with wiretaps reveals that the legislature drew a fairly sharp distinction between the two investigative tools. The initial provisions governing them were enacted at separate times. The pen register and wiretap provisions are discrete and even contain their own definition sections. The maximum duration of a wiretap order is 30 days, and for a pen register it is 60 days. K.S.A. 22-2516(5); K.S.A. 22-2527(3)(a). The lesser degree of invasion involved in the use of a pen register also is reflected by the substantially fewer requirements and restrictions contained in the pen register provisions. Thus, as a general matter, it would not seem that case law interpreting a wiretap provision need be considered controlling authority in the interpretation of a pen register provision.
In the particular instance of the authority of a judge to authorize use of wiretaps and pen registers, there is, in addition to all the schematic differences noted above, a difference in the words chosen by the legislature. K.S.A. 22-2516(1) provides that “[ejach application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing . . . to a judge of competent jurisdiction.” K.S.A. 22-2514(8) states that “ judge of competent jurisdiction’ means a justice of the supreme court, a judge of the court of appeals or any district judge but does not include a district magistrate judge.” K.S.A. 22-2516(3), the provision construed by the Court of Appeals in Adams, provides that upon application, “the judge may enter an ex parte order . . . authorizing the interception of wire, oral or electronic commtinications within the territorial jurisdiction of such judge.” In contrast, K.S.A. 22-2526 provides that an application for an order authorizing a pen register may be made to “a court of competent jurisdiction.” K.S.A. 22-2529(1) states that a “ ‘[cjourt of competent jurisdiction’ means a district court or appellate court.” K.S.A. 22-2527 provides that upon application, “the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court.” Jurisdiction of the court is not defined in the pen register provisions.
Gibson suggests that the court look to K.S.A. 20-301a, which was quoted in a portion of the Adams opinion quoted above, for the definition of jurisdiction of the court. K.S.A. 20-319(b), which is referenced in 20-301a, provides:
“Departmental justices shall have authority within their departments to assign any district judge or district magistrate judge to hear any proceeding or try any cause, within the judge’s jurisdiction, in other district courts. Any departmental justice may request the assistance of any district judge or district magistrate judge from another department.”
The Second and Twenty-first Judicial Districts are within the same judicial department. Supreme Court Rule 1.03(e) (1993 Kan. Ct. R. Annot. 2). Thus, there is no absolute constraint on a district court judge’s extraterritorial functioning.
The federal cases relied on by the State are U.S. v. Burford, 755 F. Supp. 607 (S.D.N.Y. 1991), and U.S. v. Rodriguez, 734 F. Supp. 116 (S.D.N.Y. 1990), cert. denied _ U.S __, 121 L. Ed. 2d 92 (1992). In Burford, there were motions to suppress evidence obtained by both pen registers and wiretaps. The wiretap authorization was issued by a judge in the Southern District of New York for a telephone located in Maryland. 755 F. Supp. at 610. Construing 18 U.S.C. § 2518(3) (Supp. IV 1992), which includes the “territorial jurisdiction” language used in K.S.A. 22-2516(3), the court concluded that “[f]or jurisdictional purposes the question is where the interception occurred.” Here is the court’s analysis:
“The term ‘[¡.Intercept’, as defined in the statute, does' not require die eavesdropper or issuer of die wiretap order to be located in' die same jurisdiction as the tapped fine. Since the information was actually heard in a wire room in New York through the use of a ‘slave’ device, the interception occurred in -this jurisdiction.” 755 F. Supp. at 610.
The court rejected the defendant’s argument “that the determinative question is where the slave device is located.” 755 F. Supp. at 611.
With regard to the pen registers, the defendant “in essence, advance[d] the same jurisdictional arguments against the government’s use of pen registers as those urged to suppress information obtained from the wiretaps.” 755 F. Supp. at 611. The controlling statute, 18 U.S.C. § 3123 (Supp. IV 1992), corresponds to K.S.A. 22-2527(1) in allowing a court to authorize installation and use of a pen register “within the jurisdiction of the court.” The federal court stated: “Unlike the wire tapping statute, where significant issues of privacy are at stake, this law is ‘intended merely to safeguard against purely random use of this device.’ United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990).” 755 F. Supp. at 611. The telephone that was monitored by the pen register in question was located in Maryland, but the pen register device was physically located in New York. 755 F. Supp. at 611. Because it was “ ‘installed and used’ ” in New York, there was no jurisdictional defect. 755 F. Supp. at 611.
In Rodriguez, there were challenges to the evidence obtained by wiretaps and pen registers authorized by a federal judge in New York for telephones in New Jersey. The pen register issue, however, involved the authority of a magistrate and is of no relevance in the present case. 734 F. Supp. 123-24. In a footnote, the court defined a pen register as “a device that records the telephone numbers dialed from a particular telephone. However, it does not overhear the communication and does not indicate whether calls are actually completed. See U.S. v. New York Tel. Co., 434 U.S. 159, 161 n.1, 98 S. Ct. 364, 366-67 n.1, 54 L. Ed. 2d 376 (1977).” 734 F. Supp. at 118-19 n.3.
On the basis of the “interception” analysis, which later was adopted in Burford, the court rejected defendants’ argument that a judge.-sitting in the . Southem District of New York had no jurisdiction to authorize the wiretaps of telephones in New Jersey. 734 F. Supp. at 120-21. The court examined Evans v. State, 252 Ga. 312, 314 S.E.2d 421, cert. denied 469 U.S. 826 (1984), which is cited by the State in the present case, and found its reasoning persuasive. 734 F. Supp. at 120. It also approved the reasoning of Castillo v. State, 761 S.W.2d 495 (Tex. App. 1988), aff’d 810 S.W.2d 180 (Tex. Crim. App. 1990). 734 F. Supp. at 121. Commenting on the state court cases, the federal court stated:
“The logic of these cases is illustrated by a comparison with pen registers. For the very reason that a pen register does not hear sound and therefore does not accomplish an ‘interception’ of wire communications as that term is defined by 18 U.S.C. § 2510(4), the use of pen registers as a device to monitor and record the numbers dialed from a particular telephone was not governed by Tide III [of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-21 (Supp. IV 1992)]. See United States v. New York Telephone Co., 434 U.S. 159, 165-67, 98 S. Ct. 364, 368-70, 54 L. Ed. 2d 376 (1977). It is the capacity of the wiretap to hear and to disclose the contents (the Court emphasized ‘the aural acquisition of the contents’, id. at 166, 98 S. Ct. at 369 (italics in original) of the communication which brought it under Tide III, and which supports the logic of recognizing the jurisdiction of the court at the place where the wiretap is overheard and monitored.” 734 F. Supp. at 121.
In the present case, the district court found that the pen register had two components, the monitoring device and the slave unit; that both were necessary for the enterprise; and that the slave unit was located in Pottawatomie County. The State argues that the district court’s finding that the pen register is a two-part device, one part of which is the slave unit, “is contrary to the statutory definition of a pen register, the functional operation of a pen register and the rulings of federal courts in strictly analogous cases.” We agree.
The district court conducted a hearing on Gibson’s motion to suppress at which several State witnesses described the equipment. First Southwestern Bell Telephone Company’s liaison with law enforcement on “court matters such as this,” David Vogel, testified about the telephone company’s involvement, the equipment, and its installation. According to Vogel, the terms “sack box” and “appearance point” refer to the green boxes one- sees at intervals along the road which contain telephone company equipment and are the points where buried cable is brought above ground for accessibility. He described the slave unit used in this case as a “dial-up slave unit.” Asked to explain how it works, he testified that it connects the target line and the law enforcement line, thus allowing the pen register to be operated from a remote location. Without the slave unit, the pen register would have to be operated at an appearance point of the target line. Thus, it appears from Vogel’s testimony that the slave unit contributes to the success of a surveillance operation by concealing it, but it is not indispensable. On redirect examination, the following questions were asked and answered:
“Q. Then the slave unit is not actually an intrinsic part of the pen register?
“A. No. The pen register can be operated — it does not require a slave unit to operate a pen register. It’s a choice. It’s a bridging device that is — was just a choice of, in this particular case, of law enforcement.
“Q. Then would you call it an accessory?
“A. Yes.”
Vogel was asked a number of questions with respect to why the slave unit was placed in Pottawatomie County at an appearance point near Gibson’s residence rather than at an appearance point in Riley County. He testified that each telephone line consists of a pair of wires which originates in the central office and terminates at the customer’s location, in this case a residence. Between the central office and the residence there might be one or many appearance points. The slave unit may be attached at any appearance point, as long as the appearance point has available vacant pairs of wires. In any case, the appearance points are more likely to be “out in that area where the cable serves the customers” than close to the central office. Vogel testified:
“Q. ... So if there were an appearance point a block away from Riley County Police Department it wouldn’t necessarily be a usable one if there were not empty pairs that could be used?
“A. Yeah. If we didn’t have vacant pairs we couldn’t — we wouldn’t be able to use it.
“Q. But even without—
“A. There was not in this particular case. There — there was not any appearance point near Riley County.
“Q. I see.
"A. Near the police .'department.”
It does not appear that this testimony could be interpreted to mean that there were no available appearance points in Riley County. He testified that as a general rule, where' more than one appearance point is available, law enforcement officials would choose to be as far away from the location of the targeted telephone as possible in order to diminish the chance of the installation s being observed.
From the Kansas Bureau of Investigation, the State called as a witness Douglas Jorgensen, who described himself as “the technical support unit.” He explained that the type of pen register used by the Bureau is manufactured by the Bartec Corporation. It is an electronic unit with a small built-in computer, two attachments for telephone lines, and audio ports. He testified: “We use the same pen register whether we’re doing just a standard pen or for — if we’re doing an actual oral intercept. When we do the oral intercept we just use the same machine except we attach a couple of recorders to it with patch cords.” Jorgensen described the pen register as a decoder which prints out the date and time of each incoming and outgoing call on the target line. It also prints out the numbers dialed on outgoing calls. He corroborated Vogel’s testimony about the function of the slave unit and confirmed that it does no decoding. When asked whether “the intercept occurs” at the slave unit, Jorgensen stated:
“The information actually is intercepted at the pen register because all that slave does is connect us to the target line and let the information flow to us like an extension would. So the actual information is actually intercepted and decoded here at the pen register. None of those functions are done at the slave.”
He added that the slave unit acts as a buffer between the target line and the law enforcement line to prevent any short or static on the law enforcement line from interfering with service on the target line. This feature contributes to concealment of thé surveillance.
Alan Riniker, a Riley County Police Detective, testified that he installed the devices used pursuant to the Riley County district judge’s order. He installed the Bartec unit at the Riley County Police Department Investigations Division. 'The slave units for both targeted telephone lines were installed at a sack box in the vicinity of 9900 East 24 Highway, in Pottawatomie County. He testified that he installed them there because that appearance point was farthest from 5617 Elbo Bluff Drive among those the telephone company told him about. Like Jorgensen, he testified that the pen register, the Bartec unit, does not decode the telephone number from which incoming calls are made. That information, the trap and trace information, must be obtained through the telephone company.
Based upon this testimony, the district court found that the pen register system, as used in this case, required both the Bartec and the slave units to intercept Gibson’s telephone transmissions. Based upon that finding, the district court concluded “that it had no jurisdiction to issue an order authorizing a pen register unit, any part of which is outside of the court’s judicial district.” Because the conclusion is broader than the finding, each will be discussed separately.
Although not argued by the State, the finding of the district court was not supported by the evidence. There was testimony, which directly contradicted the finding of the district court, that the Bartec pen register can be used without a slave unit. There was testimony that the slave unit made the task of monitoring more convenient because it could be done at police headquarters instead of at the sack box. There also was testimony that the slave unit helped ensure the secrecy of the surveillance for the same reason. There was no testimony, however, that a slave unit was indispensable to operation of the pen register system or that it was part of the pen register. In filis regard, Detective Riniker testified:
“Q. Why was that particular appearance point selected?
“A. That appearance point was die only known one between the central switching office, which is located at 17th and Fairchild, and within the neighborhood of the defendant’s. It’s the first appearance that we would have capability of mstallating (sic) the equipment without being observed or detected or questioned.
“Q. Okay. You said it was the only — it was the only known appearance point. Since tíiat date have you learned of any other point — any other appearance point where tiiose wires are accessible?
“A. No. Odier than from that address on up to the defendant’s home. There are other appearance points, but this one is the main unit.
“Q. Is there any appearance point for those lines between the central telephone office on Fairchild Street in Manhattan and the appearance point at 990Ó East Highway 24?
“A. Not that I’ve ever been made aware of by the phone company.
“Q. That’s the only one you were able — they gave you?
“A. That’s correct.”
If, in fact, the only appearance points available for attachment of the slave unit were in Pottawatomie County, it also would be true that monitoring at the sack box, which is one of the alternatives to using a slave unit, would have to occur in Pottawatomie County. Riniker s testimony, however, is not that there were no available appearance points in Riley County but, rather, that he had not been made aware of any. Moreover, if a slave unit is not used, monitoring may occur at a remote location using a “lease line.” Jorgensen testified that although the KBI no longer uses lease lines due to the expense and waiting period for installation, the KBI previously used them and the FBI still does. When a lease line is used, the telephone company “engineers” two wires which run from the appearance point to the listening post.
The district court concluded that it had no power to authorize installation and use of a pen register unit when any part, not just any indispensable part, of it would be outside the judicial district. As discussed above, the State relies on wiretap cases which permit surveillance on telephones located outside the judicial district as long as the “interception” takes place within it. The rationale of those cases is built on the definitions of intercept, contents, and aural acquisition. Because a pen register does not involve eavesdropping on substantive voice communications, there is no actual application of those definitions in the present circumstances. The State, however, urges the court to analogize the interception of voice communications in the wiretap cases to the decoding of the electronic impulses into numbers dialed. In each instance, monitoring took place at law enforcement headquarters. Hence, procurement of information in a form useful for investigative or evidentiary purposes occurred there. For this reason, even though the federal court in Rodriguez illustrated the logic of the interception analysis of the Georgia and Texas wiretap cases by contrasting the functions of wiretaps and pen registers, 734 F. Supp. at 121, a similar analysis based on the monitoring location seems appropriate in the present pen register case.
As previously indicated, the court in Rodriguez found Evans to be persuasive. Evans is an appeal from convictions under Georgia’s RICO scheme for operation of a gambling ring in the metropolitan Atlanta area. On appeal, the defendants argued that the trial court should have suppressed evidence gathered by wiretaps conducted pursuant to the orders of a Fulton County judge. 252 Ga. 312. Law enforcement’s surveillance team worked out of a rented motel room in Fulton County. Forty-one telephones in eight judicial circuits were tapped. All appearance points involved in the surveillance were located in the same county as the telephone to be tapped, and a number of judicial circuits were represented in those counties. At the appearance points, “an inductor coil/jumper wire” was placed in order to decrease the risk of detection from “drop[s] in voltage measurable by equipment available to commercial gamblers.” 252 Ga. at 313. The control unit was located at the listening post in the motel room. There,
“when the signal reached the listening post, it passed through the control unit to the computerized pen register, and then to die tape recorder. The function of the pen register was to record on paper tape the date and time that the tapped phone was taken off the hook; whether the call was incoming or outgoing; if outgoing, the number dialed; and the time the call ended. The tape recorder aurally recorded the conversation on magnetic tape.” 252 Ga. at 314.
In deciding that the evidence obtained by the extraterritorial orders need not be suppressed, the court examined the federal and Georgia wiretap statutes. The interception analysis which was cited and adopted in Rodriguez and Burford is developed in the court’s discussion of the federal statutes. Turning to state law, the court stated that it “involves not the place of interception (aural acquisition), but the place where a 'device’ is physically placed.” 252 Ga. at 317. According to the Georgia court, the pertinent statutes stated:
“ ‘[U]pon written application, under oath, of the district attorney of the circuit wherein the device is to be physically placed . . . any judge of the superior court of the circuit aforesaid may issue an investigation warrant permitting the use of devices, as defined by Code Section 16-11-60 (Code Ann. § 26-3009), for the surveillance of such person or place. . . .’ (Emphasis supplied.)
“The word ‘device’ is defined in OCGA § 16-11-60(1) (Code Ann. § 26-3009) as ‘an instrument or apparatus used for overhearing, recording, intercepting, or transmitting sounds . . . and which involves in its operation electricity [or] electronics. . . 252 Ga. at 317.
The defendants argued that the inductor coil was a “device” within the meaning of the statute because it is a piece of equipment essential to the success of the wiretap which “intercepted” sounds and “transmitted” them to the listening post. The State argued that the control unit, computerized pen register, and tape recorder were the “devices.” 252 Ga. at 317. The court noted that if the authorization had been issued in the judicial district where the inductor coil was located, the defendants undoubtedly would be arguing for suppression on the ground that the devices for intercepting, recording, and eavesdropping were located in Fulton County. 252 Ga. at 318. The court stated that the defendants’ argument would require a separate authorization and recording device in each judicial district, but that it found no indication in the statutes that the legislature intended such a result. 252 Ga. at 318.
The conclusion of the court follows:
“We therefore conclude that the inductor coil involved here was not a device used to overhear, record or intercept defendant’s conversations within the meaning of OCGA §§ 16-11-60(1) (Code Ann. § 26-3009), 16-ll-64(b)(l) (Code Ann. § 26-3004). The coil was a device to prevent detection of those devices being used to overhear and record defendants’ conversations, which devices were physically located in Fulton County. We are supported in this conclusion by the fact that had these officers proceeded as they did but without a warrant, their offense [interception of a telephone communication; OCGA § 16-11-62(4) (Code Ann. § 26-3001)] would have been committed in Fulton County and they could have been prosecuted there.” 252 Ga. at 318.
Thus, the trial court’s refusal to suppress the evidence obtained by wiretaps was affirmed.
The opinion in Evans is very persuasive authority that the district court in the present case did have jurisdiction to order use of the pen register. What is said in Evans is applicable to the present case. The detection protection function of the slave unit in the present case parallels that of the inductor coil in Evans. Neither is used to decipher and record or overhear and record. Each helps to ensure the success of the surveillance by decreasing the risk of detection. Each makes a vital contribution toward the ultimate success of the surveillance, but neither is strictly necessary for the interception and recording of voice communications or electronic impulses.
We conclude that the district court incorrectly held that it did not have jurisdiction to authorize the use of the pen register in the present case. Therefore, it was error to suppress the evidence obtained through use of the pen register and the wiretaps.
We next consider the trial court's rationale for dismissing Counts IV, VI, VIII, and X, which allege that defendant used a telephone to arrange the sale or purchase of controlled substances in violation of K.S.A. 65-4141. The district court stated in its order of dismissal: “At no time were violations of K.S.A. 65-4107 specifically brought to the attention of Justice Lockett, nor was any subsequent application made to him to include evidence of those crimes at any time, let alone as soon as practicable.” K.S.A. 65-4107 lists controlled substances. The State suggests that 65-4107 is a typographical error and that the district court intended to dismiss the counts for failure to specify K.S.A. 65-4141.
K.S.A. 65-4141 provides, in pertinent part:
“[I]t shall be unlawful for any person knowingly or intentionally to use any communication facihty in conspiring or sobciting, as defined in article 33 of chapter 21 of the Kansas Statutes Annotated, or facifitating any felony violation of K.S.A. 65-4127a and 65-4127b and amendments thereto. Each separate use of a communication facihty may be charged as a separate offense under this subsection.
“(b) As used in this section, ‘communication facihty’ means any and all pubhc and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds and includes telephone, wire, radio, computer, computer networks, beepers, pagers and all other means of communication.”
Count IV of the amended information states:
“That on or about the 10th day of July, 1992, within Riley County and the State of Kansas, one BRANDON KELLY GIBSON then and there being present, did unlawfully, willfully, knowingly or intentionally, and feloniously use a communication facihty, to-wit: a telephone, to conspire, solicit, or facilitate a felony violation of K.S.A. 65-4127a or 65-4127b and amendments thereto, contrary to K.S.A. 65-4141 and amendments thereto. (Unlawfully Arranging Sales or Purchases of Controlled Substances Using a Communication Facility) (Class D Felony)”
With the exception of the date, Counts VI, VIII, and X are identical to Count IV. K.S.A. 65-4127a and -4127b identify unlawful acts, such as possessing and selling, regarding controlled substances.
In the district court, Gibson argued that K.S.A. 22-2516 requires the wiretap application to specify the statutory violations for which the suspect is being investigated. He relied on State v. Kuchinsky, 3 Kan. App. 2d 224, 592 P.2d 144 (1979).
K.S.A. 22-2516(l)(b) provides that each application for an order authorizing the interception of a wire, oral, or electronic communication shall include “[a] full and complete statement of the facts and circumstances relied upon by the applicant to justify such applicant’s belief that an order should be issued, including (i) details as to the particular offense that has been, is being or is about to be committed.” It is the State’s position that the statutory requirement was satisfied by the 50-page affidavit of Kim Nelson, a Riley County detective, which was attached to and incorporated into the application to Justice Lockett. Moreover, the State contends that it was specifically stated in the conclusion of the application that the targets were using the telephone to facilitate the distribution of illegal drugs, the activity which is proscribed by K.S.A. 65-4141. The pertinent portion of the conclusion of the application states:
“[P]robable cause exists to believe that Brandon Kelly Gibson, John A. Delbane, Christopher D. Glenn, and the persons listed in Sections III and IV of this application have committed and are committing felony offenses in violation of the Uniform Controlled Substances Act and that telephone number 913-539-8845 located at 410 S. Juliette, basement, Manhattan, Riley County, Kansas, and telephone numbers 913-539-6325, and 913-539-1861, located at 5617 Elbo Bluff Drive, Manhattan, Pottawatomie County, Kansas, have and will continue to be used to commit those same offenses by those sanie persons.” (Emphasis added.)
Gibson characterizes this as substantial rather than strict compliance with K.S.A. 22-2516(l)(b) and argues that substantial compliance is not good enough.
K.S.A. 22-2516(1) provides what a wiretap application should include. K.S.A. 22-2515(6), now K.S.A. 1993 Supp. 22-2515(f), provides for the use of intercepted communications. Both are mentioned in conjunction with the district court’s dismissal of Counts IV, VI, VIII, and X because use depends on the contents of the application and authorization. Most of the arguments of the parties are couched in terms of the application made to Justice Lockett for the wiretap. Pertinent portions of the order authorizing interception state:
“[T]here is probable cause to believe that Brandon Kelly Gibson, Christopher D. Glenn, John A. Delbane, and others known and unknown have been and will be in violation of K.S.A. 65-4127a, sale of cocaine and possession with intent to sell cocaine; K.S.A. 65-4127b, possession with intent to sell and sale of marijuana/tetrahydrocannabinol and the offenses of conspiracy to commit the above listed offenses as defined by K.S.A. 21-3302. Further, that said persons are using telephone numbers 913-539-8845, 913-539-6325 and 913-539-1861, in furtherance of said criminal offenses.
“. . . There is probable cause to believe that the facilities from which and the place from where the wire communications are to be intercepted, to-wit: telephone number 913-539-8845, 410 S. Juliette, basement, Manhattan, Riley County, Kansas, 913-539-6325 and 913-539-1861 located at 5617 Elbo Bluff Drive, Manhattan[,] Pottawatomie County, Kansas, are being used and will be used in the future in connection with the above listed crimes.
“. . . It Is Ordered That:
“. . . Telephone communications concerning possession with intent to sell and sale of cocaine as defined by K.S.A. 65-4127a, possession with intent to sell and sale of marijuana/tetrahydrocannabinol as defined by K.S.A. 65-4127d and the offense of conspiracy to commit the above listed offenses as defined by K.S.A. 21-3302, have been, are being, or will in the future be received and made over those telephone numbers and that any communications furthering and confirming such offenses are the type of communications to be intercepted.” (Emphasis added.)
K.S.A. 1993 Supp. 22-2515(f) provides:
“When an investigative or law enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized by this act, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order authorizing the interception of the wire, oral or electronic communication, the contents thereof and evidence derived therefrom may be disclosed or used as provided in subsections (b) and (c) of this section. Such contents and evidence derived therefrom may be used under subsection (d) of this section when authorized or approved by a judge of com petent jurisdiction, where such judge finds on subsequent application, made as soon as practicable, that the contents were otherwise intercepted in accordance with the provisions of this act, or with chapter 119 of title 18 of the United States code.” (Emphasis added.)
In Kuchinsky, 3 Kan. App. 2d 224, a panel of the Court of Appeals affirmed the district court’s suppression of evidence obtained through wiretaps on the ground that the State had failed to comply with K.S.A. 22-2515(6). Kuchinsky and his codefendants (collectively, Kuchinsky) were charged with conspiracy to sell marijuana. They were not charged with any offense involving cocaine or heroin. The court order authorizing wiretaps “related only to cocaine and/or heroin,” but “included the following language, ‘and other related but presently unknown drug distribution conspiracies . . . and the relationship of this cocaine distribution conspiracy to other illegal activities.’ ” 3 Kan. App. 2d at 225. Neither marijuana nor marijuana-related offenses were mentioned in the order. Kuchinsky argued that the State could not introduce conversations relating to the sale of marijuana because it had not complied with K.S.A. 22-2515(6). The State contended that the offenses of sale of cocaine and marijuana are so similar that the order pertained.to both and/or that the marijuana sales were a necessary part of the cocaine conspiracy. 3 Kan. App. 2d at 226-27.
The Court of Appeals stated:
“Had the defendants been charged with trafficking in cocaine or heroin, the marijuana-related conversations probably would have been admissible for the purpose of showing marijuana sales generated the funds for heroin and cocaine purchases. Here, however, the defendants were not charged with either cocaine or heroin trafficking or any other offense involving those specific drugs; they were charged with marijuana offenses. We think this distinction is highly relevant and determinative of the issues in this case.” 3 Kan. App. 2d at 227.
After examining federal cases which involved the question of the government’s use of wiretap evidence for the purpose of establishing commission of an offense not named in the authorization order, the Court of Appeals concluded that the State had failed to comply with the requirement of K.S.A. 22-2515(6). The Court of Appeals reasoned:
“In the instant case, the affidavit given to acquire the January 12, 1977, order did refer to intercepted conversations relating to ‘elbows’ or marijuana; and the district court’s order of January 12, 1977, did repeat some of the language of the affidavit, although none of it related to the marijuana conversations.
“It should be noted, however, that the judge who issued the January 12 order did not, expressly or implicitly, incorporate the ‘marijuana relating’ provisions of the affidavit by reference. Nor did the State, either orally or in writing, request not only an extension but also an amendment of the December 11 order, to protect the ‘marijuana conversations’ as evidence of marijuana offenses. The State did not clearly ‘notify’ the issuing court of the inadvertent evidence, and die pertinent paragraphs of the January 12 affidavit are insufficient to inform a judge that tire marijuana related conversations would be considered as evidence of anything but part of the cocaine scheme.” 3 Kan. App. 2d at 230.
Gibson contends that the present case is controlled by Kuchinsky and the disposition must be the same. In other words, he argues that the State failed to protect evidence of the telephone calls as evidence of telephone offenses.
The State contends that Kuchinsky should be distinguished on factual grounds. The State argues that in the present case, the offense with which Gibson is charged is described in the application. Thus, the offense of unlawfully arranging the distribution of controlled substances using a communication facility is not an offense “other than those specified in the order authorizing the interception” and is not subject to application of K.S.A. 1993 Supp. 22-2515(f). We agree. A telephone wiretap application based on the representation that the telephone or telephones are being used by the targeted individuals to commit violations of the controlled substances act inherently and necessarily informs the authorizing judge that evidence may be gathered relating to the offense of unlawfully arranging the sale of controlled substances using a communication facility in violation of K.S.A. 65-4141.
Gibson’s response to this argument is not that use of the telephone is not mentioned in the application, but rather that it is mentioned only in connection with a general allegation of violations of the controlled substances act and not in connection with specified offenses. He cites no authority for the proposition that the unlawful use of the telephone must be stated with more specificity than “arranging sales or purchases of controlled substances,” as it is stated in the amended information.
K.S.A. 1993 Supp. 22-2515(f) permits “communications relating to offenses other than those specified in the order authorizing the interception” to be used as evidence only upon timely application and judicial approval. The statutory language easily could have been “offenses other than those specified by statute number in the order authorizing the interception,” but it is not. We do not view Kuchinsky as authority for interpreting the statute as requiring the statute number to be stated in addition to a description of the unlawful conduct. The principle set out in Kuchinsky is that specifying a conspiracy to distribute cocaine or heroin does not also specify a conspiracy to distribute marijuana.
The evil which limitations on the use of intercepted communications seeks to control is the use of court-authorized intrusion into private conversations as a general search warrant. 3 Kan. App. 2d at 229. In Kuchinsky, for example, the Court of Appeals seems to have concluded that the State obtained wiretap authorization for one type of drug offense and that authorization became a pretext for intercepting and gathering evidence of other offenses. In federal court opinions, the specific evil which limitations on the use of intercepted communications relating to offenses other than those specified in the order is said to be directed at is “ 'the electronic equivalent ... of a “general search warrant.” ’ United States v. Brodson, 528 F.2d 214 [, 215] (7th Cir. 1975).” United States v. Marion, 535 F.2d 697, 701 (2d Cir. 1976).
Although cited by the State to support its position, Brodson and Marion seem to offer more support for Gibson’s position than for the State’s. In Brodson, the district court dismissed this indictment for the transmission of wagers and wagering information in interstate commerce in violation of 18 U.S.C. § 1084 (1988) on the ground that the evidence supporting the indictment was obtained through wiretaps authorizing interceptions of communications relating to violations of 18 U.S.C. § 1955 (1988). Section 1955 prohibits operation of an illegal gambling business in interstate commerce. The government’s first line of defense to Brodson’s motion to dismiss was that the transmission of wagers and wagering information in interstate commerce was not an offense other than that specified in the wiretap authorization — op eration of an illegal gambling business in interstate commerce. The Seventh Circuit Court of Appeals rejected the contention on the following grounds: “[T]he two offenses are wholly separate and distinct; they involve dissimilar elements and require different evidence, even though some of it might overlap because both concern illegal gambling.” 528 F.2d at 216. For the appellate court, however, the controlling factor was not the dissimilarity of the offenses but rather the government’s failure “to present the evidence it obtained under the Section 1955 authorization to the trial judge for him to determine whether it was admissible and was sufficient to meet the burden of the prosecution under Section 1084.” 528 F.2d at 216. “The Government’s application under § 2517(5) was not filed in this case until March 3, 1975, just prior to trial and some eight months after the indictment was returned by the Grand Jury that considered the intercepted conversations.” 528 F.2d at 215.
In Marion, there were several wiretap authorizations. In one, the “Lounge order,” State authorities obtained authorization
“to intercept communications providing evidence of various state offenses, including grand larceny by extortion and conspiracy to commit that crime. The fruits of the tap were later used before a federal grand jury conducting an investigation into possible violations of 18 U.S.C. §§ 1951, 371 (interference with interstate commerce by threats or violence, interstate travel and transportation in aid of racketeering).” 535 F.2d at 703.
With regard to the “Lounge order,” the appellate court concluded that subsequent judicial approval “was provided in the renewal of that order.” 535 F.2d at 703.
A second authorization, the “Delmonico order,” “was directed to proof of, inter alia, the state crime of illegal possession of dangerous weapons.” 535 F.2d at 703. Communications intercepted pursuant to the “Delmonico order” were “used to question Marion before the [federal] grand jury about possible violations of the federal statute concerned with the transportation and transfer of an unregistered firearm through interstate commerce, 18 U.S.C. §§ 371, 922.” 535 F.2d at 703-04. The appellate court concluded that transportation and transfer of an unregistered firearm through interstate commerce was an offense “separate and distinct” from the state crime of illegal possession of dangerous weapons, which was the offense specified in the wiretap order. 535 F.2d at 704. Indeed, the court stated that “[i]t is clear beyond all doubt” that the federal and state offenses were separate and distinct. 535 F.2d at 704. Because the government failed to obtain the subsequent judicial approval required by the statute for the interception of conversations relating to the federal offense, the court overturned several of Marion’s convictions. 535 F.2d at 704.
Even though Gibson might have argued that Brodson and Marion, Brodson in particular, support his position and the district court’s dismissal of Counts IV, VI, VIII, and X, he steadfastly deniéd the applicability or even persuasive value of federal cases. Gibson contends that Kansas courts offer greater protection from unlawful electronic surveillance than do the federal courts. He supports his assertion by contrasting the Kansas Court of Appeals’ decision in State v. Adams, 2 Kan. App. 2d 135, 576 P.2d 242, rev. denied 225 Kan. 845 (1978), with U. S. v. Burford, 755 F. Supp. 607 (S.D. N.Y. 1991). However, the contrast in the outcomes of Adams and Burford may be explained by their differing facts. In Aclams, every component of the wiretap which had been authorized by a Johnson County judge was located in a separate judicial district in Wyandotte County. In Burford, an out-of-state telephone was tapped upon the authorization of a district court judge sitting in New York, but all the monitoring was done in New York using equipment which was located there.
Gibson contends that in the past, this court has narrowly construed statutes governing electronic eavesdropping and required strict compliance. In addition to Adams, he cites In re Olander, 213 Kan. 282, 515 P.2d 1211 (1973), in which evidence, derived through a wiretap authorization issued upon the application of an assistant county attorney, was suppressed because the statute provided that an application should be made by the county attorney. In reaching its decision in Olander, this court examined federal statutes, legislative history, and case law. 213 Kan. at 285-87. The actual basis for its decision, however, seems to be the familiar canon of statutory construction, expressio unius est exclusio alterius. It also may be noted that Justices Fatzer and Schroeder dissented “from the overly strict construction which the majority of the court would place on” the statute. 213 Kan. at 287.
The State concedes that Kansas courts may regulate electronic surveillance more closely than the federal courts do. The State contends, however, that “where the legislature has formulated statutes identical to the federal code, there is no apparent logical reason to assume the legislature intended the Kansas Code to be more restrictive than its federal counterpart.”
The State urges this court to concentrate on the purpose of the statutory provisions in question. In particular, the State brings to the court's attention the following discussion from United States v. Van Horn, 789 F.2d 1492, 1503 (11th Cir. 1986):
“The purpose of the judicial approval limitation is to prevent incidental interception of conversations for which the government has shown no probable cause; the statute does not ensure that a defendant is charged only with the crimes set forth in the application. In considering whether the judicial approval required by the statute has occurred, courts must keep in mind this purpose. [Citation omitted.] Courts thus have considered the section 2517(5) approval requirement flexibly, and have held that the court need not have approved of the new charges as long as it has approved of the collection of the evidence supporting those charges. [Citations omitted.]”
We find that the application and affidavit of Detective Nelson were sufficient to meet the requirements of K.S.A. 22-2516(l)(b) and were adequate to inform the authorizing judge that evidence of violations of K.S.A. 65-4141 would be obtained by the use of the wiretap.
Here, the application and affidavit of Detective Nelson were filed with this court. The two county attorneys, as applicants along with Detective Nelson, personally appeared before Justice Lockett. Justice Lockett, as the authorizing judge, read the application and affidavits, found the requisite probable cause, and authorized the wiretaps. This suffices to meet the statutory requirements of K.S.A. 22-2516 and is not violative of the above-stated purpose for requiring judicial approval. We therefore conclude that it was error to dismiss Counts IV, VI, VIII, and X.
The judgment of the district court dismissing the charges against the defendant is reversed, and the case is remanded with directions to set aside the dismissal.
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The opinion of the court was delivered by
Brewer, J.:
In this case is presented one of those harsh time contracts for the sale of land, in which a forfeiture is sought to be enforced for non-payment at the stipulated time. That such contracts are valid and may be enforced, has already been decided, (M. R. Ft. Scott & G. R. R. Co. v. Brickley, 21 Kas. 275.) The district court decided against the forfeiture. No findings of fact were made, and the only question is, whether there was testimony which will sustain such decision. And we are constrained to think that there is. While such contracts are recognized as valid both at law and in equity, yet courts of equity are reluctant to enforce forfeitures when it would be grossly inequitable to do .so, and often seize upon slight circumstances to justify a refusal of such forfeitures. Here the land, 160 acres, was sold for $640, one-fifth of which was paid down and possession given. The first year, only interest was due by the terms of the contract, and that was paid. The second year, one-fourth the unpaid principal and the interest became due, and an extension in writing was granted for six months. At the expiration of that time, payment was not made, but tender was made eight days after the date of second annual payment of all amount" then due, and interest, and also another tender of the entire amount due on the contract. Both tenders were refused. • The land at the time of the sale was vacant, and unimproved. There is nothing to show that the price was not the fair value of the land at the time, or that anything had since transpired to affect the value other than the labor and material placed upon it by the.vendee. The vendee during the two years of his possession had brought the entire tract into cultivation, had at the time of suit sixty acres in wheat, and a hedge-row growing of 160 rods in length. By his labor he had increased’the value of the land $992. By the forfeiture, therefore, the vendor was seeking to obtain, not only the cash paid, to wit, one-fifth the price and the interest, but also $992 of another’s labor. He refused to receive the stipulated price and interest, but sought to keep what money he had received, retake the land, and appropriate in addition one and one-half times its value of the vendee’s labor. As to these facts, it may be remarked" that there is no contradiction in the testimony. Under such circumstances, it would seem to require but little to relieve against the forfeiture.
These facts also appear in the testimony: The first annual payment of principal was due March 10, 1877, and on March 17, the time of payment was extended to September 10, 1877. In September, but whether before or after the 10th does not appear; the vendee sowed sixty acres in wheat. Thereafter he placed a mortgage on the growing wheat for $160, and on December 26, sold the land to defendant in erroi’, Perry, who assumed the mortgage in part payment. In January, 1878, Perry called on the vendor to obtain an extension of time, and the latter proposed to take up the old contract and execute a new one, with full payment of balance of purchase price in the ensuing fall. He also advised Perry to borrow money and pay off the debt. And on March 18, the tenders heretofore noticed were made. Now upon these facts we think the refusal of the court to sustain a forfeiture cannot be adjudged error.
When the right to a forfeiture accrued, the vendor, for the time being at least, waived it, and granted an extension. And when this further time had expired, he took no steps to enforce the forfeiture, permitted the vendee, if not to bestow labor upon and improve the premises, at least to treat it as though he had an interest therein, to borrow money upon growing crops, and to sell and receive pay for the land. With full knowledge of this sale, he proposed to the purchaser to throw up the old and take a new contract, and also advised him to borrow money and pay off the debt. Within a reasonable time thereafter the purchaser acts upon the advice, and tenders the money for the debt.
It seems to us that the court might properly say, considering all the circumstances, and the gross injustice of any other ruling, that it would not enforce the forfeiture, but give to the vendor his money and to the vendee the land.
We see no other matter requiring notice, or any error prejudicial to the substantial rights of the plaintiff in error.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
On the 10th day of April, 1877, the defendant in error, L. D. Elliott, executed and delivered to the Harvey County Savings Bank his promissory note for forty-two dollars, payable in sixty days after its date, and to secure the payment of the same, pledged and delivered to said bank an order on school district No. fifty-one (51), McPherson county, Kansas, for the sum of fifty-one dollars, payable in June, 1877. The Harvey County Savings Bank then transferred said note and order to J. E. Neal, plaintiff in error, who, after the maturity of the note, brought suit against said school district to recover the amount of said order. The evidence in the trial of said last-mentioned case proved that the defendant in error, L. D. Elliott, before the order was pledged to the bank, had received thirty dollars from said school district to apply in payment of, but which had not been indorsed upon said order, which fact was concealed from the bank by Elliott. Neither the bank nor plaintiff in error knew that thirty dollars, or any sum whatever, had been by said school district paid to Elliott until after the maturity of said note. The judgment against the school district was for. the amount of. the order and interest, less the thirty dollars already paid to Elliott, upon which judgment Bowman & Holmes, as attorneys for Neal, filed a lien for their fees, to the extent of twenty-five dollars, and the amount of said judgment was by the clerk of the court paid to Bowman & Plolmes, and retained by them. Neal afterward brought suit on said note, and recovered the full amount thereof. Elliott then brought suit against Neal to recover the amount of said judgment rendered in Neal’s favor agáinst said school district, and recovered a judgment against Neal for the amount, to reverse which the plaintiff in error brings the cause to this court.
The question which arises upon these facts is whether, when a bill or note is pledged as security for a debt, the pledgee, if he attempts to collect such bill or note, must do so at his own expense. That the pledgee of such paper has a right, in the absence of express stipulation to the contrary, to collect the same by suit, is clear; and that at common law, and independent of statute, the reasonable cost and expense of such collection was chargeable to the pledgor, is not seriously controverted. Edwards, in his work on Bailments, thus states the law:
- “The pledge is made for the mutual benefit of the parties to the contract; and the collection, or the effort to collect, the collateral security, is as much for the benefit of the debtor as it can be for the creditor. Besides this, the creditor is legally entitled to recover and realize the face of his demand, after deducting incidental expenses; and though it may be presumed that he willingly undertakes the personal trouble and care of collection, it can hardly be inferred that he also assumes to pay the actual costs and disbursements of the prosecution — for that would be to cast upon him another man’s burden.”
The main contention of counsel is, that this rule is changed by statute. The statute to which they refer is § 1, ch. 77, of the Laws of 1876, which provides that “it shall be unlawful for any person or persons, company, corporation, or bank, to contract for the payment of attorneys’ fees in any note, bill of exchange, bond, or mortgage; . . . and that hereafter, no court in this state shall render any judgment, order, or decree, by which any attorneys’ fees shall be allowed or charged to the maker of any promissory note, bill of exchange, bond, mortgage, or other evidence of indebtedness, by way of fees, expenses, costs, or otherwise.” We do not consider this statute as applicable to the case at bar. The evil intended to be remedied by that enactment, was the practice of stipulating in notes and other evidences of indebtedness, for the payment of the creditor’s attorney-fees in case of suit. All such stipulations are declared null and void, and courts forbidden to enforce them. But no such fees were sought to be collected in this case. The maker of the note was charged with no attorney-fees for the. collection of the note. All he paid, was the amount due on the face of his paper. The order which was collected by suit, was his order, and he was charged with simply the cost of collecting his own order. He had placed that order in the hands of another party, it is true, but only as security that he would make good his own'promise. And when it was sued and collected, it was sued and collected for his benefit. True, by placing it where he did, he gave the pledgee the right to employ counsel and bring suit; but in this’ respect, the pledgee was acting as his agent, and employing counsel to render services for his benefit. It would be hard, inde'ed, if the pledgee were compelled at his own expense to employ counsel to collect the collateral, and then also employ and pay counsel to collect the principal debt. Whether the fees charged by counsel for the collection of the order were reasonable, is not before us, and only reasonable and proper fees could be charged to him. The net proceeds of such collection, after paying fees and expenses, were a payment on his note, and should have been allowed in the suit on the note.
The judgment of the district court will be reversed, and the case remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to foreclose a mortgage-given by defendant in error, G. A. Manners, to plaintiif in error; and the question is, whether such mortgage was invalid by reason of the facts that the mortgaged premises were the homestead of Manners and his wife, and that his wife did not join in the mortgage., The mortgage was executed April 22, 1875, and on its face purported to be a mortgage of personal property, to wit, of a one-and-one-half-story frame house situated on the lot hereinafter named. The district court found in favor, of the defendants in error, and while rendering a personal judgment against G. A. Manners for the note, refused to decree a foreclosure of the mortgage.
The following facts were admitted by the parties on the trial, or were introduced in evidence: In 1873, G. A. Manners leased lot 24, in block 47, in the town (now city) of Garnett, of William Hamilton, for the purpose of erecting a frame building thereon. The lease was for a term of two-years, with the privilege of holding and using the lot for a longer time; provided, however, that G. A. Manners was to give possession of the lot whenever William Hamilton-should sell it, or want to build upon it himself. In either case, G. A. Manners had the right to remove the building he should erect on the lot. G. A. Manners has continued to occupy the lot with his building from year to year. He used the north part of the ground floor for a butcher shop; his wife, the south-part of the ground floor for a milliner shop. The upper story, and part of the south room down stairs, were occupied by the family for a residence.
The testimony does not dis.close at what time in 1873 the lease was made, nor whether the mortgage was executed before the expiration of the term of two years named in it. Perhaps this is not very material, for the lease provided for a holding after that term, and probably at the same rental, two dollars a month.
The question arising on these facts is, whether a leasehold estate will support the homestead right. It has already been decided that one who has only an equitable interest in land may have a homestead right therein. (Tarrant v. Swan, 15 Kas. 146; Moore v. Reaves, 15 Kas. 150.) In the first of these cases, the homestead claimant owned an undivided one-half of the property, and in the other he had but a simple contract of purchase. The constitutional as well as statutory provision is, “A homestead, to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner.” The question hinges on the force to be given to the words “land” and “owner.” On the one hand, it is claimed that these words imply a title either legal or equitable to the soil itself, as distinguished from a mere right of temporary possession. On the other, that the word “land” is given by statute a meaning which includes a mere leasehold interest, and that the owner of such an interest is therefore an owner of the land within the constitution. “The term 'land’ at common law has a two-fold meaning. In its more general sense it is held to comprehend any ground, soil, or earth whatsoever, as meadows, pastures, woods, marshes, furze, etc. In its more limited sense, the term land’ denotes the quantity and character of the interest which the tenant may own in lands. ‘ The land is one thing/ says Plowden, 'and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time.’ When used to describe the quantity of the estate, ‘ land’ is understood to denote a freehold estate at the least.” (Per Smith, C. J., in Johnson v. Richardson, 33 Miss. 462.) Now in what sense would one naturally understand that the word was used here? Obviously it seems to us in its general sense, as descriptive of that which is exempt, rather than of the title by which it is held. When in ordinary discourse we speak of a tract of land, we have in thought the land, and not the ownership of. it. Here the qualifying words make this more plain; it is land to the extent of one hundred and sixty acres. These words measure area, but do not qualify title; but we need not rest upon this general consideration. The statute defines the meaning of the word. It “includes lands, tenements and hereditaments, and all rights thereto and interest therein, equitable as well as legal.” (Comp. Laws 1879, p. 919, §1, ¶8.) And this was the statutory definition prior to the adoption of the constitution, and has been continued in force ever since; (Laws 1859, p. 614, §1, ¶8; Laws 1862, p. 838, §1, ¶8; Laws 1868, p. 999, §1, ¶8;) and whether the framers of the constitution used it in that sense, or not, is immaterial, for the homestead is granted by statute as, well as by the constitution* and the same legislatures that defined the word “land” enacted the homestead statute. Now a leasehold estate is an interest in land. “An estate for years is denominated a chattel real; being an interest in land, it has the' quality of immobility, which constitutes it real.” (1 Hill, on Real Prop., p. 179, § 23.) A leasehold estate in land is therefore “ land,” within the statutoiy definition, of the term, and an owner of the leasehold estate is an owner of land; and it matters not whether the duration of this estate be ninety-nine years, or but a single year; the character of the title or estate is the same. The owner of a leasehold estate is therefore within the letter of the homestead law; he is also within the spirit. Its purpose is not so much to give a man property as to secure his family a home. And if the home be secured, what matters it whether that home be temporary or permanent, or by what tenure or title it is held? Indeed, is not the wisdom of the statute more apparent when he who is unable to purchase a permanent, is enabled to secure to his family a temporary home; and its. justice equally clear when he who is able to purchase such permanent home invests but a portion of his means in a temporary one, keeping the balance within reach of his creditors?
It will be noticed that exemption from liability for indebtedness, and inalienability without joint consent, go hand in hand in the matter of a homestead. That which secures the one, guarantees the other. They coexist, or they do not exist at all. While the authorities are not uniform, yet we think the general drift of the decisions is in harmony with these views. In Sears v. Hanks, 14 Ohio St. 301, the court, speaking of the homestead law, says: “We think its provisions protect the debtor’s family as against his creditor to the enjoyment of an actual homestead, irrespective of the title or tenure by which it is held.” In Spencer v. Geissman, 37 Cal. 99, it was held that one having a mere naked possession, the title being in a stranger, may acquire a homestead right as-against everybody but the true owner. See, further, on the general principle: Deere v. Chapman, 25 Ill. 612; Bartholomew v. West, 2 Dillon Ct. Ct. 293; McKee v. Wilcox, 11 Mich. 358; Thorn v. Thorn, 14 Iowa, 49. And the very question in this case has been answered in at least three states. (Phelan v. De Brevard, 13 Iowa, 53; Conklin v. Foster, 57 Ill. 104; Johnson v. Richardson, 33 Miss. 462.) We think, therefore, that an affirmative answer is sustained by authority, and is within both the letter and the spirit of the homestead law. The ruling of the district court upon this was therefore correct.
But, say counsel for plaintiff in error, the mortgage was not upon the lease-hold estate, the term in the land, but upon the building; that Manners listed and paid taxes on this as-personal property; that he had the right to remove the building ; that it was therefore personal property, and as .such Manners mortgaged it. To this, it is a sufficient reply that it was so listed and taxed by virtue of express statutory provision. (Comp. Laws 1879, p.522, §31); that it was built upon the land, and that not only the land — by whatever title it is held — is exempt and inalienable without joint consent, but also “all the improvements on the same.” Whatever might be the case after the building was in fact removed, the homestead right remains until such removal.
Another proposition of counsel is, that this was not a homestead, because partly used for business purposes. Upon the evidence as it is preserved, we cannot say that the court erred in holding this a homestead. The size of the building, further than that it was a one-and-one-half-story house, is not shown. Whether chiefly used for business or residence purposes, does not clearly appear. The fact that a party may have his store, or shop, or office in a part of his residence, will not of itself destroy its homestead character. "VVe are not called upon to decide whether the occupation by the family of the owner of a single room in a large building used chiefly for stores and offices, will give to the entire building .a homestead character. All.we do decide is, that where a building, whose size and number of rooms is not shown, is occupied as a residence by the family of the owner, its homestead character is not destroyed by proof that a single room or two is used by the owner for business purposes. (In re Tertelling, 2 Dill. Ct. Ct. 341; Orr v. Shafer, 22 Mich. 260; Lazell v. Lazell, 8 Allen, 575; Mercier v. Chase, 11 Allen, 194; Goldman v. Clark, 1 Nev. 607; Ackley v. Chamberlain, 16 Cal. 181; Kelley v. Baker, 10 Minn. 154; Phelps v. Rooney, 9 Wis. 70.)
The effect of the temporary abandonment of the homestead is disposed of by the decision of this court in Hixon v. George, 18 Kas. 253.
There being no other question in the case, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note, given by the defendant to the plaintiff. The note was dated March 2, 1874, and was given for a claim to a certain piece of land, which was a part of what was then called the “ Osage ceded lands.” The plaintiff’s brother had once resided on the land, and had made some improvements thereon, but at the time the note was given the land was vacant and unoccupied. The railroad company (but what railroad company is not shown) had a patent for the land, but it is admitted that the patent was illegal and void. The plaintiff, however, did not pretend to found his claim, or the claim of his brother, to the land upon any supposed right of the railroad company. The land really belonged to the .United States, but the United States, by a treaty with the Osage Indians, had no right to do anything with the land, except to sell it “ on the most advantageous terms for cash,” and to apply the proceeds of the sale as provided by the treaty. (14 U. S. Stat. at Large, pp. 687, 692, article 1, and amendments.) The treaty also contained a provision, that “no preemption claim or homestead settlement shall be recognized.” (Id.) No person really had any right to take possession of said land, or to occupy it, without first purchasing it from the United States.
The contract between the plaintiff and defendant was illegal and void, and the note was given without any sufficient consideration. After the defendant purchased the land, or the claim thereto, from the plaintiff, he had no right to go upon it, and if he had done so he would have been a tres passer. He therefore got nothing by his purchase, and his note was entirely without any valuable or legal consideration. We would refer to the following authorities: Wood v. The M. K. & T. Rly. Co., 11 Kas. 323; Stone v. Young, 4 Kas. 17; Vickroy v. Pratt, 7 Kas. 238; Brewster v. Madden, 15 Kas. 249; Brake v. Ballou, 19 Kas. 397; Lucas v. Sturr, 21 Kas. 483.
The fact that the business was done by the plaintiffs brother, and not by the plaintiff himself, and that the plaintiff was ignorant at the time as to what the consideration of the note was, can make no difference; for a deposition of the brother was introduced in evidence, showing that he acted as the agent of the plaintiff and what the agent knew, of course the principal is bound to know; and the plaintiff afterward accepted the note, which was originally executed to him, and thereby ratified what his agent did.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially these: Two actions, numbered respectively 7413 and 7422, were pending in the district court of Leavenworth county, for the recovery of certain personal property. Martin L. Bulbley was the plaintiff in both cases, and Henry T. Green the defendant. The cases were consolidated by order of the court, and tried on January 15, 1879. By the published list of cases Set for trial at the December Term, 1878, these were assigned to be tried January 13, 1879; on that day the defendant was ready for trial, with his witnesses in the court. Owing to delay.in the disposition of cases set before these, they were not then tried. On January 4, 1879, the court’s attention was called to certain cases on the docket, and said Green remarked to the court that cases Nos. 7413 and 7422, consolidated, were jury cases; to which the counsel of plaintiff replied that he supposed they were jury cases if the defendant desired a jury. The defendant, who was both suitor and attorney, (his counsel, Hon. J. H. Gillpatriok, being in attendance at Topeka as a member of the state legislature,) continued'to attend court each day from January 13th to the 15th, and was at the court room in the forenoon of the latter day, until the adjournment of the court at noon, at which time a jury trial was progressing, to wit, case No. 7333. The attorney in said case, one Ashton, made the opening address to the jury just before the adjournment. The court adjourned to 2 p. M. The defendant left the court thinking his actions, Nos. 7413 and 7422, could not be reached) for trial for some .time. About half-past one o’clock he met Ashton, the attorney in case No. 7333, then on trial, and Ashton stated to defendant that the jury trial which was in progress at the noon adjournment would occupy one.and a half hours; that Messrs. Baker & Ide were yet to argue the case for the de fendant, and that one N. H. Wood was to close the argument for plaintiff. Thereupon the defendant went to his home, two blocks from the court house, for dinner. About two and a half o’clock a messenger informed defendant that his cases, Nos. 7413 and 7422, had been called for trial. He immediately started for the court room and reached there in a few minutes. On his arrival he found the cases had been tried and judgment rendered against him, and that the court had entered upon other business. He applied at once to the court to-open the case, that he might make his defense. This was refused. A motion for a new trial was then made, and on a hearing, denied. The defendant (plaintiff in error) now brings the case here on error.
The alleged errors are: Irregularity in the proceedings of the court; accident or surprise which ordinary prudence could not have guarded against; the denial of a jury trial to defendant; misconduct of the plaintiff. Of these in their order: The irregularities charged are, that the case was taken up and tried out of its order, and that the court refused to incorporate in the bill of exceptions certain matters concerning the trial docket and the demand for a jury.
The record before us fails to sustain the assertion that the case was taken up on an irregular call of the docket, or that it was tried out of its turn. The showing in this regard is as follows: Defendant Green testified that at the noon adjournment on January 15, 1879, beside the case No. 7333 then on trial, there were ahead of this case suits Nos. 7384, 7404, 6998, 7407, 7411, 7007, and in the published list of causes referred to in the affidavits these numbers are assigned for trial prior to Nos. 7413 and 7422; Nos. 7384, 6998, 7007 being set for January 10, 1879, and Nos. 7404-, 7407 and 7411 for January 13th. Counsel for plaintiff, Lucien Baker, testified that the court convened pursuant to adjournment, at 2 p. m. on January 15th; that the case on trial at the time of the adjournment for dinner was then submitted to the jury without further argument; that the court called cases Nos. 7413 and 7422 (being this case as consolidated) in their or der for trial, and said counsel announced himself ready for trial; that the court then called the case of Woods v. Greelish, No. 7407, and the same was passed at the instance of counsel therein (being other counsel than in 7413 and 7422.) Thereupon the court called this case, being the consolidated cases, and counsel of plaintiff announced himself ready; that the court then directed the bailiff to call said Green, the defendant, at the door; that this was about half-past two o’clock P. M.; that the bailiff returned, saying he did not answer. Thereupon, the j udge asked said counsel what he would do with the cases, and Baker replied he was ready for trial; that the trial of the cases was then proceeded with; that the plaintiff was sworn as to the ownership and value of the animals in dispute, and also said counsel as to a demand for them of Green before suit was brought. The court entered a finding for the plaintiff, and after the court had entered upon other business before the court, Green came into court and made demand to try the cases.
In the first place, all the presumptions are in favor of the regularity of the proceedings of the trial court. In the next place, the testimony of Baker shows that the court called the consolidated cases in their order for trial. It is true, the evidence of Green and the published list of assigned cases shows that six causes were assigned for hearing prior to those cases, but there is nothing in the record to show that the six prior causes were not properly passed or otherwise disposed of before cases Nos. 7413 and 7422 were tried. It is shown that case No. 7407 was passed for satisfactory reasons. There is no showing that the other five were skipped or passed over irregularly. It is not necessary that cases should be tried arbitrarily in their order, but they may be continued or laid ■at the end of the docket, or other definite disposition made of them, and subsequent cases then be regularly taken up and tried. (Civil Code, §§314, 316.)
In reference to the action of the court in refusing to incorporate in the bill of exceptions certain matters, which the defendant claims as material, it is sufficient to state such ac tion is no ground for a reversal of the judgment. This court cannot settle bills of exceptions. If the exceptions are properly-reduced to writing, we can compel a trial judge to perform his duty of settling and signing them, but we cannot perform that duty for him. In this case, if the trial judge refused to settle and sign a true bill of exceptions, counsel could have brought their appropriate action to have the judge sign the same.
Eliminating the charge, that the proceedings of the trial court were irregular, the principal question remaining is, was there such surprise in the trial, of the action as will warrant this court in reversing the ruling of the district court? It seems the defendant relied upon the statement of an attorney not connected with the cause, that the case on trial at the noon adjournment would consume an hour and a half of time on the convening of court. If a party relies upon such statements, he does it at his peril. If they do not prove correct, then, although a person may be surprised, he has no reason to complain, (M. K. & T. Rly. Co. v. Crowe, 9 Kas. 496.) "Every one having a matter in litigation before any tribunal or court, . . . must, in order to protect his rights, be present at every session at which the controversy may be determined, until there is a final disposition. He stays away at his peril; and if during his absence the matter is disposed of, he can blame no one but himself. This in many cases is a great hardship. Many a suitor in the courts has felt it to be so. Yet no remedy therefor has as yet been devised.” (Masters v. McHolland, 12 Kas. 17; Mehnert v. Thieme, 15 Kas. 368.)
Again, as a general rule, a trial judge is more capable of -correctly deciding whether the surprise alleged is induced by oversight, inattention or forgetfulness, than a reviewing court! Many matters transpire in the conduct of a case in the court room which it is almost impossible to present in detail to another tribunal, and of all of which the trial judge is necessarily observant. Further, the trial judge becomes better acquainted with the accustomed acts and habits of the various attorneys in constant practice before him, and therefore can more accurately judge whether a complaint of such surprise, as is here charged, is of such a character as to demand relief. In some cases, the acts of a trial judge which are seemingly harsh and arbitrary are, in view of all the circumstances surrounding them, just and even necessary to-enforce dispatch and attention in the trial of cases. The-writer of this recollects that on one occasion several years ago, Mr. Justice Miller, presiding in the U. S. circuit court at Topeka, dismissed a very important case, called in the-regular course of the docket, while the attorney of plaintiff' was momentarily absent from the .court room at his office to-procure some authorities which he needed. On the speedy return of the attorney to the room, the learned justice was informed of the reason of his temporary absence, yet he refused to reinstate the. case. Such action would ordinarily seem hardly fair to the proper administration of justice, yet at that time; just such an example was necessary to enforce-prompt attention on the part of the bar. Sometimes severity is demanded. In this case, the trial court has refused a new trial, on account of accident or surprise, and in our view of' the matter, no sufficient showing has been presented to us to reverse the decision. Motions for a new trial on the ground of surprise are addressed very much to the sound discretion of the court. (Ragan v. James, 7 Kas. 354.)
The defendant has no valid complaint because the case was-tried by the court, without a jury: by not appearing at the-time the case came on to be heard, he waived his right to a jury trial. (Civil Code, § 289.)
The misconduct alleged is, that the finding of the court was obtained by the perjury of the plaintiff, the plaintiff testifying orally in the court. Afterward, ex parte affidavits were filed pro and con regarding this testimony: the affidavits were conflicting. The trial judge denied the motion. We do not think,, under the circumstances, we ought to disturb the decision of' the trial court. By the provisions of § 568 of the civil code, if the judgment was obtained by perjury, and diligence is shown, the defendant can obtain a vacation of it. This question can be more satisfactorily determined in such proceedings-than upon mere ex parte affidavits read upon a motion for a. new trial.
We-have also examined all the other questions submitted to us, but believe further comment unnecessary. If the trial judge had reopened the case upon the appearance of the defendant, or if he had granted a new trial for surprise, we would have not interfered. (Ragan v. James, 7 Kas. 354.) He did neither.
Upon the record we cannot reverse his action, and therefore the judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This case has been once before to this court, and the judgment then rendered in the district court was affirmed. (Building Association v. Thompson, 19 Kas. 321.) The action was one brought by Thompson and wife to compel the defendant to cancel and deliver up a certain mortgage executed by them to the defendant. The plaintiffs claimed that only a certain amount was due, and tendered that amount. The defendant, claiming a large amount, answered, and asked a decree of foreclosure therefor. The ruling of the district court was in favor of the plaintiffs. One of the findings was,, that “on the 15th of April, 1875, and before the commencement of this suit, plaintiffs tendered to defendant $242, as alleged in plaintiffs’ petition, in full satisfaction of said note and mortgage, and have now brought the same into court.”' And the conclusion was “ that defendant be adjudged to receive the sum of $242 in full satisfaction of the said note and mortgage; that the note and mortgage be canceled of record, and that defendant be adjudged to pay the costs of this action.” After the affirmance of that judgment by this court, the defendant’s attorney demanded the $242 of the clerk, who replied that he had never received it. A motion was then made to correct the judgment so as to decree a foreclosure, unless plaintiffs paid said sum. This motion was sustained, and this presents the error complained of.
We think the district court erred, and that the ruling must be reversed. The simple fact is shown that the clerk did not receive the money; yet he entered a finding showing that he had received it. The time for him to speak was then. If true, he is concluded by it; if false, he should never have entered it. A clerk, who records the statement of a fact concerning his own action is concluded by such statement, just exactly as a sheriff who reports a sale is concluded by such report. And the latter cannot thereafter say that he did not, in fact, make the sale or receive any money thereon, (Ferguson v. Tutt, 8 Kas. 370); at least, not as against the party to whom the money is due. Public policy requires that this rule be insisted on with rigor, and that no officer be permitted to report having done or received anything, and thereafter deny the fact as against the party entitled to the benefit of the act done, or to receive that reported to have been, received. In no other way can the due and correct administration of the law be upheld. The case at bar is an apt illustration. Here, but for the act of the clerk, a decree of foreclosure would have been entered; in consequence of it, there was a different judgment. It would be trifling to permit him now to say, simply, “ I did not receive the money,” and thus avoid liability. It may be that the plaintiffs are in equal wrong, and that in case payment cannot be enforced out of the clerk, or his sureties, they may ultimately be held liable. But public policy requires that, as a rule, the remedy should first be sought against the delinquent officer and his sureties; if he fail to pay on demand, let him be amerced, and then let proceedings be had against his sureties. If those proceedings fail to bring the money, it will be time enough then to consider the question of amending the decree.
The order of the district court will be reversed, and the case remanded with instructions to proceed further in accordance with the views herein expressed.
Horton, C. J., concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin, brought to recover the possession of some calves. The case was tried before a jury. Verdict and judgment were for defendant, and plaintiff alleges error. The facts are these: The calves were bought by defendant, under this agreement:
“ Caldwell, Sumner Co., Kas., Oct. 10, 1876.
“Articles of agreement between Tice Salsbury and W. H. Brown: Said Tice Salsbury agrees to furnish said W. H. Brown money to buy fifty or more head of cattle. W. H. Brown does agree to keep said cattle for one-half of the increase and half of the profit of said cattle when sold. Said cattle shall be kept by W. H. Brown until both parties' think practicable [profitable] to sell said cattle; then said Salsbury receives the cost of said cattle, and half the profits, after deducting all losses occurring from all unavoidable deaths of said cattle — W. H. Brown being responsible for all lost through neglect. Also, both parties agree to pay half of the tax on said cattle; and said cattle are to be sola within twq years from date. Tice Salsbury.
W. H. Brown.”
Sixty-eight head of calves were purchased. In October, 1877, and after thirteen had died, Salsbury sold^and delivered the balance to plaintiff. This sale was against the protest of Brown, who refused to consent to any sale, except as he got his share of the profits. The calves were in the possession of the defendant, and plaintiff had notice of his claim before delivery and before payment. Subsequently, Brown took-possession of twenty-seven head, and this action was commenced to recover them. The court instructed the jury to find the right of possession in defendant, and also, the value of the calves, and upon a verdict to that effect, rendered judgment for a return of the calves or their value.
Two questions arise: Was the defendant entitled to the possession? If so, was he entitled to a judgment for their full value in case a return could not be had? Upon the case as it stood before the jury, we think both questions must be answered in the affirmative.
As to the first, there can be little doubt. The contract substantially provided that Brown should keep the calves for two years, unless prior thereto sold by mutual consent. This right of possession was coupled with an interest, and Salsbury could neither himself deprive Brown of the possession, nor empower any one else to do so. Until the two years named in’ the contract had expired, Brown’s right of possession could not be divested without his-consent. The instruction to find the right of possession in defendant was therefore correct. (Birks v. French, 21 Kas. 238.)
In reference to the second question, the contention of counsel is, that defendant was not the absolute owner; that his interest was like that of a chattel mortgagee, and instead of a judgment for the value of the property in case a return could not be had, it should have been for simply the value of his interest in the property. The case of Wolfley v. Rising, 12 Kas. 535, is cited, in which such a rule was laid down where a chattel mortgagee brought replevin. The difficulty is, that upon the testimony the -extent or value of defendant’s interest could not be determined. All that the testimony disclosed was the original cost and the present value. One-half of the difference between the two might be said to be the limit of defendant’s interest. But is it? The contract gave him one-half the profit of two years’ keeping. Could the plaintiff or Salsbury compel him to take simply one-half the profits of one year’s keeping? The cost was $4.50 a head; the value as found, $13. Whether this increase in value was mere matter of growth, or change in market price, we are not advised. And yet before the value of defendant’s interest in the property can be determined, must not these facts appear? If the increase in value is simply from the growth, is the same ratio of growth and increase of value to be expected during the second year? If not, how much less or more? On the other hand, if the increase in value flows partially or wholly from a change in market prices, what has caused this change? Is it temporary, or permanent? Surely these are matters which enter into the determination of the value of an interest in one-lialf the profits of a two-years’ keeping. But it may be said that it was defendant’s duty to show these matters, and establish the extent of his interest beyond the right of possession. We thirik not. He was in possession, and had the right of possession. Plaintiff commenced this action to deprive him of that right.ful possession. Defendant, having shown his right of possession, was entitled to a return. Without other showing, upon failure to obtain return, the value is the statutory equivalent or compensation. And he who would have a reduction of this statutory equivalent, must himself show sufficient reasons therefor. The testimony is too incomplete to lay a foundation for any such reduction, and therefore there was no error in not allowing any.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The question is, whether the former judgment recovered in the district court, at the October term, 1878, in the action of L. P. Rude v. the Bank, is a bar to the action commenced November 23d, 1878, by the same plaintiff against the same defendant. In the first action, Rude sued the bank for the wrongful conversion of the promissory note of $113.63, deposited with it by one Shamleffer for collection. The bank, in its answer, acknowledged receipt of the note for collection, and also admitted that it had sold .and disposed of it, but stated that it held its actual value, or proceeds of such sale, to apply to the satisfaction of certain debts due and payable by Shamleffer to the bank, which debts, it asserted, were in excess of the value or proceeds of the note. These debts were alleged to be due the bank at the time of the sale of the note, and before the assignment of the claim of Shamleffer to Rude. Under the pleadings, the sale and conversion of the note being admitted, one of the issues was, whether the proceeds of the note were properly retained by the bank. In brief, whether the account to the credit of Shamleffer in the bank at the time of the assignment to Rude, exceeded the amount of debts due and payable by him to the bank. The issues in the case turned largely upon the answer and reply. While the first action was commenced to obtain the value of the note, it ran into-an action for the proceeds of the noté upon the pleadings-filed subsequent to the petition. To use common counts, the first action was commenced for trover, but became by the-subsequent pleadings an action for money had,and received to the plaintiff’s use.
If the bank had no valid set-off against Shamleffer, the judgment in the first action was erroneous. If it had a set-off' in excess of the proceeds of the note, the judgment was right. Whether right or wrong, it is in full force, unreversed, and concludes the rights of the parties in respect to all questions-involved in the pleadings on which it was rendered. As a judgment for the proceeds of the note might have been rendered by the court in the first .suit in favor of Rude, if the-bank had had no set-off equal to or in excess of said proceeds, the cause of action of the two suits was virtually the same.. When the merits in an action have been passed upon, or from the issues made by the pleadings might have been passed upon,, the judgment rendered in the case bars a subsequent suit for the same cause of action between the same parties. When the same cause of action has once been litigated and decided, that is an end of it, and the form of the action is immaterial. If the cause is the same, the judgment is conclusive. The second petition or bill of particulars contained averments of legal conclusions, rather than allegations of actual facts, but if the dry, naked, actual facts of the transactions of the bank concerning the note and its refusal to turn over the proceeds had been stated, as the code really demands in pleadings, the similarity of the causes of action would be more apparent.
• In our view, the former recovery as pleaded, is a complete-bar to the second action, and therefore the judgment of the district court will be reversed, and the case remanded with direction to that court to overrule the demurrer filed to the answer of the plaintiff in error.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action under the stock law of 1874. The record is brief, and discloses but a single question for the consideration of this court. The plaintiff in error (defendant below) is a railroad company, operating its road through Bourbon county. The defendant in error (plaintiff below) is a farmer, living near the railroad. On May 25th, 1879, a cow owned by the defendant' in error was killed, on the road of the plaintiff in error. The date of the accident was Sunday. The defense was, that the animal was killed by an engine of the Joplin railroad company that was run over the Kansas City, Fort Scott & Gulf railroad. The evidence upon this point was as follows:
Charles Welsh, being sworn, testified : “In May last I was at Pawnee, Kansas. I was station agent at that place for defendant. There were no trains of the defendant run over the part of defendant’s road between Godfrey and Pawnee on Sunday, May 25, 1879. There were no engines run over that part of the road. All the regular trains are abandoned on Sundays, and on that particular date there were no extra trains run. I was at the station-house at Pawnee all day. There was a locomotive run over the road that day. It was the engine of the Joplin railroad company. I know it was^ -a Joplin engine, because the name of the Joplin road was on the engine. The Gulf road may have bought the engine, but my judgment is it was a Joplin engine. The engineer was an employé of the Joplin railroad company. I know it, because he had drawn his pay from.the Joplin R. R. Co. in my presence. He never ran but that one engine on the road. I knew all the engineers and employés of the defendant, and this man was not one of them. He might possibly have been in the employ of defendant for that day, but I don’t think he was.”
Judgment was rendered in the district court in favor of Ewing, against the railroad company (plaintiff in error), for the value of the cow, attorney’s fees, and costs. The company brings the case here.
The stock law of 1874 provides that where the road of a railway company is not inclosed with a good and lawful fence, the company shall be liable to pay the owner the full value of each and every animal killed, and all damages to each and every animal wounded, by the engine or cars on such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or not. If it be a fact that the engine belonged to the Joplin railroad company, and was actually operated, on May 25th, 1879, by the latter company, on the Kansas City, Fort* Scott & Gulf railroad, we must presume, under the testimony, that the engine was run on the road with the license and permission of the Gulf railroad company; and therefore, the Joplin railroad company would be deemed the servants and agents of the plaintiff in error.' The case would be very different if the injury had happened from the act of strangers. The gist of the action is negligence in not inclosing the road. Under these circumstances, the injury was properly chargeable to the Kansas City, Fort Scott & Gulf railroad company, on whose road it happened. Whether the Joplin railroad company would also be responsible, for presuming to use the road of the Gulf company, fenceless and unprotected, we need not now decide.
. The judgment of the district court will be affirmed.
All the Justices concurring.
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Per Curiam:
Defendant in error has filed a motion to dismiss this proceeding, on account of a settlement of all the-substantial rights of the parties in litigation. The motion is assented to by counsel so far as C. S. Bowman and Kimmerle & Adams are concerned, but contested by Mrs. Ida Ra-sure, through her attorneys, Messrs. Bowman & Holmes. It is proved by an affidavit of her attorney (C. S. B.) that she has not received any portion of the proceeds of the compromise that she was not present, nor within one hundred miles of the place, when the settlement was made. On the part of the defendant in error, it is proved that the settlement was made for Mrs. R. by Messrs. B. & H., who were her attorneys and agents. The settlement was made and the judgment satisfied of record on November 25,1878, about eighteen months ago.. While it is true that an attorney, by virtue merely of his retainer as such, and without the consent of his client, has not the power to bind the client by a compromise of his client’s claim, or of a pending action, yet if the client continues the authority of his attorney after such settlement and compromise, it is very doubtful whether the settlement is not binding upon the client. In this case, the very attorneys who-made the settlement are yet the attorneys of Mrs. Rasure, and appear for her in this court to contest the compromise, but do' not deny the agency alleged, or assert it was without her consent, or even say that she repudiates their acts. She cannot be greatly displeased with their conduct, as she continues them as her counsel in the case; and under the showing made, we think the motion to dismiss ought to be sustained, and it is accordingly sustained. (Babbitt v. Corby, 13 Kas. 612.)
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The opinion of the court was delivered by
Valentine, J.:
This was an action to subject a certain note and mortgage held by Henry D. Smith against Michael McDonald to the payment of a certain judgment held by Emory E. Gore against Henry D. Smith. Gore commenced the action against Smith and McDonald, and made various other persons parties defendant. Smith, however, was the only real party defendant, and he is now the only plaintiff in error. All the other parties were and are satisfied with the judgment rendered by the court below. The only defense to the action was and is, that said note and mortgage-were given in part consideration for Smith’s homestead, on a. sale and conveyance thereof. The facts of the case are substantially as follows:
On October 17, 1876, and prior thereto, Smith owned a. certain piece of land, which he then occupied as his homestead. On that day he sold said homestead to Michael McDonald, and in consideration therefor McDonald then paid him $3,500 in cash, and gave him his promissory note- and mortgage for $1,037.50 more. This note was dated October 17, 1876, and was to become due in two years after date, or on October 17, 1878. Smith used said $3,500 in paying debts, and in supporting his family. On March 1, 1877, Smith removed from said land, and moved upon another piece of land, which he rented and occupied with his family for one year. He then moved upon another piece of land with his family, which land he occupied for about nine-months. He then removed into Leavenworth city, and he- and his family occupied a house in that city which was partly occupied by another family. At the time of the trial of this case, which was September 3, 1879, he with his two' minor children was living with his son-in-law, and his wife was staying with her father. This action was commenced on February 8, 1879. On September 3, 1879, it was tried. On the trial, Smith testified that “he (H. D. Smith) expects and intends to use the proceeds of that note and mortgage — that is, the money due on it — to buy another small farm, to live on as a home for himself and family.” Whether at any tim,e previous to the trial, Smith ever expected or intended to use the money due on said note and mortgage to purchase another homestead, is not shown. The foregoing is all the evidence that tended to show that he ever' at any time had any such expectation or intention. Smith never purchased or owned any land after selling his homestead, and there is nothing in the record, except the w.ords above quoted, that shows, or tends to show, that he at any time had any desire or wish to purchase, or any expectation of purchasing, any more land. Under these circumstances, we do not think that the money due on said note and mortgage is exempt from the payment of Smith’s debts. •
It is true that this court has decided that the proceeds of a homestead sold at forced sale by a sheriff are exempt from the payment of all debts which are not liens upon the homestead, so long as the debtor expects and intends to use such proceeds in procuring another homestead. (Mitchell v. Milhoan, 11 Kas. 617.) And this doctrine probably ought to be extended to cases where the sale of the homestead is made voluntarily by the owner of the homestead himself. ( Watkins v. Blatchschinski, 40 Wis. 347.) But we think the intention to use the proceeds in procuring another homestead should be formed at or before the time of the sale, and the intention should be to procure another homestead with the proceeds immediately. It would not do to form the intention two years after the sale, nor would a present intention to procure the homestead two years afterward be sufficient. If the party himself supposed that he could get along without a homestead, the law would not protect his money or his credits, and exempt them from the payment of his debts, merely because it supposed he needed a homestead. 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.) In this state the homestead-exemption laws are construed liberally; but giving to them the most liberal construction, the plaintiff in error is not entitled to have the money due on said note and mortgage exempted from the payment of his debts.
Under the circumstances .of this case, we think the present action- may be maintained. (Civil Code, §481.) Except for this note and mortgage, it was shown that Smith was wholly insolvent, and entirely execution-proof. Different executions had been issued against him, and returned not satisfied.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on an account for corn sold and delivered. The defense was, payment. The sale was for cash, but on January 4, 1878, the defendants, plaintiffs in error, gave- to plaintiff a check of J. P. Hall & Co. on the First National Bank of Kansas City. On January 22, 1878, they gave him another check, drawn by the same-party upon the same bank. Plaintiff kept both checks till the 30th "of January, and then on presentation found that the bank had suspended the day before. Kennedy lived' about fifteen miles from Kansas City, and the first time he-went to Kansas City after the receipt of the checks, was the-day he presented them. His excuse for not presenting them before was, that the roads were muddy and he had no business to take him to Kansas City. The checks were returned to defendants a dáy or. two after the suspension. At the-time these checks were drawn, Hall & Co. had no funds on deposit to meet them, and when the bank suspended, their account was overdrawn $943.40. Still, according to the testimony of the president of the bank, these checks would have been paid if presented. The checks were not received as payment, and there was no settlement of the matter after the return of the checks. We are aware that as to some of the above matters there is contradictory testimony, but there being only a general finding for plaintiff and no special findings of fact, we must take the case as though the trial court believed the above to be the facts rather than the reverse.
Upon these facts, ought the judgment to stand? It is settled that the mere taking of a bank check is not a payment of the debt, (Kermeyer v. Newby, 14 Kas. 164,) and if the check be not paid, the party may return it and sue on the-original debt. It is also clear that the same strict rule of presentment and notice does not obtain as between the drawer and drawee. The former is not discharged unless he suffers some loss through the delay of the holder in presenting the check. (Gregg v. George, 16 Kas. 546; 2 Daniel on Neg. Insts., p. 513, §1587.) Therefore Hall & Co., the drawers, were clearly not discharged from their obligation to the party to whom they gave their checks, for they have lost nothing. If the checks had been presented and paid, they would simply have owed the bank so much more — the only difference would have been in the person of the creditor.
But it is claimed that a different rule obtains between the defendants, who-received the checks from Hall & Co., and the party to whom they transferred them. This is not a question between indorser and indorsee, for the checks were payable to bearer. And it may be conceded that in order to charge an indorser, the same rules as to demand and notice apply as in other paper. (2 Daniel on Neg. Insts., §1594.) It does not appear that defendants received these checks from Hall & Co., as payment of any indebtedness. They were shipping grain to Hall & Co., and these checks, among others, were sent or delivered to them, but so far as appears without any agreement that they should be taken as absolute payment. Again, it appears that Hall & Co., who are now reported as insolvent, did not fail till about June, 1878, and that the defendants continued to have dealings with them after the return of these checks, shipping grain and receiving payment, and that Hall & Co. took back the checks and agreed to pay defendants the amounts for which they called, though in fact they never did make siich payment.
( The case then stands thus: Plaintiff never received the checks as payment; the checks in fact were not drawn against a deposit in bank, and were therefore no appropriation of funds; there is no question between indorser and indorsee; the drawer received back the checks, and promised to pay the sums named therein, and at the time they were able to make good their promise. Under these circumstances, if defendants delayed insisting upon payment till the drawers failed, they must bear the loss, and the plaintiff, who never received the checks as payment and who returned them as soon as they were dishonored, is entitled to recover for his debt. (Kinyon v. Stanton, 44 Wis. 479.)
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Wells, J.:
Daisy Wood, on March 21, 1888, commenced an action in the district court of Leavenworth county by filing her petition against Isaac Anderson, Harrison Sanders, and Louis Bell, to recover lots 12 and 13, in block 4, in E. R. & Co. subdivision to the city of Leavenworth. Summons was issued and served upon Sanders, but not served upon Isaac Anderson and Louis Bell, nor did they or either of them make any appearance in the trial court. John C. Douglass was made a codefendant and filed a counterclaim in ejectment against all the other parties to the action. The plaintiff filed an affidavit for constructive service as follows: “N. H. Wood, being duly sworn, says that service of summons cannot be made within the state of Kansas on the said defendant Isaac Anderson, and that this case is one of those men: tioned in section 72 of the code of civil procedure in the laws of the state of Kansas.” Thereafter serv ice was made by publication, a trial was had, and judgment rendered for the plaintiff against all of the defendants. On motion of Douglass, the judgment was set aside and a new trial awarded. Thereafter Daisy Wood conveyed' the lands in litigation to defendant Douglass, who filed a supplemental answer. On January 3, 1895, a second trial was had, which resulted in a judgment for Douglass against all other parties to the action.
Isaac Lieberman, as successor in interest to Isaac Anderson, on the 21st day of February, 1895, made special appearance and filed a motion asking the court to vacate and set aside the affidavit for constructive service. This motion was sustained, and the affidavit, service and judgment as to Anderson were set aside. The plaintiff in error excepted and presents the case to this court for review, and alleges error in the proceedings of the trial court.
The affidavit for constructive service was made in 1888. Section 73 of chapter 80, code of 1868,-then in force, reads:
-“Before service can be made . by publication, an affidavit must be filed, that service of- a summons cannot be made within this state, on the defendant or defendants, to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication.”
This section was amended by chapter 79, Laws of 1891, but the portion of the section applicable to the question under consideration remains unchanged. (Gen. Stat. 1899, § 4323.)
This section requires the affidavit to show that the ' case in- which constructive service is desired is one of the cases in which such, service is authorized. The mere stating that fact as a conclusion, “ that this is one of the cases mentioned in section 72 of the code of civil procedure in the laws of the state of Kansas,” is insufficient, and the service thereunder should have been set aside upon proper motion made in time, but such service was not absolutely void, but gave the court jurisdiction of the parties, and the judgment rendered thereon was not subject to collateral attack. See Claypoole v. Houston, 12 Kan. 324; Ogden v. Walters, 12 id. 283; Rowe v. Palmer, 29 id. 337; Pierce v. Butters, 21 id. 124; Entreken v. Howard, Adm’r, 16 id. 251; Carey v. Reeves, 32 id. 718, 5 Pac. 22; Bogle v. Gordon, 39 id. 31, 17 Pac. 857.
The judgment of the district court setting aside the affidavit, service and judgment as to Anderson is reversed, and the court directed to overrule the motion therefor.
Mahan, P. J., concurring.
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The opinion of the court was delivered by
Dennison, P. J.:
On the 20th day of February, 1890, the defendant in error filed his petition in the district fourt claiming the right to the possession of certain personal property valued at $745. A summons and order of delivery were issued and possession of the property obtained by the defendant in error thereunder. Afterward, on March 28,1891, the summons and order of delivery and the service thereof were set aside. On August 5, 1898, the defendant in error caused an alias summons to issue, which was served on Harris August 8, 1893. No further summons was served upon Jennings and no further order of delivery was ever issued.
Harris demurred to the petition upon the ground “ that the statements and allegations in said petition contained are not sufficient to constitute a cause of action in favor of the plaintiff as against defendant.” On January 3,1894, this demurrer was overruled, and, Harris electing to stand on his demurrer, judgment was rendered against him and in favor of Bell for the possession of the property and for costs. Harris brings the case to this court for review. The petition clearly states a cause of action. The plaintiff in error relies upon the fact that the service of the alias sum, mons was made more than two years after the cause of action accrued.
This is certainly a good defense, but a demurrer to the petition is not the proper way to raise it. Section 89 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, §4339), provides that “the defendant may demur to the petition only when it appears on its face. . . . Sixth, that the petition does not state facts sufficient to constitute a cause of action.” And sec tion 91 of the same chapter (Gen. Stat. 1899, §4341) says: “When any of the defects enumerated in section 89 do not appear upon the face of the petition the objection may be taken by answer.”
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J. :
These cases 'are here on the same facts. Defendants in error sued the plaintiff and one James T. Broughal on a bond given by Broughal, as principal, and the surety company, as surety, in which the city of Seneca is named as obligee, conditioned for the faithful performance of a contract to do work and furnish the material and erect and complete a water-works system for said city, and to pay for all materials furnished and labor employed by the contractor therein. Plaintiffs sought to recover for material and labor furnished the contractor in the performance of the contract. Plaintiffs in error demurred to the petitions of. the respective defendants in error. These demurrers were overruled by the court. In each case the plaintiff in error elected to stand thereon, and judgment went for the amount as prayed in the petition.
The errors assigned raise but a single question — the sufficiency of the petition. It is contended, first, that the recital in the bond, which is as follows: “That whereas the above-bounden James T. Broughal has entered into a certain contract, bearing date April 11, 1895, and hereunto attached, for the furnishing of all labor and material for the construction and completion of a system of water-works for said city of Seneca, Kan., and agreeing to hold said city harmless from any damage that may occur to individuals or property upon or about said work,” limits and controls the ob ligation or condition of the bond and renders nugatory and void that part of the obligation or condition which reads as follows : “And shall well and truly pay for all labor employed and materials furnished and used in said system, as set forth in said contract,” there being no express promise in the contract itself to pay for the work and material engaged by the contractor, but only an implied promise from the covenant to furnish such labor and material as were necessary to construct and complete the work. In support of this contention, we are referred to 1 Wait, Act. and Def. 680; Bell et al. v. Bruen, 1 How. (U. S.) 169; Marquette B’ld’g Co. v. Wilson, 109 Mich. 223, 67 N. W. 123; Bennehan v. Webb, 6 Ired. (N. C.) 57; Sanger v. Baumberger and others, 51 Wis. 592, 8 N. W. 421.
The authorities cited hold that where the condition is general the recitals govern it, and this is the full extent to which those authorities go. Had the condition been simply for the faithful performance of the contract according to its terms, the contention would avail; however, it will hardly do to say that the express condition named in the bond to pay for the work and material enlarges the obligation of the contractor to furnish them. In section 2, article 5, 1 Wait’s Actions and Defenses, immediately following the parts cited by counsel, it is said : “In giving construction to the condition of a bond, where the intention of the parties is manifest, the court will suppress insensible words and supply accidental omissions in order to give effect to that intention.” In this case there is no occasion to suppress words or supply omissions. The intention of the parties is manifest from the words used in the condition, and effect ought to be given thereto according to the usual meaning of the language used.
It is next contended that the petition discloses that the plaintiffs had not capacity to sue, because the code provides that every action must be prosecuted in the name of the real party in interest, and the plaintiffs do not appear to be the real parties in interest. If the plaintiffs had any rights at all under the bond to recover for material and labor furnished by them, or by others, and the claims therefor were assigned to them, they were the real parties in interest, as suit could not be maintained by the city of Seneca, the obligee named in the bond, for their use, as at common law. Under this contention, it is further said that the plaintiff's are neither privy to the contract nor to the consideration upon which their actions are based. In support of this contention counsel cite us to Anthony v. Herman, 14 Kan. 494; Life Assurance Society v. Welch, as Supt., 26 id. 641; Brenner v. Luth, 28 id. 583; Burton v. Larkin, 36 id. 246, 13 Pac. 398, and two authorities from other states. These cases decided by our supreme court hold exactly contrary to the contention of the plaintiffs in error. In Life Assurance Society v. Welch, as Supt., supra, it was said: “ Now whatever may be the rule in other states, it is well settled in this state that third parties not privy to a contract, nor privy.to the consideration thereof, may sue upon the contract to enforce any stipulations made for their especial benefit and interest.” In Burton v. Larkin, supra, it was said in the syllabus : “A person for whose benefit a promise to another, upon a sufficient consideration, is made, may maintain an action on the contract in his own name against the promisor.” “The name of the person, however, to be benefited by the contract need not be given if he is otherwise sufficiently described or designated. He may be one of a class of persons, if the class is suffi ciently described or designated. In any case where the person to be benefited is in any manner sufficiently described or designated,he may sue upon the contract.”
Can it be said that this bond does not designate the class of persons for whose benefit the condition to pay for work and material is inserted in the bond? It cannot be said that the obligor was to pay the city of Seneca. The city was to furnish no labor or material. The obligor was to furnish the work and material. He was to pay for it, and the purpose of the condition is apparent. Unless the obligor paid therefor, the plant of the city was liable to be taken under the provision of the statute in relation to mechanics’ liens for that purpose. The statute makes special provision that all public officers entering into a contract on behalf of any municipality of the state shall require the contractor to give just such a bond as this is, and further provides that any such person or persons as the plaintiffs are may sue upon such bond. Can it be said that the class of persons to which the plaintiffs belong was not in the minds of the contracting parties, under these circumstances ? It is true that the city of Seneca is named as obligee in the bond, instead of the state of Kansas, so that it is' said the bond is not, strictly speaking, a statutory bond, and does not come within the provisions of the statute providing that such parties as the plaintiffs are may sue thereon'. However this may be, it is evident that the parties had this law in view, and the protection of persons who furnished labor and material was the purpose of inserting the condition in the bond. The contractor engaged for the time being to take' the place of the municipality, and to do those things which the municipality would be authorized and required to do under the same circumstances, and he and his surety occupy a different relation to the contract and to the parties for whose benefit the condition is inserted from that of obligors and sureties in contracts pertaining to strictly private affairs.
It is also contended that the contract must be istrictly construed in favor of the surety. If there was in the contract any doubt, any ambiguity, as to the obligations assumed by the surety, the rule contended for would be applied. But no such uncertainty or ambiguity exists. In support of the conclusions we reach, see Jordon v. Kavanaugh et al., 63 Iowa, 152, 18 N. W. 851; Baker & Co. et al. v. Bryan et al., 64 id. 561, 21 N. W. 83; Wells v. Kavanaugh et al., 70 id. 519, 30 N. W. 871. The statutory provisions of Iowa are not identical with ours but are in effect the same.
The judgments of the court sustaining the démurrers to the petitions are in accord with the law of the state as announced by our supreme court, and are affirmed.
McElroy, J., concurring.
Wells, J., not sitting.
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The opinion of the court was delivered by
Milton, J.:
In this action the court granted a permanent injunction restraining Thomas Evans, as sheriff of Lyon county, from selling under execution a thirty-acre farm claimed by George B. Carson, the plaintiff below, as his homestead. In the petition in error several creditors are joined with the sheriff as plaintiffs in error. The question presented for decision by this court is the only issue decided by the trial .court, that is, Do the facts in the record sufficiently sustain the plaintiff’s claim that the land in controversy was a homestead? Briefly stated, the facts are as follows: In January, 1894, the- plaintiff below, who for the nine preceding years had been engaged in the mercantile business in Cottonwood Falls., Chase county, sold his homestead in that place for $600, and with that sum and $425 withdrawn from his business bought an improved tract of farming land near Emporia, Lyon county, for the sum of $1725, $700 of the purchase-money being represented by a mortgage he then gave on the land. His health had been poor for some time prior to this, and his purpose in buying the land was to move upon it and make it his home, as soon as he "could adjust his business, which it then seemed he would be able to do within a very short time by some sort of deal with his business partner.
A month later Carson moved three or four wagon-loads of his household furniture from Cottonwood Falls to the farm so purchased, but while he was so engaged a disagreement arose between himself and his partner, as a result of which Carson soon afterward purchased his partner’s interest in the store and gave up for the time being his plan of removing to the farm. About the same time he rented a house in Cottonwood Falls, and continued to reside there until August, 1895. In the meantime the goods which had been taken to the farm remained stored in the dwelling-house thereon, and were not removed to Cottonwood Falls until in June, 1894, and not until the tenant — who had just then entered into possession of the premises — insisted upon their removal because the house was not large enough for the storage of the goods and the tenant’s convenient use of the dwelling. The terms of this tenancy were such that the tenant was to quit possession at any time Carson should demand possession of the premises upon payment by the latter of a reasonable compensation for the work already done by the tenant ; and Carson testified that from the date of the purchase of the land until his removal thereto with his family, in August, 1895, he never for a moment abandoned his intention of occupying the premises as a homestead, and that for nearly all of that time he was making special efforts to dispose of his business in Cottonwood Falls, with the intention' of removing to the farm as soon as possible thereafter. In June, 1895, he discovered himself to be insolvent, and on the 6th of that month turned over his stock of goods to three of his principal creditors. At their request he continued in the management of the business, in order that the goods might be quickly disposed of, which was finally accomplished about August 15. Immediately thereafter Carson and his family removed to the farm, but the levy under the executions in favor of several unsecured creditors had been made in the preceding JuDe. The debts represented by the executions levied in this case were contracted after the purchase of the farm, and were for merchandise bought by Oarson. He voted in Cottonwood Falls at the election in November, 1894.
With the exception of the last-named fact, which taken alone tends to indicate that Carson regarded himself as still a resident of Chase county, whereas the land claimed by him as a homestead was in Lyon county, there is little, if anything* in the record to indicate an abandonment of the intention formed when the land was purchased of immediate occupancy of the same as a homestead. The intention was manifested by the most unequivocal acts on his part directly after the purchase was made, which acts bordered closely upon actual occupancy of the premises. Finding himself temporarily unable to occupy the land as a homestead, but expecting to do so at an early date, he made all his arrangements upon the basis of such expectation. He waited until June before leasing the land, and then made a conditional lease, so that he could at any time thereafter obtain possession upon demand. In view of the facts and circumstances here appearing, the plaintiff’s delay in removing to the land cannot be declared an unreasonable delay. The legal proposition governing this case is the familiar one thus stated by the supreme court:
“A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, receives from the time of purchase a homestead exemption from seizure upon execution or attachment.” (Monroe v. May, 9 Kan. 466.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J.:
The plaintiff in error, who was also the plaintiff in the district court, brought this action to recover the sum of $758.73 as salary for services rendered under the prohibitory liquor law as probate judge, during the year 1898, under the provisions of section 17 of chapter 101, General Statutes of 1897. The defendant denied liability therefor, for the alleged reason that the statute under which the claim was made was repealed by chapter 131, Laws of 1897. This is the only question in the case.
At the November, 1880, election the so-called prohibitory amendment to the constitution of the state was adopted, and, to make the amendment effective, the legislature of 1S81 passed “An act to prohibit the manufacture and sale of intoxicating liquors except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.” This act, as was said by the supreme court in Intoxicating Liquor Cases, 25 Kan. 760, cast upon the probate judge the duties of a “commissioner of licenses,” and made provision for his compensation for the duties performed thereunder by fees to be paid by the parties requiring his services.
This act was amended and supplemented by chapter 165, Laws of 1887, which provided for the collection of certain fees for services thereunder', and that the same should be turned over to the county, and then provided:
“The probate judge shall receive no fees for his services under this act, except a salary of fifteen'dollars per annum for each one thousand inhabitants in such county, the number to be determined by the-last annual census return of such county, but in no case shall such salary exceed the sum of $1000 per annum, to be paid by the county commissioners as other salaries.”
This is the provision of law under which the plaintiff in error claims, while the defendant in error contends that chapter 131, Laws of 1897, repeals it.
Section 1 of chapter 131, Laws of 1897 (Gen. Stat. 1897, ch. 30, §29; Gen. Stat. 1899, § 2906), reads : ‘‘ The officers and persons herein mentioned shall be entitled to receive for their services the fees and compensation herein allowed, and no other, except as may be otherwise provided by law.”
The provisions of section 12 (Gen. Stat. 1899, § 2917), so far as they have any bearing on the issues herein, are as follows :
“The probate judge of each county shall receive for his services the following fees :” (Here follows a list of items of services and the fees allowed therefor.) “For any other services required by law,-the same fees as are prescribed for the clerk of .the district court for like services. ... In addition to the fees herein provided, the probate judge shall be entitled to receive such fees as are or may be provided by law for such services under the prohibitory laws ; provided further, that the probate judge in counties having the following population may retain all fees collected, as hereinafter specified : ... In counties having a population of more than 45,000, $2500 per annum, and if, in any year the fees, collected shall be more than the sums above specified in their respective counties, the said probate judge shall pay to the county treasurer of their respective counties one-half of such excess, when collected, taking duplicate receipts therefor, one of which they shall file with the county clerk, and such money shall become part of the general fund of the county.”
Section 23 (Gen. Stat. 1899, § 2928), reads as follows : “All acts and parts of acts heretofore passed, general or special, and now in force, that conflict with the provisions of this act are hereby repealed.” To summarize the legislation upon this subject, we maj'say: In 1881 additional duties were assigned to the probate judge, and his compensation therefor was to be made'by fees, to be paid by the parties requiring his services; in 1887 the fees were to be turned over to the county, and the probate judge was to receive a salary for the services under the prohibitory law; in 1897 the probate judge was allowed to retain all fees collected, including such as are or may be provided by law for services under the prohibitory laws, up to $2500, and one-half the amount over said sum.
It seems clear to us that the intention of the legislature by the act of 1897 was to make the office of probate judge a fee office exclusively, as with it was coupled a provision that one-half the excess over a specified sum should go to the general fund of the county.
The judgment of the district court is affirmed..
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The opinion of the court was delivered by
Wells, J.:
From the agreed statement of facts, it appears that Thomas 0. Dick was the secretary and general manager of the Capital Elevator Company, a corporation engaged in the business of receiving and storing grain for hire in the city of Topeka, and as such had authority to execute and issue warehouse receipts, to himself or others, for all grain he might store in said elevator on his own account. The plaintiff loaned said Dick a sum of money, for which it took his note secured by the deposit of a warehouse receipt of which the following is a copy :
“No. 48. Capital Elevator Company, BasW!lo¡ Topeka, Kan., November 5, 1895.
“ Received in store from cars 115691. M., 2370 I. M., 11892 I. M., and 2325 M. P., thirty hundred and fifty - six If bushels of wheat, inspected No. 2 hard, subject only to the order hereon of the Citizens’ Bank and the surrender of this receipt and payment of charges.
“It is hereby agreed by the holders of this receipt, that the grain herein mentioned may be stored in special bin only, and subject to such rates for elevation and storage as the company may at any time establish. Now in bin No. 2. Thos. C. Dick,
“183,380 ibs. Secretary and Manager.”
Indorsed : “Insured by the Capital Elevator Co. on basis of market value per bushel for the benefit of the owner of this receipt.
“The Capital Elevator Co.
“ By Thos. C. Dick, Secretary and Manager.”
The elevator company did not have any wheat owned by Dick and refused to deliver any when demanded. The note was not paid and this action was instituted. The case was submitted to the court without a jury upon an agreed statement of facts, and by it decided in favor of the defendant, and error brought to this court. Under the provisions of chapter 67, General Statutes of 1897 s(Gen. Stat. 1899, §§ 1390-1403), such receipts are negotiable like bills of exchange and promissory notes, and carry the title of the grain represented with them, and for that reason the line of decisions from the federal courts cited by the defendant in error is not applicable, as particular emphasis was made in the opinions referred to upon the fact that the papers in controversy were not negotiable.
The receipt in this case was negotiable paper, was issued by the party authorized to issue such papers, was within the apparent scope of his authority, and the defendant is estopped from denying its liability thereon.
The judgment of the district court is reversed, and said court directed to render a judgment for the plaintiff against the defendant for the sum due under the agreed statment of facts.
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The opinion of the court was delivered by
Schoonover, J.:
On the application of defendant in error V. Laubner, a survey was made of certain lands in Cowley county. When the county surveyor filed his report, the plaintiffs in error each separately perfected an appeal to the district court of Cowley county. By consent, the appeals were consolidated and referred to a referee.
In the trial before the referee, the plaintiffs in error appeared and contested the validity of the survey, as appellants, and the defendants in error appeared and defended the validity of the survey as respondents. In his report, the referee found that the survey was incorrect and incomplete, and recommended that it be rejected; this report was confirmed by the court.
The court also referred to the referee the question as to what disposition should be made concerning the costs. The referee reported as follows :
“I find, as a conclusion of law, in addition to my former findings, that the costs of said .survey and said appeals should be apportioned, in accordance with section 173d, chapter 25, of the General Statutes of 1889, among the several parties, to wit, Valentine Laubner, Henry S. Ireton, Sophia Freilinger, and F. G. Lehman, equally ; that is to say, one-fourth to each of said parties.”
This report also was confirmed by the court.
The question presented is the constitutionality of section 173d of chapter 25 of the General Statutes of 1889.
It is contended by plaintiffs in' error that this section is repugnant to section 16 of article 2 of the constitution, which provides :
“ No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.”
The section complained of is section 4 of chapter 177 of the Laws of 1879 ; that chapter was entitled “An act amendatory and supplemental to chapter 25 of the General Laws of 1868.” The title to chapter 25 of the General Laws of 1868 is as follows : “An act relating to counties and county officers.” The section in question reads as follows :
“The expenses and costs of the survey and suit shall be apportioned among all the parties according to respective interests, except in cases of appeal, in which, if the report of the surveyor shall be affirmed by the court, in which case the party appealing shall pay all the costs of the appeal. If the said apportionment, or any part thereof, shall remain unpaid for thirty days after any report shall have become final, the county surveyor shall furnish to the county clerk a statement, under oath, showing the amount remaining unpaid, and a description of the land against which the apportionment was made. On receipt of any such statement the county clerk shall levy a tax against the land mentioned in said statement sufficient to pay the amount of said apportionment. Said tax shall be collected in the manner provided for the collection of taxes on real estate, and subject to the same penalties; and when collected the county treasurer shall pay the amount so collected to the county surveyor.”
The supreme court of this state, in the case of John v. Reaser, 31 Kan. 406, 2 Rac. 771, in discussing chapter 177, Laws of 1879, said:
“ The sections Of chapter 177, Laws of 1879, relating to the duties of county surveyors, the determination by them of boundaries of lands, and giving parties affected by the survey of county surveyors the right of appeal, are not in conflict with section 16 of article 2 of the constitution of the state.”
They further said: “We express at this time no opinion in regard to sections 1 and 4 of said chapter 177.”
In the case of Tarpenning v. Cannon, 28 Kan. 665, the apportionment of costs under section 4 was presented to the supreme court. In the opinion Chief Justice Horton said:
“Appeal was taken from the report of the survey by plaintiff in error and two other parties. After-wards the cases were divided up, making the parties directly interested in the dividing lines parties to the actions. The court in this case taxed ail the costs of the action, amounting to $151.65, and also $44.92 of the costs in the case of Stonehocker and others against county surveyor, to plaintiff in error. This was erroneous. . . . Under this provision (section 4) the expenses and costs of the survey and action must be apportioned among the parties according to their respective interests, as upon appeal the report of the surveyor was not affirmed.”
It is true that the constitutionality of this section has never been called to the attention of the supreme court, but the court has passed upon section 3 of the same chapter, which provides in part as follows:
“Upon the filing of said notice and bond, the register of. deeds shall certify the appeal to the clerk of the district court and file in his office a certified copy of the report of the surveyor, and the appeal shall stand for. trial by the court at the next regular term thereafter. The court shall hear and determine said appeal, and enter an order or judgment in the [either] approving or rejecting said report, or modifying or amending the same, according to the rights of the parties, or may refer the same back to the surveyor to correct his report and survey, in conformity to the judgment of the court, or may for good cause shown set aside the report and appoint a new surveyor, who shall proceed de novo and survey and determine the boundaries and corners of the land in question.”
If the title to the act is broad enough to permit the district court to hear and determine the appeal as provided by section 3, in our opinion it is broad enough to permit the district court to tax the costs as provided by section 4.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Wells, J. :
On March 15, 1888, Everton Doom made an application for a loan of $300 through the Oberlin Loan, Trust and Banking Company, said loan to be secured by mortgage upon ninety-one acres of land in section 30, township 3, range 26, in Decatur county. The application, which was in writing, contained a plat or diagram purporting to show location of roads, streams, buildings, cultivated lands, orchards, meadows, pastures, timber, etc. On the same day the loan was made, a note with interest coupons attached was executed, and attempted to be secured by a mortgage upon ninety-one acres, more or less, of land in the section above described. The description of the land in the mortgage was defective and did not correctly describe any land. After an attempted foreclosure of the mortgage and sale of the land thereunder was had, the defect in the mortgage was discovered, an amended petition was filed alleging the mistake, and a decree taken correcting the same and foreclosing the mortgage as amended. From this decree error is brought to the court of appeals.
The main question in the case is, Did the evidence justify the judgment? We think it did. The mortgage as recorded makes the mistake apparent and indicates the correct description, so that any person reasonably conversant with real-estate matters would readily see that an error existed, and the correct description could not reasonably be doubted. It was sufficient to put a purchaser in the possession of notice of the necessary result of any reasonable inquiry as to what land it was intended to cover, and this is still further indicated by the plat in the application. The fact that the plat was added to the record as an amendment does not make it any less a part thereof than if it had been originally embodied therein.
Under section 40 of the code (Gen. Stat. 1897, ch. 95, §40; Gen. Stat. 1899, §4284) as construed in Werner v. Hatton, 54 Kan. 250, 38 Pac. 279, it was not error to allow the case to be continued in the name of the original party, although his interest therein had been transferred to another after the commencement of the suit.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced by tbe defendant in error to recover from the plaintiff in error the sum of $128, paid to him as acting county treasurer of Greenwood county.
A demurrer was sustained to the evidence of the defendant below and judgment rendered against him for said sum of $128, with 100 per cent, additional and $25 attorney’s fees, as provided in section 24 of chapter 27 of the General Statutes of 1897 (Gen. Stat. 1899, § 1586).
On the 10th day of January, 1893, E. L. Gould, the county treasurer of said county, died, and the office was thereafter conducted by the plaintiff in error until S'. N. Martin had been appointed and qualified as county treasurer, which was on February 2, 1893'. Rossel continued to perform the duties of the office until settlement had been made with a representative of the deceased treasurer and with himself, which was done on February 18, 1893.
Rossel filed a claim against the county for salary as acting county treasurer from January 10 to February 18, which was allowed, and upon demand refused to return $128, the amount paid as salary from February 2 to February 18.
As we view this case there is but one question to be determined by us, and that is, Who was entitled to the salary from February 2? If Rossel, then the trial court erred. If Martin, then no error was committed. Martin was appointed January 18, 1893, qualified February 2, 1893, and immediately demanded possession of the office. Section 90 of chapter 27, General Statutes of 1897 (Gen. Stat. 1899, §1618), reads as follows:
“ In case the office of county treasurer shall become vacant the board of county commissioners shall appoint a suitable person to perform the duties of such treasurer, and the person so appointed, upon giving bond with the like sureties and conditions as that required in county treasurer’s bonds, and in such sum as the said board shall direct, shall be invested with all the duties of such treasurer until such vacancy shall be filled or such disability removed.”
Martin had fully complied with the requirements of this statute and was entitled to the office. The fact that Rossel refused to turn over the office until the accounts were checked up and settlement made did not entitle him to act as county treasurer or receive the salary. Whether he was entitled to receive compensation for the services rendered does not enter into this controversy and is not determined.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced by the plaintiff in error, as agent of the Montecello Horse Company, against the defendants, in the district court of Woodson county, to recover the sum' of $210 and interest, on a promissory note executed by the defendants to the plaintiff as such agent. The defendants admitted the execution of the note, but alleged that the consideration thereof was the purchase of a stallion with warranty. They alleged that the stallion was warranted by the plaintiff to be sound in wind and a sure foal-getter; that defendants, relying upon the warranty and believing the same to be true, purchased the stallion and executed and delivered to plaintiff the note shed on in this action; that at the time of the purchase the stallion was not sound in wind nor a sure foal-getter, but was absolutely worthless, as the plaintiff well knew. The case was tried to a jury and a verdict returned for the defendants for costs, and judgment rendered accordingly.
The errors complained of are based upon the instructions given to the jury by the trial court. The instructions are too long to be set forth in this opinion. They have been considered, and under the evidence, and upon the theory on which the case was tried, they informed the jury in a clear and comprehensive manner what material facts must be found in order to recover or bar the recovery.
The case was tried upon the theory that the warranty was oral, and. parol evidence was introduced to prove the same. During the trial, the plaintiff testified as follows:
“Ques. Who started? Who was in the company? Ans. Mr. Wininger was in the company and myself and Mr. Flower. My hired man bridled and trigged the horse, and we had always handled the horse behind the wagon ; I had never taken him any other way, and Mr. Wininger got into the wagon. I went into the house and made out the bill of sale for the horse on the back of our bill of sale, and then we went.
“Q. You delivered the bill of sale to Mr. Flower? A. Yes, sir; I think I got into the wagon before I thought of that, when he spoke to me about it.”
Plaintiff in error in his brief now contends :
“We claim that when it was disclosed by the evidence that Flower had required a written bill of sale and the same had been made out and delivered to him, that all evidence of oral statements by Brown during the negotiations were incompetent and immaterial. Further, we claim that each and every instruction given by the court to the jury touching the defense set up by the defendants were based upon the alleged verbal statements of Brown, and were erroneous, prejudicial and misleading.”
. Plaintiff in error does not call our attention to an objection made to the oral testimony introduced. It was not the duty of the court, of its own motion, on the above testimony, to -strike out or refuse to hear evidence of oral statements in proof of the oral warranty. If the warranty was in writing, and this fact had been called to the attention of the trial court by a motion or by an objection to the testimony, the contention of plaintiff in error would avail. The case was tried upon the theory, by all parties, without objection, that the defense was based upon a oral warranty. The only suggestion in the record that there was a written warranty is the evidence set forth above. This is not sufficient. The error now complained of was not presented to the trial court and cannot be reviewed.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
Evans & Thomas, the defendants in error herein, bought, on credit, a bill of lumber of the Fleming & Ayerst Company, a firm doing business in the city of Seattle, Wash. The account was by them assigned to the Fleming & Ayerst Company of Chicago, which duly notified Evans & Thomas of such assignment. The two companies were separate and independent concerns, none of the members in either having any interest in the other, although their names were identical, except as to the designation of their respective locations. It appears that the Chicago concern had a contract with the Seattle company to purchase its accounts east of the Rocky mountains.
The Fleming & Ayerst Company of Chicago brought suit to recover upon the account. Defendants pleaded payment, and also alleged that the Chicago company was organized for the purpose of handling the accounts of the Seattle company and thereby cheating and defrauding the creditors and customers of said Seattle company. The case was tried to a jury, which returned a verdict for the defendants. A motion for a new trial was by the court overruled and judgment rendered for defendants. Plaintiff brings the case here.
Several grounds of error are assigned by plaintiff in error, but we think that the case turns on the question, Was there some evidence to support the verdict? Defendants below introduced evidence to prove that they bought a draft for the amount of the account, and that such draft was indorsed to the Fleming & Ayerst Company and enclosed in an envelope properly stamped and addressed to Chicago, 111. Upon the trial, it seems to have been contended by plaintiff that the letter had by mistake been sent to the Fleming & Ayerst Company at Seattle, Wash., and that as this company was an independant concern payment had not been made to the Chicago company. We find nothing whatever in the record to show that the two companies were in anyway connected. Mr. Carey, president of the Chicago company, testified that the account had not been paid. The account and assignment were admitted by defendants and the only issue was as to payment.
Admitting that a draft for the amount of the account was purchased, indorsed to the Fleming & Ayerst Company and enclosed in an enyelope properly stamped, addressed to Chicago, 111., and .deposited in the post-office, it does not follow that payment was proved. As a general rule, the duty lies on the debtor to pay his debt to his creditor personally, or to his authorized agent. The burden of proof to show payment of a debt is not sustained by proof that a letter containing the requisite amount was duly deposited in the post-office. The debtor must go further. He must show that the creditor authorized this mode of remittance, either by express assent or direction, or by such usage ancl course of dealing from which such assent may be fairly inferred. (2 Greenl. Ev. § 525; Gurney v. Howe, 9 Gray [Mass.], 404, 69 Am. Dec. 299; Burr v. Sickles, 17 Ark. 428, 65 Am. Dec. 437.)
We have carefully examined the record, but find no evidence tending to show that the Fleming & Ayerst Company of Chicago authorized defendants in error to make remittance by mail, nor is there evidence of such usage and course of dealing that assent may fairly be inferred. So far as the evidence shows, defendants in error had not, prior to this particular transaction, done any business'with such company, and had never before made a remittance to that company by mail or in any other manner.
It is true that a letter properly addressed, stamped and deposited in the post-office, is presumed to have been received by the person to whom it is directed. Perhaps it is more nearly accurate to say that the fact that a letter properly addressed is deposited in the post-office with postage prepaid is prima facie evidence -that the person to whom it is addressed received it, '.and that the inference, based on the fact that letters usually reach their destination, may be overcome by other evidence, it being a question for the jury.
Mr. Carey, who was president of the Fleming & Ayerst Company of Chicago testified that the account had not been paid. Upon the question as to whether or not the positive testimony of the party addressed that he did not receive the letter is sufficient to overcome the presumption that the letter was, in fact, received, we find a conflict of opinion. The supreme court of Washington has held that such presumption is overcome by direct testimony of the person to whom the letter is sent that it was hot received (Ault v. Interstate Savings & Loan Ass., 15 Wash. 627, 47 Pac. 13), while the supreme court of Alabama has held that it is for the jury to determine whether the presumption is overcome by such evidence. (Steiner et al. v. Ellis [Ala.], 7 So. 803.) We are inclined to favor the rule laid down in the Alabama case as being the better one, but do not base our decision upon that question. The evidence shows that the draft was mailed by a Mr. West, who was the bookkeeper for defendants in error. West testified that he noticed the assignment stamped upon the -invoice received by Evans & Thomas and that he read the address of the Chicago company. The assignment was as follows :
“The above and foregoing account has been transferred by us to the Fleming & Ayerst Company of Chicago, to whom payment thereof is to be made, at 218 Home Insurance Building, Chicago, Ill.
Fleming & Ayerst Company, Seattle.
By E. A. Avekst, Secretary."
In answer to the question, “What address did you put on the envelope ?” West replied, ‘f Chicago, Ill.”
We do not think that the letter was so addressed that the jury would be warranted in drawing an inference that it was actually received by the Fleming & Ayerst Company of Chicago. In a large city like Chicago, it frequently happens that there is more than one firm bearing the same name. It is a general custom in such city to deliver mail to the street and number of the person addressed, and if mail is not so addressed it not infrequently happens that it is not received by the person for whom it is intended. The presumption that a letter is received by the person to whom it is addressed should have some reasonable limitation placed upon it, and we do not think that evidence that a letter was simply addressed to Chicago, Ill., would be sufficient to support an inference that the letter was actually received. If the draft had been indorsed' to the Fleming & Ayerst Company of Chicago, and enclosed in an envelope addressed to such company at 218 Home Insurance Building, Chicago, Ill., the question of payment would probably not have arisen.
We think that the motion for a new trial should have been sustained, and the judgment of the district court is therefore reversed.
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The opinion of the court was delivered by
Wells, J.:
The Argentine Bank was owing the plaintiff in error, R. H. Stockton, certain moneys, and in payment thereof the cashier,'G. A. Taylor, issued and delivered his check on the bank payable to R. H. Stockton, signed G. A. Taylor, cashier, and dated July 20, 1896. On August 17 or 18, 1896, the defendant in error, H. S. Montgomery, as an accommodation, cashed this check, the payee indorsing his name on the back and delivering it to him. On the same day Montgomery transferred the check by delivery to F. S. Thomas, who indorsed it and delivered it to the Bank of Topeka, by which it was forwarded for collection to the Midland National Bank, Kansas City, Mo., by which bank it was received on August 19 and sent to the First State Bank, Argentine, Kan., and by it on August 20 was presented for payment, payment refused, and protest duly made, .the bank having been taken in charge by the state bank commissioner before it was opened for business on August 19. A notice of protest was mailed to the plaintiff in error at Argentine, Kan., which was not his proper post-office address, and said notice was not received by him. On August 25 the defendant in error demanded of the plaintiff in error the sum he had paid him for the check, which was refused, and afterward this action was brought to recover the same before a justice of the peace of Topeka, Kan., who gave judg ment for the plaintiff, and on a petition in error this judgment was affirmed by the district court, and now comes here for review.
Upon the material questions of fact there is no controversy, and the only question necessary to be determined is, Under the undisputed facts, which party is entitled to a judgment?
Under section 8 of chapter 115, General Statutes of 1897 ( Gen. Stat. 1899, § 544), the plaintiff below was entitled to recover if he had used due diligence to obtain payment from the drawer, maker, or obligor.
Úid he use due diligence? The presentation and demand of payment were certainly within due time, and we think that, under the authority of Seaton v. Scovill, 18 Kan. 433, we must hold that the notice to the indorser was in time.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J.:
This action was brought in the district court of Norton county by the defendant in error against the plaintiffs in error to compel the conveyance of a quarter-section of land in said county alleged to have been bought by the defendant in error of one Manassa Kline, and by said Kline deeded to the plaintiff in error August Zellmer, in trust for the defendant in error. The court made findings of fact and conclusions of law as follows :
“ 1. That about June 25, 1890, Manassa Kline was the owner of the northwest quarter of section 21, in township 8 south, of range 21 west, in Norton county, Kansas, unencumbered, except by a mortgage of $500.
“ 2. That on or shortly prior to June 25, 1890, for a valuable consideration, to wit, sixty dollars, and the assumption of the mortgage thereon, plaintiff herein became by purchase the owner of said premises above mentioned, and was by the said Kline, in the presence of and without objection or protest from defendant Zellmer, placed in the possession of the said premises, and has ever since remained in the sole, uninterrupted and (until a short time prior to the filing of this suit) undisputed possession thereof; resided upon, tilled the same ; kept up and made improvements thereon ; exercised control over and managed the same; received, unquestioned, the rents and profits of the said premises ; paid the taxes thereon year by year, except a portion of last year’s taxes ; also, paid the interest upon the mortgage thereon as the same fell due, and in time, and prior to the filing of this suit, paid to the defendant Zellmer the principal of the said mortgage, with which the said Zellmer was to discharge the mortgage upon the said- premises.
“8, That on the said June 25, 1890, a deed of general warranty was by said Kline and his wife executed and delivered to the defendant herein, August Zellmer, for the expressed consideration of $1000, but, as a fact, no actual consideration therefor, the said deed being for the premises in suit.
“4. That at' the time of making such deed by Kline to Zellmer it was understood that the same should so stand till the mortgage upon the said premises should be paid off by the plaintiff herein.
“5. That after the payment of said mortgage to the defendant, about August, 1897, plaintiff herein, being in sole possession of the said premises, demanded that the same be conveyed to him by defendants, who refused so to do.
“ Q. That the defendants Zellmer, or either of them, at no time asked or claimed the rents from the plaintiff, exercised any control over said premises, or questioned this plaintiff’s possession.
“ 7. That at all times since, and for some time prior to, June, 1890, the defendants Zellmer have resided in the vicinity of the land in dispute.
“ 8. That the acts, words and statements of defendant to others made, conduct of the parties one towards the other relative thereto, also agreements made concerning the said land and the sale thereof, with all the attendant circumstances, would create and imply the trust relation between the plaintiff and defendant with reference to the holding of said land.
“ CONCLUSIONS OB’ LAW.
“ 1. That the plaintiff is the equitable owner of the premises involved in this suit, and is entitled to the legal title thereof.
“2. That the defendants Zellmer are holding the legal title to the said- premises in trust for this plaintiff, and therefore are his trustees.
“3. That the defendants are therefore required, within sixty days from this day, to transfer the legal title to the said premises, by good and sufficient deed of conveyance, to the plaintiff herein; failing to do which, this judgment shall operate as such conveyance.”
There are ten allegations of error in plaintiffs in error's brief. The first and second allegations challenge the sufficiency of the amended petition, upon which the case was tried. The third and fourth relate to evidence admitted and excluded, and are not insisted on or argued.. Nor are the rules of this court in relation thereto complied with. They will require no further mention. The fifth allegation is upon the demurrer to the evidence.
All of the material questions involved in the case may be thus stated: Does the amended petition state a cause of action? Was there evidence sufficiént to sustain the allegations of the petition? Are the findings of fact j ustified by the evidence, and are the conclusions of law correctly drawn therefrom? This action was not brought upon a contract for the sale of lands, nor do we think it was to compel the execution of an expressed trust, but it was brought to declare and enforce an implied or resulting trust. Under the law in relation to constructive, implied or resulting trusts, as declared in Rayl v. Rayl, 58 Kan. 585, 50 Pac. 501, we think the amended petition stated a good cause of action. There was sufficient evidence to justify the findings of fact, and the conclusions of law are correctly drawn therefrom.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J.:
Benjamin Files, the plaintiff in error, began a suit in the district court of Osborne county against Frank Worcester upon a promissory note, and caused an attachment to be issued and levied upon certain land in said county, after which he procured service on the defendant by publication. R. F. Baldwin and O. S. Gaunt, upon motion andnotice, claimed to be the owners of the land attached and asked that the attachment thereon be discharged. The name of C. S. Gaunt appears in this motion, but does not appear in the notice of the hearing thereof, and it does not seem from the journal entry that he took any part in the hearing except as a witness. The motion to discharge the attached property was sustained by the court, and its action in so doing is brought here for review.
The defendant in error moves this court to dismiss these proceedings in error for the reasons : (1) That there is a defect of parties; (2) that the petition in error shows that the judgment complained of-was rendered by the judge at chambers while the record shows that it was rendered by the district court; and (3) that at the time of rendering said judgment the court made an order allowing the defendant a certain time in which to make suggestions of amendment and afterward the judge at chambers shortened said time.
Under the first head,'it is alleged that C. S. Gaunt is a necessary party to this proceeding. We are unable to see that his rights'could be prejudicially affected by the judgment of this court, as there was no adjudication for or against him in the trial court. As to the second ground for dismissal the mistake is obvious, and we do not see that any prejudice could result therefrom.
In relation to the third ground for dismissal, it appears that these proceedings are to reverse an order discharging an attachment, and, under section 595 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4861), could only be brought within thirty days from the time of making the order complained of, and, under the original order of the court fixing the time for making and settling the case and serving amendments, the proceedings would have been unavailing — a matter which seems to have been overlooked by court and litigants at the time. Justice to the plaintiff certainly required that the time should be so shortened as to make it possible to have a review. The judge at chambers had authority to extend the time and we think in the interest of justice he had authority to shorten it. The judge, sitting as a court, inadvertently made an order which defeated the object of the law, and we believe he was authorized, when his attention was called to the fact, so to modify the order as to make it accomplish its purpose. The motion to dismiss will be denied.
The only material question in this case upon its merits is: Did the deed from Bradbury Worcester to Charles Pearsoll convey the title to the attached land as against the interest of the attaching creditors of Frank Worcester, the son and only heir at law of said Bradbury Worcester, now deceased?
It appears from the evidence that Bradbury Worcester was on February 26, 1898, the owner of the land in question, and being informed that he had but a short time to live, and advised that if he desired to attend to any business matters he should do so at once, replied that the only thing he had to attend to was the putting his farm in shape so that it could be used in settling up his son’s indebtedness upon his official bond as sheriff of Grant county, Oklahoma, as he had previously expressed a desire to have done, and directed that a deed thereof be made at once to Charles Pearsoll for such purpose. A notary was procured and a deed filled out, but spoiled in signing. Another blank was then at his request handed him, and by him signed and acknowledged, and the son, by his instructions, filled it out, and after it was completed read it to his father, who approved the same. Pearsoll sold the land to R. F. Baldwin, the defendant in error, for $600, and the proceeds were applied to the payment of the debt to Grant county, as desired by the original owner, Frank Worcester, as agent for Pearsoll, making this sale and claiming no personal interest in the land. Baldwin agreed to sell the land to C. S. Gaunt for $650, which sum was paid him and a deed made, but as this attachment proceeding had been commenced some kind of an understanding was had to let the matter stand, presumably until the final disposition of the attachment matter.
It seems to us that the judgment of the district court was just and fully warranted by the evidence. These plaintiffs had.no claim upon Bradbury Worcester, and, so far as they were concerned, he had a perfect right to dispose of his property as he thought best. He could perpetrate no fraud upon them, for lie owed them no duty. His property was applied as he undoubtedly desired it to be. As to Frank Worcester, he had a perfect right to prefer one creditor to another, and if this land had descended to him upon the death of his father, on March 1; 1898, he would have been justified in applying it to the payment of the Grant county debt, and, having recognized the validity of the transfer to Pearsoll and by his representations caused Baldwin to buy the land, he would be estopped from claiming title thereto, and these plaintiffs cannot claim a greater interest therein than he had when their attachment was levied thereon.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
It is contended that under the evidence in the case, as disclosed by the record, the court should have granted a new trial because “ the verdict is contrary to all of the evidence and is not sustained by any view thereof and is inconsistent therewith.” This ground assigned for a new trial is doubtless intended to be under the sixth statutory ground, which is as follows: “That the verdict, report or decision is not sustained by sufficient evidence or is contrary to law.” We take it that the real contention is that the verdict is contrary to law because it is a compromise verdict; that there were but two verdicts which the jury could possibly render under the evidence, one for the plaintiff for the full amount of his claim, or a verdict for the defendant. If the record disclosed such a condition, we would be obliged to sustain the contention and direct a new trial. We said in our opinion at the original hearing of this case that this contention was not available to the plaintiff in error because the record did not contain, or purport to contain, all of the evidence. It is contended, audit is quite true, that the record purports to set out the substance of all the evidence but not its detail. On the part of the plaintiff, the record recites that he was sworn, and testified that on the 24th day of October, 1893, he entered into a contract with the defendant to work for him in selling organs and collecting the proceeds of sales made by him and made by others; that the plaintiff was to furnish a horse and harness in said work ; that he should work with his horse and harness in the territory around Atchison, Kan., and that the defendant should pay him therefor what such services were reasonably worth; that he served the defendant under the contract from October 1, 1893, to July 1, 1894, continuously, except two weeks, and was not engaged in any other business during that time ; that his traveling expenses were $50.80; that he had been paid $210.63 ; and that he had done work for the plaintiff, the record says, but it doubtless means the defendant, under the contract in Missouri in gathering up and bringing in organs which had not been paid for. The record shows also that he called other witnesses, who testified that such services were worth from twelve dollars to fifteen dollars a week and expenses, and rested ; that the defendant Young testified that he had never made any contract with the plaintiff to work for him with horse and harness at all; that he had made a contract with the plaintiff without horse and harness, and that he, the defendant, furnished a team of horses and harness ; that if the plaintiff had used his own horse and harness at any time he had done so voluntarily; that he never made any contract with the plaintiff to pay what his services were reasonably worth, but that he had made a contract with him to sell organs for him in the territory surrounding Atchison, using his (defendant’s) wagon, horses, and harness, he to furnish the organs at a list price, plaintiff to sell them, and to have for his services one-half the difference between the list price and the amounts the plaintiff might be able to realize from the sales thereof, the plaintiff to pay his own expenses an'd the expense of the team while traveling with it; that at or about the same time the plaintiff agreed that he would make collections for the defendant on sales made by other agents at a compensation of ten per cent, on the amount collected, the defendant to pay the expenses of the plaintiff while making such collections, and that the defendant paid such expenses, amountingto $50.80 ; that he furnished to plaintiff wagon, horses and harness, and organs to be sold, from October 1, 1893, to July 1, 1894, and that the plaintiff had made sales for him on which the difference between the list price and the amount realized from the sales was the sum of $268.50 ; that the plaintiff had made collections under the contract to the amount of $132 ; that he had paid the plaintiff $210.63; that the plaintiff was entitled to one-half of the net proceeds, to wit, $268.50, the one-half being $134.25, and the sum of $13.20, being ten per cent, on the collections, and $50.80 expenses, making a total credit of $198.25 ; that the defendant produced witnesses (naming them) who testified that they were blacksmiths, and that during the period in controversy the plaintiff had brought to their shops to be shod the defendant’s teams ; also, a witness (naming him) who testified that he had been employed by the defendant to take charge of his horses, and that at all times he, the defendant, had plenty of horses for the plaintiff to use, and that the defendant always furnished the plaintiff with horses whenever requested to, and that at no time was it necessary for the plaintiff to use his own horse ; and also a witness, Noll, who testified that he was a sewing-machine agent, and that during the period covered by the plaintiff’s claim the plaintiff had sold two sewing-machines for him and hauled them out in the defendant’s wagon, and that the plaintiff had divided the profits on the sales with him. The defendant produced another witness who testified’ that, during the period covered by the plaintiff’s claim he had helped another sewing-machine agent to sell her a sewing-machine ; and another witness who testified that during that time the plaintiff had sold him an organ and delivered it in the defendant’s wagon and claimed that the organ was the property of the defendant; and another witness, who testified that the plaintiff tried to induce him to cooperate with him in the sale of an organ for a St. Joseph house in June, 1894 ; that he informed the plaintiff at the time that he had already contracted the sale of an organ to be delivered from the defendant; that the plaintiff told the witness that if he would make the sale from the St. Joseph house that he (the plaintiff) could get an organ from him at such a figure that they could make more money after dividing the commission with the plaintiff than they could by selling an organ for the defendant; and then follows this statement: ‘ ‘ The evidence tended to show that the plaintiff had devoted some time to other business besides the business of the defendant and had lost some time, but how much time he had so lost, or devoted to other business, did not appear.” The record then says the defendant rested his case ; that he introduced no evidence contradicting the evidence on the part of the plaintiff concerning the reasonable value of the services performed ; and that the plaintiff then testified in rebuttal concerning the matters offered in evidence by the defendant.
Courts of review ought to exercise with caution the power of setting aside verdicts and directing new trials, and with a certainty that the jury has acted with prejudice, passion, or some motive other than that of awarding substantial justice to the parties. Whether, in the evidence of the witness in behalf'of the plaintiff respecting the value of his services, the value of his services personally was disconnected from the value of the use of the team and harness, the record does not purport to show. The details of the witness’s evidence are not given. It is, however, apparent that the jury had aright to find upon the evi-' dence that, although the plaintiff’s theory that the contract was for a reasonable compensation for his services, as he claimed, yet that it did not include his horse and harness. They had the further right to find from the evidence that he had not devoted all of the time to the service of the defendant which he claimed he had ; that he was in error as to this. The case was tried upon the plaintiff’s bill of particulars filed before a justice of the peace, without any pleadings filed on the part of the defendant, so that any defense was available to him that was lawful for him to make. That the jury did not award the amount they might have awarded under the plaintiff’s evidence is no ground for a complaint on the part of the defendant. The state of the evidence on behalf of the defendant was of such character that it necessarily left the jury in a position in which they were obliged to do the defendant an injustice if they allowed the plaintiff the full amount of his claim, and at the same time believed that he used the defendant's horses, not his own, and that he had lost time covered by the period for which he made the claim.
In conclusion, it is not a case in which they were obliged under the evidence to return either a verdict for the entire claim of the plaintiff or a verdict for the defendant. It does not appear to haye been a compromise verdict in the sense in which that term is used in the books. It does not appear that impartial justice has not been done between the parties, and in all such cases it is the duty of the reviewing court, in the interest of peace, not to disturb the verdict of the jury where it has been approved by the trial court, who heard all the evidence in detail and is presumed to have acted thereon, and who was necessarily in a better position to determine whether the verdict of the jury was sustained by the evidence in its detail than we are with the record before us, giving but a resume of the substance thereof. We adhere to our former opinion.
The judgment is affirmed.
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The opinion of the court was delivered by
Rosen, J.:
In this appeal from an eminent domain proceeding, Lenus Schuck seeks to enjoin Rural Telephone Service Company, Inc. (Rural Telephone) from obtaining an easement on his land. After mistakenly burying a telecommunication cable outside an easement that it had negotiated with Schuck, Rural Telephone filed a petition for eminent domain seeking an additional easement that would allow it to keep the cable in its present location. Schuck appeals from the district court’s denial of his action seeking to enjoin Rural Telephone from proceeding with its eminent domain action.
FACTS
Schuck has used the property at issue partially as cropland and partially as pasture. In 1991 and 1998, Rural Telephone, Schuck, and Schuck’s parents, his predecessors in title, negotiated easements for Rural Telephone to bury cables across Schuck’s property. In exchange for both easements, Rural Telephone agreed to pay Schuck $1 per rod for a total of $750 and to reimburse Schuck for any crop damage.
In 2002, the Kansas Department of Transportation (KDOT) notified Rural Telephone, a Kansas telephone public utility, of its plans for construction work on a highway in Norton County, Kansas. Before the construction project could begin, Rural Telephone had to bury a new telecommunications cable along the highway to replace the telecommunications cable located in the construction zone. Rural Telephone determined where it had to place the cable and staked the property pursuant to “staking sheets.” Rural Telephone then sent blanket easements for a quarter section of land to affected landowners, most of whom agreed to the easement.
Schuck received but did not sign the blanket easement. He instead negotiated with a representative from Rural Telephone in the summer 2002 for a more limited 40-foot-wide easement within which Rural Telephone could lay its cable. In exchange for the easement, Schuck and his mother, who has since passed away, received a Hill City phone line and payment for damage to any crops or land upon completion of construction.
Rural Telephone proceeded to install the cable and completed the project on Schuck’s land in early 2003. While building a fence on his property in January 2006, Schuck discovered that the cable was not located within the 40-foot-wide negotiated easement. Schuck later testified that it was readily visible that the cable lay outside the easement; however, he had not been on the property to discover this until January 2006 because he had rented the property to someone else.
Upon discovering the cable’s location, Schuck contacted an attorney, who then notified Rural Telephone that it had placed the cable outside the easement. In response, representatives from Rural Telephone measured the cable’s location and provided Schuck with staking sheets identifying the cable’s location. Rural Telephone discovered that approximately 2,430 feet of cable had been placed outside Schuck’s easement. Schuck and Rural Telephone entered into negotiations, where Schuck ultimately requested damages of $40,000 for Rural Telephone to keep its cable in the present location.
After negotiations failed to resolve the dispute, Schuck filed an action for ejectment and trespass against Rural Telephone. Rural Telephone responded with a petition for eminent domain seeking a permanent easement to keep its cable in its present location. In its petition, Rural Telephone admitted that the cable was outside the easement but maintained that the cable lay in its ideal location and that relocating the cable would interrupt service and degrade the system. Rural Telephone asserted that the taking was therefore necessaiy for it to maintain, inspect, and repair its cable.
Schuck then filed a petition for injunction, which is the subject of this appeal. Schuck asked the district court to enjoin Rural Telephone temporarily and permanently from proceeding with its eminent domain action because: (1) the petition for eminent domain was jurisdictionally deficient because Rural Telephone failed to sufficiently identify its authority for the proposed taking; (2) the taking was not necessaiy; and (3) the taking was fraudulent, in bad faith, and an abuse of discretion. Schuck subsequently filed an amended petition asserting that Rural Telephone’s eminent domain petition should also be denied because Rural Telephone failed to follow the requisite procedures for an eminent domain action.
At the hearing on these petitions, Schuck testified the cable’s location affected his property because it presented an obstacle to laying water lines or making other improvements to the property.
Ron Ellis, Rural Telephone’s Director of Operations, testified about why the company had laid the cable where it did and the consequences of relocating it. He stated that every fine of cable runs parallel to another cable fine because “we don’t want to cross it at a bunch of angles.” According to Ellis, any time one cable crosses another, the cable must be at a right angle to avoid cutting lines, which would result in a disruption of service. He testified that at the time the construction crew buried the cable on Schuck’s property, it had not seen Schuck’s easement and was unaware there was a 40-foot limit. The construction crew continued to lay the cable parallel to the old cable fine, as set forth on the staking sheets and consistent with its normal practice, and in so doing exceeded the easement. Ellis testified that tire placement of the cable in 2003 — parallel and at 90-degree angles to the other cables — -was to ensure the longevity of the cable and not to benefit financially. Ellis testified that Rural Telephone was unaware that a portion of the cable lay outside Schuck’s easement until Schuck contacted the company in 2006.
Ellis further testified that moving the cable into the area of the easement would require Rural Telephone to splice the cable. Each splice to the cable would cause optical loss and add light reflectance, which takes years of life off the equipment and, over time, weakens the equipment. Such splices degrade service, resulting in decreased picture quality on a video system or noise on a phone call. Sphcing would result in the 11 communities served by Rural Telephone losing service for an unknown amount of time. Ellis explained that the public would suffer because of the potential for missing emergency calls and services.
The district court first ruled that Schuck had failed to prove that Rural Telephone acted fraudulently, in bad faith, or in an abuse of discretion when it constructed and buried its 2003 telecommunications cable. The court denied Schuck’s request for injunction. The court concluded that the violation of the negotiated easement was the result of a good-faith mistake.
The court then found that Rural Telephone, as a Kansas telephone public utility that holds a Certificate of Convenience and Authority, has the power of eminent domain under K.S.A. 17-618 and K.S.A. 17-1903. The court ruled that Rural Telephone buried its cable at a location that was necessaiy due to the highway construction work and that it was in the best interest of the public that the telecommunications cable remain at its present location. The court further found the taking to be necessary in order to provide telephone service, toll service, video service, wireless service, and Internet service to the public of Northwest Kansas. The court ruled that relocation of the cable would cause degradation to the telecommunications system byway of optical fiber loss and reflectance, ultimately causing lower quality of services to the subscribers. The court concluded that Rural Telephone has the power of eminent domain and that the taking of Schuck’s property for public use was necessary for the lawful corporate purposes of Rural Telephone.
Schuck timely appeals the court’s denial of his petition for injunction. This court has jurisdiction pursuant to K.S.A. 2007 Supp. 26-504 (appeals from any final order under provisions of Eminent Domain Procedure Act shall be taken to Supreme Court).
STANDARDS OF REVIEW
An appellate court reviews a district court’s denial of injunctive relief for an abuse of discretion. General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 541, 66 P.3d 873 (2003). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).
The movant has the burden of proof in an injunction action. In order to receive temporary injunctive relief, the movant must show a substantial likelihood of prevailing on the merits; there is a reasonable probability of irreparable future injury to the movant; an action at law will not provide an adequate remedy; the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and the injunction, if issued, will not be adverse to the public interest. Steffes v. City of Lawrence, 284 Kan. 380, 394-95, 160 P.3d 843 (2007).
In the present case the district court found that Schuck failed to meet his burden of proof. We will not disturb a negative finding absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. General Building Contr., 275 Kan. at 541.
ANALYSIS
The State of Kansas has an inherent power of eminent domain which the legislature may delegate to any public authority to exercise as directed. Young Partners v. U.S.D. No. 214, 284 Kan. 397, 404-05, 160 P.3d 830 (2007). The legislature has delegated the power of eminent domain to Rural Telephone as a telephone corporation by virtue of K.S.A. 17-618.
K.S.A. 2007 Supp. 26-504 provides the procedure for an eminent domain action:
“If the judge to whom the proceeding has been assigned finds from the petition: (1) The plaintiff has the power of eminent domain; and (2) the taking is necessary to the lawful corporate purposes of the plaintiff, the judge shall . . . enter an order appointing three disinterested residents of the county ... to view and appraise the value of the lots and parcels of land found to be necessary, and to determine the damages and compensation to the interested parties resulting from the taking.”
The granting of an order determining that the plaintiff has the power of eminent domain and that the taking is necessary to the lawful corporate purposes of the plaintiff is not a final, appealable order. K.S.A. 2007 Supp. 26-504. The condemnee has no right to litigate outside issues in eminent domain proceedings. Miller v. Barbie, 283 Kan. 108, 116-17, 150 P.3d 1282 (2007). The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking may only be litigated in a separate civil action, usually in an action for injunction. 283 Kan. at 117.
Schuck properly filed an independent injunction action challenging the necessity of Rural Telephone’s taking. He initially argues on appeal that the taking approved by the district court is unnecessary. He maintains that the proposed taking is “merely a convenience as opposed to a necessity,” because Rural Telephone admits the negotiated easement would have met its needs. He further contends the trial court erred in finding that he failed to meet his burden of proof that Rural Telephone acted fraudulently, in bad faith, or abused its discretion. Schuck asserts that the district court’s negative finding is a product of arbitrary disregard of undisputed evidence.
In Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 229, 523 P.2d 755 (1974), this court held that a Kansas public utility possessing the power of eminent domain is vested with reasonable discretion to determine the necessity for the taking of land for its lawful corporate purposes. The public utility’s discretion will not be disturbed on judicial review unless fraud, bad faith, or an abuse of discretion is shown. 215 Kan. at 229; see also Steele v. Missouri Pacific R.R. Co., 232 Kan. 855, 861, 659 P.2d 217 (1983) (party seeking injunction has burden of prov ing fraud, bad faith, or abuse of discretion when challenging railroad’s determination that taking of land was necessary).
Schuck contends Rural Telephone’s action of burying the cable outside the easement amounted to constructive fraud. He argues that, as a farmer, he could not reasonably monitor Rural Telephone’s placement of the cable and he had a right to trust Rural Telephone and to rely upon its honesty and integrity to place the cable within the easement it negotiated with him. He further asserts that the fact that Rural Telephone did not lay the cable within the easement and then filed a petition for eminent domain is prima facie evidence of bad faith. Schuck tiren asserts Rural Telephone had no discretion that it could legitimately exercise — the cable was to be buried within the easement — and the fact that Rural Telephone buried the cable outside the easement must constitute an abuse of discretion, whether the cable’s location resulted from a mistake or a decision to ignore the negotiated easement.
Constructive fraud is “ ‘a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty [n]or purpose or intent to deceive is necessary.’ ” Garrett v. Read, 278 Kan. 662, 674, 102 P.3d 436 (2004). Two additional elements must also be proven in order to establish constructive fraud: (1) a confidential relationship, and (2) a betrayal of this confidence or a breach of a duty imposed by the relationship. 278 Kan. at 674. The party must also conceal facts that the party has a legal or equitable duty to communicate, with respect to which the party could not be innocently silent. Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987).
Schuck has offered no evidence that Rural Telephone concealed facts. He acknowledged that the location of the cable was visible to the unaided eye. Ron Ellis testified that Rural Telephone’s engineering department and construction crew buried the cable without knowledge of Schuck’s easement. Ellis further testified that Rural Telephone was not aware of its mistake until Schuck contacted the company in early 2006.
Shuck has likewise failed to show that Rural Telephone acted in bad faith or that its actions amounted to an abuse of discretion. Filing a petition for eminent domain does not demonstrate bad faith; rather, it demonstrates an attempt to resolve the problem through the courts after settlement negotiations failed. Having made what appears to have been a good-faith mistake, Rural Telephone then had to make a choice as to how it would cure that mistake. Rural Telephone’s evidence that the taking was necessary to fulfill its public purpose of providing quality telecommunication service to its customers sufficed to show that it did not abuse its discretion.
The legislature has vested Rural Telephone with the discretion to determine the necessity for the taking of land for its public purposes. Upon receiving notification 3 years after the fact that it did not buiy the cable within the negotiated easement, Rural Telephone determined it was necessary for its lawful corporate purpose of providing telecommunication service to the public to take an easement on Schuck’s property in order to keep its cable in place. Although it may not originally have been necessary for the cable to be placed at its present location, Rural Telephone provided sufficient evidence to support its claim that it is now necessary for the cable to stay in its present location. Schuck has failed to prove that this exercise of discretion amounted to fraud, bad faith, or an abuse of discretion on Rural Telephone’s part.
Schuck has also failed to establish the prerequisites for injunctive relief. See Steffes v. City of Lawrence, 284 Kan. at 394-95. He did not establish a reasonable probability of irreparable injury or a substantial likelihood that he would prevail on the merits. He testified at trial that he no longer knows where he can dig on his land and he has to engage a specialized cable locator before he can dig. He also testified, however, that the location of the cable was visible to the unaided eye. It further appears that Schuck has the staking sheets and can easily ascertain the cable’s location. His argument that he will suffer irreparable harm without the injunction because he and all other landowners will lose their bargaining power with utility companies and be deprived of due process overlooks the fact-specific analysis in eminent domain cases.
Schuck fails to demonstrate the other factors necessary for injunctive relief. His testimony that $40,000 in damages, although not related to any specific economic loss, would have adequately compensated him constituted an admission an adequate remedy was available at law. He has not established that his injury putatively arising from not knowing where he can dig on his land outweighs the damages Rural Telephone will suffer by moving its cable. He likewise has not contradicted Rural Telephone’s evidence that moving the cable will be detrimental to the public.
In light of Ellis’ testimony regarding the degradation to the equipment and service and the disruption of service to 11 communities that would result from moving the cable, we find the district court did not abuse its discretion in finding Rural Telephone’s taking of the easement was necessary to Rural Telephone’s lawful public purpose. Schuck has not shown that the district court arbitrarily disregarded undisputed evidence or that its decision was based on bias, passion, or prejudice.
Our holding here is limited to the facts of this case; we do not condone Rural Telephone’s failure to conform with the easement which it freely negotiated. Under the facts presented here, however, the district court’s determination that Rural Telephone has the power of eminent domain and that the taking was necessary to its lawful corporate purposes is sound.
Schuck also argues Rural Telephone has essentially filed an impermissible inverse condemnation action and that Rural Telephone failed to comply with K.S.A. 2007 Supp. 26-501 through K.S.A. 26-516. An inverse condemnation proceeding is initiated by the party having a property interest and is available when private property has been taken for public use without the initiation of formal condemnation proceedings by the governmental taker. See Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1189, 135 P.3d 1221 (2006), cert. denied 549 U.S. 1265 (2007).
Rural Telephone could not initiate an inverse condemnation action, because it was not the interest-holder in the property. Rural Telephone laid its cable on Schuck’s land outside the negotiated easement. The undisputed evidence presented at trial showed that the location of the cable was not intended as a taking but was a good-faith mistake. See Sester v. Belvue Drainage District, 162 Kan. 1, 6, 173 P.2d 619 (1946) (intentional taking of land in exercise of government power is an element of eminent domain). After Schuck pointed the mistake out to Rural Telephone, it initiated a proceeding to take an easement where it had laid the cable. The taking then became intentional, and Rural Telephone followed proper statutory procedures for exercising eminent domain.
As required by K.S.A. 2007 Supp. 26-501(b), Rural Telephone brought the eminent domain action by filing a verified petition in the district court of the county in which Schuck’s land is located. The petition contains the elements required by K.S.A. 26-502. Schuck has not shown that Rural Telephone did not comply with the notice requirements contained in K.S.A. 26-503. As required by K.S.A. 2007 Supp. 26-504, the district court found that (1) Rural Telephone had the power of eminent domain, and (2) the taking was necessary to the lawful corporate purposes of Rural Telephone. The court therefore appropriately ordered that three disinterested appraisers be appointed to appraise the subject property and determine the damages for the taking. K.S.A. 2007 Supp. 26-504. The district court complied with the requirements of the Eminent Domain Procedure Act.
We hold the district court did not abuse its discretion and did not misstate the law in denying Schuck’s request for injunctive relief.
Affirmed.
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Per Curiam,:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Diane L. Hillbrant, an attorney admitted to the practice of law in Kansas in September 1984. Respondent is also admitted to the practice of law in the state of Illinois. Respondent’s last registration address with the Clerk of the Appellate Courts of Kansas is in Shoreview, Minnesota. Respondent is not licensed to practice law in the state of Minnesota.
The complaint against respondent arises out of her unauthorized practice of law in the state of Minnesota. In April 2004 respondent was charged with six counts of the unauthorized practice of law in violation of Minnesota Statute § 481.02, sub. 1 (2002). A jury convicted respondent of five of the six counts, the State having dismissed the sixth count. On April 15, 2005, respondent was sentenced to 90 days on each count to be served consecutively. Respondent was fined $1,000 per count. Respondent’s sentence was suspended. The district court also ordered respondent to pay restitution to the defendants who were the object of her unauthorized practice of law in the total amount of $19,698.45. Respondent’s convictions and restitution were affirmed on appeal. Based on respondent’s misconduct in Minnesota, the state of Illinois suspended respondent’s license to practice law in that state for 1 month.
The formal complaint here charged respondent with violating Kansas Rules of Professional Conduct (KRPC) 1.1 (2007 Kan. Ct. R. Annot. 384) (competence), KRPC 4.1 (2007 Kan. Ct. R. Annot. 527) (truthfulness in statements to others), KRPC 4.2 (2007 Kan. Ct. R. Annot. 530) (communication with person represented by counsel), KRPC 4.4 (2007 Kan. Ct. R. Annot. 532) (respect for the rights of third persons), KRPC 5.5 (2007 Kan. Ct. R. Annot. 539) (unauthorized practice of law), and KRPC 8.4(c) (2007 Kan. Ct. R. Annot. 559) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Respondent filed an answer to the formal complaint.
The Kansas Board for Discipline of Attorneys held a hearing on May 22, 2007. Respondent appeared in person and through counsel. At the hearing, respondent stipulated to the admission of Disciplinary Administrator’s Exhibits 1 through 30. Respondent further stipulated to the factual allegations contained in the formal complaint and to violations of KRPC 1.1, KRPC 4.1, KRPC 4.2, KRPC 4.4, KRPC 5.5, and KRPC 8.4(c).
HEARING PANEL FINDINGS
The hearing panel found the following facts by clear and convincing evidence:
“1. Diane L. Hillbrant (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 12064. Her last registration address with the Clerk of the Appellate Courts of Kansas is . . . Shoreview, Minnesota 55126-3513. The Respondent was admitted to the practice of law in the state of Kansas on September 28, 1984, and her date of birth is September 7, 1956.
“2. In addition to being licensed to practice law in the State of Kansas, the Respondent is also licensed to practice law in the State of Illinois. The Respondent, however, has not been licensed to practice law in the State of Minnesota.
“3. The Respondent also holds licenses to practice pharmacy in Kansas and Minnesota.
“4. Beginning in April, 2003, the Respondent engaged in the unauthorized practice of law in the State of Minnesota. She provided representation to a number of individuals who purported to have suffered damage by construction companies for allegedly providing defective products and workmanship.
“5. The Respondent engaged in a pattern of unprofessional and abusive contact with officials with the construction companies. The Respondent included false information in her communications. Further, the Respondent repeatedly con tacted represented parties without authorization from their counsel. For example, on May 20, 2003, the Respondent wrote to Stuart A. Miller, Presiding [sic] and Chief Executive Office[r] of the Lennar Corporation. In the letter the Respondent stated:
‘Our tentatively scheduled court date is in Washington D.C. at EPA headquarters on 15 December 2003 at 9:00 AM EST. It will be televised nationally, just like the Deleon Shield case was.
“We are also suing you for reformation and reparation for 2.5 billion dollars for your company as an environmental hazard to the nation and it’s [sic] people. The court case for the reformation hearing is to be scheduled for 15 April 2004 at EPA headquarters in Washington D.C. The reformation will also be televised nationally.
“We are closed to informing you of any more details about the cases than we already have. We want you to be aware that the Deleon Shield Company went out of business and was not able to meet all of its reciprocity charges. Two of the members of the Board of Directors and the CEO are still in prison for “white collar crime” and the rest of the Board of Directors and a third of the management staff are still having their salaries garnisheed by the public government and probably will continue to be under this situation for die rest of their lives.’
The Respondent did not have hearings scheduled with the EPA. The statements that she had hearings scheduled was false.
“6. On June 26, 2003, the Respondent wrote to Paul Woodward, Owner of American Building Contractors, Inc. In the letter, the Respondent stated:
‘Enclosed [sic] the Mold Inspection Report that will win in the class action suit court case on 15 July 2003. The Mold Inspectors are EPA Certified, in business for over 20 years ....
‘My client will receive due process in court unless you replace her roof and pay her damages plus attorney’s fees right now, so my client can sell her home and move to a new place of residence. If you do not do this now, we will see you in court on the 15th of July and the juiy will end up awarding my client much more money than we are asking for ... .
‘You won’t be getting out of this. I will make sure of it, as I am an attorney that works in three states, specializing in mold cases . . . .’
Again, a hearing or trial was not scheduled for July 15, 2003.
“7. Then, on July 17, 2003, Ms. Pieracci and Ms. Bohlig [Hillbrant’s clients] wrote to Mr. Miller. The letter is formatted just as the Respondent’s letters were formatted. This letter contains the following odd language:
1 am disappointed that we will have to go to court to avoid going to jail because of bills and hardship your company has caused. I thought you were a more decent human being than this. The angels said in meditation that they were encouraging you to settle with us to help us after what your company has done to us. And now we will have to go to court. We will get awarded much more money than what is fair and just to your company, which is often done in these cases when you treat people inhumanely.
‘You will be receiving the letter from Dr. Jason Reed on Monday, because he was out of town until then. By then it will be too late because we will already be in court.
We can play dirty too, like you are trying to do. But we won’t. Our morals wouldn’t allow it.
‘I would like to appeal to you as a human being who happened to buy a faulty product from you and was continuously put off by underlings to the point of financially ruining us and making us incredibly ill. But you are not humane are you? Or you would settle with us like the angels said. To [sic] bad you are going to ruin your nice company and be the cause of its downfall. The angels told us this would happen if you did not listen to them in meditation and be a source of light for all people.’
“Restraining Order
“8. Because of the Respondent’s repeated contact with the construction companies, on August 12, 2003, the Lennar Corporation filed a petition for a temporary restraining order against the Respondent. In the petition, the Lennar Corporation made the following allegations:
‘On or about May 13, 2003, Lennar President and Chief Executive Officer Stuart Miller started to receive phone calls and letters from a person who identified herself as Diane Hillbrant, and who purported to be an attorney in Waconia, Minnesota. Hillbrant, in a letter dated July 12, 2003, and addressed to Miller and the Board of Directors of Lennar, stated that she was initiating a class action lawsuit against Lennar and included in the letter a list of 43 homeowners who were purported to be clients of Hillbrant and whom Hillbrant contended were forming a class action suit against Lennar.
‘Hillbrant also stated in the letter that she had scheduled a hearing before the Environmental Protection Agency, to be conducted on December 15, 2003, at 9:00 a.m. Hillbrant stated generally that this claimed class action would be based on vaguely-described alleged problems with the construction of certain Lundgren and Orrin Thompson homes. On further investigation, Lennar found that virtually all of the persons listed as class action plaintiffs, including the mayor of Plymouth, Minnesota, had never heard of Hillbrant and had no such claims.
‘Lennar promptly referred the matter to the Leonard, Street and Deinard law firm (“Leonard, Street”). At that time, Lennar clearly and unambiguously instructed Hillbrant to not contact Lennar executives or employees further, and to direct any further communications to Leonard, Street. By letter on July 18, 2003, Leonard, Street instructed Hillbrant to have no further contact with Lennar executives and to correspond only with the law firm. The letter reminded Hillbrant, who purported to be an attorney, of her ethical obligations under Rule 4.2 of the Minnesota Rules of Professional Conduct, to not contact directly a represented party.
‘Despite this letter and numerous verbal and written instructions to Hillbrant, she continued to contact Lennar senior executives either directly, through unsigned correspondence, or through letters signed by her clients themselves, presumably at Hillbrant’s direction. Since July 13, executives at Lennar have continued to receive a stream of facsimiles and telephone contacts from Hillbrant or people in concert with Hillbrant, all making demands for money and making inflammatory allegations about Lennar, its executives and tire Lundgren homes that are apparently the subject of Hillbrant’s claims. Additionally, Hillbrant has in the past week commenced contacting Lennar board members directly, including board member and former cabinet secretary Donna Shalala, making similar demands for money. Despite repeated efforts to deter these contacts, and despite the ethical obligations of attorneys to not contact represented parties directly, Hillbrant and those in concert with her continue to harass senior executives and board members at Lennar in this fashion. When Lennar’s designated attorneys attempt to speak to Hillbrant on the telephone, she hangs up the telephone.
‘On many occasions Hillbrant has demanded that Lennar pay her $50,000 or $100,000 immediately that day, “by the close of business,” or she threatens to sue Lennar. Other communications indicate that “the angels said in meditation diat they were encouraging you to settle with us.” Her contacts have been abusive, threatening and increasingly hostile.’
Thereafter, on August 12, 2003, the Court granted Lennar’s petition for a temporary restraining order, finding that the Respondent had ‘engaged in repeated incidents of intrusive and unwanted acts and words.’
“9. On August 19, 2003, Lennar filed a petition for an order to show cause. In the Petition, Lennar asserted that the Respondent repeatedly attempted to evade service of the temporary restraining order and that she continued to harass employees, executives, and board members of Lennar.
“10. The Respondent responded to Lennar’s petition for an order to show cause by filing four documents, a ‘Request to Drop Temporary Restraining Order and Comtemp [sic] of Court Motions,’ a ‘Complaint,’ a ‘Requital,’ and an unnamed document.
“11. In the unnamed document, filed on September 16, 2003, the Respondent made unusual claims, including:
‘3) This restraining order is just another act of oppression and stalling that this giant corporation is using against my client to prevent justice from happening. The CEO, Stuart Miller, has stated to me in front of witnesses that, “I have a large corporation and more money than you have and therefore I will bankrupt you in attorneys fees before you can ever take this to court.” He also said, “If you do get it to court you will be dead before you see a dime.”
‘35) I was served with a second set of papers for Contempt of Court by the Lennar Corporation because they falsely claimed that I had violated the first order. I did not violate the first order, and did not contact the Lennar Corporation; yet they served me with this second set of papers, claiming that I had:
a) I did not contact Lennar after the first set of papers and I did not direct anyone to do so. I have witnesses from the Plaintiffs that this is so, that proves my innocence.
b) This is purely a defensive tactic to keep me from contacting the Board of Directors of Lennar Corp. that functions as a legal restraining arm of the CEO and its company and acts on behalf of the public and its shareholders, of which I am one.
c) Therefore, I have every legal right to contact the Board of Directors, that is a public arm of checks and balances to keep the company in line, including the CEO.
‘36) Lennar’s CEO Stuart Miller, panicked when the truth began to be given to their Board of Directors about my clients^] catastrophic financial losses, and the risk to their health, their livelihood and the well being of their families.
‘37) I am involved in the legality of Board’s [sic] of Directors because I have served on them for years. I know the legal responsibilities of Board Members.
a) I know it is illegal to prevent an attorney from trying to contact a Board member or a CEO for a part of [sic] case that is building against them and to press for settlement.
‘38) This whole action is a farce that needs to be removed because it is misusing the justice system for evil intent.
‘43) Further, your Honor, we are charging the Lennar Corporation, and Stuart Miller in particular, the CEO of that corporation, with Infamy of the Judicial System of the United States. They are trying to make a farce out of it to protect their criminal actions.
a) They almost killed an employee of Beverly Pieracci’s who had to work long hours. They also almost killed several other employees including Beverly Pieracci herself.
b) They forced them into mold inhalation through lack of response and criminal negligence.
c) They have forced them to live in a motel, promising to pay the bill, which they have not done.
d) They have forced, Beverly Pieracci, my client, into criminal charges; forcing her to defend herself to avoid jail sentences; and forcing her and her employees to long careers with their physicians due to coughing up blood, internal bleeding, wheezing, pneumonia, bronchitis, mononucleosis, sucking on inhalers and various assorted infamies.’
The Respondent’s statements in this document establish that the Respondent faded to provide ‘competent’ representation.
“12. Although the Respondent was the ‘Respondent’ in the restraining order case, the Respondent filed a Summons and Complaint.
“Suit Filed in Behalf of Beverly Pieracci against Lennar Corporation
“13. On September 9, 2003, the Respondent filed suit in behalf of Beverly Pieracci against Lennar Corporation in the District Court of Hennepin County, Minnesota, case number 03-15428. In the complaint, the Respondent requested $3 million in ‘emergency restitution.’ Also on September 9,2003, the Respondent filed ‘pro hac vice affidavit.’ However, the affidavit was deficient.
“14. The complaint filed by the Respondent was deficient and contains bizarre statements. The complaint provided, in part, as follows:
II
‘From the first date of purchase the Plaintiffs home has been leaking due to faulty construction with improper venting problems. The Defendants have refused to respnd [sic] or act in accordance with the contractual agreement with the Plaintiff, specifically honoring their 10-year warranty for the home. Because of the failure of the Defendant’s [sic] to act and their willful and wantom [sic] negligence, they performed attempted manslaughter by refusing to fix or refund the Plaintiff s new home, causing people to stay in it even when it made them ill.
‘HI
‘These willful and wantom [sic] acts of criminal negligence have culminated in a person almost dying twice in the ambulance and ICU from mold inhalation. . . .
‘IV
‘The Defendants further have robbed the Plaintiff of her financial good credit standing by forcing her to live in a motel and operate her business out of a motel, refusing to fix the dangerous building they built. The Defendant has robbed people of their rights and their lives, not just their money.
‘Wherefore, Plaintiff Beverly Pieracci prays for an Emergency Hearing and a Judgement [sic] and Emergency Restitution of the Court as follows:
T. For an emergency Hearing of the Court within three (3) days allowing for emergency restitution of $3 million, to be granted to the Plaintiff who is bankrupted and threatened with a judgement [sic] of fraud with an impending prison sentence because of breach of contract and crimes of infamy committed by the Defendant against the Plaintiff.’
“15. Two days after filing suit, on September 11, 2003, the Respondent filed a document titled, ‘Inter-Jurisdiction.’ It appears to be a letter from the Respondent to three District Court judges. In the document, she repeated many of the odd statements made in other pleadings. Additionally, she stated for the first time that Ms. Pieracci was seeking $5 billion in damages, in addition to the $3 million in ‘emergency restitution.’
“16. Then, on September 16, 2003, the Respondent filed another document titled, ‘Complaint.’ In this complaint, the Respondent requests that a judge recuse herself. By issuing a Summons to Judge Kaman, the Respondent attempted to make the judge a party to the action and demanded that the judge answer within one day.
“17. Although the Respondent’s request to be admitted pro hac vice had not been ruled on, the Respondent filled out the Certificate of Representation as the lawyer for Ms. Pieracci. The Respondent signed the Summons and Complaint, but had not included an attorney registration number. Furthermore, the documents filed by the Respondent were not countersigned by an attorney licensed to practice law in Minnesota as required by Minnesota General Rule of Practice 5. Finally, in the document titled, ‘Inter-Jurisdiction,’ the Respondent proclaimed that she was ‘[wjorking in the State of Minnesota under Ad [sic] Hac Vice.’
“Criminal Convictions
“18. In April, 2004, the Carver County, Minnesota, District Attorney charged the Respondent with six counts of unauthorized practice of law in violation of Minn. Stat. § 481.02, subd. 1 (2002). In February, 2005, a jury convicted the Respondent of five counts of unauthorized practice of law. The sixth count was dismissed by the state. The Respondent filed a motion for new trial, which the Court denied. In April, 2005, the Court sentenced the Respondent to 90 days in jail on each count, to be served consecutively, and a $1,000 fine on each count. The Court stayed the execution of the sentence for one year. The Court ordered that the Respondent pay restitution in the total amount of $19,698.45. The Respondent’s conviction and the order of restitution were upheld on appeal.”
HEARING PANEL CONCLUSIONS OF LAW
The hearing panel then made the following conclusions of law:
“1. Based upon the Respondent’s stipulations and the above findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 4.1, KRPC 4.2, KRPC 4.4, KRPC 5.5, and KRPC 8.4(c), as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent is a Kansas attorney. She engaged in the practice of law, albeit the unauthorized practice of law. And in so doing, the Respondent failed to competently represent her clients. The pleadings she filed were ineffective and did not advance her client’s cause. In making this conclusion, however, the Hearing Panel by no means is stating that the unauthorized practice of law is appropriate if the representation is competent. The Hearing Panel finds that the lack of Respondent’s competency demonstrates the salutary purpose of requiring authorization to practice law. Accordingly, the Hearing Panel concludes that when the Respondent engaged in the unauthorized practice of law her performance was incompetent and, as a result, the Respondent violated KRPC 1.1.
“3. KRPC 4.1(a) provides that ‘[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.’ The Respondent violated KRPC 4.1(a) when she knowingly, intentionally, and repeatedly included false information in her written correspondence. As such, the Hearing Panel concludes that the Respondent violated KRPC 4.1(a).
“4. In order to communicate with a person known to be represented by counsel in a matter, a lawyer must first obtain the consent of the other lawyer. See KRPC 4.2. In this case, the Respondent repeatedly contacted represented persons without first obtaining the consent of their counsel. The Hearing Panel, therefore, concludes that the Respondent violated KRPC 4.2.
“5. KRPC 4.4 provides:
‘In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.’
When the Respondent repeatedly contacted Mr. Miller, Mr. Fischer, and Mr. Woodward, she had no valid substantial legal purpose, other than to embarrass, delay, or burden third persons. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 4.4.
“6. KRPC 5.5(a) prohibits the unauthorized practice of law. The Respondent represented Ms. Pieracci, Ms. Bohlig, and others in Minnesota. The Minnesota Supreme Court never licensed the Respondent to practice in its state. Further, the Court in Minnesota denied the Respondent’s request to be admitted pro hoc vice. The Hearing Panel, therefore, concludes that the Respondent violated KRPC 5.5(a).
“7. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when she repeatedly included false information in her written correspondence to Mr. Miller, Mr. Fischer, and Mr. Woodward. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated her duty to the legal profession to refrain from the unauthorized practice of law and her duty to the public to maintain her personal integrity.
“Mental State. The Respondent knowingly and intentionally violated her duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to the construction companies and to the reputation of the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent was suspended for a period of one month by the Supreme Court of Illinois for the misconduct in this case. So, while it is technically not a prior disciplinary offense, it is important to note that action was taken on her license to practice law in the State of Illinois.
“Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty. The Respondent repeatedly made false statements in written correspondence.
“A Pattern of Misconduct. The Respondent repeatedly engaged in the same misconduct. Thus, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 4.1, KRPC 4.2, KRPC 4.4, KRPC 5.5, and KRPC 8.4(c). As such, the Respondent committed multiple offenses.
“Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct when she practiced law in the State of Minnesota without a license. As a result of her actions, the Respondent was convicted of five misdemeanor charges of engaging in the unauthorized practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined for any other misconduct.
“The Present Attitude of the Respondent as Shown by her Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully acknowledged her misconduct at the hearing on this matter.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1984. However, the Respondent has never engaged in the practice of law [in Kansas]. Other than the misconduct at hand, the Respondent has not practiced law.
“Imposition of Other Penalties or Sanctions. The Respondent was convicted of five misdemeanor charges of engaging in the unauthorized practice of law. The [Minnesota] Court sentenced the Respondent to a term of incarceration and a fine. However, the Court suspended the imposition of the sentence. The Court ordered that the Respondent pay nearly $20,000 in restitution. As of the time of the hearing, the Respondent indicated that she had paid approximately $14,000 toward the restitution.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client. Standard 4.52.’
‘Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. Standard 6.12.’
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. Standard 6.22.’
‘Suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding. Standard 6.32.’ ”
HEARING PANEL RECOMMENDATION
The panel recommended the following discipline:
“The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended. The Respondent joined in the Disciplinary Administrator’s recommendation for indefinite suspension. The Respondent joined in the recommendation, in the hopes of avoiding disbarment. The Respondent feared that if she was disbarred it might affect her pharmacy license.
“As mentioned above, the Illinois Supreme Court suspended the Respondent’s license for one month. Given the nature of the Respondent’s misconduct, and particularly the fact that the Respondent engaged in dishonest conduct, it appears that a much more significant sanction than that in Illinois should be imposed. Based upon the findings of fact, conclusions of law, the Standards listed above, and the joint recommendation of the parties, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the state of Kansas.”
DISCUSSION
In a disciplinary proceeding, we consider the evidence, the findings of the disciplinary panel, and the arguments of the parties to determine whether the respondent violated the KRPC and what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2007 Kan. Ct. R. An-not. 304) (misconduct to be established by clear and convincing evidence).
The respondent does not contest the hearing panel’s findings, conclusions, or recommendation. This court has considered the final hearing report of the panel, the record on appeal, and the respondent’s remorseful statements at oral argument before the court and adopts the findings of fact, conclusions of law, and the recommendations of the panel. The findings and conclusions established by clear and convincing evidence that the respondent violated KRPC 1.1, KRPC 4.1, KRPC 4.2, KRPC 4.4, KRPC 5.5, and KRPC 8.4(c).
It Is Therefore Ordered that the respondent, Diane L. Hillbrant, be and she is hereby disciplined by indefinite suspension from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261) for violations of KRPC 1.1, KRPC 4.1, KRPC 4.2, KRPC 4.4, KRPC 5.5, and KRPC 8.4(c).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to the respondent.
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Per Curiam:
This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against Steven A. Jensen. Jensen was admitted to practice law in Kansas on October 5, 1988.
The office of the Disciplinary Administrator filed a formal complaint against Jensen based upon two complaints which it had received. The complainant in Case No. DA9818 was Sheila Schultz, an attorney who had been opposing counsel in a contested post-divorce child custody action. The formal complaint alleged violations of Kansas Rules of Professional Conduct (KRPC) 3.4(c) (2007 Kan. Ct. R. Annot. 514) (fairness to opposing party and counsel); 8.3(a) and (b) (2007 Kan. Ct. R. Annot. 558) (reporting professional misconduct); and 8.4(a), (c), and (d) (2007 Kan. Ct. R. Annot. 559) (misconduct).
The complaint which was docketed as Case No. DA10,098 was filed by Jennifer Duncan who was the opposing party in the child custody case. Duncan reported that Jensen had led her husband’s work supervisor to believe that Jensen was the Duncans’ attorney. As a result, Jensen obtained private information about Mr. Duncan’s job and income. Jensen also reportedly told the supervisor tlrat, despite having been subpoenaed by Jennifer Duncan’s attorney, the supervisor did not have to appear in court unless Jensen contacted him again. The formal complaint alleged violations of KRPC 3.4(a) and (c); 4.1(a) (2007 Kan. Ct. R. Annot. 527) (truth fulness in statements to others); 4.3 (2007 Kan. Ct. R. Annot. 532) (deahngwith unrepresented persons); 4.4 (2007 Kan. Ct. R. Annot. 532) (respect for rights of third persons); 8.3(a) and (b); and 8.4(a), (c), and (d).
Jensen answered, denying any and all alleged violations of the KRPC. A hearing was held on September 18, 2007.
On DA9818, the Schultz complaint, the hearing panel found no disciplinary violations, dismissing the alleged violations of KRPC 3.4(c) and 8.4(a), (c), and (d) and concluding that clear and convincing evidence had not established that Jensen had violated KRPC 8.3(a) and (b).
With respect to DA10,098, the Duncan complaint, the hearing panel concluded that Jensen had not violated KRPC 3.4(c), 4.4, or 8.3(a) and (b). However, a majority of the hearing panel found that Jensen violated KRPC 3.4(a), 4.1(a), 4.3, and 8.4(a), (c), and (d).
The factual dispute before this court involves a telephone conversation between Jensen and Mr. Duncan’s supervisor, Alden Jenkins. Both Jensen and the supervisor testified before the hearing panel and presented differing versions of the precise conversation. However, we do know that Jensen did not identify himself as the attorney representing the party opposing the Duncans in the child custody dispute; that Jenkins believed that he was talking to the Duncans’ attorney; and that both Jensen and Jenkins knew that the Duncans’ attorney had subpoenaed Jenkins to testify at the child custody hearing.
After the evidentiary hearing, a majority of the hearing panel made the following findings of fact and conclusions of law:
“FINDINGS OF FACT”
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Steven A. Jensen (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 13713. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Paola, Kansas 66071 .... The Respondent was admitted to the practice of law in the State of Kansas on October 5, 1988.
“2. During their marriage, Steve Anderson and Jennifer Duncan had three children. In 2002, Mr. Anderson and Mrs. Duncan divorced. The divorce action was filed in the District Court of Linn County, Kansas, and captioned In the Matter of the Marriage of Anderson, case number 02DM28.
“3. Following the divorce, Mrs. Duncan married Rich Duncan. Mr. Duncan is employed by BNSF Railway. In late 2005 or early 2006, BNSF Railway offered Mr. Duncan a promotion. Acceptance of the promotion would require that the Duncans move to Lincoln, Nebraska.
“4. After Mr. Duncan accepted the promotion, Mr. Anderson retained the Respondent to file a motion to change residential custody. Mrs. Duncan retained Sheila Schultz to represent her in regard to the motion filed. The Honorable Richard M. Smith presided over the case.
“5. Prior to the hearing on the motion, Ms. Schultz issued a subpoena to Alden Jenkins, Mr. Duncan’s supervisor at BNSF Railway. Additionally, Mr. or Mrs. Duncan informed Mr. Jenkins that their attorney would be calling him prior to the hearing. They did not inform him of the name or gender of their attorney.
“6. After the subpoena was delivered to Mr. Jenkins at a satellite office and before Mr. Jenkins [had] opened it, on January 9, 2006, the Respondent placed a telephone call to Mr. Jenkins and left a recorded telephone message in Mr. Jenkins’ phone mail. In the message, the Respondent identified himself as an attorney in the case involving Rich and Jennifer Duncan, but did not identify his client. The Respondent also stated in the message that he would like to speak with Mr. Duncan [sic] and ask him some questions regarding a transfer in the railroad industry because there were several things that he was certain he did not understand.
“7. On January 18, 2006, Mr. Jenkins returned the Respondent’s call, and throughout the conversation, Mr. Jenkins believed that the Respondent represented Rich and Jennifer Duncan. Again, the Respondent failed to identify himself as the attorney for Mr. Anderson. The Respondent testified that he did not identify himself as counsel for Mr. Anderson because he is male and Ms. Shultz is female. He elaborated that Mr. Jenkins had already received the subpoena, which indicated that Ms. Shultz is the attorney for the Duncans. During the conversation, which lasted nine minutes, the Respondent asked whether Mr. Jenkins received the subpoena. Mr. Jenkins confirmed that he had and the Respondent said, ‘good.’ The Respondent went on to chat about the railroad industry and ask questions about Mr. Duncan’s employment succession plan for BNSF Railway. Because the Respondent seemed to know detailed information regarding Mr. Duncan, including information regarding his job, his promotion, and the fact that Mr. Jenkins was his supervisor and because the Respondent referred to Mr. Duncan, as ‘Rich,’ Mr. Jenkins believed that the Respondent obtained his information directly from Rich. Because he believed that the Respondent was representing Mr. and Mrs. Duncan, Mr. Jenkins opened up with additional information regarding Mr. Duncan’s current earnings and his potential for future earnings as he progressed to different management levels within the company. According to the Respondent, Mr. Jenkins made arguments trying to convince the Respondent that the move would be a good thing for the family.
“8. At the end of the conversation, the Respondent told Mr. Jenkins that he would contact him later and let him know if Mr. Jenkins’ testimony would be required. Despite the subpoena issued and served by Ms. Schultz on Mr. Jenkins, the Respondent told Mr. Jenkins that he did not need to appear at the scheduled hearing unless he heard from the Respondent.
“9. At the conclusion of the hearing, Judge Smith lectured the parties to be good parents. During his lecture, Judge Smith directed the parties to submit to a written parenting test by answering two questions, unassisted by the attorneys. The two questions were: In the event the Court rules that the children are allowed to move to Nebraska with Mrs. Duncan, what will you tell the children and how will you tell them? And, in the event the Court rules that the children are not allowed to move to Nebraska with Mrs. Duncan, what will you tell the children and how will you tell them? Judge Smith directed the attorneys to refrain from assisting their clients.
“10. During Judge Smith’s lecture, the Respondent wrote down the questions at the top of the paper and, additionally, the Respondent made other notes in the lower left hand side of the paper. Specifically, die Respondent wrote, ‘it’s about the kids’ and made marks around the words. The Respondent also wrote the word, ‘together’ and underlined it twice. Finally, the Respondent wrote the word, ‘Expand’ and underlined it. The Respondent is left-handed, and at the time the Respondent made the notes on the left hand side of the paper, Mr. Anderson was sitting on the Respondent’s left.
“11. Ms. Schultz testified that she noticed that the Respondent was making notes, that the Respondent pushed the piece of paper toward his client, and that the Respondent repeatedly tapped his piece of paper to draw his client’s attention to the notes he made. As a result, Ms. Schultz got up from her seat and walked behind the Respondent. The Respondent positioned his body in an attempt to hide his notes from Ms. Schultz.
“12. The Respondent testified that he did show his client his notes of the questions the judge asked, because the client told him he had missed the last part of the second question. The Respondent testified that he later jotted the notes at the bottom of the paper and never showed them to his client. Mr. Anderson corroborated this in his testimony. The Respondent testified that he did not re peatedly tap his paper, that he did not hide his notes from Ms. Shultz, but rather that he was pulling up his sock or tying his shoe while she stood behind him.
“13. The courtroom contains two video cameras, positioned in different locations in the courtroom. The hearing was video taped. The Hearing Panel reviewed the recording of the proceedings three times. The recording includes recordings from both cameras with different views. The recording is not a high quality recording.
“14. Based upon the viewing of the video tape recording, the Hearing Panel was unable to confirm key facts from Mrs. Schultz and from the Respondent. It was not clear from the record that the Respondent repeatedly tapped his piece of paper. Additionally, it was not clear from the recording when, specifically, the Respondent made the three notes in question. Finally, it was not clear from the recording what was written on the Respondent’s paper at the time he showed it to his client.
“15. From a careful review of the recording, however, it is clear from the recording that the Respondent was not pulling up his sock or tying his shoe.
“16. Following his instructions to Mr. Anderson and Mrs. Duncan, Judge Smith left the courtroom. Ms. Schultz confronted the Respondent about whether he violated the Court’s order to refrain from assisting his client with answering the questions. Ms. Schultz asked tire bailiff to inform the Court that she believed that the Respondent had violated the Court’s order. Judge Smith returned to the courtroom, questioned the Respondent regarding his behavior, and chastised him for violating the Court’s order. Judge Smith concluded that the Respondent’s response that he had not improperly attempted to assist his client with the two questions was less than truthful. In Judge Smith’s opinion, the Respondent is in the upper end of the category of aggressive attorneys whom the judge deals with in the local bar.
“17. On February 3, 2006, Ms. Schultz filed a complaint with the Disciplinary Administrator’s office regarding the Respondent. Thereafter, on February 23, 2006, the Respondent filed his written response to the complaint. In his response, the Respondent lodged harsh allegations against Ms. Schultz. Specifically, the Respondent alleged that Ms. Schultz violated the judicial canons in her service as the Paola, Kansas, municipal court judge.
“18. The Disciplinary Administrator wrote to the Respondent and informed him of his obligation to report Ms. Schultz to the Commission of Judicial Qualifications. The Respondent did not file a complaint against Ms. Schultz with the Commission of Judicial Qualifications.
“19. On June 9, 2006, Mrs. Duncan filed a complaint against the Respondent regarding the Respondent’s contact with Mr. Jenkins. Thereafter, the Respondent filed a response to the complaint. The Respondent’s vitriolic response can be found at Disciplinary Administrator’s Exhibit 9.
“CONCLUSIONS OF LAW
“1. In the Formal Complaint, the Disciplinary Administrator included allegations that [Respondent] violated the Kansas Rules of Professional Conduct based upon Ms. Schultz’ complaint as well as Mrs. Duncan’s complaint.
“2. With regard to Ms. Schultz’ complaint, the Disciplinary Administrator alleged that the Respondent violated KRPC 3.4(c), KRPC 8.4(a), KRPC 8.4(c), and KRPC 8.4(d), by attempting to assist Mr. Anderson in answering the two written questions. A majority of the Hearing Panel concludes that it is more likely than not that the Respondent violated those rules. However, because the burden of proof is clear and convincing evidence, the Hearing Panel, accordingly, dismisses the allegations that the Respondent violated KRPC 3.4(c), KRPC 8.4(a), KRPC 8.4(c), and KRPC 8.4(d) with regard to Ms. Schultz’ complaint.
“3. Additionally, with regard to Ms. Schultz’ complaint, the Disciplinary Administrator alleged that the Respondent violated KRPC 8.3(a) for failing to self-report his own misconduct and KRPC 8.4(b) for fading to report what he believed to be misconduct by Ms. Schultz in her capacity as a municipal court judge. The Hearing Panel unanimously concludes that the Respondent did not violate KRPC 8.3(a) for failing to report himself. KRPC 8.3(a) requires that an attorney report misconduct when he has ‘knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney.’ In this case, the Respondent believed, and continues to believe, that he did not engage in misconduct. As a result, no obligation to report flows from KRPC 8.3(a).
“4. KRPC 8.3(b) requires that an attorney report the misconduct of a judge when the attorney has ‘knowledge that a judge has committed a violation . . . that raises a substantial question to the judge’s fitness.’In this case, the Respondent made serious allegations against Ms. Schultz both personally and in her capacity as a municipal court judge. However, the allegations made regarding Ms. Schultz were general in nature. The Respondent provided no specific evidence that would lead one to conclude that Ms. Schultz violated the judicial canons. Thus, when reviewing the Respondent’s letter as a whole, a majority of the Hearing Panel concludes that the Respondent was merely lashing out against Ms. Schultz because she filed a complaint against him. The Respondent’s letter was unprofessional and ill advised, however, it does not create an obligation for the Respondent to file a complaint against Ms. Schultz pursuant to KRPC 8.3(b).
“5. With regard to Mrs. Duncan’s complaint, the Disciplinary Administrator alleged that the Respondent violated KRPC 3.4(a) [and (c)], KRPC 4.1(a), KRPC 4.3, KRPC 4.4, [KRPC 8.3(a) and (b),] KRPC 8.4(a), KRPC 8.4(c), and KRPC 8.4(d). A majority of the Hearing Panel concludes that clear and convincing evidence was presented that establishes that the Respondent violated KRPC 3.4(a), KRPC 4.1(a), KRPC 4.3, KRPC 8.4(a), KRPC 8.4(c), and KRPC 8.4(d). The Hearing Panel unanimously concludes that the Respondent did not violate KRPC 4.4.
“6. KRPC 4.4 provides:
‘In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.’
The Respondent’s conduct with regard to Mr. Jenkins does not amount to a method of obtaining evidence that violated Mr. Jenkins’ legal rights. Accordingly, the allegation that the Respondent violated KRPC 4.4 is dismissed.
“7. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4. Specifically,
‘A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;’ KRPC 3.4(a).
KRPC 8.4(a) provides that it is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct. In this case, the Respondent violated KRPC 3.4(a) and KRPC 8.4(a), when he attempted to obstruct Ms. Schultz’ access to Mr. Jenkins. The Respondent told Mr. Jenkins that he did not need to appear in Court unless the Respondent contacted him for a second time. At die time the Respondent made this statement, Mr. Jenkins was under subpoena to appear in Court, pursuant to a subpoena issued by Ms. Schultz. As a result, a majority of the Hearing Panel concludes that the Respondent violated KRPC 3.4(a) and KRPC 8.4(a).
“8. KRPC 4.1(a) provides that ‘[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.’ The Respondent violated KRPC 4.1(a) when he knowingly instructed Mr. Jenkins that he need not appear at the motion hearing unless the Respondent contacted him again. As such, the Hearing Panel concludes that the Respondent violated KRPC 4.1(a).
“9. Lawyers must take special care in dealing with persons who are not represented by counsel. KRPC 4.3 provides the requirement [in] this regard:
‘In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.’
The Respondent either knew or reasonably should have known that Mr. Jenkins misunderstood the Respondent’s role in the post-divorce child custody matter. The Respondent introduced himself to Mr. Jenkins as an attorney in the case involving Rich and Jennifer Duncan. The Respondent never explained that he was the attorney for Mr. Anderson. He testified that his reason for not doing so was that Mr. Jenkins had received the subpoena issued by Ms. Shultz and Mr. Jenkins knew that the Respondent was not Ms. Shultz or representing anyone in Ms. Shultz’ office. Nevertheless, Mr. Jenkins formed the belief that the Respondent represented Rich and Jennifer Duncan and a majority of the Hearing Panel finds this belief reasonable. The Respondent had referred to himself as an attorney in the case involving Rich and Jennifer Duncan, not the case involving Mr. Anderson; asked if Mr. Jenkins had received the subpoena, which Mr. Jenkins knew was being sent by the attorney for Rich and Jennifer Duncan; called Mr. Duncan by his first name; and knew detailed information regarding Mr. Duncan. The Respondent knew or should have known of Mr. Jenkins’ misunderstanding, particularly after Mr. Jenkins presented information which the Respondent did not request and made arguments about the benefits to the children from the move. After the misunderstanding occurred, the Respondent did nothing to correct the misunderstanding. Thus, because the Respondent should have known of Mr. Jenkins’ misunderstanding and because the Respondent did not correct the misunderstanding, the Hearing Panel concludes that the Respondent violated KRPC 4.3.
‘TO. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent misrepresented the truth when he instructed Mr. Jenkins that he need not appear in court unless he heard from the Respondent. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“11. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he instructed Mr. Jenkins that he need not appear in court unless he heard from the Respondent. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).”
One of the panel members filed a separate, dissenting opinion, which stated;
“DISSENTING OPINION
“1.1 disagree with the two hearing panel members who determined there was clear and convincing evidence of all but one of the alleged violations in Count Two against Respondent.
“2. A self regulated profession such as the legal profession must seriously consider complaints of improper conduct against its members and impose appropriate sanctions when misconduct is proved by the evidence. At the same time, lawyers’ livelihoods generally depend upon their licenses to practice law and their professional reputations. Loss of either must not be imposed without clear standards of misconduct and proper evidence of violation of those standards. The Kansas Supreme Court in Rule 211(f) requires that the evidence of wrongdoing in attorney disciplinary matters be clear and convincing, more than a mere preponderance of the evidence.
“3. The Official Comment to the Pattern Instructions for Kansas 3d Civil, 102.11 states that clear and convincing evidence ‘should be “clear” in the sense that it is certain, plain to understand, unambiguous, and “convincing” in the sense that it is so reasonable and persuasive as to cause you to believe it.’ In In re Shirk’s Estate, 194 Kan. 424, 430, 399 P.2d 850, 856 (1965), the Supreme Court cited with approval a Fifth Circuit Court of Appeals definition of clear and convincing evidence: ‘[t]he witnesses to a fact must be found to be credible and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order and that the testimony be clear, direct and weighty and convincing, so as to enable you to come to a clear conviction without hesitancy of the truth of the precise facts in issue.’ The evidence is this case did not reach that standard of proof.
“4. The complaint in Count Two was filed by an adversarial party in a contested child custody matter, involving her primary witness, Alden Jenkins. The only evidence of the content of the telephone conversation between Mr. Jenkins and the Respondent was from the two of them. The Disciplinary Administrator’s Office has repeatedly made public statements that the frequent animosity in domestic relations cases leads to a disproportionate number of complaints being filed against lawyers in such cases either by unhappy clients or unhappy adverse parties, and that these complaints must be viewed with the understanding that the underlying animosity may taint the recollections of witnesses.
“5. It was alleged that Respondent violated Rule 4.3, which has two parts. First, it requires that in dealing with a person not represented by counsel, ‘a lawyer shall not state or imply that the lawyer is disinterested.’ There was no evidence presented that Respondent violated this prohibition. Mr. Jenkins testified that Respondent left a voice mail message, giving his name and stating that he was [the/ an] attorney in the case of Rich and Jennifer Duncan. The exact article used was not clear from the evidence, but it was clear that Respondent stated his interest in the case and left his name and number, asking for a return call. Although the best practice for a lawyer speaking to an unrepresented third party is to begin the conversation by clearly stating whom the lawyer represents, that is not required by Rule 4.3. Respondent did what is required by Rule 4.3, and thus did not violate the first part of the Rule.
“6. The second part of Rule 4.3 provides that ‘[w]hen a lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.’ At the hearing, no evidence was presented to attempt to prove that the Respondent knew or reasonably should have known that Mr. Jenkins misunderstood whom he represented.
“7. The evidence was uncontroverted that when Mr. Jenkins returned the Respondent’s telephone call, Mr. Jenkins believed he was calling the attorney for Jennifer Duncan. He testified that he ‘inferred’ he was speaking with her attorney. Respondent does not claim that he clearly stated to Mr. Jenkins that he represented Steve Anderson, although he believed that Mr. Jenkins knew he represented Mr. Anderson, for three reasons.
“8. Sheila Schultz, the attorney for Ms. Duncan, had served Mr. Jenkins with a subpoena nine days before the telephone conversation between Mr. Jenkins and the Respondent. The subpoena was a one page document, with three lines at the top commanding Mr. Jenkins to appear as a witness on behalf of Ms. Duncan. Prominently on the page was the name of Ms. Schultz as the attorney issuing the subpoena. Mr. Jenkins testified that early in the conversation Respondent asked him if he had received the subpoena and that he said he had. From that answer, a reasonable person would have thought that Mr. Jenkins knew that Ms. Duncan was represented by Ms. Schultz.
“9. Respondent testified that at one point in the conversation he told Mr. Jenkins that Mr. Anderson had given him information about Mr. Duncan’s job transfer. Respondent was speaking on the assumption that Mr. Jenkins understood his role and appeared to have no indication that he did not.
‘TO. In another part of the conversation, when Mr. Jenkins stated that Ms. Duncan’s current husband would be making $150,000 a year and thus the children would not want for anything, Respondent replied that the children might want for their father, thus indicating his advocacy for Mr. Anderson and his belief that Mr. Jenkins understood that he represented Mr. Anderson.
“11. Most importantly, there was no evidence that Mr. Jenkins said anything in the conversation that should have alerted the Respondent to his misunderstanding. Although there was a misunderstanding on the part of Mr. Jenkins, the evidence was that Respondent did not and should not have had reason to know such a misunderstanding had occurred. Thus, I conclude that although it was unfortunate that Mr. Jenkins misunderstood that Respondent represented Mr. Anderson, there was no evidence of violation of Rule 4.3.
“12. Count Two also alleged violations of Rules 3.4(a) and 4.1, based upon Mr. Jenkins’ testimony that Respondent told him he would let him know if his testimony would be required and that he did not need to appear unless he heard from Respondent. If Respondent made such a statement, it would be attempting unlawfully to obstruct another person’s access to evidence and making a false statement of law to a third person. Respondent adamantly denied making such a statement. Thus the issue was whether the evidence that the statement was made was clear and convincing. I believe it was not.
“13. First, Mr. Jenkins was not familiar with the legal process and testified that he might have misconstrued what the Respondent said. Because he apparently believed that Respondent had issued the subpoena to him, he was more likely to have misunderstood what was said about it. Mr. Jenkins’ testimony on this issue was not clear and convincing, i.e., it was not ‘distinctly remembered,’ ‘enabling one to come to a clear conviction without hesitancy of the truth of the precise facts in issue.’
“14. Second, the Respondent’s testimony that he did not make such a statement is highly credible. He is a lawyer with a clear duty to be honest in his statements to others. He is familiar with the legal process and knew such a statement would be absolutely incorrect and unethical. If he were to have caused Mr. Jenkins not to appear, he would have expected Ms. Schultz to have taken prompt action for sanctions. Respondent also testified that he wanted Mr. Jenkins to appear as a witness because he thought some of his testimony would be helpful to his client. Respondent has no previous disciplinary violations and evidence was submitted from 14 attorneys who have practiced against him for many years and five other persons who have worked with Respondent professionally that he is honest and practices law with integrity. It would have been out of character, highly risky, and self defeating for him to make such a statement.
“15. Respondent suggested in his letter responding to this complaint that if anything, he might have made a statement that he would not be issuing a subpoena. That is a more likely explanation of what was said and misunderstood by the witness. There was not clear and convincing evidence that Respondent made the statement alleged. His professional reputation and his license to practice should not be jeopardized on the basis of a likely misunderstanding by a witness for an adverse parly.
“16. If it is concluded that Respondent did not tell Mr. Jenkins not to appear on the subpoena that had been served, then all of the alleged violations in Count Two fail.”
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of Kansas Rules of Professional Conduct exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011 (2007); In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); see also Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence).
“This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003).
As the dissent noted, the clear and convincing burden of proof plays a critical role in analyzing the evidence in this case. At the time, the hearing panel did not have the benefit of our recent discussion of the clear and convincing evidence standard in In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008). There, we clarified that “clear and convincing evidence” is an intermediate standard of proof which lies between the preponderance of the evidence burden of proof and that burden which requires proof beyond a reasonable doubt. 286 Kan. 686, Syl. ¶ 2. The touchstone of the clear and convincing standard is that the evidence must establish that the truth of the facts asserted is “highly probable.” 286 Kan. 686, Syl. ¶ 3.
Respondent’s statement about court appearance
Applying that standard, we first turn to the finding that Jensen violated various rules by telling Jenkins that his testimony might not be required and that Jensen would contact Jenkins if he needed to appear in court. Jensen denies having said that and, as the dissent pointed out, offered the possible explanation that he may have told Jenkins that Jensen would not be issuing a subpoena.
Obviously, a determination of what Jensen said to Jenkins involves assessing credibility which is best done by observing the witnesses. The majority of the panel found Jenkins’ testimony to be credible. The dissent found that the evidence was not clear and convincing for two reasons.
First, the dissent believes that because Jenkins was not familiar with the legal process and mistakenly believed he was talking to the attorney who issued the subpoena, Jenkins “was more likely to have misunderstood what was said about it.” The dissent opined that Jenkins’ testimony was not clear and convincing, in part because it was not “distinctly remembered.” The record does not support that conclusion.
Jenkins’ testimony at the disciplinary hearing was not equivocal. We are not persuaded that his response of “It’s possible” to the question of whether he might have misconstrued Jensen’s statement manifests a lapse in memory. The response came during a contentious portion of the hearing during which Jensen’s attorney was re-cross-examining Jenkins. In a March 8, 2006, letter to the district judge who presided at the custody hearing, Jenkins detailed the January 18, 2006, conversation that he had with Jensen, specifically stating that “[i]n closing the conversation, Mr. Jensen told me that he would contact me later and let me know if my testimony would be required and that I did not need to appear unless I heard from him.” Jenkins’ disciplinary hearing testimony was consistent with the statement he wrote less than 2 months after the conversation.
Further, it is difficult to connect how Jenkins’ legal naivete or misidentification of the caller would make it more likely that he would misunderstand what he was being told about physically appearing in court. One would not need a law degree to understand an attorney’s statement that it might be unnecessary to go to court and testify. Further, Jenkins’ belief that the caller was the attorney who caused the subpoena to issue would simply mean that there would be no need for Jenkins to question the caller’s authority to rescind the subpoena’s directive.
Second, the dissent found Jensen’s testimony to be highly credible because “[i]t would have been out of character, highly risky, and self defeating for him to make such a statement.” The basis for that finding is the dissenter’s belief that Jensen, as a lawyer, would have known better than to make such a statement; that Jensen would have known he would get caught if Jenkins failed to appear at the hearing; and that Jensen had no motive to make the statement because he wanted Jenkins to testify at the hearing. We do not find that the dissent’s theories counteract the evidence in the record.
If one looks at motive, an important consideration is that Jenkins was a disinterested, non-party witness without any personal stake in the litigation, i.e., he had no apparent motive to fabricate the statement about his appearance in court. Moreover, one would expect a person in Jenkins’ circumstance to be attuned to any statements that an attorney might relate concerning whether the subpoenaed witness had to expend his time and effort to appear and testify at a court hearing in which he was not personally involved.
On the other hand, Jensen’s protestations that he had no motive to make the statement because he wanted Jenkins to testify are less convincing in light of the trial judge’s disciplinary hearing tes timony. The judge opined that Jenkins’ testimony was very helpful to Mrs. Duncan and harmful to Anderson’s theory of the case.
In conclusion, we find that the evidence in this case was sufficient to establish that it was highly probable that Jensen made the statement to Jenkins about appearing in court on the subpoena. Further, that evidence supports the panel’s findings of KRPC violations.
Witness misunderstanding
In contrast, we are persuaded by the dissent’s analysis of the alleged violation of KRPC 4.3. The first part of that rule prohibits an attorney, who is dealing with an unrepresented person on behalf of the attorney’s client, from stating or implying that the attorney is disinterested. Jenkins testified that Jensen did not state who he was representing. While Jensen may have been too clever by half in his interview techniques, we cannot say from the record that it is highly probable that Jensen intentionally implied that he was disinterested.
What is crystal clear from the evidence is that Jenkins misunderstood the role that Jensen was performing in the custody dispute. However, the interviewee’s misunderstanding is not controlling. The second part of KRPC 4.3 directs that an attorney who “knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter” is to “make reasonable efforts to correct the misunderstanding.” 2007 Kan. Ct. R. Annot. 532. The question, then, is whether Jensen should have known that Jenkins misunderstood Jensen’s role.
In his letter to the trial judge, Jenkins acknowledged that he would have freely assisted Anderson’s attorney with understanding everything concerning succession planning and transfers in the railroad industry. However, he said he felt humiliated and angry that he had been so forthcoming with other information, such as Mr. Duncan’s salary, which he would not have shared if he had known with whom he was speaking. In other words, the contention is that Jensen should have known about the misunderstanding because of the scope of the information that Jenkins provided. However, we are unconvinced that the misunderstanding was readily apparent from the content of Jenkins’ side of the conversation.
Moreover, there were other portions of the conversation which might well have provided Jenkins with a clue as to Jensen’s role. When Jenkins said the children would want for nothing while residing with the Duncans because of Mr. Duncan’s salary, Jensen responded that they would want for their father, at least suggesting an advocacy of the father’s position. Given our clear and convincing standard, we cannot find that the evidence established that it was highly probable that Jensen should have known of Jenkins’ confusion. Accordingly, we find that Jensen did not violate KRPC 4.3.
SANCTION
The majority of the hearing panel recommended published censure and costs to be assessed against Jensen. Their recommendation is based on tire following analysis:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal system to treat individuals fairly.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused potential harm to the administration of justice.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factor present:
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1988. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period exceeding 17 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Paola, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding.’ Standard 6.32.
‘Reprimand is generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference or potential interference with the outcome of the legal proceeding.’ Standard 6.33.”
We adopt the hearing panel’s findings of fact and conclusions of law, except as to KRPC 4.3, that respondent violated KRPC 3.4(a), 4.1(a), and 8.4(a), (c), and (d). The court accepts the recommendation of a majority of the hearing panel to impose the sanction of published censure.
It Is Therefore Ordered that respondent, Steven A. Jensen, be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2007 Kan. Ct. R. Ann. 261) for violations of KRPC 3.4(a), 4.1(a), and 8.4(a), (c), and (d).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed against the respondent.
Ms. Schultz serves as the Municipal Judge for Paola, Kansas. Previously, the Respondent served in that capacity.
The Respondent testified regarding his telephone conversation with Mr. Jenkins. The Respondent testified that he ‘would not’ have said that to Mr. Jenkins. A majority of the Hearing Panel finds that the Respondent’s testimony lacks credibility in this regard. Mr. Jenkins’ testimony and his letter of March 8,2006, found at Disciplinary Administrator’s Exhibit 8, pp. 71-72, provide a clear picture of the telephone conversation. Mr. Jenkins’ testimony was clear and convincing to a majority of the Hearing Panel.
While it is not material whether the Respondent was pulling up his sock or tying his shoe, it bothered a majority of the Hearing Panel that the Respondent would testify to that when it clearly did not occur. Shielding notes from opposing counsel is not problematic. Testifying in a manner inconsistent with the truth, however, is a problem.
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Per Curiam:
This is an original proceeding in discipline against the respondent, Rebecca L. Pilshaw, District Judge of Sedgwick County, Kansas. In a notice of formal proceedings before the Kansas Commission on Judicial Qualifications, the respondent was charged with violating the provisions of Canon 1 (2007 Kan. Ct. R. Annot. 621), Canon 2A (2007 Kan. Ct. R. Annot. 621), and Canon 3B(3) and (4) (2007 Kan. Ct. R. Annot. 624) of the Rules Relating to Judicial Conduct, as set forth in Rule 601A (2007 Kan. Ct. R. Annot. 617).
On January 31, 2008, a public hearing was held in Topeka, Kansas, before Panel A of the Commission on Judicial Qualifications, at which hearing Panel A heard evidence and made an independent determination as to whether violations of the Code of Judicial Conduct had occurred. The respondent appeared personally and through counsel, Stephen M. Joseph.
Following the public hearing, the Commission issued its final report, finding that there was clear and convincing evidence that the respondent’s conduct violated Canons 2A and 3B(3) and (4) of the Code of Judicial Conduct. The Commission also found that there was not clear and convincing evidence that the respondent violated Canon 1. Based on its findings and conclusions, as more fully set forth below, the Commission recommends that the respondent be publicly censured.
The respondent filed her written response to the Commission’s ■final report with the Clerk of the Appellate Courts, stating that she did not “wish to file exceptions to the findings of fact and conclusions of law” of the Commission but that she nevertheless “reserve^] the right to address the Supreme Court with respect to disposition of the case.”
Commission’s Findings of Fact
In its final report, the Commission concluded that the following facts were established by clear and convincing evidence:
“1. Respondent presided over the multi-count felony trial proceedings in Sedgwick County case number 03CR1565, State v. Dewey Gaither [see State v. Gaither, 283 Kan. 671, 682-83, 156 P.3d 602 (2007)].
“2. Thomas Weilert and Jennifer Hudson, Assistant Sedgwick County District Attorneys, appeared on behalf of the State of Kansas. Thomas Weilert was lead counsel, and Jennifer Hudson was second chair. Alice Osbum appeared as counsel for the defendant.
“3. Jury voir dire began on May 24, 2004, and continued into a second day.
“4. On May 24, 2004, the Respondent informally questioned forty-two jurors before Assistant District Attorney Weilert began his questioning.
“5. Four jurors had been excused for cause by late afternoon when Mr. Weilert asked the following question: ‘Is there anybody who has come into contact with a law enforcement officer in their official capacity — who has deep feelings about the incident?’
“6. After referring to Hitler and the war, Juror #16 stated ‘. . . I’m completely against the police and the uniform . . . .’
“7. Mr. Weilert continued, ‘If you were selected as a juror and police officers came in to testify, would you not believe anything they said because they’re cops?’
“8. Juror #16 responded, 1 won’t believe everything they say. That’s for sure.’
“9. Juror #16 was excused for cause after further questioning by Respondent but was ordered to sit through the entire trial in lieu of jury service ‘so you can get an objective view of how people — of how people do testify.’
“10. After Juror #16’s dismissal, Respondent addressed the jury panel, saying, ‘All right. Anybody else want to mess with me?’
“11. The replacement for Juror #16 indicated that she did not want to serve, explaining that she was a Jehovah’s Witness and did not ‘feel comfortable judging anyone.’ She further stated that her personal feelings were ‘if you’re in here, you’re guilty of something.’
“12. Respondent took over the questioning, pointing to inconsistencies in the juror’s position. She concluded, ‘. . . I believe you don’t want to do it [juiy service]. I’ve got quite a few people that don’t want to do it either. But you have said the magic words, so you are released from your jury service. And I feel sorry for the next person that ends up going, because I am going to hit the roof, I think.’
“13. Juror #22 had indicated that he had a question but changed his mind about asking a question after this exchange.
“14. An off the record bench conference occurred between Respondent and the attorneys at Ms. Osbum’s suggestion. Ms. Osbum advised Respondent that Respondent was yelling and that members of the jury panel were scared to answer questions.
“15. After the bench conference, Respondent addressed the jury panel, stating, ‘No one should be compelled — feel compelled to say anything that’s not trae, because they’re afraid I’m going to yell at them.’
“16. Respondent offered amnesty to the next two people who had negative things to say. Juror #22 asked his question.
“17. In releasing the jurors for the evening, Respondent stated, ‘If I have been rude and mean today, I apologize very, very, very much so.’
“18. After the jury departed, Ms. Osbum, counsel for the defendant Gaither, indicated to Respondent that the questioning of Juror #16 and her replacement had a ‘chilling effect’ on the jury. Ms. Osbum stated, ‘You yelled at the two jurors.’
“19. Respondent replied, ‘You can absolutely say it, and I admit it. I yelled at those two jurors. I was mad at them.’
“20. Ms. Osbum moved for a mistrial which Respondent denied.
“21. On May 25, 2004, prior to resumption of proceedings, the attorneys met with Respondent in her chambers. The State joined defense counsel in renewing an oral request for mistrial. The request was denied.
“22. When the proceedings resumed in the courtroom, Respondent stated to the jury panel that she ‘was pretty upset yesterday afternoon with two particular jurors, and it was obvious,’ but she had decided that Juror #16 would not be required to sit through the trial.
“23. Respondent stated to the jury panel, ‘If you feel too intimidated to answer the lawyers’ questions honestly, raise your hand right now, and you’ve just got a free pass out of here, and I won’t berate you. I won’t be mad. I will be mad only at myself for having caused this environment that you would feel that way, so this is your opportunity. Anybody want to leave?’ Two jurors left.
“24. At the hearing before Panel A on January 31,2008, all counsel in the Gaither trial testified.
“25. It was established that all were experienced trial counsel at the time of the Gaither trial. Mr. Weilert had practiced law since 1977, having conducted an estimated 200 jury trials in Wichita. Ms. Hudson had practiced law since 1997 and had conducted between 50 and 60 jury trials. Ms. Osbum had practiced law since 1992 and had conducted an estimated 100 jury trials. All had appeared in trials before Respondent on previous occasions and were familiar with her voice and manner of running the courtroom.
“26. Ms. Hudson testified at the hearing in this matter that ‘Judge Pilshaw normally has a very loud booming voice, but in this instance it was not only elevated volume wise, but there was an angry tone to it, a biting tone.’
“27. Mr. Weilert testified that the Respondent became loud and made ‘totally inappropriate comments.’ He continued, T had never seen that kind of reaction before, and I have been in a lot of jury selections.’ Mr. Weilert concluded that two members of the jury panel were ‘berated’ in front of the remaining jurors.
“28. Ms. Osbum testified that Respondent lost her temper during the jury selection.”
Commission s Conclusions of Law and Recommendation
Based on the above facts, the Commission unanimously concluded that the respondent’s actions violated Canons 2A and 3B(3) and (4) of the Kansas Code of Judicial Conduct. See Supreme Court Rule 601A. The Commission found that there was not clear and convincing evidence that the respondent violated Canon 1 and dismissed that charge.
Canon 2A states: “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities,” providing that “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 2007 Kan. Ct. R. Annot. 621. The comments to this Canon explain that the “test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” 2007 Kan. Ct. R. Annot. 622.
Canon 3B of the Code of Judicial Conduct, Rule 601A, provides in relevant part:
“A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
“B. Adjudicative Responsibilities.
(3) A judge shall require order and decorum in proceedings before the judge.
(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control." 2007 Kan. Ct. R. Annot. 624.
The Commission explained:
“5. Based on the record of the jury voir dire and testimony of experienced trial counsel in this proceeding, the Panel concludes that Respondent did not act in a manner that promotes public confidence in the integrity and impartiality of the judiciary nor did she act in a patient, dignified, and courteous manner.
“6. Respondent lost her temper and engaged in emotional outbursts which led counsel for the State and counsel for the defense to unite in moving for a mistrial.
“7. Although the conduct in question occurred with only two prospective jurors out of many, judges are not permitted occasional outbursts as suggested by counsel for the Respondent in his closing argument.”
Based on these conclusions, the Commission unanimously recommended that this court impose the discipline of public censure.
Analysis
The respondent did not file exceptions to the Commission’s findings of fact and conclusions of law. Thus, the findings of fact and conclusions of law in the Commission’s report are deemed admitted and conclusive. Supreme Court Rule 623(d) (2007 Kan. Ct. R. Annot. 660). We therefore find that the respondent violated Canons 2A and 3B(3) and (4) of the Code of Judicial Conduct based upon the clear and convincing evidence presented to the Commission and on the respondent’s decision not to file exceptions to the Commission’s findings and conclusions. In her letter to the Clerk of the Appellate Courts, however, the respondent indicated that she “reserve[d] the right to address the Supreme Court with respect to disposition of the case.” (Emphasis added.)
During oral argument before this court, the respondent and her counsel raised two issues regarding the Commission’s report: a claim relating to the language of the Commission’s report and an argument offering an alternative disposition to the discipline recommended in this case.. We discuss each of these issues in turn.
Counsel for the respondent first claimed that the conclusion in the Commission’s report that “judges are not permitted occasional outbursts” is too broad, as instances may arise where judges must take some action — including raising one’s voice — in order to preserve decorum in the courtroom. We initially note that because this issue relates not to the appropriate disposition of this case, but rather to the propriety of the Commission’s conclusions, it is not properly before us at this time. Supreme Court Rule 623(d) provides that any exceptions to the Commission’s report must be filed within 20 days of the receipt of that report. (2007 Kan. Ct. R. Annot. 659.) The rule further states that “[a] hearing panel’s findings of fact and conclusions of law shall be conclusive and may not be challenged by respondent unless exceptions have been timely filed.” Supreme Court Rule 623(d) (2007 Kan. Ct. R. Annot. 660). The respondent specifically disclaimed any exception to the Commission’s factual findings or legal conclusions in her letter to the Clerk of the Appellate Courts; counsel for the respondent may not now circumvent our rules to raise an argument regarding those conclusions.
We further note that even if we were to consider the claim raised by counsel during oral argument, that claim would be without merit. The hearing panel’s conclusions of law are limited to its factual findings in a particular case. Although the statement at issue in this case is phrased in general terms, the Commission was not setting forth a new rule regarding judicial conduct to be applied prospectively in other cases. We conclude that the statement in the Commission’s report was not improper when read in its intended context — an explanation for the Commission’s conclusions that the respondent’s behavior violated the Code of Judicial Conduct.
The respondent further argues that she should not be publicly censured for her actions in this case. She asked that any action taken be limited to an informal admonishment, claiming that she has suffered enough public scrutiny as a result of her conduct.
Supreme Court Rule 620 provides that once the Commission finds a violation of the Code of Judicial Conduct by clear and convincing evidence, the Commission “shall” take one of three actions: “(1) admonish the judge, (2) issue an order of cease and desist, or (3) recommend to the Supreme Court the discipline or compulsory retirement of the judge.” The Rule further provides for three disciplinary options of public censure, suspension, and removal from office for judicial misconduct. (2007 Kan. Ct. R. Annot. 658). The panel unanimously recommended that the respondent be disciplined by public censure.
The conduct of the respondent was the subject of a motion for mistrial and a claim of error on appeal by the defendant in State v. Gaither, 283 Kan. 671, 682-83, 156 P.3d 602 (2007). We discussed the respondent’s conduct and explained in that case:
“The judicial canons require a judge to perform the duties of the judicial office with impartiality. Canon 3 (2006 Kan. Ct. R. Annot. 572). The expectations for judicial conduct stated in Canon 3 have been summarized as follows in State v. Miller, 274 Kan. 113, 128, 49 P.3d 458 (2002):
“ ‘The judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions. The judge should not permit any person in the courtroom to embroil him or her in conflict and should avoid conduct which tends to demean the proceedings or to undermine the judge’s authority in the courtroom.’ ” 283 Kan. at 682.
Although we concluded in Gaither that the defendant’s motion for mistrial was properly denied and that the respondent’s later apology to the jury “purged the taint of the misconduct,” preventing her behavior from being a reason for reversal of the defendant’s conviction, her conduct amounted to a serious breach of ethics. 283 Kan. at 684.
The aim of judicial discipline is “the maintenance of the honor and dignity of the judiciary and the proper administration of justice rather than the punishment of the individual.” State ex rel. Comm'n on Judicial Qualifications v. Rome, 229 Kan. 195, 206, 623 P.2d 1307 (1981). This principle directs the outcome in the respondent’s case. The respondent’s failure to control her temper and frustrations and her conduct toward potential members of the jury in open court greatly detracted from the honor and dignity of the judiciary. Her actions negatively impacted the proper administration of justice in a felony criminal case over which she presided. While we recognize that the Commission’s recommendation is not binding on this court, see In re Robertson, 280 Kan. 266, 269, 120 P.3d 790 (2005); Supreme Court Rule 623(d) (2007 Kan. Ct. R. Annot. 659), our review of the entire record supports the Commission’s recommendation that the appropriate discipline in the respondent’s case is public censure.
It Is Therefore Ordered that Rebecca L. Pilshaw should be and she is hereby publicly censured by this court.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by
Nuss, J.:
Donald Storey was convicted at a bench trial of burglary and theft for entering an unfinished medical center and taking a band saw. On appeal, Storey primarily argued that taking property from a structure under construction did not constitute burglary under K.S.A. 21-3715(b). A majority of the Court of Appeals panel affirmed his convictions and sentences. State v. Storey, 37 Kan. App. 2d 555, 154 P.3d 1148 (2007). We granted Storey’s petition for review; our jurisdiction is under K.S.A. 20-3018(b).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did Storey’s entry into the unfinished medical center with intent to commit a theft constitute burglary as a matter of law? Yes.
2. Did the district court violate the Sixth and Fourteenth Amendments by imposing an enhanced sentence based upon prior convictions, without requiring that they be proven to a jury beyond a reasonable doubt? No.
Accordingly, we affirm the district court and the Court of Appeals.
FACTS
On the night of May 15, 2005, Storey entered the Wesley Medical Center construction site in Wichita. The structure under construction was approximately 70% complete. Specifically, it had a roof, a concrete floor, installed electrical work, and four brick walls with openings for yet-to-be-installed windows and doors. Storey entered the unfinished structure, cut the lock on a “job box” inside, and removed a band saw. The police stopped him after he put the saw in his car trunk. Storey was charged with burglary of a non-dwelling in violation of K.S.A. 21-3715(b) and with misdemeanor theft in violation of K.S.A. 21-3701.
Storey agreed to a bench trial on stipulated facts. The issue at trial was whether an unfinished medical center was covered by the burglary statute, K.S.A. 21-3715. Storey argued that he could not be convicted of burglary because no barriers existed to prevent him from entering. The district court determined that was not a critical factor, noting the “four brick walls, and a roof, but no doors or windows.” The court construed the statute as including unfinished medical centers, found Storey guilty, and entered convictions on both counts.
The presentence investigation indicated that Storey had a criminal history score of “F” based upon various prior convictions. These convictions were not included in the complaint, nor were they part of the stipulated facts at the bench trial. Given Storey’s criminal history score, the district court sentenced him to probation with an underlying sentence of 17 months for the primary offense of burglary and a concurrent sentence of 6 months for the theft.
Before the Court of Appeals, Storey argued that his entry into an unfinished and unsecured building is not burglary as proscribed by K.S.A. 21-3715(b) and, therefore, insufficient evidence existed to support that conviction. The Court of Appeals concluded that based upon a plain reading of the statute, general legal authorities, and case law from other states, the medical center qualified as a building. Consequently, the court concluded that sufficient evidence supported Storey s conviction. Storey, 37 Kan. App. 2d 555.
Storey also argued that the use of his criminal history, without putting the prior convictions to a jury and proving them beyond a reasonable doubt, increased the maximum possible penalty for his conviction in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Citing State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and its progeny, the Court of Appeals rejected this claim. We granted Storey s petition for review on these two issues.
Additional facts will be provided as necessary to the analysis.
ANALYSIS
Issue 1: Storey’s entry into the unfinished medical center with intent to commit a theft constituted burglary as a matter of law.
Consistent with his position at the Court of Appeals, Storey contends that his entry into an unfinished, unsecured building with intent to commit a theft does not constitute a burglary under K.S.A. 21-3715(b) and, therefore, there was insufficient evidence to convict him of that offense.
He recites our typical standard of review:
“ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005).
We believe that Storey’s argument more accurately depends upon interpretation of the burglary statute, a question of law over which we have unlimited review. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005).
The burglary statute, K.S.A. 21-3715, provides in relevant part as follows:
“Burglary is knowingly and without authority entering into or remaining within any:
“(a) Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein;
“(b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein.” (Emphasis added.)
“Dwelling,” as mentioned in subsection (a), is defined in K.S.A. 21-3110(7) as “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” Burglarizing a dwelling under K.S.A. 21-3715(a) is a level 7 person felony. By contrast, burglarizing a nondwelling under subsection (b) is a level 7 nonperson felony. K.S.A. 21-3715.
Storey primarily argues that to qualify as a “building,” a structure must be an enclosed space and have physical barriers to entry. He further argues that the classification of a structure under the burglary statute depends upon its condition at the time of the alleged crime. In support, Storey relies upon State v. Moler, 269 Kan. 362, 2 P.3d 773 (2000); State v. Vinyard, 32 Kan. App. 2d 39, 78 P.3d 1196 (2003), and State v. Alvis, 30 Kan. App. 2d 889, 53 P.3d 1232 (2002).
In Moler, this court determined that a lean-to did not qualify as an “other structure” under K.S.A. 21-3715(b). As Storey points out, in so holding the court stated that the enumerated items in the burglary statute are
“intended to present a barrier to entry, which in turn provide an enclosed space for the security of persons or property which may be contained therein. The lean-to herein is permanently and entirely open on one side. Its purpose was, apparently, to protect or shield vehicles from weather. It was not designed for, or intended to, exclude entry of persons from its area, nor was it capable of being so utilized. When strictly construed, ‘other structure’ does not include this lean-to.” (Emphasis added.) 269 Kan. at 369.
By contrast, we conclude that the medical center obviously was “designed for” excluding entry, was “intended to” exclude entiy, and once complete or nearly complete would be “capable of being so utilized.” We observe that the language italicized above, while phrased negatively, is nevertheless consistent with authorities expressed in Moler for what positively constituted a building, e.g.: “ ‘A building is a structure that has capacity for, and is designed for the habitation of, man or animals, or the sheltering of property, even though the building is unfinished. . . 13 Am. Jur. 2d, Burglary § 6.” (Emphasis added.) 269 Kan. at 365.
The Court of Appeals also found Moler unhelpful to Storey, further distinguishing it factually and legally from the instant case:
“The facts there are distinguishable, however, as well as the legal issue involved. In Moler, the court dealt with a lean-to that was entirely open on one side. The edifice was completely constructed. In that completed form it had only three walls, a dirt floor, and a roof. Also, the court there had to determine whether the lean-to was an ‘other structure’ as opposed to a building under subsection (b) of the burglary statute. Here, we have an edifice with four walls, a roof, a concrete floor, and completed electrical work with windows and doors yet to be installed. Here, we are concerned with whether the site of the intrusion was a building under the statute and not whether it was an other structure. Moler offers Storey no support.” (Emphasis added.) 37 Kan. App. 2d at 559.
The Court of Appeals not only rejected Storey s physical “barrier to entry” and “enclosed space” arguments by distinguishing Moler, but also by examining the plain language of the burglary statute. Citing, inter alia, State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006), it found no statutory basis for his arguments:
“[W]e find no support within the wording of the burglary statute for Storey’s contention that a structure must present a barrier to entry or that it must provide an enclosed space for protection of persons or property located inside to qualify as a building under the statute. We do note the legislature defined a dwelling as ‘a building or portion thereof, a tent, a vehicle or other enclosed space . . .’ under K.S.A. 2006 Supp. 21-3110(7). (Emphasis added.) However, it did not similarly define a non-dwelling building. A plain reading then of our burglary statute suggests that a building need not have complete enclosure in order to qualify as a building under the statute.
“We note also that the legislature included the word ‘any’ before the term building. Significantly, this suggests that it intended that all fypes of buildings be included under the statute. K.S.A. 21-3715.” 37 Kan. App. 2d at 558.
Consistent with the Court of Appeals’ plain reading analysis, the State observes that the legislature eliminated the common-law requirement that a burglary involve a “breaking.” See Judicial Council Comment, 1968, to K.S.A. 21-3716 (Weeks) (“The technical requirement of breaking in the former law was [a] historical anomaly and serves no useful purpose.”). The State reasons that the removal of the breaking requirement from the entire statute, together with the lack of an enclosure requirement for subsection (b) nondwellings as recognized by the Court of Appeals, severely undercuts Storey’s argument that only spaces protected by physical barrier or enclosed can be burglarized.
In addition to examining the plain statutory language and distinguishing Moler, the Court of Appeals also looked at general legal authorities for definitions of “building.” It concluded that “[n]one of these definitions contain any reference to a barrier to entry or a requirement the structure be completely enclosed.” 37 Kan. App. 2d at 558-59.
The Court of Appeals additionally looked to other jurisdictions, observing that all that have addressed the incomplete structure issue “have determined that such an unfinished structure is a building under their respective burglary statutes.” 37 Kan. App. 2d at 560. The case law on the issue appears to begin with Clark v. State, 69 Wis. 203, 33 N.W. 436 (1887). There, the Wisconsin Supreme Court ruled that a house under construction that had a foundation, walls, sides, and a roof, but no windows or doors installed, constituted a building under Wisconsin’s burglary statute. That statute provided in pertinent part that a burglary was to break “and enter .. . any office, shop, or any other building not adjoining or occupied with any dwelling-house . . . with intent to commit the crime of larceny or other felony.” The Clark court held:
“ ‘Building’. . . does not necessarily mean a structure so far completed as to be in all respects fit for the purpose for which it was intended. It doubtless does mean an edifice or structure erected upon land, and so far completed that it may be used temporarily or permanently for the occupation or shelter of man or beast, or for the storage of tools or other personal property for safe-keeping.” (Emphasis added.) 69 Wis. at 210-11.
The most recent entiy in the “incomplete structure” jurisprudence appears to be Smith v. State, 226 Ga. App. 9, 485 S.E.2d 572 (1997). There, the Georgia Court of Appeals ruled that a house under construction without a garage door and a door from the garage to the house was sufficiently complete to be a building under Georgia’s burglary statute. That statute provided in pertinent part that a “ ‘person commits the offense of burglary when ... he enters or remains within the dwelling house of another ... or . . . any other building.’ ” (Emphasis added.) The Smith court specifically held that a “ ‘building’ under the burglary statute includes a house under construction which is so far completed as to be capable of providing shelter to people, animals, or property, such as the house in this case.” 226 Ga. App. 9. Among other things, the court cited Clark, 69 Wis. 203; People v. Angel, 178 App. Div. 2d 419, 577 N.Y.S.2d 116 (1991), appeal denied 79 N.Y.2d 852 (1992); and People v. Gillespie, 344 Ill. 290, 176 N.E. 316 (1931), reh. denied June 5, 1931.
The Smith court also based its holding upon two additional reasons which are relevant to our analysis. First, both that court, and the Court of Appeals in the instant case, looked at the word placement in their state’s burglary statutes. The Smith court noted: “[I]t appears that the legislature, by placing the word ‘any’ before ‘building,’ intended that the statute include buildings of whatever kind.” 226 Ga. App. at 11. As previously mentioned, our Court of Appeals similarly observed: “We note also that the legislature included the word ‘any’ before the term building. Significantly, this suggests that it intended that all types of buildings be included under the statute. K.S.A. 21-3715.” 37 Kan. App. 2d at 558.
Second, the Smith court found support in related Georgia case law. “Furthermore, we note that this Court has affirmed burglary convictions where the house burglarized was under construction, although the specific issue of whether an unfinished house is a ‘building’ within the meaning of the burglary statute was not raised.” 226 Ga. App. at 11. Similarly, our Court of Appeals held in Alois, 30 Kan. App. 2d 889, that a house under construction was not a “dwelling” and therefore defendant’s criminal history score required redetermination. It remanded for classifying defendant’s burglary conviction as a nonperson felony, i.e., of a nondwelling, but nevertheless a “building” which can be burglarized. 30 Kan. App. 2d at 892.
Chronologically between Clark in 1887 and Smith in 1997 are Angel in 1991, and Gillespie in 1931. In Angel, 178 A.D.2d 419, the court held that a house under construction that still required installation of the windows and skylight and completion of certain interior work was a “building” under New York’s statute. The burglary and criminal trespass statutory definitions provided that “ ‘[bjuilding,’ in addition to its ordinary meaning, includes any structure . . . used for overnight lodging of persons, or used by persons for carrying on business therein.” See Penal Law § 140.00(2).
In Gillespie, the Illinois court held that a tool shed under construction, without windows, doors, and parts of two walls “comes within the language ‘other buildings,’ as used in the statute defining burglary.” 344 Ill. at 294. The court noted that a “building” under the statute had “been defined as fabric, structure, or edifice, such as a house, church, shop, or the like, designed for the habitation of men or animals or for the shelter of property; a structure. 9 Corpus Juris, 684; Clark v. State, 69 Wis. 203, 33 N.W. 436; 2 Am. St. Rep. 732.” 344 Ill. at 294.
Ultimately, the majority of the Court of Appeals panel in the instant case concluded that the unfinished medical center constituted a building under K.S.A. 21-3715(b) and sufficient evidence existed to support Storey’s conviction. 37 Kan. App. 2d at 561.
Judge Pierron dissented from the majority’s holding. Per Storey’s argument, he found Alois’ rationale to be controlling, arguing that “basic habitability” of the incomplete structure was the key issue. The majority of the panel, however, found Alois distinguishable. We agree with the majority.
In Alois, the defendant argued that his two prior convictions for burglary and attempted burglary should have been classified as nonperson felonies because the houses involved were still under construction and “not yet suitable for human habitation.” 30 Kan. App. 2d at 890. The court agreed on the burglary conviction, stating that it could not conclude from the inadequate record whether the house was “capable of human habitation” to purportedly qualify as a dwelling under K.S.A. 21-3110(7) and in turn to support a burglary conviction under subsection (a). 30 Kan. App. 2d at 892.
The Alvis court therefore held that the trial court erred in classifying Alvis’ burglary conviction as a person felony, i.e., involving a dwelling. It ordered that “[o]n remand, the trial court must classify the burglary conviction as a nonperson felony,” i.e., involving a building that was not a dwelling, “for the purpose of redetermining Alvis’ criminal history score. See K.S.A. 21-3715(b).” 30 Kan. App. 2d at 892. The Court of Appeals in the instant case accurately pointed out that Alvis did not expressly determine that the house was a “building” under the burglary statute. 37 Kan. App. 2d at 560. Given the mandatory language in its remand— the trial court “must classify the burglary conviction as a nonperson felony” — it appeared to simply assume so. (Emphasis added.) If this result is supportive of any party’s position, it appears to be the State’s, not Storey’s.
Finally, Storey’s third cited case, State v. Vinyard, 32 Kan. App. 2d 39, was not addressed by the Court of Appeals’ majority or dissent. He cites Vinyard solely to argue that the Court of Appeals “has applied the principle that a structure must present some security barrier in order for unlawful entry to constitute burglary.” The Vinyard court determined that Vinyard’s leaving the common area of a shopping mall to enter a Dillard’s department store within the greater mall structure during business hours constituted “entering a building” under the aggravated burglary statute, K.S.A. 21-3716.
The State responds that reliance on Vinyard is misplaced because the medical center was not within a greater structure but rather a freestanding unit. We agree. Moreover, Dillard’s was a completed structure; unlike Moler, there was no specific reference to “barrier to entry.” There was in fact no physical barrier to all entries: Dillard’s interior simply opens into the mall’s common area. If this aspect of Vinyard is supportive of any party’s position, it appears to be the State’s, i.e., a structure without a door is nevertheless a building for burglary purposes.
We agree with the holding of the panel majority. A plain reading of our statute, combined with the weight of other authorities cited, leads to the conclusion that the unfinished medical center that Storey entered and from which he stole a saw constituted a “building” under K.S.A. 21-37l5(b).
Issue 2: The district court did not violate the Sixth and Fourteenth Amendments by imposing an enhanced sentence based upon prior convictions, without requiring that they be proven to a jury beyond a reasonable doubt.
Storey contends that the use of his prior criminal history, without being included in the complaint, presented to the jury, and proven beyond a reasonable doubt, increased the maximum possible penalty for his conviction in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The constitutionality of the Kansas Sentencing Guidelines Act (KSGA) is a question of law over which this court exercises unlimited review. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). This court has previously rejected the same challenge, which Storey acknowledges. See Ivory, 273 Kan. at 46-48 (holding that Apprendi does not apply to a sentence increased based on a criminal history score; including prior criminal convictions in KSGA criminal history score is constitutional); State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005), cert. denied 547 U.S. 1056. We have been provided no persuasive reason to retreat from that position now.
Storey s burglary conviction and the sentence imposed by the district court, and the decision of the Court of Appeals affirming the conviction and sentence, are affirmed.
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In a letter dated April 15, 2008, and submitted May 7, 2008, to the Clerk of the Appellate Courts, respondent Christopher N.. Cowger, of Topeka, Kansas, an attorney admitted to the practice of law in the State of Kansas, surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2007 Kan. Ct. R. Annot. 330).
At the time the respondent surrendered his license, there were three cases pending before the Supreme Court of the state of Kansas which were set with the court following a formal hearing before the Kansas Board for Discipline of Attorneys. The hearing panel found by clear and convincing evidence that the respondent violated numerous rules of the Kansas Rules of Professional Conduct involving three clients. The panel found the respondent violated KRPC 1.2(d) (2007 Kan. Ct. R. Annot. 393) (scope of representation) when he assisted a client in engaging in criminal conduct by purchasing marijuana from the client; violated KRPC 1.4(a) (2007 Kan. Ct. R. Annot. 413) (communication) when he failed to keep a client reasonably informed regarding the status of an expungement case; engaged in a conflict of interest in violation of KRPC 1.7 (2007 Kan. Ct. R. Annot. 440) (conflict of interest) when his own interest was to use an attorney-client relationship to obtain illegal drugs rather than act in the capacity as the client’s attorney and KRPC 1.8(b) (2007 Kan. Ct. R. Annot. 449) (conflict of interest, specific rules) when he used information obtained during the course of representation of a client to the disadvantage of the client without the client’s consent; violated KRPC 1.15(a) (2007 Kan. Ct. R. Annot. 473) (safekeeping property) when he deposited unearned fees into his operating account rather than his trust account; and violated KRPC 8.4(b) (2007 Kan. Ct. R. Annot. 559) (misconduct) when he purchased marijuana on 10 to 15 occasions from a client. The panel found that those criminal acts adversely reflected on the respondent’s fitness to practice law in violation of KRPC 8.4(g) (2007 Kan. Ct. R. Annot. 559). Finally, the hearing panel determined that the respondent violated Supreme Court Rule 207(b) (2007 Kan. Ct. R. Annot. 288) (duties of the bar) in failing to cooperate in the disciplinary process.
This court, having examined die files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that die respondent should be disbarred.
It Is Therefore Ordered that Christopher N. Cowger be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Christopher N. Cowger from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337).
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding to test the validity of the organization of the defendant drainage district, to oust it from performing any function of a public corporation, and to oust the individual defendants as directors of the district.
So far as is necessary to a disposal of the cause, the recitals of the petition are that the district was illegally organized in June, 1929, on a petition reciting the signers were taxpayers within the boundaries of the proposed district and that the lands therein were subject to damage from two named rivers, etc., and praying that a drainage district be organized as provided by chapter 215 of the Laws of 1905; that the promoters caused publication of notice which falsely and fraudulently stated that the petition for organization of the district contained the names of two-fifths of the taxpayers residing within the boundaries of the proposed district, when in truth and fact there were but three taxpayers residing within the boundaries of said proposed district, and that said publication notice stated the petition prayed for organization of said district under chapter 215 of the Laws of 1905, and amendments; that at the date of hearing on said petition defendant Henderson filed with the board of county commissioners a statement setting forth a purported list of resident taxpayers who resided in said district “or in Chautauqua county, Kansas”; that on June 12, 1929, the board of county commissioners entered an order falsely stating a petition had been filed and presented, signed by more than two-fifths of the resident taxpayers of said proposed district, asking that the district be organized, and that said false statement in said order was obtained by the promoters of said district by false and fraudulent representations to said board. Copies of the petition, publication notice, list of resident taxpayers and of the order of the board of county commissioners creating the district are attached as exhibits to the petition in the instant case. It is also alleged that at the time of filing the petition for organization of the district, and ever since, there have been only three taxpayers residing within the boundaries of said district, and that the owners of three-fifths of the acreage within said district were nonresidents of said district, and there were not five taxpayers -resident within said district so that such district could not be organized under the 1905 drainage act unless the petition be signed by not less than three-fifths of the persons who own and pay taxes on land situated within such territory, and said petition was not so signed. Other allegations of the petition need not now be noticed. The answer alleged due organization of the district, denied any fraud in its organization, alleged misjoinder of causes of action, and denied certain matters not important here.
A commissioner was appointed to hear the testimony and he has reported, making findings of fact, and concluding as a matter of law that plaintiff’s petition should be sustained. The findings off fact will not be fully set out, but will be mentioned where necessary.
It has been observed that the district in question was organized under the provisions of chapter 215 of the Laws of 1905, as amended, being R. S. 24-401 to 24-480, both inclusive, the amendments appearing in the 1933 supplement. Section 3 of the original act provides for the filing of a petition and specifies what it must contain. Section 4, which has never been amended, provides that the petition must be signed “by not less than two-fifths of the taxpayers residing within the boundaries of the proposed district.”
In 1907 an act applicable to all drainage districts was passed, providing the phrase “taxpayer residing within the boundaries of any district or territory” shall be understood and construed to mean “any taxpayer of said district or territory living within the state of Kansas.” (Laws 1907, ch. 198.) The act was amended in 1909, and, as amended, is R. S. 24-101. It was again amended by chapter 127 of the Laws of 1927 (R. S. 1930 Supp. 24-101), which was effective when the petition to create the district here concerned was filed. The effect of the amendment, so far as here important, was that the phrase was to be understood and construed to mean “any taxpayer residing in the county in which' the drainage district or territory is located.”
The commissioner found that thirty-six individuals, exclusive of public utilities, owned lands within the district; that of the thirteen signers on the petition one owned no land in the district, two owned land in the district but resided out of the county, one is not accounted for, and that nine were “taxpayers residing within the boundaries of the proposed district” in contemplation of R. S. 24-404 and R. S. 1930 Supp. 24-101, and that the nine signers were less than two-fifths of the taxpayers residing within the boundaries of the proposed district. The defendant insists that in concluding as to the number of taxpayers, the commissioner included remainder-men in real estate, where the taxes were being paid by the holders of the life estate, and that such inclusion is erroneous.
We shall pass consideration of that question, and notice the contention of the plaintiff that the facts compelled the application of chapter 173 of the Laws 1911, which now appears as R. S. 24-458 to 24-461, both inclusive, parts of which have been amended (see R. S. 1933 Supp. 24-459, 24-459a), but which amendments do not affect the problem before us, and that the commissioner, although finding generally for the plaintiff, did not give proper force and effect to the above statute; that properly construed, the statute creates an exception to the general 1905 drainage act, and the failure of the petitions to disclose the facts making it applicable amounts to fraud. Section 3 of the act provides that it is supplemental to the 1905 drainage act (Laws 1905, ch. 215). Section 1 (R. S. 24-458) reads as follows:
“That whenever contiguous lands consisting of tracts owned in severalty by different owners shall be subject to injury from the overflow of any natural watercourse, and such land may as a body be protected from such overflow and injury by the construction of levees or other works, but the owners of three-fifths of the acreage of such body of lands are nonresidents and there shall not be five taxpayers resident within the territory including such lands, then such territory may be incorporated as a drainage district by the board of county commissioners upon the presentation of a petition as prescribed by section 3 of the act, to which this is supplemental, which petition shall be signed by not less than three-fifths of the persons who own and pay taxes on land situated within such territory, and shall state the above facts in addition to the facts required to be stated in the petition prescribed by said section 3.”
The defendants’ contention that the words “nonresidents” and “taxpayers resident within the territory,” by reason of chapter 198 of the Laws of 1907 and chapter 130 of the Laws of 1909 (R. S. 24-101), should be construed to mean nonresidents of the county or taxpayers residing within the county, which construction our commissioner seems to have followed, cannot be upheld. The statutes last mentioned refer to the qualifications of signers of petitions and of voters. It would seem that it was intended that if the facts warranted, the 1911 act required a greater number of signers than was necessary under the general provisions of the 1905 act. From the fact that the 1911 act creates an exception, and that it was passed after the 1907 and 1909 acts were passed, providing that “resident taxpayers” and “taxpayers residing within the boundaries,” etc., meant taxpayers living within the state of Kansas, it is evident that the expression “five taxpayers resident within the territory including such lands,” had no reference to the signing of the petition, did not mean five taxpayers living any place in Kansas, but meant exactly what it said, and this is especially true in view of the later clause in section 1 which says “which petition shall be signed by not less than three-fifths of the persons who own and pay taxes on land situated within such territory.” The 1927 amendment (Laws 1927, ch. 196, R. S. 1930 Supp. 24-101), changing statewide residence to county residence, cannot change the construction to be given R. S. 24-458. That the legislature in enacting section 1 of chapter 173 of the Laws of 1911 intended to restrict owners and taxpayers to actual residents within the limits of the proposed district, is evident also from the terms of section 2 of the act, which, although since amended (R. S. 1933 Supp. 24-459), has not been changed in the following parts:
“who own lands within said district, but need not be residents therein . . . every taxpayer of said district, owning real estate therein, whether a resident of such district or not, shall be entitled to vote,” etc.,
for had chapter 198 of the Laws of 1907, as originally existing or thereafter amended, affected the matter the provisions above quoted would, to say the least, have been superfluous, if not, to a degree, contradictory. The commissioner’s findings of fact are that there is a total of 2,066.68 acres within the boundaries of the district, and that at the time of filing of the petition for organization of the district three landowners owning a total of 704.7 acres within the boundaries of the district resided in the district. It thus appears that when the petition for the organization was filed there were less than five resident taxpayers, and more than three-fifths of the acreage was owned by nonresidents. It' follows that no district could be organized on a petition which did not disclose these facts; that the failure of the promoters to disclose them, even though made innocently or through advice that a different construction should be made of the statute applicable, amounted to constructive fraud; and that the order of the board of county commissioners, having been based on a fraudulent petition, and on findings not sufficient under the statute applicable, is without force and effect.
Defendants argue that by reason of the provisions of R. S. 24-406 it shall be the duty of the board of county commissioners to make a record showing all of its declarations, findings, decisions and orders defining the limits of the district,
“and all declarations, determinations, findings, decisions and orders of such board of county commissioners so entered of record shall be conclusive on all persons, so that no matter or fact so determined shall ever be disputed by anyone, and such record, or a properly authenticated copy thereof, shall be conclusive evidence .in all courts of the matters therein recited and of the corporate existence of such drainage district:”
and under the decision in State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684, the state is precluded from questioning the validity of the proceedings except for fraud. It has been demonstrated that the district was formed on the basis of a petition, which misrepresented jurisdictional facts, and to which the board applied a wrong statutory test. Under the situation as it exists here, the determination of the board of county commissioners was not final, for either actual fraud, or what is here its equivalent, constructive fraud, has been made to appear.
Under the findings of the commissioner, the assessed value of all taxable property in the district for the year 1930 was $229,276, of which $54,760 was farm land and $855 was personal property, the balance of $173,661 being assessed value of .properties belonging to public utilities. The values as of the date of the purported organization are not shown. While the proportion of values challenges attention, we need not determine whether organization of a district where there is such a disparity of valuations constitutes such arbitrary action and abuse of discretion as to be equivalent to fraud.
We notice that the boundaries of this district are so framed that while they include a strip of land approximately five and one-half miles long and less than a mile wide at its widest part, and while they describe as its south and west boundary the south and west line of the Missouri Pacific Railroad Company’s right of way, the north and east boundaries are the south and west banks of the Middle Caney and Little Caney rivers, except where they border about 160 acres of land lying south of the Middle Caney river, which lands, it is charged, were omitted on account of objections by the owners thereof; so far as the record shows, there is no watercourse included within the boundaries of the district. Query: Under the 1905 drainage act, is it possible to have a drainage district which does not include in its boundaries a natural watercourse?
We are of the opinion that the purported drainage district was not lawfully incorporated, and judgment of ouster against it is ordered. In so far as the individual defendants are concerned, their rights and duties as officers and directors are terminated with the ouster of the corporation.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is a sequel to a workmen’s compensation case which was here before.. (Ketchell v. Wilson & Co., 138 Kan. 97, 23 P. 2d 488.)
Following an affirmance by this court of the award of compensation, the employer, Wilson & Company, instituted a proceeding before the compensation commission to modify the award on the ground that claimant’s disability, arising from the industrial accident and injury sustained in the course of her employment, had terminated.
On that matter a hearing was held before the commissioner of compensation on August 4, 1933, with the result that the award was modified by a finding that claimant’s total disability had turned out to be but temporary and that it lasted only seventy-four weeks instead of being permanent, as determined in the first award. Accordingly the compensation commission on September 25, 1933, made an order modifying the original award as follows:
“It is hereby ordered that the award herein of November 16, 1932, be modified to temporary total disability for seventy-four (74) weeks from March 3, 1932, to and including August 3, 1933, at the rate of six dollars ($6) per week, amounting to four hundred forty-four dollars ($444), which is now due and owing and is hereby ordered paid in one lump sum.”
Nine days later, on October 4, 1933, the commissioner of compensation on his own initiative, and without notice or hearing, made an order changing the amount of the modified award by reducing it from seventy-four weeks at $6 per week and totaling $444, to fifty weeks at $6 per week and totaling $300. The order stated the reason for making this latest change by declaring that an error had been made in the commissioner’s calculations; that no account had been taken of the first week after her injury — for which no compensation was allowable — and for the succeeding periods from March 2 to May 16 and from May 22 to August 23, during which intervals she had worked for respondent and had received her regular wages.
From this latest order the claimant appealed to the district court, which reviewed the record, summarized the history of the case, and held:
“That said commissioner, having made and filed his order of modification of award on September 25, 1933, was without jurisdiction or authority to make the order of October 4, 1933, of his own motion and without notice to the parties, or otherwise.”
Judgment that claimant was entitled to the unpaid balance of the award of September 25, 1933, was rendered accordingly.
Respondent now brings this matter here for further review.
The procedure prescribed for awarding compensation, for judicial review of such award, and for modifying it as the progress, diminution or termination of the workman’s injury may justify, is completely covered by statute. In Austin v. Phillips Petroleum Co., 138 Kan. 258, 25 P. 2d 581, where a workman injured in an industrial accident sought to maintain a common-law action for damages for breach of an oral agreement to pay compensation, it was said:
“It is well settled that the workmen’s compensation act establishes a procedure of its own (Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233; Murphy v. Continental Casualty Co., 134 Kan. 455, 7 P. 2d 84; Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396), and that it furnishes the exclusive remedy for a workman and the exclusive liability of his employer for injuries compensable under the act. (See Echord v. Rush, 122 Kan. 260, 251 Pac. 1112; 124 Kan. 521, 261 Pac. 820; Leebolt v. Leeper, 126 Kan. 61, 275 Pac. 1087, and cases cited therein.)” (p. 259.)
In this case it might be admitted that the error in computing the amount due is apparent, but it is not apparent that the claimant would have acquiesced on September 25, 1933, in a modification of the award made in her favor in 1932 to the relatively small award of $6 per'week for fifty weeks. She might have protested the finding of her complete recovery, and might have appealed from such an order of modification. In short, while apparently she has been willing to accept the modified award of $6 per week for seventy-four weeks, she was and is altogether disinclined to accept any less sum; and of course the commissioner’s order of October 4, 1933, on his own initiative, without notice or hearing, was void. (Walz v. Missouri Rld. Co., 130 Kan. 203, 285 Pac. 595.)
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is the culmination of certain proceedings commenced before the state tax commission wherein the Chicago, Rock Island & Pacific Railway Company sought to recover certain alleged excess taxes for 1932, which it had paid under protest in Butler county.
The first half of the railway company’s taxes for 1932, as computed by the local and state taxing officials, was $3,174.45, which, according to the written, protest of appellant, was $1,824.38 in excess of the reasonable requirements of the county and its subdivisions through which the railway lay. The second half of the company’s taxes for 1932 was paid under a similar protest.
On July 31, 1933, the railway company filed with the state tax commission its application for an order requiring Butler county to refund the amount of these alleged excessive and protested taxes.
The state tax commission, on notice to all parties concerned, held a public hearing and after consideration made the following administrative rulings:
“County general fund: The board of county commissioners fixed a rate of levy of 1.13 mills for this fund, of which the applicant contends 1.05 mills is excessive, for the reason that the county general fund had a balance, which, if taken into consideration, would materially reduce the levy. It is the finding of the commission that the balance shown in this fund is not unreasonable. . . .
“County road fund: The board of county commissioners fixed a rate of levy of 1.097 mills for this fund, of which the applicant contends .796 mills is excessive, for the reason that the county road fund had a balance, which, if taken into consideration, would materially reduce the levy. It is the finding of the commission that the balance shown in this fund is not unreasonable. . . .
“School districts 65, 69, 85 and Jt. 95: As to these districts, applicant contends that the rate of levy in each of these districts was excessive, for the reason that certain balances were not taken into consideration in determining the rate of levy. The commission, after carefully examining the financial statements of these four districts, finds that the balances on hand were not unreasonable, and for that reason the prayer of the petitioner is denied. . . .” [Dated January 17, 1934.]
From this disposition of its application for a refund the railway company filed in the district court an “appeal,” and served notice thereof on the county and school district boards concerned. Motions to dismiss were lodged against the appeal on various grounds, the first and fourth of which were that the district court had no jurisdiction of the subject matter and was without appellate power to review the action of the state tax commission. These motions were sustained, and the appeal was dismissed. .
The railway company now brings the matter to this court to determine the propriety of that judgment.
Apart from the general appellate jurisdiction of the district court over all inferior tribunals exercising judicial powers conferred by the civil code (R. S. 60-3301), that court has no inherent appellate jurisdiction over the official acts of public boards or public officers. Where the latter do not transcend their statutory powers nor act fraudulently or oppressively their official acts cannot be challenged in court except where the legislature has made some special provision for a judicial review. (State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408, syl. ¶ 9.) Familiar examples of such statutory review of the action of a nonjudieial tribunal are the appeals which may be taken to the district court from the awards of the workmen’s compensation commission and the regulatory orders of the state corporation commission. In Photo Play Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1154, where the power of the district court to review the official action of the board of moving-picture censors was under consideration, it was said:
“What is the redress provided? Manifestly, it is such redress as a court can give, and not an exercise of executive or administrative power. A reexamination of the picture to determine whether it was moral and fit for exhibition would be an exercise of administrative power, and that discretion and power was specially conferred upon the board. It would result in’ the substitution of the judgment of the court for that of the board in a pure matter of administration, which the legislature could not and evidently did not intend to confer upon the district court. It is fundamental that courts cannot be required or permitted to exercise any power or function except those of a judicial nature. (Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500.) An aggrieved party may call on the court for judicial redress and not for the performance of a nonjudicial or administrative function. . . ,. In Symns v. Graves, 65 Kan. 628, 70 Pac. 591, where the court was asked to review the action of the board of equalization in fixing the valuation of property for the purpose of taxation, it was said:
“ ‘Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges, who are not elected for that purpose, with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. . . . But fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud, will vitiate any official act, and courts have power to relieve against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity, (p. 636.)’
“There have been repeated holdings that the decisions ■of a board or other tribunal upon which the legislature has conferred the exercise of nonjudicial power, if made in good faith, are not open to judicial control or review.” (pp. 358, 359.)
Of course the courts are always- open to hear meritorious complaints against illegal or oppressive acts or delicts of nonjudicial public boards and officials, either at the instance of the state or of a private citizen especially aggrieved thereby. But not by appeal— where no statute confers a right of appeal. In the absence of a statutory right of appeal, judicial redress for illegal, fraudulent or oppressive official conduct must be invoked through some extraordinary legal remedy recognized in our practice — injunction, mandamus or quo warranto. (State, ex rel., v. Mohler, supra, 471, 472.)
What is said and quoted above is particularly pertinent in respect to matters of taxation which are essentially legislative and administrative in character. The old case of Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, is instructive. In 1869 the legislature enacted a statute giving the parties concerned a broad right of appeal from an appraisal of railway property for purposes of taxation. In part it read:
“Sec. 11. The state auditor, or any railroad company interested in the appraisal and assessment hereinbefore provided for, may appeal from the appraisement and assessment made and returned to the state auditor by the board of appraisers and assessors hereinbefore provided for. Whenever in the opinion of said auditor, such appraisement is too low, he may take such appeal to the supreme court of the state, by notifying the company interested of his intention to take such appeal, within ten days from the time when the return is so made to him by the board of appraisers and assessors as is hereinbefore provided; and whenever, in the opinion of any railroad company, whose property has. been so appraised and assessed, such appraisement has been fixed too high, such railroad company may appeal from such appraisal and assessment to the supreme court.” (Laws 1869, ch. 124, § 11.)
Invoking the section of the statute just quoted, the state auditor appealed to this court from an appraisal of the railway property by the taxing officers on the ground that it was too low. While the decision went off on the obvious ground that the action sought to be maintained was not within the original jurisdiction of the supreme court, the nature of the limits of judicial power in respect to taxation matters were pertinently stated by Chief Justice Kingman:
“The raising of money for the support of government is essentially a legislative function. Where the money is raised by taxation, an ascertainment of the value of the property is a necessary prerequisite, and therefore an incident to the power to tax. It would be competent for the legislature to appoint commissioners for this purpose who should report directly to the legislature, who could revise and correct such valuation. That the inconvenience of such a mode would preclude its adoption, is no argument against the power. The power exists, and is a legislative power, and shows conclusively that it cannot be a judicial power. . . . The assessment of the property of the state, being then an incident to the taxing power, which is wholly legislative and not judicial, may well be ascertained by agents appointed under the law; but in no sense under our constitution can such agents be considered judicial officers. It is true that their duties require of them judgment and discretion; but this is also true of most of the duties of ministerial and executive officers, but this does not make them judicial officers, nor constitute them courts, or render their conclusions judicial acts; and, not being such, it follows, from what has been heretofore said, that there can be no appeal from the decision of such agents to this court, and the duty imposed upon this court by the act of 1869 is one not permitted by the constitution, for it is not one of the enumerated cases in which the court has original jurisdiction, nor is it within the scope and meaning of the appellate jurisdiction which may be conferred upon the court.” (pp. 507, 508.)
See, also, Silven v. Osage County, 76 Kan. 687, 92 Pac. 604; 10 L. R. A., n. s., 716 and note.
While methods and procedure in taxation matters have been changed by legislation from time to time since the case of Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129, 16 L. R. A., n. s., 807, was decided, part of the opinion of Chief Justice Johnston in that case is still pertinent:
"While the court has found that the valuation placed on Bullard’s property is excessive, there is no intimation that it was fraudulently done, nor that it was an intentional discrimination in order to compel Bullard to pay more than his share of the taxes of the county; nor, as before-stated, does it appear that he has been required to pay more than his proportionate share of taxes. There was a difference of opinion between him and the assessors as to the value of his lands as compared with those of others. The tax law provides a board of equalization to settle such differences of opinion, and it is one to which every taxpayer may apply. In revising and equalizing assessments that board has necessarily a broad discretion, and its decision, however erroneous, is plenary and final when fairly and honestly made. . . .
. . The law does not give an appeal from the board of equalization to the court, nor does it warrant the court in substituting its opinion of values for that of the officers who are invested by law with the sole authority to determine values. The statute does not contemplate, nor would it be practical to permit, a review and revaluation in the courts of the state at the instance of taxpayers who might complain of overvaluation by assessors. The remedy for irregular or excessive assessments before the board of equalization was deemed by the legislature to be an adequate one, and in the absence of other grounds it is an exclusive remedy.” (pp. 356, 357.)
In view of the foregoing the contentions of the railway company can be readily disposed of. Neither the taxing officials nor the taxing boards of this state are judicial functionaries, so the provisions of the civil code for taking appeals to the district court from inferior judicial tribunals do not apply. And while the Kansas theory for the administration of justice favors the right of appeal, such appeals must relate to matters which judicial tribunals are equipped to determine. The legislature has supplied the courts with no yardsticks to determine what sums of money the taxing authorities in their discretion may levy and collect so long as they stay within the limits of the levies authorized by statute. When the state tax commission conducted a hearing and found that the balances in the various funds of the taxing districts of Butler county were not so large as to establish the railway company’s complaint that the taxes collected on its property were excessive and unreasonable, that conclusion and determination was not a judgment or decree of a judicial nature from which an appeal would lie. It was merely the disposition of a matter which the legislature had lodged in its administrative discretion.
The order of the district court in dismissing the appeal was correct, and its judgment is therefore affirmed.
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The opinion of the court was delivered by
Dawson, J::
This is an appeal from a judgment striking out part of defendant’s answer to the petition of plaintiff in an action for damages sustained in a collision of automobiles on a public highway through the alleged negligence of defendant.
It appears that on December 13, 1932, the plaintiff, Goldie Wilson, and her husband had been to Fort Scott to do their trading, and were returning to their home in Fulton in Mr. Wilson’s Buick automobile. Some five miles north of Fort Scott, on highway No. 73E, they were overtaken by defendant, who was driving a Ford coupé. Defendant attempted to pass the Buick, but turned too quickly to the right. His coupé struck the left front fender of the Buick, causing it to swerve into the ditch, whereby plaintiff suffered various injuries, for which she prayed damages.
Defendant’s answer contained a general denial, certain admissions, and allegations that plaintiff and her husband were engaged in a common enterprise and that the collision and accident were caused by want of care on the part of plaintiff and her husband. The answer also contained a lengthy third paragraph, which may be summarized thus:
The Wilsons had no license for their automobile. No such license had ever been applied'for. In consequence it was being operated on the highway without right and in contravention of the statute providing for licensing motor-vehicle operators and chauffeurs (R. S. 1933 Supp. 8-201 et seq., Laws 1931, ch. 80), and that such unlawful operation of the Wilson car barred and precluded plaintiff from any recovery in this action.
On motion of plaintiff the foregoing special defense pleaded in the third paragraph of defendant’s answer was stricken out, and defendant appeals.
Our attention is directed to the text of our statute which, in part, reads:
“No person except those expressly exempted under the provisions of this act shall drive any motor vehicle upon a highway in this state unless such person upon application has been licensed as an operator or chauffeur by the department under the provisions of this act.” (R. S. 1933 Supp. 8-202.)
Certain infractions of this statute are declared to be felonies, and others to be misdemeanors, with penalties prescribed.
Defendant broadly contends that where a person is injured on the highway while operating a motor vehicle thereon in violation of the statute he cannot recover damages therefor against the person whose negligence has caused such injury. In support of this contention, the case of Johnson v. Boston & Maine R. Co., 83 N. H. 350, is cited and quoted at length. That learned court deals with this question with its usual assiduity, fortifying its position with many citations mostly gleaned from its own precedents; and holds in substance that a person who voluntarily and without justification operates a motor vehicle on a public highway without a license required by statute is a wrongdoer; and where, while thus engaged, his car is struck at a railway crossing through the negligence of a railway company his own wrongdoing is causal, and bars a recovery for the damages he may have sustained.
The annotation to this New Hampshire case, however, which appears in 61 A. L. R. 1190 et seq., as well as earlier annotations there cited, makes it clear that the prevailing rule is at variance with the one stated in the New Hampshire case. See, also, later annotations in 78 A. L. R. 1028 and 87 A. L. R. 1469. We adhere to the majority rule. The punishment for operating an automobile on the highway without the requisite license is prescribed by statute; and that punishment does not include the subjection of the violator to the liability, without redress, of having his car tipped over into a roadside ditch with peril to life and property by other users of the highway. In the instant case there was not the slightest causal relation between the want of a license for the Wilson automobile and the negligence of defendant whereby he collided with the Wilson car and upset it with the resulting injuries to Mrs. Wilson.
Our attention is directed to McCarry v. Center Township, 138 Kan. 624, 27 P. 2d 265, where we held that the township was not liable to a motorist for injuries sustained by him because of an alleged defect in the highway when he at the time was operating his automobile without a license as required by statute. It ought not to be difficult to see that the cited case does not control the present one. A township is an agency of the state. There can be no liability imposed against the state or its agencies without a statute which so declares. The state does permit its public agencies to be subjected to damage suits under limited conditions; but it would be rather absurd) to countenance a claim for damages where the plaintiff in effect is compelled to say: “While I was violating the state law on the highway I was injured through the negligence of the state’s agency, and I therefore invoke the state law against that agency for redress!” Surely the state’s agency is under no duty to furnish a safe highway for those whom the state forbids to use it. In the McCarry case, however, we took note of the fact that the rule there announced is not uniformly sustained in other jurisdictions. See annotations in 16 A. L. R. 1115; 54 id. 380; 61 id. 1191; 87 id. 1472; and 2 J. K. B. 213, 214.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover for wheat alleged to have been stored in an elevator belonging to appellant and thereafter sold to the appellant.
At the first trial judgment was rendered for plaintiff. A new trial was allowed, and this appeal is from a judgment in plaintiff’s favor.
On behalf of plaintiff it was shown that about the middle of December, 1929, plaintiff arranged with defendant’s agent, Reuschoff, to store 1,000 to 1,200 bushels of wheat at defendant’s elevator at Grinnell, the charges to be made being agreed on, and on December 28 and 30 plaintiff delivered 1,168 bushels of grade 2 wheat testing 58 and 59. At the time the arrangement for storage was made it was agreed that if plaintiff sold defendant his wheat settlement would be made at market price and that defendant would compete with other elevators in Grinnell. On the evening of December 28 plaintiff had a further conversation with Reuschoff in which Reuschoff asked what plaintiff wanted for his wheat, and plaintiff replied $1.10 per bushel and that when wheat reached that price it was defendant’s wheat, to which Reuschoff replied: “I will remember that and it will be all right.” On December 31, 1929, and on J anuary 2, 1930, wheat of like quality and grade was being purchased at the other elevators in Grinnell for $1.10 per bushel and plaintiff went to defendant’s elevator and saw defendant’s agent Blizzard, who told plaintiff he would have to see Reuschoff, but Reuschoff was sick on both occasions and he did not see him. A few days later he saw Reuschoff, who said $1.09 per bushel was all he could pay. Although defendant’s answer alleged as a defense that the wheat had been stored and that it was agreed defendant would accept the wheat and pay the market price prevailing at its elevator at Grinnell on any future date plaintiff might elect, that plaintiff had never given any notice he desired to accept payment for the wheat at the market price prevailing at such time at such elevator, and that at no time since delivery of the wheat had wheat of the same kind and grade reached a price of $1.10 per bushel at said elevator, and other allegations not necessary to note, Reuschoff’s testimony was that he didn’t recall saying anything about meeting competition; that after the wheat was delivered plaintiff wanted to settle at $1.10 per bushel, and Reuschoff told him the only price he had was $1.07 and offered to knock off his commission of two cents per bushel, but plaintiff would not accept. On cross-examination he could not recall that plaintiff had told him .when wheat reached $1.10 per bushel it was defendant’s wheat, but the plaintiff did say he wanted to sell when wheat reached $1.10 per bushel. The matter was finally submitted to the jury on instructions which covered both the plaintiff’s and defendant’s theories of the transaction. Sixteen special questions were submitted, the answers to which may be summarized as follows: That plaintiff stored the wheat on the agreed terms; that Reuschoff agreed defendant would purchase the wheat and would compete with other elevators in Grinnell; that if wheat reached a market price of $1.10 per bushel in Grinnell said wheat should be accepted by defendant at that price; that on December 31, 1929, and January 2, 1930, the market price of the wheat delivered was $1.10 per bushel; that defendant was indebted to plaintiff for $1,284.80 for wheat and $249.91 for interest. There are other findings not here material. The general verdict was for the plaintiff, and judgment was rendered in his favor. Defendant’s various motions for judgment notwithstanding the general verdict, to set aside certain answers to special questions and for a new trial were denied, and it appeals.
Appellant recognizes the force of the findings against it and argues that the court’s instructions did not fairly submit the question as to whether the price of the wheat was to be determined by the price paid at defendant’s elevator in Grinnell or by the market price in the town of Grinnell. This argument is based on a claim that competing with elevators in Grinnell was mentioned only when the original arrangement for storage and sale was made and was not referred to in the later conversation where plaintiff told defendant that when wheat reached $1.10 per bushel it was defendant’s wheat. It is not clear from the abstract that the contention has a substantial basis as a matter of evidence, but assuming that competition was mentioned in the first conversation and not in the second, there is no inconsistency. Sale of wheat was contemplated in both conversations. Defendant did not object to the instructions when given, nor did it ask for any other instruction than those given. We have examined the instructions as given and they fairly present the issues between the parties. Essentially this was a fact case. The jury has resolved the matter in favor of the plaintiff, and the trial court has approved the verdict and rendered judgment thereon.
No error appearing, the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is a mandamus action brought in this court by the state of Kansas on relation of the county attorney of Reno county against the county commissioners of that county, to compel them to let the contract for the printing of the ballots to be used at the primary election held on August 7, 1934, at the rate specified in R. S. 25-604 instead of a reduced rate, the petition alleging that the defendants had accepted a bid at fifty per cent of the legal rate and were about to enter into a contract for the printing thereof at such reduced rate.
The petition was filed on June 5, 1934, and on the same day an alternative writ was issued signed by the chief justice of this court; also, on that same day a motion: to quash the alternative writ was filed by the defendants. On July 2, 1934, the attorneys for both plaintiff and defendants filed their printed briefs, calling mainly for a construction of the statute above noted and particularly whether the word “shall” therein is mandatory or merely directory and to be construed as “may.” The July term of this court commenced on the day the briefs were filed, and the next regular session of this court convened on October 1,1934; and three days later, an response to an oral motion, the case was advanced to the October session and was submitted on the briefs without oral argument.
We are confronted with the fact that the case appears to be moot. No contract can now be let by the defendants, regardless of price, for the printing of primary ballots to be used August 7, 1934. The briefs were filed ip time, but unless the case was submitted at that very timé and the issues determined and the opinion handed down at once, it would have been after the primary election was over, to say nothing of a reasonable time necessary to do the work pf printing. Any order we might make in the case at this time would be absolutely, ineffectual. Our decision at this time would necessarily be either to require the defendant to let a contract now at the full legal rate for the printing of the ballots that were needed for the primary of last August, or to sustain the motion to quash the alternative writ, which would relieve the defendants from this-time on of the requirement of letting the contract at a certain rate for the printing of primary ballots for last August. The case does not involve the matter of the printer collecting or the commissioners being liable for the legal rate, or any other rate.
It is said in 18 R. C. L. 138:
“ . . . the writ will not be granted where its issuance would be unavailing, nugatory or useless; so if it is apparent that the writ, if granted, cannot be enforced by the court, relief will be withheld, since the courts are averse to exercising their extraordinary jurisdiction in cases where their authority cannot be vindicated by the enforcement of process.”
In 1 C. J. 973 it is said:
“Courts are confined in their judicial action to real controversies wherein the legal rights of parties are necessarily involved and can be determined, and something further is sought than the mere declaration of a right, and they will not entertain an action or proceeding merely for the purpose of passing upon a moot question or abstract proposition, as in regard to the construction and operation of a contract, the constitutionality or construction of a statute.”
The situation is substantially the same when the matter involved becomes moot, whether it is in an original proceeding or in a case that is appealed. The following are some of the many expressions of this court on this subject in cases that have been appealed:
“An appeal may be dismissed when this court cannot make any order that will affect the rights of the parties thereto.” (State v. Gas Co., 102 Kan. 712, syl. ¶ 4, 172 Pac. 713.)
“It is not the province of this court to decide moot questions.” (Kreitzer v. Cement Co., 92 Kan. 835, syl. ¶ 3, 141 Pac. 1004.)
“The supreme court will not entertain an appeal solely for the purpose of deciding a mooted question of law or fact.” (Bauman v. Mason, 91 Kan. 728, syl., 139 Pac. 406. See, also, State, ex rel., v. Railway Co., 90 Kan. 20, 56 Pac. 755; Geinger v. Krein, 103 Kan. 176, 173 Pac. 298; Beaty v. Doughty, 108 Kan. 552, 196 Pac. 432; and Hesser v. Bale, 114 Kan. 750, 220 Pac. 274.)
For the reason that any decision or judgment that could be rendered in this cause at this time would be unavailing and ineffective the cause should be dismissed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.;
These were actions brought under the provisions of chapter 319 of the Laws of 1933, commonly known as the cash-basis law. From a judgment denying relief the claimants appeal.
In case No. 31,516 the facts are that Cherokee county withheld from the various cities, which are claimants, certain of the tax moneys paid to the county treasurer of the county under the levy for the general fund of the cities in the January, 1933, settlement between the cities and the county. The amounts so withheld were the moneys expended in conducting the primary and general elections in the county for 1932.
The cities filed claims for these amounts under the cash-basis law. The theory of the cities is that if the county had a claim against the cities it should have filed a written, itemized, verified statement of its claim against each city. Such a statement, it is admitted, was not filed. The-second ground relied on by the claimants is that all tax moneys paid into the county treasury on tax levies made by appellants belong exclusively to appellants and should have been remitted in full to the respective treasurers of appellants, and appellee had no legal right or authority to take any portion of such tax moneys and appropriate it to its own use.
Briefly, the position of claimants is that the county stands in the same position as any person or corporation that has a claim against a city, and that since the county withheld the money in question from the cities without complying with the statute with relation to claims against cities it was wrongfully withheld and should be paid to the cities.
The position of the county is that it was entitled to withhold the money in question under the terms of R. S. 25-109. That section is as follows:
“All ballots oast in any general election or special election in the state, in any political subdivision thereof other than a school district, shall, after the talcing effect of this act, be printed and 'distributed at public expense. The printing and distribution of ballots and all other expenses connected with or growing out of the provisions of this act, or that are necessary to provide for the elections thereunder, shall be paid by the townships and cities of the first and second classes; and it shall be the duty of the county commissioners to apportion such expenses to the townships and cities of the county in proportion to the votes cast at the last preceding general election in each township and city. It shall be the duty of the county clerk to charge such expenses, as apportioned by the board of county commissioners, to the general fund of the several townships and cities of the first and second classes ...” (Italics ours.)
The above section leaves no doubt that it is the duty of the cities of the first and second classes and townships to bear the expense of conducting elections. The only fund out of which this expense can be paid is the general fund. For obvious reasons the printing and distribution of ballots must be conducted by the county. The statutes so provide. No doubt the legislature considered the entire situation when R. S. 25-109 was enacted. It provides for payment of the cost of printing and distributing the ballots, and for the payment to the county of the money so expended by directing the county clerk to charge such expenses to the general funds of the several cities. Clearly the only way in which the clerk can do this is by withholding the amount from the money distributed to the cities. , We hold that the section provides ample authority for the county doing just what it did in this case.
In case No. 31,517 the county filed claims against the cities for money expended by the county in the elections for 1926, 1928 and 1930.
Because of arguments made by the cities the form of the claims will be set out. For the city of Weir the claim was as follows:
“City of Weir
To Cherokee County General Fund, Dr.
To election expenses due Cherokee county as per R. S. Amount Amount 1923, sec. 25-109, as per order county commissioners: claimed. allowed.
1926 election ..........'......................... $318.25
1928 election ................................... 259.21
1930 election ................................... 259.21
Total ....................................... $836.67”
For the other cities the claim was as follows:
“City of Scammon, Kansas
To Cherokee county general fund, Dr. Cherokee County, Kansas. Amount Amount 3 claimed. allowed!.
As per Commissioners’ Journal (P), page 335. The county makes claim from the city of Scammon, Kansas, under sec. 25-109, R. S. 1923, for amount due said county general fund for the election years of 1926-’28-’30, in the amount of .......................... $838.28” .......
The claims were all disallowed by the cities. The county then appealed to the district court.
The cities objected to the introduction of any evidence for the reason that the claims were not made out in the form required by law, for the reason that they were barred by the statute of limitations, and for the reason that they were res adjudicata.
It was admitted that the expenses for the years in question were never deducted from the amounts collected by the county treasurer for the general funds of the cities of the second class and townships in the counties.
Over the objection of the cities the county clerk testified as to an entry in the commissioner’s journal instructing the county clerk to make claims on the cities and townships for the election expenses for the years in question. The county clerk testified that in determining the amount of these claims he consulted his 1926 records and obtained the 1926 election expense, but that for the 1928 and 1930 election expenses he went to the auditor’s records for such information; that he found from the records in his office the number of votes cast, he took the number of votes cast in each township and city in the preceding general election and then prorated the election cost to each city and township and took that same proportion of election expenses and allotted it to that particular city or township.
The cities demurred to the evidence of the county on the ground that the evidence did not prove a claim against the cities. This demurrer was overruled. The cities then moved for judgment in their favor. The ruling on this motion was reserved by the court.
The cities then demurred to the evidence of the county for the reason that the apportionment upon which the various claims are based is void, illegal ’ and in violation of the constitution of the United States and contrary to the laws of the state of Kansas and particularly the fourteenth amendment to the constitution of the United States and section 18 of the bill of rights of the state of Kansas. The trial court reserved its ruling on that demurrer. The cities then moved the court to reject each and all of appellee’s claims for the reason that they were not properly itemized or properly made and presented as required by the terms and provisions of the statutes of the state of Kansas relating to cities of the second class, and particularly R. S. 14-441. This motion was overruled. The court then stated that it would take judicial notice of certain actions that had been filed in that court and judgments rendered. These actions were filed by the cities against the county under the cash-basis law to recover interest and penalties on delinquent taxes which had been collected by the county.
The cities then offered evidence which tended to show that the county had made claims to the townships similar to the claims made to the cities, that the townships had refused to pay the claims, and that no appeal had been taken against the townships.
The cities argue that the court erred in overruling appellants’ objections to the introduction of evidence, in admitting evidence over the objection of appellants and in overruling motions of appellants to strike out portions of the evidence offered by the appellee.
The argument is based on the provisions of R. S. 14-441. That section reads as follows:
“All claims against the city must be presented in writing, with a full account of the items, and verified by the oath of the claimant or his agent, that the same is correct, reasonable and just; and no claim or demand shall be audited or allowed unless presented and verified as provided for in this section.....”
The cities point out that this section was not complied with by the county and therefore the cities had no authority to pay the claims in question. The point is not good. The cash-basis law provided a comprehensive plan whereby the fiscal affairs of the municipalities of the state might be balanced. It superseded all other statutes bearing on that subject. The county complied with all the requirements of the cash-basis law when the claims were filed. There is no provision of that statute that requires a claim to be itemized. Had the cities desired an itemized statement when the case was presented in the trial court in order to enable it to properly prepare its defense, it could have asked the court for such an order, and the court, in its discretion, copld have allowed it. Nothing of that sort was done.
The cities contend that the court erred in overruling their demurrer to the evidence of the county and in overruling motions of the cities for judgment on the evidence. The argument to sustain this contention is that the election expenses were paid out of the county general fund, that the taxpayers of the cities paid part of that fund and to tax them again to pay these claims would in effect be taxing them twice for the same thing. Here again the answer is that the cash-basis law provides for and requires a balancing of the books of the county and the cities. In the past the county has paid bills that should have been paid by the cities. The cities are indebted to the county for this amount. This fact is not denied by the cities. As far as the equities of the situation are concerned the taxpayers of the cities will be benefited by the amount that is paid to the general fund of the county on account of these claims.
The cities contend that the court erred in sustaining objections to evidence offered by appellants and in refusing to admit competent and material evidence offered by the cities. The argument to sustain this contention is that the county is pressing these claims against the cities and not against the townships. If this were true it would be no defense to a claim of the county against the cities. The fact that a creditor presses a claim against one debtor and does not press it against another cannot be used by the debtor who is being sued as a defense to the claim against him.
The cities contend that the claims being pressed in the present case were barred because they should have been raised by the county in the claims that were brought by the cities for interest on delinquent taxes. The argument is that these suits constituted a bal ancing of accounts between the cities and the county and that such accounts having been finally adjudicated the doctrine of res adjudicata applies and the county’s claims cannot be made the subject of other litigation. The trouble with that argument is that the claims being pressed in these actions are on altogether different transactions from the claims pressed by the cities in the former action. They arise under a different set of facts and under different statutes. The county is proceeding in the manner provided by the cash-basis law.
The judgment of the trial court is therefore affirmed in both cases.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is from a ruling of the district court granting a new trial on account of newly discovered evidence. The ruling was made in a new and separate action under R. S. 60-3005, which provides for cases where the evidence for a new trial could not, with reasonable diligence, have been discovered before, hut is discovered after the term at which the decision was rendered and more than three days after the decision was made. The newly discovered evidence was that tending to show forgery, and the main contention under the assignments of error is whether or not reasonable diligence was shown in learning about or discovering such evidence.
There is no dispute as to an acceptable definition of reasonable diligence. It is generally defined as due diligence, or that diligence which ordinary or prudent persons would exercise under like or similar circumstances.
The original action was commenced by the American State Bank of Hill City, against Ed Richardson and his wife, Mollie Richardson, on May 31, 1930, to recover on a note for $3,000, dated October 13, 1927, given to the Zurich State Bank of Zurich, and assigned to the American State Bank of Hill City, claimed by the bank to have been signed by both Richardsons. Personal service was had on both husband and wife on May 31, 1930, and judgment by default was rendered against both of them on July 5, 1930.
This new action to obtain a new trial on account of newly discovered evidence was brought by Mollie Richardson against the American State Bank of Hill City, on October 6, 1930. The verified petition alleged in detail the recent discovery that the signature of Mollie Richardson to the note in question was not genuine, but a forgery, and it set forth the reasoiis for the delay in making such discovery and the efforts made by her to learn if it was genuine, both before and after the rendition of the judgment thereon. Her evidence oh the trial before the judge sustained generally the allegations of her petition, and showed in substance that when she was served with summons on May 31, 1930, she asked her husband what note this was, and he told her it was one he and she had made back in 1927 to the Zurich bank, at which bank they had both done business, and from which he, about that time, had frequently borrowed large sums of money. She said she remembered having signed several notes, both large and small, with her husband about that time and earlier, and trusted his word and statement that this was one of such and for that reason filed no answer and made no defense. After the rendition of the judgment on July 5, 1930, she had a conversation with the deputy sheriff about the judgment and went to see the former president of the Zurich bank, which had shortly before that time gone into the hands of a receiver, and he advised her to see the receiver, who might be able to give her the information she wanted about the note. She saw the receiver and he told her he did not have the note, that it had been assigned to the American State Bank of Hill City, but he showed her a copy of it and they talked about whether the signature was genuine or not. She soon after-wards went to see the clerk of the district court, in which the judgment was rendered, and asked to see the note, and he replied he did not have it. Later, on September 8, 1930, the note in question was left with the clerk, and two days later she called and determined from an observation of the note that her signature was not genuine. On September 30, 1930, she verified her petition in the new action for a new trial on the ground of newly discovered evidence, and it was filed October 6,1930.
The American bank answered, and in due time the trial court heard the evidence and granted a new trial, holding she had exercised reasonable diligence in discovering the new evidence, and later in the original case, both parties being represented, the court set aside the judgment theretofore rendered against her and rendered judgment in that case in her favor for costs, from which rulings the bank appeals.
Appellant cites the following Kansas cases on this proposition: Haughton v. Bilson, 90 Kan. 360, 133 Pac. 722; Terwilliger v. McCorkle, 108 Kan. 480, 196 Pac. 618; and Oswego Finance Co. v. Perkins, 125 Kan. 687, 266 Pac. 47, all affirming the decisions of the trial courts in overruling such or similar motions or petitions for new trial on account of alleged newly discovered evidence, which the moving parties claimed they could not with reasonable diligence have discovered before the trial or judgment. The first case above cited concerned a survey of land and the ascertaining of the center of the section. The second was one where the party asking for a new trial on account of newly discovered evidence had known fully about a certain witness and his knowledge of the question in issue, but had entirely forgotten about it. The third case was where the landowner, being a nonresident, was served by publication notice in a foreclosure case.
Appellant insists that the wife in this case had at her command all the time the right to avail herself of the provisions of R. S. 60-2850 by making a demand upon the adverse party for an inspection of the note in its possession. Whether that privilege was such as an ordinary and prudent person would probably think of and do under similar circumstances is a matter which the trial court could properly consider in determining the question of whether or not she exercised reasonable diligence in the discovery that her signature to the note had been forged. It has generally been held that such matters as tend to show reasonable diligence or otherwise are largely in the discretion of the trial court, and a court of review seldom reverses a ruling granting a new trial where the trial court is persuaded reasonable diligence has been exercised, if there is sufficient evidence to support such conclusion and there has not been an abuse of judicial discretion.
In City of Sedan v. Church, 29 Kan. 190, it was said:
“Trial courts are invested with a very large and extended discretion in the grafting of new trials; and new trials ought to be granted whenever, in the opinion of the trial court, the party asldng for the new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice . . .” (Syl. ¶ 2.)
In Wilson v. Jones, 107 Kan. 365, 191 Pac. 580, it was said on page 367:
“District courts are usually quite liberal in vacating judgments taken in the absence of a party who is in default, with or without imposition of terms as circumstances may suggest, because the result is simply a full investigation of the controversy on its merits; but they are not obliged to ignore gross negligence, and they are entitled to be assured that justice will be best sub-served by another trial.”
The following are appropriate general statements in the text of Corpus Juris on this subject:
“Default judgments will be opened or vacated more readily than a judgment rendered after defendant has had his day in court and been heard in his own behalf, or one entered upon a confession of judgment. A real doubt should be resolved in favor of the application, as the law favors a disposition of cases on the merits. As a general rule, a default judgment should be opened where it was not caused by willfulness or neglect, and where a reasonable excuse and a meritorious defense are shown, and where plaintiff will not be unduly prejudiced by delay or otherwise.” (34 C. J. 429.)
“Even if the motion for a new trial does not show sufficient diligence, the ends of justice may require granting a new trial.” (46 C. J. 254.)
We agree with the trial court that the diligence exercised by the appellee under all the facts and circumstances was reasonable.
The judgment is affirmed.
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