text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
The opinion of the court was delivered by
Smith, J.:
This is an action to enjoin the defendant from operating taxicabs in the city of Wichita without complying with the provisions of certain ordinances of the city. Judgment was for plaintiff. Defendant appeals.
The plaintiff is the regular street-car company of the city. The petition was filed and the present action begun on July 24, 1933. In brief the petition recites the franchise of the plaintiff to operate street cars and buses, the value of its property, the unwarranted and illegal interference by the defendant with its business and intending passengers, the violations of the ordinances above referred to, and the prayer is for an injunction to restrain the defendant from operating in violation of the city ordinances and from causing loss and damage to the plaintiff. The ordinances in question are 11-252, 11-254 and 11-158. The two former ordinances are held to be valid in the case of Peoples Taxicab Co. v. City of Wichita, post, p. 129, 34 P. 2d 545, this day decided. Number 11-254 prohibits taxicabs from soliciting or receiving passengers on certain streets where buses and street cars are operated. When the application for a temporary injunction was heard the defendant was enjoined from—
“(a) Soliciting or receiving passengers on streets where the buses and street cars were operated, except that passengers might be received where prior arrangements had been made, and
“(b) ‘Cruising’ as defined by ordinance 11-180.”
When the case came on to be heard upon its merits a permanent injunction was granted enjoining the defendant from—
“(a) Operating taxicabs without a license, or
“(b) Without bond or insurance;
“(c) Soliciting passengers on streets where buses or street cars were operated; or
“(d) Receiving passengers on such streets except where prior arrangement was made therefor; and
“(e) From ‘cruising.’”
The first contention of defendant is that on account of the pend-ency of the case of Peoples Taxicab Co. v. City of Wichita, in which case the enforcement of the ordinance in question was temporarily enjoined, the plaintiff had no right to maintain this action. As to this argument that case has been consolidated with this case for consideration in this court and will be considered on its merits.
Defendant next contends that if the ordinances should be held valid then plaintiff has an adequate remedy at law, because, had the taxicab company violated the provisions of the ordinances, it would have been subject to arrest and punishment. The rule is that where property rights are involved and the injured party does not stand in the same relationship to the enforcement of the ordinance as the general public, the mere fact that the injunction has the effect of enforcing penal provisions is no objection to the use of equity.
In this case the petition alleged operation of plaintiff company, its investment and heavy expense of operation and—
“That the defendant company, together with other and separate companies and individuals who are made parties to separate suits filed in this court at the time of the filing of this petition, have recently become engaged in operating what is commonly known as ‘10$ taxicabs’ in competition with the transportation system of the plaintiff and depriving it of the business which it has builded over a period of years, destroying the earning capacity of the plaintiff, the value of its property and good will, and impairing the ability of the company to pay taxes, wages and employees and other operating expenses. That as a result thereof, the plaintiff has been and is required to operate its buses and street cars at a loss, which losses, due to the illegal and unlawful acts of the defendant, as hereinafter set forth, have been increased to the point where the plaintiff is in imminent danger of insolvency or bankruptcy which is liable to cause the total destruction of the property and property rights of the plaintiff and the abandonment of its system of transportation.”
And—
“That the failure and refusal of the defendant to comply with the terms and provisions of the ordinances as set forth in the preceding two paragraphs enables the defendant to unfairly compete with the plaintiff herein, which is compelled to pay and has paid taxes, license fees and carrier’s fees for the operation of its vehicles, and, whereas the defendant has been, and is operating taxicabs without paying any license or occupation fee therefor or making any payment for a bond or insurance coverage on its taxicabs.”
Defendant met this with a general denial and the following allegation:
“Defendant denies that it is in direct competition with the plaintiff herein, and alleges that it renders a different service than is rendered by the plaintiff; that it charges a higher rate than is charged by the plaintiff for the transportation of passengers; that it is able to transport passengers to and from portions of the city of Wichita to which point or points the said plaintiff’s transportation facilities do not go; that the transportation facilities of plaintiff are wholly inadequate to meet the conditions and needs of the citizens of Wichita, Kan., and that said plaintiff is unable to render adequate transportation facilities. That the said plaintiff does not render any service from midnight to six o’clock a. m. of each day and that said defendant has day and night service.”
With the pleadings thus framed the judgment in favor of plaintiff carried with it a finding of fact that would support the judgment. Since that is the case the rule announced in the case of Featherstone v. Independent Service Station Ass’n (Tex.), 10 S. W. 2d 124, is helpful. There the court said:
“When and under what circumstances will a court of equity exercise authority to prevent the commission of crimes? The general rule is that, except as conferred by statute, courts of equity have no criminal jurisdiction, and acts or omissions will not be enjoined merely on the ground that they constitute violations of penal statutes. Notwithstanding this is the general rule, it is also well settled that, when necessary to protect civil or property rights, equity will interfere, and the fact that the commission of a statutory offense must be enjoined, as an incident to the giving of proper relief, will not deprive the court of its jurisdiction in this respect . . . This doctrine was approved by the supreme court of the United States in In re Debs, 158 U. S. 593, 39 L. Ed. 1106.” (p. 127.)
That was a case where the plaintiff had alleged that a lottery-scheme employed by a competitor was attracting trade and business from plaintiff to his injury.
In the case of New York, N. H. & H. R. Co. v. Deister, 253 Mass. 178, the plaintiff railway company, operating between Boston and Brockton under a franchise, brought action to enjoin the operation of buses between those points, the bus companies having no license to operate. It was proved in that case that the competition of the bus companies caused a substantial loss of passenger revenue to the plaintiff. It was there held:
“The agreed facts disclose irreparable injury to the plaintiff in the loss of revenue derived from patronage diverted by the defendant through his illegal conduct in operating buses without the license required by law. The plaintiff may maintain its suit for an injunction. It has a- franchise right to transport passengers between the points named. That right carries with it heavy obligations to the public. Although that franchise right is not exclusive against other grants authorized by the legislature, it is exclusive against one conducting competition, as is the defendant, without a franchise or license and contrary to law. . . . The operation by the defendant of the buses on the highway contrary to the precise prohibition of G. L., c. 159, sec. 45, renders the vehicles outlaws and constitutes a nuisance. . . .
“The remedy afforded by G. L., c. 159, sec. 40, enabling the department of public utilities through the attorney-general to invoke relief by mandamus or injunction, is for the benefit of the public. It does not prevent private remedy where the nature of the wrong is such as to warrant that course.” (pp. 181, 182.)
See, also, Boston & Maine Railroad v. Cate, 254 Mass. 248. There the court said:
“The plaintiff, being a common carrier of passengers under franchises from the commonwealth and suffering substantial financial injury from the unlawful competition of the defendant, has a right to maintain a suit in equity to restrain that conduct of the defendant in violation of the statute. This is the necessary result and a precise point of the decision in New York, New Haven & Hartford Railroad v. Deister, 253 Mass. 178. The case at bar is completely covered by that authority on this point.” (p. 252.)
To the same effect is Long’s Bag. Trans. Co. v. Burford, 144 Va. 339. See, also, United Traction Co. v. Smith, 187 N. Y. Supp. 377; Adam v. New York Trust Co., 37 F. 2d 827; Denver Tramway Corporation v. People’s Cab Co., 1 F. Supp. 449. Some language used in the above opinion is helpful. It is as follows:
“The court cannot protect complainant from lawful competition, nor can the latter complain of new methods of transportation that have a greater appeal to the traveling public. The extent to which taxicabs and street cars come into direct competition is difficult to determine. Street cars and buses run upon fixed routes, while taxicabs are designed for individual transportation, their charges customarily being measured by the distance traveled, as was usual with the old horse-drawn vehicles that they have succeeded. Primarily each occupies a separate field and appeals to a different class of patrons. The aggregate of the transpoi'tation sendees x-equix-ed and usual in a modem city includes both. To the extent that they complement each other, neither can complain in law of loss of business due to resulting competition. Nor is this changed by the fact that the taxicab company offers to do business on a rate schedule below actual cost of the service. . . . My present view is that the complainant may not complain of taxicab competition, defining the same as that of ‘a motor-driven conveyance that performs a service similar to the cab or hackney cax-riage, held for hire at designated places at a fare proportioned to the length of the trips of the several passengers, who are taken to be carried to destinations without regard to any route adopted, or uniformly conformed to by the operator,’ but is entitled to protection against the operations of the defendant, in so far as its cabs regularly traverse the public streets between certain definite points or termini, seek patronage along the routes of complainant’s cars, or engage in systematic cruising, so called. Such an order will protect the Tramway company from all special damages resulting fi'om direct competition.” (pp. 451, 452.)
Defendant cites and relies on Telephone Co. v. Telephone Association, 94 Kan. 159, 146 Pac. 324. In that case the company that sought the injunction was a telephone company which had a certificate of convenience and necessity to operate. The association was operating in the same territory without such a certificate. The telephone company alleged that it was serving the public adequately and that if the new company were permitted to operate, ruinous competition would result. This court held that the telephone com pany did not have sufficient special interest in the matter that was not shared in by the public to entitle it to maintain the action. The case is not in point here.
Under the issues made by the pleadings and found in effect by the judgment of the court we have a case presented here where the plaintiff is in danger of suffering real loss of business, which, if allowed to .continue, will lead it eventually into bankruptcy. A discontinuance of the service furnished by a responsible transportation company which might result from this would be detrimental to the best interests of the inhabitants of the city, as well as ruinous to the company. In the Telephone company case the court said:
“A private plaintiff who is likely to be injured in some special manner, or whose situation is peculiarly affected by the exercise of usurped power, could maintain the action, but no such case is presented here.” (p. 163.)
We hold that this case comes under that exception rather than under the general rule announced in the opinion. The city has grasped the gravity of this situation and has acted to prevent it by the enactment of the ordinances in question. Under such circumstances we hold that the plaintiff had a right to bring this action in equity rather than suffer further losses and damage while waiting for the ordinances to be enforced by means of prosecutions for its violation.
The other questions raised in the brief of defendant are settled in favor of the contentions of plaintiff by the conclusion reached in the case of Peoples Taxicab Co. v. City of Wichita, supra.
The judgment of the trial court is therefore affirmed. | [
-16,
-4,
-12,
-50,
94,
64,
24,
-102,
17,
-111,
-89,
19,
-83,
-55,
6,
41,
-9,
125,
-16,
75,
-9,
-78,
69,
34,
-46,
-45,
-37,
-51,
-66,
79,
-25,
-60,
110,
32,
-54,
-99,
6,
-53,
64,
-36,
-50,
33,
9,
120,
-39,
11,
-76,
122,
83,
7,
113,
29,
-13,
44,
24,
66,
-84,
44,
91,
-83,
-13,
-8,
-19,
-43,
-50,
6,
-95,
36,
-70,
-91,
84,
9,
-112,
49,
56,
104,
115,
-94,
-126,
116,
109,
-101,
-124,
38,
98,
1,
1,
-17,
-104,
-116,
14,
-6,
15,
-122,
-76,
120,
32,
0,
-98,
-103,
117,
22,
3,
-2,
-34,
21,
27,
104,
11,
-50,
-44,
-79,
-57,
-16,
-126,
5,
-21,
-61,
16,
117,
-24,
-2,
94,
-59,
19,
-97,
-42,
-100
]
|
The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin enforcement against plaintiff of an ordinance of the city of Topeka relating to the keeping of cats. A demurrer to the petition was sustained, and plaintiff appeals. A copy of the ordinance is appended hereto.
Defendants are the chief of police and the police judge of the city. The petition alleged plaintiff kept more than five cats more than six months old, and, at the argument, it was stated the number was eight. The petition alleged that, unless enforcement of the ordinance against plaintiff was enjoined, he would be arrested and fined, and the demurrer admitted these facts.
The petition alleged plaintiff’s cats are kept at his residence, consisting of a two-story, nine-room dwelling house, situated on three lots at the corner of Eleventh and Harrison streets, a residential portion of the city of Topeka. There is a basement under the entire house, which contains the laundry and four additional rooms. All of plaintiff’s cats were born in the residence described, were never permitted to run at large, and had not been at any time outside the residence. The cats were reared as pets, were well trained, and neither interfere with nor annoy any person living within 250 feet of plaintiff’s residence.
There is no question the city has power to pass ordinances denouncing conditions which interfere with the general health, comfort and security, and consequently may regulate the keeping of animals within the city. The keeping of animals may even be forbidden when the circumstances are such that the keeping constitutes a nuisance, but a city may not proscribe as a nuisance a condition which is not a nuisance in fact.
Not so long ago city dwellers kept driving horses. The alleys of residential districts were lined with barns. Especially in certain kinds of weather, characteristic odors would be quite pervading. Conditions could be regulated, but to forbid the keeping of a horse would have been- unthinkable. One dog may be a nuisance in a neighborhood, but an ordinance forbidding the keeping of any dog would now be unthinkable. Wully killed sheep; the gray dog had no such atavistic lapses. The result is, ordinances must be prepared with discrimination, having regard to the nature of the animal and the purpose, manner and consequences of its keeping. Unless this be done, it may be discovered property rights have been invaded.
While at common law the concession was made that a dog was property, Blackstone said it was a “base property,” and that pretty effectively classified dogs in the law for a long time.
In the case of Harrington v. Miles, 11 Kan. 480, decided in 1873, the subject of property in dogs was considered in the light of the statutes of the state, and of the common law. In the opinion it was said:
“It seems impossible in the light of these legislative and judicial expressions to decide that a dog is not property, nor a thing of value. ... We are constrained therefore to hold that a dog is property; that the stealing of one is larceny; and that words charging the stealing of a dog are actionable per se.” (p. 484.)
In the opinion in the case of City of Independence v. Trouvalle, 15 Kan. 70, decided in 1875, it was said, however, property in dogs was of such a low character it was hardly considered property at all. In the case of State, ex rel., v. City of Topeka, 36 Kan. 76, 12 Pac. 310, decided in 1886, it was conceded the dog was the subject of property, but it was stated again the property was not of high character. Blackstone was cited, and it was said dogs seldom have market value.
At the present time, the breeding of what may be called standard breeds of dogs is engaged in as a gainful occupation by many persons, and prices are quoted in their advertisements. The same is true of cats. Good quality kittens of favorite breeds, without pedigree, may be had for five dollars each; with pedigree, ten to twenty-five dollars.
The subject of property in dogs is treated'in 3 C. J. 16 and pages •following, where decisions are collated. The text concludes with the statement that the drift of modern decisions and of legislation is toward the rule that the dog is as much the subject of absolute property right as are other domestic animals.
It 'was doubtless fortunate for the cat that, while the judiciary were “kickin’ the dog around,” the cat kept out of court. In “The Fireside Sphinx,” by Agnes Repplier, appears the following:
“In the year of 1865 a juge de paix of Fontainebleau, from whom several householders had demanded legal protection for their cats, pronounced this admirable judgment:
“ ‘That the domestic cat is not a thing of naught, but the property of its master, and as such, entitled to the shelter of the law; . . .”’ (p. 179.)
In the case of Thurston v. Carter, 112 Me. 361 (1914), plaintiff sued defendant for damages for killing plaintiff’s foxhound. Defendant justified on the ground the dog was chasing and worrying defendant’s cat, on defendant’s land. A verdict was directed for defendant, and plaintiff excepted. On appeal it was held a cat is a domestic animal, the subject of absolute property, and the exception was overruled.
The story of the cat, authentic and legendary, has been told by experts, scientific, historical, and literary, and will not be repeated here. “The Fireside Sphinx” just referred to is a fascinating book. Helen M. Winslow’s book, “Concerning Cats,” is pleasing and informative. Carl Van Vechten’s book, “The Tiger in the House” (1920), is a monument to the cat speqies. A short' account of the cat as a marketable animal, o.f breeds of cats, of breeding-associations, cat societies and cat shows, and of the cat in literature and art, by Nelson Antrim Crawford, of Topeka, Kan., appears in “The American Mercury,” volume 29, page 327 (1933).
One period of cat history must be noted.
In the witches’ cauldron scene in “Macbeth,” the first signal that it was time the witches should begin their obscene rite was given by a cat: “Thrice the brinded cat hath mew’d.”
From deification in Egypt, the cat fell in the middle ages to the lowest depths of superstitious disrepute. The cat was the consort and agent of witches, and sometimes Satan himself took the form of a cat. Accounts of the cat’s weird wickedness are found in the folklore of all the countries of Europe. That was natural enough when belief in association and compact with the Prince of the Power of Darkness was part of the common culture. But the astounding thing is that superstitions regarding the cat and its potency for evil persist and govern human conduct to this day. Woe to the cat which must be dealt with by some court or legislative body, with this survival lurking in the back of its mind.
In the case of Sentell v. New Orleans &c. Railroad Co., 166 U. S. 698, decided in 1897, the court said the fact dogs are without the protection of the criminal laws shows that “property in dogs is of an imperfect or qualified nature.” (p. 701.) In the course of the opinion the court said that dogs are not good for food, they cannot be used as draft animals except to a limited extent, they are subject to attacks of madness (hydrophobia being specified), and they have serious infirmities of temper which make them public nuisances, without right to life. That put dogs nicely in the same class with human beings, and so was disparaging to the dog to a certain extent. He should not be classified, on the score of depravity; with our Barrows and Dillingers and Floyds. The court said, however, dogs should be classified with cats and monkeys and similar animals “kept for pleasure, curiosity, or caprice.” (p. 701.)
The framers of the constitution of this state had gotten away from the dour notion that mundane happiness is sinful, and the first section of the bill of rights reads:
“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
The court interprets that condition to mental and moral health which is called happiness, to include pleasure; and the court cannot subscribe to the view that things which, whether animate or inanimate, minister merely to happiness in the home, may not have full protection of the law as property. There may be in a city a superfluity of curs of low degree and alley cats, but there are others. Dogs may not be considered as fundamentally just dogs, and cats as just cats, and the legislation which fails to discriminate may be unsound.
It is conceded the cat has valuable uses: to catch mice and rats in the home, in storage buildings, in manufacturing plants, in post offices and other public buildings, about wharves, on ships, and elsewhere. The cat may have other uses.
Charles E. Bullard is a celebrated photographer of cats. His copyrighted cat photographs are sold in great numbers every year in all large cities throughout the United States. His work was done in his home, and he kept quite a menagerie of cats, trained to pose. Two of the best were “Punch” and “Judy.” They posed for the famous photograph of an old cat, wearing spectacles, taking a photograph of a kitten. The kitten sat in a chair, looking upward quite angelically, while the old cat looked intently around one side of the camera, with her paw extended as if on the shutter release. What nonsense it would be to declare that Bullard had only a base, qualified, imperfect property in those cats, joint creators with him of his fame and his comfortable income.
Progress of the law consists largely in recognition as worthy of legal protection, of interests not previously protected at all and, aside from the uses referred to, the worth of the cat as a contributor to the felicity of the home is alone sufficient to require that it be regarded as property of the owner in the full sense of the term property.
The enjoyment of private property is, of course, subject to regulation in the interest of the general welfare, but regulation must be -reasonable, and must jbe according to due process of law.
The legislature has authorized cities of the first class to pass ordinances to regulate or prevent the running at large of certain animals, including dogs and cats. The ordinance under consideration does not relate to. running at large. It relates to keeping cats within a measured distance from another’s dwelling. Plaintiff contends the authority of the city is limited to regulating or prohibiting running at large. The court is of the opinion keeping of animals may result in a nuisance, and the legislature has granted the city power to suppress nuisances.
The city has conclusively determined by the ordinance that the keeping of more than five cats is a nuisance. The facts alleged in the petition and admitted by the demurrer negative nuisance, but the facts could not be proved as a defense to a prosecution for violation of the ordinance. Regardless of the facts, plaintiff is subject to heavy fine and to imprisonment unless he pays the fine.
What makes a cat a nuisance? The city resorts to the analogy of the dog — noise, stench, and lack of privacy of conduct in the mating season. It is doubtful if, the latter trait may be attributed to the nocturnal cat, but the others may.
In framing, the ordinance, the city applied the principle of classification by number: five cats, no nuisance; six cats, nuisance. Surely none but the most sensitive ear and nose could tell the difference, and the difference may not be determined on the basis of what may offend the fastidious. So the problem of nuisance or no nuisance was solved as if according to the following mathematical formula: X = maximum amount of nuisance ordinary folks must endure. To find the value of X, multiply the quantity of discomfort one cat produces by five. This computation gives the cat the benefit of the doubt because the increment produced by associate relation is disregarded.
Number is often a proper basis of classification. Cities are classified in that way, not because a city having a population of 19,990 should be governed differently from a city having a population of 20,010, but because a large city should have powers not possessed by a small city, and a line must be drawn. We have no such case here. There is no sound basis, independently of actual conditions and consequences of keeping, for making a discrimination between keepers, and the ordinance is void.
The ordinance is void for another reason: The keeper of a cat hospital is expressly exempt without regard to number kept, and without regard to conditions. The temporary keeping of a cat for observation or treatment has nothing to do with total number which may be continually kept.
The judgment of the district court is reversed, and the cause is remanded with direction to grant the injunction prayed for.
ORDINANCE NO. 6326
An Ordinance relating to and regulating the keeping of dogs and cats in the city of Topeka, and providing penalties for the violation of this ordinance.
Be it ordained by the Board of Commissioners of the city of Topeka.
Section 1. That it shall be unlawful for any person, firm or corporation to keep more than five dogs or five cats over the age of six months each, in any place in said city of Topeka within two hundred and fifty feet of any dwelling house in use or occupied by human beings other than a dwelling house be longing to the owner of such dogs or cats: Provided, however, That the ordinance shall not apply to dog or cat hospitals where dogs or cats are temporarily detained for observation or treatment.
Sec. 2. That any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty 'of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than $25 nor more than $50 for each offense; each and every day’s violation of this provision of this ordinance shall be deemed a separate and distinct offense.
Sec. 3. That this ordinance shall take effect and be in force from and after the passage, approval, and publication in the official city paper.
Passed by the board of commissioners July 18, 1933.
Approved July 18, 1933.
Published in the Topeka State Journal July 19, 1933. | [
-15,
102,
-43,
-18,
30,
97,
56,
-4,
97,
-119,
-9,
119,
111,
-55,
5,
33,
-38,
-19,
85,
97,
-59,
-78,
-57,
-128,
-110,
-13,
-63,
-43,
-71,
79,
-12,
-18,
42,
113,
-54,
-43,
-122,
-61,
85,
92,
-114,
39,
9,
-59,
-13,
66,
56,
123,
18,
78,
49,
15,
-25,
46,
24,
-61,
104,
124,
-37,
-83,
-16,
-7,
-69,
21,
124,
14,
-110,
114,
-100,
-89,
80,
110,
-111,
49,
0,
-24,
115,
-92,
-118,
116,
13,
-39,
12,
-90,
98,
33,
73,
-57,
-96,
-120,
78,
-39,
-85,
-90,
-80,
89,
42,
0,
-42,
-99,
116,
18,
7,
122,
-25,
-107,
-99,
-20,
14,
-98,
-106,
-69,
-49,
32,
-128,
65,
-21,
-93,
33,
113,
-117,
-28,
94,
71,
18,
-101,
-98,
-36
]
|
The opinion of the court was delivered by
Dawson, J.:
The state brings this proceeding in quo warranto to determine the validity of a recent act of the legislature, and challenges the defendants’ exercise of official powers under its terms. The statute reads:
“An Act relating to criminal procedure, and providing for grand juries in certain counties and the prosecution of public offenses by special prosecutors.
“Section 1. In counties having a population of more than one hundred thirty thousand and an assessed valuation of less than 1160,000,000 a majority of the judges of the district court shall select and summon a grand jury to attend, during a part or all of the first term of said court, which commences after January 1 of such courts each year. Such grand juries shall have general inquisitorial power to inspect the records, books and documents of public officials and to subject such officials, their clerks and employees to examination in relation to their official transactions, records, books and documents, and may appoint accountants to assist them in the investigation of the transactions, records, books and documents of public officers for the purpose of ascertaining whether or not there has been any official misconduct in any public office, and shall have and exercise all of the powers and duties of grand juries under and in accordance with the laws of this state. Expense incurred by the employment of accountants shall be paid by the county.
“Sec. 2. A majority of the judges of the district court in such counties shall appoint a special prosecutor to represent the state before such grand juries and to prosecute indictments found by them. Such special prosecutor shall have, as prosecuting officer, full control over all cases or matters for the prosecution of which he is appointed, and have and exercise the same powers and duties as county attorneys as to such grand juries and in the prosecution of persons indicted by such juries. The county shall be liable to such special prosecutor for reasonable compensation for his services. Compensation for services rendered by such special prosecutors, in prosecuting on indictments found by such grand juries, shall be fixed by the court and taxed as a part of the costs in such cases, and in case of conviction may be taxed in whole or in part against the defendant.” (Laws 1933, ch. 220, effective March 14, 1933.)
The state’s relator raises various objections to this statute, chief of which are these:
1. That the act is special and pertains only to Wyandotte county and could apply to no other; that a general act could readily have been formulated to deal with the subject matter; and in consequence the act violates section 17 of article II of the state constitution.
2. .That the act which creates the office of special prosecutor and provides that compensation for his services in prosecuting on indictments shall be fixed by the court and taxed as costs in cases where convictions result from his activities is a grave departure from the elementary requirement that criminal law and criminal procedure should have uniform operation throughout the state, and that it contemplates a denial of the constitutional guaranty of equal protection of the law to persons prosecuted and convicted under its terms.
Various other objections, some merely argumentative, are urged against the act, but it may be unnecessary to consider them.
Before considering the alleged infirmities of the statute we take space to notice and to disapprove a contention made on behalf of defendants — that the county attorney had no authority to bring this action. We must hold to the contrary. In governmental theory and by express statute the county attorney is the state’s law officer and official relator in his county in respect to all matters of public concern where the state is or should be a participant in litigation. That the state has another law officer, the attorney-general, detracts nothing from what we have just said.
R. S. 19-702 provides:
“It shall be the duty of the county attorney to appear in the several courts of their respective counties and prosecute or defend on behalf of the people all suits, applications or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested.”
This statute, in effect, virtually clothes this officer with the powers of an attorney-general within his county, and this is nevertheless true although other statutes may create other officers, county counselors, city attorneys, assistant attorneys-general and the like, who may likewise prosecute or defend cases, civil or criminal, on proper occasion.
In State, ex rel., v. Doane, 98 Kan. 435, 440-441, 158 Pac. 38, wher^ the constitutionality of a statute was challenged, it was said:
“Where the constitutionality of a statute is in doubt the state’s law officer, its attorney-general or county attorney, may exercise his best judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (The State v. Johnson, 61 Kan. 803, 60 Pac. 1068); by mandamus to compel obedience to its terms (The State v. Dolley, 82 Kan. 533, 108 Pac. 845); or by injunction to restrain proceedings under its questionable provisions (The State, ex rel., v. City of Neodesha, 3 Kan. App. 319, 45 Pac. 122).”
See, also, State, ex rel., v. City of Coffeyville, 127 Kan. 663, 274 Pac. 258; and multiplied citations to the same effect will be found throughout our official reports.
Touching the first objection to the statute — that it can only apply to Wyandotte county because of the artificiality of its terms— a county having more than 130,000 population and an assessed valuation of less than $160,000,000, and the relator’s claim that it cannot apply to any other county than Wyandotte, the state board of agriculture and the state tax commission have supplied the court with pertinent and instructive statistics for 1934 touching the three leading counties of this state, viz.:
Assessed Counties. Population. valuation. Area (in acres)
1. Wyandotte ............ 141,449 $118,105,496 99,977
2. Sedgwick ............. 127,582 179,951,008 644,869
3. Shawnee .............. 84,232 114,637,235 354,433
These figures make it rather obvious, we think, that it cannot be dogmatically declared that the statute can never apply to another county than Wyandotte. A slight increase in the population in Sedgwick county, and a ten per cent shrinkage in its assessed valuation — which might readily happen if or when its recent oil development should subside — would bring that county squarely within the terms of the statute. And it can hardly be predicted with confidence that the lapse of years will not bring Shawnee county into the same category, not to mention other important counties whose growth in recent years has been noticeably continuous.
Furthermore, unless we are to apply constitutional tests to statutes dealing with criminal law and criminal procedure more rigorously than we have been wont to do in respect to acts of-the legislature dealing with miscellaneous civil matters, the relator’s first objection to the challenged act is foreclosed by repeated decisions of this court. Thus, in State, ex rel., v. French, 130 Kan. 464, 286 Pac. 204, a bond statute was held constitutional which applied only to first-class cities in counties having a population of more than 115,000 and an assessed valuation of less than $190,000,000. According to the then current official statistics, the act could not apply to any city in any county except Wyandotte. The opinion cited earlier cases to the same effect. In Kansas City S. Rly. Co. v. Cherokee County Comm’rs, 138 Kan. 534, 537, 27 P. 2d 220, where the constitutionality of a taxation statute was drawn in question, it was said:
“Another objection to the tax as authorized by the proviso of R. S. 79-1911 is that it creates an arbitrary and unreasonable classification. Yet nothing is more common than the classification of counties upon population or upon assessed valuation or upon both of these factual bases. (Railway Co. v. Cowley County, 97 Kan. 155, 155 Pac. 18.) . . . The legislature has a broad discretion touching classification of counties and municipalities for purposes of taxation and prescribing the bases upon which such classifications can be made. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234; State, ex rel., v. Kansas City, 125 Kan. 88, 262 Pac. 1032; Baird v. City of Wichita, 128 Kan. 100, 276 Pac. 77.)”
Another observation touching special legislation may be pertinent here. The constitution does not positively forbid special legislation. The duty has been imposed on the courts to determine if a special act is necessary or whether the legislative purpose could be accomplished by a general act. (Const. art. 2, § 17.) And while this court has no disposition to suggest methods by which this constitutional inhibition might be circumvented, we would certainly not look less tolerantly on a fair and candid special enactment than on the characteristic rubbish with which .we have to deal when powers and duties are conferred upon and restricted to governmental agencies under classifications which are both arbitrary and ridiculous. (See State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102.) A county is a governmental agency and not a corporation as is a city, a railroad, or a private corporate entity, so that the conferring of governmental powers upon it does not fall under the ban of section 1 of article 12 of the constitution. (State, ex rel., v. Comm’rs of Pawnee, 12 Kan. 426, 439.) If the legislature should discover need for more governmental machinery in a county like Wyandotte, with its great density of population (over six times the density of Sedgwick) and its proximity to the still greater congested area just across the state line in Missouri, it would not be easy for the courts to hold that special legislation to accomplish that purpose could not be justified on such a basis. In Harling v. Wyandotte County, 110 Kan. 542, 204 Pac. 763, where the validity of an act authorizing the construction of a courthouse in certain counties was under scrutiny, this court did not expressly say that the act was special, yet the opinion throughout dealt with the act as if it only concerned Wyandotte county because of the peculiar governmental problems arising there — in what then was and still is the most populous and highly congested metropolitan area in this state. Under the reasoning of that opinion it is apparent that if the enactment had simply directed the board of county commissioners of Wyandotte -county to build a courthouse adequate to the needs of carrying on the local government it would have withstood the constitutional objections leveled against it.
The court holds that the statute is not subject to constitutional objection as special legislation.
The second objection to the statute is more serious. It contemplates that compensation for the services rendered by the special prosecutors shall be fixed by the court and taxed as part of the costs in the cases prosecuted by them, and where such prosecutions are successful such costs may be taxed in whole or in part against the convicted defendants.
It is quite obvious that this provision not only mars the uniformity of our criminal procedure, but it also creates a material difference in the substantive law of crimes and punishments in Wyandotte county (and such other counties as may hereafter fall into its class) from that which prevails throughout the state at large. This point is so well developed in the brief of counsel for the state that we quote therefrom:
“If a township officer violates a certain law in Shawnee county, and is unfaithful to his duties, and a grand jury is impaneled in Topeka and he is indicted, and after a trial lasting five days, convicted, the punishment would be as follows:
Maximum fine .......................................... $500
Court costs.............................................. 25
Total ................................................. $525
But if a township officer in Wyandotte county commits the same offense and is indicted under this new grand-jury law, notice the penalty:
Maximum fine .......................................... $500
Court costs ............................................. 25
Fees, special prosecutor five days at $100 per day [estimated] ........................................... 500
Total ..............................................$1,025
thereby doubling the penalty.
“Let us make additional comparison. The general grand-jury law applies to the entire state of Kansas. A grand jury may be impaneled under that) law in Wyandotte-.oounty, independent and in addition to the mandatory grand-jury law' enacted by the legislature of 1933. Suppose that a grand jury is by petition under the general law called for the December term of court and a township officer is indicted.
“In March we are compelled to have a grand jury under this new law. And suppose that another township officer is indicted for exactly the same offense as in the case of the December grand jury.
“Suppose these cases come on for trial the following April. The man indicted in December is tried by the county attorney, the case lasting five days, and upon conviction he is fined as follows:
Maximum fine .......................................... $500
Court costs............................•.................. 25
Total ................................................. $525
“Suppose the week following his conviction the officer indicted ' at the March term comes on for trial, and he is tried by a special prosecutor, and at the end of five days there is a conviction. His sentence would be as follows:
Maximum fine .......................................... $500
Court costs ............................................. 25
Fees of special prosecutor, five days, at $100 per day [estimated] ........................................... 500
Total ..............................................$1,025
“These cases would come before the same trial judge for sentence at the same time. Must he in one case impose a penalty the total of which is $525 and in the other case the total being almost double? Is this equal aud just protection of life, liberty and property?”
The question of counsel quoted above must be answered in the negative. (12 C. J. 1187.) At whatever figure the special prosecutor fees might be fixed it would constitute an added penalty which could not be imposed on any similar convicted lawbreaker throughout the state. This added penalty would offend against sections 1 and 18 of the bill of rights and section 17 of article 2 of the state constitution; and would be a plain denial to convicted persons in Wyandotte county of the equal protection of the law afforded to all others in their situation within this state and guaranteed by the fourteenth amendment.
In view of this conclusion the resulting question intrudes: What effect does this manifest constitutional infirmity have upon the statute as a whole? Frequently the court can say with assurance that if the legislature had been apprised of the invalidity of some incidental feature of a legislative measure, it would have eliminated it and would have enacted the measure nevertheless. In such situations it becomes a judicial question to discover, if practicable, the paramount legislative intent. (6 R. C. L. 121-132.) Thus in C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453, it was said:
“While it is undoubtedly true that a statute may be constitutional in one part and unconstitutional in another, yet this rule obtains only where the two parts are separate and independent; and where they are so related that the latter is a condition of, a compensation for, or an inducement to, the former, or where it is obvious that the legislature, having respect to opposing rights and interests, would not have enacted one but for the other, then the uneonstitutionality of the latter avoids the entire statute.” (Syl. ¶ 1.)
In Hardy v. Kingman County, 65 Kan. 111, 68 Pac. 1078, where a statute, whose title and' main purpose were to fix the fees and salaries of county officers, prescribed a penalty of $10 per day for each day’s failure of any such officer to account for and pay into the county treasury a share of the fees collected, it was said:
“Assuming, but not deciding, that the provision contained in section 14 of chapter 131, Laws of 1897, imposing a penalty on the register of deeds of a money forfeiture of ten dollars per day to be paid to the county for each day’s failure by him to account for and pay into the treasury one-half the fees collected' by him, is unconstitutional, as being an attempt to divert the proceeds of fines for breaches of the penal laws from the common-school fund, such invalidity does not impair any other parts of the act, because the penal provision is not such an integral portion of the whole law as to be inseparable from it, and it may fall of itself without destroying the remainder.” (Syl. ¶ 2.)
In Telegraph Co. v. Austin, 67 Kan. 208, 72 Pac. 850, where parts of a legislative enactment were concededly unconstitutional, the question under consideration was their consequent effect upon the remainder of the statute. The court held:
“When parts of a legislative act have been declared unconstitutional and void- and the invalidity of the remaining parts is suggested, the general rule that all reasonable presumptions must be indulged in favor of the constitutionality of an act does not obtain. In such case it must be clear that it was the legislative intent that the remaining parts should stand as the law, independent of, and uncontrolled by, those provisions opposed to the constitution.” (Syl. ¶ 2.)
In State ex inf. v. Duncan, 265 Mo. 26, where part of a statute was held unconstitutional, the Missouri supreme court discussed the effect of such an infirmity thus:
“The books are full of it and counsel on both sides cite cases decided by this court, and text-writers, showing under what circumstances an unconstitutional and therefore dead provision may be pruned from the main stem of a law without impairing the stem itself. . . . Briefly, the touchstone whereby a correct conclusion is to be reached wili be found in correct answers to these questions: Is the entire law built up around the unconstitutional proviso? Are all the provisions of the enactment inseparable, and so interwoven and connected as to be interdependent? Does the statute attempt to accomplish instead of two objects (one valid, the other invalid) only one object and that one invalid? Does the proviso furnish the inducement, the consideration, the legislative motive for the whole act? Is it apparent that but for the proviso the forty-fourth general assembly would not have enacted the law? With the proviso cut away is there left only an incomplete enactment, one not symmetrically rounded out, and, therefore, incapable of enforcement? If those questions must be judicially answered yes, then the whole act falls to the ground with the proviso — if no, then the law, bad in part, may be good in part; for the courts in this behalf do not apply the ideas shadowed forth in the metaphors of Paul and Solomon, where the one speaks of a little leaven that leaveneth the whole lump, and the other comments on the all-pervading and unsavory effect of dead flies in the apothecary’s ointment.” (pp. 45, 46.)
See, also, eighty-page note to that case in Ann. Cas. 1916D, p. 9, et seq.
In 6 R. C. L. 192 it is said:
“Although the courts may eliminate parts of an act as unconstitutional and sustain and give effect to the remaining portions, it is sometimes difficult to apply this process to penal statutes, because they are always construed strictly. Hence, the courts incline towards treating a penal statute as void in its entirety whenever one section or clause is clearly unconstitutional.”
In recent years our legislature has sometimes included in its enactments an express declaration that if some part thereof shall be adjudged invalid it shall be judicially presumed that the legislature would have enacted the challenged statute without the unconstitutional matter, as in the industrial court act (Laws 1920, Sp. Sess. ch. 29, § 28) and in the insurance code (Laws 1927, ch. 231, § 2).
With the foregoing rules of statutory construction in view, it seems clear to a majority of this court that the scheme to have an annual session of a grand jury in Wyandotte county at which the regular prosecuting attorney would be supplanted by a special prosecutor, whose compensation should be paid in whole or in part by persons convicted pursuant to indictments found by such annual grand jury, was and is an inherent and vital part of the whole statute. What would be left of this statute if this scheme for paying the compensation of the special prosecutor should be judicially eliminated? Should we presume that some public-spirited lawyer would devote weeks of preliminary digging into the conjectured civil and criminal delinquencies of public officials and private persons in order to present them to this statutory grand jury without assured prospect of compensation? In his answer defendant Rails-back, the special prosecutor who has thus far served under this Statute, throws light on'this subject. He attaches a schedule of the indictments found — for embezzlement, forgery, false pretenses, exaction of illegal fees, official misconduct, bribery, and the like, and pleads:
“That he did not solicit said appointment, but, on the contrary, he was drafted by a majority of the judges of the district court, and requested to render said public service; that he was not appointed until after the grand jury had been impaneled, and thereafter devoted his time continuously until and after said grand jury adjourned, working as of necessity he was compelled to work, both day and night, in order properly and efficiently to represent the state before said grand jury; and at the conclusion of his said labors, for reasonable compensation for such services, made a request upon the judges of the district court, who referred answering defendant to the board of county commissioners, which board ultimately allowed and paid to answering defendant the total and aggregate sum of $1,980 for his services covering a period of ninety days, plus the services of defendant’s entire office and compelling him to suspend his private practice during that period of time. For that reason answering defendant has respectfully requested the judges of the district court to confer and agree upon a per diem basis of compensation for the trial of said criminal prosecutions in the district court as shown by the following letter, sent to each of said judges:
“September 13, 1934.
“The Honorable, The Judges of the District Court,
“Wyandotte County, Kansas.
“Sirs — Last March the judges of the district court paid me the unique and distinct compliment of selecting me from all of the excellent lawyers who practice at this bar, to be special prosecutor in connection with a grand jury which had been impaneled under the provisions of chapter 220, Laws of 1933. . . .
“The indictments are on file and the cases are ready for trial in the order in which the prosecutor shall desire to present them. I do not feel justified in entering upon the second phase of this work, that of trying these cases, without a definite understanding as to what compensation is to be paid. If there were but one or two matters it would not be of such importance, but the volume of business involved makes it necessary for me to request that a definite rate of compensation be established before I proceed further. I have thought of several ways in which this might be handled, but from a reading of the statute I am convinced a specific fee should be allowed in each ease at its conclusion in the district court, and that the only workable way for us to arrive at an understanding ahead of the trials is to agree upon a per diem charge for each day in court. In order for me to maintain my office and furnish not only my personal services but all the facilities of my office for this work, having in mind the fact that the trial of this large number of cases will arrest the handling of any personal business in my office, I should be paid for the trial of these cases at least the minimum fee provided by the Wyandotte County Bar Association of fifty dollars for each day or fraction of a day consumed in the trial thereof in' the district court. I have proceeded in these cases up to this point without such an understanding and hoped that an arrangement would be made, but I feel that I must now say to you that unless such an arrangement can be made before I start with these cases next Monday, so I will know definitely what it is that I may look forward to, that I must ask you to excuse me from further participation in these trials, and select a successor.”
In their answer the defendant board of county commissioners plead:
“(b) That the cost of said grand jury to Wyandotte county, in grand-jury salaries, stenographic fees, and special counsel fees allowed by the judges of the district court of Wyandotte county, was more than $5,000, all of which has been paid out of the general fund of the county, and that the defendant board of county commissioners has been informed that additional expense incident to the preparation of a transcript for the use of the state will be presented to the said board for payment.
“2. Defendant further admits that there was levied for the general fund of Wyandotte county for the year 1934, the maximum amount provided for by law, and defendant states that it was impossible to make further provision in said 1934 budget for anticipatory or probable expense incident to the trial of grand-jury indictments, on account of the uncertainty of the amount of such expense and the necessity of making provision in such budget for certain definite and fixed statutory obligations of the county.
“Said defendant board of county commissioners denies that the defendant T. F. Railsback is demanding that the board of county commissioners contract or bind itself either to the said defendant T. F. Railsback for compensation for services in the trial of said grand jury indictments.”
It is obvious, we think, that this statute cannot be made to operate without a special prosecutor. The present special prosecutor declares he cannot function without assurance of compensation. The operative interpretation of the language of the statute that “the county shall be liable to such special prosecutor for reasonable compensation for his services” is not taken seriously by the defendant board of county commissioners since their budget cannot be extended to meet it. This court, or a majority of it, are convinced that the legislature would not have given its sanction to this enactment except on the theory that a competent special prosecutor’s services could be procured and his compensation taxed as part of the costs in cases prosecuted by him, and taxed “in whole or in part” against defendants convicted pursuant thereto.
The necessary conclusion is that the statute as a whole is subject to such constitutional infirmity that it cannot stand, and judgment is therefore entered in behalf of the state and against the defendants. | [
-15,
-18,
-4,
-68,
43,
-32,
50,
-104,
19,
-15,
-92,
115,
109,
74,
17,
125,
-77,
29,
84,
106,
-57,
-74,
7,
75,
-66,
-13,
-37,
-57,
59,
77,
-28,
-36,
12,
49,
74,
-107,
7,
98,
-123,
22,
-114,
0,
-87,
-63,
64,
64,
52,
-23,
18,
11,
-15,
79,
-29,
42,
30,
-61,
105,
60,
89,
-85,
-31,
-79,
30,
-99,
123,
20,
35,
-89,
-118,
-125,
-56,
46,
-104,
49,
-128,
-20,
115,
-90,
-62,
-12,
45,
57,
-88,
102,
102,
17,
60,
-50,
-68,
-120,
30,
-1,
-99,
-89,
-112,
121,
-117,
-120,
-106,
-99,
124,
112,
14,
-12,
-25,
-60,
91,
108,
3,
-50,
-124,
-93,
7,
117,
-118,
82,
-53,
-31,
16,
113,
-28,
-14,
95,
71,
19,
27,
-57,
-79
]
|
The opinion of the court was delivered by
Herd, J.:
This is an action by Celco, Inc. of America to collect rent due under lease agreements, the return of rental equipment, damages for fraud and attorney’s fees from Davis Van Lines, Inc., A. V. Davis and Pauline Davis. The trial court found for Celco and Davis appeals.
The facts were stipulated by the parties as follows; Celco, Inc. of America is engaged in the business of leasing truck-tractors and trailers. Davis Van Lines, Inc. is a common carrier and hauls household furniture. A. V. Davis and Pauline Davis are the owners of all the common stock in Davis Van Lines, Inc.; A. V. Davis is the president of the company and Pauline Davis is the secretary-treasurer.
Retween February 24, 1972, and June 15, 1973, Davis Van Lines leased a number of pieces of equipment from Celco, for which Davis Van Lines was to pay a monthly rental. A. V. Davis and Pauline Davis guaranteed in writing that Davis Van Lines, Inc. would promptly pay its monthly rental and discharge all of its present and future obligations to Celco. They promised to pay all losses, costs, attorney’s fees or expenses which Celco might suffer because of default on the lease agreement by Davis Van Lines, Inc., A. V. Davis or Pauline Davis. The Davises waived all exemptions and homestead laws and notices required by law.
Davis Van Lines, Inc. borrowed money from the Country Club Bank of Kansas City, the Southgate Bank and Trust Co., of Prairie Village, Kansas, and from the Small Business Administration. In each instance they g'ave the lender a security interest in some of the leased equipment claiming ownership in the equipment without the knowledge of Celco, Inc.
On two occasions, pieces of equipment leased by Davis Van Lines, Inc. from Celco were accidentally destroyed. The Davises filed claims with the insurance carrier for the equipment for the loss of the vehicles. They collected and used the insurance proceeds for their own benefit without notifying Celco, Inc.
Davis Van Lines, Inc. became delinquent in its rental payments. On or about February 10, 1976, Celco notified Davis Van Lines that all lease agreements were in complete default and demanded performance of the agreements within ten days. On February 16,1976, Davis Van Lines wrote a check to the plaintiff for $2,747.60. The check was returned marked insufficient funds. On May 13, 1976, Celco demanded the lease agreements be brought to date and the equipment returned. In September, 1976, Celco filed suit in the District Court of Stafford County, Kansas, praying for judgment in the amount of $77,577.10, plus interest. The company also prayed for restitution of the leased equipment, attorney’s fees and costs. An amended petition was filed with an additional prayer for a finding of fraud on the part of Davis Van Lines and A. V. Davis and Pauline Davis. The prayer for a finding of fraud was based upon the fact that the Davises had appropriated the insurance money to their own use and because A. V. Davis had written a check which had been returned due to insufficient funds.
The case was set for trial on August 10, 1977, in St. John, Kansas. The Davises and their counsel failed to appear and the trial was held in their absence. Judgment was rendered in favor of Celco, Inc. in the amount of $92,449.70, plus interest and $5,500.00 in attorney’s fees. The trial court took two questions under advisement at that time: that of the validity of the waiver of homestead and personal exemptions by A. V. Davis and Pauline Davis, and whether they had committed fraudulent conduct. The court directed the parties to file briefs on the two unresolved issues.
Appellants submitted a brief dealing only with the homestead exemption matter and did not contest the accusation of fraud. The trial court found the Davises had willfully, maliciously and fraudulently converted Celco’s property and had failed to inform Celco of the destruction of the equipment and the payment they received from the insurance company. The court also found A. V. and Pauline Davis had effectively waived their homestead and personal exemptions, provided by Kansas Constitution, Article 15, § 9 and K.S.A. 60-2301 et seq.
The Davises moved the court for an order setting aside the default judgment or in the alternative for a new trial or to open the judgment for additional evidence. The motion was overruled and this appeal was taken.
Appellants urge as a matter of fact and law, the trial court erred or abused its discretion in finding they had committed fraud. This argument is without merit. The question of fraud was not contested by appellants in the court below, therefore they have no standing to raise the issue for the first time on appeal. Beard v. Montgomery Ward & Co., 215 Kan. 343, 524 P.2d 1159 (1974). If the question had properly come before this court, we would still have found the issue without merit. Appellants stipulated the equipment was leased from Celco, Inc. and that they had mortgaged it on three different occasions to secure a loan to Davis Van Lines, Inc. without appellee’s knowledge or consent. They also stipulated they had collected the proceeds of insurance policies on the leased equipment and used it for the benefit of Davis Van Lines, Inc. We find the stipulated facts, amounting to admissions against interest, are sufficient to support the court’s finding of fraud, and that the fraud is not a severable item; all of the leases are thereby tainted.
Appellants raise one more issue on this point. They complain the trial court made no findings of fact and conclusions of law pursuant to Rule No. 165 (224 Kan. lxxii), and K.S.A. 60-252(a). We point out this was a default judgment under K.S.A. 60-255(a) where the trial court need only conduct such hearings as it deems necessary. The court was not obligated to make findings of fact. See Automatic Feeder Co. v. Tobey, 221 Kan. 17, 558 P.2d 101 (1976). In addition, we note the record is void of any indication the appellants objected to the absence of findings and conclusions at the trial level. See comment, Gard’s Kansas C. Civ. Proc. § 60-252 (1963), which states:
“It is well established in Kansas that in the absence of an objection first made in the trial court omissions in findings will not be considered in the appellate court. The trial court is presumed to have found all of the facts in issue necessary to support the judgment. See Bottenberg Implement Co. v. Sheffield, 171 K 67, 229 P2d 1004; Snodgrass v. Carlson, 117 K 353, 232 P 241; Black v. Black, 123 K 608, 256 P 995; Shuler v. Lashhorn, 67 K 694, 74 P 264.”
Appellants first issue of error is without merit.
Appellants next argue the trial court erred in finding the waivers of homestead and personal exemption rights by A. V. Davis and Pauline Davis were valid. A. V. Davis and Pauline Davis each executed personal guarantees to appellee for obligations of Davis Van Lines, Inc. The guarantee provided, among other things, as follows:
“Each of us waives notice of acceptance hereof and of presentment, demand, protest and notice of non-payment or protest as to any note or obligation signed, accepted, endorsed or assigned to you by said Company, and all exemptions and homestead laws and any other demands and notices required by law, and we waive all set-offs and counterclaims.”
The applicable part of Article 15, § 9 of the Kansas Constitution provides:
“A homestead to the extent ... of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife . . . .”
The constitutional provisions are repeated in K.S.A. 60-2301.
It is well established that both homestead and personal exemptions may be waived under certain circumstances. State v. Goering, 193 Kan. 307, 392 P.2d 930 (1964); Iowa Mutual Ins. Co. v. Parr, 189 Kan. 475, 370 P.2d 400 (1962). Neither exemption may, however, be waived by executory contract. 35 C.J.S., Exemptions § 103, p. 152. This court condemned the waiver of a homestead exemption by executory contract in Iowa Mutual in accordance with the court’s liberal construction of the homestead provision in our constitution. In keeping with the view that exemption laws are designed “to protect debtors against their own improvidence,” we stated in that case:
“The Kansas Constitution and the legislature have declared a homestead to be exempt. The homestead cannot be subjected to forced sale to satisfy debts except in the following situations: (1) To pay taxes; (2) to pay obligations contracted for the purchase of the homestead; (3) to pay obligations contracted for the erection of improvements on the homestead; or (4) any process of law obtained by virtue of a lien given by the consent of both husband and wife.” p. 478.
The court, however, went on to say:
“If the waiver does not create a lien, then no lien was created by the joint consent of the husband and wife. There must be a valid lien on the particular homestead right when the waiver is made. (West v. Grove, 139 Kan. 361, 31 P.2d 10.)
“The indemnity agreement executed by the parties herein was an executory contract — one where the parties obligated themselves to perform in the future. . . .
“On the facts in the case at bar the appellants owned and occupied the real property in question as their homestead with their family when the indemnity agreement was executed, and they continued to occupy these premises as their homestead at all times material to this litigation. Under these circumstances we hold the appellant’s agreement to waive the benefit of the homestead exemption allowed them by the Constitution of Kansas, in the executory agreement here under consideration, is contrary to the public policy of this state and of no effect.” pp. 478, 481.
We find the waiver of either personal or homestead exemptions by executory contract is contrary to public policy. We hold the attempted waiver of these exemptions by A. V. and Pauline Davis by executory contract is of no effect. The trial court’s order pertaining to this issue is reversed.
Finally, appellants complain the trial court abused its discretion when it refused to set aside the default judgment or in the alternative grant a new trial or open the judgment for further evidence. The decision on a motion to set aside a default judgment rests in the sound discretion of the trial court and will not be disturbed on appeal unless there is proof of arbitrary and capricious action. Jenkins v. Arnold, 223 Kan. 298, 593 P.2d 1013 (1978). There is no merit to appellants’ issue of error.
The judgment of the trial court is affirmed in part and reversed in part. | [
-12,
120,
-56,
-66,
28,
98,
58,
-70,
59,
-81,
39,
83,
-93,
-64,
28,
41,
-10,
125,
-48,
118,
39,
-93,
69,
-29,
-42,
-101,
-5,
-35,
-79,
77,
100,
70,
77,
52,
-126,
-107,
70,
64,
69,
28,
-50,
0,
-88,
104,
-7,
11,
52,
42,
50,
71,
81,
13,
-77,
44,
25,
71,
40,
43,
-21,
-91,
-64,
-15,
-21,
-121,
71,
23,
51,
36,
-66,
39,
-24,
12,
-108,
-80,
42,
-24,
50,
-74,
70,
-36,
33,
-103,
12,
6,
99,
-125,
5,
-51,
-60,
-104,
38,
-34,
-97,
-58,
-100,
24,
11,
103,
-66,
29,
112,
22,
-89,
-2,
-1,
85,
31,
108,
-121,
-50,
-108,
-77,
13,
-16,
-100,
15,
-9,
-125,
-79,
81,
-49,
-32,
92,
6,
27,
51,
-34,
-106
]
|
The opinion of the court was delivered by
Prager, J.:
This is an action brought by the beneficiaries named in two certificates of deposit against a savings and loan association to recover damages for the unauthorized alteration of the two certificates and the payment of money in violation of the terms of two trust agreements. The facts in the case are not greatly in dispute and are essentially as follows: Mary K. Frey, a wealthy widow, was the grandmother of Robert Frey and Richard Frey, the plaintiffs. Mary K. Frey had several children, including Ernest H. Frey, deceased, the plaintiffs’ father, Jack H. Frey, a son, and Mary Alice Wiebe, a daughter. On May 13, 1971, Mary K. Frey executed two written trust agreements with the defendant, Inter-State Federal Savings and Loan Association. In accordance with those agreements, Mary K. Frey held two certificates of deposit in the sum of $7,500 each as trustee for Richard and Robert Frey, beneficiaries respectively. The trusts, by their terms, were to continue for the life of Mary K. Frey and upon her death the funds were to be paid to Richard and Robert Frey, respectively, unless prior to her death the trusts were revoked by Mary K. Frey. During her lifetime, Mary K. Frey retained ownership of the certificates of deposit, received the dividends thereon, and had the right to revoke the trusts or to change the beneficiaries named under them. The obligations and duties of the defendant, Inter-State, with respect to the trust funds held in the certificate of deposit, were as stated in the written trust agreements. Inter-State was authorized to act with respect to the trusts upon the signature of Mary K. Frey or upon the signature of someone acting in her behalf and with her consent and authority. On January 10, 1972, Jack H. Frey signed the name of Mary K. Frey on a journal entry of transfer form of defendant, Inter-State. In accordance with the journal entry of transfer, defendant, Inter-State, transferred the funds held under the trust agreements to a certificate of deposit in the name of Mary K. Frey, trustee for Mary Alice Wiebe, beneficiary, in the sum of $15,000. Mary K. Frey died on January 27, 1974. Thereafter, on or about July 25, 1974, defendant, InterState, was given a copy of the death certificate of Mary K. Frey and, upon the request of Mary Alice Wiebe, paid to her the $15,000, less penalty for early surrender.
On March 25, 1974, a petition was filed in the probate court of Leavenworth County seeking probate of the will of Mary K. Frey dated February 8, 1972. The will specifically excluded Richard and Robert Frey from its provisions for the stated reason that they were well provided for at that time. In a previous will, Mary K. Frey had included Richard and Robert Frey as beneficiaries. Richard and Robert Frey filed an answer to the petition contesting the will on the grounds (1) that the testatrix lacked capacity to make a will and (2) that the will was executed as the result of undue influence. The matter was fully litigated in the district court of Leavenworth County. The district court made extensive findings of fact and conclusions of law. It concluded that Mary K. Frey was not incapacitated on February 8, 1972, the date the will was executed, and that she was not unduly influenced in executing the will. The will was then admitted to probate.
It appears from the record that the issues of Mary K. Frey’s testamentary capacity and undue influence were hotly contested in Leavenworth County. Evidence was introduced as to her actions and state of health during the period prior to and after the date the will was executed. Among others, the district court made Finding of Fact No. 10 as follows:
“In May of 1971, shortly after the death of Ernest H. Frey, the testatrix went to the Federal Savings and Loan Association of Kansas City at Bonner Springs and changed a Certificate of Deposit in the amount of $15,000, which she held as trustee for the benefit of Ernest H. Frey, to two Certificates for $7500 each in the name of each of the two defendants with testatrix as trustee. On January 10, 1972, the testatrix, in the company of her son Jack Frey, went to the same institution and changed the two Certificates into one Certificate of Deposit for the benefit of her daughter Mary Alice Wiebe, plaintiff herein. At the time of this transaction she stated that she could not sign her own name and her name was signed to this transfer by her son Jack Frey. The testimony of witnesses to this transaction was to the effect that the testatrix appeared to know what she was doing and proceeded to have done what she had requested.”
Following the judgment in Leavenworth County District Court, Richard and Robert Frey appealed to the Supreme Court. Thereafter, the parties entered into a settlement agreement and the appeal to the Supreme Court was dismissed.
On January 27, 1976, Richard and Robert Frey filed this action in Wyandotte County District Court against Inter-State Federal Savings and Loan Association, alleging that the defendant had breached the trust agreement pertaining to the certificates of deposit by changing the beneficiaries without the authority of the trustee and owner of the certificates, Mary K. Frey. Inter-State filed an answer to the petition denying a breach of contract or improper actions. The case was tried to a jury on a single issue of fact as follows: Whether Jack H. Frey was the agent of Mary K. Frey on January 10, 1972, duly authorized by Mary K. Frey to sign her name to the journal entry of transfer which revoked the trust agreement in favor of the plaintiffs, Richard and Robert Frey, and which transferred the trust funds to a certificate of deposit with Mary Alice Wiebe named as beneficiary. The jury brought in a verdict in favor of the plaintiffs, finding thereby that Jack H. Frey was not authorized by Mary K. Frey to sign her name on the journal entry of transfer revoking the trust agreement. The trial court entered judgment against Inter-State in favor of each plaintiff in the amount of $7,500 plus interest. Inter-State has appealed to this court from that judgment.
It is important to note that, on this appeal, Inter-State does not challenge the sufficiency of the evidence to support the verdict of the jury. There was evidence presented at the trial which showed that the journal entry of transfer was signed only by Jack H. Frey when Mary K. Frey was not personally present. Furthermore, the evidence established that the transfer was made by employees of Inter-State without following the procedures and safeguards customarily used in such transactions.
The first point raised by defendant Inter-State is that the action to recover damages for unauthorized alteration of the trust agreements could not be maintained because of the doctrines of res judicata and collateral estoppel. Simply stated, Inter-State main tains that the same issue had previously been fully adjudicated in the proceeding to contest Mary K. Frey’s will in Leavenworth County. The parties are in agreement as to the law of res judicata and collateral estoppel applicable in this case. Penachio v. Walker, 207 Kan. 54, 483 P.2d 1119 (1971), states in syllabus ¶ 2 as follows:
“Two of the elements which must be present before the doctrine of res judicata or collateral estoppel may be invoked as a bar to further action are (1) a judgment on the merits which determines the rights and liabilities of the parties based on the ultimate facts as disclosed by the pleadings or issues presented for trial and (2) the parties must be the same or in privity therein.”
In Hutchinson Nat’l Bank & Trust Co. v. English, 209 Kan. 127, 129, 130, 495 P.2d 1011 (1972), it was held that the doctrine of collateral estoppel may be invoked only as to questions and issues shown to have been actually decided in the prior action. See also Weaver v. Frazee, 219 Kan. 42, 51, 52, 547 P.2d 1005 (1976). In general, the courts agree that the doctrine of collateral estoppel precluding relitigation of particular facts or issues does not extend to evidentiary facts or mediate data, as distinguished from the ultimate facts involved, in the prior or later action. 46 Am. Jur. 2d, Judgments § 425, pp. 595-597.
Assuming, arguendo, that the parties in the two actions are in privity here, the issue to be determined is whether the ultimate issues raised in this case are identical to those raised in the will contest in Leavenworth County. Inter-State contends that the ultimate issues are the same; the plaintiffs, Richard and Robert Frey, maintain that they are not.
We have concluded that the doctrines of res judicata and collateral estoppel are not applicable and are not available to Inter-State as a defense in this case. The ultimate issues involved in the will contest in Leavenworth County were whether Mary K. Frey had testamentary capacity to execute a will on February 8, 1972, and whether such will was the result of undue influence on the part of Jack H. Frey, Mary Alice Wiebe, and the other children of Mary K. Frey. Evidence of the transaction involved in this case was introduced in the will contest in Leavenworth County, but the validity of the transfer was not one of the ultimate issues determined in that proceeding.’ The Leavenworth County case involved only the will of Mary K. Frey and those assets which were a part of Mary K. Frey’s estate. The present action, filed in Wyandotte County, involves the validity of the transfer of certificates of deposit held in trust which admittedly are not items of property included in the estate of Mary K. Frey and which are not subject to probate administration in Leavenworth County. The judgment determining the validity of Mary K. Frey’s will in Leavenworth County does not bar this subsequent action in Wyandotte County to determine the validity of the transfer of the moneys held in trust in the two certificates of deposit. The basic issues in the two actions are not the same; nor are the causes of action the same. We further note that the defendant did not plead res judicata or collateral estoppel as affirmative defenses in its answer. Under all the circumstances, the defenses of res judicata and collateral estoppel are not available to the defendant, InterState Federal Savings and Loan Association, in the case now before us.
The other point raised here is that the trial court committed error in refusing to admit into evidence the will of Mary K. Frey. The record shows that, after both parties had submitted all of their evidence and rested and the instructions had been approved, counsel for the defendant requested the admission of Mary K. Frey’s will into evidence. The trial court held that the offer was too late and, furthermore, that the facts surrounding the execution of that will had been brought out in the oral testimony. We find no abuse of discretion on the part of the trial court in excluding evidence proffered by the defendant.
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
-16,
124,
125,
-84,
10,
96,
42,
-102,
114,
-124,
35,
-13,
-87,
-61,
5,
77,
115,
45,
65,
97,
-13,
-77,
23,
-118,
-46,
-77,
-7,
-35,
-80,
93,
110,
87,
76,
48,
-118,
93,
102,
-118,
-57,
94,
14,
20,
58,
-127,
89,
-56,
52,
103,
-48,
72,
101,
-81,
115,
41,
29,
-50,
104,
46,
107,
-71,
-64,
-71,
-117,
-123,
95,
19,
17,
0,
-80,
15,
-56,
10,
-104,
-79,
32,
-31,
50,
-74,
86,
-12,
99,
27,
13,
98,
102,
49,
116,
-17,
-36,
-104,
-114,
86,
-67,
-121,
-77,
72,
32,
9,
-65,
-99,
126,
80,
7,
-4,
-82,
-114,
25,
-28,
-107,
-53,
-42,
-95,
-115,
124,
-104,
5,
-17,
-95,
50,
80,
-53,
32,
92,
103,
57,
-77,
-58,
-93
]
|
The opinion of the court was delivered by
Bukch, J.:
The action was one to contest the will of Nannie A. Jones. Plaintiffs were defeated, and appeal.
The petition charged the will was the product of undue influence practiced on the testatrix. Plaintiffs produced no evidence to support the charge, and the court properly sustained a demurrer to plaintiffs’ evidence so far as the charge of undue influence was concerned.
The petition charged the testatrix lacked mental capacity to make a will. There was some testimony to sustain the charge. There was clear and convincing testimony the testatrix was perfectly competent to make the will. The court believed that testimony, found accordingly, and so far as the issues presented, by the pleadings are concerned, the appeal is groundless.
Plaintiffs say the court erred in sustaining the demurrer to their evidence “based on fraud.” Fraud was not pleaded, and there was no evidence of fraud practiced on the testatrix.
Plaintiffs say the will was not properly witnessed. The will was signed and witnessed at the residence of the testatrix. The signature was at the end of the will, and was followed by an attestation which reads:
“The foregoing, signed by the said testatrix, Nannie A. Jones, as and for her last will and testament, in our presence, and we, at her request, and in her sight and presence, and in the presence of each other, have hereunto subscribed our names as witnesses, at Wichita, this 8th day of December, 1932.
Dr. C. R. Price, Witness.
Pearl Wideman, Witness.”
Pearl Wideman lived next door but one to the testatrix. The testimony was Pearl Wideman was called by telephone to come over and witness a will. She testified she went right over, but after arrival did not know what she was there for. She testified in detail to the signing of the will and to her signing the attestation, but she testified she didn’t know what it was all about.
The petition pleaded the will had been admitted to probate. That included calling of witnesses to the will, taking their testimony, reducing the testimony to writing and recording it, and included a finding by the probate court that the will was duly attested. (R. S. 22-213, 22-218.)
The effect to be given the testimony of a witness who undertakes to impeach the integrity of his own act in witnessing a will was discussed in the opinion in the case of Rice v. Monroe, 108 Kan. 526, 196 Pac. 756. In concluding the discussion the court said it was not arbitrary conduct on the part of the trial court to uphold a pro bated will against subsequent testimony of subscribing witnesses falsifying their attestation. In this instance lack of attestation was not pleaded as a ground of contest of the will. After the testimony of Pearl Wideman — impeached as it was in so many ways — had been given, plaintiffs did not see fit to ask leave to amend the petition, and the district court, in deciding the case, properly said the only question for determination was mental capacity of the testatrix.
Plaintiffs produced evidence that the testatrix had deposited a former will with the probate court which was withdrawn and was destroyed by her attorney. The will was withdrawn pursuant to the following order:
“To probate judge, Sedgwick county, Kansas. Please give my attorney, A. P. Woodard, my will that I have on file in your office, as it has become necessary that I make another will.
(Signed) Nannie A. Jones.
Moeton W. Gecnstead, Witness.”
The issues have been outlined. There was no charge in the petition that the probated will was not the will of the testatrix because a previous will had not been revoked. Suppose there had been such an allegation. Plaintiffs’ action was based on the fact they were heirs of the testatrix and took under the law. If there was a previous valid, unrevoked will, plaintiffs were out as heirs, and could attack the probated will only as beneficiaries under the earlier will.' They did not pretend they were suing in any such capacity.
This is not a case in which a probated will is contested on the ground it was revoked by a subsequent will. (Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620.) It is contended the last will was affected in some way by a previous will, and it is elementary that all presumptions are in favor of the probated will. If it could be affected in some way by a previous will, the burden rested on plaintiffs to establish a duly executed, duly witnessed, and otherwise valid and unrevolced will, by evidence as cogent as that required to entitle a document to probate as a will. Plaintiffs had no such evidence.
Conceding the first instrument was properly executed and attested and was otherwise a valid will, there was conclusive proof the testatrix desired that it be withdrawn because it had become necessary she should make another will. Whether regularly or irregularly withdrawn, it was withdrawn. Whether regularly or irregularly destroyed, it was destroyed. Then the testatrix made another will, which was admitted to probate. While the probated will did not contain an express statement that the former will was revoked, the probated will contained an express statement it was the last will and testament of the testatrix. The will disposed of all the property the testatrix possessed. Therefore, as a matter of law, the former will was revoked:
“A will shall be revoked by . . . some other will or codicil in writing executed as prescribed by this act, or by some other writing signed, attested and subscribed in the manner provided by this act for the making of a will; . . .” (R. S. 22-241.)
There is nothing else of importance in the case, and the judgment of the district court is affirmed. | [
115,
104,
100,
-97,
42,
-32,
106,
-102,
98,
-95,
53,
119,
-19,
-62,
20,
13,
-77,
-83,
80,
107,
86,
-93,
7,
-96,
-14,
-13,
56,
-35,
-15,
-35,
-11,
95,
76,
32,
-126,
-35,
70,
-126,
-23,
80,
-116,
58,
-119,
-28,
25,
-14,
52,
51,
116,
79,
-63,
-2,
-15,
42,
29,
-58,
-22,
40,
123,
-67,
72,
-72,
-118,
-123,
-17,
6,
17,
52,
-98,
-17,
72,
46,
28,
49,
1,
-32,
115,
-74,
-126,
-12,
75,
-103,
12,
118,
98,
33,
-51,
-19,
-72,
-116,
95,
118,
-115,
-89,
-110,
88,
-61,
37,
62,
-103,
125,
80,
7,
-10,
-1,
20,
60,
108,
10,
-113,
-42,
-79,
-115,
60,
-104,
-119,
-30,
97,
0,
113,
-39,
64,
92,
39,
113,
-101,
-113,
-78
]
|
The opinion of the court was delivered by
Harvey, J.:
This is an action by an insurance company against its general agency for the state for a balance claimed to be due on account for premiums collected by defendants and not remitted to plaintiff. Defendants deny the correctness of the account, and by cross petition claim additional commissions due under a modification .of the agency contract by a subsequent agreement. The trial court found for defendants. Plaintiff has appealed, and presents two questions: (1) Does the evidence sustain a finding that the agency contract was modified by a subsequent agreement; and (2), if so, were commissions due defendants under such modified contracts correctly computed?
Plaintiff is a mutual fire and tornado insurance company organized under the laws of Iowa, with headquarters at Des Moines, and was authorized to do business in Kansas. Defendants for many years have been insurance agents at Salina, Kan. On August 1, 1926, plaintiff and defendants entered into a general agency con tract by which plaintiff appointed defendants as its general agency for the state of Kansas for its fire and tornado business, in which defendants agreed to act with diligence and energy in soliciting insurance and promoting the general welfare and' interests of plaintiff, to send daily reports for policies written, collect premiums on policies and make regular remittances thereof to plaintiff, to have each risk carefully inspected, and report to plaintiff all information coming to their knowledge pertaining to the risk which will be of value to plaintiff. Defendants had authority to appoint subagents, to accept applications for insurance, being responsible for all applications taken and for collection of premiums on such policies, plaintiff to procure the licenses for such subagents; and in consideration thereof plaintiff agreed “to pay the said agency twenty-seven and one-half per cent (27%%) commission on gross premiums at the rates named in policies written,” the rates used to be the tariff rates as published for the Kansas Inspection Bureau. There was a provision for adjusting commissions on canceled policies, and for the modification in writing of the contract from time to time as might be agreed upon, and for its termination by either party on thirty days’ written notice. Under this agreement defendants established approximately one hundred subagencies in Kansas and paid their commission out of that allowed defendants by plaintiff. It appears from the evidence that the expense of establishing, maintaining and looking after these subagencies was such that defendants thought they should be allowed more commission by plaintiff, and the matter was discussed between their representatives at various times. On December 29, 1927, defendants wrote plaintiff:
“As I think C. M. mentioned to you when in Des Moines, we would like a somewhat different agreement than the one we were worldng under at that time. We have just signed a new contract with the Wisconsin. Automobile Company, and have made a copy of it, except for the change in name, which we will inclose. We would like for you to look it over, and if it meets with your approval, have two copies made in somewhat better shape than this one and we will execute our part of it. . . . Our general agency is costing us 200 per cent each month, but we feel sure it will repay in the future. . . .”
The contract inclosed with that letter was dated January 2, 1928, and was a rewriting of the contract of August 1,1926, and following the paragraph with respect to commission, the substance of which was previously stated, was this:
“(a) It is further agreed that the commission stipulated in the preceding paragraph shall be increased one-half of one per cent for each one per cent decreased below 45 per cent loss ratio, (incurred basis) on business. It is provided, however, that it shall not exceed 5 per cent additional for any one year. (5) It is hereby mutually agreed that the contingent commission agreement hereinbefore referred to shall apply and be effective on the basis of business transacted by and between said parties hereto during the calendar year January 1 and to December 31, inc., and likewise in future years during the life of this contract. . . .”
On December 30,1927, plaintiff wrote as follows:
“We have your letter of December 29 at hand with the inclosure of a contract which you propose. ... At this time we are very busy . . . and are asking that you give us a couple of weeks to go over the contract before making a reply. I believe that we can work out a contract which will give you the credit for a loss ratio on the basis of earned premiums, which will be favorable to your agency and to this company. . . .”
On January 2, 1928, defendants replied, consenting to postponement for a short time, and asking to be advised when plaintiff was ready to take the matter up. On February 28,1928, plaintiff wrote:
“In regard to the contract giving you a contingent profit for a new loss ratio on business in Kansas, we are pleased to give you such a contract, but we find that the contract which you inclose does not entirely agree with our idea of a perfect contract.
“We are asking the privilege of rewriting this contract with the idea that the contingent feature is to be the same as shown in the one submitted by you. It is our understanding that the one you submit is a copy of the one you have ■with the Wisconsin auto.” (Italics in letters are ours.)
On May 4, acknowledging receipt of defendant’s letter of April 27, plaintiff’s secretary wrote that he had been out of the office and—
“. . . have been unable to make up the new contract which we had intended to place in force. In any event you may be sure that we will place this contract in force in the very near future, giving you a bonus for a low loss ratio on your business. . . .”
There was further delay on this point in the correspondence, but on September 28, 1928, plaintiff wrote, acknowledging defendants’ letter of September 26, stating that the writer was leaving town for the next week, and—
“. . . it will be almost impossible to fix your contract in regard to the contingent commission. However, it is our intention that this be given to you, and this letter will be your assurance that contingent commission will be given as suggested in our previous correspondence.”
Later correspondence disclosed that defendants repeatedly requested plaintiff to furnish a statement of losses in Kansas. Some information of that kind was furnished, but defendants complained that it was not sufficiently complete.
On December 16, 1930, the agency relation between plaintiff and defendants was terminated in writing by mutual agreement as of the date of January 15,1931. Defendants kept asking for the statement of losses covering the years 1928, 1929 and 1930. It was finally submitted in July, 1931, computed on an earned premium basis. On August 17,1931, defendants wrote:
“We have studied the ‘Lost Ratio reports’ and find they do not comply with the agreement in the contract agreed to between us. . . . 'It is plain, however, that there was no contingent commission earned during either 1928 or 1929 from these reports. . . . It is our contention that this agreement was on premiums written, that the agreement shows that, but we also think that on premiums earned, with the 1930 figured as the agreement provided, will show we are entitled to 5 per cent added commission on that year’s business.
Perhaps to force a settlement with respect to the contingent premiums defendants declined to pay certain commissions on 1930 business figured on the 27% per cent basis, and when plaintiff sued to recover such premiums, by cross petition defendants sought to establish what they claimed to be due them on the contingent premium business.
The legal question presented is whether or not this correspondence amounted to an agreement for a contingent premium in addition to the 27% per cent provided in the contract of August 1, 1926. Defendants made a definite proposal in their letter and form of contract of December 27, 1927. It will be noted that plaintiff asked for time to consider it, and later wrote that something might be worked out on an earned premium basis; at another time wrote they planned to give defendants a bonus of some kind, but finally, in the letter of September 28, 1928, specifically stated:
“This letter will be your assurance that contingent commission will be given as suggested in our previous correspondence.”
Their previous correspondence had referred to only one definite thing — the proposal made by defendants December 27, 1927, and which plaintiff had asked in its letter of February 28, 1928, the privilege of rewriting, “with the.idea that the contingent feature is to be the same as shown in the one submitted by you.” It was further identified as “a copy of the one you have with the Wisconsin auto.” It seems clear that this was the only definite proposition submitted, and that these two letters of the plaintiff of February 28 and September 28, 1928, make it clear that the contingent com mission provided for in the copy of the contract proposed by defendants was definitely agreed to.
All these letters above mentioned on behalf of the plaintiff were written by D. 0. Milligan, plaintiff’s secretary. In the court below, and here, plaintiff argues that his authority to write those letters and to make any commission contract on behalf of the company was not shown. The point is not well taken. In defendants’ cross petition it is specifically alleged that D. 0. Milligan was at all times mentioned the secretary and general manager of plaintiff and had general authority to conduct all business on behalf of plaintiff, and was duly authorized, as its agent, to negotiate for and make on its behalf modifications of such contracts with its agents, and especially modifications of the contract between plaintiff and defendants. This allegation of agency and authority was not denied under oath, and hence was admitted by the pleadings. In this connection it is worthy of note that the contract of August 1,1926, between plaintiff and defendants was executed on behalf of plaintiff by their assistant secretary, whose authority to do so has never been questioned. The trial court was authorized under the evidence to find that a contract for contingent commission was agreed upon between the parties.
At the trial plaintiff introduced the carbon copy of a letter dated November 13,1928, the original of which it was claimed was mailed to defendants. This letter purports to advise defendants that the matter of contingent commission in connection with their agency had been gone over, giving some figures; that it would result in loss to plaintiff, and advising that the board of directors would not consent to such a contract, and expressed the hope that defendants would see plaintiff’s viewpoint and go ahead on the terms of the present contract. Defendants disclaimed receiving such a letter. There was a sharp conflict in the testimony concerning whether it was written, mailed and received. Specific findings were not requested of the trial court, and none were made; but the general finding resolves this conflict of testimony in favor of defendants. In view of the subsequent correspondence between the parties concerning loss ratio, none of which would have been pertinent if this letter had been written by plaintiff and received by defendants, we cannot say that the court’s conclusion was without evidence to sustain it.
Passing to the next principal question in the case. Were the con tingent commissions properly computed? It is not contended they were improperly computed, if the computation should be made on gross premiums or premiums paid for policies written. Appellant contends that the contingent premiums, if allowed at all, should be computed upon earned premiums, and at some detail advises us of the method of computation of earned premiums, and argues if computed on that basis no contingent premium was due unless, perhaps, for the year 1930. This takes us back to the contract as to what the contingent premium was. The proposed rewriting of the contract contained the clause in the original agency contract relating to commissions, followed by provision (a) “. . . that the commission stipulated in the preceding paragraph shall be increased. . . .” Now the commission-provided in the preceding paragraph was based on gross premiums, less deductions for premiums returned on cancellations. Certainly paragraph (a) referred to the same kind of premiums as the preceding paragraph. And this is the provision definitely accepted by plaintiff’s letters of February 28 and September 28,1928. So it seems clear that the contingent premiums should be computed upon the gross premiums received in the annual period, as was done.
We find no error in the record, and the judgment of the court below is affirmed.
Busch, J., not sitting. | [
-112,
106,
-16,
-19,
24,
98,
56,
26,
127,
-15,
55,
83,
-3,
-57,
5,
127,
-34,
45,
-64,
106,
-43,
-77,
23,
43,
-42,
-45,
-7,
-59,
-77,
91,
-4,
-36,
76,
48,
10,
-43,
-90,
66,
-127,
28,
-50,
14,
-88,
-32,
-39,
64,
-80,
-23,
54,
67,
85,
-117,
-5,
40,
16,
-45,
45,
44,
122,
-87,
-63,
-15,
-22,
7,
127,
4,
49,
36,
-104,
7,
88,
62,
-112,
55,
8,
-52,
115,
38,
-122,
108,
47,
-103,
-120,
34,
103,
49,
-80,
-83,
-20,
-100,
39,
-45,
-113,
-89,
-108,
88,
35,
12,
-74,
-99,
116,
20,
7,
-4,
-11,
21,
-97,
108,
3,
-117,
-16,
-15,
-49,
100,
25,
-113,
-1,
7,
-96,
80,
-49,
-94,
93,
71,
122,
19,
46,
-116
]
|
The opinion of the court was delivered by
Smith, J.:
This is an action to compel the board of county commissioners of Montgomery county to pay to the city of Independence $250 a mile for the maintenance of certain streets in that city. Judgment was for the city. The county appeals.
The facts are as follows: The South Tenth street road is a county road and enters the city of Independence on the south. It is the only county road that enters the city from any direction. In order to reach a county road other than the South Tenth street road the traveler must go two miles east of Independence. To reach this road from the northern terminus of the South Tenth street road one must travel over streets of Independence which are a part of the state highway system before leaving the city limits, and then over the state highway system outside the city limits at least two miles. The city is claiming that a portion of the city streets known as Tenth street is a “connecting link” in the system of county highways within the provisions of R. S. 1933 Supp. 68-506e. That section is as follows:
“That the board of county commissioners of each county shall annually apportion and distribute quarterly to each city on the county highway system from the fund known as the county and township road fund at the rate of two hundred fifty dollars ($250) per mile for the maintenance of the streets in such cities used as connecting links in the system of county highways which are not connecting links in'the state highway system, said moneys to be credited to the street and alley fund of such cities. In lieu of said apportionment the board of county commissioners may maintain in cities of the third class such streets and pay for such maintenance from the county and township road fund.”
The facts were agreed to about as they have been detailed here except that plaintiff offered to prove the amount of traffic that passed over Tenth street in Independence.
The question for this court then is whether the words “connecting link” in the system of county highways mean actually connecting two county highways or simply mean a means by which one might travel from one county road to another by traveling part way over an altogether different system of roads. It must be borne in mind that the county system of roads and the state highway system are two altogether different systems as far as construction and maintenance are concerned. Clearly, the intention of the legislature was that where a county highway leads up to a town, and travel upon it goes over the streets of the city and out of the city by another county road, thus wearing out the city streets, a part of the gasoline tax money appropriated to maintain county highways should be used to maintain these streets. But how can a part of a city be a connecting link in a county system of highways when it only touches the county system at one end? A connecting link, by its very name, must be something that holds two different elements together.
Webster’s New International Dictionary (1926) defines “connect” as follows:
“To join, or fasten together, as by something intervening; to associate, as in occurrence or in idea; to combine; to unite or link together, as in an electrical circuit; to establish a bond or relation between.”
and again:
"1. To join, unite, or cohere; to have a close relation; as, one argument connects with another. 2. To meet or make connections for the transference of passengers, or change of means of communication; as, northbound and eastbound trains connect at New York.”
The same source defines “link” as follows:
“Hence, something which binds together, or connects, separate things; a part of a connected series; a tie, a bond.”
The supreme court of Vermont considered a similar question in Bridgman et al. v. Hardwick, 67 Vt. 132. In that case the act provided that public highways shall not be less than three rods wide, but if laid within the limits of an incorporated village or city to connect existing highways they may be of less width. The westerly terminus of the highway there under consideration did not connect with an existing highway. In the opinion the court said:
“To authorize the laying of a highway under the provisions of this act, the highway as laid must connect with an existing highway at both terminal points. It is not enough that one terminal point connects with an existing highway. The language of the enactment is plain. To connect is to join, unite, bind or fasten together. A highway that does not intersect an existing highway at more than one of its terminal points does not connect existing highways, and is not authorized by the provisions of the act relied upon by the defendant’s counsel.” (p. 134.)
See, also, Bull v. New York City Ry. Co., 192 N. Y. 361.
From what has been said we therefore conclude that the trial court erred in granting judgment against defendant, and the judgment is therefore reversed with directions to enter judgment for defendant. | [
-16,
-2,
-36,
-2,
90,
64,
18,
-104,
89,
-71,
-28,
123,
-81,
-62,
23,
51,
-81,
127,
85,
11,
-27,
-29,
-41,
-29,
-80,
-77,
-57,
-51,
-77,
-51,
-18,
117,
78,
48,
74,
-99,
102,
73,
-51,
-38,
-50,
14,
-119,
73,
-55,
-30,
52,
63,
2,
79,
117,
-114,
-93,
44,
24,
-29,
-88,
40,
-39,
-87,
-45,
-6,
-82,
-105,
127,
12,
-95,
118,
-104,
3,
-40,
42,
-100,
53,
64,
120,
112,
-90,
-106,
-76,
79,
-101,
12,
32,
98,
1,
37,
-17,
-72,
-99,
14,
-46,
-113,
-90,
-102,
25,
27,
-64,
-65,
-97,
92,
94,
7,
126,
-28,
68,
91,
108,
-121,
-86,
-80,
-95,
-51,
108,
-128,
0,
-25,
13,
16,
97,
-62,
-38,
94,
-27,
48,
27,
-121,
-104
]
|
The opinion of the court was delivered by
McElroy, J.:
Jacob Kenigsberg brought his action in justice’s court against L. B. Winkler, Israel Miller and Wm.Winkler upon the following promissory note, which he filed as a bill of particulars :
“$120.00. Hiawatha, Kansas, March 2, 1891.
“Eleven months after date we promise to pay to the order of A. H. Winkler at the Morrill & Janes Bank, Hiawatha, Kansas, one hundred and twenty dollars, for value received, negotiable and payable without defalcation or discount and with interest at the rate of ten per cent, per annum from date until paid. Interest payable annually. L. B. Winkler.
Israel Miller.
Wm. Winkler.”
The defendants Winkler made no defense. The defendant Miller filed -an answer setting up that the note had been materially altered without his knowledge or consent since the execution and delivery thereof, in this, that the name of Wm. Winkler had been added 'as a joint maker, A tidal was had in justice’s court which resulted in a judgment for plaintiff. The defendant Miller appealed and a trial was had in the district court upon the pleadings filed in the justice’s court. The court found the issues in favor of the plaintiff and rendered judgment against Miller for the amount due on the note, with interest and costs. Miller filed a motion for a new trial which was overruled, and presents the case to this court for review, alleging error in the proceedings of the trial court.
The plaintiff in error contends that the court erred in admitting incompetent testimony. He fails to point out any incompetent testimony which, was admitted over his objection. The defendant made but three objections to the plaintiff’s testimony at the trial; two of these were sustained; the third objection was based upon the ground “that the question was leading,” and was properly overruled. The record does not support his contention upon this proposition.
The contention is made that the court erred in permitting plaintiff below to vary, by oral testimony, the legal effect of the note. The note on its face showed that Wm. Winkler signed in the capacity of joint maker, yet the plaintiff was permitted to show by oral testimony a contract of guaranty. The principal facts in this case are that on March 2, 1891, L. B. Winkler executed and delivered to A. H. Winkler his promissory note, with Israel Miller as surety; A. H. Winkler, the payee, applied, for the purpose of selling the note, to Kenigsberg, who,, after an inspection of the note, stated that he was not acquainted with Israel Miller; that he would buy the note if it was indorsed by some one' with whom he was acquainted. The parties then talked with Wm. Winkler about the note and about Miller. Wm. Winkler stated that he was acquainted with Miller, that he was good, and that he, Wm. Winkler, would indorse the note. Thereupon, for the purpose of becoming an indorser, he placed his name upon the face of the note, below that of the makers; the payee then sold and transferred the note to the plaintiff. Every material alteration of a written contract, by a party to it, will discharge a party to such contract who does not authorize or consent to the alteration. The addition of the name of another maker to a note appears to be regarded as a material alteration, such as to discharge the original parties who do not consent thereto, although the contract of an indorser is an independent undertaking, which nowise affects the liability of that of the makers of the paper. The position which the name occupies upon the note is the only indication that he signed as a maker or surety; the evidence all tends to show that he signed the note as an indorser or guarantor. Neither of these contracts affects the original undertaking of the makers or sureties; the contract of guarantor and that of indorser are each independent undertakings.
Of course, if this note had passed into the hands of an innocent purchaser for value, Wm. Winkler might not be allowed to show that his contract was other than that of a maker, but, as between the parties to this action, no reason is apparent why his actual undertaking should not be disclosed. Miller seeks to avoid his contract by reason of a material alteration. We see no good reason why the plaintiff should not be permitted to show that Winkler’s name was placed on the face of the note through a mistake or inadvertence as that of an indorser or guarantor. Oral evidence for the purpose of showing the real facts, as against the apparent, is not changing or varying the terms of a written contract, but is merely showing that which is real as against a shadow, an appearance. All text-writers on the subject state as a conclusion that an indorsement may be made on the face of the instrument, even under that of the maker; now, it is apparent that if the indorser sign on the face of the paper, his undertaking must, be made to appear by oral evidence, for the position of the name would indicate some other character of contract. An examination of the authorities leads to the conclusion that, as between the parties to a promissory note, where no innocent purchaser intervenes, the form of the instrument is not conclusive, but parol evidence is admissible to show the actual relations of the parties to the paper and to each other.
The judgment is supported by the law and the evidence ; the court properly overruled the motion for a new trial.
The judgment is affirmed. | [
-80,
-24,
-23,
-33,
-118,
96,
42,
-38,
120,
-95,
-75,
83,
-55,
-62,
5,
117,
-95,
125,
-48,
98,
70,
-77,
7,
65,
-46,
-14,
-37,
-123,
-79,
-19,
-11,
87,
13,
38,
10,
-99,
-26,
-62,
-63,
-42,
-114,
4,
40,
-20,
-39,
-120,
-80,
95,
112,
66,
113,
-82,
-13,
47,
21,
66,
41,
44,
107,
45,
-48,
-112,
-113,
-113,
93,
18,
-109,
32,
-100,
103,
88,
46,
-112,
-11,
67,
-24,
122,
-92,
-122,
-12,
79,
-71,
40,
102,
99,
51,
21,
-19,
124,
-104,
39,
75,
-99,
-89,
-112,
88,
42,
4,
-66,
-99,
80,
81,
7,
-10,
-4,
29,
25,
100,
3,
-113,
-30,
-109,
-113,
120,
-100,
-109,
-5,
35,
33,
97,
-57,
-80,
92,
102,
122,
-101,
-114,
49
]
|
The opinion of the court was delivered by
McElroy, J.:
T. E. Baldwin, administrator, brought this action against Rardin and Callender for conversion of crops grown upon mortgaged premises. A trial was had before the court and a jury. The only question submitted to the jury was as to the value of the property in controversy. The court directed the jury to find for the plaintiff, but further directed that they should determine the value of the one-fourth interest in the crop. The jury accordingly returned a verdict finding the issues in favor of the plaintiff, and found the value of the property in controversy to be $150. The defendants’ motion for a new trial was overruled, and they, as plaintiffs in error, present the case to this court for review.
The assignments of error present but one question. for the consideration of this court, and that is as to whether the purchaser at a mortgage sale is entitled to recover rent for the use of the lands from the crop growing at the time of his purchase.
The principal facts in this case are : In April, 1890, Lucís A. Harbaugh and wife, who owned the real estate upon which the crops were grown, mortgaged the same to Baldwin, as administrator, to secure the payment of $450, due and payable five years after date, with interest at nine per cent. The mortgage was filed and recorded soon after the execution thereof, as provided by law. The defendant Bardin claims that in April, 1896, by oral lease with Harbaugh, he took possession of the mortgaged premises; that by the terms of his lease he was permitted to break and reduce the land to a state of cultivation, for which service he was to receive the entire crop of 1896 and the two succeeding seasons. The foreclosure proceedings were commenced by Baldwin on the 15th day of July, 1896, and judgment rendered on the 8th of September, 1896, for the foreclosure and sale of the mortgaged premises. The lands were sold on the 26th day of April, 1897, sale confirmed on May 8, 1897, and the sheriff ordered to 'execute deed to the purchaser. The sheriff’s deed was executed and delivered to Baldwin on the 12th day of May, 1897. About twenty acres of the crop in controversy were planted in September, 1896, and the remainder at a later period, but prior to the sale of the mortgaged premises. Bardin mortgaged the growing crop to his codefendant, Callender. Before any of the crop had been harvested, Baldwin notified defendants that he was the owner of the lands, and that he claimed a one-fourth interest in the crop as for rents of the premises. The crop, when matured, was harvested by Bardin, by him sold, and something more than $150 of the proceeds was turned over to his codefendant, Callender, in payment of his mortgage. Prior to the sale of the crop, and prior to the commencement of this action, the plaintiff demanded possession of the property from each of the defendants, both of whom claimed possession and ownership, and they each refused to surrender the same or any part thereof.
It has long been the settled law in this state that a mortgage sale passes the growing crops, whether the tenant is, or is not, a party to the foreclosure proceedings. The crop in question was planted after default in the payment of the mortgage; it was growing and unmatured when plaintiff purchased the lands. The lease set out by defendant was an oral lease, covering a period of three years, and was absolutely void under our statute of frauds. The plaintiff’s mortgage was of record, and defendants were bound to take notice of his rights thereunder. There was no reservation of the crop at the time of the sale; hence it passed with the title to the land to the purchaser. The defendant Callender, under the mortgage from his co-defendant, could have no greater rights than Rardin possessed.
In Shockey v. Johntz, 2 Kan. App. 483, 43 Pac. 993, this court held:
“ Growing crops pass with the soil to the purchaser at a mortgage sale, where there is no reservation or waiver of the right to the crops at such sale. And further, the fact that a mortgagor had leased the lands and the lessee had mortgaged the crop to a third person does not change the rule. . . . The tenant stands exactly in the situation of the mortgagor; hence, he cannot give any greater title than his own, and the mortgagee of the lessee obtained no better right to the growing crop than his lessor had or could give, and a tenant is not a necessary party to the foreclosure proceedings. The purchaser’s rights at a mortgage sale are the same as they would have been if the tenant had been made a party.”
In Skilton v. Harrel, 5 Kan. App. 753, 47 Pac. 177, it was held that a mortgage sale passes growing crops, though the tenant is not a party to the foreclosure proceedings.
The supreme court, in the case of Smith v. Hague, 25 Kan. 246, said: “The growing crops upon the land, not having been reserved in the order of sale, or at the sale, passed by the deed of sale.”
In Beckman v. Sikes, 35 Kan. 120, 10 Pac. 592, the court said:
“The mortgagor planted the crop knowing that it was subject to the mortgage and liable to be divested by the foreclosure and sale of the premises. Any one who purchased such crops from him took them subject to the same contingency, as the recorded mortgage and the decree of foreclosure were notice to him of the existence of the lien. If the land is not sold until the crops ripea and are severed, the vendee of the mortgagor would ordinarily get a good title, but if the land was sold and conveyed while the crop was still growing, and there was no reservation or waiver of the right to the crop at such sale, the title to the same would pass with the land.”
In Goodwin v. Smith, 49 Kan. 351, 31 Pac. 153, 17 L. R. A. 284, the court said :
“The purchaser at a judicial sale of mortgaged premises is entitled to the growing crop of wheat on the land against the tenant of the mortgagor who took a lease of the land after a suit for foreclosure had been commenced.”
In Land Co. v. Barwick, 50 Kan. 57, 31 Pac. 685, the court said:
“ It is true the proceedings under the order of sale were not perfected until the court had examined them, and sanctioned the sale, but when the confirmation occurs, and the deed is issued, they relate back to the. date of the sale and entitle the purchaser to the crops which were then unripe and growing upon the premises.”
It is contended that the court erred in assuming that the usual rent in the vicinity of the land in question was one-fourth. How are the plaintiffs in error injured by reason of the plaintiff claiming one-fourth of the crop ?
The judgment will be affirmed. | [
-14,
-20,
-72,
-116,
74,
96,
110,
-40,
72,
-88,
-90,
91,
-23,
-46,
21,
37,
-9,
93,
81,
105,
-60,
-78,
18,
-29,
-110,
-5,
-61,
-43,
-67,
77,
-26,
87,
12,
52,
-62,
87,
-58,
-64,
-55,
28,
-114,
-113,
-119,
108,
-35,
64,
52,
59,
20,
73,
101,
47,
-77,
101,
29,
-61,
104,
40,
-53,
57,
80,
-8,
42,
-115,
107,
-121,
-80,
39,
-116,
65,
-6,
110,
-112,
53,
1,
-56,
122,
-124,
-122,
84,
15,
-103,
12,
34,
102,
1,
69,
79,
-8,
-72,
38,
127,
-123,
-90,
-107,
72,
67,
64,
-66,
-97,
100,
16,
39,
-2,
-25,
-115,
12,
-20,
5,
-113,
-106,
-77,
15,
48,
-102,
-109,
-53,
39,
49,
97,
-113,
-86,
93,
102,
112,
-37,
-121,
-4
]
|
The 'opinion of the court was delivered by
Milton, J. :
This action was brought by Kate M. Tootle and others, constituting the firm of Tootle, Wheeler & Motter, against M. T. Hildinger and Mrs. Dora Richardson, copartners as M. T. Hildinger & Oo., to recover upon an account for merchandise sold and delivered to the defendants. Soon after the commencement of the action the plaintiffs caused garnishment summons to be issued and served upon several persons, among whom was Emma B. Hildinger, the wife of M. T. Hildinger. The main action resulted in a judgment in favor of the plaintiffs and against the defendants in the sum of $2577.98. Thereafter, Mrs. Hildinger having answered that she was not indebted to the defendants at the date of the service of the garnishee summons or thereafter, and not in possession of any property belonging to the defendants at such times, the plaintiff elected to take issue on said answer, and a trial was had of the issue joined by the affidavit in garnishment and the garnishee’s affidavit, as provided for by the statute. Thfe record before us purports to contain the evidence and the proceedings connected with such trial, the proceedings in error having been brought by Mrs. Hildinger, the garnishee. The defendants in error have filed a motion to dismiss such proceedings.
One ground of the motion is that Mrs. Hildinger was not granted an extension of time in which to make and serve a case-made upon plaintiffs, the first extension order reading that the court “gave bdth the plaintiffs and garnishee defendant, Emma B. Hildinger, each ninety days from date within which to serve case-made upon the other defendants.” The contention is not good. The words “upon the other defendants” are mere surplusage and not words of limitation.
Another ground of the motion to dismiss is that the certificate of the trial judge states that the ease-made was presented as a case-made in the original" action, and that the plaintiffs appeared by their attorneys and the defendants by their attorneys, while it is silent as to the garnishee, Emma B. Hildinger. Section 238 of the civil code (Gen. Stat. 1897, ch. 95, § 238; Gen. Stat. 1899, § 4460) in part reads :
“The proceedings against the garnishee "shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto.”
Under this provision the certificate is sufficient. Besides this, we have before us affidavits showing that the attorneys for Mrs. Hildinger prepared and served the case-made herein and presented the same for settlement.
. The other grounds of the motion point out mistakes and deficiencies in the record and in the brief of counsel for the plaintiff in error. The matters referred to have been examined and none has been found sufficient to require a dismissal of the petition in error.
The material facts appearing in the record are as follows : In the fall of 1893, M. T. Hildinger & Co., who had for several years conducted a general merchandise business at Nickerson, Kan., a division point of the Atchison, Topeka & Santa Fe Railroad Company, found themselves short of funds with, which to pay accounts due wholesale dealers. Their trade was largely with railroad employees, and at the time stated the railroad company was in arrears with its employees. As a result of the conditions named, Hildinger & Co., on February 22, 1894, executed three chattel mortgages upon their goods and accounts — the first to W. W. Aldrich and others, to secure accounts aggregating $5117.29 ; the second to Bittman-Todd Grocery Company and others, for $4420.48 ; and the third to other creditors, to secure accounts aggregating about $7000. The mortgages were recorded in the order of their priority as just stated. Upon the delivery of the mortgages, W. W. Aldrich took possession of the mortgaged property for the first mortgagees and began to sell goods and collect accounts. He sold the grocery stock in bulk, and -within four weeks received from collections and sales $5000, which he applied on the first mortgage, and thereupon turned the stock over to the second mortgagees. The latter began to sell the goods at retail, but presently decided to advertise the property for sale under the mortgage, to be sold on April 7, 1894. Notices of the sale were duly posted, and all of the creditors of Hildinger & Co. were notified in writing that such sale would take place, and Hildinger & Co. were aware of the fact.
On the day of sale it was decided, with the approval of the mortgagees and of the creditors present, to sell the stock in bulk, which was accordingly done, no objection on the part of any one being made to the manner of the sale. An agent of the second mortgagees purchased the stock for such mortgagees. Shortly after the sale, Mrs. Hildinger, through her husband as her agent, made arrangements with the second mortgagees to buy the stock of goods. The agreed consideration was $4800, $2000 in cash and $2800 to be secured by a chattel mortgage on the-goods. The Bank of Nickerson supplied the cash and took security satisfactory to itself. The sale and purchase were on the same day completed on that basis, and the goods turned over to M. T. Hildinger as agent for Mrs. Hildinger, and up to the time of trial she had remained in possession thereof. M. T. Hildinger was at all the times named insolvent, and Mrs. Hildinger had no money or property with which to make the said purchase except the money borrowed as stated. It appears that the business became somewhat prosperous, and the debt to the second mortgagees and to the bank had been paid prior to the trial herein, which occurred about one year after the purchase.
The court, found that the goods were actually worth $5253.72 — that is, $953.72 more than the price at which the same were sold at the mortgagees’ sale to Mrs. Hildinger ; that the sale was unfair because the goods were sold in bulk to the mortgagees and for less than their fair value ; and that in all other respects the sale was fair. The court’s conclusions of law were : That the plaintiffs were entitled to maintain their action in garnishment against Mrs. Hildinger; that the sale of the goods by the second mortgagees and the purchase thereof by Mrs. Hildinger were unfair and void ; and that Mrs. Hildinger had at the commencement of the action in her possession money and property subject to garnishment in the sum of $953.72. Judgment was thereupon rendered accordingly.
There is nothing in the findings of the court to impeach the good faith of the plaintiff in error in the transaction whereby she became the owner of the goods in question, and it follows that, by reason of her purchase of the goods, title to the same passed from the mortgagors and the mortgagees alike. The plaintiff in error, being the owner of the stock of goods by purchase in good faith from the mortgagees, was not liable as garnishee, since she held, no property belonging to M. T. Hildinger & Co. If, therefore, the plaintiffs had á right of action against any one because of the improper manner in which the goods were dis posed of, such right of action was against the mortgagees by whose conduct the loss was occasioned. In the case of Wygal v. Bigelow, 42 Kan. 477, 22 Pac. 612, the third paragraph reads :
“ When the mortgagee of a chattel takes possession of the mortgaged property upon default, and at a sale thereof unlawfully, fraudulently and unfairly buys in the property at a price greatly less than its actual or market value, and soon thereafter sells and disposes of large portions of the same, so that the property cannot be returned or redeemed, the mortgagor may maintain an action to recover the excess of the value of the mortgaged property over the amount of the debt secured by the'mortgage, without the tender of the amount of the debt, or making payment.” .
The district court erred in rendering judgment against the plaintiff in error. The judgment will be reversed and the cause remanded for a new trial. | [
-14,
106,
-72,
-100,
10,
96,
32,
-70,
65,
9,
-73,
87,
-23,
-57,
16,
121,
115,
105,
81,
122,
-26,
-77,
39,
33,
-42,
-45,
-111,
-35,
-76,
76,
-28,
-42,
76,
48,
-62,
-43,
103,
-61,
-63,
20,
-52,
36,
9,
-19,
121,
-84,
48,
59,
49,
75,
113,
-114,
-29,
47,
28,
75,
40,
57,
-17,
61,
96,
-80,
-117,
5,
127,
22,
19,
36,
-104,
71,
-56,
12,
-108,
53,
3,
-24,
114,
-90,
-126,
84,
107,
-71,
8,
102,
98,
49,
69,
-19,
-104,
-100,
62,
126,
-99,
-89,
-79,
8,
11,
109,
-65,
-99,
116,
80,
-121,
118,
-2,
-116,
60,
-84,
3,
-113,
-106,
-95,
63,
118,
-100,
-121,
-49,
-89,
48,
81,
-51,
-80,
92,
71,
57,
-109,
-50,
-98
]
|
The opinion of the court was delivered by
McElroy, J.:
This action was instituted in the district court of Atchison county by Elizabeth P. Chain to enjoin Roscoe Brooks, Charles Young, and Joseph Sloan, as officers of school district No. 44, Atchison county, and each of said parties as individuals, from removing a schoolhouse to another location within the district. The plaintiff filed her verified petition August 19, 1897. Thereafter, on the same date, she presented the petition, together with an affidavit showing the absence of the district judge from the county, to the probate judge, who issued a temporary restraining order and required notice of the application for temporary injunction to be served, and set the hearing for the 21st of August, 1897. At the time fixed for the hearing the parties appeared, and after a full hearing the temporary injunction was allowed, upon the plaintiff giving a statutory bond in the sum of $1000, which was filed and approved. Thereafter on August 31, and before answer-day, the plaintiff filed her amended petition, duly verified. Upon the same day the defendants filed with the district judge their motion to dissolve the temporary injunction, which was heard by the district judge, at chambers, and judgment rendered dissolving the same ; to all of which the plaintiff objected and excepted. The plaintiff’s motion for a new trial was overruled, to which she excepted, and she presents the case to this court for review.
The defendants in error object to the consideration of the case for insufficiency in the record. The case is presented to this court by petition in error and what purports to be a case-made. An examination of the case-made, however, discloses that the same does not purport to contain all the pleadings, motions, evidence, orders and proceedings in the court below, nor sufficient thereof to present any question to this court, nor is there any certificate attached showing what it does contain. The only certificate contained in the record reads: “The above and foregoing is all .the testimony offered and rejected upon the trial of said motion.” The record is wholly insufficient to present any questions 'to this court for review.
The petition in error is dismissed. | [
-16,
-24,
-28,
12,
74,
97,
2,
-70,
97,
-109,
-28,
83,
-83,
-48,
5,
105,
123,
41,
-15,
121,
-29,
-74,
66,
65,
-46,
-13,
-52,
-41,
-77,
126,
-10,
-34,
72,
50,
10,
-43,
70,
-54,
-57,
92,
-114,
5,
-87,
-64,
-47,
-120,
52,
119,
10,
15,
113,
62,
-13,
43,
28,
67,
105,
45,
-53,
61,
-15,
-15,
-85,
22,
125,
22,
-79,
100,
-108,
71,
72,
42,
-104,
49,
-128,
-24,
114,
-106,
-122,
84,
1,
-87,
40,
100,
98,
33,
-91,
-17,
-72,
-116,
15,
55,
-115,
38,
-109,
9,
-29,
4,
-74,
-103,
116,
80,
6,
122,
-90,
5,
20,
44,
78,
-53,
-106,
-105,
31,
56,
-112,
7,
-21,
-93,
48,
65,
-51,
-66,
90,
-58,
24,
-101,
-50,
-68
]
|
The opinion of the court was delivered by
Milton, J. :
“By paragraph 6948 of the General Statutes of 1889, it is made the duty of the state board of equalization to apportion the amount of the taxes for state purposes among the several counties, in proportion to the valuation of the taxable property therein, and paragraph 6930 makes it the duty of the county clerk in each county to determine the rate per cent, necessary to raise the taxes required for state purposes, as determined by the state board of equalization, and place the same upon the tax-rolls of the county. ’’ (The State, ex rel., v. Bailey, 56 Kan. 81, 42 Pac. 373.)
Section 225 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, §7370), reads:
“If after the settlement by the county treasurer of any county in November of each year as provided in section 99, chapter 34, of the Session Laws of 1876, there shall remain due from such county any portion of the state tax levied for the preceding year, the auditor of state on the second Monday of July in each year succeeding the said November settlement shall report to the county clerk of such county the amounts of such unpaid tax, and the county clerk shall determine the rate per cent, necessary to raise the said amount, and shall place the same' on the tax-roll in addition to the regular levy for state purposes, and the same shall be collected by the county treasurer and paid into the state treasury as are other state taxes.”
The true rate for the year 1888 to raise Sumner county’s apportionment of the state tax was four and one-tenth mills, while the evidence introduced by the defendants shows the rate as fixed by the county clerk to have been four and one-half mills, an increase of ten per cent, in the state levy. Giving the presump.tion that the county clerk duly performed his official duty in respect to the tax-roll its due weight, the inquiry arises whether under any circumstances he could legally have entered on the tax-roll the rate for state taxes at four and one-half mills. It is manifest that if, under the provision of section 225, supra, the auditor of state reported to the county clerk of Sumner county that a balance of state tax was due from such county for the year 1887, it became the duty of the county clerk to add to the regular levy for state purposes the rate per cent, necessary to raise such balance due the state. In the absence of evidence in behalf of the defendants upon this point the presumption arising in the premises was not overthrown, and the tax deed should have been held valid. For the same reason the demurrer to the evidence introduced by the defendants should have been sustained. In Bergman v. Bullitt, 43 Kan. 709, 23 Pac. 938, one paragraph of the syllabus reads:
“Presumably, public officers perform their duties as the law requires ; and where it is shown that a levy for taxes was made by the board of county commissioners, which under some circumstances would be legal and under other would be excessive and illegal, it will be presumed, in the absence of evidence showing the existence of conditions that would make it .excessive, that the board acted within the law in making the levy, and that it is legal.”
Referring to the plaintiff’s objection to the introduction of the memorandum made by the county clerk showing the taxes levied in 1888, we think it not the best evidence available. The law requires the county clerk to place the rate per cent, determined by him as necessary to raise the taxes required for state purposes upon the tax-roll of the county, and there is no requirement that any other record of the matter shall be kept. Hence, the tax-roll is the best evidence to show such rate per cent.
The evidence offered by the plaintiff in rebuttal concerning the tax actually levied against each of the lots in controversy for the year 1888 was entirely immaterial and the court properly refused to admit it. The judgment of the district court will be reversed and the cause remanded for a new trial. | [
-12,
-26,
-76,
111,
-86,
-28,
43,
-104,
72,
-95,
-89,
115,
105,
-6,
21,
117,
-77,
93,
85,
106,
-60,
-73,
22,
35,
-112,
-77,
-47,
-33,
-67,
77,
-12,
-41,
76,
-80,
-54,
-43,
71,
106,
-121,
-44,
70,
10,
41,
-51,
-38,
96,
48,
109,
114,
73,
49,
-49,
-13,
40,
28,
67,
105,
44,
-39,
-94,
-112,
-79,
-70,
-97,
127,
1,
17,
103,
-72,
1,
-40,
-82,
-104,
61,
-64,
-24,
123,
-90,
-126,
-36,
13,
-7,
13,
110,
102,
17,
-123,
-17,
-84,
-119,
46,
-9,
-99,
-25,
-109,
88,
122,
-114,
-74,
29,
118,
86,
15,
118,
-31,
21,
95,
108,
-111,
-98,
-10,
-109,
-51,
116,
-126,
19,
-49,
-125,
16,
97,
-122,
-29,
94,
103,
58,
-101,
-33,
-32
]
|
The opinion of the court was delivered by
Dennison, P. J.:
This is an action of replevin brought by the plaintiff in error against Davis as constable to recover the possession of a phaeton which Davis held by virtue of the levy of an execution against one McClurg, upon a judgment' against him in favor of the National Bank of Commerce.
Talbott claimed a special ownership by reason of a sale note which he recorded in the office of the register of deeds, of Reno county at eleven o’clock a. m. on the day the levy was made. The testimony of the plaintiff shows that Davis came to McClurg’s barn about ten o’clock A. m. and told him that he had come to make a levy of the execution upon his stock, and asked him to point it out. ' He also asked McClurg if he could leave it with him, and McClurg replied that he did not know. About one-half or three-quarters of an hour after Davis came McClurg left the barn, saying he was going to see his lawyer. He also notified Talbott and others that Davis was about to make the levy, and they at once filed their liens. After McClurg returned from seeing his lawyer, which was shortly before 11:30 o’clock, Davis gave him a list of the property he had levied upon, and McClurg then consented that it might be left with him. The property was left with him until some time in the afternoon, when the constable took it into his own possession and removed it from the barn, and the plaintiff in error demanded possession and at once brought this action.
The Bank of Commerce filed an interplea and was by the court made a party defendant. Upon the trial, the court sustained a demurrer to the evidence of the plaintiff and he brings the case here for review.
No petition in error is filed against the National Bank of Commerce, the interpleader, as the real party in interest and a necessary party in this court. The defendant named in the petition in error is “ S. V. Davis, constable.” A petition in error with the case-made or transcript attached is a prerequisite to our jurisdiction, and because of the failure to bring the action against the necessary parties the case must be dismissed.
No motion to dismiss has been filed, but, the omission being jurisdictional, it is our duty to raise the question without a motion.
The petition in error is dismissed. | [
-14,
-24,
-40,
-99,
58,
-32,
42,
-86,
89,
-95,
-89,
115,
-23,
-58,
28,
97,
102,
-83,
-43,
121,
-20,
-77,
7,
97,
-46,
-13,
-111,
-59,
49,
73,
-12,
70,
76,
52,
-54,
-107,
70,
8,
-123,
-108,
-114,
-123,
9,
-28,
-7,
72,
52,
-71,
54,
11,
113,
30,
-29,
42,
31,
-62,
41,
40,
-19,
61,
-16,
-15,
-117,
13,
95,
7,
49,
118,
-98,
71,
-56,
46,
-108,
53,
0,
-7,
123,
-106,
-122,
-44,
43,
-101,
44,
102,
98,
1,
93,
-17,
-120,
-72,
46,
62,
13,
-90,
-112,
40,
43,
33,
-74,
-99,
-2,
16,
38,
-4,
-17,
-99,
29,
108,
6,
-49,
-98,
-77,
47,
48,
-102,
-61,
-45,
3,
48,
113,
-49,
-22,
92,
71,
83,
27,
-114,
-34
]
|
The opinion of the court was delivered by
McElroy, J. :
This action was brought by Rebecca B. Catón against the Kansas City Northwestern Railroad Company and Joseph Speck, on the 5th day of June, 1897, in the district court of Jefferson county. The plaintiff alleged the death of her husband, William B. Catón, and that his death was caused by the negligence of the defendant railroad company; the appointment of Speck as administrator; the obtaining by defendants from the probate court of Wyandotte county, on November 19, 1896, of an order to compromise ; and the rendition in an action in the court of common pleas of Wyandotte, county of a fraudulent and collusive judgment; and prayed the court to set aside and vacate such appointment of Speck as administrator, the aforesaid order of the probate court, and the order of the court of common pleas of Wyandotte county, and asked for judgment against thp defendant railroad company in the sum of $10,000.
The defendants filed separate demurrers to the plaintiff’s petition upon all of the statutory grounds. These demurrers were overruled by the court, the defendants excepting. The Kansas City Northwestern Railroad Company filed a general denial, except as to matters specifically admitted ; alleged contributory negligence and knowledge of the danger on the part of William B. Catón, and further averred that the plaintiff ought not to have or maintain her action because Joseph Speck was the legally appointed administrator of the deceased, and because the matter of the plaintiff’s claim had been duly adjudicated and determined in a former action in the court of common pleas of Wyandotte county; and that the judgment rendered by the court in Wyandotte county had been satisfied. The answer further averred that there was a defect of parties, a misjoinder of causes of action, and a lack of jurisdiction in the court. Speck filed a separate answer, alleging substantially the same facts, except for the allegation of contributory negligence. The replies were, in substance, general denials.
Subsequently the two defendants filed separate motions to require the plaintiff t.o elect between her cause of action to set aside the alleged fraudulent judicial proceedings and her cause of action to recover for the death of Catón, both of which motions were overruled. A trial was had before the court and a jury, and a verdict returned for the plaintiff in the sum of $1600, and judgment rendered thereon. The defendants’ motions for a new trial were overruled and the defendant rail road company, as plaintiff in error, presents the record to this court for review, and alleges error in the proceedings of the trial court.
The principal facts as disclosed by the record are as follows : The deceased, William B. Catón, was a resident of Wyandotte county; he died on September 11, 1896, within the state of Kansas, leaving some personal estate, which was liable to pass into the hands of an administrator. John W. Wagner, an undertaker, on September 17, had a claim against the estate of deceased for burial expenses amounting to about $110, and on that date he filed in the probate court his petition repi’esenting that the deceased was a resident of Wyandotte county; that he died in the state of Kansas on the 11th day of September, 1896, leaving property requiring immediate care and attention. The probate court issued letters of administration upon the estate to Joseph Speck, a resident of Wyandotte county, who filed his bond and oath of office and entered upon the discharge of his duties. Speck has not resigned, nor has he been removed from the trust.
Catón was a locomotive engineer, and at the time of his death was sixty-two years of age ; he had been in the employ of the defendant railway company for nine years, and eight years a resident of the state of Kansas ; he was familiar with the road-bed and railway-track. He was killed in a wreck on the 11th day of September, 1896, while running his engine over the road of defendant company. During the two years immediately prior to his death, he contributed nothing to the support of plaintiff.
Rebecca B. Catón, at the time of her husband’s death, was a resident of Massachusetts; she was never, at any time, a resident of this state. None of the officers, agents or attorneys of either the defendant railway company or of the Missouri Pacific Railway Company had anything whatever to do in procuring Wagner to file his petition for the appointment of an administrator, nor had any of such officers, agents, attorneys or railway companies anything whatever to do in procuring the appointment of an administrator. The plaintiff, Catón, was the widow and only next of kin to the deceased.
It was alleged, and the jury found, that Caton’s death was caused by the negligence of the defendant railroad company in permitting rotten ties to remain' in its track long after it should have, by the exercise of ordinary diligence, discovered and repaired the defects ; that after the death of Catón the railroad company and the defendant Speck, for the purpose of defeating and preventing the plaintiff, as widow and only next of kin, from asserting and maintaining her claim and cause of action at law against the railroad company on account of the death of Catón, collusively and fraudulently entered into an agreement, unknown to the plaintiff, to procure a judgment to be entered in the court of common pleas of Wyandotte county in favor of Speck, as administrator of the estate of Catón, deceased, and against the railroad company, for the sum of $600 and costs, and that judgment was entered and satisfied of record pursuant to such agreement.
There are eighty-six formal assignments of error, but it is not necessary that they should be considered separately, as few questions are presented by the record. The plaintiff in error contends that for an injury resulting in a death the only action that can be brought is created by sections 418 and 419 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, §§422, 422a), which read :
“ When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, .to be distributed in the same manner as personal property of the deceased.
“In all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of the civil code of 1868 (the next preceding section) is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal represenative is or has been appointed, the action provided in said section may be brought by the widow, or, where there is no widow, by the next of kin of such deceased.”
These sections give a right of action in the first place solely to the administrator, or, if the deceased was a non-resident or if no personal representative of his estate has been appointed, to the widow or next of' kin. In the first instance, in an action by the widow or next of kin the plaintiff must allege in his petition, as a condition precedent to his right of action, among other things, that there has been no administrator appointed.
The defendant in error sought to avoid the force of this statute by pleading that the appointment of the administrator, the procurement of the order allowing him to settle the claim against the railroad company, the filing of the suit against the company, the procuring of judgment, the payment and release thereof and all proceedings done by the administrator were collusive and fraudulent as against the rights of plaintiff, and therefore void. The jury made special find; ings of fact, and found all of these contentions in favor o'f plaintiff and against the defendant railroad company and Speck, except that they found that the appointment of the administrator was not collusive, but that he was regularly appointed, without fraud or collusion on the part of either of the defendants.
The plaintiff in error contends that, inasmuch as the jury found that the administrator was properly appointed, ydthout fraud or collusion on the part of the railroad company or other parties interested, his appointment was valid and binding upon all parties concerned, no matter what may have been his conduct thereafter; that the plaintiff, Catón, had no authority to prosecute the action, and that the judgment was therefore contrary to the law.
The real contention in this case may be summed up by stating that the railroad company contends that the right of action for injuries resulting in the death of a party accrues only to the administrator, where one has been appointed; that no right of action is created or exists under our statute to the widow of such deceased party, and that under' no circumstances can she prosecute an action for the recovery of such damages when there has been legally appointed an administrator. The defendant in error concedes, on the other hand, that such is the law governing an ordinary action, but insists that under the facts disclosed by the record herein the railroad company entered into a fraudulent scheme for the purpose of defrauding her of her rights accruing by reason of the wrongful killing of her husband, and therefore that she may maintain an action, in the na ture of a proceeding in equity, by which she can be relieved, as though no administrator had been appointed.
From the findings of the jury, it appears that the administrator was legally appointed, - without any fraud or collusion on the part of the railroad company, but that all other matters done and performed by him subsequent to his appointment were done as the result of collusion between him and the railroad company. Mrs. Catón is the real party in interest, and it appears to us that she ought to be relieved from the wrongful acts done in the premises. This is not an action at law for the wrongful killing of the husband of defendant in error, but an action to relieve her of the wrongful acts done through the fraud of the administrator and the railway company, and to recover damages sustained by the death of her husband.
It is true that the cause of action is originally in the administrator, yet it is for the use and benefit of the widow and children, if any there be; and a court of equity ought to take notice of the real party in interest, and allow, her sufficient standing in court so that she may be relieved of such wrongful acts. An administrator who is controlled by the wrong-doer is-equivalent to no administrator. A court of equity is justified in assuming, under the circumstances of this case, that there was no'administrator ; that there was no one acting for the widow; the administrator was acting, not for the purpose of securing the legal rights of the widow, but for the purpose of preventing her from recovering for.the loss of her husband. It appears to us, upon the broad principles of equity, that there ought to be a remedy for Mrs. Catón for the wrongs perpetrated upon her by. the administrator and the railroad company. There are authorities ■which, tend to support her right to recover in this proceeding.
In Freeman on Judgments, section 250, it is said:
“According to the statement made by Wedderman in his argument in the celebrated case against the duchess of Kingston, and adopted by Lord Brougham in a subsequent case, to receive credit as an estoppel, a judgment or decree must be * a judicial determination of the cause agitated between real parties, upon which a real interest has been settled. In order to make a sentence, there must be a real interest, real prosecution, a real defense, and a real decision. Of all these requisites, not one takes place in a fraudulent or collusive suit. There is no judge, but a person invested with the insignia of a judicial office is misemployed in listening to. a fictitious cause proposed to him. There is no party litigating ; there is no party defendant, no real interest brought in question.1 It is also said that the principle of res judicata cannot be invoked to sustain fraud. Therefore, in an action against‘several judgment defendants upon a judgment, one of them may show that it was obtained by a conspiracy between the plaintiff and one of the defendants. One cannot, by procuring proceedings to be commenced against himself and controlling both the prosecution and defense, procure a judgment which will bar another action in favor of a party whose name has been used, but who in fact had no knowledge or control of the prosecution of the action.”
And in section 336 it is said:
“Whenever a judgment or decree is procured through the fraud of either of the parties, or by the collusion of both, for the purpose of defrauding some third person, he may escape from the injury thus attempted by showing, even in a collateral proceeding, the fraud or collusion by which the judgment or decree was obtained. . .”
In Pomeroy’s Equity Jurisprudence, section 231, the theory of equity is thus stated :
“The rule has already been stated, as one of the foundations of the concurrent jurisdiction, that where a court of equity has obtained jurisdiction over some portion or feature,of a controversy, it may, and will in general proceed to decide the whole issues, and to award complete relief, although the rights of the parties are strictly legal, and the final remedy granted is of the kind which might be conferred by a court of law. This principle is, however, of wider application, extending in its operation to both the concurrent and the exclusive jurisdictions ; and it requires, therefore, a more full discussion. . In its application to the concurrent jurisdiction, this principle forms, as has been already shown, one of the very foundations upon which that jurisdiction sometimes rests; and it is then something more than merely an occasion or condition of fact for the proper exercise of the jurisdiction. In other words, where the primary rights and cause of action of the complaining party are legal, and the remedy which he asks and obtains is of the kind given by courts of law, the concurrent jurisdiction of equity to interfere and adjudicate upon the controversy may exist by virtue of this principle ; it may alone determine the inadequacy of legal remedies upon which the very existence of the concurrent jurisdiction always depends. It may be remarked that the instances in which the concurrent jurisdiction results from the operation of this principle, at least in the United States, are most frequently cases of accounting or of discovery followed by relief.”
As tending to support this view, see, also, Klemp v. Winter, 23 Kan. 699; Busenbark v. Busenbark, 33 id. 572, 7 Pac. 245; Proctor v. Dicklow, 57 id. 119, 45 Pac. 86; Carter v. Christie, 57 id. 492, 46 Pac. 964.
The judgment of the trial court will be affirmed. | [
-16,
104,
-76,
-99,
56,
-96,
34,
-88,
83,
-95,
-92,
83,
-55,
-40,
17,
41,
106,
45,
-47,
123,
-30,
-93,
7,
-30,
-110,
-13,
-75,
-51,
-78,
88,
116,
-34,
73,
48,
10,
-107,
70,
66,
-59,
30,
-114,
36,
-87,
-63,
89,
8,
60,
121,
18,
70,
113,
-65,
-5,
42,
92,
-61,
109,
46,
-37,
-87,
-48,
-16,
-86,
-59,
125,
22,
35,
4,
-100,
-121,
72,
63,
-104,
53,
32,
-84,
115,
-90,
-122,
84,
105,
-39,
12,
-82,
67,
35,
28,
-81,
-24,
-104,
14,
62,
-99,
-90,
-126,
9,
75,
109,
-74,
29,
117,
84,
7,
-2,
-19,
4,
24,
124,
-125,
-50,
-12,
-79,
15,
36,
-100,
19,
-21,
-91,
38,
112,
-115,
98,
89,
71,
58,
19,
-113,
-76
]
|
The opinion of the court was delivered by
Milton, J.:
The record presents three cases, which were tried as one in the district court of Reno county, two being actions in replevin and one for conversion, the subject-matter of all of which was a number of promissory notes belonging originally to D. J. Fair & Co., a partnership composed of D. J. Fair and George M. Schurr. They were conducting a lumber and grain business at Abbyville, Kan., for about three years prior to February 20, 1895, at which date the partnership was dissolved by mutual consent, Fair remaining in control of the business and succeeding to the ownership of all the property of the firm, including its notes and accounts. While the partnership existed Schurr had the entire management of its affairs, and prior to its formation he managed the business at that place for Fair. It seems to have been understood between the partners that the banking transactions of the firm should be with the Valley-State Bank, of Hutchinson. In 1892 and 1893, and after the partnership was formed, Schurr borrowed various sums from the defendant in error, giving his individual notes therefor. At such times he stated that the money was “needed to tide over collections,” or “needed in the business.” Checks for the proceeds of two of these notes were deposited by Schurr in the Valley State Bank to the credit of D. J. Fair & Co., and such checks were thereafter returned to the Arlington bank. In August, 1892, the defendant in error, by its president, deposited with Schurr, at Abbyville, $200 in currency, to be used in cashing checks at that place for the convenience of the bank’s customers, Schurr giving his demand note therefor, as a memorandum of the transaction. Four months later the bank’s president, observing that the money was not being called for as anticipated, proposed to take it up and surrender the demand note. Schurr then said to him, “We have used that in our business ; we have bought wheat with it, and propose to pay-interest on it as a loan from that date.” It was so arranged and the bank retained the note. Renewals of the note and partial payments thereon followed until in March, 1894, when Schurr, representing that the firm needed $400 with which to pay for wheat theretofore stored with it, began the transactions whereby the notes in controversy were given as collateral security to the individual notes of Schurr for loans made by the bank.
The evidence on behalf of the plaintiff tended to prove that he h'ad no knowledge whatever respecting the transactions whereby such notes were indorsed by Schurr and delivered as collateral security to the defendant bank. On the part of the defendant, the evidence tended to prove that such transactions were • always regarded by the bank officers as transactions •with the firm of D. J. Fair & Co., and that the loans were made upon the credit of the firm and for its use and benefit, and that in fact a great part, if not all, of the proceeds of the loans made to Schurr at the times the collateral notes were delivered were used in partnership business. At the times the actions were commenced the defendant bank held a note of Schurr for $647, with certain notes of D. J. Fair & Co. as collateral thereto, and it had during the preceding year collected some of the collateral notes deposited with it at various times by Schurr, and had' applied the proceeds upon his notes. There was no direct evidence of fraudulent conduct on the part of Schurr in respect to the partnership affairs.
The court instructed the jury at great length, covering fully all features of the controversy, and refused to give any of the instructions asked for by the plaintiff or the defendant. The trial court’s theory is well expressed in the following instruction given to the jury :
“The jury are instructed further that if you find from the evidence that Schurr was general manager and a partner of the firm of D. J. Fair & Co., and as such charged with the duties of raising money for the firm and paying debts, and went to defendant and represented that he wanted to borrow money to assist collections of the firm or to buy property for the firm, or to refund money of other persons used by the firm, or pay the firm debts, and for the purpose of borrowing the money offered his individual note with collateral security, the last payable to the firm, duly indorsed by the firm, and the bank on the strength of his said note and the said collateral loaned the money in good faith, believing it was to be used for such partnership purposes, in that event the plaintiff cannot recover the possession or value of any of the collateral notes, so transferred, until the entire debt evidenced by the individual note of Schurr is paid, regardless' of the fact whether the said money so loaned was used in the partnership business or not, and regardless of the state of his account with the firm, and regardless of whether the representations were true or false.”
Separate verdicts were returned in each case for the defendant, and judgment was entered accordingly. The verdict and judgment, being based on conflicting evidence, must stand, unless it appears that the court erred in the admission or the exclusion of testimony, or in giving or refusing to give instructions. The verdicts are equivalent to findings that the money was borrowed by Schurr from the bank for the firm of D. J. Fair & Co. upon the firm’s credit, and that it was loaned to the firm upon the firm’s credit by the bank. It follows that the debt evidenced by the note of Schurr was a firm debt. The present action is not upon such note, and it was clearly competent for the bank to defend against the plaintiff’s action by showing the real nature of the transactions upon which it-relied as a defense. Prima facie, Schurr’s note bound himself as an individual only; while in fact, as found by the jury, the transactions wherein he gave his note bound the firm of Fair & Co. It was for the jury to determine, under proper instructions, whether the money was borrowed by and loaned to the firm and upon its credit, or whether the sole credit was given to Schurr. The important question is not who gave the note, but, rather, who created the debt; that is, the real nature of the contract of indebtedness, of which Schurr’s note is an evidence. Such questions are set at rest by the general finding of the jury.
The plaintiff in error contends that the following proposition of law governs in this case :
“Negotiable paper made in the name of one partner, when his name is not also that of the firm, is not, as a general rule, binding upon the partnership.” (17 A. & E. Encycl. of L. 1027.)
This rule is supported by many authorities which are cited in the notes, but it is too narrow to cover the facts presented by the record before us. The rule contended for was sufficiently embodied in the instructions given, but the court, as we think properly, also embraced in its instructions the proposition which is thus stated on page 1029 of the same volume:
“ Individual paper of one partner, taken when the obligation was incurred by the partnership or upon its credit, will be regarded as merely collateral, and the other partners will be held liable upon the original consideration.”
The same doctrine is thus stated by Bates:
“Where the individual paper of one partner is taken, yet if the sale was made to and upon the credit of the firm, the other partners will be liable for the original consideration as for money lent or goods sold, although they'are not liable upon the paper, which is merely collateral.” (Law of Partnership, §440.)
In the case of Hoeflinger v. Wells, 47 Wis. 628, 3 N. W. 589, the trial court sustained a general demurrer to the plaintiff’s complaint, wherein it was alleged that one Stafford borrowed from the plaintiff on account of and for the use of the firm of which he was a member a certain sum of money, and that such loan was evidenced by Stafford’s individual note, and that the money so borrowed was expended for the use of the firm. The supreme court reversed the order of the trial court sustaining the .demurrer, and in its opinion said:
‘ ‘ In our view of the construction which must be given to the allegation as to the borrowing of the money, the giving of the individual note of one of the partners for the money borrowed by the firm would be no bar to a recovery against the firm after the note became due and remained unpaid.
“If upon the trial the plaintiff can show that the money was borrowed for the firm, that he was at the time advised that it was for the firm, and that he loaned it to the firm and upon its credit — and, as we construe the allegations of the complaint, they are sufficient to admit such evidence — then the mere taking of the individual note of -the one partner for the money so loaned will not defeat the action. The taking of such note may be evidence tending to show that the money was not loaned to the firm, and that the sole credit was given to Stafford; but it is not conclusive of that fact; and if the jury or the court should find as a fact that the money was borrowed by and loaned to the firm, and upon its credit, then the taking of the individual note of one member of the firm would not be a payment of such firm debt, unless it was affirmatively shown that such note was taken in payment of the same.” (Citing numerous supporting decisions.)
Complaint is made of the court’s refusal to permit the plaintiff to testify that E. J. Fair & Co., as a firm, had no business transactions with the bank at Arlington, and that he as one of the partners never authorized Schurr to transact business of any kind in the name of or for the firm with that bank, and that he had no knowledge of the fact that Schurr had borrowed money of the defendant in the name of the firm or had transferred any of the firm notes to the bank. An examination of the record indicates that the plaintiff actually testified concerning the matters just stated, and we think that no substantial error was committed in the respect named.
Plaintiff in error also claims that the court erred in permitting the witness Schurr to answer a question as to whether or not a statement made by the preceding witness concerning certain transactions was substantially correct. We think the question was improper and that the court should not have permitted it to be answered over the objection of the plaintiff; but as the witness thereafter testified fully concerning the trnsactions referred to in the question it does not appear that the plaintiff was harmed by the error. The judgment of the district court will be affirmed. | [
112,
-22,
-16,
124,
74,
96,
50,
-102,
74,
-127,
36,
83,
-23,
-1,
21,
125,
98,
29,
81,
104,
-26,
-78,
23,
104,
-45,
-13,
-7,
-59,
-72,
111,
-92,
-60,
76,
48,
10,
-99,
-26,
-120,
-63,
28,
14,
-124,
41,
66,
-39,
64,
52,
28,
48,
72,
113,
94,
-13,
40,
28,
-58,
105,
44,
-19,
-83,
-16,
-15,
-70,
-59,
93,
23,
19,
0,
-100,
6,
-64,
46,
-104,
53,
64,
-23,
62,
-74,
6,
-12,
15,
41,
9,
126,
98,
16,
53,
-49,
104,
-116,
38,
-10,
-99,
-57,
-112,
72,
2,
41,
-65,
29,
123,
86,
2,
-4,
-18,
13,
25,
108,
7,
-54,
-74,
-109,
-113,
124,
-98,
11,
-1,
-93,
49,
97,
-113,
112,
92,
71,
58,
19,
-50,
-11
]
|
The opinion of the court was delivered by
Schoonover, J.:
On the 17th day of September, 1895, M. D. Lee executed a mortgage on a stock of goods to R. L. McDonald & Co. On the 19th the mortgage was filed for record. On the 21st R. L. McDonald & Co. took possession. On the 23d the Symns Grocer Company, plaintiff in error, commenced an action in the district court of Harper county against M. D. Lee upon a claim for goods sold, and caused the stock of goods mortgaged to R. L. McDonald & Co. and the book accounts (not mortgaged) to be attached as the property of M. D. Lee.
R. L. McDonald & Co. filed a motion to dissolve the attachment and discharge the attached property. This motion was heard upon affidavits, record and oral evidence, and the property attached included in the mortgage discharged. The plaintiff below brings the case here for review, and questions the right of the intervenors, as mortgagees, to move to dissolve the attachment and discharge the attached x>roperty.
Plaintiff in error contends that the intervenors had no legal right to move “ to quash, set' aside and hold for naught the order of attachment, and also that said goods be released, and for a return of the attached property to R. L. McDonald & Co.” From the wording of the motion there is ground for this contention, but it is clear from the record that the only issue submitted upon the motion was between the Symns Grocer Company and R. L. McDonald & Co. The object of the motion and the theory upon which the,issue was tried was to procure a discharge of the property contained in the mortgage of McDonald & Co. The final order is as follows :
“It is thereupon considered, ordered and adjudged by the court, that the motion of R. L. McDonald & Co., mortgagees, to discharge the property herein attached as herein found and to dissolve said attachment, be and the same is hereby sustained, except as to the accounts and books of account which are not included in their said mortgage, and the sheriff of Harper county, Kansas, is hereby ordered and directed to return said property to the mortgagees, R. L. McDonald & Co.”
McDonald & Co. were in possession of the goods covered by their mortgage at the time they were attached. They had the right to move for a discharge of the attachment as to the property covered by their mortgage. (Gen. Stat. 1897, ch. 95, § 554; Gen. Stat. 1899, §4823; Dolan v. Topping, 51 Kan. 321, 32 Pac. 1120; Grocery Co. v. Records, 40 Kan. 119, 19 Pac. 346; Long Brothers v. Murphy, 27 Kan. 375.)
It is further contended that the judgment of the. district court is not sustained by the evidence and is contrary to law. Lee executed a mortgage and delivered it to McDonald & Co., and it was never recorded. Afterward, on the 17th day of September, Lee executed a second chattel mortgage, for an amount in excess of what was due, on the stock of goods in controversy, which was filed for record September 19. It is claimed that N. L. McDonald & Co. took possession on September 21. On the 23d plaintiff in error caused the stock to be attached.
It is contended that the mortgage was given for an amount in excess of the sum actually due, and that the case should be reversed upon the authority of Wallach v. Wylie, 28 Kan. 138. In that case the trial court found that the excess was fraudulent, “ merely a pretended indebtedness without any basis therefor,” and that the mortgage was executed and received with intent to hinder, delay and defraud creditors. There are no such findings in the case under consideration. Lee executed the mortgage for the face of the note, neglecting to deduct certain credits. McDonald & Co. make no claim to the excess and there is no finding of fraud or collusion. It must be an overstatement of the amount, made with the intent to hinder, delay and defraud the creditors. (Jones, Chat. Mort. §339.)
Our supreme court, in the case of Bush v. T. G. Bush & Co., 33 Kan. 557, 6 Pac. 794, said : “ The mere fact that a mortgage given by an insolvent person secures a greater sum than is actually due is not conclusive of fraud.”
Our supreme court also held, in the case of Hughes v. Shull, 33 Kan. 127, 5 Pac. 414 :
“Where a note and mortgage are executed for an amount in excess of the actual indebtedness existing from the mortgagor to the mortgagee, to take up an old note and mortgage given in good faith to secure an actual indebtedness, with the understanding that upon the execution of the new note all the credits that were upon the old note should be placed upon the new note, and such understanding was carried out by the mortgagee, and in the overstatement of the amount secured there was no intent of either party to Kinder, delay or defraud the mortgagor’s creditors, such mortgage is not fraudulent in toto because upon its face it secures an amount of indebtedness in excess of that actually existing from the mortgagor to the mortgagee.”
The evidence is conflicting, but, from our examination of the record, it is sufficient to sustain the conclusions of the trial court.
The other errors assigned have been examined, but they are not sufficient to reverse the case. The judgment of the district court is affirmed. | [
-80,
124,
-104,
-116,
74,
96,
34,
-38,
91,
-128,
-89,
-45,
-23,
-50,
4,
109,
-61,
125,
-63,
104,
-10,
-77,
39,
74,
-46,
-77,
-47,
-59,
-75,
-33,
-28,
95,
76,
36,
74,
21,
-58,
-120,
-63,
92,
-22,
-123,
25,
100,
-39,
0,
52,
-5,
0,
74,
81,
-76,
-30,
46,
31,
-49,
73,
40,
-19,
61,
-47,
-8,
-117,
13,
127,
5,
-111,
38,
-110,
39,
-48,
46,
-104,
48,
16,
-24,
114,
-90,
-122,
84,
69,
-97,
40,
50,
98,
48,
17,
-17,
-56,
-100,
15,
-33,
-99,
-121,
-109,
89,
-117,
97,
-65,
-99,
101,
1,
-122,
-4,
-22,
-116,
25,
44,
7,
-53,
-106,
-109,
-113,
60,
26,
11,
-1,
-125,
48,
113,
-51,
-78,
93,
2,
122,
-101,
-98,
-15
]
|
Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent, Dale E. Lovelace, an attorney admitted to the practice of law in Kansas in 1992. A hearing panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2007 Kan. Ct. R. Annot. 304).
The hearing panel concluded that Lovelace committed criminal acts and those criminal acts reflect directly on Lovelace’s fitness as a lawyer in violation of Kansas Rules of Professional Conduct 8.4(b) (2007 Kan. Ct. R. Annot. 559) (misconduct). A majority of the hearing panel recommended that Lovelace be suspended from the practice of law in the state of Kansas for a period of 6 months. One member of the panel recommended probation. Lovelace filed exceptions to the final hearing report, arguing that the evidence as a whole supports the imposition of probation as a sanction. Before the hearing panel, the Disciplinary Administrator recommended 6 months’ suspension. Subsequently, he altered his recommendation and, at the time of the hearing before the court, recommended placing Lovelace on disabled inactive status.
Hearing Panel’s Findings of Fact
The hearing panel found that in 1996 and 1997, Lovelace filed his federal income tax returns, but he failed to pay the taxes owed. In 1998, 1999, 2000, 2001, and 2002, Lovelace failed to file tax returns and failed to pay his taxes. Currently, Lovelace owes approximately $250,000 in taxes, interest, and penalties.
On September 13, 2005, the United States charged Lovelace with committing a misdemeanor crime by violating 26 U.S.C. § 7203 (2000), in that he failed to pay income taxes for 2000. Lovelace pled guilty in October 2005. On April 7, 2006, the federal court sentenced Lovelace to serve 12 months’ imprisonment. Lovelace served his full prison sentence and has been released.
On April 28, 2006, the Missouri Supreme Court suspended Lovelace from the practice of law. He became eligible to apply for reinstatement in Missouri on April 28, 2008.
Hearing Panel’s Conclusions of Law
Based upon the findings of fact, the hearing panel concluded as a matter of law that Lovelace violated KRPC 8.4(b), which states that “[i]t is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” 2007 Kan. Ct. R. Annot. 559. The panel noted that Lovelace was convicted of a misdemeanor offense of failing to pay his taxes, and he repeatedly failed to file his income tax returns and pay his income taxes. Accordingly, the hearing panel concluded that Lovelace committed criminal acts and those criminal acts reflect directly on Lovelace’s fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
Factors Relating to Appropriate Sanction
In deciding what discipline to recommend, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991). In applying Standard 3, the hearing panel considered the duty violated, the lawyer’s mental state, the potential or actual injuiy caused by the misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal profession to maintain personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to 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 recommen datíon for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent was disciplined in the State of Missouri for the same misconduct. Additionally, in 1993, the Missouri disciplinary authorities admonished the Respondent for having direct contact with prospective clients. Finally, in 2002, the Missouri disciplinary authorities admonished the Respondent for failing to provide diligent representation and adequate communication in two cases. The Hearing Panel considered this prior discipline but found it to be remote in time and/or in character from this proceeding.
“Dishonest or Selfish Motive. It is selfish to fail to pay income taxes.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when he repeatedly failed to file his personal income tax returns and repeatedly failed to pay his income taxes. Accordingly, the Respondent engaged in a pattern of misconduct.
“Illegal Conduct. The Respondent engaged in illegal conduct by fading to file his income tax returns and by failing to pay his income taxes.
“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:
“The Present and Past Attitude of the Attorney as Shown by the Respondent's Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1992. At the time the Respondent’s misconduct began, the Respondent had been practicing law for a period of four years. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct.
“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 Kansas City, Missouri. He enjoys the respect of his peers and clients and generally possesses a good character and reputation.
“Imposition of Other Penalties or Sanctions. Other penalties and sanctions have been imposed against the Respondent. The Respondent spent one year in prison as a result of the misdemeanor conviction.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.”
ANALYSIS
In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Trester, 285 Kan. 404, 408, 172 P.3d 31 (2007); In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011(2007); Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304).
This court views the findings of fact, conclusions of law, and recommendations made by the hearing panel as advisory only, but we give the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Therefore, the hearing panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. When the panel’s findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. We do not reweigh the evidence or assess the credibility of witnesses. 285 Kan. at 408. Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel’s findings. In re Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000). If so, the findings will stand. Moreover, it is not necessary to restate the entire record to show substantial competent evidence to support the hearing panel’s findings. 269 Kan. at 153.
Exceptions
Lovelace takes exception to the hearing panel’s finding with respect to “A Pattern of Misconduct,” arguing the final hearing report does not reflect Lovelace’s testimony that he made failed attempts to remedy his tax problems by playing the stock market. He apparently does not dispute, however, that clear and convincing evidence supports the hearing panel’s finding that he engaged in a pattern of misconduct. Lovelace’s testimony indicated that in 1998 or 1999, he lost $40,000 to $50,000 to stock market investing. Then in 2000, Lovelace attempted to play the stock market again but lost approximately triple the amount he had lost previously. At the hearing, however, Lovelace acknowledged that, if he had paid the large sums of money towards his taxes instead of playing the stock market, he would not be in this “situation.”
With respect to the hearing panel’s findings regarding Lovelace’s “Previous Good Character and Reputation in the Community,” he takes exception to the panel’s failure to specifically mention his work in the Kansas City area community for the “past 13 years.” Lovelace further complains that the panel neither mentioned nor considered a particular letter of support. We note that the panel recognized that Lovelace “enjoys the respect of his peers and clients and generally possesses a good character and reputation.” Implicit in this statement is that the panel considered Lovelace’s good character evidence, including letters which mentioned his community service.
In addition, with respect to the hearing panel’s findings regarding the “Imposition of Other Penalties or Sanctions,” Lovelace takes exception to the hearing panel’s failure to mention that his 1-year prison sentence on a first-time misdemeanor offense “was unprecedented” compared to other attorneys who have faced similar charges. Lovelace argues the other sanctions and penalties levied upon him were more than sufficient to deter further similar conduct. Lovelace testified that three other attorneys in the Kansas City area have been convicted of tax crimes and none received jail time. Included among those attorneys were two of Lovelace’s former law partners. Regardless, the hearing panel clearly considered Lovelace’s prison time to be a mitigating factor.
Clear and convincing evidence supports the panel’s finding that Lovelace violated KRPC 8.4(b). We adopt these findings and conclude that Lovelace violated KRPC 8.4(b). In addition, we find clear and convincing evidence supports the panel’s findings concerning the duty he violated, his mental state, the injuiy caused by his actions, and the aggravating and mitigating factors.
Sanction
In addition to the above-cited factors, the hearing panel examined American Bar Association Standard 5.12 regarding suspension when a lawyer knowingly engages in criminal conduct which seriously adversely reflects on the lawyer’s fitness to practice and Stan dard 5.13 regarding reprimand when a lawyer knowingly engages in other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer s fitness to practice law.
The Disciplinary Administrator recommended that Lovelace be suspended from the practice of law in the state of Kansas for a period of 6 months. Lovelace asked that his plan of probation be adopted.
A majority of the hearing panel concluded that probation is not appropriate in this case. Specifically, the majority concluded that Lovelace’s probation plan is not sufficient, that probation cannot correct the misconduct in this case, that Lovelace failed to put his plan into effect, and that placing Lovelace on probation is not in the best interests of the legal profession and the citizens of the state of Kansas.
One member of the panel opined that Lovelace has been sufficiently disciplined for failing to file and pay his income taxes. Further, in the view of the minority member, Lovelace has complied with the probation plan requirements of Kansas Supreme Court Rule 211(g) (2007 Kan. Ct. R. Annot. 304). The minority member further opined that Lovelace’s misconduct can be corrected by probation and that placing him on probation is in the best interests of the legal profession and the citizens of the state of Kansas.
Lovelace takes exception to the hearing panel majority’s suggested discipline of 6 months’ suspension from the practice of law. When he originally filed exceptions, Lovelace contended that the weight of the evidence supported the imposition of probation, not suspension. He still requests probation, but his circumstances have changed.
Lovelace asserts that since September 2007, he has been diagnosed with “occupational and single episode depression,” takes three daily medications for depression, and attends weekly therapy sessions with Dr. Lester Blue, a clinical psychologist. Dr. Blue has determined that Lovelace should not practice law at this time due to his condition. Lovelace, it appears, has agreed to follow Dr. Blue’s medical advice.
Lovelace asserts that, since he was diagnosed in September 2007, he has not actively retained any new clients and has referred all existing clients, except one, to other attorneys. Lovelace contends that it has been difficult to find an attorney to take his remaining client due to the sensitive nature of the client’s claim, but he is seeking replacement counsel. Lovelace also represents that he is seeking disability benefits.
Because of these changed circumstances, the Disciplinary Administrator modified his recommendation and now recommends placing Lovelace on disabled inactive status pursuant to Supreme Court Rule 208(a) (2007 Kan. Ct. R. Annot. 298).
Given the nature of the conduct and Lovelace’s admitted present inability to practice law, we conclude indefinite suspension from the practice of law is the appropriate discipline to be imposed.
It Is Therefore Ordered that Dale E. Lovelace be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion and until further order of this court, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R Annot. 261).
It Is Further Ordered that Dale E. Lovelace shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337).
It Is Further Ordered that Dale E. Lovelace may seek reinstatement 6 months after the date of this order or anytime thereafter notwithstanding the provisions of Supreme Court Rule 219(e) (2007 Kan. Ct. R. Annot. 350). If Lovelace seeks reinstatement, he shall comply with the provisions of Rule 219. As part of the reinstatement procedure, the Disciplinary Administrator may require an evaluation by a health care provider chosen by the Disciplinary Administrator in order to determine if respondent is mentally and physically competent to engage in the active and continuous practice of law in this state.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
Beier, J., not participating.
Malone, J., assigned. | [
-80,
-22,
-37,
28,
10,
67,
58,
56,
81,
-45,
103,
87,
109,
-85,
0,
123,
113,
121,
80,
120,
69,
-74,
119,
-63,
-26,
-13,
-39,
-42,
-79,
111,
-4,
-107,
13,
58,
-46,
-43,
6,
-126,
-59,
90,
-90,
10,
-117,
-27,
88,
-63,
48,
43,
-113,
15,
49,
-50,
-93,
104,
22,
75,
-120,
12,
93,
-26,
-128,
-111,
-109,
-107,
126,
21,
-93,
20,
30,
7,
84,
47,
-112,
56,
11,
-24,
51,
-106,
-126,
85,
111,
-87,
69,
100,
98,
33,
17,
-19,
-80,
-56,
31,
-13,
-99,
-93,
-103,
-40,
83,
12,
-98,
-1,
118,
86,
46,
124,
100,
69,
57,
108,
7,
-49,
-100,
-125,
-50,
-12,
-50,
-110,
-2,
-90,
0,
65,
-116,
-30,
94,
78,
122,
19,
-86,
-11
]
|
On October 29, 1993, the Kansas Supreme Court suspended petitioner John M. Talley s license to practice law in Kansas for an indefinite period of time. In re Talley, 253 Kan. 834, 861 P.2d 129 (1993).
On July 10, 2007, Talley filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (2007 Kan. Ct. R. Annot 350). On July 10, 2008, a hearing was held before a panel of the disciplinary board.
On July 28, 2008, the panel filed its report setting out the circumstances leading to Talley s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel unanimously recommended that Talley’s petition for reinstatement to the practice of law in Kansas.be granted. The panel further recommended that Talley’s reinstatement be conditioned on the petitioner being required to comply with the CLE requirements beginning with the 2008-2009 reporting year and that the petitioner be required to pay all fees required by the Clerk of the Appellate Courts and the Kansas CLE Commission.
The court, after carefully considering the record, accepts the findings and recommendations of the panel that the petitioner be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that John M. Talley be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual CLE requirements beginning with the 2008-2009 reporting year and upon the respondent paying all fees required by the Clerk of the Appellate Courts and the Kansas CLE Commission.
Dated this 28th day of August, 2008.
It Is Further Ordered that this order of reinstatement shall be published in the official Kansas Reports. | [
-76,
-53,
-73,
95,
14,
67,
50,
-106,
101,
-13,
103,
83,
-19,
-50,
5,
120,
66,
109,
80,
123,
-59,
-73,
127,
-55,
-122,
-9,
-103,
-35,
-69,
79,
-27,
-11,
79,
-8,
74,
-43,
70,
-54,
-47,
92,
-114,
5,
9,
-28,
89,
-127,
54,
121,
23,
11,
17,
47,
-93,
106,
18,
-57,
-56,
108,
91,
-84,
73,
-111,
-101,
-123,
127,
84,
-111,
4,
28,
5,
-36,
63,
-116,
-112,
8,
-20,
115,
66,
-126,
-28,
79,
-39,
12,
102,
98,
33,
1,
-81,
-88,
-88,
15,
120,
29,
38,
-111,
80,
107,
-53,
-106,
-68,
117,
22,
35,
124,
-91,
-115,
29,
44,
14,
-50,
-48,
-77,
95,
85,
-54,
3,
-21,
6,
0,
85,
-107,
-73,
95,
70,
51,
-101,
-18,
-92
]
|
The opinion of the court was delivered by
Luckert, J.:
Raising an issue of first impression, Randy J. Johnson argues his consecutive sentences for the longest prison term stated in a Kansas sentencing guidelines presumptive grid block are unconstitutional in light of the holding in Cunningham, v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), which is based upon Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He argues the only term which can constitutionally be applied is the middle term in the grid block because the factors justifying the longer term were not presented to the juiy or proved beyond a reasonable doubt. We reject his argument because K.S.A. 21-4704(e)(l) does not require judicial fact-finding and grants a sentencing judge discretion to impose any of the three prison terms stated in the grid block. Consequently, Johnson’s sentences are a statutorily and constitutionally permissible presumptive sentences which cannot be appealed. K.S.A. 21-4721(c)(l).
Before considering that question, we will address three challenges that Johnson presents as attacks on his convictions for four counts of attempted second-degree murder. We reject his argu merits and conclude: (1) The trial court did not abuse its discretion by admitting the testimony of the State’s expert witness even though the witness violated discovery orders, (2) Johnson’s statement to law enforcement officers was freely and voluntarily given, and (3) the issue whether Johnson was prejudiced by the introduction of witnesses’ consistent statements prior to the testimony of the witnesses was not properly preserved for appeal because there was no contemporaneous objection.
Finally, Johnson raises an additional sentencing issue regarding whether the sentencing judge erred by ordering him to reimburse the State Board of Indigents’ Defense Services (BIDS) for attorney fees without first considering his ability to pay and the financial burden the payment will impose. Because the judge failed to make specific findings as required by K.S.A. 22-4513 and State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), we vacate the attorney fees order and remand for appropriate findings.
Facts
On December 21, 2004, Johnson and two companions attended a party at the Boardwalk Apartments in Lawrence. As Johnson and his companions left the party and exited the apartment building, four individuals on a second-floor balcony confronted them about noise from the party. Johnson and one of his companions stood near the apartment building and argued with those people on the balcony. As the arguing escalated, Johnson pulled out a gun and shot toward the balcony, injuring three people. After the shots were fired, Johnson and his companions jumped in a car and, as they drove off, Johnson admitted, “My fault, dog.”
Officers, who had a description of the car and the car’s license tag number, stopped Johnson and the others just a few blocks from the crime scene and ordered them out of the car. Johnson exited the passenger side of the back seat by sliding onto the ground. He was handcuffed and patted down for weapons. When officers rolled Johnson onto his side, they saw a brass shell casing lying on the ground under him. Officers searched the car’s interior and found a revolver and five spent brass shell casings. Subsequently, a bal listics test linked the revolver to two bullets recovered at the apartment complex.
The arresting officers noticed that Johnson smelled of alcohol and was unsteady on his feet; additionally, his speech was slurred, garbled, and difficult to understand. It was explained at trial that Johnson had smoked marijuana and consumed a significant quantity of beer and brandy.
Officers decided not to interview Johnson “because of his impaired state” and moved him to the jail for the night. The next morning, two detectives went to the jail to interrogate Johnson. Detective Warren Burket testified that there was no indication that Johnson would have trouble understanding their questions. After being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), Johnson gave a chronological description of the previous evening’s events. He admitted that the gun in the car belonged to him and that he had fired it to protect one of his companions and to scare the individuals on the apartment complex balcony.
The State ultimately charged Johnson with four counts of attempted second-degree murder. Before trial the defense filed several motions to suppress Johnson’s statements; all were denied. Consequently, at trial, a detective testified regarding his statements, including his admission that he was the shooter. In addition, there was other evidence linking Johnson to the shooting, including his admission to his companions, testimony of several eyewitnesses who identified him as the shooter, and ballistics tests that linked his gun to the shooting.
With no dispute regarding identity, the focal point of the trial was Johnson’s defense of mental disease or defect. Defense counsel hired an expert witness, psychologist David Mouille, Ph.D., to examine Johnson. To counter, the State also retained an expert witness, psychologist Gerald Vandenberg, Ph.D. After the experts examined Johnson, the defense objected to the endorsement of Dr. Vandenberg and filed motions seeking to exclude his testimony because Dr. Vandenberg had violated discovery orders. The trial court allowed Dr. Vandenberg to testify.
The experts agreed that Johnson’s intellectual capabilities were limited but disagreed as to whether Johnson had a mental disease or defect that prevented him from forming intent. To measure Johnson’s intellectual capabilities, Dr. Mouille conducted I.Q. testing on Johnson, which Dr. Vandenberg “borrowed.” Thus, the undisputed evidence established that Johnson’s overall I.Q. is 80, which falls at the “cusp of the low average range, 80 to 89.”
After conducting interviews with Johnson and performing several standardized psychological tests, Dr. Mouille concluded Johnson probably had suffered a brain injury, a conclusion he felt was supported by Johnson’s mother who reported that her son twice suffered some type of injury as a young child. In addition, Dr. Mouille rated Johnson’s adaptive behavior age at 3 and Vz years and his maturational age level below 10 years of age. Ultimately, Dr. Mouille opined Johnson has a mental disease or defect which, when combined with Johnson’s intoxication on the night of the shootings, impaired Johnson to the point he could not form specific intent. His written report described Johnson’s behavior as a “thoughtless response to the stressors in his environment.”
The State’s expert, Dr. Vandenberg, disagreed with these conclusions. He hypothesized Johnson had a learning disability and disputed Dr. Mouille’s conclusion that Johnson suffered from brain damage. Additionally, he described Dr. Mouille’s conclusion regarding Johnson’s developmental and maturational age as “absurd” and totally contradictory to Johnson’s history and to Dr. Vandenberg’s observations of Johnson. Nevertheless, Dr. Vandenberg indicated Johnson is immature for his age; although Johnson was 20 years old at the time of the trial, Dr. Vandenberg rated his functional maturity at lower than age 19. In Dr. Vandenberg’s opinion, these factors, combined with his intoxication, compromised Johnson’s judgment but did not negate his ability to form intent.
The jury found Johnson guilty of four counts of attempted second-degree murder, severity level 3 person felonies. Johnson had no prior criminal history; thus, he was assigned a criminal history score of I. The applicable grid block for each conviction indicated a prison sentence of 55, 59, or 61 months. See K.S.A. 21-4704. Noting that a random shooting at an apartment complex could result in several deaths, the judge sentenced Johnson to 61 months for each conviction to be served consecutively; however, because of the limitation of K.S.A. 21-4720(b)(4), the total prison sentence was limited to twice the base sentence, i.e., 122 months. Johnson was also ordered to pay court costs and restitution.
Johnson makes a timely appeal. This case was transferred to this court on our own motion because of the issue of first impression raised by the United States Supreme Court’s decision in Cunningham, 549 U.S. 270.
State’s Experts
As his first issue on appeal, Johnson contends the trial court denied his right to a fair trial by allowing Dr. Vandenberg to testify regarding his mental evaluation after Dr. Vandenberg violated discovery orders entered by the trial court. The State counters that the court correctly allowed Dr. Vandenberg to testify; regardless, any error was harmless because Johnson was not prejudiced.
Factual Background
There is no dispute that Dr. Vandenberg violated a discovery order, which had been agreed upon by the parties. In the order, the trial court required that “[a]ny interviews or conversations with the Defendant by any professional retained by the State to perform a psychological assessment of the Defendant shall be tape recorded.” Although Dr. Vandenberg was aware of the order, he recorded only portions of his interview with Johnson. Based on this violation, the defense objected to the State’s motion to endorse Dr. Vandenberg and sought to exclude his testimony as a sanction.
At hearings on the defense objections and motions, Dr. Vandenberg testified he believed copyright laws prohibited him from recording standardized test questions because, in doing so, he would be placing those questions into the public domain. In addition, he believed “ethically, I cannot tape-record any kind of an examination without permission of the examinee.” While Dr. Vandenberg “thought” he had apprised the prosecutor that he could not record that portion of Johnson’s interview, he was “[n]ot entirely sure,” and, indeed, the prosecutor advised the court that Dr. Vandenberg did not tell him about the decision to record only portions of the interview.
In ruling on the various motions, the court expressed concern about why Dr. Vandenberg had “the [recorder] off when he indicated [Johnson] made certain substantive questions that would assist the State in showing that [he] knew what was going on.” However, the court stated, “it’s an impeachment issue” and “also a contempt issue,” noting that Dr. Vandenberg “should have gotten the court’s permission to not do something when he was ordered to tape, and that was an agreement that the two [parties] have reached.”
Specifically addressing the State’s motion to endorse, the court commented that a denial of such a motion is not typically ordered for the purpose of issuing a sanction — instead the question of whether to grant a motion to endorse involves “a question of prejudice.” The court offered to entertain a recess or “maybe even a continuance of the trial” but, after observing that defense counsel made no such request, found that defense counsel had ample opportunity to examine the materials and prepare for cross-examination and was not prejudiced by the endorsement.
Later, defense counsel filed a motion requesting that the court prohibit the admission of Dr. Vandenberg’s testimony or written report at trial as a sanction for violating the court’s order. After the defense rested and the State was preparing to call Dr. Vandenberg as a rebuttal witness, the motion was addressed outside the presence of the jury. The trial court denied the motion, noting that defense counsel had been able to question Dr. Vandenberg at a previous suppression hearing and had asked questions regarding the unrecorded portions of the interview. Again, the court reiterated that the defense would be able to impeach the witness regarding the failure to comply with the court order.
At trial, defense counsel vigorously cross-examined Dr. Vandenberg regarding his conclusions, asking him about specific questions on the standardized tests. In addition, defense counsel thoroughly cross-examined Dr. Vandenberg about his decision to shut off the tape recorder. As the trial court predicted, these questions highlighted Dr. Vandenberg’s potential bias toward the State.
After the trial, the court found Dr. Vandenberg to be in indirect contempt of court. In doing so, the court made additional findings that explained its view of Dr. Vandenberg’s conduct, noting Dr. Vandenberg “conducted the evaluation and turned off the tape recorder, an intentional act, during a small part of the evaluation. This was a clear violation of the court’s order.” Nevertheless, the court did not believe Dr. Vandenberg’s motives were “sinister.” But the court felt the matter was serious and ordered Dr. Vandenberg (1) to pay the attorney fees associated with the contempt proceeding and (2) to seek direction or decline cases in the future if he does not believe he can comply with a court order.
On appeal, Johnson argues the trial court should have done more and should have excluded Dr. Vandenberg’s testimony because, although Johnson was present during the psychiatric examination, defense counsel had no independent means of determining what occurred during the unrecorded portions of the examination and was forced to rely on Dr. Vandenberg’s own recollection.
Was it error to allow Dr. Vandenberg to testify?
The parties disagree on the appropriate standard for appellate review of the trial court’s decision to allow Dr. Vandenberg’s testimony. The State argues we should apply an abuse of discretion standard; the defense urges a de novo standard.
Generally, the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion. State v. Corbett, 281 Kan. 294, 317, 130 P.3d 1179 (2006); State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004); State v. Brice, 276 Kan. 758, 775, 80 P.3d 1113 (2003). Here, no question is raised regarding the typical issues surrounding the admission of expert testimony; there is no question regarding Dr. Vandenberg’s qualifications, the relevancy of his opinion, or Dr. Vandenberg’s ability to assist the juiy in understanding technical facts or material evidence. See K.S.A. 60-456(b), (d); State v. Struzik, 269 Kan. 95, Syl. ¶ 3,5 P.3d 502 (2000). Rather, the sole question is whether the trial court should have excluded the testimony as a sanction for the discovery order violations.
K.S.A. 22-3212(g) authorizes a broad array of sanctions for violations of discovery orders in criminal cases, including permitting the discovery or inspection of materials not previously disclosed, granting a continuance, prohibiting the party from introducing into evidence the material not disclosed, or entering “such other order as [the court] deems just under the circumstances.” By granting the option to impose sanctions the trial court deems “just,” the provision grants discretion to determine the appropriate sanction. Consequently, a trial court’s denial of a motion seeking to exclude the testimony of a witness who violated a discovery order in a criminal case is reviewed under an abuse of discretion standard if due process rights are not implicated by the violation. See Pierce v. Underwood, 487 U.S. 552, 559, 101 L. Ed. 2d 490, 108 S. Ct. 2541(1988) (“language and structure of the governing statute” may determine standard of review).
Johnson argues, however, that we should apply a de novo standard because his due process rights are implicated. Yet Johnson fails to cite any authority to support his contention, and we cannot find a basis for such a conclusion. A criminal defendant does not have a due process right to have expert witnesses record interviews. It was entirely within the trial court’s discretion to order the recording of the interview or to allow the interview to be conducted without a recording. Nor is there a due process right to have testimony excluded when the witness or a party violates a discovery order because K.S.A. 22-3212(g) grants discretion to the trial court to determine the “just” sanction. Such a sanction could take many forms other than suppression of the evidence. Consequently, a due process interest did not arise. See Robinson, 281 Kan. at 547 (“A due process violation can be established only if a claimant is able to show that he or she was denied a specific procedural protection to which he or she was entitled.”).
Additionally, although an accused has a due process right to a fair trial, due process does not guarantee a perfect trial. See State v. Lumley, 266 Kan. 939, 962, 976 P.2d 486 (1999); United States v. Stevens, 612 F.2d 1226, 1229-30 (10th Cir. 1979). The lack of a recording of a small portion of the interview, even if a recording was ordered by the court, did not deprive Johnson of a fair trial. Johnson was left in the same situation as many criminal defendants where interviews are not recorded, except he was able to impeach Dr. Vandenberg regarding his failure to follow the court order. Moreover, Johnson was able to present his defense.
Therefore, we conclude that if a witness violates a discovery order in a manner that does not implicate due process, an abuse of discretion standard governs appellate review of a trial court’s decision to admit the witness’ testimony rather than to exclude the testimony as a sanction permitted by K.S.A. 22-3212(g). Under the facts of this case, we reject Johnson’s argument that discretion was abused by denying the motion to exclude Dr. Vandenberg’s testimony. While Dr. Vandenberg did not fully comply with the court order, the record shows that defense counsel was able to thoroughly cross-examine him regarding his professional opinion of Johnson’s mental capacity and his methods for evaluating Johnson. Also, the record reflects that Dr. Vandenberg relied largely on data provided by the defense expert, Dr. Mouille, in rendering his opinion. Dr. Vandenberg testified that he repeated tests only to the extent of double checking the accuracy of Dr. Mouille’s conclusions, and the trial court found this was only a small portion of the interview. Moreover, the violation of the order potentially diminished the weight of Dr. Vandenberg’s expert testimony. The trial court struck an appropriate balance by ordering sanctions but allowing the testimony.
Thus, the trial court did not abuse its discretion in admitting Dr. Vandenberg’s expert opinion testimony regarding Johnson’s mental capacity.
Confession
Johnson filed three pretrial motions to suppress his statements to officers, all of which were denied. On appeal, Johnson reiterates that his state of intoxication, combined with his limited intellectual capacity, rendered his statements to officers involuntary. More specifically, Johnson contends that he did not understand his right to remain silent.
Factual Background
Drs. Mouille and Vandenberg were also asked to evaluate whether Johnson was able to understand his right to remain silent. At hearings on the various motions to suppress, the trial court heard testimony regarding their contradictoiy opinions. Dr. Mouille opined that Johnson understood his right to counsel but believed he was required to talk to the detectives. Dr. Vandenberg, on the other hand, concluded that Johnson had the capacity to understand the Miranda warnings. Dr. Vandenberg’s opinion was buttressed by the fact that Johnson initially refused to participate in the psychiatric interview until Johnson had spoken to his attorney. This postponed Dr. Vandenberg’s interview until the following day.
The court also considered the preliminary hearing testimony of Detective Burket, one of two detectives who interviewed Johnson. Detective Burket indicated that after allowing Johnson to sleep overnight in the local jail because of concern about his being inebriated, he and Detective Mike Schneider interviewed Johnson the next morning at about 10:45 a.m. Because Johnson had just woken up, the detectives ordered a tray of food for him. The detectives were dressed in plain clothes, and neither had a weapon.
The detectives told Johnson they had talked to “a lot of witnesses, including people that were in his vehicle with him” and knew he fired the gun. They indicated they had one side of the story and wanted to hear his side. Then, they asked if he would be willing to talk to them, and Johnson agreed. Next, Johnson was read his rights per Miranda and waived them. Before Johnson signed a waiver, the detectives explained that he did not have to do so if he did not want to. Johnson also agreed to give a written statement.
Detective Burket testified that Johnson spoke appropriately, made sense, and was cooperative and polite. The detective denied having any concerns about Johnson remaining under the influence of alcohol or some other substance. In addition, Detective Burket denied making any threats or promises to Johnson.
Johnson told the detectives about the chronology of events on the night of the shooting and also explained he shot the gun to protect one of his companions and to scare the individuals on the balcony in an attempt to let them know not to “mess” with him.
At the conclusion of the oral interview, the detectives asked Johnson for his written statement. They inquired about his level of education, to which Johnson replied that he did not graduate from high school but passed a “life skills course.” Detective Burket once again read the Miranda rights, which were listed on the form, and explained to Johnson that “it was the same as before only for a written statement.” Johnson signed the form, and the detectives stepped out of the room while he completed his statement for 15 to 20 minutes.
Then, around 1:30 p.m., after Johnson had completed his written statement, a tape recorder was delivered. Detective Burket asked Johnson if he would submit to a recorded interview. The detective started the recorder, but Johnson said at the very beginning of the recorded statement that he wanted an attorney. Therefore, the detective immediately terminated the interview.
Based upon the evidence, the trial court found that Johnson was of low average intelligence but was “certainly quite a functioning individual” and “was able to make decisions.” Although the court acknowledged Dr. Mouille’s testimony regarding Johnson s understanding his right to have an attorney versus his right to remain silent, the court failed to see the distinction the defense tried to draw between these two concepts. The judge stated: “I think there is some dovetailing involved in these particular matters.” The court observed that after a period of time during the interview, Johnson told the detectives he “did not want to talk to [them] anymore. He asked for an attorney.”
Looking at the totality of the circumstances and testimony, the court found the State showed by a preponderance of the evidence that Johnson’s “statements made to the police officers were voluntary, were not in violation of Miranda.”
Was it error to admit Johnson’s statements?
In reviewing a trial court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard, applying independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Harris, 284 Kan. 560, Syl. ¶ 9, 162 P.3d 28 (2007); State v. Ackward, 281 Kan. 2, Syl. ¶ 1, 128 P.3d 382 (2006).
It is well established that voluntariness of a confession must be determined under the totality of the circumstances. The State has the burden of proving that a confession is admissible, and the required proof is by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the accused’s free and independent will. State v. Brown, 285 Kan. 261, 272, 173 P.3d 612 (2007); State v. Gonzalez, 282 Kan. 73, 103, 145 P.3d 18 (2006). Numerous factors are to be considered when determining if a statement was voluntary, which this court has consolidated into the following nonexclusive list based on previous Kansas case law:
“(1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007).
In this case, the defense focuses upon the accused’s mental condition and intellect. No other factor weighs against a conclusion that Johnson’s waiver of rights was voluntary, and the absence of other factors is an important consideration. This point was emphasized in State v. Swanigan, 279 Kan. 18, 30-39, 106 P.3d 39 (2005), a case in which the defendant had an I.Q. of 76. In that case the defendant relied upon several factors, causing this court to note:
“Although any one of these factors which Swanigan asserts — his low intellect and susceptibility to being overcome by anxiety, the officers’ repeated use of false information, and their threats and promises — may not be sufficient to show coercion, the combination of all of them in this case leads us to conclude as a matter of law that Swanigan’s October 31 statement was not the result of his free will, but was involuntary.” 279 Kan at 39.
In contrast, when low intellect is the only factor, in several cases this court has concluded the statement is knowing and voluntary. For example, in State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976), the defendant alleged that he was incapable of voluntarily and intelligently waiving his right to remain silent due to the fact that he had an I.Q. of 68. In affirming the trial court’s determi nation that the statement was freely, voluntarily, and intelligently given, the Thompson court stated that “[t]he mental deficiencies of the defendant may be an important factor in determining whether or not a confession was voluntarily given. That fact alone, however, is not conclusive evidence on the issue.” 221 Kan. at 170; see also Colorado v. Connelly, 479 U.S. 157, 163-65, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986) (low intellect not basis for finding statement involuntary if no coercion); State v. Mays, 277 Kan. 359, 374-76, 85 P.3d 1208 (2004) (verbal I.Q. of 77 was only one factor); State v. Lane, 262 Kan. 373, 386, 940 P.2d 422 (1997) (I.Q. of 77 was only one factor); see generally Annot., 8 A.L.R.4th 16.
In other words, Johnson’s low intelligence does not preclude a finding that Johnson knowingly and voluntarily waived his Miranda rights. The waiver may be knowing, as defined by constitutional requirements, if the circumstances indicate Johnson understood his constitutional rights and the consequences of asserting or waiving those rights. Further, Johnson’s waiver of rights may be voluntary if law enforcement officers did not exploit his low intelligence or otherwise coerce the waiver. See Connelly, 479 U.S. at 163-65; Holloway v. State, 561 So. 2d 1119, 1121-23 (Ala. Crim. App. 1990); Harjo v. State, 882 P.2d 1067, 1071-72 (Okla. Crim. 1994).
Regarding Johnson’s knowing waiver of rights, the conflicting expert opinions regarding his general ability to understand his rights must be weighed by the trier of fact. State v. Kuykendall, 264 Kan. 647, 651, 957 P.2d 1112 (1998) (“It is the function of the jury in a criminal case to determine the weight and credit to be given the testimony of each witness, whether expert or lay in nature.”); see Holloway, 561 So. 2d at 1123 (State’s experts contradicted the defense experts. “This presented a conflict in the evidence, which only the finder of fact could resolve.”). Here, the trial court resolved the conflict in favor of the State.
In addition, there is other evidence that supports the trial court’s findings regarding Johnson’s capacity to understand. The circumstances demonstrate that Johnson was aware of his right to remain silent. As the trial court pointed out, when Johnson asked for an attorney he effectively asserted his right to remain silent. Then, when Dr. Vandenberg attempted to interview Johnson, he again refused to speak without consulting with his attorney. Even though he only asserted a right to counsel, he did so because he no longer wanted to speak to the detectives or the State’s expert without an attorney present, indicating he understood he was not required to answer their questions.
Also, there was no indication at any point in the interviews that Johnson did not understand the conversation. His responses were coherent, he was able to provide a chronological recitation of events, and he asserted a possible defense, i.e., defense of another. Johnson was twice read his rights, indicated he understood them, and agreed to speak with the detectives and to write a confession. The totality of these circumstances indicates Johnson was functioning at a level sufficient to understand his rights and to understand the consequences of waiving those rights. Moreover, he was capable of making a decision to waive his rights or, as he did on two occasions, assert them.
Regarding voluntariness, as the United States Supreme Court has held, a mental deficiency in the defendant that is not exploited by law enforcement officers does not annul the voluntariness of a confession unless there is evidence of coercion. Connelly, 479 U.S. at 164-65; compare Swanigan, 279 Kan. at 39 (low intellect combined with coercive factors rendered statements involuntary). The record does not suggest that the detectives took advantage of Johnson’s intelligence level, that he was in anyway subjected to coercion or improper conduct, or that Johnson’s statements were the result of confusion or mental deficiency.
The trial court’s factual findings are supported by substantial competent evidence, and our independent review affirms the conclusion the statements were knowingly and voluntarily made. The trial court did not err in denying the various motions to suppress and in admitting Johnson’s statements to the detectives.
Prior Consistent Statements
Next, Johnson contends the trial court abused its discretion by allowing law enforcement officers to testify about what witnesses told them before those witnesses testified. The statements made to the officers were consistent with the witnesses’ trial testimony.
At the outset, Johnson acknowledges that he did not object to the admission of these prior consistent statements. Generally, a timely and specific objection for the admission of evidence is necessary to preserve the issue for appeal. See K.S.A. 60-404. Thus, even if constitutional grounds for inadmissibility are asserted, the issue is not properly before this court for review if raised for the first time on appeal. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007); Gonzalez, 282 Kan. at 114.
A recognized exception to that general rule applies when consideration of the newly asserted claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Moody, 282 Kan. 181, 192, 144 P.3d 612 (2006); State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353 (2003). Johnson urges us to apply this exception. We reject this invitation because the criteria for applying the exception are not met.
Granted, a violation of the right to confront witnesses can occur if a statement is admitted and the witness is not called to testify. See State v. Hernandez, 284 Kan. 74, 97-98, 159 P.3d 950 (2007); State v. Fisher, 222 Kan. 76, 82, 563 P.2d 1012 (1977). Here, however, the State did call the witnesses, and Johnson was able to cross-examine them regarding their statements.
With no constitutional issue implicated, Johnson’s argument is one of prejudice, i.e., he argues that admitting the consistent statement unduly bolstered the witnesses’ credibility. Indeed, when a defendant has not been deprived of his or her right to cross-examine a witness, courts generally frame the issue as being whether the prejudicial impact of the testimony outweighs its probative value. E.g., United States v. Green, 258 F.3d 683, 692 (7th Cir. 2001) (abandoning a contrary rule and joining its “sister circuits,” and holding that “[Federal] Rule [of Evidence] 801[d][l][B] does not bar the introduction of a prior consistent statement through the testimony of someone other than the declarant, so long as the declarant is available for cross-examination about the statement at some time during the trial”); Ross v. Saint Augustine’s College, 103 F.3d 338, 341-42 (4th Cir. 1996) (no error to allow plaintiff to admit her consistent statements prior to her testimony; evidence was linked up to later impeachment efforts by defendant when she did testify; court distinguished United States v. Bolick, 917 F.2d 135, 138-39 [4th Cir. 1990], where the government pursued a deliberate strategy of attempting to minimize the unpalatability of its witnesses by first admitting their statements through a federal agent); Thompson v. State, 769 P.2d 997, 1002 (Alaska App. 1989) (premature admission of victim’s prior consistent statements creates the danger that juxy may accept witness’ view of victim’s credibility before victim testifies); People v. Sommerville, 193 Ill. App. 3d 161, 176, 549 N.E.2d 1315 (1990) (testimony of three witnesses regarding victim’s prior consistent statements constituted reversible error where evidence was close); Modesitt v. State, 578 N.E.2d 649, 651-52 (Ind. 1991) (drumbeat repetition of victim’s original story prior to calling victim to testify did unduly prejudice the jury).
An argument based upon potential prejudice does not erase die need for a contemporaneous objection; in fact, it highlights the policies underlying the rule. The contemporaneous objection rule is designed to give the trial court the opportunity to correct or avoid error. State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995). Additionally, as applicable to this case, the trial court is in a better position to weigh the probative versus prejudicial value of evidence. See, e.g., State v. Garcia, 285 Kan. 1, 18-19, 169 P.3d 1069 (2007). Therefore, it is inappropriate for this weighing to occur for the first time on appeal.
Because Johnson did not object to the admission of testimony regarding witnesses’ prior consistent statements and has not shown his due process rights were implicated, he failed to preserve an argument for appeal regarding a claim the evidence was prejudicial.
Cunninsham v. California
Turning to sentencing issues, Johnson contends K.S.A. 21-4704(e)(1) violates the Sixth and Fourteenth Amendments to the United States Constitution. He argues the sentencing judge was required to impose the middle term within the presumptive grid block, unless the judge stated aggravating factors on the record for imposing the longer sentence. Based upon Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), he further argues the maximum sentence that the statute authorizes for his convictions is the middle term in the sentencing block and any factors that would increase a sentence beyond that middle term must be submitted to a jury and determined beyond a reasonable doubt. Thus, Johnson claims he was given illegal sentences and requests his case be remanded for resentencing.
The State counters that the Kansas sentencing guidelines give a sentencing judge discretion to impose any term within the presumptive range found in a particular grid block, distinguishing K.S.A. 21-4704 from the provisions of the California penal code that were ruled unconstitutional in Cunningham.
Appellate Jurisdiction
Although the parties do not discuss this court’s jurisdiction to consider this issue, an appellate court has a duty to question jurisdiction on its own initiative. If the record shows there is no jurisdiction for the appeal, the appeal must be dismissed. State v. Harp, 283 Kan. 740, 746, 156 P.3d 1268 (2007). To make this determination, appellate courts must examine the governing statutes because the right to appeal is statutory; neither the United States nor Kansas Constitutions grant such a right. State v. Flynn, 274 Kan. 473, 477, 55 P.3d 324 (2002).
The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., defines Johnson’s right to appeal from his sentences and, as applicable to this issue, provides that “the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.” K.S.A 21-4721(c)(l). KSGA defines “presumptive sentence” as “the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender’s criminal history.” K.S.A. 21-4703(q). Johnson’s sentences were provided in the grid block applicable to his crimes of conviction and his criminal history, which stated terms of 55, 59, and 61 months. The sentencing judge chose to impose consecutive 61-month presumptive sentences.
Nevertheless, although not phrased in terms of the jurisdictional issue, the essence of Johnson’s argument is that any sentence that applies aggravating factors cannot be considered a standard — or in KSGA terminology a “presumptive” — sentence because constitutionally a jury must consider and determine the aggravating factors.
Under similar circumstances, when defendants have attacked the constitutionality of a sentencing statute in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and its progeny (which now includes Cunningham, 549 U.S. 270), this court has considered the constitutional attack on direct appeal, even if the defendant received a presumptive sentence. In each case, however, the court framed the issue as a determination of whether the court had jurisdiction to review the sentence. Upon finding that the sentencing scheme at issue did not offend constitutional principles and, therefore, could be considered a presumptive sentence, the court determined appellate courts lacked jurisdiction over the issue. State v. Bramlett, 273 Kan. 67, 67-68, 41 P.3d 796 (2002) (consecutive sentences do not violate Apprendi-, “appellate courts are without jurisdiction to review sentences that are within the presumptive range for the crime,” citing K.S.A. 21-4721[c][l]); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) (Apprendi does not require criminal histoiy be proven to jury; sentence within presumptive range was not subject to challenge on appeal).
As in these cases, we conclude a sentence that falls within a grid block is constitutional and may be considered a presumptive sentence, and appellate courts lack jurisdiction.
Standard of Review
To reach this determination, we apply an unlimited scope of review. Construction of the KSGA and determination of the constitutionality of its provisions are questions of law. State v. Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003); Ivory, 273 Kan. at 46.
This court has explained that “a statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the con stitution before it may be struck down. [Citation omitted.]” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992). In applying these rules, this court “not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
Apprendi to Cunningham
The Apprendi to Cunningham line of cases apply the Sixth Amendment to the United States Constitution, made applicable to the States byway of the Fourteenth Amendment, and its guarantee of the right to a jury trial in all criminal prosecutions. In Apprendi, the United States Supreme Court interpreted the Sixth Amendment to apply to the sentencing phase and to require that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
At issue in Apprendi was the constitutionality of a New Jersey hate crime statute that permitted a sentence enhancement beyond the standard sentencing range if the court found by a preponderance of the evidence that the defendant committed the offense for which he or she was convicted for the purpose of intimidation based on race, color, gender, handicap, religion, sexual orientation, or ethnicity. The New Jersey court had found that Apprendi had acted with the intent to intimidate based on race and, thus, had enhanced his sentence according to the statute. Under its analysis, the United States Supreme Court held that the New Jersey statute was unconstitutional because it allowed (1) a judge (not a jury) (2) to impose an increased sentence (3) based on its finding of a particular fact (the intent to intimidate based on one of the Usted factors) by a lower legal standard. 530 U.S. at 490, 496-97.
As we apply the analysis in Apprendi, “the relevant inquiry [to determine the constitutionality of a sentencing scheme] is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” 530 U.S. at 494. If so, the statute is unconstitutional under Apprendi s reasoning.
This court considered the scope of the Apprendi decision in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In that case, the court reviewed the constitutionality of K.S.A. 2000 Supp. 21-4716, which allowed for an upward durational sentencing departure if certain aggravating factors were found by the sentencing judge. Examining the facts, the Gould court found that “Gould’s juiy verdict ‘authorized’ a sentence of 31 to 34 months for each child abuse conviction. By imposing two 68-month sentences, the sentencing judge went beyond the maximum sentence in the applicable grid block and exposed Gould to punishment greater than that authorized by the jury’s verdict.” 271 Kan. at 410-11. This court held that, under the Sixth and Fourteenth Amendments to the United States Constitution, a “judge may not impose a more severe sentence than the maximum sentence authorized by the facts found by the juiy”; thus, K.S.A. 2000 Supp. 21-4716 was held “unconstitutional on its face.” 271 Kan. 394, Syl. ¶ ¶ 3, 4.
In contrast, in this court’s later decision in Bramlett, 273 Kan. 67, the defendant, like Johnson, was sentenced to the highest term in the grid block. He did not question the constitutionality of that determination but did challenge whether imposing consecutive sentences on multiple counts increased the sentences beyond that authorized by the jury. This argument was rejected, with the Bramlett court concluding, “[I]t cannot be said that, as to any individual count, the court’s findings resulted in the imposition of a greater punishment than was authorized by the juiy’s verdict.” 273 Kan. at 70.
In both Gould and Bramlett, we emphasized that the jury verdicts authorized the imposition of presumptive sentences, which are defined as any of the three terms in the applicable grid block. After these decisions, however, the United States Supreme Court decided three additional cases that focused upon the impact of Apprendi when a sentencing statute authorized a range of sentences for a particular conviction. We must determine whether these decisions require us to alter our conclusion it is the jury verdict that authorizes the imposition of presumptive sentences.
First, in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), the Court determined there was a violation of Blakely’s Sixth Amendment right to a jury trial when the judge imposed a sentence of 90 months for Blakely’s class B felony rather than the “standard range” of 49 to 53 months provided by Washington’s Sentencing Reform Act. The law provided that the judge, without a jury, “may impose a sentence above the standard range” if the judge finds “ ‘substantial and compelling reasons justifying an exceptional sentence.’ ” 542 U.S. at 299. The Washington law included a nonexhaustive list of aggravating facts upon which a court could increase a sentence above the standard range.
In striking down Washington’s provision for exceptional sentencing, the Blakely Court emphasized that the relevant “ ‘statutory maximum’ ” for purposes of die Sixth Amendment and Apprendi “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations omitted.]” 542 U.S. at 303. “In other words,” said the Court, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04. Because Blakely’s sentence was increased above the prescribed standard range based upon the judge’s finding of deliberate cruelty, a fact that was neither admitted by Blakely nor found by a jury, the statutory scheme for exceptional sentencing violated Blakely’s Sixth Amendment right to trial by jury. 542 U.S. at 313-14.
Less that 6 months later, in United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005), the Supreme Court held that the federal sentencing guidelines, as written, violated the Sixth Amendment to the United States Constitution because, like the Washington sentencing scheme addressed in Blakely, the federal “sentencing rules are mandatory and impose binding requirements on all sentencing judges.” 543 U.S. at 233. The Booker Court observed:
“If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sen tences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations omitted.] Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding on district judges .... [W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” 543 U.S. at 233 (Stevens, J., opinion of the Court in part).
As a remedy, the Court excised the provisions that made the federal guidelines mandatory. This had the effect of making the federal guidelines advisory only. 543 U.S. at 245-46 (Breyer, J., opinion of the Court in part).
In the third case, Cunningham, 549 U.S. 270, the defendant challenged California’s determinate sentencing law (DSL). The applicable provisions of the DSL provided that Cunningham’s offense was punishable by a lower-term sentence of 6 years, a middle-term sentence of 12 years, or an upper-term sentence of 16 years. See Cal. Penal Code Ann. § 288.5(a) (West 1999) (Penal Code). During Cunningham’s sentencing hearing, the judge found six additional aggravating factors by a preponderance of the evidence and sentenced the defendant to the upper term authorized by Penal Code § 288.5(a) — 16 years in prison.
The sentencing judge’s decision as to which of the three sentences it should apply was governed by Penal Code § 1170(b) (West Supp. 2006), and the corresponding rules adopted by California’s Judicial Council. Section 1170(b) provided that “ ‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.’ ” 549 U.S. at 277. The accompanying rules described the applicable aggravating circumstances to be considered as “ ‘facts which justify die imposition of the upper prison term’ ” and required that these facts “ ‘be established by a preponderance of the evidence’ ” and “ ‘stated orally on the record.’ ” 549 U.S. at 278 (quoting Judicial Council Rules 4.405[d], 4.420[b], and 4.420[e]). The majority again emphasized the fact-finding requirement in responding to Justice Alito’s argument in dissent (549 U.S. at 307-08) that an aggravating circumstance may reflect “a policy judgment, or even a judge’s ‘subjective belief ” rather than a fact. The majority rejected the argument because “California's Rules . . . constantly refer to ‘facts.’ ” 549 U.S. at 279.
Summarizing the effect of the California statutes and rules, the Cunningham majority concluded the provisions “direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts — whether related to the offense or the offender — beyond the elements of the charged offense.” 549 U.S. at 279. Under this procedure, the “ ‘statutory maximum’ ” sentence, as described by Apprendi, was actually the middle-term sentence in California's DSL — not the upper term applied by the sentencing judge in that case. 549 U.S. at 288. The Court reasoned that “an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance,” and “[a]n element of the charged offense, essential to a jury’s determination of guilt, or admitted in a defendant’s guilty plea, does not qualify as such a circumstance.” 549 U.S. at 288. Thus, the Court found that the DSL was facially unconstitutional. 549 U.S. at 288-89, 293.
In reaching this decision, the Cunningham Court relied heavily on its opinion in Apprendi, 530 U.S. 466, as well as its opinions in Blakely, 542 U.S. 296, and Booker, 543 U.S. 220. The Supreme Court specifically distinguished California’s DSL from the now-advisory federal sentencing guidelines, which allow judges to impose any reasonable sentence within the statutory range, with or without additional findings. 549 U.S. at 291-92. The Cunningham Court reemphasized that in Booker, all justices agreed judicial fact-finding would be constitutionally permissible under an advisory sentencing system. 549 U.S. at 286-88, 291-92.
In contrast, the DSL was constitutionally infirm because the
“sentencing judge had no discretion to select a sentence within a range of 6 to 16 years. Her instruction was to select 12 years, nothing less and nothing more, unless she found facts allowing the imposition of a sentence of 6 or 16 years. Fact-finding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies.” 549 U.S. at 292.
In reaching its holding, the Cunningham Court recognized, in a footnote, that Kansas is one of several states that have modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing. 549 U.S. at 294 n.17. Other States have given their sentencing judges “genuinely” broad discretion to sentence within a sentencing range, which the Court stated “encounters no Sixth Amendment shoal.” 549 U.S. at 294. Appearing to approve both types of modifications, the Court urged California to likewise alter its laws in some manner.
Ultimately, Cunningham does nothing more than reaffirm the holding of Booker, allowing a judge to sentence within a range if based upon an exercise of discretion rather than upon facts that must be found by the judge. See also Rita v. United States, 551 U.S. 338, 352-53, 168 L. Ed. 2d 203, 127 S. Ct. 2456 (2007) (explaining judicial fact-finding only violates Sixth Amendment if judge is forbidden from increasing defendant’s sentence in the absence of the judge-found facts); People v. Harper, 479 Mich. 599, 739 N.W.2d 523 (2007) (declined to follow Cunningham on state law grounds; indeterminate sentencing scheme did not offend Sixth Amendment); State v. Garner, 177 P.3d 637, 643 (Utah App. 2008) (indeterminate sentencing scheme involving three ranges of sentences, with middle minimum term as default, did not run afoul of Sixth Amendment).
KSGA
Hence, the question is whether K.S.A. 21-4704(e)(l) permits a sentencing judge to exercise discretion in imposing any term within the presumptive range or whether the statute requires a judge to impose the middle term unless facts extraneous to the jury verdict are found to constitute aggravating circumstances. If the judge does not have discretion to impose the longer term without finding facts extraneous to the jury verdicts, Johnson’s sentences are unconstitutional.
K.S.A. 21-4704(e)(l) states: “The sentencing court has discretion to sentence at any place within the sentencing range. The sen- tenting judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure.”
There is an obvious ambiguity in this statute. While it provides that the sentencing judge “has discretion to sentence at any place within the sentencing range,” it goes on to say that the “sentencing judge shall select the center of the range in the usual case.” (Emphasis added.) K.S.A. 21-4704(e)(l). Despite the “shall” in the second sentence, the language connotes, overall, a wide latitude and not a mandatory requirement as seen in Cunningham, 549 U.S. at 275 (California law “obligated the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional facts in aggravation.”). We reach this conclusion based upon several indications of legislative intent. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007) (“The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.”).
One indication is that K.S.A. 21-4704(e)(l) does not require a sentencing judge to cite to an aggravating or mitigating fact when determining which presumptive sentence to impose. In contrast, the California provisions required fact-finding. In this regard the California provision more closely resembles K.S.A. 21-4716(a), which addresses departure sentences and contrasts those sentences with presumptive sentences, stating:
“Except as provided in subsection (b), the sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines for crimes committed on or after July 1, 1993, unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” (Emphasis added.) K.S.A. 21-4716(a).
Contrasting the requirement for fact-finding in the departure procedure with the absence of similar language in K.S.A. 21-4704(e)(1) supports a conclusion that the legislature did not intend that specific findings must be placed on the record when the judge stays within the presumptive sentencing range, even if the longest term is imposed. Past cases recognize this intent, holding that there is no requirement that a sentencing judge cite any specific factual circumstances when deciding to impose the maximum term within the applicable sentencing grid block. See Pieplow v. State, 31 Kan. App. 2d 998, 1000, 76 P.3d 1069, rev. denied 277 Kan. 925 (2003).
This same intent is reflected in the statutes allowing or restricting appeals from KSGA sentences. K.S.A. 21-4721(d) specifies that appellate courts may review departure sentences to determine “whether the sentencing court’s findings of fact and reasons justifying a departure: (1) [a]re supported by the evidence in the record; and (2) constitute substantial and compelling reasons for departure.” In contrast, presumptive sentences are not appealable. K.S.A. 21-4721(c)(l). The legislature’s determination that there is no right to appeal a presumptive sentence indicates an intent to grant the sentencing judge unlimited discretion to impose any term within the presumptive grid block. See Pieplow, 31 Kan. App. 2d at 1000 (“It would make little sense to require a court to make specific findings on the record supporting a presumptive sentence when such a sentence is not subject to appellate review.”).
In addition, even though the second sentence in the statute contains the word “shall,” the context of that sentence and this court’s opinions applying that statute indicate that the sentence is directory rather than mandatory. This court discussed its method for determining whether a statutory provision is mandatory or directory in State v. Deavers, 252 Kan. 149, 167, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993), noting:
“Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance. [Citation omitted.]”
Neither of these factors applies to K.S.A. 21-4704(e)(l). The statute provides that the “sentencing judge shall select the center of the range in the usual case.” (Emphasis added.) K.S.A. 21-4704(e)(1). This caveat — “in the usual case” — indicates that a court is not required to enter the middle term in the sentencing range, but rather that such a sentence is generally recommended.
Finally, this court has explained that when interpreting statutes, courts must consider various provisions of an act in context with a view of reconciling the statutes and bringing them into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, Syl. ¶ 6, 179 P.3d 1115 (2008). The first sentence of K.S.A. 21-4704(e)(l) explicitly states that the “sentencing court has discretion to sentence at any place within the sentencing range.” To interpret the second sentence — that the “sentencing judge shall select the center of the range in the usual case” — as requiring the judge to enter the middle sentence in every case in the absence of aggravating factors would effectively nullify the first sentence. The only way these two sentences can be read in harmony is if the second sentence is merely directory, recommending a particular course of action without requiring that course be followed in every case.
The decisions of this court reinforce this interpretation. For example, the court in Gould noted that “Gould’s jury verdict ‘authorized’ a sentence of 31 to 34 months for each child abuse conviction.” 271 Kan. at 410. The court was only concerned with Gould’s sentence insofar as it exceeded the upper term of the presumptive range. If the law only permitted the middle-term sentence in the grid block without making additional findings as to aggravation, the court would have stated that the verdict authorized a sentence of 31 to 32 months.
Hence, we conclude K.S.A. 21-4704(e)(l) grants a judge discretion to sentence a criminal defendant to any term within the presumptive grid block, as determined by the conviction and the defendant’s criminal history. The judge need not conduct any fact finding or state factors on the record. Consequently, the prescribed “ ‘statutory maximum’ ” sentence described by Apprendi, 530 U.S. at 490, is the upper term in the presumptive sentencing grid block. K.S.A. 21-4704(e)(l) is constitutional under the Sixth and Fourteenth Amendments to the United States Constitution and does not violate the holdings in Apprendi or Cunningham.
In this case, the upper term in the sentencing block for Johnson’s convictions for attempted second-degree murder was 61 months. The judge sentenced him to 61 months’ imprisonment for each conviction — sentences that were within the judge’s discretion to impose. As a result, under K.S.A. 21-4721(c)(l), this court is without jurisdiction to consider Johnson’s challenge to his presumptive sentences even if those sentences are to the longest term in the presumptive grid block for his convictions. This portion of his appeal is dismissed.
Attorney Fees
Finally, Johnson contends the sentencing judge erred by ordering him to reimburse BIDS for attorney fees without first considering his ability to pay and the financial burden the payment would impose.
At sentencing, the judge ordered: “Costs of the action are assessed to the defendant.” The State acknowledges in its appellate brief that the court failed to make any findings on the record regarding Johnson’s ability to pay BIDS attorney fees or the financial burden the payment would have on him.
In State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), this court held: “A sentencing court assessing fees to reimburse [BIDS] under K.S.A. 2005 Supp. 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” 281 Kan. 538, Syl. ¶ 1. Because the judge did not make these findings, the BIDS attorney fees imposed under K.S.A. 22-4513 must be vacated and the case must be remanded for consideration of Johnson’s financial condition before such fees may be imposed under the statute.
Affirmed in part, dismissed in part, vacated in part, and remanded with directions. | [
112,
-22,
-35,
-66,
27,
96,
19,
24,
113,
-81,
-26,
83,
-83,
-53,
5,
123,
-65,
61,
85,
105,
85,
-73,
119,
-63,
-90,
-13,
-40,
-44,
-78,
78,
-68,
-36,
8,
112,
-126,
-11,
102,
-62,
67,
86,
-114,
7,
-88,
-36,
80,
0,
52,
103,
90,
15,
-79,
-97,
-13,
42,
24,
-62,
-120,
44,
91,
-83,
-120,
-103,
-81,
-121,
73,
20,
-77,
5,
-104,
-121,
124,
39,
-36,
57,
2,
-24,
-13,
-106,
-122,
-92,
73,
25,
4,
110,
98,
33,
60,
76,
-72,
-119,
14,
-97,
-115,
-89,
-104,
-40,
98,
12,
-106,
-68,
116,
54,
15,
126,
103,
4,
31,
110,
-127,
-57,
-80,
-79,
-49,
117,
-122,
-6,
-21,
32,
33,
97,
-49,
-30,
76,
-9,
112,
55,
-113,
-108
]
|
The opinion of the court was delivered by
Davis, J.:
Hector H. Gallegos was convicted of premeditated, first-degree murder and criminal possession of a firearm. See K.S.A. 21-3401; K.S.A. 21-4204. The court imposed sentences of fife imprisonment with no possibility of parole for 25 years for the murder conviction and 9 months’ imprisonment for the firearm offense, to be served consecutively. He now appeals, claiming that the district court erred (1) by not instructing die jury on voluntary manslaughter as a lesser included offense of first-degree murder and (2) by providing an instruction that allegedly shifted the burden of proof to the defendant to prove his innocence. He also raises issues regarding the constitutionality of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., in light of Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), and cumulative error. We affirm.
Facts
The underlying facts in this case are not in dispute. Gallegos was at home on the evening of June 24, 2006. Between the hours of 10 p.m. and midnight, he drank two glasses of vodka mixed with orange juice and injected three doses of cocaine into his body. He then went to sleep until about 4 a.m., when he was awakened by a phone call from his nephew, Andrew Gallegos.
Andrew had been at a party at the home of Pedro Reyes Cruz. At some point during the party, Andrew and Cruz got into an argument. Andrew left the party and called Gallegos, asking his uncle to come pick him up because Cruz and another man were “messing [with] him.”
Gallegos retrieved his 9-millimeter handgun and loaded the firearm. Although he was “half-asleep” and “in a fog” from the vodka and the cocaine, he got into his car and drove toward Cruz’ house; he found Andrew walking down the street nearby. Gallegos picked up his nephew and drove to Cruz’ house. He then told Andrew to go to the door while he waited on the sidewalk in front of the porch.
Cruz came to the door. When Cruz saw Gallegos, the two men began arguing about the earlier confrontation between Cruz and Andrew. Cruz remained on his porch during that time, and Gallegos remained on the sidewalk roughly 7 feet away. When Cruz told Gallegos that he had been “ ‘messing with’ ” Gallegos’ nephew An drew “ ‘[j]ust because,’ ” Gallegos pulled out his gun and pointed it at Cruz’ head. Cruz told Gallegos to “ ‘[c]alm down.’ ” Gallegos responded by shooting him five times — three times to the head, once to the right thigh, and once to the left hip. The autopsy revealed that two of the three shots to Cruz’ head were fatal wounds.
(1) Lesser Included Offense Instruction on Voluntary Manslaughter
Gallegos argues that the district court erred when it failed to instruct the jury on voluntary manslaughter as a lesser included offense of first-degree murder. Gallegos concedes on appeal that he neither requested that such an instruction be given nor objected to its absence. The court did instruct the jury on second-degree murder as a lesser included offense of premeditated, first-degree murder.
Standard of Review
The procedure governing parties’ proposals of jmy instructions and the instructions actually provided by the court at trial is set forth in K.S.A. 22-3414(3), which provides in relevant part:
“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.
“The court shall pass upon the objections to the instructions and shall either give each instruction as requested or proposed or refuse to do so, or give the requested instruction with modification. All instructions given or requested must be filed as a part of the record of the case.
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”
As the language of the statute demonstrates, the inquiry as to whether an instruction should have been given on voluntary manslaughter as a lesser included offense of first-degree murder involves a three-step analysis:
(1) Is voluntary manslaughter a lesser included offense of premeditated, first-degree murder?
(2) If it is a lesser included offense, is there “some evidence” that would “reasonably justify” a conviction of voluntary manslaughter in this case? and
(3) If there was evidence in the record that would justify a voluntary manslaughter conviction, is the court’s failure to provide the instruction reversible error?
The first step in this inquiry — whether one crime is a lesser included offense of another under K.S.A. 21-3107(2) — -is a purely legal question over which this court has unlimited review. See State v. Hebert, 277 Kan. 61, 104, 82 P.3d 470 (2004).
The second question similarly involves an objective analysis as to “whether there was sufficient evidence” to support a conviction on the lesser included offense. State v. Horn, 278 Kan. 24, 39-42, 91 P.3d 517 (2004). This analysis requires the resolution of mixed questions of law and fact, as the objective determination as to whether a jury could reasonably convict the defendant of a lesser included offense is a legal question, the resolution of which turns on whether the facts in the current case meet this threshold. We generally review such mixed questions de novo, as we are in as good of a position as the district court to reach a conclusion based on an objective view of the facts. Cf. State v. Fisher, 283 Kan. 272, 286, 154 P.3d 455 (2007) (considering mixed questions of fact and law in a suppression context); State v. Gleason, 277 Kan. 624, 644-45, 88 P.3d 218 (2004) (discussing mixed questions in context of a claim for ineffective assistance of counsel).
Finally, our standard for considering the third question in this analysis — whether the error is sufficiently egregious to warrant reversal — depends on the procedural posture of the case before us. Where the defendant neither requests an instruction on a lesser included offense nor objects to its absence, as is the case here, we reverse only if we find that the failure to provide the instruction was clearly erroneous. See K.S.A. 22-3414(3); State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007). The failure to provide a particular instruction is clearly erroneous “only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citation omitted.]” State v. Bell, 280 Kan. 358, 365, 121 P.3d 972 (2005).
Analysis
We have held on numerous occasions that voluntary manslaughter is a lesser included offense of both first-and second-degree murder as a “lesser degree” of those crimes under K.S.A. 21-3107(2)(a). See Horn, 278 Kan. at 39; State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993) (citing K.S.A. 21-3107[2][a] [Ensley 1988]). Thus, our resolution of this case turns on whether there is some evidence that would reasonably justify a conviction of voluntary manslaughter and, if so, whether the failure to provide an instruction on the lesser included offense was clearly erroneous.
K.S.A. 21-3403 defines voluntary manslaughter as “the intentional killing of a human being committed ... (a) [u]pon a sudden quarrel or in the heat of passion; or (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force” such as self-defense or the defense of others.
Gallegos argues on appeal that the facts were sufficient to warrant an instruction under K.S.A. 21-3403(a) — voluntary manslaughter that results from a sudden quarrel or the heat of passion. The key elements of this offense are (1) an intentional killing and (2) legally sufficient provocation. State v. Mitchell, 269 Kan. 349, 352, 7 P.3d 1135 (2000). In this case, there is no question that Gallegos intended to kill Cruz; instead, the question is whether the behavior that the defendant claims to have provoked his action— the argument outside Cruz’ home and the previous altercation between Cruz and Gallegos’ nephew — was sufficient to support the giving of an instruction on voluntary manslaughter.
This court has previously explained that the provocation required for this type of voluntary manslaughter “must be of such a degree as would cause an ordinary man to act on impulse without reflection. [Citations omitted.]” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). In other words, the provocation for the defendant’s action must be legally sufficient to justify an instruction on the reduced charge. See Horn, 278 Kan. at 40-42; Guebara, 236 Kan. at 796. The determination as to whether provocation is legally sufficient is an objective, not a subjective, test:
“The provocation, whether it be ‘sudden quarrel’ or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. [Citations omitted.] In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. [Citation omitted.]” 236 Kan. at 796.
We have further explained that provocation will be deemed sufficient to warrant an instruction on voluntary manslaughter only if that provocation is “calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason. 2 Wharton’s Criminal Law § 155.” Guebara, 236 Kan. at 796.
Applying this standard to the events in this case, the evidence of an argument between Gallegos and Cruz immediately before Cruz’ death fails to demonstrate any legally sufficient provocation that would warrant an instruction on voluntary manslaughter. Rather, the record demonstrates that after picking up his nephew, Gallegos went to Cruz’ home and instructed his nephew to knock on the door to get Cruz outside. Although there was a brief verbal exchange between Cruz and Gallegos, Cruz remained on his porch during that time, and the defendant remained on the sidewalk roughly 7 feet away. Cruz told the defendant that he had been “ ‘messing with’ ” the defendant’s nephew “ ‘[jjust because’ Gallegos immediately pulled out his gun and pointed it at Cruz’ head. When Cruz told Gallegos to “ ‘[cjalm down,’ ” Gallegos responded by shooting him five times, including three times in the head.
The evidence does not reasonably justify a conviction for voluntary manslaughter. We conclude that the district court did not err when it instructed the jury on only second-degree murder as a lesser included offense of premeditated, first-degree murder.
(2) Instruction on the Burden of Proof
Gallegos argues that the district court erred by instructing the jury that it was to presume he was not guilty “until” it was convinced beyond a reasonable doubt that he was guilty. Gallegos ar gues that the court should have instructed that the jury was required to maintain the presumption of innocence “unless” it found the defendant guilty.
Gallegos claims that by instructing the jury that it was required to presume his innocence until it was convinced beyond a reasonable doubt that he was guilty, the court essentially shifted the burden of proof to the defendant to disprove his guilt. According to the defendant, the use of the term “until” indicated an expectancy that at some point, the jury should find the defendant guilty. The wording of the instruction therefore focused on when, not if, the defendant would be convicted.
Standard of Review
Gallegos acknowledges on appeal that he did not object to the language of this instruction at trial. However, he argues that because the language shifts the burden of proof to the defendant, the instruction was clearly erroneous and can only be corrected by granting a new trial. See K.S.A. 22-3414(3); Carter, 284 Kan. at 324. Instructions are clearly erroneous “ ‘only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citations omitted.]” State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006).
Analysis
At the close of the trial, the court included the following language in its instructions to the jury:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Gallegos’ argument as to this jury instruction fails for two important reasons: (1) We have previously held that the very instruction at issue, although not ideal, does not rise to the level of re versible error; and (2) even if the instruction was in some way-erroneous, any possible error was invited by Gallegos, who proposed the exact language in question before trial.
As to the first point, we considered the exact language included in the instruction in question, which is a previous version of PIK Crim. 3d 52.02, in State v. Wilkerson, 278 Kan. 147, 91 P.3d 1181 (2004). In that case, the defendant claimed that the use of the term “until” rather than “unless” misled the “ ‘jury into beheving that [it] should expect to be convinced of the defendant’s guilt.’ ” 278 Kan. at 158. We noted that while the instruction “would have been improved by the substitution of the word ‘unless’ for the word ‘until,’ ” the instructions were not the basis for reversal. 278 Kan. at 158. In particular, we emphasized that “[t]he whole of the instructions given in this case, when read together, accurately stated the law,” so “[t]he jury could not reasonably have been misled by them, and thus the instructions did not constitute reversible error even if they were in some way erroneous. [Citations omitted.]” 278 Kan. at 158.
As was the case in Wilkerson, the instructions in this case, when taken as a whole, accurately state the law. The burden-of-proof instruction, when read in its totality, correctly describes the standard that the jury was required to apply in finding Gallegos guilty or not guilty of the crimes charged. The jury could not reasonably have been misled by the use of the term “until” in light of the accompanying instructions.
Furthermore, even if we were to find some error from the use of the instruction at issue, that error was invited by Gallegos, who proposed the use of the exact instruction in question — including the term “until” — before trial. This court has explicitly stated that “[a] litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. [Citation omitted.]” State v. Kirtdoll, 281 Kan. 1138, 1150, 136 P.3d 417 (2006).
In Kirtdoll, this court held that the defendant was “barred from claiming” error from a cautionary instruction given by the court because the defendant had “championed the use of the instruction over the State’s objection.” 281 Kan. at 1150-51. In this case, Gallegos did not merely defend the use of the instruction but instead proposed the very instruction that he now claims to be erroneous. Any potential prejudice that might have arisen from the use of the instruction in question is outweighed by this fact.
Finally, we note that any potential for error involving the instruction in this case could have been avoided if Gallegos had proposed the most recent version of PIK Crim. 3d 52.02. The pattern instruction was modified in 2004 after this court issued its decision in Wilkerson to substitute unless for until. See PIK Crim. 3d 52.02, Comment, p. 52. We have previously emphasized the desirability of using the current pattern instructions, explaining:
“The use of pattern (PIK) instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarify, and uniformity to jury 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.” Mitchell, 269 Kan. 349, Syl. ¶ 4.
Had the defendant or his counsel provided the current version of PIK Crim. 3d 52.02 with his proposed jury instructions, this issue would not be before the court today. Regardless of this oversight, however, the use of the outdated instruction in this case did not constitute clear error.
(3) Constitutionality of the KSGA
Gallegos claims that the sentence for his conviction of criminal possession of a firearm is unconstitutional in light of the United States Supreme Court’s recent decision in Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), because the court imposed the upper limit in the presumptive sentencing grid box based on aggravating factors that were not submitted to the jury.
Gallegos was convicted of criminal possession of a firearm under K.S.A. 21-4204(a)(3), which is a severity level 8 nonperson felony. K.S.A. 21-4204(d). Because the firearm offense was not Gallegos’ primary conviction, the court determined that he had a criminal history score of I for that particular offense. Thus, under the KSGA, Gallegos’ firearm conviction carried a presumptive sentence of 7 to 9 months. K.S.A. 21-4704(a) (grid). The court sentenced the defendant to the upper limit in the sentencing grid box, imposing a 9-month prison sentence to be served consecutive to his hard 25 sentence for the murder conviction. The court explained that the reason for the upper-limit sentence was that if Gallegos had not violated the firearm statute, “perhaps [the court] would not be here today” to sentence him on the murder conviction.
Gallegos argues that under Cunningham, the maximum sentence that the statute authorizes for his conviction is actually the standard (middle) number in the sentencing grid box and any factors that would increase a defendant’s sentence beyond that standard number must be submitted to a jury and determined beyond a reasonable doubt. Under this reasoning, Gallegos claims K.S.A. 21-4704(e)(l), which permitted the court to impose the upper limit in the sentencing grid box, is facially unconstitutional under Cunningham because it allows a court to impose a penalty beyond the statutory maximum.
In State v. Johnson, 286 Kan. 824, Syl. ¶¶ 5-6, 190 P.3d 207 (2008), the defendant raised this exact argument relating to Cunningham and K.S.A. 21-4704(e)(l) that is put forth by Gallegos in this case. We held in Johnson that because the KSGA provides district courts with discretion to impose any sentence within the presumptive range, the prescribed statutory maximum sentence under Cunningham is the high number in the applicable sentencing grid box. Thus, K.S.A. 21-4704(e)(l) does not violate a defendant’s constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. For the reasons set forth in Johnson, we hold that Gallegos’ claim regarding the constitutionality of the KSGA is similarly without merit.
(4) Cumulative Error
Gallegos argues that even if the issues he has raised do not individually rise to the level of reversible error, the cumulation of those alleged errors denied him the right to a fair trial. The test to determine whether cumulative errors require reversal of a defend ant’s conviction is “whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial.” State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006).
Our opinion demonstrates that Gallegos has failed to establish that any error or prejudice occurred at die trial level. Under such circumstances, his claim of cumulative error is without merit. See State v. Humphery, 267 Kan. 45, 64, 978 P.2d 264 (1999).
Affirmed. | [
112,
-22,
-3,
63,
59,
96,
42,
-68,
80,
-13,
52,
83,
-17,
-53,
17,
123,
-7,
127,
117,
105,
-59,
-89,
39,
-63,
-70,
-13,
-16,
-44,
50,
74,
126,
-9,
12,
-32,
10,
117,
102,
10,
97,
-48,
-114,
5,
-119,
-16,
-61,
10,
32,
122,
86,
14,
33,
-114,
-13,
42,
26,
-53,
73,
44,
75,
-83,
-64,
-71,
-37,
-123,
-56,
18,
-125,
-106,
-100,
-89,
-8,
22,
-38,
49,
8,
-24,
115,
-90,
-128,
116,
105,
-117,
-28,
102,
98,
-96,
93,
-51,
-27,
-119,
47,
63,
-99,
-121,
-100,
81,
99,
44,
-106,
-3,
124,
52,
-82,
112,
-17,
21,
93,
-4,
-124,
-42,
-112,
-111,
-115,
112,
-58,
-8,
-53,
37,
49,
101,
-50,
-26,
92,
-59,
80,
-101,
-113,
-42
]
|
The opinion of the court was delivered by
Rosen, J.:
The district court suppressed statements Karin J. Morton made in an interview with a criminal investigator for the Government Services Administration (GSA), for failure to provide Miranda warnings and because of unfair conduct that rendered her statements involuntary. The State filed an interlocutory appeal. In an unpublished decision filed July 20, 2007, the Court of Appeals reversed the district court, holding that Miranda warnings were not required because the interview was not custodial. We granted Morton’s petition for review. Although the Court of Appeals correcdy determined that Miranda warnings were not required because the interview was not custodial, we hold that the agent’s conduct rendered Morton’s statements involuntary and thus inadmissible. Accordingly, we reverse the Court of Appeals, and affirm the judgment of the district court.
FACTS
Factual background
Morton worked for the Ottawa Recreation Commission (ORC), a taxpayer-funded entity that provides recreation services for the community of Ottawa. As part of her job duties, Morton was authorized to purchase federal surplus government property for the ORC. Federal surplus property is not available to the general public and is subject to use restrictions, including that personal use of the property is prohibited for a set period of time.
In early 2004, Morton purchased several travel trailers through the federal program. Paul Schwartz, director of the federal surplus property program, spoke with Morton when she purchased the trailers and advised her of the restrictions. Morton told Schwartz the ORC intended to use the trailers to store equipment and for concessions. Schwartz, being an impassioned guardian entrusted with safeguarding the transfer and subsequent utilization of government-owned surplus property, began investigating ORC’s use of the trailers after receiving a letter alleging that some of the surplus property was not being used in compliance with the program restrictions. Schwartz’ intuition led him straight to Morton’s residence, where he spotted one of the trailers.
Presumably noting that Morton’s residence appeared to be a curious location for a publicly operated concessions stand and/or storage facility, Schwartz sent a compliance check form to the ORC, requesting information regarding the location and current use of the surplus property. Morton completed and signed the form, attesting that all of the trailers were located at the Ottawa ballfields and were being used for concessions stands and quarters for staff and officials.
His duty served, Schwartz then handed the matter over to the GSA and local law enforcement. Officer Weingartner of the Ottawa Police Department began investigating the matter. Officer Weingartner found one of the travel trailers at Morton’s residence. Later, he interviewed Morton. Morton was represented by an attorney at the interview. The officer provided Miranda warnings and the interview was recorded.
After the Ottawa Police Department completed its report of the investigation, the GSA began its own investigation. The matter was assigned to Special Agent John Pontius, a criminal investigator with the GSA. Agent Pontius reviewed the police report and determined that additional facts were needed about the compliance form. Agent Pontius decided to do a follow-up interview to ask questions about the form.
Agent Pontius got in touch with Morton, and she agreed to meet him at the Ottawa Police Department. Agent Pontius did not provide Morton with Miranda warnings prior to questioning her. During the interview, Morton admitted receiving the compliance form, admitted that she filled out the form, and identified her handwriting and her signature on the form.
Agent Pontius sent a summary of his interview to the county attorney’s office and to his headquarters. Subsequendy, Morton was charged with one count of making a false information under K.S.A. 21-3711, a severity level 8 nonperson felony.
The suppression hearing
Prior to trial, Morton filed a motion to suppress her statements to Agent Pontius, contending that the failure to provide her with Miranda warnings required suppression. The State filed a response, contending that Morton was not in custody and, therefore, no Miranda warnings were required. The State also argued that Morton’s statements were voluntarily made and, therefore, were admissible.
The trial court held a hearing on the suppression motion. Both Agent Pontius and Morton testified. Their respective versions of events differ somewhat.
Morton’s testimony
Morton testified that several months after the Ottawa Police Department investigation was completed, her attorney left a message that a representative from the GSA had contacted his office and said a GSA agent wanted to talk to her about the trailer. She tried to call her attorney back, but he never returned her calls. After several weeks she used the GSA website to obtain Agent Pontius’ phone number and left a message for him at his office.
Agent Pontius returned her call. He told her it was an informal interview and asked her if there was some alternative to the local police department where they could meet. She could not think of anyplace private enough, so they agreed on the police department. Morton testified she asked Agent Pontius if this was something she would need her attorney for. Agent Pontius told her, “No, no, it’s not that kind of interview. Some people bring their attorneys but it’s nothing you’ll need an attorney for.”
According to Morton, at the time she agreed to meet with the agent she believed the criminal investigation was over. She had read in the paper that the county attorney had declined to prosecute, and her attorney had told her it was over. Morton testified she anticipated there would be a meeting with the GSA because the GSA was the surplus property oversight agency, and it would be deciding whether it would recover the trailer.
Agent Pontius and another special agent met her at the police station at the agreed upon time. He introduced himself and the other agent as “special agents.” Morton testified that in her mind, a “special agent” was someone who works for the government and was not synonymous with “criminal investigator.” They went into a break room. Before the interview started, Agent Pontius told Morton she was not under arrest; she did not have to answer their questions; and she could leave at any time. She was not handcuffed or physically restrained in any way.
Toward the end of the interview, Agent Pontius asked her, “Are you aware that this has been returned to the county attorney s office?” She replied that she was not. He asked her, “No one from the county attorney s office has called you?” She said, “No.” He then said, “Well, it’s back. It’s back at her office.” Morton testified that Agent Pontius told her that was part of the reason for the interview — to clarify some items on behalf of the county attorney because he was going to forward his report to the county attorney. After the interview, Agent Pontius told her he would have his report on the county attorney’s desk in about 2 to 3 weeks.
Morton testified that she was not aware the interview was part of a criminal investigation until the end of the interview. Morton testified that she would have had counsel present at the interview if she had known the county attorney was considering criminal charges again. She said her attorney had advised her that if someone wanted to talk to her as part of the criminal investigation, she should agree, but arrange to have him present.
Agent Pontius’ testimony
Agent Pontius testified that he wanted to interview Morton to clarify facts about the federal documents that the local police did not ask during their interview. He considered Morton a suspect, and he was conducting a criminal investigation.
Before he contacted Morton to set up an interview, the agent called the attorney who had represented her during her previous interview with the police. According to the agent, the attorney’s office said they were not sure they were going to be representing her, so he called Morton at home and left a message. When she called him back, they discussed the interview.
The agent testified that Morton voluntarily met him at the Ottawa Police Department Building. Another agent from his office was present. Before asking any questions, the agent told Morton that she was not under arrest; she was not being detained; the interview was not mandatory; she could stop talking to them at any time; and she could leave whenever she wanted.
The agent explained that he did not give Miranda warnings because they are only required when the individual is in custody. Agent Pontius testified that at no time was Morton handcuffed and the door to the interview room was not locked. She was not deprived of bathroom breaks, food, or water for a significant period of time and was free to leave at any time. After the interview, Morton was not arrested and she was allowed to leave.
Agent Pontius denied telling Morton she did not need an attorney for the interview. Agent Pontius testified he told her he was conducting an investigation, he identified himself as a criminal investigator, and he told her he wanted to ask her some questions concerning the matter she had been interviewed about. He also testified that as a rule, GSA special agents identify themselves with their credentials, which state they are criminal investigators.
The suppression ruling
The trial court granted the motion to suppress. The basis for the trial court’s decision is difficult to discern, but the ruling appears to have been based on two grounds: the agent’s failure to provide Miranda warnings and the court’s conclusion that the agent’s conduct was unfair, rendering Morton’s statements involuntary.
The State filed an interlocutory appeal. A panel of the Court of Appeals reversed the district court’s decision. State v. Morton, No. 97,848, unpublished opinion filed July 20, 2007. The panel held that Morton was not in custody and, therefore, Agent Pontius was not required to provide Miranda warnings. Morton filed a petition for review, arguing that the Court of Appeals failed to address the district court’s determination that the agent’s conduct required suppression. We granted review.
Discussion
Our standard of review is well-established. We review a decision suppressing evidence under a mixed standard of review. We determine, without reweighing the evidence, whether the facts underlying the trial court’s decision are supported by substantial com petent evidence. We then conduct a de novo review of the district court’s legal conclusion drawn from those facts. State v. Jones, 283 Kan. 186, 192, 151 P.3d 22(2007).
1. Does the failure to provide Miranda warnings require that Morton’s statements be suppressed?
As this court recently explained in State v. Jones, 283 Kan. at 192, the Miranda rule was designed to safeguard the Fifth Amendment privilege against self-incrimination by reducing the risk of a coerced confession:
“The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. ‘[T]o reduce the risk of a coerced confession and to implement the Self-Incrimination Clause’ (Chavez v. Martinez, 538 U.S. 760, 790, 155 L. Ed. 2d 984, 123 S. Ct. 1994 [2003] [Kennedy, J., concurring in part and dissenting in part]), the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), concluded that states may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination.”
Miranda warnings are not required whenever police question someone. “ ‘Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” ’ ” Jones, 283 Kan. at 192-93 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 [1977]). This limitation arises out of the basis for the rule itself — concern for the compelling pressures inherent in a custodial interrogation:
“To dissipate ‘the overbearing compulsion . . . caused by the isolation of a suspect in police custody,’ [citation omitted] the Miranda Court required the exclusion of incriminating statements obtained through custodial interrogation unless the suspect fails to claim the Fifth Amendment privilege after being suitably warned of his right to remain silent and of the consequences of his failure to assert it. [Citation omitted.] We have consistently held, however, that this extraordinary safeguard ‘does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.’ ” Minnesota v. Murphy, 465 U.S. 420, 430, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984).
See also Oregon v. Mathiason, 429 U.S. at 495 (stating that it is the coercive environment of the custodial interrogation “to which Miranda by its terms was made applicable, and to which it is limited”).
A two-part inquiry is used to determine whether an interrogation is custodial for purposes of Miranda. The first prong is: What were the circumstances surrounding the interrogation? We review that determination under a substantial competent evidence standard. The second prong of the inquiry is: Under the totality of those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? We apply a de novo standard of review to that determination. State v. Jones, 283 Kan. at 194.
Thus, our first task is to determine whether the district court’s findings of fact concerning the circumstances surrounding the interrogation are supported by substantial competent evidence. The following factors are to be considered in analyzing the circumstances surrounding the interrogation:
“ ‘(1) when and where the interrogation occurred; (2) how long it lasted; (3) how many police officers were present; (4) what the officers and defendant said and did; (5) the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; (6) whether the defendant is being questioned as a suspect or a witness; (7) how the defendant got to the place of questioning, that is, whether he came completely on his own in response to a police request or was escorted by police officers; and (8) what happened after the interrogation — whether the defendant left freely, was detained, or was arrested.’ ” Jones, 283 Kan. at 195 (quoting State v. Deal, 271 Kan. 483, 495, 23 P.3d 840 [2001], abrogated on other grounds by State v. Anthony, 282 Kan. 201, 214, 145 P.3d 1 [2006]).
These factors are not to be applied mechanically or treated as if each factor bears equal weight. As we said in Jones, each case needs to be analyzed on its own facts; some factors will present in one case and not in another, and the importance of each factor may vaiy from case to case. Jones, 283 Kan. at 195.
Morton contends the following factors support a finding of custody: (1) what the agent and die defendant said and did; (2) whether the defendant was being questioned as a witness or suspect; and (3) what happened after die interview.
What the agent and the defendant said and did
Morton contends that while she believed the interview was administrative in nature, the agent’s actual purpose was to provide additional information for the county attorney. According to Morton, Agent Pontius’ statements that tie interview was informal and not the kind of interview she would need any attorney for were deceptive, leading her to believe that the interview was not a criminal investigation when it was.
It appears the district court found it significant that the purpose of the interview was to obtain and provide the county attorney with additional information to aid in pursuing criminal charges, while Morton believed the criminal investigation was over. Substantial competent evidence supports the conclusion that the purpose of the interview was criminal in nature and that Morton was unaware of that fact until the conclusion of the interview.
The district court did not make any specific finding of fact on the disputed matter of whether the agent told Morton she did not need a lawyer because it was not that kind of interview. The district court did, however, conclude that the agent’s conduct was unfair, thus requiring suppression. When we apply the mixed standard of review, we do not reweigh testimony or pass on the credibility of witnesses. Instead, we accept as true the evidence and all inferences to be drawn therefrom that support the findings of the trial court and disregard any conflicting evidence or other inferences that might be drawn therefrom. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997). Thus, we accept Morton’s version of events as true.
Whether the defendant was being questioned as a suspect or witness
As Morton notes, there is no dispute Agent Pontius considered her to be a suspect, not a witness. The district court’s decision appears to be based, in part, on the fact that Morton was the focus of the investigation. Accordingly, substantial competent evidence supports the finding that Morton was being questioned as a suspect.
What happened after the interview
On this factor, Morton points out the evidence established that Agent Pontius told her he would be sending a copy of his report of the interview to the county attorney. Subsequently, the criminal case was filed and she surrendered herself to law enforcement in lieu of a formal arrest. The district court did not make any findings concerning what happened after the interview. It is obvious, however, that this criminal case was initiated not long after the agent’s interview. Accordingly, substantial competent evidence supports this factor.
In summary, we find the following circumstances surrounding the interrogation are supported by substantial competent evidence. Morton believed the criminal investigation had concluded with no criminal charges to be filed. When she was contacted by Agent Pontius, she believed his involvement was administrative in nature. The agent was conducting a criminal investigation, and Morton was a suspect. The agent told Morton the interview was informal, and when she asked whether she would need a lawyer for the interview, the agent told her no, it was not that kind of interview. Morton agreed to meet Agent Pontius at the police department. She drove herself to the interview, which was held at the police department. The interview took place in a break room, not in a regular interview room. There were two agents present. Miranda warnings were not given. Before questioning began, Morton was told she was not under arrest; she could refuse to answer questions; and she could terminate the interview and leave at any time. The room was not locked; Morton was not handcuffed; and she was not physically restrained in any way. After the interview, the agent told Morton the matter was back at the county attorney’s office, and that he would be providing a copy of his report to the county attorney. Morton was allowed to leave the interview. Later, Morton was prosecuted.
Having determined the circumstances surrounding the interrogation, our next task is to determine whether, under the totality of those circumstances, a reasonable person would have felt he or she was not at liberty to terminate the interview and leave. Jones, 283 Kan. at 194. We use an objective standard in determining whether an interrogation is custodial:
“The question of whether an interrogation is custodial must be determined based on an objective standard of how a reasonable person in the suspect’s situation would perceive his or her circumstances. Courts must examine all of the circumstances surrounding the interrogation and determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.” 283 Kan. 186, Syl. ¶ 3.
Our task is made difficult by the fact that neither Morton nor the State argue this prong of the inquiry. Morton argues only that had she been given Miranda, and had she been told that the interview was a criminal investigation for the purpose of providing additional information to the county attorney, she would have had an attorney present. Under these circumstances, Morton argues, the failure to give Miranda warnings was fundamentally unfair.
The problem with Morton’s argument is that her beliefs about the nature of the interview and the subjective intentions of the agent are only relevant to the custody inquiry if they would have caused a reasonable person to believe he or she was not free to terminate the interview and leave. As we noted in Jones, custody “ ‘depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.’ ” Jones, 283 Kan. at 193 (quoting Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d 293, 114 S. Ct. 1526 [1994]).
Under this standard, an officer’s intent, purpose, and views concerning the nature of the interrogation and whether the individual is a suspect are relevant to the determination of custody only if they were communicated to or otherwise made known to the individual being questioned and if they would have affected how a reasonable person would have perceived his or her freedom to leave:
“It is well settled then, that a police officer’s subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda. [Citation omitted.] The same principle obtains if an officer’s undisclosed assessment is that the person being questioned is not a suspect. In either instance, one cannot expect the person under interrogation to probe the officer’s innermost thoughts. Save as they are communicated or otherwise manifested to the person being questioned, an officer’s evolving but unarticulated suspicions do not affect the objective circumstances of the interrogation or interview, and thus cannot affect the Miranda custody inquiry. ‘The threat to a citizen’s Fifth Amendment rights that Miranda was designed to neutralize has little to do with the strength of an interrogating officer’s suspicions.’ [citation omitted.]” Stansbury v. California, 511 U.S. at 324-25.
See also Jones, 283 Kan. at 193 (discussing the objective standard under Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 [1984]; Stansbury); State v. Fritschen, 247 Kan. 592, 597-603, 802 P.2d 558 (1990) (discussing the development of the objective standard and holding that the fact a suspect is the focus of the investigation is relevant under the objective standard only if the suspect was aware he or she was the focus and a reasonable person in the suspect’s position would have felt that because of this he or she was in custody); State v. James, 276 Kan. 737, 752, 79 P.3d 169 (2003) (existence of an out-of-state felony warrant that required the defendant be detained, which was known to the officers but not the defendant, did not convert interview into a custodial interrogation because the custody test is based on an objective standard).
Under this objective standard, Agent Pontius’ focus on Morton as a suspect, his purpose in conducting the interview, and his intent to reinstigate charges are relevant to the determination of custody for purposes of Miranda only if they were communicated to or otherwise made known to Morton and would have affected how a reasonable person would have perceived his or her freedom to terminate the interview and leave. The evidence establishes that Morton was unaware of any of that until the end of the interview. Accordingly, Agent Pontius’ subjective knowledge, purpose, plan, and intent are not relevant to the objective custody inquiry.
Similarly, Morton’s subjective beliefs concerning the nature of the interview have no bearing on the custody inquiry. The determination of custody for purposes of Miranda is determined by the objective circumstances, not by the subjective view harbored by the person being questioned. Jones, 283 Kan. at 193. In Yarborough v. Alvarado, 541 U.S. 652, 158 L. Ed. 2d 938, 124 S. Ct. 2140 (2004), the Supreme Court held that a suspect’s prior experience with law enforcement is not a relevant factor in the custody inquiry. The Court distinguished the objective Miranda custody inquiry from other types of inquiries, like the voluntariness of a confession, that are based on the mindset and characteristics of the particular suspect. Alvarado, 541 U.S. at 667-68. An objective test “furthers The clarity of [the Miranda] rule, [citation omitted] ensuring that the police do not need To make guesses as to [the circumstances] at issue before deciding how they may interrogate the suspect. [Citation omitted.]’ ” Alvarado, 541 U.S. at 667. Allowing the suspect’s individual characteristics to be a part of the custody analysis, even if styled as an objective test — what would a reasonable person of the suspect’s age, experience level, etc. have believed — would ruin this clarity, as it would require police officers to consider a suspect’s mindset when faced with deciding whether they are required to give Miranda warnings. Alvarado, 541 U.S. at 667-69.
Morton also argues the agent’s statement that she did not need a lawyer because it was not that kind of interview was a he and was intended to deceive her about the criminal nature of the interview. This, she argues, violated her rights under Miranda. Accordingly, we must determine whether lies or deceptions are relevant to the custody inquiry.
A police officer’s comment about the need for a lawyer was at issue in State v. Haddock, 257 Kan. 964, 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737, 79 P.3d 169 (2003). Although the interview was noncustodial, the officer read Miranda rights before questioning Haddock. At the point where the officer advised Haddock of his right to have a lawyer present, Haddock asked, “Is there any reason for me to?” 257 Kan. at 975. The officer responded, “Not at this point, I don’t.” 257 Kan. at 975.
Haddock argued the officer’s statement was misleading, deceptive, and tainted the waiver of his Miranda rights. 257 Kan. at 975. The district court denied suppression, ruling that Haddock was not in custody during the interview. On appeal, Haddock argued that the officer’s response to his question about the need to have a lawyer present violated his Miranda rights. He argued that the noncustodial nature of the interrogation was irrelevant because Miranda warnings were given. This, he argued, triggered Miranda’s protections and, thus, the officer was required to “ ‘honor the defendant’s constitutional rights[,]’ ” even in a noncustodial setting. 257 Kan. at 976. The court disagreed, holding that Mirandas protections simply do not exist outside of the context of a custodial interrogation:
“Custody would not matter if Haddock was contending that his statements were obtained through coercion, threats, or duress, or other involuntary means violating due process. See United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir. 1987) (noting that even if Miranda rights are not violated, statements may be inadmissible if made involuntarily). However, the ‘constitutional rights’ Haddock seeks to enforce — the safeguards against self-incrimination established by Miranda — do not exist outside ‘custodial interrogation.’ See, e.g., United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994); State v. Fritschen, 247 Kan. 592, 597, 802 P.2d 558 (1990) (‘Miranda only applies if the interrogation was custodial.’). Although we have never addressed the question directly, other courts have held that the giving of Miranda warnings, itself, does not transform a noncustodial interrogation into a custodial interrogation. United States v. Charles, 738 F.2d 686, 693 n.6 (5th Cir. 1984); United States v. Lewis, 556 F.2d 446, 449 (6th Cir.), cert. denied 434 U.S. 863.” 257 Kan. at 976-77.
Although our holding in Haddock was that giving Miranda warnings in a noncustodial setting does not make the interview custodial, it is at least implicit in the decision that the officer’s comment about the need for a lawyer is not relevant to the determination of custody for purposes of Miranda. Cf. Oregon v. Mathiason, 429 U.S. at 495-96 (falsely telling a suspect that his fingerprints were found at the scene not relevant to whether the respondent was in custody for purposes of Miranda). Accordingly, in considering whether a reasonable person in Morton’s situation would have felt free to terminate the interview and leave, the agent’s undisclosed purpose and intent, Morton’s subjective beliefs about the nature of the interview, and the agent’s comment about the need for a lawyer are not relevant.
Setting those circumstances aside, the totality of the remaining relevant circumstances supports the conclusion that a reasonable person would have felt free to leave the interrogation. Morton agreed to meet with Agent Pontius, and voluntarily drove herself to the police station to be interviewed. The interview took place in a break room; the room was not locked; and she was not handcuffed or restrained in any way. Agent Pontius told her she was not in custody; she could refuse to answer questions; and she was free to leave at any time. Morton was allowed to leave at the end of the interview.
Although this issue is decided on a case-by-case basis, case law supports the conclusion that under these circumstances, a reasonable person would not have believed himself or herself to be in custody. See State v. Jones, 283 Kan. at 196-200 (interview noncustodial where, although defendant was under subpoena and was arrested after the interview, he came to the interview voluntarily, officers told him he was not in custody and that the interview was voluntary, he was not restrained or threatened, and he was initially questioned as a witness); State v. James, 276 Kan. 737 (interview noncustodial where defendant went to police station voluntarily, defendant was initially questioned as a witness, officer told defendant he was not under arrest, defendant was not restrained, defendant had access to cell phone and pager, and defendant was arrested at end of interview on outstanding Missouri warrant); State v. Jacques, 270 Kan. 173, 186-87, 14 P.3d 409 (2000) (first interview at police station was noncustodial, defendant was free to go, interview took place in interview room, officers drove defendant to police station, defendant left freely after the interview, interview lasted over 2 hours, and the defendant was not a suspect); State v. Heath, 264 Kan. 557, 591, 957 P.2d 449 (1998) (as cited in Jones, 283 Kan. at 199) (interview was not custodial where defendant went to the police station voluntarily to be interviewed and waited unrestrained in waiting room prior to interview); State v. Fritschen, 247 Kan at 604-05 (interview noncustodial where defendant voluntarily went to police station to be interviewed, he was informed he was not under arrest and was free to leave, only two officers were present, officers did not yell at or threaten defendant, defendant was not handcuffed or restrained, officers started to take defendant home at one point, and the officers told defendant he could consult a lawyer and they would honor such a request).
Morton relies on State v. Deal in support of suppression. In Deal, the police wanted to speak to the defendant as part of their investigation into the disappearance and death of Aubry Phalp. Officers located Deal and asked him to come to the police station to speak with them about Phalp’s disappearance. They did not inform him that Phalp had been found dead just the day before. Deal agreed and drove to the police department while the police followed. Deal was interviewed without Miranda warnings.
The trial court denied Deal’s motion to suppress. On appeal, Deal argued the following circumstances surrounding the interrogation demonstrated that he was in custody: (1) the interrogation took place in the early evening and at the police station; (2) it lasted about 3 hours; (3) there were two detectives present during most of the interview; (4) the detectives never told him he was free to leave; (5) the detectives told him they were investigating Phalp as a missing person and did not reveal that it was actually a homicide investigation, as Phalp had been found dead; (6) although he was not in handcuffs, Deal was in a locked interview room; (7) the detectives continually asked him about his whereabouts the weekend of Phalp’s death and asked him to take a He detector test after finally admitting they were investigating Phalp’s murder; (8) he was escorted to the police station although he went voluntarily; and (9) he was allowed to leave freely after the interview ended. Deal, 271 Kan. at 498.
The State argued that the following circumstances showed that Deal was not in custody: (1) Deal willingly went to the police station; (2) although Deal was never told he was free to leave, the officers would have allowed him to leave at any time if he had wanted to; (3) Deal was not handcuffed or placed under arrest; and (4) Deal never asked to make any phone calls or asked for anyone else to be present. 271 Kan. at 498-99.
We affirmed the trial court’s ruling that Deal was not in custody, holding that under those circumstances, a reasonable person would not have understood the situation to be a custodial interrogation. 271 Kan. at 499.
Deal does not support suppression in this case. The circumstances here are even less likely to have caused a reasonable person to have believed he or she was in custody than in Deal. In Deal, the defendant was escorted to the police department, while here, Morton drove unescorted to the police station. Deal was never told he was free to leave, while here, Morton was specifically told that she was not under arrest, she could refuse to answer questions, and she could leave at any time. And in Deal, the interview room was locked, while here the interview took place in an unlocked break room.
In summary, the Court of Appeals correctly concluded that because Morton was not in custody, the agent was not required to administer Miranda warnings. Thus, the Court of Appeals was correct in holding that the district court erred in ordering Morton’s statements suppressed for failure to give Miranda warnings. However, that is not the end of the analysis. The Court of Appeals failed to address the other component of the trial court’s ruling — whether the conduct of the agent in this case rendered Morton’s statements inadmissible under the voluntariness standard.
2. Did the agent’s conduct render Morton’s statements involuntary and, thus, inadmissible?
Unwarned inculpatory statements obtained through noncustodial interrogation, although not barred by Miranda, may nevertheless be inadmissible if they were obtained in violation of the due process voluntariness requirement. See State v. Haddock, 257 Kan. at 976 (citing United States v. Chalan, 812 F.2d 1302, 1307 [10th Cir. 1987]). As the United States Supreme Court has stated:
“We recognize of course that noncustodial interrogation might possibly in some situations, by virtue of some special circumstances, be characterized as one where ‘the behavior of . . . law enforcement officials was such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined....’ [Citation omitted.] When such a claim is raised, it is the duty of an appellate court, including this Court, ‘to examine the entire record and make an independent determination of the ultimate issue of voluntariness.’ [Citation omitted.]” Beck-with v. United States, 425 U.S. 341, 347-48, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976).
Thus, there is a two-tiered standard for admissibility of a defendant’s statements to law enforcement officers:
“[A]lthough the Miranda standard is the first line of inquiry in every case, the voluntariness standard is the ultimate criterion for the admissibility of a confession. Violation of Miranda terminates the inquiry, the confession being per se inadmissible. Conformity with Miranda, however, merely triggers the second line of analysis — the voluntariness standard.
“The two-tiered analysis of confessions ... is required because the Supreme Court has held that Miranda does not coincide with the constitutional standard of voluntariness, but is only a prophylactic procedure to aid in the determining the admissibility of confessions.” 3 Ringel, Searches & Seizures, Arrests and Confessions § 24:5 (2d ed. 1993).
The agent’s undisclosed purpose for the interview, Morton’s subjective beliefs about the civil nature of the interview, and the agent’s comment about the need for an attorney are not relevant to the issue of whether Morton was “in custody” for purposes of Miranda. These circumstances may nevertheless be relevant to a claim that her statements were inadmissible under the due process voluntariness standard. In this case, it appears the district court determined that the agent’s conduct was fundamentally unfair and, thus, Morton’s statements were not voluntary.
In determining whether a defendant’s confession is voluntary, “the essential inquiry ... is whether the statement was the product of the free and independent will of the accused.” State v. Walker, 283 Kan. 587, 596, 153 P.3d 1257 (2007). In making this determination, the court considers the following specific factors:
“(1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” State v. Walker, 283 Kan. at 596-97,
In this case, there is no claim that Morton had a mental condition that impacted the voluntariness of her statements. Morton has not claimed the manner or duration of the interview made her statements involuntary. Specifically, there is no evidence the agent was hostile, threatening, or abusive. Further, Morton has not claimed the length of the interview was so long that her will was overborne. She has not claimed she was deprived of the ability to communicate with the outside world during the interview. And there is no claim that her age, level of education, or background are relevant to the admissibility of her statements. In fact, the evidence showed Morton was 40 years old and has a degree in public administration. Instead, only the fifth factor — the fairness of the officers — is at issue in this case.
The district court cited State v. Price in support of its decision concerning the fairness of the agent’s conduct. In Price, the defendant was an inmate at the Norton Correctional Facility, serving a sentence on another case when he was questioned by a KBI agent. Before the interview, the agent provided the defendant with Miranda warnings, but he recited them from memory, rather than reading from the standard form. The warning failed to include the advice that an attorney would be provided if the defendant wanted one, and that he could stop answering questions at any time.
A Jackson v. Denno hearing was held to determine the voluntariness of the defendant’s statements, and at the conclusion of the hearing the district court ordered the confession suppressed. See 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). The State appealed on a question reserved. This court, however, refused to entertain the State’s appeal because it did not involve a question that would provide helpful precedent to the bench, bar, and law enforcement personnel. Price, 247 Kan. at 103-04. This court also noted that the record failed to contain all of the facts the trial court may have taken into consideration in its ruling. Price, 247 Kan. at 103.
Price does not support a determination that the agent’s conduct in this case requires suppression. The fairness of the officers was not at issue in the Price appeal. It appears the only reason Price was mentioned by the district court is that it lists the factors to be considered in assessing voluntariness, which list includes the fairness of the officers.
The fairness of the officer in conducting the interrogation
In this case, the district court found the agent’s conduct to be unfair because, while Morton believed the criminal investigation had ended with no charges to be filed, the purpose of the agent’s interview was to further the criminal investigation and encourage the filing of charges by providing additional information to the county attorney. Additionally, Morton argues that the agent’s comment that she did not need an attorney because it was not that kind of interview was fundamentally unfair. Consequently, the is sue concerns the extent to which the officer s conduct was unfair and, thus, rendered Morton’s statements involuntary.
We have held that false statements to a suspect about the strength of the evidence do not, by themselves, render the suspect’s confession involuntary. State v. Wakefield, 267 Kan. 116, 128, 977 P.2d 941 (1999). Rather, they must be viewed in conjunction with the totality of the circumstances surrounding the confession to determine whether it was voluntarily made. State v. Swanigan, 279 Kan. 18, Syl. ¶ 3, 106 P.3d 39 (2005); see also State v. Ackward, 281 Kan. 2, 9-10, 16, 128 P.3d 382 (2006) (under totality of the circumstances, officers’ false statements that included the representation that they had a surveillance camera recording of the defendant, his hands were being swabbed for a gunshot residue analysis that would show whether he had fired or even held a gun in the past 48 hours, there were multiple eyewitnesses, and another person was cooperating with police, did not render confession involuntary).
While telling a suspect false information about the evidence against the suspect, standing alone, does not render a confession involuntary, giving the suspect false or misleading information about the law is more problematic:
“As opposed to giving the suspect false information regarding the status of the investigation against him, misleading the suspect regarding points of law is generally held to invalidate subsequent confessions. Suppression of confessions induced by the latter technique is presumably made on the basis that the use of such deception is fundamentally unfair, since the technique is no more likely to induce untrue confessions than the use of any other falsehoods by the police.” 3 Ringel, Searches & Seizures, Arrests and Confessions § 25:8.
See also 2 La Fave, Criminal Procedure 3d, § 6.2(c) (2007) (while misrepresentations about the strength of the government’s case by itself is insufficient to render a confession involuntaiy, “courts are much less likely to tolerate misrepresentations of the law”).
In State v. Ackward, this court considered the extent to which misrepresentations of the law factored into the determination of the voluntariness of a confession. In that case, the defendant shot the unarmed victim in the back during a drug transaction. We found that the detective misrepresented the law during his inter rogation of the defendant when he suggested the killing might have been a reckless homicide, as such a possibility was unlikely under the facts of the case. Ackward, 281 Kan. at 14. We also found the detective misled the defendant about the law when he suggested that the killing could be excused as self-defense. Ackward, 281 Kan. at 15. We held, however, that suppression was not required as the misrepresentations were not egregious and, although the detective also used false statements of fact, phony forensic analysis, and religious references during the interrogation, under the totality of the circumstances, the defendant’s confession “was the product of his free and independent will.” Ackward, 281 Kan. at 15-16.
In the present case, the agent’s conduct did not involve false statements about the evidence against Morton or misrepresentations of the law. Telling Morton she did not need a lawyer because it was not that kind of interview did not misrepresent the law as Morton had no right to have an attorney present in a noncustodial interview. See Minnesota v. Murphy, 465 U.S. 420, 424, n.3, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984) (stating that where the defendant is not “in custody” for purposes of Miranda, there is no Fifth Amendment right to have an attorney present at the interview).
Agent Pontius, however, did not tell Morton she had no right to have an attorney present, he told her she did not need an attorney. In asking the agent whether she needed a lawyer present, Morton was clearly tiying to determine whether the interview was part of the criminal investigation. Of course, the agent knew it was. We note that, as a government agent for an agency with both civil and criminal investigative power, the criminal investigatory purpose of the agent’s interview was not obvious in the way an interview conducted by police officers and detectives is. Under these circumstances, we conclude the agent’s response to Morton’s question was an affirmative misrepresentation about the true nature of the interview.
The question then is whether the agent’s conduct rendered Morton’s statements involuntary. In answering this question, the court considers the conduct in light of the totality of the circumstances. State v. Swanigan, 279 Kan. at 32. The essential inquiry is whether the statements were the product of Morton s free and independent will. See Walker, 283 Kan. at 596.
All other aspects of the circumstances surrounding this interview indicate that Morton’s statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time. However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known Agent Pontius was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent’s status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent’s conduct, Morton’s participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton’s statements were involuntary and, thus, inadmissible.
The decision of the Court of Appeals is reversed, and the district court’s decision is affirmed. | [
-111,
-6,
-4,
-86,
42,
-30,
58,
-72,
83,
-95,
39,
83,
39,
74,
9,
43,
-85,
127,
116,
41,
-41,
-74,
119,
2,
118,
-13,
-14,
-43,
-73,
76,
-20,
4,
75,
48,
-54,
17,
70,
-56,
-9,
90,
-116,
7,
-120,
-5,
53,
68,
36,
43,
-106,
79,
97,
-97,
-29,
14,
20,
66,
-87,
40,
-53,
-91,
96,
-15,
-77,
15,
75,
22,
-93,
20,
-114,
70,
-8,
10,
-104,
49,
0,
-22,
49,
-74,
-110,
-12,
75,
-69,
-88,
102,
96,
-128,
109,
-105,
-20,
76,
56,
-6,
-97,
-89,
-104,
25,
73,
77,
-107,
-99,
-36,
16,
39,
126,
-30,
-99,
95,
108,
-117,
-57,
-2,
-77,
9,
104,
-122,
16,
-1,
-127,
16,
68,
-49,
-30,
92,
7,
112,
31,
-114,
-10
]
|
Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Susan L. Harris, of Kansas City, Missouri, an attorney admitted to the practice of law in Missouri in 1995 and in Kansas in 1996. Respondent’s license to practice law in the state of Kansas has been suspended since October 6, 2003, for failure to pay the annual attorney registration fee, failure to fulfill the minimum continuing legal education requirements, failure to pay the annual continuing legal education fee, and failure to pay the noncompliance continuing legal education fee.
On June 10, 2005, respondent was disbarred by order of the Missouri Supreme Court. Multiple very serious complaints had been filed by clients against the respondent. The disbarment order was the result of the respondent’s failure to file an answer to the resulting formal information charging her with violations of the Missouri Supreme Court Rules relating to attorney discipline.
On April 11, 2007, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging that the respondent violated Rule 8.4 of the Kansas Rules of Professional Conduct (KRPC) (misconduct) (2007 Kan. Ct. R. Annot. 559). The complaint arose from the Missouri disciplinary proceedings. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 31, 2007. The respondent did not appear.
Applying Kansas Supreme Court Rule 202 concerning reciprocal discipline (2007 Kan. Ct. R. Annot. 257), and based on the documents filed in the Missouri disciplinary proceeding, the hearing panel concluded that the respondent violated KRPC 1.3 (diligence) (2007 Kan. Ct. R. Annot. 398); KRPC 1.4 (communication) (2007 Kan. Ct. R. Annot. 413); KRPC 1.16(d) (declining or terminating representation) (2007 Kan. Ct. R. Annot. 487); KRPC 5.5(a) (unauthorized practice of law) (2007 Kan. Ct. R. Annot. 539); KRPC 8.1(b) (disciplinary matters) (2007 Kan. Ct. R. Annot. 553); and Supreme Court Rule 207(b) (duty to cooperate) (2007 Kan. Ct. R. Annot. 288).
The panel unanimously recommended that the respondent be disbarred from the practice of law in the state of Kansas. The respondent did not file exceptions to the final hearing report.
THE MISSOURI DISCIPLINARY ACTION
Our Supreme Court Rule 202 provides in pertinent part:
“A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.” 2007 Kan. Ct. R. Annot. 258.
Before proceeding further, certain aspects of the particular process resulting in respondent’s Missouri disbarment need to be set forth and discussed in conjunction with Rule 202.
The Missouri rules relative to discipline of attorneys are set forth in Missouri Supreme Court Rule 5. Highly summarized as pertinent here, the rules provide for a basic procedure similar to our Kansas procedure. When a complaint is filed, there is an investigation which may result in a formal information being filed against the respondent. See Missouri Supreme Court Rules 5.08,5.09. The rules require the respondent to file a response to the information. See Missouri Supreme Court Rule 5.13. After a response is filed, a hearing will then be held before a disciplinary hearing panel. At the hearing, evidence is presented and the panel prepares a final hearing report as to the underlying facts, professional misconduct established, and recommended discipline. See Missouri Supreme Court Rules 5.14, 5.15, 5.16. This report is forwarded to the Su preme Court for ultimate resolution. See Missouri Supreme Court Rule 5.19.
In the case before us, an alternative procedural process was followed. Missouri Supreme Court Rule 5.13 provides:
“The information shall be accompanied by a notice that the respondent is to file an answer or other response with the chair of the advisoiy committee, and serve a copy on the counsel of record for the informant and the chief disciplinary counsel, within 30 days after the service of the information on the respondent. If an answer or other response is not timely filed, the information shall be filed in this Court as an information with notice of the default.
“The failure to file an answer or other response to the information timely shall be deemed as consent by the respondent for this Court to enter an order disbarring respondent without further hearing or proceeding.”
Respondent did not file a timely answer or response. A notice of default under the rule was filed with the court. As the direct result of the filing of the notice of default and a copy of the information, the Missouri Supreme Court entered the following order on June 10, 2005:
“ORDER
“The Chief Disciplinary Counsel having filed an Information advising this Court of its findings, after investigation, that there is probable cause to believe Respondent, Susan L. Harris, is guilty of professional misconduct and having filed with said Information, pursuant to Rule 5.13, a Notice of Default, notifying the Court that Respondent, Susan L. Harris, failed to timely file an answer within the time required although Respondent was served pursuant to the provisions of Rule 5.18 and Rule 5.11 and, therefore, pursuant to Rule 5.13, Respondent is in default; and
“It appearing Respondent is guilty of professional misconduct and should be disciplined;
“Now, therefore, it is ordered by the Court that the said Susan L. Harris, be, and she is hereby disbarred, that her right and license to practice law in the State of Missouri is canceled and that her name be stricken from the roll of attorneys in this State.
“It is further ordered that the said Susan L. Harris, comply in all respects with 5.27 — Notification of Clients and counsel.
“Costs taxed to Respondent.”
DISCUSSION
As the Deputy Disciplinary Administrator noted to the Kansas hearing panel assigned hereto, the Missouri default procedure and resultant order presented some procedural problems for her office. The Missouri order only finds “probable cause to believe” the underlying misconduct occurred. The disbarment was based on the “probable cause” statement and failure to file a timely answer. The failure to file an answer kicked in Rule 5.13, wherein respondent was, by such inaction, deemed to have consented to disbarment.
After the Missouri order of disbarment was forwarded to the office of the Kansas Disciplinary Administrator, Stanton A. Hazlett contacted the respondent in October 2005. On November 4,2005, she responded as follows:
“Dear Mr. Hazlett:
“I thank you for your time in speaking on the phone with me yesterday. As we discussed, I am sending you a copy of the response I sent to the (Missouri Supreme Court) on June 6, 2005.1 received your letter on October 28,2005, though it is dated the 5th of October.
“The response I sent to the Missouri Supreme Court arrived on the 7th of June and a default disbarment was issued on June 10th. I called the Supreme Court on the 6th to say the response had been mailed. One of my errors, unfortunately, was that I mailed it to the Disciplinary Representative in Kansas City and not directly to the Supreme Court. I don’t know if this made a difference or not.
“The reasons for my non-response are explained as a part of this document, which apparently was not read as it was judged to be untimely received.
“I will be filing a Motion to Set Aside the Default Judgment veiy soon; I will forward a copy of Motion to your office.
“As I said on the phone, I have no intent to practice law and indeed have not done so since June of 2003.1 am currently unemployed, seeking employment as a teacher which I was for twenty some odd years both prior and during the operation of my legal practice. My intent regarding my law licenses was/is to pay whatever fees (when I am employed), attend whatever CLE’s, etc., in order to maintain inactive status.
“Thank you for your time. My only phone number is listed below. I will not be moving again as I own this house and need to help my daughter with my grandchild.”
The letter was accompanied by what she referred to in her letter as her response to the Missouri complaints. Nothing further occurred until April 11, 2007, when the formal Kansas complaint was filed. The long delay between November 2005, and April 2007, was apparently the result of Mr. Hazlett taking respondent at her word that she would be filing a motion to set aside the default judgment. He, therefore, gave the respondent the opportunity to set aside the default disbarment. Obviously, if respondent were to be successful, the ultimate result in the Missouri proceeding could be different. If the Missouri complaint were to be ultimately dismissed, there would be no basis for any Kansas proceeding. However, the respondent took no such action. As stated in the Kansas formal complaint:
“8. Despite the statement, in Respondent’s response letter, that she was going to file a motion with the Missouri Supreme Court seeldng to set aside the default disbarment, Respondent has never filed such a motion and has taken no further action regarding the disbarment.
“9. The Respondent by this conduct violated Rule 8.4[d] of the Kansas Rules of Professional Conduct.”
Respondent filed no response to the formal complaint, did not appear before the panel’s hearing thereon, and did not appear before this court on our scheduled hearing herein. The record reflects all requirements of notification were satisfied. Failure to file a response and failure to appear before this court are in themselves violations of our rules (Supreme Court Rule 211[b] [2007 Kan. Ct. R. Annot. 304]) and Supreme Court Rule 212[d] [2007 Kan. Ct. R. Annot. 317].)
CONCLUSION
After careful consideration, we conclude the final hearing report’s findings of fact and conclusions of law relative to the underlying Missouri claims of misconduct and their Kansas counterparts were inappropriate as such misconduct was not charged in the Kansas formal complaint nor did the Missouri Supreme Court determine that such misconduct occurred. However, it has been established by clear and convincing evidence that respondent was disbarred in Missouri for misconduct in failing to file a timely response to the Missouri information and that, by Missouri Supreme Court Rule 5.13, the effect thereof is consent to disbarment by the Missouri Supreme Court. Accordingly, that order of disbarment is valid and satisfied the grounds for reciprocal discipline set forth in Supreme Court Rule 202, which provides that a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall conclusively establish the misconduct for purposes of a disciplinary proceeding in Kansas.
Respondent’s representation that she would seek to set aside the Missouri default disbarment was untrue, although she has been given ample time to seek such relief. Such misrepresentation is a violation of Supreme Court Rule 8.4(d) (2007 Kan. Ct. R. Annot. 559) as charged in the formal complaint. As previously noted, failure to file a response to the Kansas formal complaint and to appear before this court constitute additional misconduct. We further conclude the appropriate discipline to be imposed is indefinite suspension with the special condition that no application for reinstatement will be considered unless accompanied by proof that respondent has been reinstated to the practice of law in Missouri.
It Is Therefore Ordered that Susan L. Harris be indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
-80,
-54,
-55,
93,
-116,
-95,
48,
62,
113,
-109,
117,
83,
-23,
-58,
9,
123,
81,
109,
16,
121,
-59,
-74,
115,
-64,
102,
-5,
-72,
-43,
-79,
95,
-28,
-99,
76,
-80,
-62,
-43,
6,
-54,
-63,
28,
-86,
2,
9,
-32,
91,
-63,
-80,
107,
18,
15,
53,
-66,
-94,
42,
31,
107,
8,
104,
-1,
109,
-63,
-112,
-101,
21,
127,
20,
-77,
-107,
28,
7,
80,
127,
-120,
-72,
35,
-56,
51,
54,
-126,
116,
71,
-119,
44,
102,
98,
-93,
17,
-89,
-76,
-84,
15,
20,
29,
38,
-103,
73,
75,
15,
-106,
-3,
101,
22,
39,
-4,
-28,
5,
29,
-4,
15,
-49,
-44,
-79,
30,
119,
-36,
-119,
-17,
-25,
48,
85,
8,
-26,
94,
-42,
58,
27,
-50,
-80
]
|
The opinion of the court was delivered by
Johnson, J.:
William Scaife appeals his convictions and sentences for premeditated first-degree murder, attempted premeditated first-degree murder, aggravated robbery, and fleeing or attempting to elude a police officer. Scaife argues that (1) the trial court should have instructed on second-degree murder, as requested by counsel; (2) the evidence was insufficient to support the premeditated first-degree murder conviction; (3) in closing argument, the prosecutor improperly vouched for the credibility of the State’s prime witness; (4) the sentencing court failed to consider Scaife’s ability to pay when ordering the reimbursement of attorney fees to the State Board of Indigents’ Defense Services (BIDS); (5) the sentencing journal entry did not comport with the sentencing court’s pronouncement from the bench with respect to the BIDS application fee; and (6) the sentencing court erred in imposing a higher sentence based upon a criminal history which was not proved to the jury beyond a reasonable doubt. Finding sufficient evidence to support the premeditation element of first-degree murder but an erroneous denial of the requested second-degree murder instruction, we reverse the premeditated first-degree murder conviction and remand for a new trial. The remaining convictions and sentences are affirmed, except for the assessment of BIDS attorney fees, which is vacated and remanded.
The charges against Scaife arose from a shooting and robbery in a Kansas City residence from which Patrick Ross and William Thompson had conducted a high volume of drug sales and in which the two, and sometimes others, frequently consumed their merchandise. The residence was equipped with video monitoring and was secured against unwanted intrusions. Scaife had recently returned to the Kansas City area and gained entrance into the residence as a prior acquaintance of Ross.
On the night of the shooting, Ross, Thompson, and Scaife were lounging in the residence, smoking marijuana. Shortly after midnight, the three were watching television, with Thompson lying on a futon mattress on the floor and Scaife seated a few feet behind the futon. According to Ross, Scaife suddenly and without warning shot Thompson in the head three times and then rose from his seat and shot Ross four times. Scaife said nothing immediately prior to or during the shooting spree.
Ross pretended to be dead but was able to observe Scaife’s movements through squinted eyes. He said that Scaife took everything from Thompson’s pockets, including a gun and marijuana. Scaife then lifted Ross by the waist of his pants and took Ross’ wallet, as well as taking drugs that were lying on the living room table. Ross heard Scaife move through the house, apparently trying to find a way out. He heard glass breaking in the kitchen and assumed that Scaife had broken the kitchen window and jumped from the second-story window to escape. Later, police found a black gun holster and some money beneath that broken kitchen window.
After Scaife left, Ross called 911 and reported the shooting. Ross told the dispatcher that he thought he was dying and wanted someone to know that Scaife had shot Thompson and him. Ross testified at trial and identified Scaife as the shooter and as the person who robbed them of money, guns, and drugs.
Law enforcement officers testified as to two subsequent incidents in which Scaife fled when an officer attempted to detain him. That activity formed the basis for the fleeing or eluding conviction which is not directly involved in this appeal.
SUFFICIENCY OF THE EVIDENCE
We take the liberty of first considering Scaife’s challenge to the sufficiency of the evidence to support the premeditated murder and attempted premeditated murder convictions. Specifically, Scaife contends that the State did not prove the critical element of premeditation. See K.S.A. 21-3401(a).
“When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).
The district court’s elements instruction on first-degree murder included the following definition of premeditation:
“Premeditation means to have thought over the matter beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.”
That instruction contains language drawn directly from our opinions. See State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 (2004) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004]).
Scaife points to Ross’ testimony that all was well with the group when Scaife suddenly and inexplicably started shooting. Scaife contends that Ross’ testimony describes an instantaneous act, rather than a premeditated act.
Premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one. State v. Morton, 283 Kan. 464, 475, 153 P.3d 532 (2007). Prior cases have listed factors to consider when determining the question of premeditation: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. See State v. Oliver, 280 Kan. 681, 704, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183 (2006).
In reviewing the factors, Scaife argues that Ross’ description of the lack of provocation, the defendant’s conduct before and after the shooting, and the absence of any threats or declarations by the defendant before or during the occurrence logically support an inference that the act was spontaneous and unplanned, rather than premeditated. He discounts the use of a deadly weapon because all of the occupants of the drug house were armed and notes that the shots were fired .in rapid succession, rather than being administered after the victims were felled and helpless.
Thus, because Scaife believes the more reasonable inference to be drawn from the evidence is spontaneity, rather than premeditation, he concludes that the evidence was insufficient to support the premeditated first-degree murder conviction. However, that is not our standard; we do not weigh the evidence. State v. Beard, 273 Kan. 789, Syl. ¶ 5, 46 P.3d 1185 (2002) (it is not the appellate court’s function to weigh the evidence).
The State takes the same circumstances and provides a credible explanation as to how a reasonable person could infer that Scaife’s actions were pursuant to a previously devised plan to kill and rob the victims. Scaife gained the victims’ confidence, waited until the three were alone in the house, and then, without provocation, used a concealed firearm to fire multiple rounds into both victims, before robbing them and leaving them for dead so that they would be unavailable to identify their attacker.
However, our function in reviewing evidence sufficiency is not to select the inference which we find most compelling, but to view the evidence in a light most favorable to the prosecution. We permit a factfinder to infer the existence of a material fact from circumstantial evidence, even though the evidence does not exclude every other reasonable conclusion or inference. Yount v. Deibert, 282 Kan. 619, Syl. ¶ 1, 147 P.3d 1065 (2006). Moreover, a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Lopez, 36 Kan. App. 2d 723, 725, 143 P.3d 695 (2006). Here, we hold that one of the reasonable conclusions or inferences the jury could have drawn from the circumstantial evidence was that Scaife had thought the matter over beforehand and that his intent to Ml Thompson and Ross was premeditated.
LESSER INCLUDED OFFENSE INSTRUCTION ON SECOND-DEGREE MURDER
In a factually related issue, Scaife complains that the district court erred in refusing to give an instruction on second-degree murder, K.S.A. 21-3402, with respect to the killing of Thompson. The State had filed the charges as first-degree murder on the alternative theories of premeditation and felony murder. The trial judge determined that a lesser included offense instruction was not warranted because the State filed a felony-murder charge and the evidence of the underlying felony was neither weak nor inconclusive. See State v. Boyd, 281 Kan. 70, 90,127 P.3d 998 (2006) (trial court required to instruct on lesser included offenses of felony murder only when the evidence of the underlying felony is weak, inconclusive, or conflicting). The district court did note that if the sole charge in the complaint had been premeditated first-degree murder, a lesser included instruction on second-degree murder would have been appropriate. See K.S.A. 22-3414(3).
We need not discuss whether lesser included instructions were appropriate on the alternative theory of felony murder. The complaint charged and the jury found Scaife guilty of premeditated first-degree murder. In a prosecution for premeditated first-degree murder, where there is no direct evidence as to the circumstances of the killing and the evidence introduced against the defendant is wholly circumstantial and open to an inference by the jury that the offense committed may have been second-degree murder, it is the duty of the court to instruct the jury respecting that lesser degree of homicide. State v. Sanders, 258 Kan. 409, 416, 904 P.2d 951 (1995).
More recently, in State v. Jones, 279 Kan. 395, 406-07, 109 P.3d 1158 (2005), this court clarified and simplified the analysis for determining when a trial judge must give a requested second-degree murder instruction as a lesser-included offense of premeditated first-degree murder, as that primary crime of first-degree murder is currently defined by statute. The unanimous decision in Jones instructed:
“In short, [the defendant] has a right to an instruction on second-degree intentional murder as long as the evidence, when viewed in the light most favorable to [the defendant], would reasonably justify a jury’s conviction on the offense, and the evidence does not exclude a theory of guilt on [second-degree murder].” 279 Kan. at 401.
Direct evidence is such evidence which, if believed, proves the existence of a fact without inference or presumption, as for example the testimony of an eyewitness as to what he or she actually saw, heard, or touched. See State v. Corbett, 281 Kan. 294, 309, 130 P.3d 1179 (2006). The State suggests that Ross’ eyewitness testimony provided direct evidence of premeditation. However, nothing that Ross saw or heard directiy proves the fact which is in issue, i.e., premeditation. One must take the additional step of drawing inferences from the eyewitness’ description of what Scaife did and said (or did not say) to speculate as to what Scaife must have been thinking and how long he had been thinking it before pulling the trigger.
Although admittedly infrequent, direct evidence of premeditation does exist in some cases. An associate might testify that the defendant shared his or her plans to kill the victim or a cellmate might relate how the defendant bragged about his or her daring deed. Sometimes, a defendant will have previously threatened to kill the particular victim. A shooter might declare, immediately prior to pulling the trigger, “This is for cheating me out of my money (or drugs).” However, we need not quibble about whether direct evidence of premeditation can ever exist. Suffice it to say that in this case, there was no direct evidence of premeditation.
Nevertheless, premeditation may be, and is most often, proved by circumstantial evidence. As we determined above, the circumstances of this case could be sufficient to prove premeditation. On the other hand, Scaife’s sudden, unprovoked, and inexplicable shooting of Thompson, performed without uttering a word, could indicate to a rational jury that the killing was nothing more than an instantaneous, intentional act. Under the Jones test, the evidence was sufficient to support a second-degree murder conviction and, even viewing the evidence in a fight most favorable to the State, the circumstances did not exclude a theory of guilt on second-degree murder.
The State argues that a lesser included offense instruction is not required where the circumstantial evidence in a case provides a strong inference of premeditation or where the evidence does not refute premeditation. Granted, one might divine support for such an argument from some of our prior cases. See, e.g., State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002) (distinguished on its facts in Jones, 279 Kan. at 405). Nevertheless, we have consistently said that, when requested by the defendant, “ ‘ “the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.” [Citation omitted.]’ ” Boyd, 281 Kan. at 93 (quoting State v. Drennan, 278 Kan. 704, 712, 101 P.3d 1218 [2004]). No argument has been advanced, nor is one readily apparent, for making an exception to that general rule in premeditated first-degree murder cases. Thus, we hold that the perceived strength of the State’s evidence to support the primary crime did not, standing alone, preclude the necessity of giving the requested lesser included offense instruction.
Moreover, on its face, the evidence supporting second-degree murder was not weaker or more inconclusive than the evidence supporting the premeditation element of first-degree murder. Indeed, it was essentially the same evidence: a sudden, unprovoked, inexplicable, and silent shooting of a companion, who had trusted Scaife sufficiently to grant him entry into the fortified drug house and with whom Scaife had spent several amicable hours ingesting drugs while both men were armed. The State says that evidence shows that Scaife obviously planned to rob and kill Thompson; Scaife says that evidence shows that he obviously acted instantaneously, without thought over the matter beforehand. Arguably, both characterizations are “speculative scenarios.” Likewise, Ross’ testimony could be described as “tenuous evidence” of either premeditation or an instantaneous killing.
To reiterate, we are only discussing the killing of Thompson, the first to be shot. On the attempted premeditated first-degree murder charge relating to the subsequent shooting of Ross, for which the evidence of premeditation was arguably stronger, Scaife received a lesser included instruction on attempted second-degree murder. The district court should have followed its first instinct and given the same lesser included offense instruction for the Thompson shooting.
The State makes a practical argument that the giving of lesser included offense instructions where first-degree murder is charged and instructed on the alternative theories of premeditation and felony murder would be too confusing for the juiy. One might perceive that any confusion in that circumstance emanates from the curious rule that permits a juiy to convict on a combination of the premeditated and felony-murder theories. Nevertheless, while drafting an appropriate juiy instruction may require some careful consideration, that fact cannot dictate against giving a criminal defendant the benefit of lesser included offense instructions, i.e., to allow the juiy to convict a defendant of the crime actually committed.
Finally, the State makes a cursoiy reference to harmless error. For the shooting of Ross, the juiy was given lesser included offense instructions, including attempted second-degree murder. The juiy found Scaife guilty of attempted premeditated first-degree murder. The apparent suggestion is that the jury found premeditation based on the same facts, even when given the choice of attempted second-degree murder. While the argument has some superficial appeal, it runs counter to the principle that each separate crime is to be viewed in isolation, unaffected by the juiy s decision on any other charge. Although not given in this case, we have a specific pattern instruction that should be given when multiple counts are charged:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.” PIK Crim. 3d 68.07.
Accordingly, we find that the district court’s refusal to give the requested lesser included offense instruction on second-degree murder for the first shooting requires the reversal of the premeditated first-degree murder conviction and a remand for new trial on that charge. See Jones, 279 Kan. at 406-07 (failure to give second-degree murder instruction requires reversal).
PROSECUTORIAL MISCONDUCT
Scaife contends that the prosecutor committed misconduct in closing argument by vouching for Ross’ credibility. Although we have determined a new trial is mandated on the premeditated first-degree murder conviction for the shooting of Thompson, we must nevertheless consider the issue to determine whether Scaife is entitled to a new trial on the remaining convictions.
The first step in the appellate review of a prosecutorial misconduct allegation is to determine whether the prosecutor’s comments exceeded the wide latitude afforded to prosecutors in discussing the evidence. See State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). If we determine that the prosecutor’s comments were fair argument on the evidence, our inquiry is concluded.
Scaife points to two portions of the State’s closing argument. In the first, the prosecutor was commenting on the audiotape recording of Ross’ call to 911, stating: “Listen to his voice, listen to his pleading, listen to the manner in which he asked for help. That’s how you know that he’s telling the truth.” During Scaife’s closing argument, his defense counsel focused on Ross’ credibility or rather lack thereof. Then, in rebuttal argument, the prosecutor responded: “Now, why believe Patrick Ross? Folks, you saw him, you’ve heard him from the very beginning of this case which was seconds after it began. Evaluate his testimony, evaluate his demeanor, evaluate what he told you, and you don’t have any other conclusion.”
Generally, a prosecutor may not offer the jury his or her personal opinion as to the credibility of witnesses. See State v. Elnicki, 279 Kan. 47, 60, 105 P.3d 1222 (2005). On the other hand, a prosecutor is free to craft an argument that includes reasonable inferences to be drawn from the evidence. See State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). That latitude would include explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses.
The first portion of the challenged comments draws the juiy’s attention to the circumstances surrounding Ross’ first identification of Scaife as the shooter during his 911 call. It is certainly reasonable to infer that a person making an excited plea for help while believing that death is imminent is less likely to be crafting a scheme to frame someone for the crime. Indeed, if Ross had died and the substance of his 911 call had been presented to the jury by a third person, it would likely have been considered trustworthy enough to survive a hearsay objection, as either an excited utterance, K.S.A. 60-460(d)(2), or a dying declaration, K.S.A. 60-460(e). Here, the juiy was allowed to hear the statements firsthand through the audiotape recording, and the prosecutor was permitted to argue those same trustworthiness factors as being pertinent to the defense’s credibility challenge.
In the second portion of the closing argument, the prosecutor was answering the defense attack on Ross’ credibility by explaining to the juiy what it should look at when assessing that credibility. The argument points out that Ross implicated Scaife almost immediately after the shooting and that his story remained constant throughout the case. The prosecutor urged the juiy to consider what Ross said and how he said it, i.e., his demeanor. One of the reasons that appellate courts do not assess witness credibility from the cold record is that the ability to observe the declarant is an important factor in determining whether he or she is being truthful. Certainly, the prosecutor should be permitted to explain that facet of the credibility calculus to the juiy.
Accordingly, we find that the prosecutor’s comments were not a prohibited personal opinion on Ross’ credibility. Rather, in context, the statements explained to the juiy some of the legitimate factors it could consider in assessing Ross’ credibility and argued why the factors present in tire current case should lead to a com pelling inference of truthfulness. In other words, the comments were fair argument on the evidence and did not constitute prosecutorial misconduct.
ATTORNEY FEES REIMBURSEMENT
Scaife challenges the sentencing court’s ruling that he reimburse BIDS for his attorney fees under K.S.A. 22-4513(b) without first considering his financial resources and the nature of the burden that payment would inflict on him. Resolution of the issue requires us to interpret the applicable statute, which is a question of law subject to unlimited review. State v. Rogers, 282 Kan. 218, 222, 144 P.3d 625 (2006).
The State concedes that the district court’s failure to make the requisite findings on the record runs counter to our holding in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). However, the State attempts to factually distinguish Robinson as involving a probation revocation, rather than a direct appeal from sentencing. Our subsequent decision in State v. Davis, 283 Kan. 569, 585-86, 158 P.3d 317 (2007), clarifies that the Robinson holding was not limited to a probation revocation scenario.
Clearly, the sentencing judge did not comply with the requirements of K.S.A. 22-4513, as explained in Robinson. The court merely stated: “The costs in this matter are assessed against the defendant.” Therefore, the imposition of attorney fees is vacated, and the matter is remanded for the court to make explicit findings on the record as to Scaife’s financial resources and the burden that imposing the attorney fees reimbursement will place on the defendant.
SENTENCING JOURNAL ENTRY
Scaife complains that the sentencing journal entry includes an order that he pay the BIDS application fee, as set forth in K.S.A. 22-4529, after the judge failed to pronounce that part of the court’s judgment at the sentencing hearing. Scaife points out that the issue involves statutory construction, yielding an unlimited review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
Scaife reminds us of the longstanding rule that a criminal sentence is effective when pronounced from the bench, rather than when the journal entry of sentencing is filed. Further, “ ‘[a] journal entry which imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.’ ” Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007) (quoting State v. Hegwood, 256 Kan. 901, 906, 888 P.2d 856 [1995]). Thus, Scaife believes that the sentencing judge’s pronouncement that “costs in this matter are assessed against the defendant” was insufficient to be an order for the payment of the BIDS application fee and that the journal entry in his case must be corrected to delete that order.
Sometime after Scaife filed his appellate brief, we filed our opinion in State v. Hawkins, 285 Kan. 842, 176 P.3d 174 (2008), in which we distinguished the application fee of K.S.A. 22-4529 from the attorney fees reimbursement of K.S.A. 22-4513. We specifically noted that the time for ordering the payment of the application fee is at the time the defendant applies for appointed counsel, rather than at the time of sentencing. Then, if the ordered fees remain unpaid at sentencing, the court may include the unpaid fee in its sentencing order without making any additional findings. 285 Kan. 842, Syl. ¶¶ 5, 7.
Given that Scaife incurred his obligation to pay the application fee when he applied for appointed counsel, long before sentencing, the court’s subsequent assessment of “costs” would include the previously ordered, but unpaid, application fee. Therefore, the journal entry did not deviate from the court’s pronouncement with respect to the BIDS application fee, and we need not order that it be corrected.
CRIMINAL HISTORY
Finally, Scaife argues that the sentencing court violated the principles in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used his prior convictions and juvenile adjudications to increase his sentence beyond the otherwise prescribed statutory maximum without submitting the convictions and adjudications to a jury for proof beyond a reasonable doubt. As Scaife recognizes, we rejected this argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002); see also State v. Hitt, 273 Kan. 224, 234-36, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003) (use of prior juvenile adjudications in criminal history score constitutional). Scaife declares that Ivory was wrongly decided but offers nothing new or compelling to support that argument. Once again, we decline the invitation to retreat from the holding in Ivory and its progeny.
Affirmed in part, reversed in part, vacated in part, and remanded with directions. | [
-16,
-22,
-3,
-66,
26,
96,
11,
-72,
24,
-29,
-76,
115,
45,
-53,
5,
107,
-5,
85,
84,
105,
68,
-73,
39,
-23,
-86,
-69,
-45,
-43,
-78,
-52,
-76,
95,
73,
-48,
-18,
85,
102,
74,
97,
-42,
-114,
1,
-120,
-43,
-62,
66,
48,
122,
18,
10,
-79,
-97,
-29,
42,
21,
-62,
-55,
40,
91,
-17,
80,
-7,
-118,
-105,
-33,
20,
-77,
-91,
-99,
-121,
-40,
62,
-40,
-71,
0,
-8,
113,
-122,
-126,
116,
77,
11,
-116,
110,
98,
32,
121,
-17,
-92,
-55,
47,
84,
-107,
-89,
-102,
89,
75,
12,
-108,
-1,
108,
54,
15,
116,
-27,
31,
25,
108,
-127,
-34,
-16,
-109,
-53,
52,
26,
122,
-5,
-123,
0,
97,
-52,
98,
78,
85,
88,
-107,
-117,
-107
]
|
The opinion of the court was delivered by
McFarland, C.J.:
John P. Kirkpatrick appeals his jury trial conviction of the first-degree felony murder of Jacob Williams. He received a life sentence with eligibility for parole after 20 years.
Kirkpatrick contends: (1) the trial court erred in denying his request for instructions on lesser included offenses of voluntary and involuntary manslaughter; (2) it was error for the district court to deny his motion to suppress his statements to the police; (3) the trial court abused its discretion in permitting the lead police investigator to sit at the prosecution table; (4) the trial court denied him a fair trial by quoting the Bible at the beginning of the trial; (5) the trial court erred in denying his motion for a continuance in order to hire private counsel; (6) the trial court erred in denying his motion to recall the jury; and (7) he is entitled to a new trial based upon cumulative error.
We affirm.
FACTS
On the evening of January 22, 2004, the defendant, John Kirkpatrick, and his friend, Garrod Farha, went to Mulligan’s Pub in Wichita. Also at the bar were their friends, Rob Powers and Thomas Wright. Two friends of Powers, Jasen Tedlock and Jake Williams, were at the bar. The group stayed at the bar until approximately 1:45 a.m., when the bar was closing. Powers invited about a dozen people to come to his apartment, including all of the above-named individuals.
Powers and several of the guests were interested in car racing, and a loud discussion at the apartment occurred concerning who had the fastest car. Several times Powers advised his guests to quiet down as he was concerned about the noise bothering his neighbors in surrounding apartments. This admonition did not lower the noise level. Finally, Powers stated he would ask the next person who raised his voice to leave. Wright raised his voice, and Powers asked him to leave. Wright was unhappy with the request but walked outside with Powers, followed by Tedlock, Farha, and Kirkpatrick. Powers explained the request to leave was nothing personal. An argument erupted between Tedlock and Farha. Tedlock may have attempted to strike Farha. In any event, a scuffle broke out. Tedlock may have pulled a knife. The argument ended when Williams came out and took Tedlock back inside the apartment.
Kirkpatrick, Farha, and Wright then left. They drove to Farha’s house, where Farha took possession of his roommate’s handgun. The three men put Farha and Kirkpatrick’s dog, a 75- to 80-pound pit bull, into the car and then drove back to Powers’ apartment. During the drive, Kirkpatrick said that no one “disses my set.”
When they arrived at Powers’ apartment, Farha handed the gun to Kirkpatrick, who placed it in his waistband. Powers came out of the apartment with Tedlock and Williams remaining inside. Powers saw Farha holding the pit bull by the collar and asked why they had brought the dog. Powers continued to ask them what was going on but received no response. Kirkpatrick then pulled the gun out of his waistband. Powers moved in front of him and asked why he had a gun. According to Powers, Kirkpatrick responded that he was representing his “set,” and he would continue to do so until he died. At the same time, Powers saw Farha kicking the door to Powers’ apartment. Powers attempted to calm Kirkpatrick and asked him to hand over the gun. Kirkpatrick refused and instead fired a single shot into the door of Powers’ apartment. After the shot, Powers grabbed Kirkpatrick and asked him what he was doing. After 3 or 4 seconds passed, Kirkpatrick shoved Powers away and fired two more shots into the door. Kirkpatrick, Farha, and Wright then ran to the parking lot.
Tedlock testified that, while inside the apartment, he and Williams heard the argument. Tedlock looked out the apartment window and saw a man holding a dog. As he closed the window, someone attempted to kick in the apartment door; however, the chain lock prevented its complete opening. When the door came partially open, Williams ran up to the door, pushed his body up against it, and locked the deadbolt. At that point, shots came through the door. Williams fell back onto Tedlock and said that he had been shot. Williams and Powers called 911. Paramedics transported Williams to the hospital where he died later that day.
Kirkpatrick was charged with one count of first-degree felony murder with the underlying felony being criminal discharge of a firearm at an occupied dwelling pursuant to K.S.A. 21-4219(b) (Furse). At trial numerous witnesses, including Tedlock and Powers, testified on behalf of the State. Kirkpatrick and Wright both testified on Kirkpatrick’s behalf, but Farha invoked his right against self-incrimination. The jury returned a guilty verdict on the single count before us, and the trial court sentenced Kirkpatrick to fife in prison with the possibility of parole after 20 years.
Additional facts will be provided as necessary for the resolution of particular issues.
DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S REQUEST FOR INSTRUCTIONS ON VOLUNTARY AND INVOLUNTARY MANSLAUGHTER AS LESSER INCLUDED OFFENSES?
The defendant contends he was entitled to these instructions on various grounds. The defendant testified at trial that he saw, through the sliding glass door, Tedlock armed with a gun and heard Tedlock threaten to kill him. Tedlock then made a move toward the front door. At that point, Kirkpatrick said, he fired three shots at the door because he feared for his fife and the lives of his two friends. Kirkpatrick claimed he believed that by firing the gun he would prevent Tedlock from stepping outside of the apartment.
The only gun found inside the apartment was a .45 caliber semiautomatic handgun. The gun was in a case that was on the upper shelf of a bedroom closet. A towel and some neatly folded clothing were stacked on top of the case. The magazine was out of the gun and was stored in its separate compartment in the case.
Wright’s testimony controverted Kirkpatrick’s recitation of events. Wright testified that once the group returned to Powers’ apartment, Tedlock was not doing anything behind the sliding glass door. Further, Wright stated that he did not see anyone (other than Kirkpatrick) with a gun. Wright testified that Kirkpatrick did not have a reason to shoot the door. Tedlock’s testimony supported Wright’s position. Tedlock stated that he had not waved a pistol in the window. Tedlock also testified that he had not threatened to shoot anyone.
Kirkpatrick requested a jury instruction on self-defense based upon K.S.A. 21-3211 (Furse), which provides: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressors imminent use of unlawful force.” The State did not oppose the giving of that instruction, but requested an instruction concerning self-defense by an aggressor pursuant to PIK Crim. 3d 54.22 (initial aggressor’s use of force). The court gave both instructions. Kirkpatrick also requested instructions on several lesser included offenses of first-degree felony murder: voluntary manslaughter based upon all three theories contained in K.S.A. 21-3403 and (b) and reckless involuntary manslaughter under K.S.A. 2004 Supp. 21-3404(a). He argued, among other things, that his defense of self-defense put “imperfect self-defense,” which he asserted was a type of voluntary manslaughter, into play.
The district court denied Kirkpatrick’s request for lesser included offense instructions, holding that an instruction for voluntary manslaughter was not warranted because there was no evidence of an intentional killing and an instruction for involuntary manslaughter was not warranted because there was no evidence of recklessness.
On appeal, Kirkpatrick argues the trial court erred in refusing his request to instruct the juiy on imperfect self-defense voluntary manslaughter and involuntary manslaughter as lesser included offenses to first-degree felony murder.
As a general rule,
“[t]he duty to instruct on a lesser included offense arises only where there is evidence supporting the lesser crime. The evidence of a lesser included offense need not be strong or extensive as long as it presents circumstances from which the lesser offense might reasonably be inferred. Such an instruction must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant.” State v. Horn, 278 Kan. 24, Syl. ¶ 6, 91 P.3d 517 (2004).
This general rule, however, does not apply in a felony-murder case:
“ “When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.’ [Citation omitted.]” State v. Calvin, 279 Kan. 193, 201-02, 105 P.3d 710 (2005).
Kirkpatrick argues that to the extent his claim of self-defense would negate the criminal intent required for the underlying felony of criminal discharge of a firearm at an occupied dwelling, the evidence that the trial court found strong enough to warrant the self-defense instruction necessarily rendered the evidence of the underlying felony inconclusive. Accordingly, the rule prohibiting lesser included offenses to felony murder does not apply, and he was therefore entitled to instructions for “imperfect self-defense” voluntary and involuntary manslaughter.
The State argues that the evidence of the underlying felony is not weak or inconclusive and, therefore, an instruction on lesser included offenses is not warranted because of the felony-murder rule. In the alternative, the State argues that the district court correctly found that an instruction for voluntary manslaughter was not warranted because there was no evidence of an intentional killing and that an instruction for reckless involuntary manslaughter was not warranted because there was no evidence of recklessness. Finally, the State correctly observes that Kirkpatrick did not request an instruction on involuntary manslaughter under the imperfect self-defense version, K.S.A. 2004 Supp. 21-3404(c) (a killing during the commission of a lawful act in an unlawful manner), which is a cornerstone of his argument on appeal concerning instructing on this offense. Instead, Kirkpatricks request at trial was for reckless involuntary manslaughter under K.S.A. 2004 Supp. 21-3404(b).
Kirkpatrick’s argument that he was entitled to instructions on imperfect self-defense voluntary manslaughter and involuntary manslaughter rests on the fact that the trial court gave a self-defense instruction. The problem, however, is that Kirkpatrick was not entitled to a self-defense instruction.
K.S.A. 21-3214(1) provides that self-defense is not available to a person who “[i]s attempting to commit, committing, or escaping from the commission of a forcible felony.” A “forcible felony” includes “any . . . felony which involves the use or threat of physical force or violence against any person.” K.S.A. 21-3110(8) (Furse) (defining forcible felony to include, inter alia, murder, voluntary manslaughter, aggravated battery, and “any other felony which involves the use or threat of physical force or violence against any person”).
In State v. Bell, 276 Kan. 785, 80 P.3d 367 (2003), we held that criminal discharge of a firearm at an occupied vehicle is a forcible felony and, therefore, where the offense of criminal discharge of a firearm at an occupied vehicle serves as tíre underlying felony in a felony-murder prosecution, K.S.A. 21-3214(1) precludes the giving of a self-defense instruction. 276 Kan. at 792-93.
The facts in Bell are remarkably similar to the facts in this case. Jonathan Baptista and his friends got into an argument with Ernie Bishop and Shawn Cox. Bishop said he was going to get some friends together and come back in 10 minutes and kill all of them. Baptista and his group said they too would come back with more friends. Subsequently, Baptista recruited the defendant, Bell, and others to join them in confronting Bishop and Cox. Because their plan included bringing guns and shooting at the others, Bell retrieved his gun. However, when they arrived at the place where the fight was to occur, Bishop and Cox were not there. They then drove around looking for them.
Meanwhile, Bishop and Cox walked to a car wash where they saw Anthony McCain. Bishop and Cox told McCain about the fight and McCain offered to drive them home. Bell and his group saw Bishop and Cox at the car wash. They followed McCain’s Saturn until he eventually pulled over. Bell and his group pulled over, and then Bell and Baptista opened fire on the Saturn, killing McCain.
The evidence about what occurred just before the shooting began was somewhat conflicting. Bell initially told police that they started shooting at the Saturn after Baptista told him it was “now or never.” 276 Kan. at 788, 793-94. He later claimed he was acting in self-defense. He said that they started shooting after Baptista yelled, “They’ve got a gun.” 276 Kan. at 788, 793. Baptista testified that he saw the Saturn’s driver drop his head as if he were reaching down for a gun. At trial, Bell requested a self-defense instruction, which was denied. Bell was convicted of felony murder, criminal discharge of a firearm at an occupied vehicle, and criminal damage to property.
On appeal, we affirmed the trial court’s denial of his request for a self-defense instruction:
“The defendant requested a self-defense instruction based on K.S.A. 21-3211: ‘A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.’ However, K.S.A. 21-3214(1) provides in part that the justification described in 21-3211 is not available to a person who ‘[i]s attempting to commit, committing, or escaping from the commission of a forcible felony.’ See State v. Jacques, 270 Kan. 173, Syl. ¶ 1, 14 P.3d 409 (2000).
“K.S.A. 21-3110(8) defines a forcible felony as ‘any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat ofphysical force or violence against any person.’
“Criminal discharge of a weapon at an occupied vehicle, the underlying felony in this case, is considered a forcible felony. See State v. Mitchell, 262 Kan. 687, 694, 942 P.2d 1 (1997). As the defendant was charged with the forcible felonies of first-degree murder and criminal discharge of a firearm at an occupied vehicle, he was excluded from a self-defense instruction by K.S.A. 21-3214(1).” 276 Kan. at 792-93.
Bell applies in this case. Criminal discharge of a firearm at an occupied vehicle and at an occupied dwelling are the same crime and, thus, are both forcible felonies. K.S.A. 21-4219(b) (Furse) (criminal discharge of a firearm at an occupied building or occupied vehicle is the malicious, intentional, and unauthorized discharge of a firearm at a dwelling, building, structure, motor vehicle ... in which there is a human being). Accordingly, K.S.A. 21-3214(1) precluded the giving of a self-defense instruction in this case. Because self-defense is not available in a felony-murder case where the underlying felony is criminal discharge of a weapon at an occupied dwelling, it follows that self-defense cannot serve to render the evidence of the underlying felony weak, inconclusive, or conflicting, so as to overcome the prohibition of lesser included offense instructions to a charge of felony murder.
The dissent criticizes us for “reaching out” to address the issue of the availability of self-defense under K.S.A. 21-3214. It is true that this issue was not raised on appeal. At trial, the State did not oppose the giving of a self-defense instruction. Interestingly, during the instructions conference, the trial court noted the Bell case and its holding that the defendant was not entitled to a self-defense instruction. Nevertheless, the trial court gave the instruction and on appeal no one argues that the instruction should not have been given. Error in giving that instruction is beyond our reach as far as our power to affect the result because of it. However, the fact that a self-defense instruction was given then serves as the foundation upon which Kirkpatrick bases his argument that he was entitled to imperfect self-defense lesser included offense instructions. The fact that the defendant received the benefit of an instruction to which he was not entitled and to which no one objected at trial or on appeal does not require that we ratify the error. To accept Kirkpatrick’s argument would be to compound that error by extending it to further entitle the defendant to additional instructions to which he would not otherwise have been entitled. The court will not build its analysis on a legally defective foundation.
In response to the dissent, we point out that our holding is limited to the facts of this case. The dissent’s hypothetical, in which an individual walking down the street is shot at by a sniper firing from inside an apartment building and who defends himself by returning fire, killing the sniper, is so far removed from the facts herein as to not be even remotely analogous. The policy behind the statute precluding self-defense to a person who was committing a forcible felony is well served under the facts of this case. At all times during the events in this case, Kirkpatrick and his friends were the aggressors. Not content to let the earlier scuffle go, they returned to the scene seeking to exact revenge and prove who was tougher. They brought a large pit bull dog and a gun with them. Once there, they were clearly the aggressors, using the dog and the gun to threaten violence while they tried to kick in the apartment door. Powers tried to calm things down and asked Kirkpatrick to hand over his gun. Kirkpatrick refused and fired a shot into the door. Powers grabbed Kirkpatrick and asked him what he was doing. Kirkpatrick, unfazed by his friend’s appeal, shoved Powers out of the way and after several seconds had passed, he fired two more shots into the door.
Moreover, even if it had been appropriate to instruct on self-defense in this case, it does not follow that imperfect self-defense applied to require instructions on voluntary manslaughter or involuntary manslaughter.
Perfect self-defense is a concept based on justification or excuse and operates as a complete defense. It applies broadly to all crimes involving the use of force against another. See K.S.A. 21-3211 (Furse) et seq. Imperfect self-defense, in contrast, is based not on justification, but on mitigation and, thus, operates only to reduce criminal culpability to a lesser crime. 40 Am. Jur. 2d, Homicide § 139. Imperfect self-defense is “not a true defense; it does not absolve a defendant of criminal liability. It is, rather, a lesser degree of the crime of homicide.” State v. Carter, 284 Kan. 312, 326, 160 P.3d 457 (2007). Imperfect self-defense exists only as a lesser degree of homicide in voluntary manslaughter under K.S.A. 21-3403(b) (intentional killing of a human being committed upon an unreasonable but honest belief that circumstances existed that justified deadly force) and in involuntary manslaughter under K.S.A. 2006 Supp. 21-3404(c) (unintentional killing during the commission of a lawful act in an unlawful manner). State v. Ordway, 261 Kan. 776, 787, 934 P.2d 94 (1997) (noting that Kansas recognizes imperfect self-defense for unintentional killings under lawful act/ unlawful manner involuntary manslaughter).
It is important to note that the claim of self-defense in this case was directed to the underlying felony of criminal discharge of a firearm at an occupied dwelling. But imperfect self-defense exists only as a lesser degree of the crime of homicide. “ ‘Outside of homicide law, the concept [of imperfect self-defense] doesn’t exist. . . . With respect to all other crimes, the defendant is either guilty or not guilty. . . . There is no “in between.” ’ ” 2 LaFave, Substantive Criminal Law §10.4(i) (2d ed. 2003) (quoting, Bryant v. State, 83 Md. App. 237, 244-45, 574 A.2d 29 [1990]) (imperfect self-defense only applies to homicide crimes and their “shadow forms” such as attempted murder; it does not apply to assault, battery, assault with intent to disable, or maiming); see also Jones v. State, 357 Md. 408, 422-23, 745 A.2d 396 (2000) (doctrine of imperfect self-defense applies only to criminal homicide and its shadow forms; it has no applicability to other assaultive crimes).
If imperfect self-defense is asserted to the crime of criminal discharge of a firearm at an occupied dwelling, as argued in this case, voluntary and involuntary manslaughter are not mitigated versions of that offense. There is no imperfect self-defense version of criminal discharge of a firearm at an occupied dwelling. Thus, imperfect self-defense is not a defense to criminal discharge of a firearm. Accordingly, a claim of imperfect self-defense cannot serve to render the evidence of the underlying felony of criminal discharge of a firearm weak, inconclusive, or conflicting, so as to require instructions on imperfect self-defense voluntary manslaughter and imperfect self-defense involuntary manslaughter.
The trial court did not err in refusing to instruct the jury on imperfect self-defense voluntary manslaughter and imperfect self-defense involuntary manslaughter.
WHETHER THE DISTRICT COURT ERRED IN DENYING KIRKPATRICK’S MOTION TO SUPPRESS HIS STATEMENTS TO THE POLICE
Kirkpatrick argues that the district court erred in denying his motion to suppress recorded statements made to Detective Hosty the morning of the shooting. He specifically argues that his statement was not voluntarily given because he was “still intoxicated from a night of drinking.”
The State responds that although the district court denied Kirkpatrick’s motion at a pretrial hearing, Kirkpatrick failed to object at trial when his statement was entered as evidence and published to the juiy. We agree with the State that he has failed to preserve his issue on appeal. See State v. Holmes, 278 Kan. 603, 610, 102 P.3d 406 (2004) (when motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal).
Even had Kirkpatrick objected at trial, his claim would still fail. Our standard of review is well known: “In reviewing a trial court’s decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a sub stantial competent evidence standard and the ultimate legal conclusion by a de novo standard.” State v. Swanigan, 279 Kan. 18, Syl. ¶ 1, 106 P.3d 39 (2005).
This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Swanigan, 279 Kan. at 23.
To determine whether a defendant’s confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving by a preponderance of the evidence that a confession is admissible. In determining whether a confession is voluntary, “the essential inquiry is whether the statement was the product of the free and independent will of the accused.” State v. Walker, 283 Kan. 587, 596, 153 P.3d 1257 (2007). In making this determination, the court considers the following specific factors:
“(1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” State v. Walker, 283 Kan. at 596-97.
The district court’s decision to deny the motion to suppress was based upon findings made as a result of the testimony of Detective Hosty. Hosty testified that at approximately 5:50 a.m., he began interviewing Kirkpatrick regarding the incident. He asked for preliminary information such as Kirkpatrick’s name, date of birth, and social security number before asking about the facts of the case. According to Hosty, Kirkpatrick answered his questions normally and appeared to be tracking. He did not detect an odor of alcohol or marijuana on Kirkpatrick and did not suspect that Kirkpatrick was under the influence of alcohol or drugs.
After Hosty gathered the preliminary information, he presented Kirkpatrick with a form entitled “Your Rights.” First, Hosty asked if Kirkpatrick could read, write, and speak English; Kirkpatrick answered in the affirmative. Next, Hosty asked Kirkpatrick if he had consumed any alcohol or drugs within the previous 24 hours. Kirkpatrick replied that he had consumed three Corona beers, the last at 1:40 a.m., approximately 4 hours earlier. Hosty asked Kirk patrick if he felt intoxicated; he replied that he was not. Kirkpatrick also told Hosty that he did not feel intoxicated at any point in the evening. Thereafter, Hosty turned on the recorder, read the Miranda warnings to Kirkpatrick, and asked him to read along on the form. After explaining his rights, Kirkpatrick signed the form and elected to speak with Hosty. Hosty testified that Kirkpatrick did not have difficulty communicating. Defense counsel called no witnesses at the suppression hearing. Hosty’s testimony is competent and substantial enough to support the trial court’s finding that there was no evidence that Kirkpatrick’s will was overborne.
WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION IN ALLOWING THE LEAD INVESTIGATOR TO SIT AT THE PROSECUTION TABLE
Kirkpatrick next argues that by allowing the lead investigator, Detective Hosty, to sit at the prosecution table, the court denied his right to a fair trial under the Sixth and Fourteenth Amendments. Citing State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995), Kirkpatrick asserts that this court’s review is unlimited. The State responds that the standard of review applicable to the exclusion or sequestration of witnesses — abuse of discretion — applies.
Following voir dire, defense counsel objected to Hosty’s presence at the prosecution table on the ground that it would lend credibility to his testimony. Counsel, however, did not seek to invoke the witness sequestration rule concerning Hosty. In response, the State asserted that it wanted to keep Hosty at the table for convenience, in order to ask him questions and to have him assist by retrieving files. The court overruled the objection, stating that it did not believe Hosty’s credibility would be enhanced by his presence at the table. It also noted that the arrangement would lessen any disruption to the proceedings. Finally, the court opined that having Hosty sit in the back row, as opposed to the table, was a “distinction without a difference,” as he would be assisting counsel regardless of his position in the courtroom.
Under Kansas law, the standard of review is unclear. A review of law in other jurisdictions, however, points to an abuse of discretion standard: “Allowing a key witness, an expert witness, or some other person with whom counsel might need to confer during the conduct of the trial, to sit at the counsel’s table, is generally held permissible in the discretion of the trial judge.” 75 Am. Jur. 2d, Trials § 124 (citing State v. Fields, 342 So. 2d 624, 628 [La. 1977]; 87 A.L.R.3d 229; and Patton v. Avis Rent-A-Car Systems, Inc., 44 Mich. App. 556, 561-65, 205 N.W.2d 615 [1973]); see also Wilmer v. Bd. of County Com'rs of Leavenworth County, 153 F.R.D. 165, 169 (D. Kan. 1993) (“The decision to allow plaintiff s mother to sit at counsel table is clearly within the court’s discretion.”).
The district court reviewed State v. Smith, No. 77,261, unpublished opinion filed December 31, 1998. There, the district court allowed a KBI agent, who was also a witness, to sit at counsel table during the trial. A panel of the Court of Appeals stated that while it had not been specifically addressed in Kansas, the practicó was allowed in other jurisdictions. Ultimately, the panel stated that while the practice was not reversible error, it should be “discouraged.” Slip op. at 7-8.
Unpublished Court of Appeals’ opinions decided both before and after Smith have allowed the practice. See State v. Mears, No. 65,971, unpublished opinion filed February 14, 1992 (stating that the prosecutor had a valid reason for requesting the detective’s presence at counsel’s table and that the record did not indicate his presence prejudiced defendant); State v. Vontress, No. 89,820, unpublished opinion filed February 27, 2004 (stating that it was not error for the investigating party to sit at counsel’s table during the trial despite a sequestration order); State v. Pope, No. 94,673, unpublished opinion filed February 16, 2007 (finding no abuse of discretion in allowing detective to sit at prosecution’s table).
We acknowledge that abuse is still a possibility. See Lollis v. Superior Sales Co., 224 Kan. 251, 264, 580 P.2d 423 (1978) (“[t]here is always the danger that a jury will be overly impressed by the testimony of a police officer who gives the impression of being clothed with public authority”). Accordingly, the better practice, as stated in Smith, is to discourage law enforcement witnesses from sitting at the prosecutor’s table during a jury trial. However, there were practical reasons for allowing Hosty to sit at die table. See State v. Beauclair, 281 Kan. 230, 236, 130 P.3d 40 (2006) (Discretion is abused only when no reasonable person would take the view adopted by the district court, and the objecting party bears the burden of establishing such abuse.). We find no merit in this issue.
WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING KIRKPATRICK’S REQUEST FOR A CONTINUANCE TO HIRE PRIVATE COUNSEL
Kirkpatrick argues that the district court erred in denying his oral request for a continuance to hire private counsel. Specifically, Kirkpatrick asserts that the district court denied his right to the effective assistance of counsel by summarily denying his motion. Kirkpatrick argues that the court failed to fully inquire as to the nature of his dissatisfaction with appointed counsel.
The district court appointed Christine Gase in January 2004. On July 9, 2004, 3 days prior to trial, Kirkpatrick’s appointed counsel informed the court at the suppression hearing that Kirkpatrick wished to obtain a continuance in order to try to hire private counsel:
“MS. GASE [Defense Counsel]: I think this is probably the appropriate time to do it, real briefly. I was talking to Mr. Kirkpatrick this morning. He has indicated that with the appearance, from my conversations with the District Attorney’s Office, that there is no possibility of any lesser pleas, he wishes to request a continuance so that he and his family can try to obtain private counsel.
“THE COURT: Mr. Disney, does the State wish to be heard on that?
“[PROSECUTOR]: We would object to any continuance, Your Honor. The defendant has competent counsel, does not have a right to counsel of his choosing when he asks for a court-appointed attorney. He’s had a continuance. We’ve set this date a long time ago, and we’re ready.
“THE COURT: Well—
“MS. GASE: Your Honor — And the only thing that I would add on that is certainly I understand the District Attorney’s position and the Court’s position in general that you don’t get to choose your appointed counsel, and I would just want to make clear for die record tiiat that is not what he is asking. He is asking for the opportunity to hire counsel.
“THE COURT: Well, to the extent, that it’s based on an oral motion to the Court on the eve of trial, I’m going to dismiss — or I’m going to deny that oral request. Those types of matters need to be placed before the presiding judge in a timely fashion, in writing, oudining die reasons why. We’re not going to delay the trial at this late state of the game for those reasons. There’s been no charge of incompetence of counsel or — or a desire or inability to work with counsel, so that’s a matter totally within the discretion of the presiding judge of the . . . Criminal Department. So that motion is to be made there, and based upon that I’ll deny the oral motion. If you want to make it in writing to Judge Waller then that’s something else you can do.” (Emphasis added.)
Although Kirkpatrick did not address the court regarding his desire to seek to hire private counsel, he was present at the hearing.
The right to the assistance of counsel for one’s defense is a fundamental right. Kimmelman v. Morrison, 477 U.S. 365, 374, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986). “It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 77 L. Ed. 158, 53 S. Ct. 55 (1932). In Kansas, pursuant to K.S.A. 22-4503(b) (Furse), “[i]f the defendant asks to consult with counsel of the defendant’s own choosing, the defendant shall be given a reasonable opportunity to do so.”
In the present case, Kirkpatrick was represented by appointed counsel at the time he requested other counsel. In the recent case of State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006), this court discussed the standard of review applicable when an indigent defendant requests the appointment of different trial counsel:
“A trial court’s refusal to appoint new trial counsel is reviewed using an abuse of discretion standard. Judicial discretion is abused when the district court’s action is arbitrary, fanciful, or unreasonable. The test for abuse of discretion is whether any reasonable person would take the view adopted by the district court. [Citation omitted.]
“To warrant the appointment of new trial counsel, a defendant must show ‘justifiable dissatisfaction’ with his or her appointed counsel. ‘Justifiable dissatisfaction’ may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney. [Citation omitted.]” 280 Kan. at 894.
Both the State and Kirkpatrick discuss this standard. Defense counsel, however, asked for a continuance so that Kirkpatrick could tiy to hire private counsel. Although Kansas courts do not appear to have discussed this specific fact scenario, other courts agree that the standard is an abuse of discretion: “The decision whether to grant a continuance based upon a desire to change or substitute counsel rests soundly within the trial court’s discretion, and the decision will not be overturned absent a showing of abuse.” 17 Am. Jur. 2d, Continuance § 69.
“A sustainable exercise of discretion in deciding a motion for a continuance requires the trial court to balance carefully the presumption in favor of the defendant’s right to trial counsel of choice and the public’s interest in the prompt, effective, and efficient administration of justice, and given these countervailing considerations, it follows that each case must turn on its own circumstances.” 17 Am. Jur. 2d, Continuance § 48.
Kirkpatrick argues that, although the abuse of discretion standard applies generally, a different standard is applicable when the claimed error implicates a federal constitutional right, such as a right to the effective assistance of counsel under tire Sixth Amendment. Such an error requires a federal harmless error analysis. State v. Lyons, 266 Kan. 591, 592, 973 P.2d 794 (1999).
The facts of this case are analogous to two Minnesota cases. In State v. Worthy, 583 N.W.2d 270 (Minn. 1998), defendants requested a continuance to obtain private counsel. Although the district court appointed attorneys for defendants on April 1,1996, the continuance was not requested until the first day of trial, May 15, 1996. The district court denied the request. In upholding the district court’s decision, the Minnesota Supreme Court acknowledged the fact that the court-appointed attorneys were experienced, competent, and prepared to try the case. Additionally, the court noted that defendants did not provide the court with the name of an attorney willing to take over the case; rather, they only claimed that “family members were Taking care of that.’ ” 583 N.W.2d at 278.
A case relied on by Worthy, State v. Vance, 254 N.W.2d 353 (Minn. 1977), also provides guidance. In Vance, defendant requested a continuance to secure private counsel, and the district court denied the request. In upholding the district court’s ruling, the Minnesota Supreme Court stated:
“In the instant case, defendant was provided with a competent and able public defender who had thoroughly investigated the facts and was prepared for trial. He had 11 weeks to obtain private counsel but did not move for a continuance until a few days before trial. He could not be certain of securing counsel and merely stated that someone would attempt to raise the money. Moreover he had no cause to be dissatisfied with his assigned counsel. . . . Under these circumstances, it was not error to deny the motion for a continuance.” 254 N.W.2d at 359.
Like the previous cases, a review of the record in the present case indicates that the district court did not abuse its discretion in denying defense counsel’s oral motion. First, as discussed above, the district court appointed defense counsel in January 2004. Kirkpatrick, however, did not seek a continuance to tiy to hire private counsel until over 5 months had passed, 3 days before trial. Additionally, as mentioned by the State, the jury trial was previously continued once by defendant in April 2004. As the district court noted, no charge of incompetence or inability to work with counsel was made; rather, the defendant only seemed unhappy that a plea agreement had not been reached. As the State notes in its brief, a defense attorney does not possess the power to determine what type of plea offer, if any, the State will make in a given case. Finally, Kirkpatrick did not state that another attorney was willing to take over the case, only that he and his family wanted to try to hire private counsel. See People v. Segoviano, 189 Ill. 2d 228, 245, 725 N.E.2d 1275 (2000) (“[I]t is well established that a trial court will not be found to have abused its discretion in denying a motion for substitution of counsel in the absence of ready and willing substitute counsel.”).
Despite the district court’s sound rationale for denying the motion, it presented Kirkpatrick with another opportunity to be heard on the issue by filing a written motion with the presiding judge. Nevertheless, Kirkpatrick failed to file a written motion for a continuance. Clearly, the court did not abuse its discretion in denying Kirkpatrick’s motion for a continuance.
WHETHER THE DISTRICT COURT DENIED KIRKPATRICK HIS RIGHT TO A FAIR TRIAL BY QUOTING THE BIBLE
Kirkpatrick contends that the district court deprived him of the right to a fair trial by quoting the Bible. Prior to opening statements, the court addressed the jury in accordance with its discre tionary authority contained in K.S.A. 22-3414(3) and summarized many of the introductory and cautionary instructions contained in PIK Crim. 3d 51.00. After stating that it would provide detailed legal instructions at the conclusion of the evidence to guide them, the judge further stated:
“The following admonition is gonna apply through the course of this trial. It’s general rules of conduct all members of the jury are required to follow. Please keep an open and attentive mind throughout the trial. Do not make up your minds or attempt to reach a decision until the conclusion of the entire case and its submission to you for deliberations. I like to remind the jury what’s found in Proverbs 18. It says, The one who first states a case seems right until the other comes and cross-examines. There are two sides to the issue. Please don’t make up your mind until both sides have had the opportunity to present fully their case to you.” (Emphasis added.)
“Judicial comments which are not instructions to the jury are reviewed under judicial misconduct standards.” State v. Brown, 280 Kan. 65, 70, 118 P.3d 1273 (2005). In cases alleging judicial misconduct, this court’s standard of review is unlimited. The question is whether Kirkpatrick’s substantial rights to a fair trial were prejudiced by the court’s statements. Kirkpatrick bears the burden of showing his substantial rights were prejudiced. See State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002) (analyzing a claim of judicial misconduct).
“In Kansas, the law applicable to alleged incidents of judicial misconduct is well settled. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appeal' that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. Mere possibility of prejudice from a judge’s remark is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial. [Citations omitted.]” Miller, 274 Kan. at 118.
Defense counsel did not object to the statement at trial. On appeal, however, Kirkpatrick contends that jurors would have taken a “dim view of a contemporaneous objection by defense counsel to the trial court’s appeal to biblical authority.”
The State argues that this court should not address the issue because it was not properly raised before the district court: “[W]here constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review.” State v. Denney, 278 Kan. 643, 651, 101 P.3d 1257 (2004). Kirkpatrick, however, asserts that review is proper despite the lack of a contemporaneous objection when the right to a fair trial is alleged to have been violated. See Miller, 274 Kan. at 118.
Kirkpatrick opines that by quoting a religious text, the judge “opened the door for the jurors to use the Bible as an extrajudicial source of law.” In support, Kirkpatrick cites several cases from other jurisdictions including Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989), and People v. Harlan, 109 P.3d 616 (Colo. 2005). In Jones, a Georgia court allowed the jury to take the Bible into penalty deliberations. After a federal habeas corpus appeal, the federal district court held that it was constitutional error for the court to allow a Bible in the jury room at the request of the jurors. 706 F. Supp. at 1560. The court’s conclusion stemmed from evidence that “clearly indicate[d] the members of the jury intended to use the Bible in some way or for some purposes.” 706 F. Supp. at 1559. Kirkpatrick cites Jones for the proposition that exposing a jury to extrajudicial principles that might serve as a substitute for the trial court’s instructions requires reversal, even if the effect of the exposure to those principles cannot be determined.
Similarly, in Harlan, the defendant was convicted of, among other things, first-degree murder. In that case, one or more jurors brought Bibles, a Bible index, and notes of Bible passages into the jury room for consideration by other jurors. In affirming the lower court’s decision to vacate the defendant’s death sentence, the Colorado Supreme Court held that there was a reasonable probability that the material introduced into the jury room could have influenced a typical juror to vote for a death sentence instead of life. 109 P.3d at 631. In reaching its conclusion, the court stated: “The Bible and other religious documents are considered codes of law by many in the contemporaiy communities from which Colorado jurors are drawn.” 109 P.3d at 630. Kirkpatrick argues that because the Bible is considered a code of law by many in the Sedgwick County community from which the jury was drawn, invoking the Bible at the outset of trial prejudiced the rest of the proceedings.
In response, the State asserts that in the present case, unlike in Jones and Harlan, Kirkpatrick cannot demonstrate prejudice. Specifically, the State argues that there is no allegation that the jurors ever consulted the Bible, or had any Biblical material in the juiy deliberation room. The State also cites McNair v. State, 706 So. 2d 828 (Ala. Crim. App. 1997), for the proposition that the existence of extraneous material does not always result in prejudice to a defendant. In McNair, following defendant’s conviction for murder, he sought post-conviction relief. The defendant alleged that the jury improperly consulted the Bible in reaching its verdict. In affirming the denial of relief, the Alabama Court of Criminal Appeals stated:
“We conclude, after reviewing the evidence in the instant case, that the extraneous material, i.e., reading from the Bible and praying in the jury room during deliberations, was not of such a character or nature as to indicate bias or corruption or misconduct that might have affected the verdict or as to constitute prejudice as a matter of law. We find that the appellant failed to meet his burden of making a factual showing from which it could be reasonably concluded that the juiy might have been unlawfully influenced in arriving at its verdict. To hold otherwise in this case would require us to resort to pure speculation and conjecture.” 706 So. 2d at 838.
In the present case, the district court should have avoided references to extrajudicial material. Even Kirkpatrick concedes that the district court’s quote “correctly stated the law and was very likely well-intentioned.” It does not affirmatively appear that the comment prejudiced Kirkpatrick’s substantial rights. Finally, we note that the comment at issue is not inherently religious in nature. It could just as easily have been a quotation from a United States Supreme Court opinion or Abraham Lincoln. Kirkpatrick’s claim is without merit.
WHETHER THE DISTRICT COURT ERRED IN REFUSING TO RECALL THE JURY
Kirkpatrick also argues that the district court erred in denying his motion to recall the jury. Specifically, he asserts that the court’s failure to conduct a full hearing on the motion violated his due process rights.
“An appellate court’s review of ... a motion to recall a jury is limited to whether the trial court abused its discretion.” State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 (2000). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citation omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). However, “[i]f a defendant’s constitutional right has been violated during a trial, a judge’s discretion to deny a motion ... to recall a jury is limited. At this point, there is greater reason for the judge to articulate the reasons for his or her ‘discretionary’ decision.” Jenkins, 269 Kan. at 338. Whether a defendant’s due process rights were violated is a question of law over which this court exercises unlimited review. Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).
Recall of a jury was discussed by this court in State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842 (1987):
“Jurors may be recalled for post-trial hearings only by order of the court after a hearing on a request to recall the jury. A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party’s hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order. [Citation omitted.]”
In the present case, prior to sentencing, Kirkpatrick filed a motion to recall the jurors. The motion included a sworn affidavit from John Thompson in which he stated that juror K. D., while visiting her place of employment during a break in the trial, made comments about the trial. According to Thompson, K. D. stated that “she did not know why everyone was wasting their time and that he was guilty.” Thompson believed K. D.’s statements were made in a “somewhat joking manner” and were an explanation as to why she was at work. According to Thompson, K. D. did not identify Kirkpatrick or discuss details of the trial.
After a hearing on the motion, the district judge denied the request for a recall, ruling:
“Well, this by far is a very serious issue that the Court did not take lightly when I received the affidavit and the motion by defense counsel. I have done significant research on this matter.
“There’s two very different principles that are being weighed in this process . . . the fact that someone has — has given an impression that they have made up their opinion as opposed to saying, This is how I’m going to vote regardless, are two different things altogether. The affidavit in this case does not rise to that latter portion. It simply says that the juror, who had heard significant evidence by that time, had formed, while arguably a preliminary conclusion as to the guilt of the defendant, does not say what view that juror had as the evidence later was presented in the next day and a half — or half day of testimony on the 13th and then the 14th, the testimony presented there and that evidence and whether that made a difference to the juror or not we don’t know, and to grant the defendant’s motion would be to allow the mental processes of that juror to be put into question.
“Similarly, there was no allegation and there’s no suggestion that the hearer, or that the persons that the juror had made this comment to had in any way tried to influence the juror in that decision or to convince the juror that the decision should be made in such a fashion. In addition, the casual remark by the juror didn’t indicate a — a personal bias by the juror against the defendant ....
“So for all those reasons I don’t think that the defendant has met the burden of showing that there was a substantial — that there is substantial evidence that juiy misconduct related to a material issue in dispute in this case; and while the conduct of the juror is not to be condoned, it’s reprehensible, it’s outside the admonition that the Court gave the jurors every time that they went into adjournment, it is still not sufficient to raise the — raise it to a point where we would allow the juror to be recalled in this case and questioned on the matter. So the motion to recall the juror is overruled.”
In denying the motion, the district court correctly stated that jurors’ mental processes are protected. The relevant statute, K.S.A. 60-441 states:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.” (Emphasis added.)
K.S.A. 60-444(a) clarifies:
“This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441.”
This court discussed these statutes in State v. Franklin, 264 Kan. 496, 500, 958 P.2d 611 (1998):
“ ‘Under these statutes [K.S.A. 60-441 and 444(a)] we have held that a juror may not impeach his or her verdict on any ground inherent in the verdict itself; a juror may not divulge what considerations personally influenced him or her in arriving at the verdict or what reasoning personally led him or her to the final decision.’ [Citations omitted.]”
Pursuant to these rules, even if K. D. and the jury had been recalled by the district court, they would have only been able to testify regarding extrinsic matters of physical facts, or occurrences of misconduct, such as K. D.’s comments made at her workplace. As the district court stated, the facts surrounding the incident were already before the court in Thompson’s affidavit. See Franklin, 264 Kan. at 503-04 (discussing a permissible inquiry).
In denying the motion, the district court found State v. Allen, 4 Kan. App. 2d 534, 609 P.2d 219 (1980), to be persuasive. In Allen, defendant filed a motion for a new trial based on juror misconduct. In Allen, the jury foreman — Baker—completed a personal errand while the trial was adjourned. While running the errand, Baker spoke with three different people about the trial. Baker indicated to the first person, Mrs. Althouse, that psychiatric testimony was expected in the afternoon. Baker did not state how he would vote, and Althouse did not tell him how to vote. Nevertheless, Althouse stated that she believed Baker was going to vote guilty.
The second person Baker spoke with, Lewis Petzold, testified that Baker told him he could no longer go along with the insanity defense after hearing the confession of the defendant. According to Petzold, Baker did not state how he was going to vote and did not express any personal opinion regarding guilt. However, Petzold testified that Baker stated “[T]here had to be something more than just one human being wanting to go in and stab another human being and that there had to be some ulterior motive.” 4 Kan. App. 2d at 536.
The third person that Baker spoke with, Jack Petzold, testified that he had not tried to influence Baker in any way. Nevertheless, according to Petzold, Baker stated, “ ‘[I]t just looks to me like the man is guilty.’ ” 4 Kan. App. 2d at 537.
Baker testified that he had not told any of the three how he was going to vote or whether he thought the defendant was guilty. He admitted, however, that he had discussed upcoming testimony and the fact that the defendant testified that he stabbed the victim. Baker also stated that none of the three people tried to influence his opinion.
The district court ultimately denied the motion for a new trial. On appeal, a panel of our Court of Appeals stated there was a conflict as to whether Baker had made up his mind as to the defendant’s guilt. However, the court noted that even if Baker had made up his mind or formed an opinion, there was no indication that his opinion was based on anything other than the evidence. 4 Kan. App. 2d at 537. The court found that Baker’s conduct was clearly improper, but opined that “it is not every improper misconduct that will justify or require the granting of a new trial; and the matter is largely within the discretion of the trial court.” 4 Kan. App. 2d at 537.
The Allen court analyzed State v. Coburn, 220 Kan. 743, 556 P.2d 376 (1976), for support. In Cobum, this court stated:
“To warrant reversal of a judgment because of improper contact or communication between a juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury. [Citation omitted.] The substance of the communication may be important. If the comment relates to the merits of the case, it will be more likely to be found prejudicial. However, if it relates to the case merely in a general or incidental manner, it will more likely be found harmless. [Citation omitted.]” (Emphasis added.) 220 Kan. at 747.
The facts in Allen are similar to the present case. Nevertheless, although both Allen and Cobum provide direction, they do not necessarily answer the question presented. Here, Kirkpatrick only argues that the district court erred in failing to conduct a full hearing with a recall of the jury. Absent the hearing, Kirkpatrick asserts that the district court’s ruling was, at best, premature. Kirkpatrick cites United States v. McKinney, 429 F.2d 1019, 1026 (1st Cir. 1970), for the rule that trial courts faced with allegations of juror misconduct must “conduct a full investigation to ascertain whether the alleged jury misconduct actually occurred.” In McKinney, the appellate court remanded for an evidentiary hearing on the alleged juror misconduct. 429 F.2d at 1030.
Kirkpatrick also cites United States v. Resko, 3 F.3d 684 (3d Cir. 1993). In Resko, the district court learned that jurors were improperly discussing the case before the conclusion of trial. Although defense counsel wanted to individually question each juror, the district court instead opted to provide the jurors with a written questionnaire asking if they had discussed the case and if so, had they formed an opinion. All 12 jurors stated that they had discussed the case but had not formed an opinion. On appeal, the case was reversed. The appellate court concluded that the district erred by refusing to conduct further investigation into the alleged misconduct. 3 F.3d at 695.
Resko, however, is easily distinguishable from the present case. First, in Resko the district court learned that multiple members of the jury were involved in misconduct. The questionnaire revealed that all 12 jurors had prematurely discussed the case. In the present case, only one juror was alleged to have committed misconduct. Further, the facts surrounding the misconduct in question were before the court in the form of an affidavit from a person with firsthand knowledge of the event.
As stated previously, recall of the jury could only provide limited information. Nothing in the affidavit suggested that K. D.’s opinion was final. As the district court noted, questions of the influence of further evidence would not be allowed. It is also significant that K. D. did not identify defendant or discuss any specific facts of the case. Cf. Allen, 4 Kan. App. 2d at 537-38. Finally, there is no indication that K. D. shared her views with other jurors. Rather the incident at issue happened while K. D. was at her workplace. Based on the foregoing analysis, although K. D. committed misconduct, the district court did not abuse its discretion in denying Kirkpatrick’s motion.
WHETHER CUMULATIVE ERROR REQUIRES REVERSAL AND REMAND FOR A NEW TRIAL
For his last claim of error, Kirkpatrick argues that cumulative error requires reversal of his conviction and remand for a new trial.
Our standard of review of a claim of cumulative errors is well settled:
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. [Citation omitted.]’ ” State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2006) (quoting State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 [2006]).
Although a couple of errors occurred during the trial, under the totality of circumstances, Kirkpatrick cannot show that he was substantially prejudiced and denied a fair trial. In addition, the evidence presented by the State was overwhelming. Therefore, reversal is not required.
Kirkpatrick’s convictions are affirmed. | [
-80,
-24,
-44,
-98,
56,
64,
40,
-36,
49,
-14,
-14,
115,
45,
-37,
1,
123,
58,
125,
85,
105,
84,
-74,
7,
97,
-93,
-13,
-13,
-44,
-80,
74,
-10,
-42,
76,
96,
-62,
81,
-26,
-54,
-61,
94,
-114,
31,
40,
-8,
-14,
-117,
52,
59,
54,
11,
53,
28,
-13,
106,
26,
-62,
-55,
44,
91,
44,
88,
-71,
73,
-113,
-36,
0,
-109,
49,
-34,
-122,
122,
22,
-103,
53,
11,
-24,
-13,
-106,
-126,
-12,
109,
-117,
109,
38,
99,
33,
29,
-18,
-24,
-7,
63,
111,
-107,
-89,
-103,
72,
73,
13,
-106,
-3,
107,
20,
-113,
-44,
-25,
86,
-39,
104,
-126,
-49,
-106,
-71,
67,
56,
-106,
-102,
-21,
7,
32,
101,
-123,
-32,
84,
-27,
121,
-33,
-114,
-110
]
|
The opinion of the court was delivered by
Harvey, J.:
This is a workmen’s compensation case. The legal question presented is whether the claim for compensation was made in time. The compensation commissioner and the trial court found it was not. Claimant has appealed.
On May 1, 1929, Ben F. Cruse was in the employ of the Chicago, Rock Island & Pacific Railway Company as a laborer at its terminal warehouse in Kansas City, Kan., and on that date sustained an injury to his hand and fingers while unloading a heavy piece of metal. On June 14,1929, he sued the railway company for damages under the federal employer’s liability act. The railway company answered, among other things, that the character of work being handled by plaintiff at the time of his injury was such as to be governed and controlled solely by the Kansas compensation act; that both parties with respect to such work were operating under that act. The reply was a general denial. In that action plaintiff recovered a judgment, which was reversed (Cruse v. Chicago, R. I. & P. Rly. Co., 133 Kan. 340, 299 Pac. 624), this court holding “under the evidence the plaintiff was not injured while engaged in interstate commerce within the meaning of the federal employer’s liability act.” Thereafter, and on June 30, 1932, Ben F. Cruse filed with the workmen’s compensation commissioner his claim for compensation, and set out that he suffered an injury to his hand and fingers May 1, 1929; that claim had been made on the employer for compensation on June 13,1929; that the employer had furnished medical attention, but never had paid any compensation, stating the weekly wage and other appropriate information. The railway company filed with the compensation commissioner a motion to dismiss the claim, on two grounds: (1) That no written claim for compensation had been served upon respondent within the time provided by section 20 of the workmen’s compensation act (R. S. 1933 Supp. 44-520a), and (2) that the statute of limitations had run against the action, spécifically pleading the three-year statute of limitation of the civil code (R. S. 60-306, second clause). The compensation commissioner, after a hearing, “found that the action herein is barred by the three-year statute of limitations and that the motion to dismiss should be sustained.” The claimant appealed to the district court. That court adjudged “that the order of. the commissioner' of workmen’s compensation dismissing plaintiff’s claim for compensation be and it is hereby affirmed.” Cruse appealed from that adjudication. On the appeal to this court the only question argued was whether the three-year statute of limitation applied. This court reversed the judgment of the district court. (Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471.) In the opinion the court said:
“The claimant was injured on May 1, 1929, made his claim on the employer for compensation on June 13, 1929, and filed his application with the commissioner on June 30, 1932, which was three years and two months after the injury. The respondent filed a motion to dismiss the proceedings because the application showed upon its face that the proceeding was barred by the three-year statute of limitations (R. S. 60-306).” (p. 118.)
The court held in effect that the section of the civil code relied upon (R. S. 60-306) did not apply, since the workmen’s compensation act provides its own procedure. The opinion of the court adopted the view of the claimant that “the giving of notice otf claim as prescribed by R. S. 1931 Supp. 44-520a is all that is required, and, if compliance with that requirement is made, the claimant has unlimited time for commencing his special proceeding” before the compensation commissioner in all respects except as to the “unlimited time.” With respect to that the court held the proceedings before the compensation commissioner should be commenced within a reasonable time, and expressed the view that ordinarily three years from the date of the accident would be a reasonable time, but this might be varied by the facts of a particular case. The judgment of the trial court was reversed, leaving “the matter just where it was before the commission acted upon the motion to dismiss.” (p. 123.) Thereafter claimant amended his claim filed before the compensation commissioner to show that respondent had furnished medical attention for a period of more than four months after the injury, and that he had in good faith filed his action for damages June 14, 1929. Thereafter respondent filed its motion to dismiss, upon the grounds: (1) That no written claim had been served upon the employer within' ninety days, and (2) that the proceedings had not been commenced within a reasonable time. On the hearing of that motion before the commissioner it developed that the claimant contended that the suit he brought for damages under the federal employer’s liability act against the railway company, June 14, 1929, was a sufficient claim for compensation under R. S. 1933 Supp. 44-520a of the compensation act. The compensation commissioner held against claimant and sustained the motion to dismiss, denying plaintiff’s claim for compensation. The claimant appealed to the district court, where it was adjudged that the award of the commissioner of workmen’s compensation denying plaintiff’s claim for compensation be affirmed. The claimant has appealed.
While the question now presented might well have been presented when the case was here before, we cannot complain that the parties followed this court’s direction by taking up the proceeding at'the point before the compensation commissioner acted on the motion to dismiss. In doing that claimant thought best to amend his claim, and respondent renewed its motion to dismiss. One of the grounds of that motion was that no claim for compensation had been made as required by statute. On the hearing of that motion it developed that the only claim made for compensation was the filing of the action under the federal employer’s liability act. Having specifically denied in that action that his claim or demand against his employer was under the compensation act, claimant is not now in position to contend that it was. This court has been quite liberal in holding that the wording of the claim or demand is not so important if the employer is advised'the claimant is seeking what is due him under the law. (Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588.) But that never has been held in any case in which the claimant specifically denied that what he was doing was a claim for compensation. Prior to the amendment of our workmen’s compensation laws in 1927 (Laws 1927, ch. 232), the district court had jurisdiction to try compensation cases as well as actions for damages under the compensation law, or under special statutes, such as the federal employer’s liability act, and it was then held (Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530) that the petition filed in a common-law action, containing all the essentials of a claim for compensation in a proper case, would be so construed. But under our present statute our district courts have no original jurisdiction in compensation proceedings. Such original jurisdiction is before the compensation commissioner. The district court gets jurisdiction in such proceedings only by appeal; hence, the case last cited is no longer con trolling. Now, an injured workman, in doubt as to whether his remedy is under the common law or under the federal employer’s liability act, or some similar statute, or under the workmen’s compensation act, if he proceeds promptly before the compensation commissioner, ordinarily could have that question determined before the statute of limitations would run against his common-law or other action. Perhaps he might initiate both proceedings and have one of them delayed until the other is determined. But we need not take time to analyze all of the possible steps which might be taken. It is'sufficient for us to determine the question before us; namely, whether an action brought under the federal employer’s liability act, in which plaintiff specifically disclaims compensation under the workmen’s compensation act, is a claim for compensation under that act. We feel compelled to hold it is not.
The judgment of the court below is affirmed. | [
-76,
106,
-2,
-97,
10,
-32,
50,
26,
97,
-90,
39,
83,
-51,
-57,
1,
125,
103,
61,
-47,
59,
118,
-77,
23,
43,
-46,
55,
-15,
-59,
-71,
75,
-28,
-34,
77,
16,
74,
-43,
103,
-32,
65,
30,
-120,
4,
-24,
-20,
89,
0,
56,
106,
84,
79,
17,
-82,
-5,
42,
24,
-25,
45,
44,
111,
41,
-64,
113,
-126,
13,
127,
16,
33,
4,
-100,
5,
-16,
25,
-112,
49,
51,
-52,
114,
-90,
-122,
-12,
97,
-87,
8,
102,
98,
32,
21,
-25,
-20,
-72,
30,
-8,
-97,
-90,
-80,
24,
27,
79,
-76,
-103,
126,
4,
4,
124,
-12,
69,
77,
44,
3,
-117,
-76,
-110,
-49,
100,
22,
-93,
-21,
-121,
-74,
96,
-34,
-94,
95,
71,
122,
19,
-97,
-98
]
|
The opinion of the court was delivered by
Burch, J.:
The action was one by a tenant against his landlord for consequences of breach of the landlord’s duty to deliver possession of the leased premises. Plaintiff prevailed, and defendant appeals.
Defendant resided in Lawrence, and owned a farm in the neighborhood of Williamstown. Plaintiff was a tenant farmer who lived at Elmont. His attention was called to defendant’s farm the last of November, 1932. On December 1 plaintiff inspected the farm with a view of leasing it, and on that day a lease was executed at Lawrence, the material portions of which read as follows;
“This lease, made this 1st day of December, 1932, by Mrs. C. A. Duncan to Arthur D. Hess of Elmont, Kan.
“Witnesseth, that the said party of the first part, in consideration of the rents, covenants and agreements of the said party of the second part, hereinafter set forth, does by these presents, grant, lease and rent to the said party of the second part, the following described property, situated in the county of Jefferson and state of Kansas: [Description.] To have and to hold the same, unto the said party of the second part, from the 1st day of March, 1933, to the 1st day of March, 1934.
“And the said party of. the second part, in consideration of the leasing the premises, as above.set forth, covenants and agrees with the said party of the first part, to pay the said party of the first part, her heirs or assigns, as rent for the same, the cash rent or sum of three hundred and no/100 dollars ($300) in payments as follows, to wit: Fifty dollars ($50) cash in hand paid, the receipt of which is hereby acknowledged; one hundred fifty dollars ($150) cash on February 1, 1933, at which time party of the second part gets possession of the place, and one hundred dollars ($100) cash on October 1, 1933.”
Plaintiff commenced to move to the farm on January 20, 1933. At that time Archie Johnson was living there. A former tenant’ had vacated, and defendant had employed Johnson as a sort of caretaker. Plaintiff continued to move live stock, farming implements and other property to the farm, and on February 3 moved his chickens. When the chickens arrived the chicken house was occupied by chickens belonging to Johnson and the defendant. Plaintiff put his chickens in the barn. About five days later the’ chickens showed symptoms of roup. About February 10 four or five chickens died. Chickens continued to die until plaintiff had lost 306 hens and 9 roosters.
Plaintiff sued for the value of the chickens which died, as special damages for failure to obtain possession of 'the chicken house on February 3. The court instructed the jury that by the terms of the lease plaintiff was entitled to possession of the leased premises on February 1, 1933, and if, on account of failure to obtain possession of the chicken house, plaintiff suffered the special damages pleaded, he was entitled to recover.
The term of the tenancy was so clearly defined there can be no mistake about it — “from the 1st day of March, 1933, to the 1st day of March, 1934.” Cash rent in a gross sum, $300, was to be paid for the leasing “as above set forth,” that is, from March 1,1933, to March 1, 1934.
In providing for payment of rent in three installments, one installment was made payable February 1, 1933. The provision was followed by the words, “at which time party of the second part [plaintiff] gets possession of the place.” This could not be as tenant of the premises. Plaintiff paid nothing for this “possession.” He paid for the term beginning March 1. The relation of landlord and tenant did not begin until March 1, and the essentially parenthetical provision relating to possession February 1 could not overthrow all that preceded it and convert the tenancy into one for thirteen months, instead of twelve.
Of course, the provision relating to possession February 1 was not meaningless. What it meant was that plaintiff might then move on the place, as he in fact commenced to do on January 20. He was given gratuitous privilege to occupy until the term began. He would not be a trespasser if he did so. But obligation of the landlord to deliver possession to plaintiff as tenant, under the law .of landlord and tenant, did not arise until the term commenced on March 1.
Interpreted as indicated, the lease is not ambiguous, much less self-contradictory, and effect is given to all its terms.
The case originated in a justice of the peace court. The bill of particulars set out the lease, and stated the facts upon which the plaintiff relied for recovery. When the case came on for trial in the district court, defendant moved for judgment on the pleadings and opening statement of counsel for plaintiff, and objected to the introduction of evidence by plaintiff, on the ground no cause of action against defendant was stated. The motion and objection should have been sustained.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
-15,
110,
-71,
45,
10,
104,
42,
-104,
99,
-95,
54,
87,
-55,
-46,
5,
105,
-14,
77,
81,
105,
-59,
-77,
34,
-128,
-112,
-5,
-61,
-35,
-72,
77,
-27,
87,
74,
48,
-62,
29,
-122,
-62,
65,
28,
-114,
7,
-119,
-56,
-3,
2,
60,
57,
54,
74,
5,
15,
-13,
42,
89,
67,
104,
40,
-21,
45,
-111,
-16,
-6,
12,
127,
22,
18,
2,
-48,
-123,
88,
110,
-112,
113,
0,
-24,
115,
-92,
-106,
124,
7,
-119,
44,
38,
98,
35,
45,
-17,
96,
-103,
46,
-109,
-115,
-90,
-112,
88,
2,
0,
-66,
-103,
117,
80,
7,
124,
-27,
5,
29,
108,
6,
-113,
-44,
-109,
-113,
108,
-110,
9,
-29,
-89,
33,
97,
-113,
-90,
73,
71,
114,
-101,
-97,
-36
]
|
The opinion of the court was delivered by
McFarland, J.:
This is a dispute concerning.the admission of a will to probate. The merits of the controversy are not before us as the issues raised are primarily procedural in nature. Mary Lou Erickson, appellant herein, is seeking to contest the will of Clarence W. Corson, deceased.
The chronology of events is crucial and is set forth as follows:
November 17, 1975 Will in question is executed, designating John and Catherine Barnes as sole beneficiaries.
Testator dies. November 24, 1975
Petition for admission of the will filed with notice of hearing being sent to appellant, one of the decedent’s heirs at law. December 5, 1975
Order entered admitting will to probate and appointing Catherine Barnes as executrix. Appellant neither appears nor files written defenses to the will. January 5, 1976
“Petition in Will Contest” filed by appellant in probate court. June 9, 1976
Order entered by probate court setting petition for hearing. July 26, 1976
August 3, 1976 Written defenses to petition filed by executrix.
August 25, 1976 September 15, 1976 Probate court denies petition. Appellant files notice of appeal in district court, appealing from orders of January 5 and August 25. Appeal bond filed.
October 5, 1976 Executrix files motion to dismiss appeal.
October, 1976 Appellant’s counsel withdraw and present counsel enters the case.
December 30, 1976 Motion to dismiss appeal sustained as to January 5 order on the ground that no appeal from that order had been properly perfected, but motion overruled as to the August 25 order.
District court construes the “Petition in Will Contest” to be a motion to set aside judgment pursuant to K.S.A. 60-260(fe) and orders appellant to file a motion pursuant to said statute. May 18, 1977
Memorandum Opinion filed denying appeal from August 25,1976, order (Petition in Will Contest subsequently treated as K.S.A. 60-260[h] proceeding). January 26, 1978
Journal entry filed reflecting opinion of January 26, 1978. April 5, 1978
Appeal filed herein. May 4, 1978
Various interrelated issues are raised on appeal. Basically, the appellant contends the probate court erred in:
1. Failing to construe the Petition in Will Contest as an appeal pursuant to K.S.A. 1975 Supp. 59-2404;
Holding that the Petition in Will Contest constituted an improper collateral attack on the January 5 order, that it was subject to the doctrine of res judicata, and that no timely appeal had been taken from the January 5 order; 2.
Failing to hold that the six month appeal time commenced to run from August 25, 1976, rather than January 5, 1976; and 3.
Failing to make specific findings of fact as required by K.S.A. 60-252. 4.
The appellant contends the district court erred in:
1. Holding that no timely appeal was taken from the probate court’s order of January 5, 1976;
2. Refusing to set aside the probate court order pursuant to K.S.A. 60-260(b) (brief does not specify whether the district court should have set aside August 25 order, January 5 order, or both); and
3. Construing the Petition in Will Contest as a motion for relief under K.S.A. 60-260(b).
The case herein reached the district court prior to court unification and the substantial revisions of the probate code, both of which became effective January 10, 1977. The applicable law herein was as it existed in 1976. K.S.A. 1975 Supp. 59-2404, applicable herein, provided:
“59-2404. Time for appeal, failure to defend or appear not to affect right to appeal.
“Such appeal may be taken by any person aggrieved within thirty (30) days after the making of such order, judgment, decree, or decision: Provided, That an appeal may be taken within six months from an order admitting, or refusing to admit, a will to probate. The right of appeal shall not be denied nor abridged for failure of the party appealing to present his defenses in the probate court or to appear therein.”
K.S.A. 59-2405 (Corrick) (since repealed, but applicable herein) provided:
“59-2405. Requisites.
“To render the appeal effective:
“(1) The appellant shall serve upon the adverse party or his attorney of record, or upon the probate judge for the adverse party, a written notice of appeal specifying the order, judgment, decree, or decision appealed from, and file such notice of appeal in the probate court with proof of service thereof verified by his affidavit.
“(2) The appellant, other than the state or municipality or a fiduciary appealing on behalf of the estate, shall file in the probate court a bond in such sum and with such sureties as may be fixed and approved by the probate court, conditioned that he will without unnecessary delay prosecute the appeal and pay all sums, damages, and costs that may be adjudged against him.
“(3) Whenever a party in good faith gives due notice of appeal and omits through mistake to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just.”
K.S.A. 1975 Supp. 59-2408, applicable herein, provided:
“59-2408. Trial on appeal; pleadings; issues; evidence.
“Upon the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine the appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court would have had original jurisdiction of the matter. The district court shall allow and may require pleadings to be filed or amended. The right to file new pleadings shall not be abridged or restricted by the pleadings filed, or by failure to file pleadings, in the probate court; nor shall the trial in, or the issues to be considered by, the district court be abridged or restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the probate court.”
K.S.A. 1975 Supp. 59-2213, relevant herein, provides:
“59-2213. Judgments; vacation or modification.
“No judgment or decree shall be rendered in a probate proceeding without proof. The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by K.S.A. 60-260(b) of the code of civil procedure.”
K.S.A. 60-260(fo) provides that a court may relieve a party from a final judgment or order for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or any other reason justifying relief.
“Appeal” is defined by Black’s Law Dictionary 124 (4th ed. rev. 1968) as the “complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse.” The scope of review afforded to proceedings varies by statute — but inherent in any appeal is a higher tribunal taking jurisdiction of a matter from a lower tribunal. On appeal the case moves through the courts vertically, never horizontally; that is, no appeal lies from one district magistrate court to another district magistrate court, or from one district judge to another district judge. When a case is appealed, the appealing party is seeking to leave the court that has offended him and seeking the righting of the wrong in a different and higher court.
The decedent’s will was admitted to probate by the Probate Court of Leavenworth County on January 5, 1976. Appellant herein was legally notified of said hearing. Pursuant to K.S.A. 1975 Supp. 59-2404, appellant had six months from that date to appeal to the district court. Pursuant to K.S.A. 59-2405 (Corrick), to perfect that appeal appellant had to (1) file a notice of appeal and serve notice as required, and (2) file an appeal bond.
In In re Estate of Torrence, 204 Kan. 443, 464 P.2d 193 (1970), this court held that the filing of an appeal bond was essential to vest a district court with jurisdiction of an appeal from a probate court.
The Petition in Will Contest filed herein was encaptioned “In the Probate Court of Leavenworth County, Kansas.” The order of hearing, affidavit of mailing, and notice of hearing all followed the usual format for setting petitions for hearings in the probate court. Appellant’s counsel were both notified that their petition was being set for hearing in the probate court. They did not object to this procedure and one of appellant’s counsel appeared at the hearing ready to proceed. The hearing was held on August 25, 1976, in the probate court. Appellant was precisely where she wanted to be — in the probate court. No appeal bond was filed and no pleading was filed which indicated any manifestation that appellant intended to be in a different court.
The executrix filed written defenses to appellant’s petition, setting forth that the petition constituted a collateral attack on the judgment and that the doctrine of res judicata precluded consideration of the petition.
Appellant, at the hearing before the probate court, did not attempt to convert the proceeding into a motion to vacate or modify the January 5 judgment pursuant to K.S.A. 1975 Supp. 59-2213. The probate code contained no provision either for a new trial or for an extension of time for appéal. In re Estate of Parker, 201 Kan. 1, 439 P.2d 138 (1968).
The probate court found in favor of the executrix as follows:
“Thereupon, evidence is introduced by petitioner and by said Executrix, and after hearing the evidence, reviewing the file and being fully advised in the premises, the Court finds that said Petition in Will Contest should be denied and the Court finds in favor of the Written Defenses of said Executrix.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the findings of this Court be, and they are, hereby made a part of the order, judgment and decree of this Court.”
The written defenses, in relevant part, are as follows:
“2. That, in the alternative, said Petition should be dismissed, denied or stricken for the reason that the issues therein contained are res judicata.
“3. That in the alternative said Petition in Will Contest constitutes an improper collateral attack on the Order of this Court entered on January 5, 1976, admitting the Will of said Clarence W. Corson to probate and appointing said Catherine L. Barnes executrix.
“4. That in support of the foregoing allegations said Executrix states that no appeal has been taken from said Order Admitting Will to Probate and Appointing Executrix filed and entered on January 5, 1976, and that said Order is final and conclusive in all respects as to all issues therein contained or which might be litigated at the hearing on the 5th day of January, 1976, herein.”
Appellant contends the judgment of the probate court is invalid for failure to make specific findings of fact pursuant to K.S.A. 60-252(a). This point is without merit for a number of reasons: (1) The petition was denied as a matter of law; (2) the adoption of the written defenses gave the rationale of the decision; and (3) inasmuch as the matter was to be tried de novo on appeal, the inclusion of specific findings is rather inconsequential. In addition, it is highly debatable whether K.S.A. 60-252(a) was applicable to probate courts in 1976, but there is no need to determine that aspect of the case.
Basically, appellant argues the probate court erred in treating the petition as a probate court petition rather than as an appeal to the district court, which is what appellant now says was intended. Appellant would transfer the responsibility of perfecting appeals from appellants to the courts whose orders offend. Courts serve in many roles; however, it is not the role of a court to serve as the keeper for every attorney who practices before it. The probate court treated the petition exactly as appellant requested, including setting it for hearing. The probate court could not have perfected the appeal, even if it had desired to do so. The petition was filed June 9,1976; the appeal time ran out July 5,1976. When the appeal time expired, appellant was still in the probate court and had not bothered to have her petition set for hearing. Had appellant promptly set her petition for hearing, it could have been heard prior to the expiration of the appeal time. The probate court did not err in finding in favor of the executrix as a matter of law. Further, the probate court was clearly without jurisdiction to extend the time for appeal and did not err in refusing to extend the time.
We turn now to the specifications of error leveled at the district court. The appeal to the district court was filed September 15, 1976, and was an appeal from the probate court’s orders of August 25, 1976 (Petition in Will Contest), and January 5, 1976 (order admitting will to probate).
The district court found the appeal was out of time as far as it related to the January 5 order. This was jurisdictional and the appeal time had expired on July 5, 1976. No error is shown in that ruling and there is no need to discuss it further.
The remaining portion of the appeal was the appeal from the August 25 ruling. As previously shown, that ruling was correct. The district court, in an effort to provide a basis for relief from the January 5, 1976, order, if justified, directed appellant, over her objections, to proceed as though the Petition in Will Contest were a motion pursuant to K.S.A. 60-260(b) for relief from a judgment. This was a rather questionable procedure inasmuch as it was not raised before the probate court or requested by appellant in the district court. Nevertheless, the district court was obviously attempting to force an appropriate means upon appellant whereby she would be given the opportunity to show sufficient extenuating circumstances to relieve her of the legal consequences of her own acts. After a full evidentiary hearing, the district court found and concluded as follows:
“Movant alleges that the judgment of the Probate Court entered on January 5, 1976, should be set aside for a number of reasons including the allegations that said court made a mistake in not having a full evidentiary hearing before admitting the will in question to probate; that movant’s prior counsel should be excused from their neglect in not properly handling her file; that movant’s prior counsel did not properly effect an appeal from the judgment in question; that movant has newly discovered evidence concerning the testator’s mental competency at the time the alleged will was executed; that the conduct of the beneficiaries of the will admitted to probate elevates itself to the status of misconduct, if not misrepresentation, if not fraud; and that the judgment of the Probate Court is void.
“This court concludes that the evidence establishes movant was afforded an opportunity by the Probate Court to appear at the hearing in said court on January 5, 1976, and to present any defenses she desired to the admission of the will to probate or to the appointment of the person named in the will as executrix; that movant has failed to establish that her failure to file any defenses to the admission of the will in question or to appear at the hearing in Probate Court on January 5, 1976, or to file an appeal from the judgment entered by said court on the date of the hearing within six months was the result of mistake, inadvertence, surprise, or excusable neglect; that movant has failed to establish she has newly discovered evidence which by due diligence could not have been discovered and presented to the Probate Court within a period of thirty days after January 5,1976; that movant has failed to establish any reason justifying relief from the operation of the judgment entered by the Probate Court on January 5, 1976; that the motion in question should be denied; and that the costs of this action should be taxed to movant.”
As we said in Neagle v. Brooks, 203 Kan. 323, Syl. ¶¶ 3, 4, 5, 454 P.2d 544 (1969):
“A motion for relief from a final judgment under K.S.A. 60-260(h) is addressed to the sound discretion of the trial court, and upon appeal its action is reviewable only for abuse of discretion.”
“K.S.A. 60-260(fc) was not intended as an alternative method of appellate review, nor as a means of circumventing time limits on appeal, except where compelling considerations of justice require that course. It was not intended to provide a procedure to challenge a supposed legal error of the court, nor to obtain relief from errors which are readily correctable on appeal.”
“The broad language of K.S.A. 60-260(6)(6) authorizing relief for ‘any other reason justifying relief from the operation of the judgment’ gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. This power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests.”
There is absolutely no showing that appellant had no knowledge of the January 5 ruling. She had six months to perfect an appeal therefrom and was in contact with her counsel throughout the time. Likewise, there is no showing that the Petition in Will Contest was clearly an appeal which by clerical error was filed in the wrong court. Her counsel knew where it was filed, how it was captioned, and made no effort to transfer it or file an appeal bond.
No abuse of discretion is shown by the district court in denying relief under K.S.A. 60-260(1?).
All issues raised have been disposed of and the judgment is affirmed.
Fromme, J., not participating. | [
49,
-19,
-11,
-115,
43,
-32,
107,
26,
113,
-29,
36,
83,
41,
-38,
21,
125,
115,
13,
-47,
107,
71,
-77,
23,
-64,
115,
-13,
-15,
-59,
-93,
-3,
-12,
55,
76,
-96,
74,
-75,
70,
-126,
69,
18,
-114,
80,
-71,
100,
-47,
-126,
52,
35,
22,
7,
113,
94,
-77,
41,
28,
98,
-24,
44,
-7,
52,
-62,
-80,
-113,
5,
109,
22,
49,
-90,
-104,
-51,
88,
42,
16,
57,
10,
-20,
19,
-90,
-106,
-44,
107,
-103,
8,
116,
98,
33,
-35,
-27,
-72,
-104,
31,
62,
61,
-25,
-13,
88,
-24,
97,
-74,
-71,
113,
80,
11,
-2,
-18,
20,
14,
-84,
0,
-113,
-42,
-79,
23,
60,
-112,
3,
-21,
65,
50,
113,
-99,
64,
92,
-29,
53,
-109,
-106,
-80
]
|
The opinion of the court was delivered by
McFarland, J.:
In a wrongful death action, this is an interlocutory appeal, pursuant to K.S.A. 60-2102(b), from a denial of a motion by defendants to dismiss.
The facts relevant to the issue before us are not in dispute and are as follows. Rex A. Gilkeson and Linda Beth Gilkeson were husband and wife. On December 24, 1976, the Gilkeson automobile was involved in a collision with an automobile driven by defendant West K. McArthur. Both Mr. and Mrs. Gilkeson died as a result of injuries sustained in the collision, with the wife surviving the husband by thirty minutes. The Gilkesons had no
On May 5, 1977, Mary Johnson and Marvin Gilkeson (parents of Rex), plaintiffs herein, commenced this action for the wrongful death of their son, seeking $2,500 for funeral expenses and the statutory maximum of $25,000. On August 16, 1977, the administrator of the estate of the wife (Linda Beth) commenced a wrongful death action against defendants for the wrongful death of Rex (No. 77C124, district court of Dickinson County). Despite statements to the contrary at oral argument of this appeal, the record reflects the two cases have not been joined and continue as separate actions.
On August 17, 1977, defendants moved to dismiss the case herein (action by Rex’s parents) on the ground the plaintiffs were not heirs at law of Rex and, accordingly, had no right to bring the action. On June 8, 1978, the district court denied the motion to dismiss. On August 10, 1978, on motion to reconsider, the court made the following order, in relevant part:
“The basis of the defendants’ motion is that the plaintiffs were not the heirs-at-law of Rex A. Gilkeson and have no right to bring an action pursuant to the Kansas Wrongful Death Act for the reason that Rex A. Gilkeson, at the time of his death, was married to Linda B. Gilkeson, his spouse. That Linda B. Gilkeson died approximately 30 minutes after the death of Rex A. Gilkeson, and since she did survive him, Linda B. Gilkeson’s personal representative is the only person who has the right to bring a wrongful death action for the loss of Rex A. Gilkeson.
“THEREUPON, the court after hearing arguments of counsel and being duly advised in the premises and upon reconsideration of said motion finds, that K.S.A. 60-1902 provides that the action may be maintained by any one of the heirs-at-law of the deceased who has sustained a loss by reason of the death, and that the action shall be for the exclusive benefit of all the heirs who have sustained a loss. The court finds that the personal representative of Linda B. Gilkeson does not have the exclusive right to bring the action and therefore the defendant’s motion to dismiss should be denied.
“The court further finds that the question concerning who is an heir-at-law so as to have the right or exclusive right to bring a wrongful death action involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order pursuant to the provisions of K.S.A. 60-2102 may materially advance the ultimate termination of this litigation.
“The Court further finds that the proceedings herein should be stayed until the appellate court has considered the defendants’ application for an interlocutory appeal.”
The defendants’ appeal was duly perfected and the appeal was permitted on transfer to this court from the Court of Appeals.
The sole question involved in this appeal is who is an heir at law of a deceased so as to be the real party in interest in bringing an action for wrongful death under the provisions of K.S.A. 60-1901 et seq. This is a question of first impression.
The statutory provisions pertaining to wrongful death actions are as follows:
K.S.A. 60-1901. Cause of action.
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.”
K.S.A. 60-1902. Plaintiff.
“The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has sustained a loss regardless of whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article.”
K.S.A. 60-1903. Amount of damages.
“In any such action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of twenty-five thousand dollars ($25,000) and costs.”
K.S.A. 60-1904. Elements of damage.
“Damages may be recovered for, but are not limited to: mental anguish, suffering, or bereavement; loss of society, companionship, comfort, or protection; loss of marital care, attention, advice or counsel; loss of filial care or attention; and loss of parental care, training, guidance, or education, and the reasonable funeral expenses for the deceased. If no probate administration for the estate of the deceased has been commenced, expenses for the care of the deceased which resulted from the wrongful act may also be recovered by any one of the heirs who paid or became liable for the same. Such expenses and also any amount recovered for funeral expenses shall not be included in the limitation of K.S.A. 60-1903.”
K.S.A. 60-1905. Apportionment of recovery.
“The net amount recovered in any such action, after the allowance by the judge of costs and reasonable attorneys fees to the attorneys for the plaintiffs, in accordance with the services performed by each if there be more than one, shall be apportioned by the judge upon a hearing, with reasonable notice to all of the known heirs having an interest therein, such notice to be given in such manner as the judge shall direct. The apportionment shall be in proportion to the loss sustained by each of the heirs, and all heirs known to have sustained a loss shall share in such apportionment regardless of whether they joined or intervened in the action; but in the absence of fraud, no person who failed to join or intervene in the action may claim any error in such apportionment after the order shall have been entered and the funds distributed pursuant thereto.”
The foregoing statutes became effective January 1, 1964. The prior statutory provisions relative to wrongful death actions are as follows:
G. S. 1961 Supp. 60-3203.
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two (2) years. In any such action, the court or jury may award such damages as may seem fair and just under all the facts and circumstances, but the damages cannot exceed twenty-five thousand dollars ($25,000) and must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. Damages may be recovered hereunder for, but not limited to: (a) Mental anguish, suffering or bereavement; (b) loss of society, companionship, comfort or protection; (c) loss of marital care, attention, advice, or counsel; (d) loss of filial care or attention; and (e) loss of parental care, training, guidance or education.”
G. S. 1949, 60-3204.
“That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”
The changes between the present wrongful death statutes and their predecessors were summarized in Frost v. Hardin, 1 Kan. App. 2d 464, 469, 571 P.2d 11 (1977), approved and adopted 224 Kan. 12, 577 P.2d 1172 (1978), as follows:
“That action was brought under our present statutes’ predecessors, particularly G.S. 1961 Supp. 60-3203 and G.S. 1949 60-3204, which encompassed a scheme significantly different from the present statutes in at least two respects. First, priorities were established among potential plaintiffs: (a) the personal representatives, if any; (b) the surviving spouse, if any; and (c) ‘the next of kin,’ but only if there was no one in either of the first two categories. The present statute, it will be noted, authorizes the action to be brought by ‘any one of the heirs at law.’ Second, under former 60-3203, the recovery was distributed to the decedent’s heirs according to the statutes governing personal property in cases of intestacy. (Holmes, Administrator v. Price, 186 Kan. 623, 352 P.2d 5.) Although the elements of damage (mental anguish, filial or parental care, etc.) are similar under both the old and new statutes, distribution under present 60-1905 is ‘in proportion to the loss sustained by each of the heirs’ rather than under the former intestacy formula.”
The pivotal issue is who are the heirs at law of Rex. A. Gilkeson that are entitled to bring the wrongful death action. Defendants contend the wife was the sole heir at law and, accordingly, the administrator of her estate is the only person authorized to bring the action. The plaintiff parents contend they are also heirs at law and thus may maintain an action. The district court concurred with the parents.
In interpreting our present statutes’ predecessors, in Ellis v. Sill, 190 Kan. 300, Syl. ¶ 4, 374 P.2d 213 (1962), this court held:
“The wrongful-death statutes, above [G.S. 1961 Supp. 60-3203 and G.S. 1949, 60-3204], create but one statutory cause of action, and a negligent wrongdoer can be compelled to answer but once for a single wrongful death — irrespective by whom the action is brought.”
The statutory changes since Ellis do not alter that conclusion. See also Frost, 1 Kan. App. 2d 464.
Under the prior statutes the parents would be precluded from maintaining an action, as G.S. 1949, 60-3204 specifically provided the action should be maintained: (1) by the decedent’s personal representative or, if none; (2) by the decedent’s widow or, if none; (3) by the next of kin. Likewise, pursuant to G.S. 1961 Supp. 60-3203, only the widow could have participated in any recovery of damages (there being no children of the decedent). See Ellis, 190 Kan. 300.
The plaintiff parents contend the use of the term “heir at law” in the new wrongful death statutes as opposed to “next of kin” in the prior law, coupled with the apportionment of recovery based on loss rather than the intestacy formula, shows a clear legislative intent to broaden the class of individuals entitled to maintain the action or participate in any recovery. They define “heir at law” as simply any potential heir within the line of succession of a deceased person.
Defendants contend the wife is the sole heir at law to her husband and the parents of the deceased husband cannot maintain the action herein.
K.S.A. 59-504, a part of the Kansas Probate Code, provides:
“If the decedent leaves a spouse and no children nor issue of a previously deceased child, all the decedent’s property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse.”
Defendants contend the wife is the next of kin, sole heir and sole heir at law, and the change in the statutes does not operate to permit the decedent’s parents a joint right to bring the action.
At common law, an “heir” was the person to whom real property descended by inheritance. Personal property went to the “next of kin.” McCormick v. Maddy, 186 Kan. 154, 159, 348 P.2d 1007 (1960). The intestate succession statutes have abrogated the common law rules and make no distinction between devolution of real and personal property. Vernon’s Kansas Probate C., § 59-502, Author’s Comment ¶ 502.2; see McKinney v. Stewart, 5 Kan. 384 (1870).
Under the prior wrongful death statute, “next of kin” meant those who inherit from a decedent under the law of descents and distributions. Ellis, 190 Kan. 300; see Railway Co. v. Ryan, 62 Kan. 682, 64 Pac. 603 (1901).
“Heir at law” is not defined in the wrongful death statute, nor has it been defined by wrongful death case law. Clearly, the spouse herein is an heir at law as stated in Barr, Administratrix v. MacHarg, Administrator, 203 Kan. 612, Syl. ¶ 2, 455 P.2d 516 (1969):
“A surviving spouse is an heir at law of the deceased and is a real party in interest to bring such an action under K.S.A. 60-1902 for losses sustained by her and the surviving children.”
Prior Kansas cases make no distinction between “heir” and “heir at law.”
In Gardner v. Anderson, Trustee, 116 Kan. 431, 435, 227 Pac. 743 (1924), the court said:
“[A]n ‘heir’ or ‘heir at law’ is simply the person designated by the statute who succeeds to the estate of a deceased person, and the statute may make anybody an heir.”
In Newby v. Anderson, 106 Kan. 477, Syl. ¶ 2, 188 Pac. 438 (1920), the court stated:
“ ‘The statute may make any person an heir. An heir in law is simply one who succeeds to the estate of a deceased person.’ (McKinney v. Stewart, 5 Kan. 384.) The statute of descents and distributions treats the husband as the heir of the wife; the wife as the heir of the husband. (Gen. Stat. 1915, §§ 3831, 3850.)”
In Jackson v. Lee, 193 Kan. 40, 392 P.2d 92 (1964), at pp. 43-44, the court held:
“Heirship and the right of inheritance, including the right of a spouse, are governed by other provisions of the statute. The right of heirship is determined by the laws of intestate succession. . . .
“Heirship is a legal right regulated by law. It is not a mere privilege. It is to be enjoyed subject to the conditions prescribed by statute. An ‘heir,’ as the word is commonly understood in this state, is one who takes by intestate succession under the Kansas statutes. This appears to be the rule elsewhere.”
See also McCormick v. Maddy, 186 Kan. 154.
The present wrongful death statutes use the terms “heir” and “heir at law” interchangeably and make no visible distinction between the terms. We recognize that some jurisdictions distinguish the terms on the basis that an “heir” is one who succeeds to the property upon the death of another; whereas, an “heir at law” is an heir apparent — that is, the heir apparent has a prospect of future inheritance from a then living ancestor. We decline to make such a distinction and hold that “heir” and “heir at law” are synonymous terms.
“Next of kin,” under the former statute, meant those who inherit from a decedent under the law of descents and distributions. Ellis, 190 Kan. 300, Syl. ¶ 3. Under the prior statute the widow was the person to bring the action if the deceased had no personal representative. If the deceased had neither a personal representative nor a widow, then the next of kin could maintain the action. This gave a preferential right to the widow as under the law of descents and distributions the widow and decedent’s children would be the next of kin. Under the facts of this case (with no personal representative of the deceased) the wife, under the prior statute, would have had the exclusive right to bring the action as widow, and even without the widow’s preferential right, would be solely authorized as next of kin to bring the action as there are no children. Accordingly, she is the widow and sole “next of kin” under the old statute, and sole “heir” and sole “heir at law” under the present statute.
K.S.A. 60-1902 provides that “the action may be commenced by any one of the heirs at law of the deceased who has sustained a loss.” The deceased’s parents are not “heirs at law” by virtue of K.S.A. 59-504 which makes the wife the sole heir or heir at law. We therefore conclude the district court erred in overruling the defendants’ motion to dismiss the action herein.
Although the apportionment of recovery in accordance with loss provisions of K.S.A. 60-1905 are not directly before this court, the plaintiffs argue that these provisions show a legislative intent contra to the result we have reached. We do not agree. Under the former wrongful death statutes, recovery was apportioned by the law of descents and distributions. For example, if a man died without a spouse and left five children, each would receive 20% of the recovery. Under the present statute, one of the five children could receive 100% of the net recovery if he or she suffered all of the loss. Accordingly, the result reached herein does not nullify the effect of K.S.A. 60-1905; however, recovery may be apportioned only among the “heirs” (or the synonymous term, “heirs at law”) as stated in the statute.
We recognize the result reached herein may be harsh in particular cases. For example, under the present and prior wrongful death statutes, an invalid mother, father, brother or sister of the deceased who was totally dependent thereon is completely excluded from recovery by the existence of a surviving spouse or child, even though such spouse or child may have sustained a comparatively small loss.
In all likelihood, it would be impossible to draft a statute which would be fair to all persons in all cases. The legislature has spoken, however, by enacting the present statutes, and it is not the role of this court to speculate on possible improvements therein. The fundamental rule of statutory construction, to which all other rules are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978).
The statute herein is plain and unambiguous.
The judgment is reversed. | [
80,
104,
-20,
-99,
9,
-96,
-93,
10,
115,
-29,
100,
83,
-21,
90,
29,
123,
123,
45,
-15,
107,
-13,
-77,
31,
-118,
-14,
51,
-16,
-49,
-77,
-55,
116,
-1,
76,
96,
-54,
-123,
34,
-118,
-121,
86,
-114,
2,
8,
-16,
89,
-126,
48,
113,
86,
7,
113,
15,
-77,
43,
62,
-25,
72,
62,
91,
-84,
-64,
-80,
-61,
7,
95,
18,
-93,
4,
-66,
-19,
88,
24,
-111,
-79,
32,
-20,
50,
-90,
-110,
52,
105,
-103,
8,
102,
103,
33,
25,
-3,
-23,
-102,
15,
50,
29,
-89,
-110,
80,
73,
3,
-74,
61,
125,
80,
15,
120,
-18,
28,
77,
-88,
-126,
-53,
-106,
-111,
-115,
63,
22,
11,
-5,
-127,
50,
113,
-55,
100,
95,
71,
48,
-69,
-106,
-108
]
|
The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for injury to property of plaintiffs caused by pollution of a water well of plaintiffs resulting from leaks in an oil pipe line owned and operated by defendant. Judgment was for plaintiffs. Defendant appeals.
The facts are about as follows: Plaintiffs own a forty-acre farm about two miles east of Wichita. For many years it has been the homestead of plaintiffs and operated as a dairy farm. The water used on the farm came from a well which supplied soft water. It was about forty-five feet deep. There is a public highway running north and south along the west side of the farm. Along the west side of this road defendant had two pipe lines, one a four-inch line and the other a three-inch line. The three-inch line was constructed of secondhand pipe. Oil was carried through these pipes for three or four days at a time and then salt water for about the same period. The petition alleged and the jury found the existence of three different leaks in the pipe line. One was 1,000 feet southwest, one 200 feet west and one 800 feet northwest of the Spencer well. The first leak occurred in 1931, the next in 1932 and the last one in February, 1933. Defendants do not deny that these leaks actually occurred. In February, 1933, plaintiff’s well began to show oil, and this) condition has continued and grown worse until the water from the well cannot be used for any purpose whatever. Plaintiffs have been compelled to haul water for their stock. The jury found for plaintiffs, awarding them $2,800 for permanent damages to real estate, $100 for damages to live stock and $100 for expenses in hauling water.
Defendant contends there was no proof that the property of plaintiffs was permanently damaged; that there was no competent proof the seepage of oil which plaintiffs claimed to exist came from the pipe line of defendant; and that the answer of the jury to question number four was inconsistent with the general verdict. Defendant argues that for- these reasons the demurrer of defendant to the evidence of plaintiffs should have been sustained, and that the motion of defendant for judgment, notwithstanding the general verdict, should have been granted.
Special question number four was as follows:
“If you find, under the evidence, that the defendant deposited or placed crude oil, which was not removed, on or in the ground adjacent to plaintiffs’ property at various places, then state the places and direction from plaintiffs’ well and the amount at each place. A. Approximately 1,000 feet southwest— undetermined amount.
“Approximately 200 feet west — undetermined amount.
“Approximately 800 feet northwest along highway — undetermined amount.”
The argument of defendant is that the finding of “undetermined amount” is analogous to the answer “We do not know” concerning an element of the case necessary to recovery. In the cases where juries have returned such answers it has been held the answer indicated the plaintiff had not sustained the burden of proof required of it and a verdict in his favor could not stand: This question should be considered in connection with the next one. It is as follows:
“Do you find, under the evidence, that oil was found at a depth of approximately nineteen feet under the surface of the earth and that it was found in the highway in front of plaintiffs’ house in holes dug 200 feet apart? A. Yes, but it came from pipe-line leak.”
So considered, there is no inconsistency in the general verdict and the answers to special questions. It might very well be that the jury did not care to say how much oil escaped at each leak. The important question, however, was whether enough leaked out to reach the source of the water supply of plaintiffs’ well. When the jury answered that oil from the pipe line had reached to a depth of nineteen feet in holes dug 200 feet apart in front of plaintiff’s house, this amounted to an affirmative answer to that question. The case comes within the rule laid down in Hinze v. City of Iola, 92 Kan. 779, 142 Pac. 947. In that case the plaintiff sued and recovered a judgment against the city for injury caused by an electric shock. The jury, in response to a question as to whether the transformer was empty of oil at the time in question, answered, “Don’t know,” but proceeded to find that it was out of repair on that date, the defect being due to “lack of oil or worn insulation.” The following question was asked, “If you find that the transformer was empty of oil or out of repair, state how long it had been in that condition.” To this the jury answered, “We don’t know.” The city argued that the jury’s answer to the question was in effect a finding that the time had not been long enough to amount to notice to the city. The court answered this, as follows:
“Hence the answer ‘We do not know’ to the question how long the transformer had been empty of oil or out of repair cannot as a matter of law be deemed, as counsel suggest, a finding in effect that it had not been long enough to amount to notice to the city. When a jury are asked as to the existence of a fact and answer that they do not know, the logical and legal significance is that the plaintiff has not proved that such fact exists and therefore, so far as his proof is concerned, it does not exist. . . . But when the question is how long a certain condition existed, the answer ‘We don’t know’ necessarily means, not that such condition did not exist at all or for any certain time, but that the evidence fails to show the duration of such existence.”
Here proof of the depositing of any particular amount of oil was not essential. What was essential was proof of sufficient penetration of enough oil to reach the water supply of plaintiffs’ well.
Defendant next argues there was no evidence the oil that reached plaintiffs’ well came from the leak in defendant’s pipe line. It is true that the course of the oil from the pipes of defendant to the water well cannot be traced as clearly as though it flowed on top of the ground. Doctors sometimes administer medicine which coats the intestines so that the functioning of the organ may be observed by means of an X-ray. But here such certainty is not required of us. Our concern is whether the evidence of plaintiffs was sufficient to take the case to the jury. (See Hall v. Galey, 126 Kan. 699, 271 Pac. 319.) There was ample evidence that before the leaks in defendant’s pipe line the water in plaintiffs’ well was clear, sweet and wholesome. Some time subsequent to the occurrence of leaks oil appeared in the well. Defendant complains that there was no evidence the subsurface formation known as the Wellington shale had any fissures or foldings to enable the oil to travel from the pipe line of defendant to the well of the plaintiffs. The fact is that there was evidence of the general characteristic of the Wellington shale in this respect. It is a matter of common knowledge that the source from which a well draws its water is often some distance from the well itself and that water and oil will seep through the earth. Furthermore, the proof was conclusive that the oil found in plaintiffs’ well did not come from any other source. The only other pipe line in the vicinity was shown not to have any leaks in it whatever. If the oil had come from the oil-producing sand in the immediate vicinity of the well it would have shown up years before the occurrence of the leaks in defendant’s pipe line. The consideration of all these things leads to the conclusion that there was ample evidence to take this case to the jury. (See Hall v. Galey, supra; Daly v. Gipsy Oil Co., 133 Kan. 551, 300 Pac. 1099; Martin v. Shell Petroleum Corp., 133 Kan. 124, 299 Pac. 261.)
Defendant next argues that there was no evidence that the damages to real property of plaintiffs was permanent. In this connec tion it appears that plaintiffs depended upon this well to furnish water for their stock. They used the place as a dairy farm. They are compelled to haul water for their stock. There was evidence that once the soil through which the well drew its water supply became soaked with oil it would be polluted for a great many years. We hold that all this taken together constitutes sufficient evidence to sustain a verdict for permanent damages.
The judgment of the trial court is affirmed. | [
-16,
108,
-72,
-116,
28,
-32,
40,
-38,
65,
-79,
-27,
83,
-19,
67,
12,
105,
-61,
61,
85,
99,
-42,
-94,
19,
-110,
-110,
-13,
-5,
-51,
-72,
93,
-28,
-44,
76,
48,
-62,
-43,
102,
-62,
71,
-36,
-50,
5,
9,
-19,
-19,
10,
52,
107,
38,
75,
117,
-116,
99,
47,
29,
-61,
9,
44,
-21,
61,
65,
-15,
-86,
-113,
95,
20,
49,
70,
-102,
-61,
-38,
42,
-112,
49,
8,
-24,
115,
-90,
-110,
-12,
47,
-119,
44,
102,
110,
35,
21,
-17,
104,
-104,
47,
-1,
-115,
-26,
-112,
88,
-61,
32,
-66,
-99,
124,
80,
-121,
122,
-18,
-123,
95,
40,
7,
-117,
-106,
-95,
7,
40,
-104,
19,
-21,
-93,
4,
101,
-39,
-94,
92,
71,
116,
31,
7,
-102
]
|
The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a ruling of the district court of Wyandotte county denying and dismissing appellant’s application for a writ coram nobis to set aside a judgment.
The pertinent facts in summary were these: In 1925 this appellant, E. A. Enright, filed an action for money against this appellee, F. A. Gibson. The cause was permitted to sleep on the docket without answer or other plea by Gibson until September 19, 1926, at which time judgment was entered in favor of Enright. On January 19, 1929, execution was issued on the judgment and returned with the indorsement “No property found.” Successive executions issued in June, 1929, and October, 1930, were similarly ineffective.
On December 13,1930, Gibson commenced an action to enjoin the sheriff and Enright from serving further execution and to set aside the judgment entered against him on September 19, 1926, on the alleged ground that he had not been personally served with summons. On March 17, 1931, judgment was entered in favor of Gibson as prayed for. The cause was appealed to this court, and on April 9, 1932, the judgment was affirmed. (Gibson v. Enright, 135 Kan. 181, 9 P. 2d 971.)
Some fifteen months later, on July 11, 1933, Enright filed in the district court an application for a writ coram nobis to set aside the judgment of March 17, 1931 (affirmed by this court as above), on the ground that the original summons in the action of Enright v. Gibson filed in 1925, and which had been mislaid so that it could not be produced in the injunction suit of Gibson v. Enright filed in 1930, had been discovered, and that the sheriff’s return thereon bore a recital that it had been personally served on Gibson, and in consequence that the secondary evidence which had constrained the trial court’s conclusion of fact that personal service had not been made on Gibson was incorrect. The application concluded, in part, thus:
“That there is no remedy available to your petitioner at this time to this miscarriage of justice and destruction of his legal rights except a bill of review sanctioned by the common law or the writ coram nobis which he invokes.”
Counsel for Gibson filed a motion to strike the application from the files.
The matter came on for hearing on October 7, 1933, and the judgment roll, in part, reads:
“Upon full hearing by the court of the arguments of counsel for both parties . . . the court finds that the application of said defendant for writ coram nobis should be denied, and the court also finds that the motion of plaintiff to strike said application from the files should be sustained.”
Judgment was entered accordingly, and the matter is brought here for review.
At the outset the obvious inquiry intrudes: Is the common-law writ of error coram nobis impliedly included in or consistent with the code of civil procedure in this state? In a single instance it has been successfully invoked in a criminal case and the trial court’s allowance of the writ affirmed. (State v. Calhoun, 50 Kan. 523, 32 Pac. 38; 34 A. S. R. 141; 18 L. R. A. 838, and note.) In other criminal cases an application for the writ was tolerantly considered, but invariably denied. (Asbell v. State, 62 Kan. 209, 61 Pac. 690; Dobbs v. State, 62 Kan. 108, 61 Pac. 408; Dobbs v. State, 63 Kan. 321, 65 Pac. 658; Collins v. State, 66 Kan. 201, 71 Pac. 251; 97 A. S. R. 361, 60 L. R. A. 572; Hamlin v. State, 67 Kan. 724, 74 Pac. 242; State v. Choquette, 109 Kan. 780, 202 Pac. 68; State v. Ray, 111 Kan. 350, 207 Pac. 192.)
No instance of its use in a civil case can, be found in the 140 volumes of our reports, although in the criminal cases above cited this court discussed the writ as if it were not entirely obsolete under our procedure, but that its ancient use, when it was one of the prerogative writs of the King’s Bench, had necessarily been curtailed and largely superseded by the statute which prescribes our code of criminal procedure.
In our code of- civil procedure it would seem that every plight which could be relieved through the invocation of a writ of error coram nobis can be quite as effectively treated under familiar provisions of the civil code — by motion for a new trial on the statutory grounds (R. S. 60-3001) or by a petition for a new trial if the time to file a motion for a new trial has elapsed. (R. S. 60-3005.) Moreover, the civil code specifically declares:
“The rules of pleading heretofore existing in civil actions are abolished; and hereafter the forms of pleading in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code.” (R. S. 60-702.)
The supreme court is authorized to revise rules of civil practice to supplement the civil code, but any such further rules must be consistent with those which the legislature itself has prescribed. (R. S. 60-3825; Carnine v. Bacon, 131 Kan. 643, 647, 648, 293 Pac. 392; Hamilton v. Bernstein, 133 Kan. 229, 299 Pac. 581.) As remarked by Chief Justice Doster, in Collins v. State, supra, “We cannot invent forms of procedure to relieve unfortunate suitors,” and it ought not to be difficult to understand that when the code prescribes the grounds for a new trial, either on motion or on petition, those grounds are exclusive, and litigants seeking relief from a judgment must bring themselves within the provisions of the code — otherwise the judgment must stand. Where the civil code enumerates nine specific grounds on which a judgment may be vacated, those nine grounds are exclusive, and the mode of relief is likewise exclusive. We could not add a tenth ground, as would result if appellant’s application for the writ of error coram nobis were allowed. Expressio unius est alterius exclusio. Our practice will not permit a litigant to shut his eyes to the plain and pertinent provisions of the code of civil procedure, and substitute therefor the common-law writ coram nobis, or any other writ of error which has never been countenanced in the civil practice in the seventy-three years’ judicial history of this state. We note that in the single instance, State v. Calhoun, supra, where coram nobis was allowed to remedy the plight of the defendant in a criminal case, it was predicated, in part, on a provision of the civil code first enacted in 1859, and which is still in force. It reads:
“Rights of civil action, given or secured by existing laws, shall be prose cuted in the manner provided for by this code, except as provided in the next-section. If a case ever arise in which an action or proceeding for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice.” (R. S. 60-3822.)
And while, in view of this provision just quoted, it cannot be dogmatically declared that a proper use of the writ of error coram nobis can never arise in our practice, it will not lie to disturb a judgment which has become a finality. Time and again this court has said that a judgment in a civil action may not be interfered with except under authority of some specific provision of the civil code. In Moore v. McPherson, 106 Kan. 268, 273, 187 Pac. 884, it was said:
“It is .settled law that after the term the court has no control over a judgment; it is then res judicata, subject only to the right of appeal and to the right of petition for a vacation of the judgment on any of the particular grounds (and no others) specified in section 596 of the civil code.” (Citing many cases.)
In Thornton v. Van Horn, ante, p. 568, just decided, it was said:
“ ‘Once the term has gone by, the judgment may not be meddled with, minimized or rendered abortive in any respect except by order of a higher court in a properly appealed case, or by a petition filed in the original case in the trial court, and reciting such facts as would warrant the relief sought, all in conformity with the provisions of the code. (R. S. 60-3005 et seq.)’” (p. 571.)
To sanction the use of coram nobis to vitiate the judgment in favor of appellee, which was affirmed in this court in 1932, would be to fly in the face of these and many similar decisions. (30 A. L. R. 1416; 33 id. 84; 58 id. 1286.)
Moreover, at common law coram nobis would not issue on account of newly discovered evidence, and the original document bearing the sheriff’s return in Enright v. Gibson can be regarded as nothing else. Neither did it issue at common law merely because more persuasive or convincing evidence had become available than that which had been adduced at the trial. (33 A. L. R. 84.) Another rule of the common law was that a denial of the writ of coram nobis was a discretionary matter and not reviewable by appeal. (Tyler v. Morris, 20 N. C. 487; 34 Am. Dec. 395.) These common-law rules would be just as pertinent to-day as they were when coram nobis was a familiar writ of error in the Court of King’s Bench, excepting, possibly, in situations where the modem practice is more zealous to see that justice is done and less concerned with procedural forms than prevailed before the codes were devised. However, at common law there was — as there is under the modern practice — another end to be served in a lawsuit besides justice, and that is to bring litigation to an end. (Alexander v. Clarkson, 100 Kan. 294, 297, 164 Pac. 294.)
In' addition to the citations given above, instructive discussions on this general subject will be found in Sanders v. State, 85 Ind. 318, 329, and Strang v. United States, 53 F. 2d 820. And see 34 A. S. R. 141; 97 id. 362; 107 id. 269; 18 L. R. A. 838; 16 C. J. 1326; 2 R. C. L. 305; 2 Tidd’s Practice 1136, 1137; 5 Enc. Pl. & Pr. 26.
In the brief of appellant matters are discussed which do not relate to the propriety of the use of coram nobis in this proceeding. They are more in the nature of an argument in support of a rehearing in the case of Gibson v. Enright, supra, decided two and a half years ago. And even if so regarded there are observations in the brief which are not strictly au fait, particularly in the assumption that the justice who wrote this court’s opinion had some peculiar responsibility for our decision not shared by his associates. (Cook v. Railway and Bridge Co., 101 Kan. 437, 165 Pac. 803.)
The judgment is affirmed. | [
-16,
-24,
-8,
127,
74,
97,
42,
25,
82,
-29,
-76,
83,
13,
-98,
0,
125,
123,
93,
113,
105,
64,
-73,
23,
-25,
-46,
51,
-39,
-43,
-79,
77,
-12,
93,
76,
32,
74,
-107,
70,
-96,
-123,
92,
-114,
-92,
-119,
-28,
89,
-128,
52,
43,
68,
75,
49,
-66,
-29,
42,
24,
-53,
104,
44,
75,
-85,
-16,
-8,
-102,
5,
125,
20,
-111,
-124,
-104,
3,
96,
62,
-104,
17,
1,
-20,
114,
-108,
-122,
117,
37,
-119,
44,
-10,
98,
33,
61,
-17,
-96,
-24,
14,
62,
-99,
-89,
-102,
24,
99,
-51,
-106,
-103,
125,
20,
14,
124,
-32,
5,
92,
60,
3,
-118,
-44,
-105,
-81,
56,
-102,
15,
-21,
-93,
54,
113,
-51,
-30,
92,
71,
120,
63,
-121,
-72
]
|
The opinion of the court was delivered by
Thiele, J.:
This was an action for damages.
Defendants’ motion to set aside answers to special questions was allowed in part, and their motion for judgment notwithstanding the verdict was allowed, and plaintiff appeals.
The place of accident was at a filling station owned by appellee Phillips Petroleum Company, at which appellee Stevens was employed. This filling station has driveways leading in from the street, and a small office building located near the pumps. To the rear is a building equipped for changing oil in automobile engines, greasing cars, etc., a part of the equipment being a hydraulic hoist used to lift cars so that the under portions might be reached more readily. On August -7, 1931, appellant drove his car into the station lot and left it near the pumps. Stevens came out and appellant said he wanted to leave his car, have the oil changed and the battery checked to see if it needed water, and that he would be back for it, and that Stevens said, “All right, we will try and have it ready for you.” Appellant left, and returned about 3 p. m. Stevens came up and said he was back sooner than expected and that the car wasn’t ready. Stevens then engaged for a short time in a conversation with another employee and while they were talking appellant walked around and saw his car in the building mentioned, and entered the building. The parties have widely different versions of what happened thereafter. Appellant testified that he entered the building, but did not see the hoist; that he had never seen his car up on a hoist for the purpose of changing the oil; that he went to the left side of the car, opened the front door and turned down the cushion of the front seat to reach the battery; that in so doing he was on his knees on the running board and Stevens came in. Stevens passed while he was taking the caps off the battery and said, “It won’t be long now;” that there was a wall about three or three and one-half feet from the running board on which he was kneeling, and that he had taken two of the caps from the battery and before he had all of them off the car gave a sudden jerk and he was thrown off backward ; that he had a sensation of going through the air and that is the last he remembered. Appellee Stevens testified that when appellant returned for his car he asked if it was ready, and Stevens said it was not, as he understood appellant would not return until four or five o’clock; that he had been busy, but would look after it right away; that appellant asked for a drink of water and was directed to the office, a little later coming out and getting in his car to drive it on the rack; he was nervous and Stevens drove it on while appellant stood near the door. Appellant asked if he could look after the battery and Stevens told him no one was allowed on the hoist and he, Stevens, would look after the battery; that he walked to the air valve which operated the hoist and turned it on, and while looking for a wrench saw appellant with his feet on the runway of the hoist and the lift up about two and one-half feet; that he immediately stopped the lift to order appellant off, and when the lift stopped the door of the car came open and appellant fell backward to the wall and to the floor.
There was other evidence as to a previous visit of appellant to the station, the method in which the hoist was worked, appellant’s knowledge or lack of it as to the hoist, whether he saw or could see it, the extent of his injuries, etc.
Plaintiff’s petition alleged his version of the facts, and charged that while he was looking after the battery in his car and without his knowledge and without notice or warning to him, the appellees caused the machinery to operate the hoist and lift the car and the appellant a distance of four or five feet; that the ascent was gradual and silent so that he was unable to detect he was being lifted from the floor, that when the hoist was lifted four or five feet, for some reason unknown to him but by reason of the operation of the machinery, there was a sudden and violent jerk and he and the car were lifted an additional foot or more, and by reason of the sudden lift and violent jerking he was thrown backward and downward against the wall and floor, causing the injuries of which he complained. He further alleged that the hoist was concealed from his view; that appellees knew he was in a place of danger and failed tc warn him; that the hoist was raised without warning or notice to the appellant; that appellees knew that appellant was without knowledge, and they knew that he would be lifted without notice or warning and knew or should have known the hoist would raise gradually and then jerk.
Appellees’ answer was a general denial and a plea of contributory negligence. Appellant’s reply denied contributory negligence.
At the conclusion of the trial the jury returned a general verdict in favor of appellant, and answered special questions as follows:
“1. How close to the channels of the hoist did plaintiff go upon entering the building? A. 14 in.
“2. How far did the ends of the channels of the hoist extend back of the' car? A. 13 in.
“3. Did the plaintiff on and prior to August 7, 1931, know that hoists were used by operators of service stations to raise automobiles for the purpose of changing oil? A. No.
“4. Was there anything to prevent the plaintiff from seeing that the car was on the hoist on the occasion in question? A. Yes.
“5. If you answer the above question in the affirmative, then state what that was. A. Plaintiff’s view of hoist was mostly obstructed by car.
“6. Was the plaintiff standing on the channels of the hoist at the time the air was turned on? A. No.
“7. If you answer the above question in the affirmative, then state whether or not the defendant Stevens knew that the plaintiff was standing on the hoist at the time the air was turned on. A.-.
“8. Was the plaintiff kneeling on the left running board of the car when the air was turned on? A. Yes.
“9. If you answer the above question in the affirmative, then state whether or not the defendant Stevens knew that the plaintiff was kneeling on the left running board of the car at the time the air was turned on. A. Yes.
“10. In the exercise of ordinary care, could the defendant Stevens have known that the plaintiff was standing on the hoist or kneeling on the running board of the car when the air was turned on? A. Yes.
“11. Do you find that on the occasion in question the hoist gave a jerk? A. Yes.
“12. If you answer the preceding question in the affirmative, would the accident have happened whether the hoist jerked or not? A. No.
“13. If you find for the plaintiff, upon what negligence do you base your verdict? A. Defendant Stevens hoisted the car while plaintiff was on the car.
“14. Did plaintiff do anything that caused or contributed to his injuries? A. No.
“15. If you answer question No. 14 in the .affirmative, then state what. A. -
The appellees filed their motion to set aside all but the first two answers, for judgment notwithstanding the verdict, and in the alternative on the special findings. The appellant filed his motion for judgment on the general verdict and findings. The court found that the answer to question 3 should be set aside as contrary to the evidence and not supported by any evidence, and that the answer to question 14 should be set aside as unsupported by any evidence and inconsistent with other special findings, and that the motion should be otherwise denied; that the remaining findings being inconsistent with the general verdict, the findings control, and that appellees’ motion for judgment notwithstanding the general verdict and upon the remaining special findings should be allowed, and judgment was given accordingly. The court also made an order “that the decision on the motion for a new trial be held in abeyance and continued if appeal be taken herein until the appeal be decided and mandate filed.”
The appellant’s specifications of .error raise the question discussed. Did the court' err in setting aside the answers to the third and fourteenth questions submitted to the jury, and was the question of plaintiff’s contributory negligence for the jury and not the court? We shall devote no time to the third question and answer, for, had the answer of the jury been “yes” instead of “no,” of itself it would not have compelled a judgment notwithstanding the general verdict. Coupled with the answer to question 14, hereafter discussed, it made no difference whether or not appellant knew that hoists were used, for the jury, by its general verdict and answers to the other questions, found the appellant didn’t see the hoist. As to the court’s ruling on the answer to question 14, the testimony as above outlined shows there was dispute of fact as to how the accident occurred. Whether there was contributory negligence as a matter of law would be a question for the court only where the facts were undisputed or of such nature that different minds could not arrive at different conclusions, and the court could say as a matter of law that plaintiff was guilty of negligence which contributed to his injury. But where' there is a dispute as to the facts from which it must be concluded whether or not the plaintiff was so guilty of negligence, the question is for the jury, and the court, even though it may believe the jury incorrectly decided the question, may not substitute its judgment for that of the jury. (See Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Womochil v. List & Clark Construction Co., 135 Kan. 695, 697, 11 P. 2d 731; Durkin v. Kansas City Public Service Co., 138 Kan. 558, 27 P. 2d 259; Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, and cases cited in the above.) If the court is not satisfied with the answer returned, and a contrary answer would compel a verdict for the defendant, the court is not at liberty to substitute its conclusion for that of the jury, but should grant a new trial. (Ward v. Grant, 138 Kan. 363, 26 P. 2d 279.)
The court erred in setting aside the answer to question 14. However, appellees seek to support the trial court’s ruling in rendering judgment in their favor on the theory that the jury failed to find the negligence relied on by appellant and thereby exonerated the appellees, citing Railway Co. v. Roth, 80 Kan. 752, 104 Pac. 849; Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999; Williams v. Railway Co., 100 Kan. 336, 164 Pac. 260; Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 Pac. 571, and that under such circumstance it is immaterial that a special finding was set aside if those remaining warrant the judgment that was rendered, citing Hurt v. Stout, 105 Kan. 54, 181 Pac. 623. The theory is all right, the question being whether it is applicable here. The allegations of the petition have been summarized and the special questions and answers quoted above. It will be observed that the thirteenth question was:
“If you find for the plaintiff, upon what negligence do you base your verdict? A. Defendant Stevens hoisted the car while plaintiff was on the car.”
In answer to other questions, the jury found that the appellant was kneeling on the running board of his car when the air was turned on, and that appellee Stevens knew it, and that the hoist jerked. Under these circumstances, another rule applies.
In Brown v. Utilities Co., 110 Kan. 283, 203 Pac. 907, it was held:
“A special finding that an injury was caused by one kind of negligence does not preclude reliance on another ground which, according to other findings, the jury has found was established.” (Syl. ¶ 2.)
“It is contended that the finding that the defendant was negligent in running his car at an excessive speed necessarily negatived other charges of negligence, including the failure to keep a lookout for vehicles on the crossing. That would be a fair interpretation if no other findings had been made relative to the negligence of the defendant. It has been determined that a finding that the defendant was negligent in one respect does not preclude reliance on another ground of negligence fairly included in other findings. (Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611; DeHardt v. Railway Co., 100 Kan. 24, 163 Pac. 650.)” (p. 286.)
And see Roberts v. St. Louis & S. F. Rly. Co., 136 Kan. 749, 18 P. 2d 167, where both rules are discussed.
Appellees say that the jury found the hoist gave á jerk and that the accident would not have happened if there had been no jerk, and that the jerk was a nonnegligent intervening cause, there being no evidence that the hoist ever jerked before or that the defendant knew or ought to have known that it ever did or ever would jerk, and that the hoisting of the car without warning did not cause the accident, and some space is devoted to an argument that the doctrine of res ipsa loquitur does not apply. It is not necessary that it be applied. Under Stevens’ own version of the accident, it is'apparent that he knew appellant was in a place of danger when the car was hoisted while appellant was kneeling on the running board of the car, for he says when he discovered him he turned off the air to stop the lift to order appellant off. There was no claim made that when he discovered appellant’s peril he then called to him or warned him in any way. He shut off the air, the hoist jerked and the appellant fell. What caused the accident was the hoisting of the car under circumstances that put appellant in a place of danger, and as to which, under the findings, he was not at any time warned, and the sudden stopping of it without -warning. It is true the testimony of appellee does not show how suddenly the hoist stopped, but Stevens said he stopped it immediately. It is our duty to construe the special findings consistently with the general verdict if that may be done. Webster’s dictionary defines a “jerk” as a “sharply arrested pull, thrust, push . . . motion.” Using that definition in connection with the testimony of Stevens as to immediately stopping the lift, it may well be concluded that the sudden ceasing of upward motion caused a “jerk.” So construed, there is no room for argument as to a nonnegligent intervening cause of the accident.
Appellees insist that although appellant was invited to visit the company’s place of business to avail himself of its services to the public, it did not invite him to enter the place where the accident occurred. The question need not be discussed, for under the evidence he was in no danger there, so far as this action is concerned, until appellees, with knowledge of his situation, started the chain of events which resulted in his injury.
Attention has been directed to that portion of the trial court’s judgment attempting to reserve its ruling on the motion for a new trial. This was beyond its power. (See Fuhs v. Barber, 140 Kan. 373, 36 P. 2d 962, where a somewhat similar situation was involved.)
Appellant argues that the answers to the special questions having been set aside erroneously, the judgment of the lower court should be reversed, and the cause remanded with instructions to render judgment for the plaintiff against the defendants.
In Luse v. Railway Co., 57 Kan. 361, 46 Pac. 768, a verdict was returned for plaintiff, the jury answering special questions. Defendants filed a motion for judgment on the special findings and also a motion for a new trial. Its motion for judgment was sustained and for that reason only its motion for a new trial was denied. Plaintiff appealed and it was held that judgment was rendered erroneously for defendant. In disposing of the question whether judgment should be rendered for the plaintiff or the cause remanded for a new trial, the inconsistency existing between a motion for judgment notwithstanding the general verdict and a motion for a new trial was discussed. In the opinion of the court Martin, J., said:
“The writer does not understand that his associates consider it proper practice for the court to rule upon a defendant’s motion for a new trial after it has already rendered judgment in his favor upon the findings of fact notwithstanding the general verdict; but they say the journal entry shows that the general verdict did not receive the approval of the trial court, and for this reason no judgment ought to be rendered thereon; and that this principle is well established in this state.” (p. 367.)
Allen, J., wrote an opinion expressing his views, and said in part:
“While the jury are the triers of the facts, the judge who presides at the trial also hears the evidence and sees the witnesses. -He has the power, and it has often been declared to be his duty, to set the verdict aside if it is not in accord with the evidence. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, and cases cited.) To direct a judgment on the verdict in this case would be to require the rendition of a judgment against the defendant on a basis which the trial court has said is untruthful.” (p. 369.)
In Butler v. Milner, 101 Kan. 264, 166 Pac. 478, in a somewhat similar circumstance, this court, being in doubt as to what the trial court intended as to approving the verdict of the jury, reversed the cause and remanded it for a new trial unless the trial court should make a finding that it approved the verdict.
In Kansas Wheat Growers Ass’n v. Rinkel, 126 Kan. 733, 271 Pac. 311, it was held:
“Under repeated declarations of this court, the rule is: ‘If the trial judge is dissatisfied with the verdict of the jury, upon weighing the evidence presented, it is his duty to set aside the verdict and grant a new trial.’ (Syl.)
And the opinion cites many of our pertinent decisions.
In Ward v. Grant, 138 Kan. 363, 26 P. 2d 279, the functions and duties of the court with respect to the vérdict of the jury are discussed, it being held that if the court does not approve the verdict, it should grant a new trial.
In the case at bar the trial court did not approve the verdict- of the jury; it tacitly disapproved it by setting aside answers to two special questions apd rendering judgment non obstante veredicto. The fact that it may have erred in setting aside the answers and in rendering an erroneous judgment does not, when that error has been determined, reinstate the original verdict of the jury and give it full force and effect, for it never had the trial court’s approval. Under such situation a new trial should be had.
The judgment of the lower court is reversed, and the cause remanded for a new trial. | [
-16,
120,
88,
-81,
26,
96,
42,
-102,
85,
-89,
-11,
-77,
-83,
-37,
29,
61,
-1,
31,
116,
99,
-97,
-93,
3,
-77,
-46,
-77,
113,
-35,
-76,
74,
124,
127,
76,
32,
-54,
-107,
-26,
8,
69,
92,
-60,
5,
-87,
-24,
89,
16,
38,
88,
-64,
79,
65,
-113,
-61,
42,
24,
-49,
41,
60,
43,
-88,
-64,
112,
-128,
-123,
127,
18,
-77,
36,
-98,
37,
-8,
30,
-103,
-79,
56,
-72,
114,
-90,
-126,
-4,
111,
-85,
0,
102,
102,
16,
9,
-57,
-24,
-72,
14,
-86,
15,
-92,
22,
120,
-117,
1,
-65,
31,
123,
16,
14,
116,
-6,
-43,
93,
32,
19,
-117,
-74,
-31,
-51,
101,
-99,
9,
-21,
-121,
52,
113,
-55,
-74,
92,
69,
122,
-105,
87,
-110
]
|
The opinion of the court was delivered by
Burch, J.:
W. E. Fleming was charged with others with violating the speculative securities act and, on a separate trial, was convicted. He appeals.
Defendant was charged in one count of the information with sale of unregistered shares of corporate stock of the Corgona Gold Mining Company to J. E. Morgan, and in another count with selling the securities without being registered as agent. The evidence disclosed a transaction similar to the one considered in the case of State v. Dobson, ante, p. 445, just decided. Defendant was found guilty on each count, and was separately sentenced on each count. Defendant contends that whatever he did constituted but one transaction, for which he could be subjected to but one punishment. The contention is fallacious.
The transaction with Morgan had separate and distinct characteristics, each of which, independently of the other, was the gravamen of a separate and distinct offense denounced by the statute. The only common element of the two offenses was sale of securities. That was unlawful only because of something else. Illegitimacy of the securities corrupted the transaction in one way. Disqualification of the seller corrupted the. transaction in a different way. It was immaterial to the offense of selling unregistered securities that the agent was or was not registered. It was immaterial to the offense of selling by an unregistered agent that the securities were or were not registered. There was no identity of criminal ingredient and, that being true, defendant was properly prosecuted, convicted, and sentenced for each violation of the law involved in the single sale transaction.
The case of State v. McLaughlin, 121 Kan. 693, 249 Pac. 612, is cited and relied on by defendant. In that case defendant was convicted of being intoxicated in a public place, a public street, and of operating an automobile on a public street while intoxicated. The case presented a situation the converse of the one now under consideration^ There was nothing wrongful in defendant’s being in a public place or in driving an automobile in that place. What made his conduct unlawful was the single fact he was intoxicated. That was the vital incriminating element in the two offenses, and it was held he could be punished but once.
Other questions presented are disposed of- by the decision in the case of State v. Dobson, referred to above.
The judgment of the district court is affirmed. | [
112,
106,
-111,
62,
26,
96,
58,
-6,
80,
-83,
-76,
115,
-55,
-36,
0,
113,
-29,
121,
116,
96,
-44,
-77,
23,
-53,
-34,
-13,
-40,
-123,
-79,
95,
-27,
-42,
77,
48,
-62,
117,
-90,
-54,
67,
-36,
-118,
4,
-118,
104,
-39,
-32,
48,
75,
17,
74,
97,
-98,
-29,
44,
28,
-54,
105,
46,
107,
-67,
-48,
-7,
-103,
-121,
111,
22,
3,
5,
-104,
69,
-40,
46,
-100,
-77,
1,
-23,
115,
-74,
-58,
-12,
111,
-119,
-116,
34,
106,
-95,
21,
-89,
-96,
-24,
46,
-1,
15,
-89,
-112,
80,
1,
40,
-100,
-99,
126,
16,
38,
-10,
-6,
29,
89,
125,
7,
-49,
-42,
-93,
77,
118,
-36,
91,
-13,
-91,
17,
100,
-50,
34,
76,
21,
122,
-101,
-113,
-43
]
|
The opinion of the court was delivered by
Johnston, C. J.:
This case was tried by the court without a jury. Findings and judgment were in favor of the plaintiff. Defendants have appealed.
Plaintiff in his second petition alleged that he was the owner of a filling station, which was situated in Paola at the intersection of Peoria street and highway No. 7. Highway No. 7 was a main street running north and south. Peoria street ended half a mile beyond the intersection on the east. The Cuthbertsons were in the milk business and delivered milk twice a day.
At the time of the collision Doctor Morrison was driving a Ford car south on highway No. 7, and the Cuthbertsons were driving a milk truck which was then going in a westerly direction. The truck of Cuthbertsons collided with the automobile of the doctor and threw it against the filling station of Theno, knocking over a gas pump, tearing down a part of the building and causing a fire which consumed a part of the property. The loss of property and business was alleged to be $1,592, for which Theno asked judgment.
There was a further allegation by the plaintiff that the plant was worth $2,000 before the fire, and afterward it was worth only $1,000. It was alleged that the Cuthbertson truck was driven at an excessive speed; that there was a failure to keep a lookout ahead for others in the intersection; a failure to check speed when danger was seen; and because of the gross negligence $1,000 punitive damages was asked. Morrison, it was alleged, was traveling at too great a speed, in violation of law, dangerous to business and property, and failed to keep a lookout ahead for other travelers.
The answer of the Cuthbertsons was first a general denial, and they set up an ordinance which limited drivers to fifteen miles an hour on business streets and twenty miles on residence streets at intersections. They alleged the negligence of Doctor Morrison in failing to drive carefully or to slow down when danger was seen was the cause of whatever damage plaintiff sustained.
Evidence was presented by the parties, upon which the court made the following findings and judgment:
“The court will find from the evidence in this case that the defendant, Doctor Morrison, traveling south on old highway No. 7, was in the intersection of this highway No. 7 and Peoria street ahead of the truck which was operated by the defendant, Cuthbertson Brothers, and had the right of way therein. From the exhibits and from the testimony the court finds that the defendant Morrison was struck by the truck of the defendant Cuthbertson Brothers, and that the defendant Morrison was exercising all of the care and all of the skill it was possible for him to exercise under the circumstances.
“The fact that the defendant Morrison’s car was struck near the rear end on the left side with such force and violence as to cause the defendant Morrison’s car to whirl about to the right and to be whirled a distance of approximately 40 or 50 feet, and to be whirled with such violence as to shear off one of the pumps of the filling station of the plaintiff and to knock over one of the brick and cement pillars supporting the portico of the filling station, convinces the court that the speed of the truck coming from the east and out of this secondary highway was coming at an excessive rate of speed. I desire to make the observation that any vehicle going at the rate of two miles per hour can be stopped approximately within a turn of the wheel. I might make the further observation with reference to the testimony of the defendant, Mr. Cuthbertson, that if the defendant Morrison’s car was proceeding southward at the rate of 40 miles an hour, he would be going nearly 59 feet per second, and if he didn’t observe the. danger and the skidding until within five feet of his car, then he only had one-half of a second in which to have thrown on the brakes and thrown out the clutch to have avoided the danger.
“The court finds from the evidence, and a preponderance of the evidence, that the damage sustained by the plaintiff was caused by the carelessness and negligence of the defendant, Cuthbertson Brothers, and finds from a preponderance of the evidence that the extent and amount of damage sustained ... is $1,250.”
As to the speed of the Cuthbertson truck at the intersection, there was the testimony of Mrs. Jennie J. Meeker, who lived within 150 feet of the intersection and saw the approach of the truck and the collision. She said the Cuthbertson truck approached the crossing at a speed of 20 miles per hour and did not stop until after the collision. The truck struck the back wheel and fender of the Morrison car and threw it about 60 feet against the Theno filling station. She was used to cars and understood the speed of traveling cars reasonably well.
Another witness, Doctor Phillips, who lived near the intersection, was called by plaintiff and testified that he lived 100 feet from the intersection and had seen the Cuthbertson truck passing many times, and that they usually crossed the intersection at a rate of twenty-five miles per hour, but he did not see the truck on the evening of the collision.
The testimony of Doctor Phillips was given over the objection of the defendant and is one of the' principal points assigned as error. It is conceded that the general rule is that acts of negligence on other occasions than the one in question are, with few exceptions, inadmissible. The exceptions relate to cases where there are no eyewitnesses to the occurrence or the absence of direct proof on the question. (Fike v. Railway Co., 90 Kan. 409, 133 Pac. 871; Angell v. Railway Co., 97 Kan. 688, 156 Pac. 763; Barshfield v. Vucklich, 108 Kan. 761, 197 Pac. 205.)
It is not clear that the present case falls within the exceptions to the general rule. There were eyewitnesses to the collision and direct proof of the speed at which the truck was traveling. There is a measure of safety in the general rule which the court is inclined to enforce. The special findings of the court make it reasonably clear that it did not result in any prejudice to the defendants. These findings, which are set forth in the opinion, show that the court did not rely on the presumptive evidence to which objection was made. The proof on which the court rested its judgment was sufficient to uphold the findings and judgment rendered, and it is plain that while the court admitted the evidence it did not give it weight or consideration in its judgment.
Only prejudicial error affords grounds for a reversal of a judgment, and we conclude that if the testimony was improperly admitted it did not operate to the prejudice of the Cuthbertson Brothers.
There is a contention that under the testimony Doctor Morrison was improperly held to be without negligence, and the Cuthbertsons argue that the court did not give due weight to the evidence. As often happens in cases like this one, there was conflicting testimony, and upon that Morrison was held to be free from negligence — the negligence which caused the loss. The driver of the Cuthbertson truck testified that he had slowed down and was only traveling at the rate of two miles an hour at the time of the collision. The court in its findings referred to that testimony and showed that if that was true he might have stopped in a moment and avoided the accident. On the conflicting evidence and the physical facts the court had testimony supporting its finding that the Cuthbertson truck was driven at an excessive speed and was responsible for the damage sustained' by plaintiff.
There was testimony, too, that the Cuthbertson who was driving the truck admitted after the collision that the result was due to his fault.
Finding that there was sufficient testimony to support the finding and judgment of the court, we conclude that the judgment should be and it is affirmed. | [
-16,
124,
-16,
-115,
58,
96,
58,
-37,
81,
-79,
52,
-13,
-85,
-53,
28,
105,
-18,
61,
-43,
43,
-11,
-77,
19,
-30,
-46,
-13,
51,
-51,
-79,
-54,
-12,
-11,
93,
32,
10,
-99,
-90,
72,
-59,
84,
-52,
-75,
105,
-28,
89,
-126,
-76,
58,
20,
71,
53,
-114,
-61,
46,
24,
-61,
41,
40,
121,
47,
-63,
-16,
-84,
-115,
79,
22,
49,
96,
-98,
-91,
-8,
30,
-103,
49,
0,
-72,
50,
-90,
-126,
-12,
109,
-103,
8,
-90,
102,
0,
21,
-21,
-24,
-104,
47,
-2,
-97,
-91,
-104,
89,
-71,
34,
-66,
29,
120,
86,
26,
106,
-1,
85,
91,
104,
-107,
-117,
-80,
-79,
-49,
56,
-108,
25,
-21,
-121,
50,
113,
-55,
-4,
92,
69,
122,
31,
95,
-78
]
|
The opinion of the court was delivered by
Burch, J.:
The action was one by a landowner to recover damages for trespass. A demurrer was sustained to a portion of the answer, and defendant appeals.
Plaintiff resides in Bristol, Term., and owns land in Norton county, Kansas. Leonard Lovejoy, of Almena, looked after some of plaintiff’s affairs locally. Defendant was a road-building contractor, and the petition alleged defendant entered, without privilege to do so, on a tract of plaintiff’s land, opened a gravel pit, and removed gravel and sand.
The answer pleaded several defenses. One defense was that defendant entered and appropriated the gravel and sand pursuant to a written lease to him, executed by Lovejoy on behalf of plaintiff. A letter from Lovejoy to plaintiff and plaintiff’s reply were pleaded as conferring authority on Lovejoy to execute the lease. The letters were also pleaded as showing a contract between plaintiff and defendant, pursuant to which defendant acted. A motion to strike from the answer the defenses based on the correspondence was treated as a demurrer, and, as indicated, the demurrer was sustained.
The letters follow:
Lovejoy to Kemble, December 9, 1931:
“There is a party here with a contract for graveling a stretch of highway that may want to buy the gravel rights from you on the Lewis forty. If they decide they want to use this pit, they will give $100 per year for two years, and will agree not to disturb any of the tilled land. They have made'tests and find plenty of gravel, but will have to remove from eight to fourteen feet of dirt' off the vein before it is available. This will make them move at least a yard of dirt for each yard of gravel they get, or you could get more rental. They will have to have right of entry and exit, but this will not disturb the tilled land, and it may not be necessary to even disturb the grass land, as the gravel seems to be mostly in the bed of that dry creek, but it might be necessary to strip off some of the grass if the supply in the creek should not be sufficient for their needs. If they conclude they can use this, they will probably wire you before this letter arrives, but can probably wait until you get it for a reply. They state if the supply shows sufficient they could probably go ahead longer with this contract at the same rate, but that would be a matter for later consideration.
“If they decide they want this I will send you a night letter, and you can reply by wire as soon as this letter is at hand.”
Kemble to Lovejoy, December 12, 1931:
“With reference to the sandpit, I will be very glad to rent this on the basis you have named, but of course I would expect to draw up a contract protecting me and my rights in the matter. If they have a contract of their own, will you please pass on it and send it to me when convenient?”
On December 16, 1931, Lovejoy executed a lease of the untilled land for production of sand and gravel for two years for $125 per year, payable in advance. The terms of the lease are not presently material. The lease was signed as follows:
“D. G. Hansen, Second Party.
W. H. Kemble, by Leonard Lovejoy, First Party.”
It is quite manifest Lovejoy was not authorized to execute a written lease. Kemble said he would expect to draft his own lease. Whether he would sign it or would send it to Lovejoy to be signed was not stated. If the proposed lessee had a form of his own, Love-joy was to pass on it, and forward it to Kemble. Whether Kemble would then sign it or would send it to Lovejoy to be signed was not stated. Whether Kemble drafted the instrument or accepted a submitted form, authority was not conferred on Lovejoy to execute the instrument on behalf of Kemble.
Lovejoy did not transmit to Kemble an offer by Hansen. While some terms had been discussed between Lovejoy and Hansen, Hansen had not even decided whether he desired to lease the land.
Kemble made no offer to be transmitted to Hansen by Lovejoy. Kemble would be glad to lease the land on the basis of the terms spoken of by Lovejoy, but something more was necessary. The condition was not simply that a written memorial should be made of what had been discussed. Kemble made it clear that if Hansen decided he desired to lease the land, the letting would be on terms protecting Kemble and his rights, incorporated in a writing which Kemble himself would prepare. Kemble’s letter furnished no basis for an inference he would accept a form lease submitted by Hansen and passed on by Lovejoy, whatever its terms. If there was to be a contract the provisions would be those contained in an instrument Kemble would draw.
“The matter may be put in this way: If the parties indicate that the expected document is to be a mere ‘memorial’ of operative facts already existing, its nonexistence does not prevent those facts from having their normal legal operation. What that operation is must be determined largely by oral testimony, or by preliminary or only partially complete writings. If the parties indicate that the expected document is to be the exclusive operative consummation of the negotiation, their preceding communications will not be operative as offer or acceptance.” (Restatement, Contracts, § 26, Comment b.)
In this instance, whether there was offer and acceptance depended on the two letters. Oral testimony could not aid them. There was no contract independently of the instrument Lovejoy signed, and he was not authorized to bind Kemble by that instrument.
The judgment of the district court is affirmed. | [
116,
110,
-101,
13,
-118,
96,
40,
-100,
105,
-79,
119,
87,
-83,
-61,
0,
113,
-14,
57,
117,
122,
71,
-74,
23,
-30,
-78,
-13,
-7,
84,
-71,
95,
-20,
87,
78,
48,
-62,
21,
-26,
-118,
-59,
88,
-122,
-114,
-101,
77,
-39,
-56,
48,
59,
114,
79,
113,
-122,
-14,
44,
24,
67,
-120,
46,
107,
53,
-38,
-7,
-70,
21,
93,
22,
1,
-122,
-100,
3,
88,
11,
-112,
121,
8,
-20,
115,
-74,
-106,
116,
11,
-103,
8,
-10,
99,
33,
-59,
-17,
-20,
-71,
14,
-14,
-115,
-90,
-48,
72,
11,
76,
-65,
-99,
124,
84,
39,
-6,
-22,
12,
95,
109,
7,
-53,
-46,
-95,
-113,
-76,
-106,
-127,
-53,
47,
33,
101,
-51,
98,
92,
71,
112,
-101,
31,
-104
]
|
The opinion of the court was delivered by
Wells, J.:
The plaintiff in error, as plaintiff in the district court, brought her action against the Leavenworth Light and Heating Company to recover the sum of $1000 damages alleged to have been sustained by her by reason of a fire caused by the negligence of the company. The defendant denied generally, and plead, contributory negligence, to which a general denial was filed in reply. The case was tried to the court and a jury, and upon the conclusion of the evidence each party asked that a verdict be directed in its favor. Thereupon the court refused the request of the plaintiff and directed the jury to return a verdict for the defendant, which was done, and judgment rendered accordingly. To reverse this, the case is brought to this court.
In considering this case we shall assume that each party having requested the court to instruct the jury to direct a verdict in its favor, and neither party demading that the facts be submitted to the jury, the verdict as directed has the same force and effect as if it had been found by the jury in the usual way, although upon this proposition the writer of this opinion has some doubts, and the only question is, Does the evidence sustain the verdict?
It seems to us reasonably well established by the evidence that the damage was caused by the negligence of the company, and there was no serious conflict of the evidence upon this question. We do not think it material whether Walker was superintendent or electrician; he was the person who was representing both companies at the respective times they had charge of the plant. Nor is it important to decide whether this action should be properly defined as an action ex contractu or .an action ex delicto. When companies or persons engage in a dangerous business they impliedly contract with their customers and the public that they will use such appliances and care as are known to the business to protect the persons and property of their customers and the public from harm, and no matter how many hands the business may pass through, each one succeeds to the same duty and obligations. As indicated by the brief of the defendant in error, the district court seems to have been of the opinion that the action was based upon the contract made at the time the lights were first furnished the plaintiff by the defendant company, which was a different entity from the one sued, and that upon this basis this action could not be sustained. But we do not so understand the pleadings. We think that under our code they are sufficient to raise the question of the negligence of the defendant. The court should have directed a verdict for the plaintiff and rendered its judgment accordingly.
The judgment of the district court is reversed and said court directed to award a new trial. | [
-112,
126,
-40,
-116,
10,
96,
58,
-38,
85,
-95,
-89,
-13,
-19,
-63,
-99,
109,
-41,
125,
-47,
43,
81,
-93,
5,
67,
-42,
-109,
83,
-59,
-79,
78,
-12,
-33,
76,
32,
-54,
-107,
-26,
-62,
-59,
92,
-62,
21,
9,
-32,
-39,
10,
36,
50,
114,
67,
97,
-100,
-5,
42,
25,
-57,
-19,
60,
105,
-91,
80,
-71,
-118,
13,
125,
21,
-127,
6,
-98,
71,
-22,
38,
-102,
49,
0,
-20,
115,
-74,
-58,
-68,
69,
-85,
0,
102,
99,
35,
5,
-25,
-22,
-104,
46,
31,
-115,
-90,
-80,
56,
43,
11,
-105,
-99,
124,
48,
-121,
126,
-25,
-99,
95,
108,
17,
-113,
-76,
-13,
-49,
116,
-104,
-99,
-18,
-126,
48,
117,
-41,
-88,
92,
70,
58,
95,
78,
-98
]
|
The opinion of the court was delivered by
McElroy, J. :
The defendant in error brought this action against the city of Atchison to recover damages alleged to have been sustained by him in falling into a pit or opening in one of the alleys of the city.
On December 3, 1894, he was passing along on the east side of South Fourth street, in the city, at a point about 150 feet from Commercial street, the principal business street of the city, about nine o’clock in the evening, and, having occasion to urinate, he passed into an alley for that purpose. The alley was paved and was of frequent use. At a point in the alley about ten or fifteen feet from- the street, the plaintiff stepped into an opening about four feet in length, twenty inches in width, and seven feet deep, which was walled with rough stone, with stone in the bottom. He was by the fall for a time rendered unconscious, bruised and injured, and had his hip-bone broken. He presented a verified claim for damages to the city council, and afterward filed his . petition to recover the same.
A motion to make the petition more definite and certain was sustained, the petition was amended, and' thereafter a motion to make the amended petition more definite and certain was overruled. The defendant filed an answer to the amended petition, in substance: (1) A general denial; (2) admitting that the defendant was a municipal corporation ; (3) alleging contributory negligence on the part of the plaintiff; and (4) alleging that at the time the injury occurred the plaintiff was intoxicated, that he was violating an ordinance of the city prohibiting an in toxicated person from appearing on the street, and also that he was violating a certain other ordinance prohibiting a person from an indecent exposure of his person. To this a general denial was filed by way of reply. A trial was had and the jury returned answers to special questions submitted and a general verdict for the plaintiff. The defendant moved the court (1) to set aside certain of the special findings, (2) for judgment upon the special findings, and (3) for a new trial, which motions were overruled. The defendant, as plaintiff in error, presents the case to this court for review and alleges error in the proceedings of the trial court.
The plaintiff in error contends that the court erred in admitting incompetent testimony. Herein complaint is made, first, that Doctor Wilson was permitted to testify as follows :
“ Ques. What, in your judgment, will be the effect of that injury as to making that leg weaker than it was, and whether he will ever recover the natural strength of that leg? Ans. I don’t think he will ever have as good use of that limb as formerly — natural strength.”
The objection was upon the sole ground that the question was leading. The objection did not challenge the competency of the testimony. The question was not leading, and the objection was properly overruled. It is also complained that the plaintiff, Acheson, was permitted to testify :
‘‘Ques. Mr. Acheson, I will ask you if you ever liave been able to carry on your farming, transact business necessary to carry on the farm, since this injury? Ans. I have not carried on any farming since.
“ Q. You may state to the court and jury what the value of your time and services as lost since this injury has been to you. A. My time to me is worth $500 a year on a farm.”
The plaintiff’s occupation at the time he received the injury was that of a farmer, buying, feeding, selling stock, and operating a blacksmith and repair shop. He superintended and carried on farming, employing such help as occasion required, and worked' in the shop. The- witness had testified fully concerning the character .of work performed by him previous to his injury. It was improper for the witness, under the circumstances, to testify what his time was worth to him on a farm ; the testimony should have been directed to what his time was reasonably worth. However, the whole scope of the witness’s testimony upon this subject tends to support the true measure of damages. The special findings of the jury show that they did not accept the plaintiff’s statement of the value of his time. The jury found that the plaintiff carried on, managed and superintended his farm, and repaired plows and machinery in his shop ; that his time and services were worth $340 a year, and that by reason of his injuries he was permanently disabled from carrying on his usual occupation. It does not appear that defendant was prejudiced by the error of court in this respect.
It is further complained that Ed. Phillips was permitted to testify:
“Ques. State what his condition was during the time you visited him, while he was confined to his bed, especially as to his appearing to be suffering much pain and as to complaint made by him in that re spect. A. He complained of suffering a good deal in that hip that was hurt.”
The witness was present much of the time during the illness of the plaintiff at his home, assisted some in nursing and in faking care of him, and observed his appearance and apparent condition ; it was therefore competent for the witness to describe his appearance as he did, and in that connection to state of what, if anything, he complained. (A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 14 Pac. 237.)
Complaint is made that the court erred in excluding competent testimony ; and herein, that the court improperly refused to require the plaintiff, Acheson, to answer the following questions :
“ Ques. Did you stop on the road to the court-house anywhere?
“ Q,.. Up to the time that you got off the train until you went to Mr. Shaw’s place of business, state whether or not you visited any saloons.
“ Q. Up to the time that you went to that drugstore, state whether you had taken any drinks of intoxicating liquor.
“ Q,. Did you buy anything there, at the drug-store?
“ Q,. State whether or not you bought any intoxicating liquors there.
“ Q,. State whether or not at that place you bought a bottle of whisky.
“ Q,. State whether or not you drank any liquor at John Bowen’s drug-store that.evening.
“Q. State whether or not you drank any intoxicating liquor at Turner hall at that time.
“ Q. What kind of a place was it, Turner hall?
“ Q,. Was it a saloon?
. “ Q. Can you state what business he was carrying on?
“ Q,. Was the mah’s'name Devoto — saloon-keeper?
“ Q. Is it not a fact that Devoto at that time kept a saloon?
“ Q,. What did you stop at Devoto’s for?
“ Q. Did you stop at George Best’s ou your way to the depot, a saloon?
“Q.‘ Did you stop at Devoto’s, on. the corner, another place of Devoto’s; another place Devoto runs, on the corner of Main and Third streets, on your way to the depot?
“ Q. Did you stop at any other place after you left Ayers’s and before you got to the depot?
“ Q. State whether or not at the time you entered the alley you had just previously to that drank intoxicating liquors.
‘‘Q. Just prior or during the evening, from the time you ate your supper — from the time you started up town from the depot the first time, up to the time you went into that alley — how many drinks of intoxicating liquor had you taken ? ”
And that the court refused to permit Sullivan, a deputy street commissioner, who assisted in taking the plaintiff out of the hole, to answer the following questions:
“ Ques. What was his appearance as to being under the influence of liquor?
“Q. State whether or not, after you got him out, he was in the light, he appeared to be under the influence of liquor or not.”
That the court struck out, on motion of plaintiff, the following testimony of Peter Ennis :
‘ ‘ Ques. Was there any hesitancy or thickness in his speech? A. Plis tongue was thick, and his talk was like the experience I have had with people drinking — brought to the station that had been drinking some.”
That the court refused to allow Dr. W. H. Bogle, a physician who examined the plaintiff the next morning after the injury, to answer the following questions :
“ Ques. What did he say, if anything, in regard as to. how he was hurt, or whether he was hurt?
“Q,. Doctor, what if anything, did Mr. Acheson say to you that morning in reference to how he became injured?
“ Q. What did you find in making this examination?
“Q,. What did he say, if anything, as to his condition at the time he was injured?”
That the court erred in refusing to permit Doctor Campbell to answer the following question:
“ Q,ues. Suppose during the first three months of the confinement of the'patient the attending surgeon would remove the splint for the purpose of permitting the bones to rub against each other, and would put the splint back again, you found the condition you now find, would you say the present condition is the result of proper or improper treatment?”
And that the court erred in refusing' to permit Thomas Collier, a witness who saw the plaintiff shortly after the accident, to answer the following question :
“Ques. From the talk you heard, if any you heard, from his general appearance and action, what was his condition as to whether he was under the influence of liquor at that time? ”
The questions propounded to the plaintiff, Sullivan, Ennis and Collier appear to have been improper upon cross-examination. However, the defendant afterward was perxnitted to examine each of the witnesses fully upon these matters, so that the error, if any, was harmless. The offered testimony of Doctor Bogle was competent and should have been admitted. It appears that by permission of the court, before the case was finally submitted, the witness was recalled by the plaintiff, the objection withdrawn, the offer made that the defendant might examine him fully upon the matters excluded, without objection, bxxt the defendant declined further to examine the witness. The defendant was therefore not deprived of any right by the ruling of the court and the error was immaterial. The testimony of Doctor Campbell was properly excluded. The hypothetical question was not sufficiently comprehensive to be of any benefit to the jury. The contention of the plaintiff in error upon the exclusion of competent testimony is very technical and without substantial merit.
It is contended that the court erred in refusing to submit to the jury instructions' requested. At the proper .time the defendant submitted and requested the court to give to the jury fifty-six special instructions, all of which were refused, but some of which, in substance, were given, so far. as applicable, in the general charge of the court to the jury. The grfeater portion Were not applicable to the issues or the evidence in the case and were properly refused. A person is not barred from a recovery for injuries sustained by reason of an unnatural dangerous obstruction in a street or alley by the fact that the injury occurred while he was violating an ordinance, unless the injury was the proximate result of the violation. (Phila., Wil. and Balt. R. Co. v. Phila. and Havre de Grace Steam Towboat Co., 64 U. S. 209; Mohney v. Cook, 26 Pa. St. 342.) The question whether or not the plaintiff was violating any ordinance was left to the jury by the instructions. The instructions requested by the defendant ignore the fact that the use of part of an alley for private purposes is not authorized by law; that the defendant is liable for permitting such unathorized use when damage results therefrom ; and that notice to the city of the unlawful use of its streets and alleys is presumed when continued for a long period of time.
This alley was paved by the city years prior to the time of the injury; the hole was twenty inches wide, four feet long, and seven or eight feet deep, situated in the alley, about ten to fifteen feet east of Fourth street, placed there for the convenience of property owners. The excavation was without guard, railing, barrier or door from some time in 1893, to December 4, 1894, and was left uncovered and open much of the time for six to eight weeks prior to the date of plaintiff’s injuries. One of the policemen of the city had fallen into the hole prior to the time plaintiff was injured. The court properly instructed the jury upon the questions of notice to the city, the burden of proof, and contributory negligence.' The existence and the dangerous condition of the hole were known to the police officers, night jailer, city marshal, and the city employees having charge of the streets and alleys. It is the duty of the city to keep its streets and alleys in a reasonably safe condition, free from unnatural, dangerous obstructions. (Smith v. City of Leavenworth, 15 Kan. 81; Jansen v. City of Atchison, 16 id. 358; Gould v. City of Topeka, 32 id. 485, 4 Pac. 822; Commissioners of Shawnee Co. v. City of Topeka, 39 id. 197, 18 Pac. 161; City of Topeka v. Sherwood, 39 id. 690, 18 Pac. 933; City of Kinsley v. Morse, 40 id. 578, 20 Pac. 217; Kansas City v. Manning, 50 id. 373, 31 Pac. 1104.)
The contention is made that the court erred in instructing the jury “that the burden of proving the right to recover in this case rests upon the plaintiff, and he must establish such right by a preponderance of evidence ; that is, he must show negligence on the part of the city in regard to the hole in the alley where it is claimed that the plaintiff was injured, and that in consequence of such negligence he has sustained injury and damages.”
The contention is that the plaintiff in order to re cover must .not only show ^negligence on the part of the city, but he must show that the city had knowledge of the particular defect, or that it had existed a sufficient length of time to justify the jury in inferring that the city had notice ; that he must show a knowledge on the part of the city of the existence of the defect which caused the injury, and that the instruction is not full and comprehensive. If the instruction complained of was the only one given the contention would be meritorious, but the court in its charge to the jury fully covered all questions of which complaint is made. Of course the instruction as given, standing alone, is incomplete, but, when read in connection with the other instructions upon the same question, covers all the defects urged against it.
The court properly overruled the demurrer, to the evidence. The evidence tends to prove every fact alleged in plaintiff’s petition necessary to a recovery. The plaintiff in error fails to point out any particular in which the evidence fails to establish prima facie a cause of action, and we are unable to discover any such failure. We conclude therefore that the court properly overruled the demurrer to the evidence.
The defendant at the trial requested the court to require the jury to make its answers to certain special questions more specific, definite, and certain. The questions and answers of which complaint is made are:
“ Q,ues. 25. On December 3, 1894, previous to five p. M. of said day, was said opening or area covered with some three boards or planks? A. No, we do not so consider it.”'
“ Q. 27. Late in the afternoon or evening of December 3, 1894, did one Busenbak deliver a wagon-load of cobs to said building next north of the alley ? A. No, we do not consider there were any cobs delivered there.”
There was evidence offered to show that a load of cobs was delivered and placed in the excavation on the evening preceding the injury to plaintiff. The party who claimed to have hauled the load of cob,s testified that he placed it in the excavation, and thought that it practically filled it. If this testimony was true, it would have been apparently impossible for plaintiff to have been injured as he was. The fact that the plaintiff was injured, that there was nothing to break his fall, nothing to prevent his injury, strongly tended to show that the cob hauler was mistaken in his dates, and the jury probably so regarded his testimony. The physical facts were in direct conflict with the verbal statements of the witness with reference to this transaction. The questions were sufficiently answered for all practical purposes. Error is also claimed in that the court did not require the jury to answer other special questions submitted. If the answers above set out are sufficient and true, such others questions did not require answers.
After the jury had retired to consider its verdict, the foreman sent a communication to the court in writing, as follows: “Hon. Judge Webb: Can the jury answer any of the special questions prepared by the attorneys in any other way than by yes or no ? ” To which the court replied in writing as follows : “The jury can and should answer all the questions according to the facts as they may believe them to be from the evidence. These answers may be by yes or no, or more fully, or in any way so as to state the facts as shown by the evidence. Please preserve this slip and return it with your verdict.” There is nothing in the conduct of the court in this regard which would necessarily prejudice the rights of the defend ant, nor is there any showing that defendant was prejudiced thereby.
The contention is also made that the court erred in overruling the motion for judgment upon the findings of the jury for the defendant. Both parties submitted many special questions to the jury, more than 100 of which were answered, and not one of them is inconsistent with the general verdict. The plaintiff was entitled upon the special findings to recover; the amount of his recovery was for the jury to determine. The excavation was in a paved alley, apparently with the consent of the city, known to many of the city officers, permitted to exist for a long period of time, frequently in a dangerous condition ; the plaintiff was, under the findings of. the jury, performing no act which was unlawful or against public decency or morals, but was acting as a prudent, cautious man when he fell into the excavation and received permanent injury, being made a cripple for life. The findings of the jury upon all disputed questions, all questions submitted to it, are consistent with the general verdict.
The court properly overruled the motion of the defendant for judgment upon the special findings. The motion for a new trial was properly overruled.
The judgment is affirmed. | [
-16,
104,
-79,
-81,
90,
64,
10,
-54,
9,
-111,
-75,
127,
-83,
-55,
13,
99,
-5,
127,
84,
99,
-9,
-89,
7,
99,
-46,
-45,
103,
-43,
-79,
124,
-10,
119,
77,
48,
-54,
-107,
-90,
74,
-61,
94,
-122,
-91,
-119,
-64,
-39,
8,
36,
123,
1,
15,
113,
31,
-13,
43,
24,
-53,
-24,
40,
-53,
61,
-47,
-15,
-36,
21,
127,
4,
-95,
6,
-100,
7,
92,
58,
-40,
49,
80,
-72,
114,
-74,
-121,
116,
45,
-101,
12,
100,
98,
33,
29,
-81,
-8,
-104,
47,
62,
-115,
-89,
-73,
1,
-23,
32,
-74,
-39,
117,
84,
6,
-8,
-4,
21,
25,
44,
11,
-117,
-108,
-79,
-49,
48,
-112,
-47,
-29,
39,
35,
97,
-52,
-94,
92,
70,
114,
-109,
-113,
-8
]
|
The opinion of the court was delivered by
Schoonover, J.:
Consideration of this case is challenged by motion to dismiss, for the reason that the summons in error was not served as required by law. A summons in error was issued and served upon the defendant in error by reading it to him. No copy of the summons was left with him, and no waiver of summons or entry of general appearance has been made. Upon the hearing of the case, the plaintiff in error attempts to cure the defect by filing the following affidavit (omitting title) :
“Application and affidavit to supplement the sheriff’s return upon the summons in error.
“Comes now Mike Shrugrue, sheriff of Clark county, in the state of Kansas, and being first duly sworn, deposes and says that he is now, and has been for more than one year last past, the 'duly elected, qualified and acting sheriff of Clark county, Kansas; and that he is the sheriff that served the summons in error in the above entitled-action upon the above-named defendant in error, George Theis, jr., and that he served said writ upon said Theis by reading said summons in error to said Theis, as shown by his original return on said writ; and the affiant further shows that at the time of the service aforesaid, after the affiant had read said writ to said Theis, that the said Theis then and there took said writ into his own hands and read it and returned it to the affiant without demanding a copy thereof; that subsequently, when this affiant’s attention was called to the fact that he had not given said Theis a copy of the writ, that affiant spoke to said Theis about it, and he, the said Theis, said he would fix it up, or fix it all right, or words to that effect; and further affiant saith not. So help me God.
Mike Shrugrue.
‘ ‘ Subscribed and sworn to before me at my office in Ashland, in Clark county, Kansas, this 27th day of September, a. d. 1899.
J. M. Grasham, Notary Public.
(My commission expires October 4,1902.)”
This is not sufficient to give this court jurisdiction. Section 13, chapter 83, General Statutes of 1897 (Gen. Stat. 1899, § 4837), requires a summons in error tobe served “ as in the commencement of an action.” The statute regarding the service of the summons in the commencement of the action (Gen. Stat. 1897, ch. 95, § 63; Gen. Stat. 1899, §4310) requires service to be made “by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence.” Section 13, supra, provides that “ service on the attorney of record in the original action shall be sufficient,” but it must be in the manner prescribed by section 63, supra. The objection is technical, but the law is explicit and we must follow it. More than sixty days in excess of one year having elapsed since the rendition of the judgment of the district court, it is now too late for this court to acquire jurisdiction, over the objection of the defendant in error.
The motion to dismiss is sustained. | [
-80,
-20,
-24,
29,
-86,
-31,
-94,
-118,
-47,
-127,
39,
115,
-19,
-118,
0,
127,
-23,
63,
-79,
90,
-57,
-77,
14,
65,
114,
-78,
-47,
85,
-77,
73,
-20,
-12,
76,
-80,
-22,
-43,
70,
106,
-123,
-36,
-50,
3,
9,
-28,
-15,
72,
32,
121,
2,
11,
49,
-98,
-14,
43,
62,
-61,
-23,
40,
-55,
-99,
-62,
-16,
-99,
21,
95,
4,
33,
22,
-102,
7,
88,
46,
-104,
57,
3,
-8,
114,
-74,
-122,
-12,
11,
57,
41,
102,
98,
97,
29,
-17,
-8,
-72,
46,
59,
29,
-90,
-111,
8,
107,
41,
-106,
-99,
109,
48,
15,
-12,
-19,
12,
25,
44,
2,
-53,
-110,
-75,
-97,
36,
-116,
75,
-17,
2,
48,
113,
-51,
-12,
92,
71,
49,
-101,
-114,
-34
]
|
The opinion of the court was delivered by
Schoonover, J.:
This action was commenced by William Gelino, defendant in error, in the' district court of Sumner county, against the board of education of the city of Wellington and A. R. Elliott, contractor, to enforce a mechanic’s lien against a school building and the real estate on which it is situated.
The petition is too long to be set forth in this opinion. It alleges that Elliott entered into a written contract with the board of education to erect a schoolhouse ; that plaintiff below, under an oral agreement with A. R. Elliott, contractor, furnished material to Elliott, as contractor, which was accepted by him and the board of education and used in the erection of the building ; that the last item of material was furnished on the 16th day of October, 1891; and that on the 11th day of February, 1892, plaintiff filed his duly verified statement for a mechanic’s lien.
The material part of the verified statement filed by plaintiff below in the office of the district clerk and attached to plaintiff’s petition is as follows :
“William Gelino, being by me first duly sworn, deposes and says, that he is the claimant filing this statement for lien; that under and in pursuance of a contract therefor, made by the said claimant herein with A. R. Elliott, the contractor with the owner of the lands hereinafter described, material to the amount of $363.86 was furnished by said claimant between the 8th day of December, 1890, and the 16th day of October, 1891, in the building of a schoolhouse on the following-described lands, situated in Sumner county, in the state of Kansas, to wit: Block 65 in the original town (now city) of Wellington.
“That claimant has received payment thereon in the amount of $59.62.
“That said building was completed on or about the 1st day of January, 1892 ; that exhibit hereto attached, marked ‘A’ and made a part hereof, contains as nearly as practicable a statement of the items of m aterials so furnished; that said sum of $204.24 remains wholly unpaid thereon, and this statement is made and filed to secure a lien therefor on said lands, as in such cases made and provided by law. Wm. Gelino.”
The account attached to the statement reads:
“ Wellington, Kan., April 9, 1891.
“A. R. Elliott, contractor, in account with William Gelino.”
Then follows an itemized account running from December 8, 1890, to October 16, 1891, which is the date of the last item.
To this petition the board of education filed a demurrer alleging
“ That said petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against said defendant, but does show that the plaintiff has no cause of action against it.”
The demurrer was argued to the court and overruled. The defendant elected to stand upon the demurrer, and brings the case here for review. The petition shows upon its face that Gelino, plaintiff below, was a subcontractor; and that his statement of lien was not filed within sixty days from the date of the last item of material furnished.
The lien in this case is filed and its enforcement based on section 3 of chapter 168, Laws of 1889 (Gen. Stat. 1897, ch. 96, §24; Gen. Stat.1899, §4927). In the case of Hotel Co. v. Hardware Co., 56 Kan. 448, 43 Pac. 769, Chief Justice Martin said:
“Under the act of 1862, a subcontractor was required to file his lien statement within sixty days after the completion of the building; but under that of 1889 he must file it within sixty days after furnishing the last item of his account.”
The petition shows upon its face that the lien was not filed in time. The demurrer should have been sustained. The judgment of the district court is reversed, the case remanded, and the court directed to sustain the demurrer and render j udgment in favor of the board of education for costs. | [
-48,
110,
-104,
125,
-102,
-24,
120,
-104,
121,
-79,
-28,
83,
-19,
-102,
20,
125,
-61,
125,
-47,
104,
-26,
-77,
18,
-8,
-112,
-13,
-11,
-35,
-69,
93,
-12,
-42,
72,
32,
10,
-107,
-122,
-62,
-63,
-44,
-114,
-123,
-119,
-26,
-37,
96,
52,
125,
18,
14,
49,
42,
-13,
42,
28,
75,
-23,
44,
105,
-87,
1,
-79,
-74,
-107,
125,
79,
-109,
101,
-98,
3,
72,
44,
-40,
61,
-128,
-8,
91,
-26,
-122,
-12,
5,
-119,
9,
118,
103,
51,
-71,
-81,
-16,
-104,
15,
-46,
13,
-25,
-110,
9,
-13,
12,
-74,
29,
117,
80,
7,
118,
-28,
-116,
27,
104,
5,
-53,
-112,
-112,
-113,
112,
-110,
11,
-5,
6,
49,
101,
-51,
-74,
92,
66,
50,
27,
15,
-72
]
|
The opinion of the court was delivered by
Milton, J. :
This action was commenced on September 1, 1896, by the defendant in error to rescind a bill of sale in the nature of a chattel mortgage for $222.63, executed by the defendant in error and one G. C. Thompson, and purporting to transfer to the plaintiff in error a stock of groceries and millinery located in the city of Emporia. The petition alleged that the defendant’s agent, by means of false and fraudulent representations, had induced the plaintiff to execute and deliver the bill of sale in question, the principal representation being that defendant held a prior and valid bill of sale given by Thompson, from whom plaintiff purchased the grocery stock, and that unless the plaintiff would give a bill of sale covering her entire stock, to secure the payment of the indebtedness due from Thompson to the defendant, the latter would seize the stock of goods under a prior bill of sale. The petition sufficiently alleged a cause of action for the rescission prayed for, and the plaintiff’s evidence tended to prove the essential allegations of the petition.
The defendant sought to show that the plaintiff purchased the goods from Thompson with knowledge of the defendant’s rights in the premises, the claim being that at the time of such purchase Thompson was in possession of the goods as defendant’s agent under the unrecorded bill of sale theretofore given by Thompson. The court held the defendant estopped by its conduct, and especially by demanding and receiving the bill of sale from the plaintiff, to deny the plaintiff’s ownership of the goods. The defendant also endeavored to prove that, after the plaintiff had obtained full knowledge of the facts upon which her alleged right of rescission rested, she had ratified and confirmed the bill of sale.' The jury returned a verdict for the plaintiff, and expressly found that the execution of the bill of sale by the plaintiff was secured by fraud and that the plaintiff never ratified the same. Judgment for the rescission of the bill of sale was thereupon entered.
It is claimed that the court erred in the exclusion of certain evidence offered by the defendant to prove that when the plaintiff purchased the goods from Thompson the latter was holding them as agent of the defendant under the first bill of sale. Holding as we do that the trial court did not err in declaring the defendant estopped to deny the plaintiff’s title at and prior to the time she made the bill of sale, we also hold that the offered evidence was properly excluded, since it related'a state of facts existing prior to plaintiff’s purchase of the goods. The instructions given appear to have properly submitted the essential facts in controversy to the jury for decision, while the instructions refused were either inapplicable or were sufficiently embodied in those given.. The verdict rests upon conflicting evidence. We have found no error sufficient to justify a reversal of the judgment. It is affirmed. | [
-16,
-4,
-72,
-115,
58,
-32,
40,
-70,
67,
-93,
-89,
83,
-19,
70,
21,
125,
-25,
125,
-47,
104,
-42,
-93,
3,
-85,
-45,
-77,
-101,
-41,
49,
-36,
-25,
87,
76,
48,
66,
-107,
-58,
-62,
-63,
-108,
-50,
39,
9,
-28,
-7,
72,
52,
-70,
16,
75,
113,
-86,
-29,
45,
29,
-53,
107,
40,
107,
57,
-16,
-72,
-85,
-113,
111,
22,
19,
36,
-98,
103,
-8,
110,
-104,
49,
1,
-24,
114,
-74,
-122,
84,
101,
-71,
8,
34,
103,
-80,
5,
-19,
88,
-100,
38,
-33,
-115,
-121,
-112,
80,
0,
108,
-98,
-99,
101,
18,
34,
118,
-6,
-99,
27,
-20,
15,
-101,
-106,
-111,
-114,
62,
-100,
27,
-18,
-85,
-80,
113,
-49,
-80,
93,
83,
122,
-109,
-114,
-10
]
|
The opinion of the court was delivered by
Milton, J. :
The plaintiff in error, who was county treasurer of Miami county for the term expiring in October, 1896, presented to the board of county commissioners of that county, on the 13th day of April, 1896, a claim in the sum of $750 for his official salary for the quarter ending March 31, 1896. The board allowed him $531.75, and from this order of allowance he appealed to the district court, where the case was tried on an agreed statement of facts, the substance of which was that if Hiner was entitled to the salary provided for by paragraph 3025, General Statutes of 1889, he should recover accordingly, but that if Ms salary was regulated by chapter 141, Laws of 1895, which took effect January 1, 1896, the board should recover the costs of the action. Judgment was rendered in favor of the board of commissioners for costs. Counsel for plaintiff in error claims that said chapter 141 is unconstitutional and void for the reason that the legislature has no power to reduce the salary of an officer during the term for which he was elected, except for neglect of legal duty. Counsel calls attention to the specific provisions of the constitution concerning official salaries. The first refers to the state officers comprising the executive department, and provides that their compensation as established by law shall neither be increased nor diminished during the period for which they shall have been elected. (Const., art. 1, §15.) The second provides that the salaries of the justices of the supreme court and of the judges of the district courts shall not be increased during their respective terms of office. (Const., art. 3, § 13.) The third provision reads :
“The legislature may reduce the salaries of officers who shall neglect the performance of any legal duty.” (Const., art. 15, § 7.)
Counsel argues that from these provisions there arises an implied inhibition of the exercise by the legislature of the power to reduce the salaries of county officers.
We are unable to agree with this view. The constitution is silent as to the compensation of county officers, and hence there is no apparent limitation upon the power of the legislature to fix and to alter the salaries of such officers. The express inhibitions concerning reductions of official salaries relate to state officials and certain judicial officers. The express grant of power to reduce the salaries of officers for neglect to perform their legal duties is general in its application, and its exercise by the legislature might affect all officers whose salaries are fixed by law.
“To sustain an implied inhibition there must be some express affirmative provision. The mere silence of the constitution on any subject cannot be turned into a, prohibition. ... To sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than is necessary to give full force to that provision.” (Prouty v. Stover, 11 Kan. 236.)
The case of Harvey, Treas., v. Comm’rs of Rush Go., 32 Kan. 159, 4 Pac. 153, is controlling upon the principal question involved in this controversy. In that case a law, which in its operation reduced the salaries of certain county officers, was alleged to be in conflict with the constitution of the United States and with the constitution of the state of Kansas. The court held against both contentions, and in the opinion said : “The legislature may exercise its control by increasing or diminishing the salary or emoluments of an office except in those special cases in which the constitution has forbidden its exerciáe. (State Const., art. 3, § 13.) Except in those special cases, the legislature has the absolute power over the compensation of all public officers. Therefore there was no contract, express or implied, between the plaintiffs and Rush county or the state of Kansas regarding the compensation of their officers, and the plaintiffs had no property in the future compensation attached to them.”
The judgment of the district court will be affirmed. | [
-76,
-18,
-8,
-4,
42,
98,
39,
18,
81,
-87,
-73,
87,
41,
-45,
17,
117,
-77,
125,
81,
107,
-43,
-74,
23,
35,
58,
-13,
-55,
-35,
-75,
78,
-12,
-1,
77,
56,
-54,
-43,
70,
66,
-63,
-44,
-114,
7,
59,
-51,
121,
-64,
52,
28,
50,
75,
49,
-49,
-29,
46,
24,
83,
-20,
44,
-39,
-87,
1,
-112,
-98,
-115,
111,
4,
-109,
99,
-102,
-125,
-40,
46,
-104,
49,
0,
-8,
123,
-90,
-126,
84,
37,
-71,
8,
98,
100,
16,
45,
-17,
-24,
-72,
6,
-36,
-99,
-90,
-109,
89,
10,
73,
-106,
-99,
116,
20,
3,
118,
-30,
-107,
93,
44,
7,
-113,
-92,
-13,
-49,
102,
-118,
-62,
-49,
35,
20,
113,
-54,
-14,
95,
71,
58,
19,
-49,
-52
]
|
The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced in the district court of Edwards county by the plaintiff in error to recover from T. Y. Donnell, one of the defendants in error, the sum of $464 and interest, alleged to be due upon two certain promissory notes. Geo. W. Cooper, upon his own motion, was made a party defendant, and the defendants, as an offset to the claim of plaintiff, alleged that they had been damaged by a breach of the warranty of a portion of the machinery for which the notes had been given. The jury returned a verdict in favor of the plaintiff for the sum of thirty-three cents, and judgment was rendered therefor. The plaintiff brings the case here for review, and insists that the amount of the judgment rendered in its favor is too small.
The attorneys for the plaintiff in error have filed a brief containing 113 pages of solid matter in which argument, evidence and assignments of error are so intermingled that it tends to confuse rather than to assist the court. For this reason we will decline to write an extended opinion in the case.
Tudor Y. Donnell, George W. Cooper and S. L. Cooper purchased .a thrashing outfit of the plaintiff in error in July, 1891. In March, 1892, the Coopers sold to Donnell and executed the following agreement as the terms of the sale :
“Belpre, Kan., March 31, 1892.
“Know all Men by these Presents, That we, George W. Cooper and S. L. Cooper, agree to sell and transfer to T. V. Donnell our equity and half share in Aultman & Taylor thrashing outfit bought by all three of us co-jointly last year from Aultman & Taylor Co., upon condition that T. V. Donnell pay us seventy dollars, assume all company liabilities and collect all debts owing to the company being now dissolved.
“ Signed in the presence of Samuel Cooper.
T. V. Donnell.
G. W. Cooper.
S. L. Cooper.”
In July, 1892, after having operated the machine one full season and after having purchased the interest of the Coopers, Donnell executed and delivered to the agents of plaintiff in error the following waiver :
“Belpre, Kan., July 26, 1892.
“In consideration of the extension of my note dated June 16, 1891, due November 1, 1891, until October 1, 1892, I hereby waive all claim for any real or supposed damage as against the Aultman & Taylor Company of any kind whatsoever, caused either by the failure of my separator, engine or any other machinery bought of the said Aultman & Taylor Company to fill the warranty given on same.
Tudor V. Donnell.
“Witness: J. M. Brown.”
Donnell testified that at the time he signed the above waiver he had no knowledge of the construction of the machinery or whether it was properly constructed. The warranty given by the plaintiff in error is as follows:
‘ ‘ The following are the warranties given by the Aultman & Taylor Company on thrashers, horse-powers, engines and sawmills sold by said company, and the above-described machinery is bought by the undersigned and sold by the Aultman & Taylor Company subject fully and solely and only to the warranty printed below, which applies to the machinery above ordered; the warranty on engine applying to the engine only, the warranty on thrasher to thrasher and horse-power only, and the warranty on sawmill to sawmill only. Automatic matchless swinging stackers, wagon elevators, with or without cross-conveyors, bagging attachments, or any other special attachment meant to be used with or from the thrasher, and not usually furnished as a part of it, is, when furnished, classed with tbe thrasher and subject to the same warranty; and when engine and thrasher, or engine and saw-mill, or any other combination of machinery is sold as an establishment, the failure of any part or machine to fulfil its warranty shall not in any way affect the payment of the purchase-price of any other part or parts of said establishment. No person selling Aultman & Taylor machinery is authorized to make any verbal or written alteration or any change whatever in any of these warranties.
“Warranty on Thrasher. — This machine is ordered, purchased and sold subject to the following warranty and agreement, viz.: That with good management the Aultman-Taylor thrasher is capable of doing a good business in thrashing and cleaning grain, and is superior in its adaptation for separating and saving from the straw the various kinds and conditions of grain and seeds. Conditioned, that the undersigned purchaser shall intelligently follow the printed hints, rules and directions of the manufacturers, and if by so doing they are unable to make it operate well, written notice stating wherein it fails to satisfy the warranty is to be given by the purchasers to the Aultman & Taylor Company, at Mansfield, Ohio, by registered letter, within ten days after the delivery of the machine to the purchaser, and reasonable time allowed to, get to it and remedy the defect, unless it be of such a nature that they can advise by letter. If they are not able to make it operate well (the purchaser rendering necessary and friendly assistance), and the fault is in the machine, it is to be taken back and the payments refunded or the defective part remedied and made the same as in their other machines which do perform satisfactorily. But, if the purchasers fail to make it perform through improper management, or neglect to observe the printed or written directions, then the purchasers are to pay expenses incurred.
“Also, that if any part of said machine (except the levers or belting) fails during this year in consequence of any defect in material of said part, if the purchaser shall have observed the printed or written directions applicable to the management of such part, the Aultman & Taylor Company are to furnish a duplicate of said part free of charge, except freight, after the presentation of the defective piece, clearly showing the flaw in .the material at the factory, at any time within one year, but deficiencies in pieces, or in special attachments, not to condemn other parts, and deficiencies in general adaptation for thrashing, separating and cleaning, which alone involve the alteration or the taking back of the machine, must be reported by registered letter to the Aultman & Taylor Company, at Mansfield, Ohio, within ten days after delivery of it to the purchasers; otherwise all claims whatever are expressly waived by the purchasers.
“Warranty on Engine. — This engine is ordered, purchased and sold subject to the following warranty and agreement, viz.: That with good management the Aultman-Taylor engine is capable of supplying as much power as any engine of same horse-power made in the United States; and that it is constructed of first-class material throughout. Conditioned, that the undersigned purchasers shall intelligently follow the printed hints, rules and directions of the manufacturers, and if by so doing they are unable to make it operate well, written notice stating wherein it fails to satisfy the warranty is to be given by the purchasers to the Aultman & Taylor Company, at Mansfield, Ohio, by registered letter, within ten days after the delivery of the engine to the purchasers, and reasonable time allowed to get to it and remedy the defect, unless it be of such a nature that they can advise by letter. If they are not able to make it operate well (the purchaser rendering necessary and friendly assistance), and the fault is in the engine, it is to be taken back and the payments refunded, or the defective part remedied and made the same as in their other engines which do perform satisfactorily. But if the purchasers fail to make it perform through improper management, or neglect to observe the printed or written directions, then the purchasers are to pay all expenses incurred.
“Also, that if any part of said engine fails during this year in consequence of any defect in material of said part, if the purchaser shall have observed the printed or written directions applicable to the management of such part, the Aultman & Taylor Company are to furnish a duplicate of said part free of charge, except freight, after the presentation of the defective piece, clearly showing a flaw in the material at the factory, at any time within one year, but deficiencies in pieces not to condemn other parts; but deficiencies in general adaptation for thrashing and general purposes, which alone involve the alteration or the taking back of the engine, must be reported by registered letter to the Aultman & Taylor Company, at Mansfield, Ohio, within ten days after the delivery of it to the purchasers ; otherwise all claims whatever are expressly waived by the purchasers.
“It is further agreed and made an essential part of each of the above warranties, that in every case where the required registered-letter notice or notices set forth in the above warranties are not given strictly as provided, the Aultman & Taylor Company shall be relieved and discharged from all claims and obligations of every nature under the warranty or warranties; and no visit said company or any of its representatives may make to said machinery and no assistance it or any of its representatives may render the purchasers in operating said machinery, nor any other act of any of its representatives, shall in any way renew or revive the warranty or warranties, or create any new obligation or liability on the part of said company.
“Witness our hands and seals, the day and year above written. Gr. W. Cooper. [seal.'
T. V. Donnell, [seal.]”
After one whole season’s trial, during which the machine had done $1700 worth of thrashing, Donnell should have known whether the thrasher was capable of doing a good business in thrashing and cleaning grain and whether the engine was capable of supplying the power as required by the warranty, and he in fact testifies that, during the period intervening between the time he purchased the outfit and the time of signing the release, the engine did not furnish sufficient power to propel itself and draw the separator, and that the separator did not do good business in thrashing and cleaning grain.
His own testimony shows that he knew these facts when he signed the waiver and he is bound by it. The extension of the time of the payment of the note is a sufficient consideration for the waiver and is the only consideration included in the waiver, and as the contract of waiver is in writing, no other consideration can be shown. The note was extended ; hence there was no failure of consideration for the waiver. The jury found specially that the contract of waiver was entered into and the time for' the payment of the note extended. They also allow the defendants $150 damages for the failure of the engine to furnish power on the road, and $450 for the failure of the separator properly to thrash and separate grain. The plaintiff moved for judgment upon the special findings of the jury. We think this motion should have been sustained. .There is no dispute in the evidence that Donnell knew of the failure of the machinery to fulfil the terms of the warranty prior to the execution of the contract of waiver and that he executed the waiver for a valuable consideration which was delivered to him and with full knowledge of all the facts.
The judgment of the district court is reversed, and the case remanded with instructions to render judgment for the full amount of the notes set out in the petition of the plaintiff with interest thereon as provided therein. | [
112,
102,
-80,
-83,
26,
106,
32,
-38,
72,
-35,
-89,
83,
-119,
-59,
65,
111,
-30,
77,
85,
106,
-26,
-93,
19,
-29,
-110,
-77,
-7,
-59,
49,
76,
-76,
87,
77,
52,
-118,
-107,
-26,
-128,
69,
-108,
-114,
36,
41,
-28,
-39,
40,
48,
-7,
84,
74,
81,
46,
-13,
46,
28,
-53,
105,
45,
-23,
-71,
-16,
-79,
-45,
-123,
127,
19,
1,
5,
-100,
7,
88,
46,
-108,
53,
-128,
-24,
120,
-90,
-122,
117,
41,
-119,
9,
102,
103,
35,
-99,
-49,
-20,
-68,
47,
-65,
29,
-89,
-74,
72,
-117,
105,
-73,
-100,
114,
50,
3,
118,
-22,
21,
25,
108,
3,
-117,
-106,
-78,
-81,
38,
-98,
27,
-17,
-113,
52,
117,
-51,
-16,
93,
6,
59,
-101,
-101,
-100
]
|
The opinion of the court was delivered by
Milton, J.:
This action was brought by Lena Price, one of the defendants in error, against the Atchison, Topeka & Santa Fe Railroad Company, and the plaintiffs in error as receivers of that company, to recover damages for the alleged wrongful ejection of the plaintiff from a passenger-train of the defendants by the defendants’ agent, the conductor of the train, and the consequent impairment of the plaintiff’s health by reason of the shock and worry thereby occasioned. The petition alleged that on the 27th day of May, 1894, near the village of Derby, a station on the said railroad in the county of Sedgwick, this state, and while plaintiff was rightfully on one of defendants’ trains as a passenger for hire, and while she was entitled to be carried by the defendants on said train as such passenger from Wichita, Kan., to Woodward, I. T., she was compelled by the conductor of the train to leave the same, and was by him wrongfully ejected from said car and train in the presence of relatives,. friends, and other passengers; that she was then in délicate health, and frail in mind and body, which fact the defendants and their agents well knew; and that by reason of said wrongful ejection the plaintiff’s health in body and mind was greatly and permanently impaired, all to her damage in the sum of $7000.
The defendants filed separate answers, each containing a general denial of the allegations of the petition. The jury returned a verdict in favor of the plaintiff against both the railroad company and the receivers for $1000. The railroad company’s motion for a new trial was granted and that of the receivers overruled. Judgment was thereupon rendered against the receivers in accordance with the verdict.
From the record it appears that in April, 1894, the plaintiff, a young woman about twenty years of age, was residing with her parents at Woodward, I. T. She was suffering from nervous and other troubles, and it was decided that, accompanied by her mother, she should go to Wichita, Kan., for medical treatment. The length of their stay in Wichita was necessarily uncertain. On April 25, the plaintiff’s brother, Frank Price, purchased tickets for the plaintiff and her mother from the agent of the receivers at Woodward, good for passage from that place to Wichita and return. The tickets were in two connected parts, one part to be used in going and the other in returning. The only testimony concerning the purchase of the tickets was that of Frank Price, who testified as follows :
“ Ques. State what occurred at the purchase, and manner of purchase. Ans. I asked the ticket agent at Woodward what two tickets would cost from there to Wichita and return.
“ Q. What did he say? A. He went and looked and came back and says, ‘ I could sell you a limited ticket for so much ’— I forget the amount. I told him I didn’t want a limited ticket, and he told me what an unlimited ticket would cost — first-class ticket. I told him I would take that, and paid the price asked for it — about all there was of it.
“ Q. You handed them to your mother and sister? A. Yes, sir.
“ Q. That is all you know about the matter. A. Yes, sir.”
He further testified that he did not notice the face of the tickets, except to see that one part read from Woodward to Wichita and the other part from Wichita to Woodward ; and that he did not see the agent punch the tickets nor observe the punch marks. The return portion of plaintiff’s ticket, which was the only part introduced in evidence, is shown on next page.
The plaintiff testified that because of her illness she was not able to read her ticket when it was delivered to her, and that she did not at any time read it or become acquainted with its provisions. She did not sign the contract thereon, nor was she asked to do so. Under the treatment of her physician the plaintiff’-s condition was much improved, and on the morning of May 27 she and her mother walked some seven or eight blocks to the depot of the defendants to take passage on an early train for their home in Woodward. On production of one of the tickets their trunk was checked to Woodward, and was carried on the train which the plaintiff and her mother entered for their return passage. Shortly after leaving Wichita the tickets were handed to the conductor of the train. He promptly informed the plaintiff and her mother that the tickets had expired and could not be used for transportation on that train. The mother then stated to the conductor the reason for their visit to Wichita; how long they had stayed there in order that the plaintiff might have medical treatment; that the ticket -agent at the defendants’ depot in Wichita had just told them their tickets were good; and the fact of the checking of their trunk. The conductor told them that if they had been detained on account of the plaintiff’s sickness, the tickets would be extended and made good for the return trip, if they would present them to Mr. Murdock, the general agent of the railroad company at Wichita; and he advised that they get off at the first station, Derby, ten miles from Wichita, and return to the latter place on the train which would pass through Derby at ten o’clock that morning. The plaintiff testified that they requested the conductor to carry them to Wellington, and that her mother offered to pay all the money she had, which was less than the regular fare for the two to that point, but that the conductor declined to do so and stopped the train at Derby, telling them they must get off there. She also testified : “ He took me by the arm and put me off the train.”
“The S. K. Ry. Co.
Stamped, on back : Apr. 25,1894.
Woodward, I. T.”
On the part of the defendants, the testimony was that she was taken by the arm simply to assist her in passing from the car steps to the platform. The jury stated in one finding that the plaintiff left the car at Derby on account of “ forcible persuasion,” and in another that she did not leave the car willingly. After being left at Derby, the plaintiff’s mother telegraphed her husband at Woodward, and arrangements were thereupon made by wire for tickets from Derby to' Woodward. They left Derby on the first south-bound passenger-train, and were obliged to remain in Wellington over night, to get a train for Woodward, where they arrived the following day, having been delayed twenty-four hours altogether. It does not appear to be disputed that the plaintiff was made seriously ill by the excitement incident to her removal from the train, and that such illness continued for s.everal months. The mother of the plaintiff died prior to the trial of this action. The jury found that the plaintiff’s brother did not advise her of the conversation with the agent at Woodward concerning the tickets, and did not tell her that the tickets were unlimited ; that the conductor honestly, believed the plaintiff’s ticket had expired prior to its presentation to him; and that when the plaintiff and her mother left the train at Derby the.conductor was “honestly laboring under the impression that the plaintiff was simply following his suggestion that she go back to Wichita and have her ticket extended.” The plaintiff, however, testified that she at no time had such intention. The jury also found that the plaintiff’s brother did not buy a limited ticket.
The learned counsel for the plaintiff in error contends that the trial court erred in permitting the witness Frank Price to testify as to the conversation between himself and the ticket agent at Woodward at the time the tickets were purchased. Counsel says:
“The cause of action alleged in plaintiff’s petition is the unlawful ejectment from the cars of the defendant at the time when she was rightfully a passenger thereon and entitled to ride to her destination. There is not one word in the petition directly or indirectly tending to show any claim for damages on account of any breach of the company’s obligation to furnish unlimited tickets upon request, or for any breach of contract for carriage at the time the limited ticket upon which plaintiff was riding was purchased. Therefore, the testimony was not material to any issue raised by the pleadings in the case and should not have been admitted by the court.”
Attention is also called to the fact that at the time the plaintiff was required to leave the train at Derby she had no knowledge concerning the conversation between her brother and the ticket agent at Woodward respecting the ticket. It is also contended that the court erred in overruling the defendants’ demurrer to the plaintiff’s evidence, since nothing therein tended to show that the plaintiff was in such condition as to render it inadvisable or unsafe for her to leave the train at Derby and return to Wichita. Counsel says that the plaintiff’s evidence showed no negligence of any kind or description in connection with her leaving tlm train at Derby. We think the testimony of plaintiff’s brother was clearly material. Under the circumstances surrounding the plaintiff when .the visit to Wichita was decided upon, it is evident that a ticket 'limited to ten days for the return trip would in all probability have been useless to her. It was impossible for one in her position to determine with exactitude the length of time medical treatment would be required. It is therefore unreasonable to suppose that the purchase of limited tickets would have been contemplated by the plaintiff or her brother. The contract which she intended to make and which she actually did make in the purchase of the tickets was the only one which could prove beneficial to the plaintiff in vi.ew of her condition and requirements.' The testimony as to what was said and done at the time of the purchase of the tickets was an essential ingredient of the plaintiff’s case. The competency of the testimony is further apparent in view of the fact that the plaintiff did not sign the contract on the face of the ticket whereby the limitation of time for the return passage as indicated by the punch marks would have become operative. Like all other contracts, the concurrence of the parties thereto was essential to its formation. The punch marks alone could not create a limitation. The plaintiff had no knowledge that the ticket was anywise a limited one until the conductor so informed her. She had used the going portion of the ticket more than thirty days before her attention was called to the alleged limitation contained in the return portion thereof. The burden of proof of the knowledge of a passenger of a memorandum on his ticket limiting the liability of the company, and of his assent to it, rests on the company. (Railroad Company v. Harris, 12 Wall. 65, 20 L. Ed. 354.) In the case of Railroad v. Turner, 100 Tenn. 213, 47 S. W. 223, 225, the court said :
“While there is a conflict in the cases, the weight of authority is that time limitations, or conditions stamped or printed upon the back or face of a general ticket, are not binding upon a passenger unless his attention-is called to them when he purchases the ticket a id he assents thereto.”
Mere acceptance of the ticket in the present case did not create a contract limiting its time to run. Referring to the effect of the acceptance of a ticket containing conditions and limitations, the New York court of appeals, in Rawson v. Pennsylvania Railroad Co., 48 N. Y. 212, 217, said:
“The contract between these parties was made when the plaintiff bought her ticket, and the rights and duties of the parties were then detei'mined. Hence, even if the plaintiff had read what appears upon her ticket after she had entered upon her journey, it would have made no difference with her rights. She was not then obliged to submit to a contract which she never made, or leave the train and demand her baggage.”
To the same effect is the decision in the case of Kent v. Railroad Co., 45 Ohio St. 284, 12 N. E. 800, where it is said:
“It is well settled that the purchaser of a railroad ticket does not, by its mere acceptance, acquiesce in, and bind himself to, all the terms and conditions printed thereon in the absence of actual knowledge of them” (citing numerous authorities). See, also, Boyd v. Spencer, 103 Ga. 828, 30 S. E. 841.
In keeping with the foregoing decisions, and a controlling authority in the present case, is the decision in K. C. St. J. & C. B. Rld. Co. v. Rodebaugh, 38 Kan. 45, 15 Pac. 902, where the ticket contained a special limiiaiion as to the liability of the railroad company in case of loss of baggage checked by virtue of purchase of the ticket. The court said :
“In this case there was no contract on the part of the plaintiff, and no knowledge was conveyed to her of any intention on the part of the defendant to limit its liability save and except what the ticket itself contained, and this was not read or its contents made known to the plaintiff. Can this be called an implied contract? We think that, before the plaintiff can be bound by the declarations in the ticket for transportation on a passenger-train, the restrictions or limitations sought to be made must be known to her, and she must have accepted the ticket with .full knowledge of the restrictions contained therein. This ticket contained a blank for the signature of the purchaser, and that signature was to be witnessed by some one. This was not done in this case. The object of that blank space being left there was, doubtless, that the attention of a purchaser might be called to the conditions of the ticket, and when called to sign it he would then know its contents. This would constitute a contract between them, but without it there would be no contract and no restriction or limitation of the liability of the company.”
Counsel for plaintiff in error assumes as a premise that the act of the conductor in putting the plaintiff off the train was rightful and proper, in view of his duty to his employer and of the terms of the ticket itself. The case of A. T. & S. F. Rld. Co. v. Long, 46 Kan. 260, 26 Pac. 682, is cited as supporting the proposition that, as between the conductor and a passenger, the ticket produced by the latter is the only evidence which the conductor can regard in determining the right of the passenger to the seat he claims, and that it is conclusive evidence as to such right. We think it not in conflict with that decision to hold that in the present case the conductor went beyond the requirements of his position and the permission of the law in expelling the plaintiff from the train. She held an unused ticket, for which the price demanded by the defendants for an unlimited ticket had been paid by her agent, and no contract appeared on the ticket showing it to be limited. The burden of proof as to plaintiff’s knowledge of and assent to the time limitation indicated by the punch marks on the margin of the ticket being upon the defendants, it was the duty of their agent, the conductor, to interpret the ticket in favor of the plaintiff, whose representations to him showed her to be acting in good faith. Under the circumstances, it might- have been difficult for the conductor to decide as to which of two possible mistakes the agent selling ‘the ticket had made, namely, whether in undertaking to sell a limited ticket he had neglected to have the contract form thereon signed by the purchaser, or whether he had negligently punched an unlimited ticket; but such decision did not concern the plaintiff’s rights in the premises. The punch marks, in the absence of the plaintiff’s-signature on the ticket, should have been disregarded, for the reason that the contract for the transportation of the plaintiff, as evidenced by the ticket, having been made at the time of its purchase, the ticket without her signature was prima facie unlimited. Holding the ticket to be unlimited is carrying out the contract made between the parties, while holding it to be limited is creating a new contract. In our opinion the defendant receivers were clearly liable in damages for the injuries resulting to the plaintiff from her expulsion from the train. It is an action sounding in tort. (Carsten v. Northern Pacific Ry. Co., 44 Minn. 454, 47 N. W. 49; Georgia Railroad and Banking Co. v. Dougherty, 86 Ga. 744, 12 S. E. 747.)
It does not appear that the amount of damages awarded by the jury was excessive. Having decided to rest our conclusion upon the basis hereinbefore stated, we deem it unnecessary to discuss the other important questions which are presented by counsel for both parties. Each assignment of error has received careful attention, but we have found nothing requiring a reversal of the judgment. It will therefore be affirmed. | [
-16,
106,
-75,
-65,
40,
98,
34,
-102,
119,
-95,
-89,
83,
-83,
-63,
21,
59,
126,
61,
-44,
107,
114,
-77,
23,
-93,
-46,
-45,
49,
-51,
-77,
88,
-28,
-10,
77,
16,
74,
29,
102,
-54,
81,
20,
-114,
36,
-55,
-24,
91,
72,
48,
123,
6,
64,
49,
-118,
-13,
42,
28,
-45,
44,
45,
-5,
-87,
-128,
-16,
-101,
-113,
-81,
18,
32,
32,
-98,
-89,
-56,
60,
-104,
48,
66,
-4,
114,
-26,
-126,
-12,
101,
-55,
12,
110,
98,
97,
21,
-17,
108,
-88,
46,
-16,
-115,
-89,
-78,
20,
-30,
77,
-98,
-99,
69,
20,
11,
-2,
-4,
12,
88,
52,
-55,
-117,
-74,
-111,
-1,
52,
-112,
55,
-21,
-91,
50,
101,
-64,
50,
93,
6,
58,
-101,
-65,
-66
]
|
The opinion of the court was delivered by
Schoonover, J.:
This case is presented upon a motion to dismiss for the reason that the record does not show that there is more than $100 involved and there is no certificate of the judge, as required by law, to make the case come within one of the exceptions.
The judgment appealed from was rendered on the 22d day of June, 1897. The case was settled on the 29th day of March, 1898, and filed in this court on the 17th day of June, 1898.
On the 14th day of October, 1899, the defendant in error presented his motion to dismiss. At the same time plaintiff in error presented his motion to this court and asked that the following certificate of the trial judge be attached to the original record and become a part of same :
“ This is to certify that in making my certificate in settling the case-made in the above-entitled action I failed to certify that it was one of the excepted cases ; and I now certify that said cause comes within the 'excepted cases of the statute, and ask the Kansas court of appeals to make this a part of the record by its order. This the 14th day of October, 1899.
D. M. Dale, Judge.”
The question involved in this case has been passed upon by this court in the case of Mo. Pac. Rly. Co. v. Townsend, 8 Kan. App. 694, 56 Pac. 150. The court held that a case-made could not be amended more than one year after the rendition of the judgment complained of, by incorporating therein a certificate of the district judge trying the case “that the case is one belonging to the excepted classes.” As bearing upon this question, the following cases are cited: Loomis v. Bass, 48 Kan. 26, 28 Pac. 1012; Clark v. City of Ottawa, 1 Kan. App. 304, 40 Pac. 1071; A. T. & S. F. Rld. Co. v. Anderson, 5 id. 707, 49 Pac. 108; Sparks v. Sparks, 6 id. 750, 50 Pac. 973; Lewis v. Linscott, 37 id. 379, 15 Pac. 158; Graham v. Shaw, 38 id. 734, 17 Pac. 332; Lumber Co. v. Tomlinson, 54 id. 770, 39 Pac. 694; Railway Co. v. Kimball, 48 id. 384, 29 Pac. 604.
The motion to dismiss is sustained. | [
-76,
110,
-124,
-35,
-86,
96,
34,
-102,
65,
-127,
39,
115,
-83,
94,
20,
125,
-10,
61,
-47,
72,
-26,
-77,
6,
91,
-110,
-73,
-45,
-43,
53,
79,
-12,
-10,
76,
48,
74,
-43,
70,
-22,
-63,
84,
-50,
0,
-120,
-64,
-13,
-24,
48,
113,
50,
11,
53,
-2,
-5,
43,
92,
-57,
-23,
44,
-37,
-71,
-47,
-112,
-118,
5,
125,
16,
51,
4,
-98,
5,
72,
-88,
-104,
49,
51,
-20,
115,
-90,
-122,
-12,
109,
-7,
40,
118,
99,
113,
29,
-17,
-72,
-84,
62,
61,
-115,
-26,
-78,
8,
75,
41,
-74,
-103,
117,
16,
39,
-6,
-25,
12,
29,
40,
3,
-114,
-78,
-69,
-97,
124,
14,
11,
-1,
-93,
-80,
112,
-51,
-14,
92,
71,
27,
19,
-50,
-100
]
|
The opinion of the court was deliverd by
Mahan, P. J.:
This is an original civil action, under article 7 of chapter 96, General Statutes of 1897 (Gen. Stat. 1899, §§ 4956-4963), to determine the right to the office of regent of the state agricultural college.
To the plaintiff’s petition the defendant files a demurrer upon three grounds : (1) That we have no jurisdiction of the person of the defendant; (2) that we have no jurisdiction of the subject-matter of the action; and (3) that the petition does not state facts sufficient to constitute a cause of action. Neither in the oral argument nor in the brief are the first two grounds alluded to ; so we may take it that they are abandoned and give our attention to the third. The petition alleges that the plaintiff was duly appointed to the office in the month of March, 1897, and was confirmed by the senate for a term of four years beginning April 1, 1897; that he-entered upon the duties of the office and continued in the full exercise and enjoyment thereof until the 11th day of May, 1899, when he was excluded therefrom by the defendant, who, on that day, unlawfully intruded into and usurped said office and wholly excluded the plaintiff therefrom, and has ever since usurped and unlawfully held and exercised the office and excluded the plaintiff therefrom ; and that the only pretense or claim the defendant makes of any right to the office is as follows : On the 29th day of March, 1899, there was filed in the office of the governor of the state a certain paper, a copy of which is set out and made a part of the petition. This is an affidavit made by one H. A. Perkins, which, after formal statements, makes two charges against the plaintiff. The first is that the president of the board, one John N. Limbocker, had drawn from the treasury of the college the sum of fifteen dollars per month for his services in providing meals for the students at the college ; that this was unlawful and beyond the power of the board of regents under the law ; and that the plaintiff Hoffman, as such regent and treasurer of the board, had aided and abetted said Limbocker in drawing said sum of fifteen dollars per month for his alleged services in conducting a place where students and others were fed at the said college. The second charge is that said Limbocker and Hoffman, while acting as regents of said college, and during the month of June, 1897, with others, did transact business of vital importance to the college without a quorum, secretly and unlawfully; that they did at that meeting hire teachers, fix their salaries, make appropriations, and did other business without at any time having'a quorum, all in violation of law, and with the full intent and purpose of overriding and thwarting the will of the majority of the members of the board, “who prior to that time had been present” ; that said action was in violation of law; that said meetings so held and for the purpose aforesaid were held r or meetings preliminary thereto were held, at the hotel in Manhattan, and were afterward entered upon the books at the college ; that the records of said college were so kept by the secretary, Thomas E. Will, who is also president of the college and a subservient tool of the said Hoffman and Limbocker, that they purport to show on their face that the said meetings were legal and lawful and that a full quorum was present, whereas, in truth and in fact, no ■quorum was present, and by this means the said members of the board have falsified the records.
Upon the filing of this paper the governor made an order suspending the plaintiff as a member of said board of regents, and the governor, the lieutenant-governor and the speaker of the house of representatives selected a committee of two senators and three representatives to inquire into the truth of said charges and make report, as provided by law. Said committee, having organized, caused to be sent by its clerk to the plaintiff a notice in writing to the effect that a motion of the plaintiff to make the charges against him more definite and certain had been overruled, and that the committee had given permission to Perkins to file an amended complaint by sis o’clock of April 14, 1899, and that the plaintiff be given until six o’clock Monday, April 17, 1899, to answer thereto, and that the further hearing under said amended complaint be held on Wednesday, April 19, 1899, at two o’clock p. m. This notice purported to be sent by the clerk of the committee. Thereupon the plaintiff protested, in writing, against this action of the committee, and objected to the committee’s proceeding to ahearing upon said amended complaint, and moved that it be stricken from the files, and announced his readiness to proceed with the investigation upon the complaint submitted to the committee by the governor under the statute. The subject-matter of the protest was that the committee, being purely statutory, had only such authority as is conferred upon it by the statute, and that it had no authority to enter upon or investigate any charges except such as were submitted to it by the governor, and had no authority to require the plaintiff to answer the charges in writing.
Said committee on convening overruled, denied and rejected the protest and motion, and proceeded to investigate the charges contained in the amended complaint as the sole basis thereof. The committee then employed a stenographer for the purpose of preserv ing the testimony, as.required bylaw, all of which, being very voluminous, was taken down by the stenographer in shorthand, which nobody save himself could transcribe or write; having concluded the investigation without determining from the evidence, by majority vote or otherwise, the truth or falsity of the original charges, or of any of the charges contained in the amended complaint, they made and hied with the governor a report, which is set out and made a part of the petition. They made no further report whatever, and they did not transmit to the governor the evidence in the case, nor had such evidence, at the time of filing the petition, been transmitted or filed with him, but the committee did file the shorthand notes taken by the stenographer, which are utterly unintelligible to any other person than the stenographer. The evidence in the case had not in any other manner been transmitted or presented to the governor, and the shorthand notes remained at the time of filing the petition untranscribed. The governor could not read the notes, and they were not read to him. Pie made an order of removal, removing the plaintiff from the office, upon the theory that he was not called upon and had not the right to examine the evidence, but that his duties were purely ministerial, and that he was bound to act upon the rendition of the report of said committee, without review or discretion upon his part. On the 5th day of May, 1899, the governor sent to the plaintiff a notice of his removal entitled “In the Matter of the Charges against Limbocker.” The notice recites that, in pursuance of law and the finding and report of the committee appointed to investigate the charges in writing made against the plaintiff by H. A. Perkins, and filed in the governor’s office on the 29th of March, 1899, calling in question the official conduct of the plaintiff as one of the regents of the Kansas State Agricultural College, the plaintiff was thereby discharged and dismissed from further survice as such regent.
The amended complaint contained eight specific charges, including the two original charges contained in the complaint filed with the governor, which are in the amended complaint considerably amplified. Omitting the formal parts of the report of committee, the following is a copy of what it terms its findings and recommendations :
“findings.
- “First charge. We find that John N. Limbocker and C. B. Hoffman were, at and during the time complained of in said charge, regents of the Kansas State Agricultural College, and that John N. Limbocker was the president of the said board of regents and the said C. B. Hoffman was treasurer.
“A revolving fund of $300 was appropriated and set aside by Regent and Treasurer Hoffman, and placed to the credit of John N. Limbocker in the Dickinson County Bank, for the purpose of maintaining a dining-hall where meals were to be furnished to students, members of the faculty and other persons visiting said college at such prices and on such terms as provided by the board of regents.
“We further find that by order of the board of regents the sum of $250 was set apart for the use and benefit of the department of domestic science, and that a part of said sum, the exact amount of which your committee is unable to state because of the indefinite and uncertain data furnished upon that part, was expended in the purchase of furnishings and materials for the operation of said dining-hall.
“We further find that Regent John N. Limbocker was by the said board of regents, of which he was a member, engaged and employed as the purchasing agent for said dining-hall at' the salary of fifteen dol lars per month ; that pursuant to said employment and while acting as a regent of said college he entered upon the discharge of the duties as such purchasing agent on or about the 1st of September, 1898, and continued to so act until the date of his suspension, which occurred on the 29th day of March, 1899.
“We further find that the treasurer of said college paid to said John N. Limbocker for services aforesaid the sum of $105.
“Your committee further finds that said dining-hall was instituted and operated by the said board of regents aforesaid, not for the purpose of instruction in anyof the branches of learning for which said college was instituted, but for the purpose of furnishing meals for the students and other persons connected with, the college.
“ Owing to the indefinite, vague and obscure manner in which the books of the college have been kept under the direction of the president and his assistant, we are unable to state whether or not the said dining-hall has been operated at a loss to the funds of said institution.
“The committee further finds that, by order of the board of regents of said Kansas State Agricultural College, Professor Walters, a member of the faculty of said college, was authorized to draw checks on the treasurer of said college in amount not exceeding $1000, for the purpose of establishing and maintaining a bookstore in connection with said college.
“That pursuant to said arrangement the sum of $700 was drawn upon and expended as a sort of revolving fund in the establishment and maintenance of said bookstore ; that said bookstore is still conducted under the direction of Professor Walters as a part of said college work.
“Your committee further finds that there was no warrant or authority of law authorizing the operation and maintenance of said dining-hall or of the bookstore heretofore mentioned, or of either of them.
“In the matter of the second specification of said court, wherein Hoffman and Limbocker were charged with furnishing supplies to said' institution, we find that Regent Hoffman, at the solicitation of members of the faculty at the said college, did furnish flour and bran to said college, while acting as a member of the board of regents, but in so far as he is charged with furnishing these articles at a price above the market price, we find that the charge is not sustained by the evidence.
“We further find that the charge against Regent Limbocker of furnishing supplies to said college is not sustained by the evidence.
“Second charge. We find that the meetings alleged to have been held on the 2d, 3d, 5th and 6th days of July, 1897, were held without any quorum being present at any of said meetings, and that teachers were hired, salaries were fixed, appropriations of money made, and a vast amount of other business was transacted during said time; that at no time during the July meeting, after the 1st day of said month, was there a quorum present, and that only three regents, to wit, Hudson, Hoffman, and Limbocker, were present.
“We further find that among other matters of business that were transacted during the month of July, when no quorum was present, a manifesto was issued and published setting forth various reasons for change in the management of said college, and that said manifesto purported to be the act of all the board of regents of said college, when in fact and in truth the only regents present giving sanction to said manifesto were Regents Hoffman, Hudson, and Limbocker.
“That the minutes of said meeting held on the 2d day of July, 1897, recite that the ‘ board met,’ when in fact and in truth only three members of the board met; that there was no recitation in the minutes of said meeting held on the 2d day of-July, 1897, that showed that no quorum was present. But the minutes of July 3, 5 and 6 show that no quorum was present and no business transacted except to adjourn.
“We further find that at the September, 1897, meeting of the said board of regents a resolution was passed approving the minutes of the said meeting as held on June 30 and ending July 6, inclusive ; and alleging that each and every part thereof was adopted and made a part of the regular action of the board of said meeting, and thereby declaring the same to be fully ratified and confirmed as done at said July meeting.
“We further find that during the interim between July and September Regent Kelly died and Mr. Gr. M. Munger was appointed in his place, and attended and participated in said September meeting, and the. votes in favor of said ratification were cast by Hoffman, Hudson, Limbocker, and Munger.
“But there was no correction of the minutes of said July meeting to show that no quorum was present.
“We further find that the allegation charging that preliminary meetings were held at the hotel at Manhattan and afterwards transferred and entered upon the records of the college is not sustained by the evidence.
“Third charge. With the exception of the matter contained in this charge relating to the statement of the board of regents concerning the reasons for certain changes made at the said college, and which matter we think has received sufficient attention in the findings of the second charge, we find that the allegations contained in the third charge are not supported by the evidence.
“Fourth charge. We find that the report, of the board of regents of said college, found on page 18 of their Eleventh Biennial Report, shows that the total receipts of said college for 1897-T8 were $55,663.80 ; that the amount expended was $56,403.12 ; thereby making the amount expended above the receipts $739.32, in violation of chapter 17 of the Session Laws of 1897.
“ In the matter of the payment of teachers, as alleged in said fourth charge, we find that on pages 3 and 4 of the Eleventh Biennial Report of said board of regents, in next to the last column thereof, the total amount paid is fixed at $40,736.67, when in fact and in truth, owing to a change in the date of the school-years from September 1 to June 1, in order to make the school years correspond with the fiscal years, a much larger sum of money was paid than that pur ported, and we are unable to state the exact amount, and were unable to ascertain the same from the books of the college.
“We further find that, owing to the discharge ,of certain teachers and the employment of others, that in’ some instances the salaries for July and August, 1897, were doubled, and that salaries were paid in such cases to two persons occupying the same position for the same time.
“ Fifth charge. We find chat the sum of $200 was appropriated by the legislature of 1897 for an agricultural museum, and that the sum of about $125 of said appropriation was expended for the benefit of the agricultural museum ; that plans had been drawn for the expenditure of the remainder of said appropriation ; that a short time before said balance should lapse to the state a voucher was made out, duly certified and approved by the treasurer of the board of regents, C. B. Hoifman, and said balance of about seventy-five dollars was drawn from the state treasurer and* the same placed to the credit of the general funds of the college.
“That the work for which the seventy-five dollars was drawn was not completed nor commenced at the time the same was drawn, and has not been completed or finished since that time.
“ Sixth charge. We find that the board of regents fixed the salary of I. D. Graham, secretary and instructor in said college during the school year of 1897-’98, at $1400 instead of $1200 as provided by the Session Laws of 1897.
“We further find that the said board of regents changed the title of said I. D. Graham’s employment to read ‘ secretary, professor of bookkeeping, commercial law, and accounts,’ instead of ‘secretary and instructor ’ ; but that the duties and labor performed by the said I. D. Graham for the year 1897-’98 were not greater than those previously performed in said position.
“We also find that the salary paid William O. Lee, who performed the duties of stenographer in the executive office, was fixed at $800 per year ; and that by the provisions of the Session Laws of 1897 the salary of said position was fixed at $420.
“We further find that the title to the position of Mr. Lee was changed by the board of regents to that of ‘ private secretary to the president ’; but the labors and duties performed by the said Lee were not changed or increased by the change of title, and that he only did and performed the duties and services of stenographer aforesaid.
“Seventh charge. (This charge was not investigated and no evidence offered.)
“Eighth charge. We find that this charge is not sustained by the evidence.
“Ninth finding. We further find that from June, 1897, until April, 1899, the records of the proceedings of the board of regents of said college were kept by the president by virtue of his office as secretary of said board of regents, on loose sheets of paper, and that the said sheets of paper were so marked, marred, blotted, interlined, erased and otherwise defaced as to be of questionable value as records of said college.
“That since this investigation began, and at the instance of said President Will, the said minutes as interpreted by him, owing to the numerous interlineations and erasures on said loose sheets, have been transferred to the permanent minute-book of said board of regents, but during all the time, from June, 1897, when the said Will became secretary of the said board, until April, 1899, and after this investigation began, the only records of meetings of the said board of regents were had and kept on loose sheets of paper as aforesaid.
“That the keeping of the records aforesaid was with the full knowledge of said board of regents.
“Tenth finding. We further find that the board of regents of said college held a meeting in the city of Manhattan on or about the 7th day of January, 1899, at which said meeting the said board authorized and directed the president of said college to enter into written contracts with a large number of the members of the faculty of said college for the two years ending June 30, 1901.”
“RECOMMENDATIONS.
“Upon, the findings aforesaid, we recommend that the said regents, John N. Limbocker and C. B. Hoffman, be discharged and dismissed from further service as members of the said board of regents.
“We transmit herewith stenographer’s notes of the testimony, and the records in this case.
G. H. Lamb.
Z. L. Wise.
Trios. J. Flannely.
R. B. Ward.”
These proceedings resulting in the attempted removal of the plaintiff, which he alleges are void, were had under the provisions of chapter 239 of the Laws of 1889 (Gen. Stat. 1897, ch. 6, §§ 33-35; Gen. Stat. 1899, §§6362-6364). Section 1 of that act provides that whenever charges shall be made by any person or persons, and circulated within the state or presented by such person or persons in writing to the governor, at any time when the legislature is not in session, and said charges shall be deemed worthy of credit or emanating from a reliable or trustworthy source, whereby the management or administration of the affairs of any charitable, educational or penal institution, or the official conduct of any officer in charge of or otherwise connected with any of said institutions, shall be called into question upon the grounds of corruption, venality, inefficiency, misconduct, immorality, or inattention to duties, an investigation shall be had as provided for in the second section of the act. Notice shall be given in writing to the official in charge of the institution, and also to the officer or each of the officers against whom complaint or charges have been made. The second section provides that the governor, the lieutenant-governor and the speaker of the house of representatives of the state shall meet at such time and place as may be named by the governor, and they shall proceed to select a committee of five members of the legislature, whose duty shall be to inquire into the truth of the charges, investigate the affairs of the institution, or examine into the official conduct of the officer named in the complaint. This section then prescribes how the committee shall be constituted, when they shall meet, how they shall organize, and their powers.’ It then provides that they shall employ a clerk and cause a complete and full record of their proceedings to be kept, and that they may employ a stenographer and sergeant-at-arms for the purpose of preserving the testimony produced. Section 3 provides that, having concluded their investigation, the committee shall, under the evidence and by a majority vote of the whole number of the committee, determine the truth or falsity of the charges. They shall make a complete report of their findings, and transmit the testimony in the case to the governor, with such recommendations as they may deem just and appropriate. The governor shall thereupon either dismiss or reinstate the officer or officers named in the complaint, according to the findings and report of the committee. He shall also direct the attorney-general in cases where the laws have been violated to institute such proceedings in the courts as may be necessary to protect the interests of the state and punish offenders.
It is contended on behalf of the plaintiff that this record discloses that the attempted removal of the plaintiff from the office was not in conformity with the statute, that it was therefore ineffectual, that no vacancy was created, and hence that the governor acted without authority of law in attempting to make the appointment of the defendant to fill such assumed vacancy. The particular grounds upon which this con tention is based are, first, that the committee of the legislature selected by the governor, lieutenant-governor and speaker of the house of representatives had no authority to investigate any charges not first presented to the governor and by him adjudged to be worthy of credit or emanating from a reliable and trustworthy source, by means whereof the' management or administration of the affairs of the college or the official conduct of the plaintiff as an officer was called into question upon the grounds specifically enumerated in the statute, viz., corruption, venality, inefficiency, misconduct, immorality, or inattention to duties, such charges to be submitted to the committee by the governor for its investigation ; second, that the committee did not by a majority vote determine the truth or falsity of any of these charges, and did not report to the governor the evidence upon which their verdict was based, as required by the statute; and, third, that the findings of the committee do not separately or in gross afford any grounds for removal under the statute, conceding that they are legal and constitute such a report as the law contemplates.
The supreme court of this state, in Lynch v. Chase, 55 Kan. 371, 40 Pac. 667, said:
“Where the statute gives power of removal for cause, without specifying the causes, the power is necessarily of a discretionary nature, and the removing authority is the exclusive judge of the cause and the sufficiency thereof ; but where the statute specifies the causes for removal and prescribes the procedure, it would seem that removals could not be made for other causes nor in any other method than that prescribed by the statute.” (Mechem, Pub. Off. ¶ 452; State, ex rel. Meader et al., v. Sullivan, 58 Ohio St. 513, 51 N. E. 48 ; Metevier v. Therrien, 80 Mich. 187, 45 N. W. 78; Dullam v. Willson, 53 Mich. 410, 19 N. W. 112; Andrews v. King, 77 Me. 240-243.)
It does not seem necessary to cite authorities in support of the position that the committee could only investigate such charges as were submitted to them by the governor. Before an officer can be called upon to respond in an investigation of this kind the duty devolves upon the governor to exercise his discretion as to whether the charges warrant it. This is the effect of the decision of the supreme court in the case of Householder v. Morrill, 55 Kan. 317, 40 Pac. 664,. It was said there:
“ By the provisions of the statute under which the governor assumed the right to act, he must first determine, before taking any steps whatever, whether the charges are worthy of credit or emanate from a reliable and trustworthy source. This requires the exercise of judgment and discretion, and therefore is not a purely ministerial act.'’
It is judicial in its nature. He must necessarily adjudge whether the charges made come within the purview of the statute. If not, he has no occasion to summon a committee ; he has no right to suspend the officer. The statute specifically prescribes that if he believes the charge to be within the statute he shall suspend the officer. It nowhere gives the committee the authority to entertain other charges than those submitted by the governor. It prescribes the duty of the committee clearly and definitely, and these are to organize, investigate the charges submitted by the governor, vote whether they find the officer guilty or not guilty, preserve the evidence, and report their proceedings with the evidence to the governor for his action. The necessity of a vote upon these charges, to protect the officer, is very apparent. The committee must vote upon each charge separately and not upon the whole. They must keep a record of the vote and all their proceedings and report to the governor. It is not sufficient that the vote on the entire charges he given, but they must vote upon each separately, so the governor may know whether a majority of the committee think that the officer is guilty or not guilty of the specific charge made in the complaint. The statute defines the manner in which they shall determine this most important matter. They cannot otherwise determine it.
It is likewise of grave importance that the evidence be made a part of the record, that the accused and the public may know whether there is any evidence to warrant his conviction. The charge is of a criminal nature, and while it is true that mere informalities or mere irregularities will not defeat the action of the governor in the removal, a departure from the important restrictions of the statute ought to be held, and has been held, by the courts to render the action of the committee nugatory. The failure to vote on the question of guilty or not guilty is not a mere irregularity or informality ; it is the very essence of the proceeding. A failure to return the evidence is not a mere irregularity or an informality. The courts have a right, at the instance of the officer deposed from his official position, to determine whether it has been legally done ; whether he has been deprived of this right of a citizen to hold office according to law. If a committee, out of caprice, should determine his guilt without evidence, it would be the province of the court to quash the proceeding. "While it is true that there is no contractual relation existing between the officer and the public, and while it is likewise true that the officer has no property in his office, yet it is a valuable right, and one of which he cannot be deprived except according to the provision of the stat ute. The power of removal conferred by the statute must be pursued with strictness according to its terms. This is not asking too much.
In considering whether the findings of the committee, assuming that they can take the place of the vote required by the statute, are sufficient in themselves to justify a removal, we need not consider those findings based on the charges contained in the amended complaint, because it is clear to our minds that the committee had no" authority to receive any amended complaint or take any action thereon. The first series.of findings is based upon the charge in the original complaint that Limbocker received and Hoffman paid him fifteen dollars per month for services in connection with the superintendence of the dining-hall. The committee say a revolving fund of $300 was appropriated and set aside and placed to the credit of Limbocker in the Dickinson County Bank for the purpose of maintaining a dining-hall where meals were to be furnished to students, members of the faculty, and other persons visiting said college, and provided for by the board of regents.
They further find that by order of the board of regents the sum of $250 was set apart for the use and benefit of the department of domestic science, and that apart of said sum, the exact amount of which the committee are unable to state, because of the indefinite and uncertain data furnished upon that point, was expended for the purchase of furnishings and material for the operation of said dining-hall.
They further find that Regent John N. Limbocker was by the said board of regents, of which he was a member, engaged and employed as purchasing agent of the said dining-hall at a salary of fifteen dollars per month ; that pursuant to said employment and while acting as a regent of said college, he entered upon the discharge of the duties as such purchasing agent on or about the 1st of September, 1898, and continued so to act until the date of his suspension, which occurred on the 29th of March, 1899.
They further find that the treasurer of said college paid to said John N. Limbocker for his services aforesaid the sum of $105. Do these findings import corruption, venality, misconduct, or immorality? They can have no relation to the other grounds of inefficiency or inattention to duties. They must comprise either corruption, venality, misconduct or immorality touching the discharge of the duties of the office. We can see very clearly where the boarding-house keepers of Manhattan might have ground for complaint, but there is nothing in the findings upon .which a charge of corruption can be predicated against the plaintiff Hoffman. He could derive no benefit therefrom. There is no finding, nor anything tending toward a finding, that it was the expectation of either Hoffman or Limbocker to profit by the maintenance of the dining-hall, except the pittance of fifteen dollars per month paid to Limbocker for his services. A board of regents of a college endowed as is this college is necessarily vested with some discretionary authority, and it is not to be expected that specific authority for every act necessary to be performed or for the best interest of the institution or the students shall be found in the letter of the statute creating it or defining the powers and duties of the board. In what does the immorality consist, or the misconduct? It must be presumed, in the absence of a finding to the contrary, that it was deemed to be to the interest of the institution or the patrons of the institution that a dining-hall should be maintained for their benefit and advantage. There is nothing to negative the proposition that the students paid the fifteen dollars to cover the expenses of Limbocker as a caterer over and above the cost of its maintenance. Had there been a vote upon the charge as originally presented, that Limbocker drew from the treasury of the college fifteen dollars a month unlawfully, knowingly, and intentionally, it might be construed as misconduct, or corruption, or venality; but the finding is that the treasurer paid to Limbocker for his services the sum of $105. That may be true, and yet the treasury of the college, properly speaking, be found not to be depleted one single mill.
The other charge contained in the complaint is that Hoffman and Limbocker as regents of the college during the month of June, 1897, transacted business of vital importance to the college without a quorum, secretly and unlawfully; that they hired teachers, fixed salaries, made appropriations, without having a quorum, in violation of law, and with the full intent and purpose of overriding and thwarting the will of the majority of the board, who, prior to that time, had been present; that said action was in violation of law ; that the preliminary meetings were held at a hotel at Manhattan, and afterward entered on the books of the college, and that through the aid of the secretary of the college they falsified the records respecting said meeting. Now, had there been a vote of guilty upon this charge contained in the complaint, it might reasonably be held that the plaintiff was guilty of corruption, but there was no such vote, and there is no such finding in the record tantamount to the result of such a vote. It is true that the committee find that meetings were held on the 2d, 3d, 4th, 5th and 6th of July, and that the record does not disclose whether there was a quorum at the first meeting or not, but it does disclose that there was not a quorum at each of the subsequent meetings.
The committee further find that at a September meeting following the board of regents, by resolution, approved all the minutes and action of the board at those meetings in June and July, and adopted the same and made the action of- the regents at that time the action of the board, and declared the same to be fully ratified and affirmed as done at this meeting. It is true the finding goes on to say that certain members, being a majority of the board, one of whom was appointed subsequently to the meetings of June and July, voted for this resolution ratifying the action of-the board when it met without a full quorum. Had the evidence been reported and become a part of the record to be brought before the court for its investigation as a part of the report of the committee, as required by the statute, the circumstances surrouhding the members of the board at that time might be fully developed, but it cannot be said that the findings as a whole show venality, corruption, inefficiency, misconduct, immorality, or inattention to duties. It is the duty of the court to determine whether the findings of the committee constitute an offense in the eyes of the law, to justify the act of removal. It was so considered in Rogers v. Morrill, 55 Kan. 737, 42 Pac. 355.
The statute says that the committee shall recommend to the governor their idea of the proper action to be taken upon the x’esult of their investigation. This can only mean that the governor is to exercise his judgment and discretion finally. It is not the judgment of the committee but the judgment of the govexmor that determines the result finally. So that it is the duty of the governor not only to examine the report and the recommendations, but to examine the evidence accompanying the report and every part of the report on the charges submitted to the committee. It is alleged in the petition, and is apparent from the record accompanying it, that the governor rendered his judgment entirely upon the findings and recommendations of the committee. The law intends that an officer shall be removed.for cause only, and those causes are specifically enumerated in the statute. It was not intended that the governor should act upon anything else than the conviction of the officer upon the specific charge made against him, and an attempt to adjudge an officer guilty and remoje him upon any other ground or in any other manner than that provided by the statute is without authority of law and void.
The reputation of a citizen of the state holding an office ought not to be besmirched, a stigma of reproach fixed to it and the citizen deprived of a valuable right except for some serious misfeasance or non-feasance in respect to his office, or some conduct or immorality that renders him unfit for its performance. Otherwise honorable men would be deterred from accepting office and serving the state to its best interests-. The state would be deprived of the services of its best citizens and its interests turned over to political adventurers and speculators in public office. It is evident that the legislature did not intend that these state officers should be at the caprice or mercy of the chief executive, or of a legislative committee convened at his suggestion. Substantial and not frivolous charges against the officer are necessary to secure his removal. (Lynch v. Chase, supra; State, ex rel. Meader et al., v. Sullivan, supra; Mechem, Pub. Off. ¶ 452; State v. Common Council, 53 Minn. 238, 55 N. W. 118; Dubuc v. Voss, 92 Am. Dec. 526; State v. Hastings, 37 Neb. 96, 55 N. W. 774; Andrews v. King, 77 Me. 230; Dullam v. Willson, supra; Metevier v. Therrien, supra.) None of the authorities cited by counsel for the defendant supports the contrary of the conclusions we have reached. A number of these authorities relate to cases of removal where the power was absolute, to be exercised at the discretion of the removing power. Such is the case in Carter v. City of Durango, 16 Colo. 534, 27 Pac. 1057, and in Williams v. Gloucester, 148 Mass. 256, 19 N. E. 348. Others relate to cases involving objections of a merely informal or technical nature. Such were the cases of People, ex rel. Flanagan, v. Bd. Police Comm’rs, etc., 93 N. Y. 97, and People, ex rel. Keech, v. Thompson, 94 N. Y. 461.
It is not contended, nor do we decide, that the trial by the legislative committee should be conducted strictly under the rules of law governing courts ; nor do we hold that it is necessary that the charges should be as formal as was necessary in an indictment at common law or in an information under our criminal practice. The case of Householder v. Morrill, supra, does not militate against our conclusions. It is not necessarily implied, nor do we mean to say, that the governor of the state of Kansas is inferior to this court or to the supreme court, nor do we pretend to say that we can control his discretionary powers as such officer. In that case it was sought by a Writ of mandamus to compel the governor to revoke an order of suspension made by him. Nor is there anything to be found in Lynch v. Chase, supra, not in full accord with what we decide herein. We say that an officer has no vested rights in his office; that the relation is not contractual. We admit that it has been fully settled that the legislature has power to confer the power of removal upon executive and administrative officers, and that their action in the premises is not strictly judicial and only quasi judicial. We admit that the committee appointed by the governor, lieutenant-governor and speaker had authority to investigate the charges submitted to them by the governor, and that where, upon a sufficient notice, and upon sufficient charges being made and sustained by the committee and approved by the governor, the proceedings had being in accord with the statute, the power o! removal exists. We further say that the same formality and precision in the trial are not required as in a trial before the court, and so it was held in McMasier v. Herald, 56 Kan. 231, 42 Pac. 697.
We have carefully examined the decisions of our supreme court construing this statute and the proceedings thereunder, and find nothing that is not in perfect harmony with the decisions on questions of law at which we have arrived herein.
It was stated by counsel for the defendant upon the argument and in the brief, and it was agreed, that the defendant would stand upon the demurrer and that final judgment should be rendered without further pleading.
There will be judgment for the plaintiff against the defendant, ousting the defendant from the office of regent of the state agricultural college and reinstating the plaintiff therein.
McElkoy, J., concurring. | [
-74,
-20,
-40,
-113,
43,
96,
34,
-70,
97,
-77,
-89,
83,
-23,
83,
4,
117,
-9,
45,
80,
88,
79,
-77,
6,
-63,
-78,
-13,
-6,
-43,
49,
-18,
-12,
123,
73,
-80,
-118,
-43,
-58,
-30,
-63,
-44,
-114,
37,
-85,
-49,
-39,
-56,
52,
89,
86,
75,
113,
-33,
-13,
46,
24,
67,
-23,
44,
-39,
-67,
-23,
-79,
-98,
-115,
125,
6,
16,
3,
-98,
-125,
-54,
42,
-104,
49,
-125,
-8,
123,
-74,
2,
84,
79,
-103,
41,
98,
99,
17,
-67,
-91,
-72,
-120,
46,
127,
29,
-90,
-46,
65,
11,
9,
-74,
-99,
53,
80,
7,
118,
-30,
-107,
20,
109,
6,
-118,
-74,
-77,
-113,
60,
-98,
7,
-29,
39,
16,
113,
-124,
-32,
93,
71,
58,
27,
-49,
-112
]
|
The opinion of the court was delivered by
Dennison, P. J.:
Our jurisdiction to decide the errors complained of is challenged upon the grounds that Judge Skidmore extended the time for making and serving the case-made after assuming the duties of the office, instead of Judge McCue, the outgoing judge who tried the case.
Slight diligence in examining the authorities would have shown that the judge in possession of the office, or the court, at the time the extension was made was the proper person or tribunal to extend the time, and that a judge, or a judge pro tern., after his term of office has expired, cannot extend the time for making and serving a case-made. See Hulme v. Diffenbacher, 53 Kan. 181, 36 Pac. 60; A. T. & S. F. Rld. Co. v. Leeman, 5 Kan. App. 804, 48 Pac. 932.
This action was originally commenced in the district court of Labette county by the plaintiff in error to recover, from the funds coming into the hands of the defendant in error as assignee of Angelí Mathewson & Co. the sum alleged to be due, and to charge the estate in his hands with the payment of said amount as a trust fund. The court decided adversely to the claim of the plaintiff in error, and he brings the case here for review. The facts in this case are very similar to those in Insurance Co. v. Caldwell, 59 Kan. 156, 52 Pac. 440, except that the court in this case made no findings of fact, except the general finding in favor of the defendant in error. This general finding is sufficient to sustain the judgment, if there is any evidence tending to support it. It may fairly be claimed from the evidence that the money which Angelí Mathewson & Co. collected for plaintiff in error went to pay the general indebtedness of the firm and the current expenses of its business. We think it may as well be claimed that it went to the betterment of the estate assigned, but the general finding is in favor of the first claim.
The judgment of the court is affirmed. | [
-42,
110,
-44,
-116,
-100,
32,
50,
8,
71,
-15,
39,
83,
-87,
-54,
20,
127,
-42,
43,
-59,
98,
67,
-77,
7,
96,
-10,
-78,
-39,
-35,
-79,
77,
-12,
-33,
12,
50,
-118,
85,
70,
66,
5,
-44,
-58,
6,
-120,
-20,
-39,
64,
36,
121,
16,
9,
113,
14,
-13,
43,
57,
67,
105,
40,
-5,
-79,
-38,
-16,
-118,
-123,
127,
21,
17,
5,
-102,
3,
72,
42,
-112,
57,
-62,
-24,
114,
-74,
-122,
116,
47,
-71,
13,
102,
99,
32,
13,
-17,
-20,
-104,
7,
22,
-97,
-25,
-110,
8,
-85,
13,
-74,
-107,
116,
20,
70,
-4,
-26,
4,
31,
108,
5,
-50,
-42,
-77,
-113,
116,
-108,
-126,
-1,
-125,
48,
113,
-115,
-26,
92,
71,
16,
123,
-98,
-74
]
|
The opinion of the court was delivered by
McElroy, J. :
This action was instituted by the plaintiff in error as plaintiff below against John W. Kidder and wife for the recovery of the amount due upon a bond or note, and for the foreclosure of a real-estate mortgage. A trial was had before the court without a jury'; the court made special findings of fact and conclusions of law, and rendered judgment for the amount due, after applying all payments to the satisfaction of the amount of the principal and interest due upon the amount of money actually received from the association. The court, in effect, held that the purchase of the association’s stock and the loan of money were one contract, constituting the relation of lender and borrower between the parties, and applied all payments accordingly. The plaintiff excepted to the findings and judgment of the court and presents the case to this court for review.
The principal facts, as shown by the record and findings of the court, are as follows : The People’s Building, Loan and Savings Association is a corporation organized and doing business under the laws of New York. The defendants Kidder are residents of the state of Kansas. On the 16th day of May, 1891, John W. Kidder made application, in writing, to purchase of the plaintiff twenty shares of its capital stock, of the par value of $100 per share, by paying the sum of thirteen dollars per month until the stock should be fully paid. At the same time he applied to the association for a loan of $1600. The defendant purchased the stock with a view of procuring the loan. The plaintiff sold the defendant shares of stock with a view of making the loan upon the security offered, but at that time there was no contract necessity that he should accept or that plaintiff should make the loan.
The application for the purchase of stock and that for the loan were made at the same time ; the loan was not actually made, however, until some months later. September 9, 1891, Kidder executed and delivered to the association his bond or note for the amount, secured by mortgage upon real estate, described as lots 277 and 278, in the original town of Scandia, Republic county, Kansas, and as additional security he assigned his shares of stock in writing, as follows :
“In consideration of the sum of $1600, loaned to me by the People’s Building, Loan and Savings Association, of Geneva, N. Y., on a certain indenture bearing date the 9th day of September, 1891,1 hereby assign, transfer and set over unto E. A. Walton, treasurer of said association, all my right, title and interest in my certificate of shares No. 01374, as collateral security to said loan, it being understood and agreed that the amount, of the within-named shares at maturity shall be applied toward the payment of the mortgage debt then due.”
On November 10, 1891, the plaintiff forwarded to the defendant the sum of $1411.34, being the sum of $1600, less $160 retained as a bonus for making the loan, $26.66 interest accrued, and the sum of $2 as a fine imposed for delinquency in making payment as provided by the by-laws. The defendant agreed to pay $13.33 per month — five per cent, interest, and five per cent, premium — on the sum of $1600. These contracts were entered into by correspondence ; they were drawn by plaintiff in New York and sent to defendants at Scandia, who executed and returned them to the plaintiff. All payments were to be made to the secretary of the association at Geneva, N. Y. The court found as a conclusion of law that the contracts amounted to an evasion of the usury law, were usurious, and could not be enforced; that the ultimate object of the contracts, taken together, was the loaning of money and the receiving therefor a rate of interest not authorized •by law ; and that each payment made by the defendant should be applied to the payment of the loan, with legal interest.
The plaintiff and defendants concede that the court made some error in computation of the amount due, by which plaintiff was not given so large a judgment as it was entitled to under the findings of the court, but as both parties agree that this matter will be corrected by mutual consent, we have given it no atten-. tion whatever.
The questions presented by the assignment of error and the record are whether the court erred (1) in holding that the contracts are usurious; (2) in holding that the contracts should be construed by the laws of the state of Kansas with reference to usury; and (3) in applying all of the payments made upon the mortgage indebtedness with interest thereon.
The contract for the purchase of stock and for the loan of money was made by correspondence between Kidder, in the state of Kansas, and the association, in New York ; the place of performance as fixed was at the office of the association in the latter state. This contract, so far as its language could control, was entered into with reference to the laws of the state of New York, and was to be there performed; that is, the purchase-price of the stock and the principal and interest upon the loan were to be paid at the association’s office. However, the mortgage could only be enforced in the state of Kansas. A contract usually is entered into with reference to the laws of the state or country where it is made, or to be performed, but where a contract must be enforced in a particular place, the laws of that state may apply to such provisions of the contract as are in conflict with the laws thereof. In the foreclosure of a real-estate mortgage, the usury law of the state in which the land is situated will govern, although payment of the loan in another state is provided for by the terms of the contract. The contract amounts to an evasion of the usury laws, and it cannot be enforced. Section 2 of chapter 116, General Statutes of 1897 (Gen. Stat. 1899, §3483), limits the power of a creditor to contract for a higher rate of interest than ten per cent, per annum, and section 3 (Gen. Stat. 1899, §3484) provides:
“All payments of money or property made by way of usurious interest or of inducement to contract for more than ten per cent, per annum, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal and ten per cent, per annum, and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid. . . .’’
This is an express inhibition on the power of the court to enforce a contract for any rate of interest in excess of that prescribed by our statute. The bond was for the payment of $1600 ; the defendant received $1411.34, and was required to pay as interest $13.33 per month, called by the contract “contribution of interest” and “contribution of premium,” together with $13 per month upon the purchase-price of the shares of capital stock, to be applied to “loan fund” and “expense fund.” The $160 deducted was called a bonus, the $26.66 accrued interest, and the $2 a fine imposed ; we are unable to distinguish the difference between “bonus,” “contribution of interest,” “contribution of premium,” “fines,” “penalty,” “loan fund,” and “expense fund,” as used, and simply interest. The transaction, taken as a whole, is very much confused ; in fact, it appears to have been planned for the purpose of creating confusion, but as a whole it amounts simply to the loaning of money by the association, together with the collection of a consideration for the use of the same, which is usually called interest.
Taking this view of the matter, many of the elements of uncertainty and confusion are eliminated. The association had nothing in view except the loaning of money and the collection of interest, under the various names of bonus, penalty, contribution of interest, contribution of premium, contribution to loan fund, and contribution to expense fund, nor had Kidder anything in view except to borrow money and repay the same with interest. We do not doubt that this contract is in harmony with the laws of New York, nor have we any objection to such association enforcing such contract in that state. It seems, however, that while the association desires to claim all the benefits of a New York contract as an abstract proposition, it desires the courts of this state to enforce the same as a Kansas contract, for the purpose of enabling it to secure the foreclosure of its lien upon Kansas soil for the payment of a usurious contract. This contract, made as it was by correspondence, with a view of being enforced in this state, is a Kansas contract. Both contracts were entered into at the same time ; Kidder made application for the purchase of stock and for a loan at the same time, as a part of the same transaction. It is apparent that neither of the parties to this transaction would have entered into one of these contracts if the other had not been contemplated. To view the purchase of stock and the loan as two transactions, resulting in two contracts, is to obscure the real transaction by a shadow. There appears to have been an effort made by the use of language with contract forms to give to the transaction the form of separate contracts, but the contract provides that “the amount of the within-named shares, at maturity, shall be applied toward the payment of the mortgage debt then due.” It was therefore contemplated that the loan should be paid, at maturity, from the stock assessments, and expressly agreed that such assessments are to be applied, sooner or later, to the payment of the amount due on the loan. This entire transaction on the part of the association seems to be a scheme to avoid the usury statute, and all payments made should be considered as payments on- account of the loan, together with legal interest. It is wholly impossible to harmonize the decisions of the various states upon such contracts as the one now before the court. The legislature has provided for the exemption of such contracts from the usury law in behalf of associations organized under the laws of this state. (Gen. Stat. 1897, ch. 66, art. 5; Gen. Stat. 1899, §§ 1351-1389.)
There was but one contract, that for the loan of money with interest; there was but one relation be tween the parties, that of debtor and creditor. The contract must be construed by the laws of this state, and is usurious. All the payments must be applied to the payment of the mortgage indebtedness with' interest.
The judgment must be affirmed.
Mahan, P. J., concurring. | [
-14,
110,
-80,
-98,
-118,
96,
42,
-102,
73,
-80,
-91,
83,
-55,
-61,
5,
111,
-1,
45,
69,
106,
-9,
-77,
7,
-24,
-46,
-13,
-15,
-51,
-80,
125,
-10,
-41,
8,
48,
-62,
21,
-26,
-62,
-61,
20,
-114,
-121,
10,
76,
-37,
72,
52,
91,
48,
72,
85,
-66,
99,
45,
28,
-22,
105,
44,
111,
61,
81,
-72,
27,
-115,
95,
7,
-125,
33,
-100,
71,
-24,
-66,
-104,
53,
1,
-56,
120,
-90,
-122,
-76,
13,
-101,
45,
34,
98,
51,
21,
-23,
-8,
-103,
38,
-41,
-99,
-89,
-77,
88,
-126,
33,
-74,
-99,
69,
5,
7,
-2,
-82,
28,
25,
108,
7,
-33,
-10,
-109,
-115,
116,
-101,
-117,
-1,
35,
32,
113,
-52,
32,
92,
-26,
26,
27,
-113,
-80
]
|
The opinion of the court was delivered by
McElroy, J. :
This action was brought in the district court of Jackson county by Maggie M. Hicks against the city of Holton to recover damages for personal injuries which she alleged she had sustained by reason of a defective sidewalk'on one of the streets of the city.
The amended petition alleged that the sidewalk in •question was about twelve feet wide, constructed many years before by parties unknown to plaintiff; that there was an area way underneath the sidewalk constructed about the same time; that coal holes or openings were constructed in said sidewalk, which were covered by movable trap-doors; that the trapdoor in question was supported by cleats of wood nailed underneath; that the walk and trap-door had been in use many years, had become rotten, defective, and unsafe, and that the cleats had become rotten, defective, and unsafe ; that at the time the sidewalk, trap-doors and area way were constructed the city knew of their construction, knew tlie manner of their construction, and knew that the supports, trap-doors and walk had become rotten, defective, and unsafe ; that the city had actual notice of the defects in the walk, trap-doors, and supports thereto, and that the defects had existed for such'time that by the exercise of reasonable diligence said defects could have been discovered and remedied; that the walk in question was one of the principal traveled walks in the city; that her injuries were such that she was compelled to keep her bed for a period of about six weeks thereafter ; that she was permanently injured, rendered incapable of performing her household duties, and was permanently crippled; that she suffered great bodily pain ; that she had been compelled to expend for medical assistance $130, and had expended for nurses in her sickness $50 ; and that by reason of her injuries she suffered great pain in body' and mind, and had sustained damages in the sum of $5183.
The answer of the defendant was (1) a general de nial; (2) an admission that it was a municipal corporation ; and (3) alleged, among other things, that the sidewalk described in plaintiff's amended petition was along the side of and abutting against certain real estate in said city then owned by, in the possession and under the control of one W. D. Green, who was originally made a party defendant in said action ; that under and by virtue of three certain valid ordinances of the city (copies of which were attached to the answer) Green was obliged to construct the sidewalk and keep the same in repair at his own cost and expense ; that the person under whom he claimed title to the real estate abutting upon said sidewalk, without any license or lawful authority therefor on the part of the defendant or its officers, excavated into the public street of the city in front of the real estate, for the purpose of creating a coal cellar or area to be used for the accommodation of and as an appurtenance to the building on the lot abutting on the sidewalk, and then constructed the sidewalk in question on top of and over said coal cellar or area so excavated into the public street of said city ; that-in constructing the sidewalk he'left a coal-hole or opening in the same, which he securely covered with trap-doors, but that said sidewalk and trap-doors were constructed in a safe and careful manner; that the same were constructed by the said Green, or the person who then owned the abutting real estate, without authority or license from the defendant or .its officers; that the said Green, at the date of the alleged injuries, was solely responsible for the maintenance of the sidewalk ; that he was then wholly solvent, and that if any defect existed therein which in any manner contributed to plaintiff's alleged injuries the same was a latent defect, which could not by the exercise of rea sonable care and diligence on the part of the defendant, its officers or agents, have been discovered; that no officer or argent of the defendant had any notice or knowledge that such defect, if any, existed; that the injuries of the plaintiff, if any, were -not occasioned by any negligence or want of care on the part of the defendant; and that on the 16th .day of April, 1896, on application of the plaintiff, and over and against the objection of defendant, the action was dismissed as against the defendant Green, but that by reason of the premises said Green is primarily liable to the plaintiff for such damage as she may have sustained, if any, by reason of any of the matters alleged in her petition. The defendant city prayed that Green be made a party defendant; that on the final hearing the plaintiff be adjudged to take nothing by her said action, and that the, defendant recover its costs.
The plaintiff replied, admitting the passage and taking effect .of three ordinances as alleged, and denying all other allegations of the answer except such as were in plaintiff’s petition alleged or admitted to be true.
The jury returned a general verdict in favor of the plaintiff; the defendant filed‘its motion for a new trial, which was overruled, and the court rendered judgment against the defendant city for $1500 and costs. To all of which proceedings the defendant city duly excepted. The defendant, as plaintiff in error, presents the case to this court for review, and alleges error in the proceedings of the trial court. .
First. That the court erred in the admission of incompetent testimony. The manner in which the sidewalk, trap-door and area way in question were originally constructed was not in dispute. There was no conflict in the evidence concerning that question, but the city in its answer alleged "that said sidewalk and trap-doors were constructed in a safe and careful manner; that if any defect existed the same was a latent defect which could not by the exercise of etc. . . . be discovered.” This was denied in the reply, but whether the manner of construction was " safe and careful ” was an issue. The sidewalk, trap-door and area way were all described by the various witnesses ; the. claimed defects were all described and pointed out by witnesses who claimed to' have.knowledge of them. The supports upon which the trap-door rested were offered in evidence and inspected by the jury for the purpose of ascertaining whether they were securely nailed. The character and extent of the claimed defects were comprehensible by the ordinary person.
The court at the trial, over the objection of the defendant city, permitted a number of witnesses on behalf of plaintiff to give their opinions as to whether the area way, sidewalk and trap-door in question were originally constructed in a safe and proper manner, and to give their opinions as to whether the trap-door appeared to be in a safe condition a short time before the date of plaintiff’s injuries. Four of these witnesses were carpenters; they each detailed the manner of construction, situation and condition of the trap-door and area way, and stated that "it was not properly constructed,” that "the plan of construction was not right,” that "the cover should have rested on joists,” that "it was an improper manner in which to make a support for a covering to a scuttle-hole to nail cleats upon joists underneath and permit the covering to rest only upon these cleats,” that "the trap-door should rest upon the joists,” that "it would do a little while, but would be liable to give out in a little while if the trap-door in the sidewalk was so arranged that the covering would not rest upon the sills, but merely rest upon cleats nailed to the sills.” Several other witnesses gave opinions who were not carpenters or experts of any character; they were permitted to testify that “the scuttle-hole was in rather a bad condition,” “it seemed to be unsafe,” “ it looked like it was unsafe.”
Where the relation of facts and their probable result can be determined without special skill or study, the facts must be given and the jury left to draw their own conclusions. The plaintiff was permitted to introduce witnesses, some of whom were expert carpenters, and others not shown to be experts or possessed of any peculiar skill, but who had seen the street, area way and trap-door at which the accident in question occurred. The court permitted the plaintiff, over the objection of the defendant, to introduce in evidence the opinions of such witnesses, that in their opinion “the trap-door was not properly constructed,” that “it was in a bad condition,” that “it was not constructed right,” it “seemed to be unsafe,” that “it was an improper manner to make a support for a covering to a scuttle-hole to nail cleats upon joists underneath and permit the covering to rest only upon those cleats.” The admission of su'ch testimony calling for the opinion or conclusion of the witness was prejudicial error. The defects as described in detail by the witnesses were capable of being understood by the jurors., as well as by the witnesses. The witnesses ought not to have been permitted to give their conclusions, but this testimony should have been confined to a detailed statement of the facts showing the condition which would tend to support the claim of the plaintiff. (Junction City v. Blades, 1 Kan. App. 85, 41 Pac. 667; Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554; City of Parsons v. Lindsay, 26 id. 426; C. R. I. & P. Rly. Co. v. Clonch, 2 Kan. App. 728, 43 Pac. 1140; Insley v. Shire, 54 Kan. 793, 39 Pac. 718.) There are, however, two Kansas cases apparently in conflict with these authorities, Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 Pac. 730, and City of Topeka v. Sherwood, 39 id. 690, 18 Pac. 933. In the Jones case, the witness was permitted to testify that he was in the employ of the Solomon Railroad Company. Similar questions arose upon the testimony of McQuire and other witnesses. The court held this testimony incompetent, but held its admission immaterial.
The case of Sherwood, supra, was an action for personal injury. The court permitted one Smith to testify:
“ Q,. I will ask you to state, from your own observation of the condition of that walk, up to the time of its repair, whether that walk was in a safe condition, or in a dangerous condition. A. I considered it in a dangerous condition all the time until it was repaired.”
The court held the testimony incompetent, but from the fact that the witness minutely set forth the conditions of the walk and described the same so that the only reasonable deduction necessarily followed that the walk was dangerous, and from the fact that a great preponderance of the evidence tended to prove that the sidewalk was dangerous, the court reluctantly held it error without prejudice.
The testimony was incompetent, improperly admitted, and we are unable to say that the defendant was not prejudicially affected thereby.
Second. That the court erred in refusing to instruct the jury “that the plaintiff is not, under the evidence, entitled to iecover any amount of damage for loss of-time.”
The undisputed testimony shows that plaintiff was a married woman; that her only occupation was that of housekeeping for her husband and family ; hence, any loss of time belonged to her husband and he alone could recover therefor. The above instruction should have been given to the jury. The instructions given upon the measure of damages were not very clear, and were likely to mislead the jury. The instructions given upon the measure of damages should been modified by the instruction requested by the defendant above set out.
It is unnecessary to comment upon- the other assignments of error; they are without special merit. On account of the errors hereinbefore noted the judgment must be reversed. | [
-47,
104,
-12,
-82,
122,
96,
10,
-102,
123,
-111,
-75,
95,
-87,
-60,
77,
99,
123,
127,
-47,
59,
-31,
-77,
67,
-29,
-78,
-5,
99,
87,
49,
79,
-28,
85,
92,
49,
-54,
-91,
70,
-118,
-57,
22,
-126,
-89,
-103,
-52,
-39,
64,
52,
123,
32,
15,
-15,
-97,
-21,
43,
29,
-61,
105,
40,
75,
61,
-37,
-79,
-128,
21,
93,
7,
-95,
102,
-100,
-125,
-38,
42,
-112,
52,
24,
-72,
115,
-74,
-122,
84,
75,
-37,
12,
100,
98,
33,
-115,
-25,
-24,
-104,
15,
90,
-83,
-90,
-107,
57,
57,
2,
-66,
-99,
84,
4,
70,
122,
-10,
68,
25,
44,
-115,
-54,
-112,
49,
-49,
48,
-108,
-127,
-49,
7,
50,
113,
-50,
102,
92,
-58,
23,
-101,
10,
-40
]
|
The opinion of the court was delivered by
Mahan, P. J.:
The record does not sustain either the first or third assignment of error. The plaintiff in error w'as ultimately permitted to introduce all the evidence which is the "basis of the first assignment, but offered none under the third assignment. Under the second assignment of error, it is contended by the plaintiff in error that the transfer of the insurance policy, taken out and held by Ray, to the defendant in error, was to be taken as an absolute payment of the amount thereof, namely, $800. It was contended on behalf of the defendant in error that the transfer of the policy was as collateral security to the judgment, and was not as payment at the face value of the policy. Upon the evidence the court found for the defendant in error,. and so finding, it was proper to allow the necessary expenses of collecting the policy, including a reasonable attorney fee, and in this the evidence sustains the action of the court. Under the fourth assignment, it is contended that, there having been a judgment and decree of foreclosure upon the note and mortgage, the mortgage was merged in the judgment, and being so merged no longer afforded the defendant in error any ground for relief; that he could not predicate upon any of the conditions of the mortgage any act that might have been justified thereunder prior to the decree. In support of this contention we are cited to the case of McCrossen v. Harris, 35 Kan. 178, 10 Pac. 583. The rule announced in that case was embodied in the syllabus, as follows :
“Where a mortgage of real estate is merged into a judgment, which includes all the taxes due upon the land at the date of its rendition, the payment by the judgment creditor of taxes accruing on the premises after the judgment will not constitute a separate and independent lien on the land, which can be enforced by action, after the judgment debtor has satisfied the judgment, interest, and costs.”
In the course of the opinion the court said:
• “ Under some circumstances perhaps a party might pay the taxes for the protection of his lien, and for such payment equity might give him a lien in connection with the judgment; but such a case is not presented. All of the taxes prior to 1883 were included in the judgment.- For the protection of his judgment lien, it was not necessary to pay the taxes of 1883.”
The court further said in the opinion that at the time the plaintiff paid the taxes the mortgage had been extinguished by being merged into the judgment ; therefore the taxes were not a lien in connec tion with the mortgage. At the conclusion of the opinion the court said:
“ It seems very unjust that the plaintiff should pay these' taxes and not be able to recover the amount thereof. But as the payment must be regarded as voluntary the law does not give, a remedy.”
It will be observed that this was not a supplementary proceeding in the case in which the decree was rendered, .in the nature of a bill of review under the old chancery practice, but an independent action to recover the money paid after the decree, and begun after the satisfaction of the judgment. That the defendant in error had a right before the decree of foreclosure to redeem the land and charge the same, either under the statute or under the terms of the mortgage, to the plaintiff in error there is no doubt. Nor is there any doubt that a court of equity has a right, before the final determination of the suit, to make additional orders or decrees based upon the rights of the parties respecting the matter in litigation. It may even bring in additional parties, whose presence may bé necessary for such purpose, so that the relief asked by the supplementary bill or petition is connected with and based upon the original cause of action or subject-matter of the suit. Under the evidence it was necessary, and the court so found, in effect, that this redemption should be made, to preserve to the defendant in error any benefits under the decree.
Supplemental bills in the nature of bills of review, based upon matters arising under the principal decree, and before the final determination of the case and the enrolment of the decree, were of frequent occurrence under the old chancery system, and that the right still exists there can be no doubt. Although by the terms of the code all distinctions between law and equity have been abolished, this did not abolish the right — the jurisdiction — of the court to grant such relief upon proper occasion, and it seems to us clear that this was such an occasion.
The judgment is affirmed. | [
-14,
110,
-47,
-82,
-54,
96,
42,
72,
-63,
16,
-73,
95,
-19,
-54,
20,
45,
-12,
105,
101,
98,
69,
-93,
39,
67,
-14,
-78,
-63,
-60,
-75,
109,
100,
-97,
76,
56,
-54,
-11,
102,
10,
-59,
84,
-50,
-114,
-70,
101,
-39,
64,
52,
79,
18,
9,
117,
-53,
-93,
46,
17,
67,
104,
40,
-56,
49,
-15,
-72,
-97,
-115,
111,
4,
-79,
117,
-40,
15,
-40,
46,
-110,
61,
0,
-22,
123,
-90,
-122,
116,
77,
-101,
9,
102,
102,
0,
85,
-17,
-12,
-104,
47,
117,
13,
-90,
-110,
88,
-117,
13,
-73,
-99,
101,
0,
6,
116,
-28,
20,
29,
108,
9,
-82,
-42,
-80,
-51,
118,
-104,
11,
-9,
3,
-96,
81,
-49,
-88,
93,
38,
126,
-109,
-98,
-35
]
|
The opinion of the court was delivered by
McElroy, J.:
This action was brought by J.> H. Hunt for the recovery of an amount alleged to have been paid as illegal and unlawful fees which were wrongfully, illegally and unlawfully charged .and collected by Gardenhire, as clerk of the district court of Shawnee county. The action was instituted on the 28th day of April, 1898, against Gardenhire, as principal, and Jetmore and others, as sureties on his official bond. Gardenhire was not served with summons, nor did he enter his appearance in the action. The other defendants filed their demurrer to plaintiff’s petition, which was sustained. The plaintiff elected to stand upon his petition; judgment was rendered against him for costs and he presents the record to this court for review.
The plaintiff in error, plaintiff below, contends that the trial court erred in sustaining the demurrer and in rendeiing judgment against him for costs. The defendants in error contend that the demurrer was properly sustained; that the several causes of action were barred by the statute of limitations; that plaintiff's only remedy was by motion to retax costs, and that the petition shows a voluntary payment with full knowledge of all of the facts ; hence there can be no recovery.
The plaintiff, for his first cause of action, alleged, in substance, that from the 1st day of January, 1893, to the 1st day of January, 1895, Gardenhire was the duly elected, qualified and acting clerk of the district court of Shawnee county; that as clerk he filed his bond, which was approved, conditioned that he would faithfully pay over to the proper person or persons all moneys which should be by him received in his official capacity as clerk, and-faithfully discharge the duties of said office. The defendants Jetmore, Mar-burg, Turner, Willard and Burgess were his sureties. A copy of the bond with the indorsements thereon is set out in the petition.
It was further alleged that Gardenhire, as clerk, unlawfully, wilfully and knowingly taxed, charged, collected and received of plaintiff certain excessive, illegal costs, claimed and represented by him to be lawful costs on account of services performed; that plaintiff was required to and did pay the excessive, illegal costs, not knowing or understanding at the time that the costs or any part thereof were illegal or excessive ; that plaintiff, relying upon the honesty and integrity of the clerk in performing his official duty faithfully, his special knowledge of what constituted legal costs, and bis special knowledge of the services performed, paid the amount demanded without no tice or knowledge that any part of the amount was illegal or excessive; that Gardenhire wilfully, unlawfully and purposely taxed, charged, received and extorted from plaintiff the illegal and excessive costs as aforesaid ; that on or about the — day of May, 1895, Gardenhire left the state of Kansas, and has ever since been absent from said state and a non-resident; that plaintiff has no means of knowing what said charges were for, except as the same appears upon the appearance docket. The plaintiff set out the items claimed as excessive, illegal fees, and marked the same “exhibit A.”
Plaintiff further alleged that Gardenhire has been guilty of a breach of his bond, and by reason thereof defendants Jetmore, Turner, Willard, Marburg and Burgess have become liable for the amount of the excessive and illegal costs so charged and collected as aforesaid, to the loss, injury and damage of plaintiff; that the plaintiff, within one year before the commencement of this action, demanded the payment of the amount herein claimed, which defendants have failed, neglected and refused to pay; that he has been unble to make a demand on the defendant Gardenhire for the reason that he is a non-resident, and has been a resident of the state of New York since the payment of the costs as aforesaid; that plaintiff did not discover that the costs so collected were illegal and excessive until within one year prior to the commencement of this action; that by reason thereof he has lost, has been injured and damaged in the sum of $40, which is now due from defendants ; that he paid the excessive, illegal costs on the 21st day of August, 1893, in an action wherein Hunt & Evans were plaintiffs and O. H. Titus and others were defendants ; that said costs were wrongfully, wilfully and knowingly withheld by Gardenhire out of money in his hands as such clerk, to which the plaintiff was at the time enr titled; that the partnership of Hunt & Evans has been dissolved, and that plaintiff has succeeded to all rights of the firm and to the cause of action herein set out.
There are fifty-six separate causes of action set out in the petition. The allegations of the first are applicable to forty-six of the causes of action, the only difference being in the date on which plaintiff paid the alleged illegal costs. The dates vary from January, 1893,'to December, 1894. All of the payments made by plaintiff are alleged to have been made on or prior to December 3, 1894; the payments were therefore made more than three years before the action was brought.
The plaintiff, in substance, for his forty-seventh cause of action, makes all the allegations of his first, together with “exhibit A”, a part, and says further, that on or about the 15th day of October, 1896, the costs were paid by him, and wrongfully, wilfully and knowingly withheld by Gardenhire, out of money in his hands, as clerk, to which plaintiff was at the time entitled, in an action wherein Hunt & Evans were plaintiffs and James T". Best and others were defendants ; ■ that in addition to the items of excessive costs set out in the first cause of action, Gardenhire, in the last-named action, received and collected from plaintiff $3.50, excessive and illegal costs, by reason whereof the defendants are indebted to plaintiff in the sum of $43.50 ; that prior to the time the costs were paid the defendant’s term of office expired, but before the expiration of the term of office he taxed, charged and set out upon the appearance docket the costs by him taxed and charged; and he directed Cockrell, as his successor in' office, to collect the costs so taxed and charged, and the same were collected as aforesaid.
The allegations of this cause of action are applicable to the other nine. It is alleged.that Gardenhire, prior to the expiration of his term of office, unlawfully, wilfully and knowingly taxed and charged upon the books of his office excessive, illegal and unlawful fees, and that he directed his successor in office to collect the same. His term of office expired on January 1, 1895; hence these wrongs were all done and perpetrated more than three years before the action was instituted. We take it that this is an action in tort, and that the cause of action accrued at the time the unlawful acts were done which resulted in the injury and damage to the plaintiff. Under the first series of causes of action set out, the unlawful acts resulting in the injury to plaintiff’s right occurred by reason of Gardenhire’s unlawfully, wilfully and knowingly taxing, charging, collecting and receiving certain excessive and illegal costs.
All of these acts were done and performed more than three years prior to the institution of the action. The unlawful acts of Gardenhire in the last series .of causes of action, which resulted in injury to plaintiff, were that prior to the expiration of his term of office he taxed, charged and set out upon the books of his office illegal and unlawful costs which were afterward paid to his successor in office. All of the unlawful acts charged against him, which resulted in injury to plaintiff, were done and performed more than three years prior to the commencement of the action. A cause of action for an injury to the rights of another, not arising upon contract, is barred in two years. (Gen. Stat. 1897, ch. 95, § 12, subd. 3; Gen. Stat. 1899, §4262, subd. 2.)
It appears from plaintiff’s petition that all of the alleged causes of action were barred at the time the action was instituted.
With our view of the statute of limitations applicable to the several causes of actions set out, it is unnecessary to examine further the other contentions. The demurrer was properly sustained. ¡
The judgment is affirmed. | [
-42,
108,
-72,
-35,
-54,
-64,
2,
30,
67,
-93,
-96,
87,
-87,
-57,
0,
115,
114,
127,
113,
120,
-50,
-78,
99,
98,
-78,
-13,
-55,
-59,
-71,
77,
-12,
-41,
76,
-80,
42,
-107,
70,
66,
-59,
92,
-114,
-120,
-119,
108,
-7,
64,
52,
57,
55,
75,
113,
62,
-5,
42,
21,
115,
104,
44,
-39,
-87,
-47,
-47,
-110,
5,
125,
31,
17,
7,
-100,
6,
88,
42,
-104,
57,
0,
-8,
122,
-106,
-122,
84,
13,
-103,
9,
102,
98,
35,
-107,
-83,
-88,
-84,
38,
48,
29,
-90,
-110,
73,
99,
13,
-106,
-99,
118,
16,
71,
-10,
-27,
20,
29,
44,
75,
-113,
-106,
-109,
14,
52,
-98,
19,
-1,
40,
48,
97,
-51,
-30,
92,
71,
114,
-101,
-49,
-104
]
|
The opinion of the court was delivered by
McElroy, J. :
This action was brought by the First National Bank against Peter Quint and Margaret Quint to recover an amount claimed to be due upon five promissory notes, the first three notes for $890 each, the fourth for $537.65, and the fifth for $800.
The plaintiff in its petition set out its first, second, third and fourth causes of action in the usual form, referring to the notes as exhibits “A,” “B,” “ C,” and “D.” Copies of the notes, together with the credits and indorsements thereon, were attached to and made apart of the petition. “Exhibit A” was indorsed “ ll-9-’93, this note is extended to September 1, a. d. 1894. Int. paid by note” ; and exhibits “ B ” and “ C ” were indorsed the same.
In its fifth cause of action, the plaintiff set out that, at the time of the execution of the note set out as “exhibit A,” the defendants also gave to plaintiff two notes, one for $185.80, and one for $851.85 ; that defendants thereafter paid a sum sufficient to reduce the amount of these notes to $800 ; that on the 2d day of March, 1893, defendants made and delivered, in lieu thereof and as a renewal, a note in the sum of $800, by which they agreed to pay to plaintiff that sum of money. This note was set out as “exhibit D” and indorsed:
“5-13-’93, int. paid to June 15, ’93.
“6-28-’93, int. paid to July 1, 1893.
“ 7-20- 93, int. paid to Aug. 1, ’93, by Yost’s check.
“11-9-93. This note is hereby extended to Sept. 1,1894. Int. paid by note.”
The defendants moved that plaintiff be required to make its petition more definite and certain as to the first, second, third and fifth causes of action, which motion was overruled. The defendants filed a demurrer to the fourth cause of action, which was sustained. Thereafter defendants filed their answer, consisting of a general denial and pleas of usury, payment, want of consideration, misappropriation of mortgaged property, and fraud, and prayed judgment against the plaintiff in the sum of $920.03. The reply was a general denial. A trial was had before the court and a jury, which resulted in findings and judgment for plaintiff for $1833, with interest at ten per cent. and costs of suit. A motion for a new trial was overruled, and the defendants, as plaintiffs in error, present the case to this court for review.
The assignments of error present but three questions for consideration, which we will take up in order.
First. That the court erred in overruling the defendants’ motion to make the petition more definite and certain. The defendants by their motion sought to have plaintiff’s petition made more definite and certain in this, that the bank specifically state the amount of interest paid on exhibits “A,” “B,” and “C” ; that it state the amount paid in reducing the indebtedness on the two notes mentioned in the fifth cause of action to the sum of $800 ; that it set out the amount and date of each payment; that it state the amount of interest paid by each, by note and by Yost’s check. The action was upon promissory notes for the unconditional payment of money. Section 119 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4373), reads:
“In an action, counter-claim or set-off founded upon an account, promissory note, bill of exchange or other instrument for the unconditional payment of money only, it shall be sufficient for a party to give a copy of the account or instrument, with all credits and indorsements thereon.....”
The notes were set out as exhibits, together with all the credits and indorsements as they appeared thereon. It is not claimed that there were other credits or in dorsements upon the notes than those set out, but it is insisted that the credits and indorsements as they existed upon the notes were insufficient. This section authorizes t.he party to set out as an exhibit copies of' his notes, together with all the credits and indorsements thereon as they are on the original. The pleader fully complies with this statute when he sets out an exact copy of the instrument sued upon together with all the credits and indorsements which have been made thereon. The motion that plaintiff be required to make the petition more definite and certain was properly overruled.
Second. That the verdict is not sustained by sufficient evidence and is contrary to law. The plaintiff upon its several causes of action claimed judgment for something over $3000 ; the defendants denied any indebtedness, pleaded usury, payment, want of consideration, misappropriation of mortgaged property, and fraud; they prayed judgment against the plaintiff for something like $900. Each of the parties introduced ' testimony tending to support his claim. There áre about 200 pages of testimony. The evidence is very conflicting. There is some testimony, however, tending to show usury charged in all of the notes set up in plaintiff’s petition, and in some of the notes of which these were renewals. Some of the testimony tends to show cash payments made upon account of the notes, and the delivery of wheat for credit on the indebtedness. Nearly all of this testimony was contradicted by plaintiff. Upon this conflicting testimony, the jury returned a general verdict for plaintiff in the sum of $1833. It is evident from this verdict that the jury did not believe all of the defendants’ testimony, nor all of plaintiff’s; that there was some usurious interest included in these notes, the exact amount, however, is not clear ; nor does it clearly appear from what date the bank commenced to charge usurious interest. The weight of the evidence tends to show an indebtedness upon the part of the defendants upon the notes in question. However, it was solely within the province of the jury to say from all the evidence whether there was an indebtedness, and if so, the amount. There is some competent evidence tending to support the findings of the jury and the judgment of the court. The findings are therefore conclusive so far as this court it concerned, both as to the fact of the indebtedness and the amount.
Third. That the court erred in instructing the jury. The court instructed the jury upon the question of usury as follows:
“3. If you believe from the evidence that the plaintiff bank knowingly charged or received, on the notes sued on, interest at a greater rate than ten per cent, per annum since May 25, 1889, or greater than twelve per cent, prior to that date, and you further believe that these notes were only renewals of other notes which the bank held, and that on such other notes interest was knowingly charged or received by the bank at a greater rate than ten per cent, per annum, then you should, in arriving at your verdict, only allow the bank the actual amount of money represented by such notes without any interest, and if you find that the defendants have paid to the bank a sufficient sum to cover such original amount without interest, you should find for the defendants.
“4. You are further instructed that, if you find any usurious interest was contracted for as to any of the notes at any time by the parties to this action, such contract for usury would not offset the legal interest previously charged or contracted for, but you should not allow the plaintiff anything upon account of interest after the date of said usurions contract, upon the notes sued on/'
It is the last paragraph of the instructions which is complained of by the plaintiffs in error. Section 5198, Revised Statutes of the United States, provides:
“The taking, receiving, reserving or charging arate of interest greater than' is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon.”
There is some evidence in the record that the notes were tainted with usury and that the jury so found.
The transactions between the Quints and the bank cover a period of about nine years and a large number of notes. The original notes were given in 1888 ; there is no testimony showing these original notes contained usurious interest. The testimony tends to show that at a later period, however, certain renewal notes became tainted with usury; it is evident from an examination of the record the jury made some allowances for such usury. The contention of plaintiffs in error in substance is, that section 5198 destroys the interest-bearing power of a note; that if a usurious contract is entered into at any point of time in relation to the note, or renewals thereof, such contract relates back to the inception of the note, and works a forfeiture of legal interest which had accrued prior to its renewal into a note at an illegal rate. This section clearly means that the entire interest upon a note'or bill on which an illegal rate of interest has been charged, received or contracted for shall be forfeited. We are of the opinion that a valid, preexisting debt, including principal and legal interest, is never affected by the vice or taint of usury subsequently agreed upon. We find nothing in the case of Shafer v. National Bank, 53 Kan. 614, 36 Pac. 998, in conflict with, this view. The principle seems to be that a contract which in its inception is not affected by usury can never be invalidated by any subsequent usurious transaction. If the original notes were valid, but in subsequent renewals they become tainted with usury, the taint of the second illegal contract does not affect the validity of the original notes. (Nichols v. Fearson, 7 Pet. [U. S.] 109; Burnhisel v. Firman, 22 Wall. 174.)
In the case at bar there was some evidence tending to show that there was usury in some of the later renewal notes involved; it therefore became the duty of the court to instruct the jury :
‘ ‘ If you find any usurious interest was contracted for as to any of the notes at any time by the parties to this action, such contract for usury would not affect the legal interest previously charged, or contracted for, but you should not allow the plaintiff anything upon account of interest after the date of said usurious contract upon the notes sued on.”
From the amount of the verdict, it is evident that the jury found that the notes in question were tainted with usury. Usury destroys the interest-bearing quality of a note. The court was not authorized therefore to render judgment for ten per cent, interest. The judgment should bear interest at the rate of six per cent. The judgment will be modified in this respect and affirmed as modified. | [
-14,
120,
-112,
-66,
-54,
96,
40,
-102,
65,
-96,
-91,
83,
105,
-57,
20,
33,
-10,
-87,
81,
122,
86,
-77,
7,
-62,
-46,
-77,
-15,
93,
-79,
109,
-28,
-43,
77,
48,
-54,
-43,
102,
-94,
-61,
84,
-114,
-91,
40,
-27,
-39,
64,
52,
25,
33,
73,
113,
78,
-29,
44,
23,
90,
105,
40,
106,
61,
-16,
-8,
-117,
13,
125,
23,
-109,
87,
-98,
76,
-54,
14,
-112,
49,
0,
-24,
122,
-74,
-122,
84,
85,
25,
13,
102,
98,
16,
69,
-17,
-84,
-88,
39,
126,
63,
-90,
-110,
104,
11,
41,
62,
-99,
117,
81,
7,
-10,
-2,
5,
25,
108,
7,
-53,
-106,
-111,
-97,
116,
28,
3,
-9,
-93,
32,
112,
-114,
32,
92,
70,
123,
-109,
-114,
-67
]
|
The opinion of the court was delivered by
Mahan, P. J.:
The defendant in error, Appelgate, was arrested upon a warrant issued by the plaintiff in error on a charge of violating the prohibitory law. He desired a continuance of the case for trial, which was allowed by the justice,.and he was required to enter into a recognizance in the sum of $200. He was unable to furnish sureties thereon to the satisfaction of the justice,'and in lieu thereof, with the consent of the justice^ he deposited $200. The recognizance tendered was thereupon approved by the justice. Subsequently, by stipulation of counsel for the respective parties, another continuance was taken until the 14th of June, 1898, and a recognizance of $200 required, which the defendant was unable to give, and he again agreed with the justice to leave on deposit the sum of $200 in lieu of bail, and a second recognizance was approved. Upon the day set for the trial the defendant in- error failed to appear, and his recognizance or bail was declared forfeited and an order made directing the county attorney to proceed to collect the money thereon. In October following, a warrant having been issued in the case for the defendant’s apprehension, he was arrested and brought before the magistrate, and thereupon moved the court for an order directing the return of the $200 to him, upon the ground that at the time of his last arrest he was coming to the magistrate to surrender himself. He did not, however, offer any excuse for his failure to appear on the day designated for trial. This application being refused, and a motion to quash the warrant upon which he was arrested being denied, he applied for and was granted a change of venue to another justice, where he was tried and acquitted. Sub sequently lie brought this action to recover the $200 from the justice of the peace, plaintiff in error, who answered, alleging the matters herein stated. To this answer the plaintiff demurred, upon the ground that the answer stated no defense. This demurrer was sustained, and-the defendant electing to stand thereon, judgment was entered against him for $200 and interest. The principal assignment of error is based upon the court’s sustaining this demurrer. The pivotal question presented thereby is, Had the justice of the peace authority to accept the $200 in money in lieu of bail? If he had, the defendant in error, by failing to appear at the time designated in his recognizance and in the order of the court granting the continuance had forfeited the same to the state.
Section 144 of chapter 102, General Statutes of 1897 (Gen. Stat. 1899, §5895), makes special provision for the deposit of money in place of giving bail. Section 18 of chapter 104, General Statutes of 1897 (Gen. Stat. 1899, § 5633), provides as follows:
“All proceedings, including the mode of procuring and the grounds for a change of venue upon the trial of misdemeanors before a justice of the peace, shall be governed by the provisions of the code of criminal proceedure, so far as the same are in their nature applicable, and in respect to which no provision is made by statute.”
Section 6 of the same chapter (Gen. Stat. 1899, § 5618) provides that the justice may postpone a trial of a misdemeanor to a day certain, and that he shall in such cases require the defendant to enter into a recognizance with sufficient surety, conditioned that he will appear before the j ustice at the time and place appointed, to answer the charge against him. Section 7 (Gen. Stat. 1899, §5619) provides that if he fail to give the recognizance he shall be committed to the jail until the day fixed for the trial. There is an entire absence from the justices’ code of any provision for the forfeiture of a recognizance, and yet it will be conceded, no doubt, that in such cases the justice can adjudge a forfeiture, and he must, under the statute, enter it upon his docket in order to make it valid.
There is no provision in the justices’ code by which a surety upon a recognizance may surrender his principal after a default, and yet the defendant in error sought by his motion in this case to be relieved from the default by having the only surety he had given the state for his appearance, of any value, returned to him. Nor is there any provision in the justices’ code covering the ground covered by section, 155 of the criminal code (Gen. Stat. 1897, ch. 102; Gen. Stat. 1899, §5405), which provides that a recognizance forfeited by a prisoner is collectable although he is afterward arrested on the original charge, unless remitted by the court for good cause shown, and yet we do not think that counsel for defendant in error would say that this provision is not applicable to a justice’s court. None of these matters can be said strictly to be proceedings upon the trial, to which counsel for defendant seek to restrict the provisions of section 18. The provisions of section 154 of the criminal code (Gen. Stat. 1897, ch. 102; Gen. Stat. 1899, §5404) doubtless would apply to an action upon a recognizance taken by a justice of the peace upon a misdemeanor trial, although it is not a provision governing the trial its.elf. The legislature of 1868, which framed and passed the codes of criminal law for the district court and justice’s court, had the two bills under consideration at the same time. Concurrent jurisdiction is given to the two courts in cases of misdemeanor. It was necessary to adopt the two. One could not be made applicable to both courts without much confusion. But it was not necessary to insert in each code all the provisions in relation thereto which the legislature deemed necessary. It made one complete for the district court. In the one adopted for the justices’ courts it embodied such provisions as were not applicable to the district court, and by section 20 of the justices’ code provided that all the provisions of the criminal code applicable to justices’ courts, and for which provision was not specifically made, should govern in misdemeanors tried before justices of the peace. It surely was not intended that the prosecuting officer, in cases of misdemeanor, could, by choosing the justice’s jurisdiction, deprive a defendant of the right to deposit money in lieu of bail, which was accorded him in such cases in the other jurisdiction. It was doubtless the duty of the justice to enter an order therefor to pay the money into the county treasury, unless before he did so the defendant procured a remission of the forfeiture by the justice, under the provisions of section 155. This the defendant did not attempt to do, unless we can say that his application to the court to return to him his money was an application therefor.
We are of the opinion that the justice of the peace, under the statute referred to, had authority to accept money in lieu of bail for the appearance of the der fendant in error, and that by his failure to appear he forfeited the same to the state, and that the answer of the defendant stated a good defense to his action to recover the same. Our conclusion upon this point renders it unnecessary more than to refer to the cross-petition in error of the defendant. His suit herein was upon the official bond of the justice of the peace, and he joined with the plaintiff in error the sureties thereon. His petition stated the material facts in the case, except that it did not admit that upon a second continuance the defendant in error renewed his deposit of the $200 with the plaintiff in error. To this petition the sureties upon- the bond demurred'; this demurrer was sustained. The defendant in error now contends that the court erred therein. This question becomes material upon the facts stated as above, and which are agreed to by all the parties as representing the true condition of the cause. The defendant in error could not recover of the principal,’ and hence not of the sureties.
The judgment of the district court is reversed, and cause remanded for further proceedings in accordance with this opinion. | [
-80,
-28,
-7,
-97,
106,
96,
2,
-120,
71,
-127,
-9,
115,
-87,
-45,
4,
113,
-1,
121,
117,
120,
-52,
-73,
38,
99,
-14,
-13,
-61,
-43,
-77,
110,
-2,
-33,
72,
-80,
-62,
93,
70,
74,
-27,
-44,
-114,
-115,
41,
105,
-37,
72,
32,
29,
50,
14,
113,
-98,
-13,
42,
24,
-38,
-23,
44,
-39,
57,
-96,
-40,
-97,
-115,
-49,
4,
-95,
7,
-103,
5,
124,
46,
-100,
17,
2,
-7,
123,
-106,
-126,
85,
79,
-101,
-83,
98,
34,
1,
-55,
-17,
-88,
-87,
62,
58,
-99,
-90,
-109,
97,
107,
5,
-74,
-99,
117,
54,
39,
-2,
-25,
-108,
29,
108,
66,
-49,
-112,
-77,
-49,
54,
-98,
-111,
-57,
39,
48,
112,
-50,
-22,
76,
70,
115,
-103,
-114,
-40
]
|
The opinion of the court was delivered by
Milton, J.:
This proceeding in error is based upon the overruling of a motion to set aside a sheriff’s sale of real property made in a foreclosure action. Vari ous grounds are set forth in the motion, and numerous errors are assigned in the petition in error. We have carefully considered the various contentions of the plaintiff in error and have concluded that none of them can be upheld except that as to the sufficiency of the notice of sale. The decree of foreclosure required the land, which had been mortgaged as an entire tract and afterward transferred and held as two separate parcels, one of fifty acres and one of twenty acres, to be sold as separate parcels, first the fifty-acre tract, and then, if necessary in order to satisfy the judgment, the twenty-acre tract. The order of sale conformed to the decree in all respects. The notice stated that the sheriff would “sell separately at public auction, to the highest bidder, for cash, the following real property, situate in Lyon county, Kansas, to wit” (describing all the land by metes and bounds as a single tract).
The statute does not prescribe what a notice of sale of real estate shall contain, except that time and place of sale shall be stated. It is certain, however, that a correct description of the land must be given in the notice and that it should contain enough to inform the general public of the location and extent of the real property to be sold. The order of sale in this case was in fact a special execution and the sale notice should have conformed to it fully. The order commanded that the property be sold in two specific parcels ; the notice did not specify the parcels, and no one would be able to tell from the description given in the notice the nature of the separation into parcels for purposes of sale contemplated by the officer. When several distinct parcels or lots of land are to be sold under an execution it is the duty of the officer to offer them separately, so that bidding may be en couraged and competition increased. (Bell v. Taylor, 14 Kan. 277.)
For the same reason it is equally proper to hold that where the decree requires sale of the land in parcels, the notice shall so specify.
The order of the district court overruling the motion to set aside the sale will be reversed and the cause remanded for further proceedings. | [
-11,
124,
-39,
44,
26,
96,
40,
-88,
65,
-79,
38,
83,
111,
-54,
4,
41,
-90,
45,
53,
105,
69,
-77,
3,
-125,
-10,
-13,
-47,
-35,
63,
77,
102,
-41,
77,
-96,
-54,
85,
70,
-126,
-59,
84,
-50,
-89,
9,
117,
-63,
64,
52,
43,
82,
74,
85,
15,
-13,
45,
25,
-61,
105,
40,
-53,
53,
-63,
-72,
-69,
-115,
127,
3,
17,
37,
-40,
-57,
72,
-22,
-112,
49,
0,
-24,
87,
54,
-106,
116,
1,
11,
40,
102,
106,
1,
93,
-17,
-8,
-104,
46,
127,
-113,
-26,
-108,
24,
-30,
32,
-106,
-99,
117,
48,
70,
126,
-26,
-124,
31,
108,
3,
-54,
-106,
-111,
13,
60,
-104,
75,
-2,
-121,
-80,
112,
-49,
-94,
92,
103,
16,
-101,
-114,
-3
]
|
The opinion of the court was delivered by
Schoonover, J. :
This is an action commenced in the district court of Franklin county upon a policy of insurance. The trial court rendered judgment for the defendant upon the pleadings. The plaintiff below brings the case here for review. The pleadings' are too long to be set forth in this opinion.
The defendant alleged in its answer a breach of that clause of the policy which provides that the policy shall be void “if the subject of insurance be personal property, and be or become encumbered by a chattel mortgage.”
The petition and reply stated facts tending to show a complete waiver of this clause. The facts as stated by plaintiff in error in his brief are, in substance, as follows: John Brown, on October 9, 1894, obtained a loan of $300 from the People’s National Bank, of Ottawa, Kan., on his note, secured by a chattel mortgage on certain wheat, and further to be secured by a policy of insurance on same. The bank’s officer requested Brown to go down-stairs into F. R. Miller’s office and secure a policy from him. Mr. Miller was an insurance agent, having his office in the basement of the bank, and was accustomed to issue policies'to be put up with the bank as collateral. Brown accordingly went to Miller’s office and requested him to issue a policy on the wheat, and paid the premium for it in advance, $3.20. Miller asked the plaintiff how much wheat he had, where it was, its condition and value. Plaintiff answered these questions, and Miller then told him he would insure it for $400 for $3.20/which Brown then paid, at the same time asking Miller to put his insurance in a good company, to which he replied 'that he had no others. Mr. Miller put no questions to Brown whatever, further than above stated. Nothing was asked as to whether or not the wheat then was or would afterward be encumbered ; nor did he say anything indicating that such insurance would be conditional pn its not being then, or subsequently, encumbered. Brown had, a few minutes before his interview with Miller, mortgaged the grain to the bank, and on October 17, 1894, he put a second mortgage on it. He was a farmer, had never read an insurance policy in his life, and was not aware that such policies ever contained stipulations against' encumbrances. He never saw this policy until after the wheat was burned. Miller made it out shortly after Brown left his office, and forthwith delivered it to the bank. ' There it remained until after the fire, when Brown paid off the note, and took it up with the policy. The bank held the policy as collateral to Brown’s note, and knew nothing as to the interview between him and Miller. Its officers never read the policy.
In our opinion these facts are not sufficient to constitute a waiver of the provisions of the policy. The second mortgage placed upon the property several days after the policy had been written, without the knowledge or consent of the insurer, is sufficient to avoid the policy. In the case of Insurance Co. v. Saindon, 53 Kan. 623, 36 Pac. 983, the supreme court said :
“ Where an insurance policy provides against fu ture encumbrances, the policy may be avoided if a subsequent encumbrance is created, or if the encumbrances existing at the time of the application for the insurance are materially increased by a new or additional debt, but a mere subsequent renewal of-a prior lien or mortgage, with accrued interest, is not an increase of such preexisting indebtedness or the creation of a new or an additional encumbrance.”
The judgment of the district court is affirmed. | [
-80,
122,
-39,
-65,
26,
32,
42,
-38,
84,
-96,
-91,
83,
-23,
-42,
20,
45,
-16,
57,
-47,
106,
-42,
-77,
7,
-46,
-42,
-77,
-47,
-59,
-80,
91,
-28,
-10,
76,
32,
10,
85,
-26,
-54,
-63,
-100,
-50,
12,
-120,
-20,
-35,
96,
48,
-21,
80,
73,
49,
-98,
-29,
46,
19,
-57,
41,
44,
-53,
57,
-15,
-15,
-118,
15,
127,
22,
-79,
38,
-112,
71,
-62,
12,
-112,
-79,
25,
-24,
123,
-90,
-122,
-108,
111,
-103,
-119,
102,
103,
49,
60,
-18,
-100,
-104,
38,
-3,
47,
-122,
-110,
88,
-125,
14,
-65,
-97,
103,
0,
6,
124,
-27,
28,
29,
108,
7,
-113,
-12,
-73,
-113,
116,
-100,
-125,
-2,
3,
-96,
113,
-49,
-78,
93,
-57,
122,
57,
-98,
-83
]
|
The opinion of the court was delivered by
ROSEN, J.:
Robert L. Ehrlich seeks review of that portion of the decision by our Court of Appeals in State v. Ehrlich, No. 96,797, unpublished opinion filed June 15, 2007, dismissing his challenge to the imposition of Board of Indigents’ Defense Services (BIDS) attorney fees pursuant to K.S.A. 22-4513.
Ehrlich pled guilty to one count of possession of marijuana, and on August 19, 2003, the district court sentenced Ehrlich to probation for 12 months, with an underlying term of 11 months of incarceration. The court also ordered Ehrlich to reimburse BIDS for attorney fees and the $50 application fee. The district court did not consider on the record Ehrlich’s financial resources or the burden that would be imposed by payment as required by K.S.A. 22-4513.
On January 12, 2006, the district court revoked his probation based on stipulated violations and ordered him to serve his underlying sentence. On January 23, 2006, Ehrlich filed a notice of appeal, which referred only to the district court’s order revoking his probation.
The Court of Appeals affirmed the revocation of Ehrlich’s probation and dismissed his challenge to the BIDS fees for lack of jurisdiction, reasoning that Ehrlich’s appeal as to the BIDS issue was untimely because the notice of appeal was filed later than 10 days from August 19, 2003, his original sentencing date. Ehrlich, slip op. at 2-3. We granted Ehrlich’s petition for review as to the BIDS attorney fees issue only.
Ehrlich contends the Court of Appeals erred in dismissing his challenge to the BIDS attorney fees. He asks us to reverse that portion of the district court’s judgment ordering him to pay the BIDS attorney fees because the district court failed to consider his financial resources or the burden that would be imposed by payment. This issue was resolved by our decision in State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006), in which we held that the sentencing court must consider on the record the financial resources of the defendant before imposing BIDS attorney fees. In order to address this issue, however, we must have subject-matter jurisdiction.
Whether jurisdiction exists is a question of law subject to unlimited appellate review. State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004). The right to appeal is purely a statutory right; no appellate review is required by the United States Constitution or the Kansas Constitution. It is the established rule in this state that an appellate court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004). Pursuant to Article 3, § 3, of the Kansas Constitution, the Supreme Court has only such appellate jurisdiction as is conferred by statute, and when the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. State v. Flynn, 274 Kan. 473, 477, 55 P.3d 324 (2002).
Under K.S.A. 22-3608(c), a defendant has 10 days from the date a judgment is orally pronounced from the bench to file a notice of appeal. See State v. Phinney, 280 Kan. 394, 400, 122 P.3d 356 (2005). The Court of Appeals found that Ehrlich had 10 days from August 19, 2003, his original sentencing date, in which to file his notice of appeal. The record on appeal contains only one notice of appeal, filed after revocation of probation on January 23, 2006, which was more than 2 years beyond the prescribed time limitation.
The filing of a timely notice of appeal is jurisdictional, and if the appeal is not taken within the 10-day period fixed by statute, it must be dismissed. Phinney, 28 Kan. at 400.
“A limited exception to the general rule requiring a timely notice of appeal from sentencing is recognized in the interest of fundamental fairness only in those cases where an indigent defendant was either: (1) not informed of the rights to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished with an attorney for that purpose who failed to perfect and complete an appeal.” Phinney, 280 Kan. at 401 (citing State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 [1982]).
Ehrlich does not raise a fundamental fairness claim or assert that any of these exceptions apply to the case at hand. In addition, the district court’s failure to properly assess BIDS fees does not constitute an illegal sentence which can be corrected at any time pursuant to K.S.A. 22-3504; furthermore, the assessment of attorney fees is not part of the sentence. Robinson, 281 Kan. at 546-47.
Ehrlich contends, however, that K.S.A. 22-3716(b) provides jurisdiction in this case. K.S.A. 22-3716(b) states in relevant part that upon a finding that the defendant has violated the terms of probation, the district court “may require the defendant to serve the sentence imposed, or any lesser sentence.” (Emphasis added.) Ehrlich argues that since the district court had jurisdiction to impose a new sentence following his probation revocation, the original sentence, including the order to pay BIDS attorney fees, was subject to challenge on appeal.
K.S.A. 22-3716(8) does not, however, authorize the district court to impose an entirely new sentence. It instead allows a downward modification of the original sentence. The district court may not increase the term of incarceration of the underlying sentence after probation is revoked, and Ehrlich therefore possessed all the information necessary to determine whether an appealable issue relating to the BIDS attorney fees existed when the court originally imposed them by its judgment (order of assessment) on August 19, 2003. The time to appeal the BIDS attorney fees expired 10 days after the imposition of the fees at sentencing.
We lack jurisdiction to consider whether the district court erred in ordering Ehrlich to pay BIDS attorney fees without first considering his financial resources or the burden that such fees would impose. He failed to take a timely appeal from that judgment. He also failed to refer to the original sentence or the judgment imposing the BIDS attorney fees in his only notice of appeal. See Huff, 278 Kan. at 217 (appellate courts obtain jurisdiction only over rulings identified in notice of appeal).
Ehrlich has failed to raise the issue of BIDS attorney fees in such a way as to invoke appellate jurisdiction. The Court of Appeals correctly concluded that it was without jurisdiction to consider the imposition of BIDS attorney fees.
Judgment of the Court of Appeals is affirmed as to the sole issue for which review was granted. | [
-108,
-20,
-75,
60,
27,
96,
58,
-104,
89,
-93,
-25,
83,
-85,
-54,
5,
123,
-5,
127,
116,
105,
67,
-74,
119,
-29,
-10,
-77,
-6,
-59,
-8,
79,
100,
-98,
72,
-16,
-14,
53,
102,
-54,
-14,
-48,
-118,
6,
-119,
105,
-63,
66,
48,
79,
18,
10,
49,
31,
-29,
46,
17,
-30,
9,
44,
-101,
-83,
16,
-79,
-101,
15,
91,
22,
-127,
55,
-100,
-122,
88,
126,
-104,
57,
3,
-24,
114,
-90,
-126,
116,
67,
-103,
12,
110,
34,
-96,
61,
-19,
-28,
-120,
30,
-72,
-97,
-89,
-103,
89,
67,
5,
-106,
-98,
116,
86,
7,
-4,
-26,
12,
23,
-20,
11,
-118,
-32,
-77,
-49,
84,
30,
82,
-17,
-91,
17,
101,
-55,
118,
94,
-42,
50,
-101,
-86,
-108
]
|
The opinion of the court was delivered by
Luckert, J.:
Leonard Pollman seeks to suppress evidence obtained during an investigation of whether he was driving under the influence of alcohol (DUI). His suppression motion raises the question of what level of “reasonable suspicion” is necessary before a motorist may be detained for a DUI investigation. The trial court concluded an investigation was permissible because Pollman had been observed driving his motorcycle, and then he allegedly obstructed the officer’s official duties, admitted to drinking, and smelled of alcohol. The Court of Appeals disagreed and concluded these factors were not sufficient because the investigating officer had not observed any signs of impaired driving, did not immediately detect the smell of alcohol, did not know how much or when Pollman had been drinking, and did not observe typical signs of intoxication such as blurry eyes, slurred speech, or difficulty in walking or standing. State v. Pollman, No. 93,947, unpublished opinion filed April 27, 2007.
Upon our review, we conclude the Court of Appeals imposed too high a burden and the circumstances raised a reasonable suspicion that Pollman was DUI.
Facts and Procedural History
On the evening of June 26, 2004, Leonard Pollman (Pollman) and his wife Vida Pollman (Vida) were traveling together in Me Pherson, Kansas, each driving a motorcycle. Officer Michael Walline observed the couple for about 10 blocks. During that time, the only traffic violation the officer saw was Vida’s failure to use a turn signal on her motorcycle. As a result, Officer Walline stopped Vida. Pollman also pulled over. Although Walline informed Pollman that he was not being stopped and needed to “move along,” Pollman fingered. At one point, Walline told Pollman that if he wanted to stay in the area, he should take his motorcycle to a nearby parking lot. Instead, Pollman stood next to his motorcycle after parking it about one car length ahead of Vida’s.
While asking Vida for her identification during the traffic stop, Officer Walline smelled an odor of alcohol on her breath, which prompted him to conduct a DUI investigation on Vida. A reserve officer was present with Officer Walline, and because Walline did not want Pollman to obstruct his wife’s traffic stop, Walline asked the reserve officer to have Pollman step away. After Pollman refused to leave the vicinity of the traffic stop, Officer Walline called for back-up assistance. Walfine’s superior, Captain Allcock, arrived and stood with Pollman.
According to Allcock’s testimony at the suppression hearing, he smelled alcohol on Pollman’s breath. When asked, Pollman admitted to Allcock that he had been drinking. Allcock did not know how much alcohol Pollman had consumed or how long ago the drinking had occurred, but he observed Pollman to be coherent and cooperative. Other than the odor of alcohol, Allcock saw no other typical indicators signaling that Pollman had been drinking.
Meanwhile, Officer Walline was conducting Vida’s traffic stop. Although he smelled an odor of alcohol on Vida’s breath, Walline ultimately determined that she did not qualify for a DUI arrest. After issuing a warning about the traffic infraction, Walline told Vida she was free to go.
After that, Officer Walline walked with Vida to her motorcycle and made contact with Pollman, who was still standing with Captain Allcock. According to Walfine’s suppression hearing testimony, he spoke to Pollman because “I had already talked to him about getting away from my traffic stop and I wanted to speak with him about obstruction and future charges if he were ever in that situation again.”
Officer Walline asked Pollman for his driver s license, and Poll-man handed it over. Walline was planning to talk to Pollman about his behavior as it related to his wife’s traffic stop when Captain Allcock told Walline something like, “He’s been drinking, you need to check him.” Then Allcock had to leave the scene on other police business. When Walline asked Pollman if he had consumed any alcohol, Pollman replied that he had consumed “a few” beers.
Officer Walline asked Pollman to get in the patrol car. At that point, for the first time, Walline smelled an odor of alcohol on Pollman’s breath. After that, Walline administered a preliminary breath test (PBT) which registered a breath alcohol concentration of .11. Walline also conducted field sobriety tests, including the walk-and-tum test and the one-legged-stand test. He was dissatisfied with Pollman’s performance on both of these tests. Walline arrested Pollman, gave him a copy of the implied consent advisory form, and read it to him. In addition, Pollman consented to a blood test which revealed a blood alcohol concentration (BAC) of .10.
Based upon this evidence, the State charged Pollman with operating or attempting to operate a motor vehicle while the alcohol concentration in his blood or breath, as measured within 2 hours of the time of operating his vehicle, was .08 or more, after having two prior DUI convictions, in violation of K.S.A. 2005 Supp. 8-1567(a)(2), (f).
Pollman responded by filing two motions. In one motion, he sought to suppress the results of the PBT and BAC tests, arguing that law enforcement officers had neither reasonable suspicion to detain him nor probable cause to arrest him for DUI. The trial court denied Pollman’s motion, finding there was no stop or detention because Pollman was told he could leave but chose to stay in the vicinity of his wife’s traffic stop. Further, the trial court found that the combination of Pollman’s admission to drinking, Captain Allcock’s statement that Pollman smelled of alcohol, and Officer Walline’s observance of Pollman operating a vehicle was sufficient reasonable suspicion to conduct a PBT. Further, the court found the PBT result provided grounds for Pollman’s arrest.
In the second motion, Pollman sought dismissal of the case, arguing K.S.A. 2005 Supp. 8-1567(b), clarified at arguments on the motion to be K.S.A. 2005 Supp. 8-1567(a)(2), is overbroad and void for vagueness. The trial court denied that motion as well.
At trial, Pollman renewed his motion to suppress, but the court again denied the motion. As a result, the evidence of Pollman’s PBT and BAC was admitted. Based upon this evidence, the jury found Pollman guilty of operating a motor vehicle while his BAC was .08 or more. Pollman’s motions for a new trial and judgment of acquittal were denied. He was sentenced to 1 year in the county jail, but the court granted probation for 18 months.
Pollman timely appealed from his conviction, arguing (1) officers did not have reasonable suspicion to detain him for a DUI investigation, (2) officers did not have probable cause to arrest him for DUI, and (3) K.S.A. 2005 Supp. 8-1567(a)(2) is overbroad and void for vagueness.
The Court of Appeals panel addressed only the first of these arguments, determining the evidence should have been suppressed because there was not a constitutional basis for the prolonged detention and search of Pollman. Slip op. at 11-12. In reaching that ultimate conclusion, the panel made several preliminary determinations. First, in the panel’s view, substantial competent evidence supported the trial court’s finding that Pollman initially stopped of his own accord and voluntarily remained at the scene while Officer Walline completed the traffic stop involving his wife, Vida. Next, the panel determined that the initial voluntary encounter evolved into an investigatory detention when Walline retained possession of Pollman’s driver’s license. Slip op. at 7.
In light of this second determination, the panel considered whether, at the time the initial voluntary encounter evolved into an investigative detention, an objective law enforcement officer would have had a reasonable suspicion that Pollman had operated his motorcycle while under the influence of alcohol. The panel held that the totality of the circumstances did not provide the officer with such reasonable suspicion. Slip op. at 11.
The Court of Appeals honed in on several facts in reaching this conclusion:
“[I]t is clear that Pollman did not have a strong odor of alcohol about him when Officer Walline first approached him. Although Allcock noted an odor, Walline testified that during the entire time he stood with Pollman by the street he never detected an odor of alcohol. Second, although Pollman admitted to drinking a few beers there was no indication he recently had drunk to excess. Third, both Walline and Allcock confirmed that Pollman did not exhibit typical indicators of intoxication — bloodshot eyes, slurred speech, unsteady footing, or agitation. Fourth, the fact that Walline had followed Pollman and his wife for about 10 blocks without observing Pollman violate any traffic laws or engage in unusual driving also mitigated against a reasonable suspicion that Pollman was driving under the influence.” Slip op. at 11-12.
The panel stated the totality of the circumstances in this case mirrored those discussed in City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 54 P.3d 532 (2002), where a different Court of Appeals panel found an insufficient factual basis to constitute a reasonable suspicion that the driver was violating the DUI statute. Pollman, slip op. at 12.
The Court of Appeals panel reversed the trial court’s order denying Pollman’s motion to suppress the results of the PBT and BAC tests and remanded the case. Given its holding, the panel declined to address Pollman’s other issues, finding they were moot. Slip op. at 12.
We granted the State’s petition for review. See K.S.A. 20-3018(b); K.S.A. 60-2101(b).
Standard of Review
On a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure by a preponderance of the evidence. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). When reviewing a trial court’s suppression of evidence, an appellate court reviews the factual underpinnings by substantial competent evidence. The ultimate legal conclusion, however, is reviewed de novo. This court will not reweigh evidence, determine witnesses’ credibility, or resolve conflicts in evidence. See State v. Harris, 284 Kan. 560, Syl. ¶ 9, 162 P.3d 28 (2007); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
Detention
The Fourth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights § 15 guarantee that each person shall be free from unreasonable searches and seizures. In this case, Pollman attacks both the seizure and search that led to the evidence of his blood alcohol level. We focus first upon whether there was a seizure.
The trial court and Court of Appeals panel determined that Poll-man’s initial encounter with Officer Walline was voluntaiy. Indeed, if the encounter was voluntary, it would not be considered a seizure and would not implicate the protection of the Fourth Amendment. State v. Lee, 283 Kan. 771, Syl. ¶ 2, 156 P.3d 1284 (2007); State v. Morris, 276 Kan. 11, 19, 72 P.3d 570 (2003). A voluntary encounter can evolve into a detention, however. To determine if this evolution has occurred, the United States Supreme Court has devised a “totality of the circumstances” test. Under the test, law enforcement interaction with a person is voluntary, not a detention, if under the totality of the circumstances an officer’s conduct conveys to a reasonable person that he or she is free to refuse the officer’s requests or otherwise end the encounter. State v. Thompson, 284 Kan. 763, 775-76, 166 P.3d 1015 (2007); Morris, 276 Kan. at 19 (quoting Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 [1991]); see United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).
A somewhat different standard was employed by the Court of Appeals panel in this case; it phrased the test as whether Pollman felt free to leave. The test as stated by the panel can be found in older United States Supreme Court cases but, as this court recently discussed in Thompson, the Supreme Court has refined the test. The change in the test was discussed in the 2007 decision of Brendlin v. California, 551 U.S. 249, 255, 168 L. Ed. 2d 132, 127 S. Ct. 2400 (2007):
“ “When the actions of die police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not. The test was devised by Justice Stewart in United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), who wrote that a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” [446 U.S.] at 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (principal opinion). Later on, the Court adopted Justice Stewart’s touchstone, [citations omitted], but added that when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether ‘a reasonable person would feel free to decline tire officers’ requests or otherwise terminate the encounter.” ’ [Citations omitted.]” Thompson, 284 Kan. at 790.
Hence, the test is whether a reasonable person in Pollman’s position would have felt free to decline Officer Walline’s requests or otherwise terminate the encounter. See 284 Kan. at 790.
Applying this test to the facts of this case leads to the conclusion a reasonable person would have felt free to terminate the encounter initially. Pollman was informed unequivocally that he was not being stopped, and he was told to “move along.” Pollman voluntarily remained at the scene while Walline completed the traffic stop involving Vida, despite repeated requests by Officer Walline and the reserve officer to persuade Pollman to leave the immediate area.
The circumstances of this voluntaiy encounter did not change significantly until Officer Walline approached Pollman and asked for and obtained his driver’s license. The Court of Appeals found it was at this point — when Walline obtained and retained possession of Pollman’s driver’s license — that the initial voluntary encounter evolved into an investigatory detention. In considering this conclusion, it is noteworthy that an officer’s mere request for identification or information about one’s identity does not, by itself, constitute a seizure under the Fourth Amendment to the United States Constitution. Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty, 542 U.S. 177, 185, 159 L. Ed. 2d 292, 124 S. Ct 2451 (2004); INS v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984); see also State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991) (officer may “ask the individual’s name and request identification but cannot force the individual to answer”; individual is free to leave). But see Delaware v. Prouse, 440 U.S. 648, 659-63, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979) (officer did not have unfettered discretion to stop an automobile to conduct license check, unless stopping was pursuant to a plan embodying explicit limitations on conduct of individual officers).
Nevertheless, if a law enforcement officer retains a driver’s license, this can be a factor considered in the totality of the circumstances and may, absent offsetting circumstances, mean a reasonable person would not feel free to leave without his or her license. Thompson, 284 Kan. at 801; see Johnson v. Campbell, 332 F.3d 199, 205-06 (3d Cir. 2003) (voluntary encounter became detention after officer persisted in asking individual to roll down his vehicle window and provide identification); United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995) (when officers retain an individual’s license in the course of questioning, as general rule the individual will not reasonably feel free to terminate encounter); United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993) (retention of driver’s license indicates to reasonable persons they are no longer “free to leave”).
In addition to Officer Walhne’s retention of Pollman’s driver’s license, other circumstances would lead a reasonable person to conclude an investigation was under way and the encounter could not be voluntarily terminated: Captain Allcock told Officer Walline that Pollman needed to be checked, and Walline asked a potentially incriminating question about the consumption of alcohol. Thus, our independent review of the circumstances leads us to the same conclusion as that reached by the Court of Appeals panel — a reasonable person would not have felt free to refuse the officer’s request or otherwise terminate the encounter from the point Officer Walline retained Pollman’s driver’s license and began asking potentially incriminating questions. See Thompson, 284 Kan. at 801; State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997).
Reasonable Suspicion
The next question is whether this detention was statutorily and constitutionally permissible. Generally, investigatory detentions are permitted under K.S.A. 22-2402 and the Fourth Amendment to the United States Constitution if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime. See K.S.A. 22- 2402(1); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Thompson, 284 Kan. at 773; see also United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (reasonableness of a seizure depends on balance of the public interest and individual’s right to personal security free from arbitrary interference by officers).
In discussing “reasonable suspicion,” this court has stated:
“Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information’s degree of reliability. Quantity and quality are considered in the totality of the circumstances — the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.” State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).
We have furthered explained that the standard is evaluated from the viewpoint of a reasonable law enforcement officer:
“ “What is reasonable [suspicion] is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement’ (quoting State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 [1993]). . . .
“ ‘[W]e judge the officer’s conduct in light of common sense and ordinary hurnan experience. [Citation omitted.] "Our task ... is not to pigeonhole each purported fact as either consistent with innocent travel or manifesdy suspicious,” [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification” which is “considerably less than proof of wrongdoing by a preponderance of the evidence.” [Citation omitted.]’ ” State v. DeMarco, 263 Kan. 727, 734-35, 952 P.2d 1276 (1998) (quoting United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997]).
As this passage indicates, “ ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000).
City of Hutchinson v. Davenport
In examining whether this standard was met in this case, the Court of Appeals panel relied upon Davenport, 30 Kan. App. 2d. 1097. That decision arose after Davenport stopped by the police station to pick up his daughter. An officer noticed Davenport’s eyes were bloodshot and detected an odor of alcohol on Davenport’s breath. The officer told Davenport not to drive, and Davenport responded that he was on foot. Then, the officer watched as Davenport left the station, got into a pickup truck, and drove away. At no point, however, did the officer see Davenport commit any traffic violations or exhibit any other signs of intoxication.
The officer passed the information to a second officer who subsequently arrested Davenport for DUI. Likewise, the second officer did not observe Davenport commit any traffic violations or otherwise act inappropriately before stopping him.
The Court of Appeals in Davenport affirmed the district court’s suppression of evidence and held that neither the odor of alcohol on Davenport’s breath before entering the vehicle nor the fact that he falsely stated he was walking resulted in a “reasonable suspicion that justified stopping Davenport in the absence of some indication that he was intoxicated and too impaired to drive.” 30 Kan. App. 2d at 1101. The panel further found the district court “properly determined that there were no articulate facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity.” 30 Kan. App. 2d at 1101.
Distinguishing its case from typical vehicle stop cases, the Davenport panel stated: “The City cites many cases to bolster its argument that the stop was proper. In each situation where the court found the stop to be proper, however, there were some facts which indicated that the defendant had engaged in some illegal activity prior to being stopped.” 30 Kan. App. 3d at 1101.
The present case falls within the category of cases where the detention was justified by some illegal activity; Pollman had allegedly obstructed an officer performing a legal duty by failing to leave the area despite repeated requests. Even though Officer Walline did not plan to arrest Pollman, this subjective intent does not drive our consideration of whether the circumstances objectively create a reasonable suspicion. See Brendlin, 551 U.S. at 260; Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996); Thompson, 284 Kan. at 804-05. Here, the criminal activity justified asking for identification and making further inquiry as to what motivated the conduct, with intoxication being one potential cause.
While this criminal activity was sufficient to justify the investigatory detention of Pollman, the State does not focus on this distinction but contends that this case is distinguishable from Davenport under an alternative rationale. Pollman, the State argues, was not stopped by an officer but voluntarily remained at the scene and “the odor of an alcoholic beverage and the admission by the Defendant to having consumed alcohol gave officers sufficient reason to extend the scope and duration of the consensual encounter and justified the detaining of the Defendant pending further investigation by the officers.”
Nickelson, Stewart, and Pasek
The State advances three Court of Appeals cases to support its position. In Nickelson v. Kansas Dept. of Revenue, 33 Kan. App. 2d 359, 102 P.3d 490 (2004), City of Norton v. Stewart, 31 Kan. App. 2d 645, 70 P.3d 707 (2003), and Pasek v. Kansas Dept. of Revenue, No. 91,933, unpublished opinion filed November 24, 2004, three separate panels addressed the question of what level of reasonable suspicion is required to detain a suspect for a DUI investigation after lawful contact has previously been established.
In Nickelson, the law enforcement officer was concerned about the motorist’s welfare upon observing his vehicle off the highway at 1 a.m. in cold weather in a secluded area. The officer approached the vehicle and asked if Nickelson was okay. According to the officer’s testimony, “ ‘[the alcohol odor] was pretty strong . . . and when he rolled down the window, it just — it just all hit me.” 33 Kan. App. 2d at 361.
The Court of Appeals panel in Nickelson found the initial encounter with the motorist was a lawful public safety stop which evolved into a detention for investigation of DUI. Noting the strong odor of alcohol, the panel concluded the officer had a reasonable suspicion to detain Nickelson to investigate whether he had committed a DUI violation. The panel distinguished Davenport because Nickelson was not initially stopped due to the odor of alcohol. The Nickelson court determined, in contrast, the officer had grounds to detain Nickelson for further investigation when he immediately smelled alcohol. 33 Kan. App. 2d at 367-68.
In Stewart, 31 Kan. App. 2d 645, the officer stopped the motorist’s vehicle for an inoperable headlight. When the officer approached the vehicle, he noticed a “strong odor of alcohol emanating from inside the vehicle, which also contained a passenger.” 31 Kan. App. 2d at 645. The officer asked Stewart to step out of the vehicle and accompany him to the patrol car. While they were inside the patrol car, the officer again smelled the odor of alcohol. Stewart was ultimately charged with DUI.
Stewart contended that being asked to accompany the officer to the patrol car was beyond the permissible scope of a routine traffic stop. The Court of Appeals panel disagreed and found that the officer was not obligated to ignore the odor of alcohol even though this was not the reason for the initial stop. The panel concluded that the officer’s detection of the odor of alcohol constituted a sufficient reason to extend the scope and duration of the stop. 31 Kan. App. 2d at 649.
The third case cited by the State is the unpublished case of Pasek where an officer followed the motorist’s truck which was transporting an accident victim to the hospital. The officer observed no impaired driving. At the hospital, the officer saw no indicators of intoxication, except he detected an odor of alcohol on Pasek’s breath. When he asked whether Pasek had consumed alcohol, Pasek replied “a couple beers.” The panel held that the odor of alcohol was sufficient to provide the officer with reasonable suspicion that Pasek had been drinking and driving and was, therefore, within his authority to further investigate. Pasek, slip op. at 9-10.
Application of Cases
In the present case, the Court of Appeals panel was not persuaded by the State’s reliance on Nickelson, Stewart, and Pasek for a number of reasons. First, the panel pointed out that Pollman did not have a “strong odor” of alcohol when Officer Walline first approached him. Recognizing that Captain Allcock noticed the odor of alcohol coming from Pollman, the panel focused instead on the fact that Walline did not detect an odor of alcohol while standing with Pollman on the street. Second, the panel stated that “although Pollman admitted to drinking a few beers there was no indication he recently had drunk to excess.” Pollman, slip op. at 11. Third, before the DUI investigation, neither Walline nor Allcock saw Poll-man exhibiting typical indicators of intoxication such as bloodshot eyes, slurred speech, unsteady footing, or agitation. Fourth, the panel stated: “[T]he fact that Walline had followed Pollman and his wife for about 10 blocks without observing Pollman violate any traffic laws or engage in unusual driving also mitigated against a reasonable suspicion that Pollman was driving under the influence.” Slip op. at 11-12.
The State takes issue with the Court of Appeals’ focus on the lack of a “strong” odor of alcohol from Pollman. The State argues that the strength of the smell is subjective and also depends on factors such as masking agents (chewing gum, mints, tobacco products) and the environment where the odor is detected. For example, one might expect the odor of alcohol to be greater in an enclosed vehicle versus while standing outside near a motorcycle. The State suggests any odor of an alcoholic beverage is sufficient to give rise to a reasonable suspicion.
The circumstances of this case illustrate the State’s position. Once Officer Walline and Pollman were in the confined space of the patrol car, Officer Walline smelled alcohol on Polhnan’s breath. Additionally, there is case support for the State’s position. E.g., Columbus v. Anderson, 74 Ohio App. 3d 768, 770, 600 N.E.2d 712 (1991) (“moderate” odor of alcohol sufficient to establish reasonable suspicion).
We decline, however, to focus this case upon an issue of whether the odor of alcohol alone creates a reasonable suspicion that Poll-man had committed a crime. Such a singular focus would be inappropriate because there were other weighty factors present in this case. First, Pollman had refused to follow lawful requests to leave the immediate area of his wife’s traffic stop. As previously noted, this conduct justified the initial detention of Pollman and an investigation of what might have motivated that conduct, which might have included impaired judgment because of intoxication. The Court of Appeals panel seems to have given this little or no weight in its determination of whether there was reasonable suspicion.
Second, in response to a question of whether Pollman had been drinking, a question legitimately linked to the discussion about obstruction, Pollman admitted he had consumed a few beers. His answer echoed Captain Allcock’s statement to Officer Walline that Pollman had been drinking. The Court of Appeals panel discounted this factor because Officer Walline did not know how recently the alcohol had been consumed or the quantity of this consumption. Contrary to the panel’s analysis, this lack of knowledge does not negate reasonable suspicion. In fact, information about the time and quantity of consumption would rarely be known by an officer who initiated a vehicle stop until after the investigation was under way and those questions were asked. If these facts became known during the investigation, the circumstances would factor into a probable cause determination.
Third and finally, Officer Walline smelled the odor of alcohol on Pollman’s breath, which occurred after Walline had observed Pollman driving his motorcycle. The fact that the odor was not particularly strong may weigh in the equation but does not erase reasonable suspicion.
This factor became known while Officer Walline and Pollman were in the patrol car. Up to that point, the detention could be justified by Pollman’s obstruction of official duties. As the circumstances coalesced, a reasonable suspicion of DUI existed. See, e.g., K.S.A. 8-1001(b); K.S.A. 8-1012; State v. Barker, 252 Kan. 949, 957, 850 P.2d 885 (1993) (checkpoint stop extended with court noting there “were further reasons for his continued detention based on the officer’s smell of alcohol on defendant’s breath”); City of Norton v. Stewart, 31 Kan. App. 2d 645, 646-48, 70 P.3d 707 (2003); Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431-32, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998); see also Miller v. Harget, 458 F.3d 1251, 1259 (11th Cir. 2006) (odor of alcohol from vehicle of legally stopped motorist was sufficient to expand scope of investigation); United States v. Neumann, 183 F.3d 753, 756 (8th Cir. 1999) (odor of alcohol on breath of legally stopped motorist was sufficient to expand scope of investigation); State v. Nelson, 134 Idaho 675, 679-80, 8 P.3d 670 (Ct. App. 2000) (no initial seizure; odor of alcohol plus admission to drinking sufficient to request testing); Frensemeier v. State, 849 N.E.2d 157, 162 (Ind. App. 2006) (odor of alcohol on driver’s breath during the course of an accident investigation can be sufficient to establish probable cause); State v. Blackburn, 115 Ohio App. 3d 678, 680-81, 685 N.E.2d 1327 (1996) (officer administered field sobriety tests after noticing an odor of alcohol and after motorist admitted to consuming “a few beers”).
Only after these factors created a reasonable suspicion did Officer Walline perform the field sobriety tests and PBT. The results of these tests, along with the factors supporting reasonable suspicion, would combine to warrant consideration of whether there was probable cause to arrest Pollman. That issue was not decided by the Court of Appeals and is not, therefore, before us on the petition for review.
With our focus being on whether there was reasonable suspicion to extend the scope and detention of the encounter beyond an investigation for obstruction of legal duty, we note that the factors relied upon by the Court of Appeals might cause us pause if we were considering whether there was probable cause — i.e., a preponderance of the evidence given the totality of the circumstances — at the point in time when Officer Walline performed the field sobriety tests. Cf. State v. Fewell, 286 Kan. 370, 184 P.3d 903 (2008) (divided court with majority concluding smell of burnt marijuana and obvious lying about marijuana in automobile sufficient to establish probable cause). Here, however, the less rigorous standard of reasonable suspicion is applicable; while the various factors discussed by the Court of Appeals panel must be considered, those factors do not dissipate the reasonable suspicion created by Poll-man’s obstruction, the odor of alcohol, and his admission to drink ing. Nor do the factors cited by the panel make the suspicion unreasonable.
Instead, we conclude the totality of the circumstances — including criminal obstruction of official duty, admission to drinking, and smell of alcohol — provided reasonable suspicion sufficient to justify an investigation into whether Pollman, who was observed driving, was operating his motorcycle while under the influence of alcohol. In other words, there existed a minimum level of objective justification sufficient for the investigative detention of Pollman.
Remand
Because the Court of Appeals panel reached the opposite conclusion, it did not address the questions of whether K.S.A. 2005 Supp. 8-1567(a)(2) is unconstitutionally overbroad and void for vagueness and whether the arrest was supported by probable cause. Consequently, these issues are not before us for review. Therefore, this case is remanded for consideration of these questions.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals with directions. The decision of the trial court on the single issue subject to our review is affirmed. | [
-15,
-22,
120,
-3,
42,
64,
50,
28,
115,
-75,
127,
115,
109,
-46,
5,
51,
-70,
127,
81,
107,
-43,
-74,
71,
-64,
-42,
-13,
-72,
-38,
-79,
-49,
108,
-10,
109,
56,
-125,
-43,
102,
74,
-105,
-38,
-114,
7,
-128,
-31,
90,
-46,
-96,
43,
-126,
15,
49,
-97,
-29,
46,
25,
-34,
-119,
44,
-53,
53,
-32,
-16,
-119,
29,
-49,
6,
-93,
4,
-84,
-124,
-8,
63,
-99,
49,
96,
-6,
51,
-78,
-112,
-12,
111,
-87,
-103,
98,
106,
33,
85,
-82,
-27,
-99,
15,
62,
29,
-90,
-104,
73,
73,
-84,
-106,
-65,
117,
50,
11,
-8,
-53,
93,
93,
108,
-126,
-50,
-74,
-79,
9,
52,
-106,
16,
-18,
37,
0,
97,
-57,
-22,
86,
4,
83,
91,
-52,
-106
]
|
The opinion of the court was delivered by
Nuss, J.:
A jury convicted Leonard C. Reid of the first-degree premeditated murder of a Texaco store’s assistant manager and of aggravated robbery of the business. It acquitted him of three counts of vehicle burglary and two counts of theft which were based upon his actions several hours earlier. Reid received a hard 50 sentence and now appeals his convictions and sentence. Our jurisdiction is under K.S.A. 22-3601(b)(l) (conviction of an off-grid crime).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the trial court commit reversible error in admitting evidence under K.S.A. 60-455 that Reid had been fired from the Texaco store for stealing and in failing to give a limiting instruction? No.
2. Did the trial court err in giving the pattern jury instruction, PIK Crim. 3d 52.20, on eyewitness identification? No.
3. Did the trial court err in denying Reid’s motion to sever and in failing to give an accomplice instruction? No.
4. Did the trial court violate Reid’s due process and jury trial rights by failing to give instructions on lesser included homicides and robbery? No.
5. Did cumulative error deprive Reid of his right to a fair trial? No.
6. Did the trial court err in finding that Reid killed the victim for monetary gain? No.
7. Is the Kansas hard 50 sentencing scheme unconstitutional? No.
Accordingly, we affirm Reid’s convictions and sentence.
FACTS
On October 23, 2002, Muhammad “Salim” Shahidullah was scheduled to work the first half of the night shift, from 10 p.m. to 3 a.m., at the Texaco Star Mart at 96th and Nall in Overland Park. Salim was worried about working at night, so he asked to wear a regular employee shirt, rather than the white shirt he normally wore as an assistant manager. Only managers and assistant managers wore white shirts. They were also the only employees who knew the combinations to the various safes in the store.
Early in the morning of October 24, Kevin Petree rode his bicycle toward the Texaco. As he approached he heard a sound which, as a veteran, he identified as a gunshot. A few seconds later, Petree saw a man run out the store’s door and across the street. While he described the man as having dark brown or black curly, kinky hair, he was unable to identify any other distinguishing characteristics.
Petree smelled burnt gunpowder as he walked into the store. He then saw Salim lying face down on the floor. After quickly determining that Salim had been shot in the back of the head, Petree immediately dialed 911. Records show that his call was made at 2:32 a.m. Salim later died, and the store was later found to be missing $4,300.
For a number of reasons, the police believed that the crimes were probably committed by someone who knew how a Texaco store operated. Besides the cash register, the robber was also able to take money out of the drop/floor safe, the back office safe, and the car wash coin box — places about which customers would not generally know and to which only the manager or assistant manager had access by key or combination. In addition, the robber struck at a financially rewarding time: just before the manager, Cathy Williams (Cathy), began her shift at 3 a.m. and before she retrieved the entire day’s receipts for Brinks’ security’s collection at 9 a.m.
The police also believed the crimes were committed by a person knowledgeable about this store because the perpetrator was aware that Salim was an assistant manager with access to these money depositories, despite his wearing a regular employee shirt. Furthermore, the video surveillance tape was taken, indicating that the perpetrator not only knew of the surveillance system but also that the VCR recorder was locked in a box in the office to which only management had a key.
Accordingly, the State’s prosecution theory was that Reid was the shooter and that his codefendant, Lionel Williams (Williams), was his accomplice. Evidence revealed that Reid had worked as a cashier at the store for about a year and a half before being fired for stealing in April 2002, 6 months prior to the crimes. According to Cathy, Reid was pocketing money instead of putting it in the register. She discovered those thefts partly because of the surveillance cameras. After Reid challenged her accusations, she confronted him with her evidence. Among other things, she took a surveillance tape from the locked box containing the VCR in the office and showed Reid his thefts. She then used the evidence of stealing to support her decision to terminate his employment.
After Reid’s firing, he often hung out at the store with the employees and regular customers. According to an employee’s testimony, about 1 week before the crimes, Reid grabbed the employee work schedule from behind the counter, reviewed it, then immediately made a phone call to an unknown person in hushed tones.
Although Reid did not testify at trial, approximately 1 week after the crimes he told police in a videotaped interview that he was going to visit his girlfriend’s daughter on October 23 and was planning to get his car washed at the store. The car wash was closed because it was too cold. Reid admitted to police that he arrived at the store between 10 p.m. and midnight. He remained there for about an hour, visiting with Salim and a customer who frequented the store. Reid then drove around the rest of the night until heading home around 7 the next morning. He also volunteered to the police he was aware of the store’s videotape surveillance system, or, as he exclaimed, those “fuckin’ cameras.”
Codefendant Williams.testified that sometime after 8 p.m. on October 23, he drove to an apartment complex by the store to meet Reid. Williams got into Reid’s car and sold him two $10 bags of marijuana. They smoked some of the marijuana and then, at Reid’s suggestion, moved to the Citgo across the street from the Texaco a little after 9 p.m. Police later found cigar butts with DNA from both Williams and Reid in that lot.
According to Williams, in between smokes he broke into three cars parked in the lot. During the 2 hours they sat there, both men made phone calls to their girlfriends on Williams’ cell phone. Williams called his girlfriend about 12:45 a.m. Afterward, Reid drove Williams back to his car where Williams transferred the stolen property.
Williams testified that he left Reid to get something to eat and then went to his mother’s house. An hour or two later, he left to make another drug sale. He then realized he did not have his phone and went home. Later the same day, Williams was at a friend’s house with Reid and complained that he had lost his phone. Reid suggested that Williams look in Reid’s car, where Williams found his phone under the driver’s seat.
Phone records indicated that no calls were made from Williams’ phone between 12:45 a.m. and 2:30 a.m. on October 24. However, several phone calls were made just after 2:32 a.m. — the time Petree called 911. Ry examining the records, the police determined that’ the calls were made from the store area. Williams insisted that he knew nothing about those calls and that he had lost his phone by that time. The records showed, however, the numbers dialed immediately after the crimes had been previously called many other times from Williams’ phone.
Despite Reid’s denial to the police that he was in the area after the shooting, one witness placed him there. Renee Showalter, who lived in a condominium near the store and was a frequent customer, testified that later that morning she saw Reid in his car parked in the lot outside her home. Additionally, while Petree could not identify Reid, he testified that during his call to the 911 dispatcher he saw the brake lights come on in a light-colored car across the street. Codefendant Williams testified that the night of the crimes, Reid was driving a silver Chevy Malibu.
Witnesses’ descriptions of an individual actually seen in the store around the time of the crimes also resembled Reid. Marsha Brown testified that she pulled into the store around 2 a.m. After pumping the gas, she then went inside to pay and spent a few minutes looking for a Twix candy bar.
Brown was surprised that the store clerk stayed behind the counter and did not offer to assist her in finding the Twix. As she came to the end of a shelf, she turned around and saw that another person was standing behind the counter with the clerk. She described that individual as an African-American man with “either dreadlocks or real poofy” hair. Brown described the incident as “weird.” When she was shown a line-up a week later, however, she was unable to identify Reid, an African-American, as the man behind the counter with Salim.
Brown could not find the Twix, so she left the store and went across the street to buy one at another store. That store’s receipt was time-stamped 2:13 a.m. As Brown drove home, she passed the Texaco and noticed a man walking quickly down the street, hunched over as if carrying something inside bis coat. She did not stop because she saw a Krispy Kreme truck parked in the store lot and assumed that the truck’s driver would notice if something was wrong in the store.
The Krispy Kreme truck driver, Scott Roesler, testified that as he walked into the store a black man and Salim walked inside at the same time. Roesler made his delivery, had Salim sign the invoice for the donuts, and left. Store manager Cathy testified that Salim had filled out every single detail on the donut invoice, which she found odd because he usually just noted the log with “KK,” the amount of the invoice, and perhaps the date. Cathy believed that Salim’s sudden interest in invoice details indicated that the robbery was occurring while Roesler was still in the store.
When shown a photo line-up a few weeks later, Roesler was unable to identify Reid as the man in the store that morning. How ever, he testified that during a live line-up, he was 70 or 80 percent sure that the man was Reid.
Reid was charged with first-degree premeditated murder or, in the alternative, first-degree felony murder; aggravated robbery; three counts of burglary of a vehicle; and two counts of theft of property with a value of less than $500. The jury acquitted him of the burglary and theft charges and convicted him of first-degree premeditated murder and aggravated robbery. Because Williams pled guilty to the burglary and theft charges, he was tried with Reid only on the murder and aggravated robbery charges. He was acquitted.
The trial court found that Reid’s offense was committed for the purpose of receiving money or obtaining something of monetary value. Accordingly, it gave Reid a hard 50 sentence.
Other facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The trial court did not commit reversible error in admitting evidence that Reid had been fired for stealing and in failing to give a limiting instruction.
Reid argues that the trial court erred in overruling his objection and admitting Cathy’s testimony that he had been fired for stealing from the store. He claims that the testimony was not admissible on the basis given by the trial court, i.e., to prove motive under K.S.A. 60-455. Reid also claims that the trial court erred in failing to give a limiting instruction informing the jury of the specific purpose for admission of such evidence.
Two years ago this court modified its approach to analyzing evidence under K.S.A. 60-455 in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). The Gunby court began with the threshold consideration of relevance:
“Generally, when considering a challenge to a district judge’s admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999).” 282 Kan. at 47.
Gunby further explained that after relevance, our possible standards of review were then dependent upon the contours of the evidentiary rule in question:
“ ‘Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. [Citation omitted.] When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.’ ” (Emphasis added.) 282 Kan. at 47-48.
The statute under which Cathy’s testimony about Reid’s employment termination for stealing was admitted, K.S.A. 60-455, states in part:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence [that a person committed a crime or civil wrong on a specified occasion] is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.) K.S.A. 60-455.
Gunby also clarified that the K.S.A. 60-455 analysis requires several steps. As mentioned, the court must determine that the evidence is relevant to prove a material fact, c.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the juiy of the specific purpose for admission whenever 60-455 evidence comes in. State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007) (citing Gunby, 282 Kan. at 48, 56-57). As we explained in Gunby. “These safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant’s mere propensity to commit the charged crime.” 282 Kan. at 48.
Relevance, probativeness, and materiality
Reid first argues that the evidence of his firing for stealing was not relevant to prove motive. We have held that motive is the moving power that impels one to action for a definite result. State v. Jordan, 250 Kan. 180, 190, 825 P.2d 157 (1992). As we stated in State v. Engelhardt, 280 Kan. 113, 128, 119 P.3d 1148 (2005): “Motive supplies the jury with some degree of explanation, responding to a juror’s natural tendency to wonder why a defendant behaved in the manner described by the State. Often it is a prominent feature of the State’s theory of its case.”
While Gunby established that evidentiary rules may be applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the contours of the rule in question, this particular determination only occurs “[o]nce relevance is established.” 282 Kan. at 47. Gunby did not establish our standard of review for analyzing relevance of certain K.S.A. 60-455 evidence.
We begin our analysis of this question with a short review. As mentioned, the legislature has defined “relevant evidence” as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). This statutoiy definition bears some resemblance to one found in Federal Rule of Evidence 401: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Several treatises have recognized that the federal rule contains both a probative, i.e., relevancy, element and a materiality element.
“At common law, a distinction was drawn between relevancy and materiality. Relevancy meant that evidence had probative value in establishing a particular point, and materiality meant the point had legal significance in die case. For example, in a products liability action for injuries caused by a power mower, evidence that plaintiff was mowing wet grass in bare feet would be relevant on the issue of whetiier plaintiff was negligent, but such issue would be immaterial if the actual cause of die injuries was the blade flying off the mower.
“Under FRE 401, ‘materiality’ is merged into the definition of relevancy by the requirement that the fact proved must be ‘of consequence to the determination of the action.’ Therefore, an objection on grounds of irrelevancy now encompasses an objection on grounds of immateriality, and a separate immateriality objection is no longer required or appropriate. Determining whether evidence is ‘consequential’ depends on the applicable substantive law.” (Emphasis added.) Mueller & Kirkpatrick, Evidence Practice Under the Rules § 4.2, pp. 228-29 (2d ed. 1999).
See also 1 Federal Rules of Evidence Manual, § 401.02[2] (9th ed. 2006) (“Both traditional requirements of relevance analysis — that evidence must relate to issues that are properly in dispute and that it must shed some light on those issues — are combined into one rule. Whether an issue is properly in dispute is, of course, determined by the applicable substantive law.”).
The same merger of elements can be found in the Kansas counterpart, K.S.A. 60-401(b): “[E]vidence having any tendency in reason to prove” suggests the probative element, while “any material fact” suggests the materiality element.
K.S.A. 60-455 itself recognizes both elements. The statute provides that the evidence of the prior crime or civil wrong “is admissible when relevant to prove [i.e., probative] some other material fact including motive.” In general, to be material the fact proved must “ 'be significant under the substantive law of the case and properly at issue.’ ” State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006) (quoting State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 [1976]); see Garcia, 285 Kan. at 14 (Materiality, for purposes of K.S.A. 60-455, contemplates “a fact which has a legitimate and effective bearing on the decision of the case and is in dispute.”).
We have stated that materiality is largely a question of law. Faulkner, 220 Kan. at 155. Accordingly, even when a standard of review has been labeled as one for abuse of discretion, a review of the materiality element would most appropriately be de novo. See, e.g., Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000) (“Questions of law are presented when an appellate court seeks to review the factors and considerations forming a district court’s discretionaiy decision.”). See also Gunby, 282 Kan. at 47-48 (“When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.”).
We observe, for example, that the Second Circuit reviews evidentiary rulings for abuse of discretion. However, in a recent civil rights case, it held that lost wages were not an issue “and thus legally could not ‘affect the outcome of the suit under the governing law.’ ” Arlio v. Lively, 474 F.3d 46, 52 (2d Cir. 2007). It therefore held: “[T]he district court admitted evidence about the arbitration solely because it was probative of a non-material issue; why Arlio was not seeking back wages in the federal action. Thus, the testimony was not relevant and should have been excluded.” 474 F.3d at 53. See also Ahlberg v. Chrysler Corp., 481 F.3d 630, 633 (8th Cir. 2007) (Utilizing an abuse of discretion standard of review, held Jeep-retrofit evidence “not relevant” to prove feasibility because feasibility was not an issue at trial due to Chrysler’s concession); Richardson v. Missouri Pacific Railroad Co., 186 F.3d 1273, 1277 (10th Cir. 1999) (utilizing an abuse of discretion standard of review, held that while defendant argued that evidence of plaintiff s prior lawsuit and setdement was relevant to its defense of release and accord and satisfaction, this defense had no application to the issues; fact that defendant discharged the 1986 injury obligation “simply is not relevant” to the question of whether plaintiff is entitled to recover from defendant for the 1996 incident); Phillips v. Western Co. of North America, 953 F.2d 923, 930 (5th Cir. 1992) (“[I]f the substantive law disallows a setoff from the tortfeasor’s damages for the plaintiff s collateral benefits, evidence of collateral benefits simply has no relevance in the lawsuit.”).
These federal cases’ results and specific rationale under federal rules of evidence are essentially contained in similar Kansas case law. In State v. Carter, 270 Kan. 426, 442, 14 P.3d 1138 (2000), we reviewed our decision in State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998), in which the Donesay court reversed a jury conviction of premeditated murder and a hard 40 sentence because of the improper allowance of the testimony of the widow of the victim. As we stated in Carter.
“With regard to the materiality of the widow’s testimony, the [Donesay] court observed:
‘The purpose of the State’s eliciting Mrs. Easter’s testimony was not to identify the defendant as the killer, was not to show that he intended to kill Officer Easter, and was not to show premeditation. Her testimony was not intended to show the guilt of the defendant, and it did not. We can only conclude that it was intended to infuriate and inflame the jury against the defendant.’ 265 Kan at 89.” 270 Kan. at 442.
The Donesay court held the admission of this evidence was “patently improper and reversible error.” 265 Kan. 60, Syl. ¶ 9. In short, the evidence was immaterial because it was not significant under the substantive law of the case.
In addressing a quite similar situation, the Carter court held that certain testimony of the murder victim’s father was “immaterial and served only to inflame the jury against the defendant.” 270 Kan. at 442. See also Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P.2d 837 (1931) (“Parts of this testimony had no bearing on the controversy of the parties and should have been excluded upon the ground of immateriality.”).
Several examples of per se “material facts” are provided for in K.S.A. 60-455, e.g., motive, intent, and knowledge. Consequently, in the instant case the only materiality determination for die trial court to make would have been to see if motive or knowledge were material under the substantive law of first-degree murder or aggravated robbery. They clearly were material. See, e.g., Englehardt, 280 Kan. at 128 (Motive often “is a prominent feature of the State’s theory of its case.”). Indeed, Reid does not complain of lack of materiality. Contrast Garcia, 285 Kan. at 14 (Defendant argued that intent and identity were not disputed material facts; if they were, the evidence of his prior convictions were not relevant to prove those material facts.). Reid simply complains that the evidence of his firing for stealing was not relevant to — more specifically, not probative of — motive.
As mentioned, Gunby did not establish our standard of review for analyzing relevance — in particular, the probative element — of certain 60-455 evidence. Nevertheless, for several reasons we conclude that the appropriate standard is abuse of discretion. First, the language of K.S.A. 60-401(b) itself suggests a low standard: “evidence having any tendency in reason to prove any material fact.” (Emphasis added.)
Second, generally applying an abuse of discretion standard to any relevance determination is suggested by legal authorities and Kansas case law. For example: “In ruling upon relevancy, the [trial] court must draw on its own experience, knowledge, and common sense in assessing whether a logical relationship exists between proffered evidence and the fact to be proven.” Mueller & Kirkpatrick, Evidence Practice Under the Rules § 4.1, p. 226 (2008) (citing Thayer, A Preliminary Treatise on Evidence at the Common Law, 265 [1898]: “The law furnishes no test of relevancy.”); Cf Goodson, 281 Kan. at 922 (“Because relevancy is a matter of logic and experience, the determination of relevancy is generally seen as inherently discretionary.”); Faulkner, 220 Kan. at 155 (“Relevancy is more a matter of logic and experience than of law. . . . Materiality, on the other hand, is largely a question of law.”); State v. Baker, 219 Kan. 854, 858, 549 P.2d 911 (1976) (“ ‘[R]elevancy [is] a matter of logic and experience and not of law. ... If an item of evidence tends to prove or disprove a proposition, it is relevant to that proposition.’ ”) (quoting Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1 [1956]).
Finally, applying an abuse of discretion standard for reviewing the probative element determination under K.S.A. 60-455 is also supported by numerous decisions of this court. In State v. O’Neal, 204 Kan. 226, 230-31, 461 P.2d 801 (1969), this court noted that 60-455 allows the admission of evidence “when it is relevant to prove certain material facts bearing upon proof of certain elements of the crime, such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” We then held that “[t]he determination of relevancy is a matter left to the judicial discretion of the trial judge. However, exercise of that discretion must not be abused. It must be based upon some knowledge of the facts, circumstances or nature of the prior offense.” 204 Kan. at 231.
The O’Neal court concluded that the defendant’s prior conviction for felonious assault should not have been admitted into evidence. Among other things, we stated: “There may or may not have been similarities in the facts of that case [prior felonious assault] which would be relevant to prove [the material facts of] intent or absence of mistake in the present case.” 204 Kan. at 231. See State v. Donnelson, 219 Kan. 772, 776, 549 P.2d 964 (1976) (“While the determination of relevancy is a matter left to the judicial discretion of the trial judge, such discretion cannot be abused and must be based upon some knowledge of the facts surrounding the prior offense.”); State v. Moore, 218 Kan. 450, 454, 543 P.2d 923 (1975) (In a 60-455 case, “the determination of relevancy is a matter left to the judicial discretion of the trial judge.”); State v. Cross, 216 Kan. 511, Syl. ¶ 7, 532 P.2d 1357 (1975) (“In determining the relevancy of a prior conviction under K.S.A. 60-455 the matter is left largely to the judicial discretion of the trial judge.”); State v. Clingerman, 213 Kan. 525, 527-28, 516 P.2d 1022 (1973) (The trial court abused its discretion because “it does not appear that the facts of the prior crime were pertinent to prove [60-455 factors] with respect to the present charge.”).
Based upon these authorities, we conclude that probativeness determinations of evidence under K.S.A. 60-455 are best reviewed under an abuse of discretion standard. As with our conclusion that materiality determinations under 60-455 are reviewed de novo, any contrary language in our prior decisions is disapproved, and any confusing language is clarified. Obviously, if either the probative or materiality element’s standard is not met, then the evidence is inadmissible. If both standards are met, then the appellate court proceeds to the next step(s) in the 60-455 analysis established in Gunby.
Having established our standard of review, our analysis of the instant case proceeds with the trial judge’s relevancy — more particularly, probativeness — rationale for admission of the “firing-for-theft” evidence:
“His employment at Texaco does have a part of this case. It’s intrinsically intertwined in it. The business of removal of the tape and so on, we heard testimony of at the preliminary hearing ties into that. Now I understand that the defense is objecting to the references to his being terminated for illegal activity. That really goes to motive as well. You got to pick some place if you’re going to rob a store, and it [the termination for theft] goes to motive with respect to that. So I think it’s clearly admissible evidence.” (Emphasis added.)
While perhaps thin, this evidence is nevertheless adequate under an abuse of discretion standard to satisfy the probative element of K.S.A. 60-401(b). As the trial court implies, when an employee is terminated for theft of an employer’s money, retaliation can serve as an incentive to commit a later act. While retaliation may taire many forms, there is presumably more satisfaction, and obviously a certain symmetry, in later taking a lot more of the employer’s money in a robbery. Accordingly, if one desires to rob any store for thousands of dollars, intertwined with that decision may be the “payback incentive” to choose one particular convenience store out of the numerous ones in the Kansas City metropolitan area. In short, Reid’s firing for theft helps comprise the “moving power that impels one to action for a definite result.” (Emphasis added.) Jordan, 250 Kan. at 181.
Even if the theft evidence were without “any tendency in reason” to prove motive, we agree with the State that it certainly had such a tendency to prove knowledge under K.S.A. 60-455. At oral arguments, Reid’s counsel essentially asserted for the first time that because the trial court relied only upon the statutorily designated material fact of motive, our review was restricted to that issue. He cited no authority for this proposition.
While “knowledge” was not given as the reason for the trial court’s admission of the employment termination evidence, that court’s conclusion can be upheld on review even though its given reason may have been wrong. In State v. Cooperwood, 282 Kan. 572, 580, 147 P.3d 125 (2006), while the trial court excluded expert witness testimony solely on the basis of relevance, this court instead excluded it on the basis of lack of necessity. We held: “[T]he exclusion can be upheld under the rationale and holding of State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002): ‘[T]he trial court will not be reversed if it is right, albeit for the wrong reason.’ ” 282 Kan. at 580. In Bryant, this court held that although the trial court was wrong to admit the evidence under the res gestae exception, it was nonetheless admissible under the excited utterance exception. 272 Kan. at 1210 (citing State v. Jones, 267 Kan. 627, 634, 984 P.2d 132 [1999]).
Particularly given the Gunby court’s “statutory plain language” expansion of the facts that a court may consider under K.S.A. 60-455 beyond the eight listed in the statute, we see no valid reason why the rationale and holdings expressed by this court in cases involving other types of evidence cannot apply to 60-455 scenarios. Any contrary language in our prior decisions is disapproved, and any confusing language is clarified. See, e.g., State v. Marquez, 222 Kan. 441, 447-48, 565 P.2d 245 (1977); State v. McCorgary, 224 Kan. 677, 686, 585 P.2d 1024 (1978) (“The erroneous admission of evidence of a crime under one exception in K.S.A. 60-455 is not made harmless merely by the fact it would have been admissible under another exception not instructed on. [Citation omitted.] Therefore, the court must examine the whole record to see whether the admission of the evidence was harmless or prejudicial under the harmless error rule.”); State v. Castillo, 34 Kan. App. 2d 169, 171, 115 P.3d 787, rev. denied 280 Kan. 985 (2005) (“Mc-Corgary did not say that an appellate court cannot consider whether another 60-455 exception might apply, but rather the holding is that the applicability of another exception does not always render harmless the erroneous admission upon an inapplicable exception.”).
When viewed through 60-455’s “knowledge” lens, the evidence in the instant case reveals that the store crimes were most likely committed by someone with intimate knowledge of the store operations. As a former employee, Reid knew that only management personnel had keys to the various safes and lockboxes. For the same reason, he also knew that Salim was an assistant manager with such access, despite Salim’s efforts to disguise his position by wearing a regular employee shirt. Reid also knew the four locations of the money and a good time to rob the store — just before 3 a.m. when Cathy, the manager, came on duty and before she would be gathering the entire day’s receipts and cash for collection. He also knew where and how to access the work schedule after his firing, presumably to learn who was working at what times in order to help determine the best opportunity for committing the aggravated robbery and murder.
In addition, Reid admitted to the police that he knew about the store’s cameras. Most important, he knew about the existence, and exact location, of the cameras’ surveillance tapes. He apparently was not aware of how the security system operated prior to being fired because he denied the thefts until Cathy played him the tape memorializing them. She testified that she kept the tape-producing VCR in a lockbox in the office. Reid therefore would be one of very few people who knew of the VCR, the lockbox, their location, and the fact that only management, e.g., Salim, the night of his murder, had access. Accordingly, the firing for theft had a tendency in reason to prove Reid had unique knowledge of the store’s procedures and safeguards and would be correctly admitted into evidence on this basis.
Prejudice v. probative value
Based upon the multi-step analytical approach established in Gunby, Reid next claims that even if the firing-for-theft testimony was probative, it was erroneously admitted because it was unduly prejudicial. See Gunby, 282 Kan. at 48-49.
This part of the evidentiary analysis is also reviewed for abuse of discretion. Garcia, 285 Kan. at 18 (citing State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 [2004]). The burden of proof is on the party alleging that the discretion is abused. Garcia, 285 Kan. at 18-19 (citing Meeks, 277 Kan. at 618).
As noted, the testimony that Reid had been fired for stealing, and the circumstances surrounding his termination, was certainly probative to establish motive and knowledge. It was key to establishing that he was one of the few people who knew of the videotape surveillance system and that the tapes were in a VCR locked in a box in the office to which only management, i.e., Salim, had access. Because of his termination due to a prior videotape from those cameras evidencing criminal activity, the testimony is especially key to establishing that he knew the new incriminating tape had to be removed to destroy evidence of his present criminal activity.
Of great importance to the prejudice analysis is Reid’s acquittal of the other honesty-based crimes — burglary and theft from the vehicles across the street earlier that same night. Based upon the acquittal, the jury apparently did not view his theft-based firing as prejudicial propensity evidence. Accordingly, Reid has not shown that the trial court abused its discretion in admitting the testimony.
Limiting Instruction
Finally, Reid claims that the trial court erred in failing to give a hmiting instruction informing the jury of the specific purpose for admission of the termination evidence.
As noted, Gunby also requires the giving of a hmiting instruction when 60-455 evidence is admitted. Gunby, 282 Kan. at 48, 56-57. Because Reid did not ask for such an instruction, this question is reviewed for clear error. K.S.A. 22-3414(3); Gunby, 282 Kan. at 58. Instructions are clearly erroneous if the appellate court finds “ ‘ “there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” ’ ” Cooperwood, 282 Kan. at 581.
To determine whether there is a real possibility the jury would have rendered a different verdict if a hmiting instruction had been given, we begin with the obvious. Because the jury acquitted Reid of the other honesty-based crimes, burglary and theft from the vehicles across the street the same night, it apparently did not view his theft-based firing evidence as demonstrating a “propensity to steal” or that he was an otherwise bad person. As a result, even without receiving a hmiting instruction, the jury clearly and correctly considered the termination evidence for. what it was, i.e., simply evidence of motive and knowledge.
Besides the evidence of the theft-based firing, and the attendant facts of Reid’s unique knowledge of the videotapes and where they were locked up, there was significant other evidence presented against Reid. As indicated earlier, his prior employment at this particular store provided him special knowledge on various money locations. He was also able to utilize his employee knowledge of the powers of management, of money collection times and procedures, and of work rosters to determine the optimal date and time to rob.
Reid also admitted to the police that he had been in the store the night of the crimes. Two eyewitnesses, Brown and Roesler, reported seeing an African-American male in the store with Salim around the time Salim was killed. Moreover, Reid was unable to explain his whereabouts at the time of the crimes — just that he was driving around.
During a live line-up, Roesler said he was 70 or 80 percent positive the black man who walked in the store with Salim was Reid. Because of the way Salim filled out the donut invoice, Cathy believed that a lengthy robbery was in process during that time. Reid drove a silver car, and a light-colored vehicle was seen by Petree leaving the scene shortly after the shooting. Though Reid denied being in the area after the robbery, Showalter testified that she saw Reid in a vehicle across the street.
Under these facts, we cannot say there is a real possibility the jury would have rendered a different verdict if the purported trial error, i.e., the lack of limiting instruction, had not occurred. See Cooperwood, 282 Kan. at 581. Accordingly, the trial court’s failure to give a limiting instruction was not clear error.
Issue 2: The trial court did not err in giving the pattern jury instruction on eyewitness identification.
Reid next argues that the trial court erred in giving the jury instruction on eyewitness identification testimony provided in PIK Crim. 3d 52.20. He specifically argues that the instruction was improperly given because the seven factors listed there are not the same as those adopted by this court in State v. Hunt, 275 Kan. 811, 817-18, 69 P.3d 571 (2003).
Because Reid did not object to this instruction at the trial court, he asserts that this court should only review the claim if we find that reaching it is “necessary to serve the ends of justice or to prevent the denial of fundamental rights,” citing State v. Trammell, 278 Kan. 265, 274, 92 P.3d 1101 (2004). We acknowledge Reid has correctly quoted Trammell, which also concerned a defendant’s failure to raise an issue regarding the use of PIK Crim. 3d 52.20 until his appeal. 278 Kan. at 269. The proper standard of our review, however, is whether failing to object to the instruction was “clearly erroneous.” See K.S.A. 22-3414(3). As mentioned, instructions are clearly erroneous if the appellate court finds “ ‘ “there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” ’ ” Cooperwood, 282 Kan. at 581.
Some background is needed for a full understanding of Reid’s argument. In Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), the United States Supreme Court reviewed the admissibility of eyewitness testimony. In allowing such testimony, the Court identified five factors to consider in the “totality of the circumstances.” 409 U.S. at 199. The following factors were to be used in evaluating the likelihood of misidentification:
1. the opportunity of the witness to view the criminal at the time of the crime,
2. the witness’ degree of attention,
3. the accuracy of the witness’ prior description of the criminal,
4. the level of certainty demonstrated by the witness at the confrontation, and
5. the length of time between the crime and the confrontation. 409 U.S. at 199-200.
In State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), this court acknowledged that in testing the reliability of identification testimony, the five factors mentioned in Biggers should be considered by the trial court in its admissibility determination. It then applied the Biggers rationale to instructing the jury on weighing credibility of eyewitness identification testimony:
“If these five factors should be considered in determining the admissibility of the testimony, it would seem even more appropriate to require the jury to consider the same factors in weighing the credibility of the eyewitness identification testimony. Otherwise the jury might reasonably conclude that the admission of the evidence by the trial court vouched for its reliability. We think it clear that, in order to prevent potential injustice, some standards must be provided the jury so that the credibility of eyewitness identification testimony can be intelligently and fairly weighed.” (Emphasis added.) 230 Kan. at 397.
As a direct result of Warren, PIK Crim. 3d 52.20 was promulgated. See State v. Mann, 274 Kan. 670, 677-78, 56 P.3d 212 (2002). It instructs the jury on the credibility of eyewitness identification testimony in slightly different ways than Biggers’ identification of the five factors for the court to consider on the issue of admissibility of eyewitness testimony. See State v. McIntyre, 259 Kan. 488, 493-94, 912 P.2d 156 (1996). The pattern instruction states:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he) (she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of time of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant(s) on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused;
“7. Whether there are other circumstances that may have affected the accuracy of the eyewitness identification.” (Emphasis added.) PIK Crim. 3d 52.20.
In State v. Hunt, 275 Kan. 811, this court accepted the Utah Supreme Court’s approach in State v. Ramirez, 817 P.2d 774 (Utah 1991), which uses “slightly different factors to evaluate the reliability of the identification.” 275 Kan. at 817. The Ramirez court identified the following factors:
“(1) the opportunity of the witness to view the actor during the event; (2) the witness’ degree of attention to the actor at the time of the event; (3) the witness’ capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness’ identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correcdy. This last factor requires the consideration of whether the event was an ordinary one in the mind of the observer during the time it was observed and whether the race of the actor was the same as the race of the observer.” 817 P.2d at 781.
This court in Hunt adopted the rationale used by the Utah Supreme Court in Ramirez, stating:
“Though three of the [Ramirez] factors differ somewhat from the Biggers factors, they present an approach to the identification issue which heightens, in our view, the reliability of such identification.
“We accept the Ramirez model; however, our acceptance should not be considered as a rejection of the Biggers model but, rather, as a refinement in the analysis.
“We conclude that the Ramirez factors should be adopted as the model for examining such issues and that when requested or where such identification is a central issue in a case, a cautionary instruction regarding eyewitness identification should be given.” 275 Kan. at 818.
The issue in Hunt, however, was not the propriety of the jury instruction, but rather the factors the trial court would use in determining the admissibility of the evidence, i.e., as in Biggers. See Hunt, 275 Kan. at 821 (trial court did not err in admitting the identification testimony of store clerk). One year after Hunt, in State v. Trammell, 278 Kan. at 270-71, we combined the lists, eliminated the two duplications, and recited the eight “Hunt factors” for analyzing whether an eyewitness identification should be excluded from evidence.
The Trammell court also addressed defendant’s jury instruction issue upon which Reid relies. Trammell argued that the trial court erroneously instructed his jury regarding eyewitness identification, relying upon Hunt “for the proposition that PIK Crim. 3d 52.20 incorrectly states the law in Kansas.” 278 Kan. 269. The Trammell court first pointed out that Hunt involved guidance for a trial court’s evaluation of the reliability of an identification for admission or exclusion from evidence, i.e., not jury instructions. This court next pointed out that Trammell’s argument was flawed because
“[i]n Hunt, this court did not discard the prior analysis under Biggers. Instead, we enhanced the reliability analysis by adding the Ramirez factors to the Biggers factors, stating: We accept the Ramirez model; however, our acceptance should not be considered as a rejection of the Biggers model but, rather, as a refinement in the analysis.’ ” Trammell, 278 Kan. at 270.
We then elaborated upon our rejection of Trammell’s argument:
“Although Hunt suggested that a cautionary instruction be given for eyewitness identification, it did not address the validity of PIK Crim. 3d 52.20. [Citation omitted.] Accordingly, Hunt does not support Trammell’s claim that PIK Crim. 3d 52.20 is erroneous.” 278 Kan. at 270.
Just as the Trammell court held that Hunt did not support Trammell’s claim, we hold that Trammell does not support the State’s present claim that Trammell controls and rejects Reid’s specific argument. That question was simply left unanswered in Trammell.
Reid particularly asserts that Trammell “overstates the continued viability of the Biggers factors after Hunt.” He chiefly complains that factor No. 6 of the pattern instruction — the degree of certainty — should not have been presented to his jury. According to him, that factor improperly allowed the jury to consider the part of Roesler’s testimony that he was 70 to 80 percent sure Reid was the man Roesler saw in the store.
We need not answer the question left unanswered in Trammell, however, or Reid’s specific argument, to address his claim. The Trammell question must await full briefing and argument in a future case. Simply put, even assuming PIK Crim. 3d 52.20 was improperly written and therefore improperly given, we cannot hold there is a real possibility that the jury would have rendered a different verdict had the purported error not occurred. See Cooperwood, 282 Kan. at 581. As discussed in detail in the analysis of issue 1, the State’s evidence was too strong. Of particular damage to Reid’s defense is the evidence of his unique knowledge of the location of the videotape capturing the crimes’ commission and of management’s ability to unlock the VCR box in the office and retrieve the tape for him.
Issue 3: The trial court did not err in denying Reid’s motion to sever and in failing to give an accomplice instruction.
Reid next argues that the trial court erred in denying his pretrial motions to sever his trial from codefendant Williams’, which he claims deprived him of the right to an accomplice instruction.
K.S.A. 22-3202(3) allows two or more defendants to be charged in the same criminal complaint, information, or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting a crime or crimes. Severance is addressed by K.S.A. 22-3204 which states: “When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.”
As the “may” in K.S.A. 22-3204 suggests, severance is within the trial court’s discretion. State v. White, 275 Kan. 580, 589, 67 P.3d 138 (2003). However, severance should occur when a defendant has established that there would be actual prejudice if a joint trial occurred. 275 Kan. at 589. Accordingly, if a defendant’s motion to sever is denied, on appeal he or she has the burden of estabhshing that there would be actual prejudice and thus discretion was abused.
We addressed the issue of severance in State v. Winston, 281 Kan. 1114, 1131, 135 P.3d 1072 (2006):
“The factors to be considered in determining whether there is sufficient prejudice to mandate severance are:
‘ “ ‘(1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on die separate trials of such other defendants.’ ” ’ [Citations omitted.]” (Emphasis added.)
Reid initially argues the first factor: antagonistic defenses. He claims that Williams’ testimony and a statement made by Williams’ counsel in closing arguments implicitly pointed the finger at him.
Reid highlights Williams’ testimony that Williams lost track of his phone for several hours the morning of October 24 and found it later that morning in Reid’s car. From phone records, law enforcement was able to determine that the person placing calls from that phone around 2:32 a.m. was in the vicinity of the store at the time of the crimes. From this, Reid argues that Williams’ testimony infers that Reid had the phone during that critical time. As a result, Reid must have been at the crime scene.
Williams’ testimony, however, does not establish that Reid and Williams had antagonistic defenses. Both deny involvement in the robbery and murder, and neither implicates the other. “Antagonistic defenses occur when each defendant is attempting to convict the other or where the defenses conflict to the point of being mutually exclusive or irreconcilable. . . . Short of this type of dichotomy, defenses will not be deemed antagonistic.” White, 275 Kan. at 590.
White relied in part upon our decision in State v. Pham, 234 Kan. 649, 655, 675 P.2d 848 (1984), where we stated that antagonism requires the codefendants’ accounts be on a “collision course”:
“[I]n order to reverse a district court denial of severance:
‘[T]he accounts of co-defendants [must] be not merely divergent from one another but indeed “so contradictory as to raise an appreciable danger that the jury would convict solely on the basis of the inconsistency.” To warrant a severance, in short, the accounts of co-defendants must be “on a collision course.” [Citation omitted.]’ ”
Moreover, “the presentation of evidence by one defendant which is inconsistent with the evidence presented by another defendant does not make the defenses antagonistic.” (Emphasis added.) White, 275 Kan. at 590 (citing Pham, 234 Kan. at 654).
Williams’ testimony about his lost phone, and where he eventually found it, does not put his defense on a collision course with Reid’s. Both defendants deny participating in the crimes. In addition, Reid may not have known that Williams’ phone was in his car; and someone besides Reid could have been using it. Most persuasively, records show that the numbers called from Williams’ phone directly after the murder were numbers that had often been called previously from his phone, i.e., by him, not Reid. As we held in White: “While there may have been inconsistency in the evidence, there was not a dichotomy in the defenses. As presented, the defenses were not mutually exclusive.” 275 Kan. at 591. And also as in White, there has not “been any showing of actual prejudice” of Williams’ testimony. 275 Kan. at 591. Indeed, any possible prejudice was greatly ameliorated by the evidence demonstrating that the phone numbers called after the murder from Williams’ phone were those previously called by Williams.
Reid next points out that in closing argument, Williams’ counsel argued, “[Williams] is innocent. He didn’t do this. This isn’t a reasonable doubt case. He didn’t do it. We know who did, and there wasn’t any help.” With this argument, counsel may have inappropriately implicated Reid. However, “who” is not identified. More important, for this error to require reversal, Reid must show that it actually prejudiced him. White, 275 Kan. at 589. No such showing has been attempted.
Reid does claim, however, that he can show prejudice under the second factor described in White. There, a defendant must demonstrate “ ‘ “ ‘that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial.’ ” ’ ” White, 275 Kan. at 590. Reid does not claim that different evidence would be admitted; he claims that in severed trials, different instructions would have been given. Because this is not one of the identified factors, Reid’s argument fails.
Even if we accept Reid’s expansion of our case law, he still cannot prevail. He specifically contends that the jury improperly viewed Williams’ testimony to be as credible as all other witnesses’ because it was not given an accomplice instruction, which he asserts it would have received if Williams were testifying at Reid’s separate trial. We disagree for several reasons. First, any jury would naturally be skeptical of the testimony of a codefendant in a joint murder trial.
Second, this particular jury’s findings contradict Reid’s position. The jury was instructed that it should “consider and weigh everything” including “testimony of witnesses.” It was also instructed that “[i]t 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.” A jury is presumed to follow the instructions given to it (State v. Kunellis, 276 Kan. 461, 484, 78 P.3d 776 [2003]), and apparently it did so here when it acquitted Reid of all five crimes in which Williams implicated him: the vehicle burglaries and thefts. And it convicted Reid of the crimes in which Williams did not implicate him — murder and armed robbery, for which both defendants disclaimed any participation. These findings do not indicate that Reid was prejudiced by the failure to sever and the failure to give an accomplice instruction. As a result, he has not shown that the trial court abused its discretion.
Issue 4: The trial court did not violate Reid’s due process and jury trial rights by failing to instruct the jury on lesser included homicides and robbery.
Reid next argues that the trial court erred in failing to instruct on certain lesser included instructions, i.e., second-degree intentional murder, second-degree reckless murder, involuntary manslaughter, and robbeiy.
Because Reid did not request these instructions we must determine whether failing to give the instructions was clearly erroneous. K.S.A. 22-3414(3). As mentioned, instructions are clearly erroneous if the appellate court finds “ ‘ “there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” ’ ” Cooperwood, 282 Kan. at 581.
Our threshold question is whether any error occurred, i.e., whether a jury could reasonably convict the defendant of the lesser offense based on the evidence presented. Cf. State v. Sappington, 285 Kan. 158, 163-65, 169 P.3d 1096 (2007). As we stated in State v. White, 284 Kan. 333, 161 P.3d 208 (2007):
“ ‘ “A trial court must instruct the juiy on a lesser included offense ‘where there is some evidence which would reasonably justify a conviction’ of the lesser offense. . . . ‘However, the duty to so instruct arises only where there is evidence supporting the lesser crime.’ [Citation omitted.] An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.” ’ [Citation omitted.]” 284 Kan. at 347 (quoting State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 [2004]).
As the lesser included offense of first-degree murder, second-degree murder “is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-3402.
The lesser included offense, involuntary manslaughter, “is the unintentional killing of a human being committed: (a) Recklessly; (b) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony.” K.S.A. 21-3404.
As the lesser included offense of aggravated robbery, robbery “is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. Aggravated robbery is defined as robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3427.
Under our facts, there is no evidence whatsoever that Salim was killed recklessly, unintentionally, or without premeditation. Among other things, he was shot in the back of the head while lying face down on the floor of his store that was being robbed. Additionally, because Reid’s entire theory of defense was that he was not present during the crimes’ commission, it is difficult to understand how, as alternatives to first-degree premeditated murder, he could have instead killed Salim unintentionally, recklessly, or without premeditation. Given his “absence” defense, it is additionally difficult to understand how, as an alternative to aggravated robbery, he could have instead taken the money from Salim’s presence so as to constitute simple robbery under K.S.A. 21-3426. Given Salim’s death, the robbery was certainly aggravated because it was committed by a person armed with a dangerous weapon or who inflicted bodily harm upon Salim during the course of it.
Because there was no evidence upon which the jury could reasonably convict Reid of these lesser included offenses, the trial court’s failure to instruct on them is not erroneous, much less clearly erroneous. Cf. Sappington, 285 Kan. at 163-65.
Issue 5: Reid was not deprived of his right to a fair trial by cumulative error.
Reid next argues that cumulative error requires reversal of his conviction and remand for a new trial.
Cumulative trial error requires reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. We have often held that reversal is not required if the evidence is overwhelmingly against the defendant. State v. Bryant, 276 Kan. 485, Syl. ¶ 7, 78 P.3d 462 (2003). As we recently suggested in State v. Hunt, 285 Kan. 855, 873, 176 P.3d 183 (2008), however, the converse is not true: the lack of overwhelming evidence is not dispositive of the issue. Instead, we look at the totality of the circumstances and assess whether the defendant received a fair trial.
Even if we assume that Williams’ counsel’s remarks during closing arguments were erroneous, this one error does not demonstrate substantial prejudice and denial of a fair trial. And as discussed in detail in the analysis of issue 1, the State’s evidence may not have been overwhelming, but it was substantial. Especially damaging to Reid was the evidence of his unique knowledge of the location of the videotape capturing the crimes’ commission and of Salim’s ability to unlock the VCR box in the office and retrieve the tape for him. Consequently, reversal on the basis of cumulative error is not warranted.
Issue 6: The trial court did not err in finding that Reid killed for monetary gain.
Reid next claims that the trial court erred in finding that he killed Salim for monetary gain, which the court used to support imposition of the hard 50 sentence. See K.S.A. 21-4636(c). He recites our typical standard of review:
“When a defendant challenges the sufficiency of evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.” [Citations omitted.]’ ” State v. Baker, 281 Kan. 997, 1018, 135 P.3d 1098 (2006).
Reid’s argument is based entirely upon the sequence of events. He specifically claims that because the killing followed the robbery — Petree testified that he heard a shot as he approached the store and a few seconds later saw a man run out — the killing gained the shooter nothing he did not already have just before the killing. Accordingly, the killing could not have been performed for monetaiy gain. We believe that Reid’s argument is more accurately characterized as one of statutory interpretation, a question of law over which we have unlimited review. See State v. White, 279 Kan. 326, 332, 109 P. 3d 1199 (2005).
The statute that lists the aggravating factors to support imposition of the hard 50 sentence, K.S.A. 21-4636, states in relevant part: “Aggravating circumstances shall be limited to the following: . . . (c) The defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value.” (Emphasis added.)
The facts and holding of this court’s decision in State v. Vontress, 266 Kan. 248, 970 P.2d 42 (1998), directly contradict Reid’s sequential argument. Vontress was convicted of first-degree murder, aggravated robbery, aggravated burglary, and criminal possession of a firearm. Based upon the trial court’s finding that the killing occurred to facilitate die taking of money or valuables, it imposed a predecessor sentence to the hard 50: the hard 40. 266 Kan. at 259. Similar to Reid’s position in the instant case, Vontress argued that because the killing occurred after the taking of the property was completed, it was not done in furtherance of the robbery, i.e., for monetary gain. This court rejected his argument:
“The fact that the shooting occurred after Vontress had taken [the victim’s] money from him is not relevant. Vontress committed the crimes for which he was convicted for the purpose of obtaining money and drugs. During the commission of the robbery, Vontress or his accomplice killed [the victim]. Therefore, the crime was committed for the puipose of obtaining money and drugs, an aggravating circumstance which supports the imposition of the mandator)' 40-year prison sentence.” (Emphasis added.) 266 Kan. at 259.
In short, the Vontress court held that this aggravating factor does not require a specific sequence, i.e., it does not require that the defendant first kill the victim and then steal the victim’s money. Rather, this court has looked to whether the killing is connected with the robbery in order to qualify as being committed for financial gain. Cf. State v. Murillo, 269 Kan. 281, 7 P.3d 264 (2000) (Murillo committed the murder while in the process of attempting to locate cocaine; hard 40 warranted); State v. Cromwell, 253 Kan. 495, 513, 856 P.2d 1299 (1993) (evidence that defendant committed the murder for the purpose of obtaining money or other items of value; hard 40 warranted); State v. Kingsley, 252 Kan. 761, 790, 851 P.2d 370 (1993) (evidence supports a finding that defendant went to victim’s house with the intention of killing her and taking her money and valuables; hard 40 warranted).
Were we writing on a clean slate, we might be inclined to revisit the question of whether, as the concurrence argues, the legislature intended this particular statutory aggravator to apply only to situations such as murder for hire. However, our slate carries 15 years of decisions issued since the passage of K.S.A. 21-4636(c). The legislature apparently has taken no exception to our interpretations, by statutory amendment or otherwise. As a result, we reject Reid’s argument.
Issue 7. The Kansas hard SO sentencing scheme is constitutional.
For his last claim of error, Reid challenges the constitutionality of Kansas’ hard 50 sentencing scheme under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). He argues that the statute is unconstitutional because it does not allow a criminal defendant the right to have a jury determine beyond a reasonable doubt all the facts which might increase the maximum penalty for first-degree murder.
This court has de novo review of constitutional questions. State v. Kirtdoll, 281 Kan. 1138, 1151, 136 P.3d 417 (2006).
This court has previously rejected the same challenge in numerous cases. See Kirtdoll, 281 Kan. at 1151; State v. Oliver, 280 Kan. 681, 708, 124 P.3d 493 (2005); State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); State v. Hebert, 277 Kan. 61, 107-08, 82 P.3d 470 (2004); and State v. Douglas, 274 Kan. 96, 111-12, 49 P.3d 446 (2002) cert. denied 537 U.S. 1198 (2003). We see no reason to retreat from that position now.
Affirmed. | [
-16,
-20,
120,
-115,
56,
-32,
58,
-98,
36,
-29,
-89,
83,
33,
-53,
1,
121,
-38,
117,
-43,
105,
-58,
-89,
7,
97,
-62,
-11,
-77,
-59,
-70,
91,
-10,
-33,
77,
96,
74,
-43,
-90,
72,
69,
92,
-118,
5,
-88,
-14,
80,
0,
36,
58,
-18,
15,
49,
12,
-13,
58,
30,
-57,
-120,
44,
75,
-81,
80,
-15,
98,
-115,
-41,
16,
-93,
4,
-106,
-121,
-40,
63,
-101,
-71,
0,
-24,
115,
-106,
-122,
116,
45,
-119,
-124,
-30,
99,
32,
24,
-17,
108,
-95,
46,
-1,
-115,
-89,
24,
88,
65,
6,
-105,
-100,
126,
54,
14,
124,
-22,
-108,
27,
108,
-125,
-105,
-72,
-111,
79,
100,
22,
-8,
-21,
-121,
33,
101,
-49,
-86,
92,
69,
82,
19,
-114,
-108
]
|
The opinion of the court was delivered by
JOHNSON, J.:
Marcus Tyler, Jr., appeals his convictions for first-degree murder and conspiracy to commit first-degree murder. Tyler asserts judicial misconduct, questions the sufficiency of the evidence, and challenges the constitutionality of the adult certification procedure under K.S.A. 38-1636 (repealed January 1, 2007). We affirm.
FACTUAL OVERVIEW
Tyler made two voluntary statements detailing the events surrounding the shooting death of Michelle Wallace, which occurred when Tyler was 17 years old. On Thanksgiving Day, Tyler was visited by Mark McGee and Aaron Roundtree. During the visit, Roundtree said that he needed about $200 for car repairs, prompting McGee to say that he would give Roundtree the money if he tolled a woman. McGee also asked Tyler to do the murder, but Tyler refused, saying he could not do it because he loved his family.
After Roundtree agreed to commit the murder, McGee called Wallace and arranged to meet her at a Quik Trip convenience store. McGee told Tyler that if Tyler would “roll with them” and not tell anyone, McGee would give Tyler drugs.
The victim was waiting in an SUV in the Quik Trip parking lot. McGee instructed Tyler to ride in Wallace’s vehicle and to make sure no one was following her. The victim drove her SUV, following Roundtree’s vehicle. At some point, McGee and Roundtree left their vehicle and got into the victim’s SUV. Wallace drove, Tyler sat in the front passenger seat, McGee sat behind Tyler, and Roundtree sat in the backseat behind Wallace.
McGee gave Wallace directions where to drive, and when the vehicle arrived at an unlighted area, Tyler thought “they” were going to shoot Wallace. However, McGee directed Wallace to drive further, later explaining that the area was not dark enough. Ultimately, Wallace was directed to stop at another location, where Roundtree drew a gun and shot Wallace in the head. Tyler jumped out of the SUV and heard more gunshots. McGee grabbed Wallace’s purse from the center console and took her money. The group ran away from the scene. Wallace died of multiple gunshot wounds.
Tyler also told the police that when McGee asked Tyler to come with them, Tyler tried to say “no,” but Tyler did not want to turn them down, so Tyler said “yes.” In response to the detective’s question as to the purpose of McGee wanting Tyler to go with him, Tyler responded, “So I could watch out [to] see if her baby daddy was following us.”
PROCEDURAL HISTORY
On May 18, 2004, the district court certified Tyler for adult prosecution, finding that Tyler had failed to rebut the K.S.A. 38-1636(a)(2) presumption that he should be treated as an adult based on his age and the severity of the charged crime. Tyler was then charged with one count of acting as an aider and abettor for murder in the first degree, one count of conspiracy to commit first-degree murder, and one count of theft.
At his first jury trial, the district court gave a modified instruction on aiding and abetting, despite the State’s objection. Tyler was acquitted of the theft charge, but the jury was hung on the murder charges.
At a second trial on the murder charges, the defendant, McGee, and Roundtree did not testify. However, the jury was shown videotape recordings of Tyler’s two statements to law enforcement. During the instructions conference, the State objected to the non-PIK language addition to the aiding and abetting instruction, claiming that after it was used at the first trial, two jurors had reported that they were confused by the instruction. The district court took the matter under advisement.
The following morning, the district court announced that it had read the Kansas cases and considered the State’s argument. The judge also said that he “ran that language by a couple of lay people not connected with the case” to see what they believed the disputed sentence meant. The district court ruled that it would delete the disputed sentence from the instruction because even though the judge believed the sentence was straightforward, others did not.
The jury found Tyler guilty on both counts. He was sentenced to life (hard 25) for the first-degree murder conviction and 117 months’ imprisonment for the conspiracy to commit murder conviction. He timely appeals, and we have jurisdiction pursuant to K.S.A. 22-3601(b)(l).
JUDICIAL MISCONDUCT
First, Tyler contends that the trial judge violated Supreme Court Rule 601, Canon 3B(7) (2007 Kan. Ct. R. Annot. 624), by consulting with lay persons about the clarity of the proposed instruction on aiding and abetting and that the judicial misconduct mandates a reversal for a new trial. The Canon provides, in relevant part:
“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . .” 2007 Kan. Ct. R. Annot. 625.
The commentary to Canon 3B(6)-(7) explains that “[t]he proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the ¡proceeding, except to the limited extent permitted.” 2007 Kan. Ct. R. Annot. 625. The exceptions to Canon 3B(7) include ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits. Canon 3B(7)(a).
Tyler did not raise the issue below. Citing State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982), he contends that we should employ an exception to the general rule which precludes review of issues first raised on appeal. More specifically, we can review an allegation of judicial misconduct on appeal despite the absence of a contemporaneous objection where the defendant claims his or her right to a fair trial was violated. State v. Brown, 280 Kan. 65, 70, 118 P.3d 1273 (2005).
Our review of a judicial misconduct allegation is unlimited and must be based upon the facts and circumstances of each case. State v. Gaither, 283 Kan. 671, 681-82, 156 P.3d 602 (2007). If it affirmatively appears that the conduct prejudiced the substantial rights of the complaining party, the judicial misconduct warrants a new trial. The party asserting judicial misconduct bears the burden of showing his or her substantial rights were prejudiced. Gaither, 283 Kan. at 682; State v. Hayden, 281 Kan. 112, 116, 130 P.3d 24 (2006).
The same judge presided at both trials. At the first trial, the court gave the following aiding and abetting instruction:
“A person who, either before or during its commission, intentionally aids and abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.
“All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and abetting in the commission of a crime the defendant must imllfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.” (Emphasis added.)
At the second trial, the judge refused Tyler s request to again include the last sentence, italicized above, explaining:
“When we were last on the record, I told counsel that I would review the Kansas cases from which that sentence was taken and reconsider or consider the State’s argument on that issue. I’ve done that, I’ve reread the cases. Basically, the language I think where it first shows up is I think State vs. Schriner or Shryer, something of that nature. It’s a 215 Kan. case.
“The author of the opinion of that case I’m pretiy sure was Chief Justice Schroeder who indicated that [it] was an accurate statement of Kansas law. However, in that case that instruction was objected to by the defendant in the case. And the opinion does indicate or does state in addition to being an accurate statement of Kansas law, it also indicates that it raises a higher evidentiary burden. I frankly don’t see that. However, that is the language there.
“I would tell counsel as well I ran that language by a couple of lay people not connected with the case to see what they thought it meant last night, and while it seemed straightforward to me, and maybe it’s because I’ve been a lawyer for 30 plus years now, it seemed straightforward to me; to some other folks it didn’t.
“And so it’s the Court’s intention to delete that very last sentence which reads, quote, ‘To be guilty of aiding and abetting in the commission of a crime, the defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or make succeed,’ end of quote.”
The State makes a half-hearted, unpersuasive attempt to justify the district court’s ex parte communications as appropriate to obtain a lay opinion on the clarity of jury instructions. We disagree. Perhaps the PIK Committee could benefit from controlled focus group studies on the clarity and comprehensibility of jury instructions. However, it was inappropriate for the district court to conduct an impromptu, ex parte experiment for use in making a substantive ruling in an ongoing prosecution. However, the inquiry does not end here.
Tyler appears to acknowledge that a reversal requires something more than simply establishing judicial impropriety. However, he argues, without support, that the touchstone of the further analysis is whether the district judge would have granted his request to add language to the PIK instruction, if the ex parte communication had not occurred. He then argues why the record supports his contention that the judge’s decision was persuaded by the outside lay opinions.
Although he cites to Carpenter v. State, 223 Kan. 523, 575 P.2d 26 (1978), and State v. Scales, 261 Kan. 734, 933 P.2d 737 (1997), Tyler concedes their factual differences, and neither case furthers his cause. Indeed, Carpenter refused to condone the trial judge’s ex parte communication with the Disciplinary Administrator, but also refused to reverse because the defendant was not prejudiced. 223 Kan. at 527. Scales did find that a judge’s ex parte communications prior to sentencing required reversal for resentencing, but based its result on a finding that the judicial misconduct had directly impinged upon the defendant’s due process right to a fair sentencing hearing. 261 Kan. at 742-43. Neither case supports the contention that we must consider what decision the court would have made without the improper communications.
The purpose of jury instructions is to guide the jurors in their deliberations and aid them in arriving at a legally proper verdict. State v. Cathey, 241 Kan. 715, 730, 741 P.2d 738 (1987), disapproved in part on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Because Tyler objected to the district court’s deletion of the proposed sentence from the aiding and abetting instruction, we consider the instructions as a whole. Instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006).
Here, the first paragraph of the aiding and abetting instruction is from PIK Crim. 3d 54.05. The second paragraph is compiled from citations mentioned in the comments to 54.05, State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964) (All participants in a crime are equally guilty, without regard to the extent of their participation.); State v. Jackson, 201 Kan. 795, 799, 443 P.2d 279, cert. denied 394 U.S. 908 (1968), overruled on other grounds State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976) (same); and State v. Green, 237 Kan. 146, Syl. ¶ 4, 697 P.2d 1305 (1985) (Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor.). In other words, the aiding and abetting instruction which was given to this jury was a compilation of those which have been recommended by the pattern instructions and the authority cited in its comments.
Pointedly, Tyler conceded at oral argument that the district court gave a jury instruction on aiding and abetting which was an accurate statement of the law. He does not argue that the peculiar facts of this case mandated the inclusion of the additional language he requested. Cf. State v. Mitchell, 269 Kan. 349, Syl. ¶ 4, 7 P.3d 1135 (2000) (if particular facts in given case require modification of applicable pattern instruction, trial court should not hesitate to make such modification). Without the claim of judicial misconduct, Tyler would have had no basis to complain about the instruction which was actually given. Because Tyler had no substantive right to have the additional language included in the instruction, we cannot find that the challenged judicial conduct affirmatively and directly prejudiced a substantial right of the complaining party, so as to warrant a new trial. See Gaither, 283 Kan. at 682.
SUFFICIENCY OF THE EVIDENCE
Tyler contends that the State’s proof that Tyler aided and abetted in Wallace’s murder was fatally deficient. Tyler does not dispute his own statements which admitted that he accompanied McGee and Roundtree on their murderous venture in return for a promise that he would receive drugs; that he agreed to be a lookout in the victim’s vehicle to assure that it was not being followed by her boyfriend; that he entered into the victim’s vehicle and, from outward appearances, maintained a position from which he could act as a lookout; and that he remained with the group until the murder was completed, despite a change of vehicles and one or more intervening stops. However, he makes the creative argument that the State failed to prove that he actually looked for the boyfriend while riding in the victim’s car.
Under our familiar review standard, we must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006). Specifically, with respect to the question of aiding and abetting, the court has said:
“It is well established in Kansas law that the mere presence of an accused at the time and place of the crime alleged is not sufficient to make the accused guilty of the crime, but if from the facts and circumstances surrounding the defendant’s presence at the time and from the defendant’s conduct it appears that the defendant’s presence did in fact encourage someone else to commit the criminal act, guilt may be inferred. State v. Smolin, 221 Kan. 149, 153, 557 P.2d 1241 (1976). In the absence of anything in a person’s conduct showing a design to encourage, incite, aid, abet, or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that the person assented to the commission of the crime, lent his or her countenance and approval thereto, and thereby aided and abetted the commission of the crime. 221 Kan. at 153.” State v. Wakefield, 267 Kan. 116, 121, 977 P.2d 941 (1999).
Accord State v. Bradford, 272 Kan. 523, 528, 34 P.3d 434 (2001).
However, Tyler relies on State v. Schriner, 215 Kan. 86, 92, 523 P.2d 703 (1974), where we held that in order to be found guilty of aiding and abetting, “a defendant must wilfully and knowingly associate himself with the unlawful venture and wilfully participate in it as he would in something he wishes to bring about or to make succeed.” Tyler argues that the State only proved that Tyler agreed to act as a lookout, i.e., that he associated himself with the unlawful venture, but that the State did not prove that Tyler actually performed the role of a lookout, i.e., that he participated in the murder as if he wished it to succeed.
The apparent suggestion is that the State had to submit direct proof that Tyler actually looked out the windows of the victim’s car in search of the victim’s boyfriend. Tyler would have us require too much. A conviction of even the gravest offense may be sustained by circumstantial evidence. Circumstantial evidence is evidence of events or circumstances from which a reasonable factfinder may infer the existence of a material fact in issue. State v. Lopez, 36 Kan. App. 2d 723, 725, 143 P.3d 695 (2006).
A reasonable jury could infer that, when Tyler agreed, in return for drugs, to “roll with” McGee and Roundtree on their murderous trip, Tyler understood that he would be a participant in the unlawful venture, even though he had declined to be the actual shooter. The promise of drugs could provide the incentive for Tyler to wish to bring about the success of the planned crime. A rational jury could reasonably infer that Tyler actually carried through with his promise to be a lookout, when he assumed his position in the victim’s vehicle and remained in the victim’s presence until the murder was completed. In other words, the evidence reasonably established more than mere presence at the time and place of the murder and was sufficient to support the jury’s verdict that Tyler aided and abetted in Wallace’s murder.
APPRENDI VIOLATION
Next, Tyler argues that when the district court made factual findings supporting its decision to authorize adult prosecution, it increased his potential punishment in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This raises a question of law, and our standard of review is unlimited. See State v. Jones, 273 Kan. 756, 770, 47 P.3d 783, cert. denied 537 U.S. 980 (2002).
Tyler points out that, if he had been adjudicated for the murder as a’juvenile offender, his punishment could not have extended beyond his 23rd birthday, when the jurisdiction of the juvenile court terminates. See K.S.A. 38-1604(c)(2). In contrast, by prosecuting him as an adult, the State subjected him to the possibility of a hard 50 life sentence. See K.S.A. 21-4706(c). Therefore, the argument continues, the factual findings necessary to certify an adult prosecution violate the mandate that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutoiy maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Accordingly, Tyler asks for a reversal and a remand to submit his adult certification hearing to a jury.
Tyler acknowledges that Jones rejected this argument, but he urges us to reconsider that ruling, which has been affirmed in subsequent decisions. See, e.g., State v. Mays, 277 Kan. 359, 367-68, 85 P.3d 1208 (2004); State v. Kunellis, 276 Kan. 461, 465, 78 P.3d 776 (2003). Tyler’s argument for reconsideration focuses on his assertion that the reasoning in Jones was largely based on policy reasons as to why it is undesirable to allow a jury to make the certification ruling. However, Jones also cited to the Court of Appeals decision in State v. Hartpence, 30 Kan. App. 2d 486, 496, 42 P.3d 1197 (2002), which opined that the adult certification process is “a jurisdictional determination,” rather than a sentencing question. Apprendi dealt with the imposition of a sentence beyond the statutory maximum permitted by the facts necessary to tire jury’s finding of guilt. That constraint would still apply after the certification procedure sends the juvenile to adult court. A State is not constitutionally required to provide preferential treatment to juveniles, and Apprendi was not intended to place constraints on the determination of which court will prosecute a juvenile offender. The holding in Jones remains valid.
CONSTITUTIONALITY OF KS.A. 38-1636(a)(2)
Finally, Tyler argues that the presumption under K.S.A. 38-1636(a)(2) that he is an adult because of the severity of his alleged offense violates his due process rights. Although he acknowledges that we rejected this argument in State v. Coleman, 271 Kan. 733, 734-38, 26 P.3d 613 (2001), he asserts the argument here to preserve it for any subsequent federal appeal.
As in Coleman, Tyler relies on In re J.L., 20 Kan. App. 2d 665, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995). That case found the presumption of parental unfitness in the termination of parental rights statutes violated the parent’s procedural due process rights. 20 Kan. App. 2d at 676. The glaring fallacy in Tyler’s reliance on In re J.L. is tfiat a parent has a fundamental liberty interest in the custody and control of his or her children which is protected by the Fourteenth Amendment to the United States Constitution. A juvenile has no constitutional right to be adjudicated under the Juvenile Justice Code. As Tyler conceded at oral argument, a statute which provided that any person, regardless of age, will be prosecuted for murder under the adult criminal statutes would be constitutionally permissible. Obviously, then, the rebuttable presumption of adult prosecution under K.S.A. 38-1636(a)(2) is likewise not constitutionally infirm.
Affirmed. | [
-80,
-19,
-52,
-115,
43,
-32,
10,
-70,
81,
-13,
101,
-13,
47,
-54,
25,
107,
-71,
-33,
85,
105,
-75,
-89,
7,
-31,
-14,
-77,
19,
-61,
50,
73,
-2,
57,
25,
80,
-118,
93,
102,
11,
-25,
112,
-118,
53,
-119,
-14,
-54,
-112,
36,
50,
6,
7,
53,
14,
35,
10,
28,
-30,
41,
104,
91,
-68,
80,
112,
-117,
-123,
-17,
16,
-109,
54,
-100,
-83,
-8,
14,
-39,
49,
16,
-24,
123,
-74,
-128,
-12,
109,
-119,
12,
38,
115,
32,
25,
-19,
-67,
-7,
111,
110,
-76,
-93,
25,
121,
5,
4,
-105,
-35,
112,
52,
62,
82,
-22,
71,
24,
-32,
15,
-33,
-74,
-111,
-115,
120,
-46,
-21,
-21,
-123,
34,
113,
-51,
98,
68,
100,
124,
-45,
15,
-10
]
|
The opinion of the court was delivered by
Beier, J.:
This K.S.A. 60-1507 appeal involves movant Michael D. Wilkins’ 1996 convictions arising out of the 1993 murder of David Shipley. The district judge denied Wilkins collateral relief after an evidentiary hearing on his ineffective assistance of counsel and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), claims. A panel of our Court of Appeals reversed and remanded for new trial in Wilkins v. State, No. 95,023, unpublished opinion filed November 22, 2006. We granted the State’s petition for review.
We address the merits of each of the issues raised by Wilkins’ motion in turn.
Factual and Procedural History
In brief, Wilkins’ 1996 convictions involved murder, sex, drugs, and the Ku Klux Klan. He had been recruited to be an enforcer and assistant to Klan group leader Mike Bittle. Bitde later turned his Klan position over to a friend, moved to Iowa, and began a new career growing marijuana; but he and Wilkins remained in touch. See State v. Wilkins, 267 Kan. 355, 356-57, 985 P.2d 690 (1999).
The man who would later become the murder victim, Shipley, persuaded Bittle to set up Klan activities in Iowa “because it would be a good way to 'pick up girls’ because the girls would think it was 'cool.’ ” 267 Kan. at 357. Shipley moved in with Bittie; started sleeping with Bittle’s girlfriends; raped a Klan initiate with whom Bittle wanted to have sex; and generally attempted to replace Wilkins as Bittle’s assistant. None of these behaviors sat well with Bittie or Wilkins. In addition, because Bittie had been slow to repay a loan from Shipley, Shipley threatened to report Bittle’s marijuana growing operation to law enforcement.
In the summer of 1993, Bittie, his wife and girlfriends, Wilkins, Shipley, and another man named Charles “Doug” Gray met at a Missouri motel. Bittle told Wilkins and Gray that he was tired of Shipley causing friction and that he did not want to see Shipley anymore. According to Bittie, Wilkins then asked, “ What do you mean, kill him?’ ” Bittle then replied, “ ‘Do what you have to do, I just don’t want to see him anymore.’ ” 267 Kan. at 358. Bitde also told Wilkins to bring him a necklace Shipley wore as proof that the Wilkins had taken care of the Shipley problem. Wilkins, Gray, and Shipley then left the motel.
Wilkins returned later, told Bittie that Shipley was not going to be a problem anymore, and handed Shipley’s necklace to Bittie. The group distributed some of Shipley’s possessions and burned or otherwise disposed of the rest.
One of Bittle’s girlfriends contacted police in late 1994 and reported what she knew about Shipley’s evident murder. The resulting investigation languished until Gray, through an attorney, contacted authorities in early 1996 and demanded immunity in exchange for his cooperation. Gray agreed to wear a wire to gather information from Wilkins, but his two attempts to do so resulted in garbled recordings.
Gray took two polygraph tests for the Kansas Bureau of Investigation, and neither polygraph report was given to Wilkins or his counsel before trial. Each report contained the examiner’s conclusion that Gray was being deceptive. Each report also mentioned that Gray had said in interviews that Shipley may not have been dead when Gray placed Shipley in a pond after Wilkins shot him. Gray ultimately received a promise of immunity in exchange for truthful testimony against Wilkins.
After Wilkins and Bittle were arrested in 1996, Wilkins suggested to Bitde that they cast all blame on Gray. In a note to Wilkins, which was intercepted and admitted at trial, Bittle agreed to implicate Gray. Bittle evidently reconsidered this choice, and he accepted a plea agreement in exchange for his testimony against Wilkins.
According to Gray, Wilkins had shot Shipley in the eye or head with Wilkins’ .22 caliber long rifle. Gray and Wilkins then sank the body in a pond on Wilkins’ mother’s property in Jefferson County. Gray was the one who walked out in the pond and placed a rock in Shipley’s shorts to weight them. Several months later, Wilkins told Gray that the body had surfaced and that Wilkins had scattered the bones; but Gray was able to lead officers to the pond, where remains were discovered.
Michael Finnegan, a forensic anthropologist, concluded that the remains were that of a young white male, ranging in height from 5’8” to 5T1”. Dr. Daniel Winter, a dentist, relying upon 11 teeth recovered from the scene, positively identified the remains as those of Shipley.
Detective Randy Carreno testified that police had recovered a .22 caliber long rifle from Wilkins’ parents’ house. When questioned about Shipley’s disappearance, Wilkins told Carreno that Shipley went to Texas; he later stated Shipley was heading to Florida. When Carreno informed Wilkins that police had found the pond where Shipley’s remains were hidden, Wilkins said, “Out by my Mom’s.” Carreno also told Wilkins police had recovered the murder weapon; Wilkins replied that he already knew this because his mother had called and told him. When Wilkins was asked if he would like to see the weapon, he declined, stating he already knew what the rifle looked like.
On direct appeal, this court upheld Wilkins’ convictions for first-degree premeditated murder, conspiracy to commit first-degree murder, and aggravated robbery; we reversed his conviction for conspiracy to commit aggravated robbery. 267 Kan. at 368.
In the 2003 motion underlying this appeal, Wilkins argued that his retained trial counsel, Carl. A. Fleming, was ineffective for (1) failing to hire or consider hiring an expert under Mullins v. State, 30 Kan. App. 2d 711, 716-18, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002), to challenge the State’s dental forensics expert; (2) failing to file any formal discovery requests, instead relying on the prosecutor’s open-file policy; (3) failing to investigate the criminal history of key witnesses; (4) failing to introduce evidence of the benefits key witnesses had received from the State in exchange for their testimony; and (5) failing to object to evidence, to perform any investigation in preparation of the defense, and failing to otherwise provide adequate representation. Wilkins also argued that the prosecutor withheld exculpatory evidence, specifically: (1) the grant of immunity given to Gray; (2) the results of Gray’s polygraph tests; and (3) the plea agreement between the State and Bittle.
At the 2004 evidentiary hearing on the motion, Wilkins presented testimony from Fleming; Winter; Dr. Ronald E. Gier, a forensic odontologist; and Albert Lopes, Jr., a Douglas County criminal defense attorney.
Fleming testified that he voluntarily surrendered his license to practice law in 2000 in connection with various uncontested complaints filed with the disciplinary administrator. The complaints were not related to the adequacy of his representation of Wilkins. Fleming also confirmed that he had filed no discovery requests with the prosecutor s office, relying on the prosecutor s open-file policy. Although he had received and reviewed more than 1,000 documents, Fleming was not aware that Gray had taken polygraph examinations or that the polygraph examiner concluded both times that Gray was being deceptive in answering questions about Shipley s death. Wilkins argued that the failures constituted violations of Gray’s immunity agreement with the State. Fleming acknowledged that the failed polygraphs would have been exculpatory for his client and said that, had he known there was a problem with Gray’s immunity agreement, he would have “done something about it.” Fleming agreed, however, that polygraph examination results are not admissible evidence.
Fleming testified that he was aware the State had entered an agreement with Bitde and that he knew its terms; but he never saw the written agreement, did not request a copy of it, and did not introduce evidence concerning the benefit Bitde might have received as a result of the agreement.
Fleming also testified that he had not researched the criminal history of Bitde and Gray and had not attempted to impeach their credibility based on previous convictions. However, he testified that he did present evidence at Wilkins’ trial that Bitde had attempted to implicate several innocent people in Shipley’s murder and that Bitde and the Klan group were involved in illegal activities, including drugs, shoplifting, and prostitution.
Fleming did not consult with any experts in preparation for Wilkins’ trial, and he did not cross-examine the State’s dental expert, Winter. He admitted that he had no idea whether Winter’s methodology or conclusions were sound or whether they could be challenged. He also said that he was “unable to fully understand [Winter’s] forensic testimony.” On cross-examination, Fleming said that his trial strategy did not involve contesting the identity of the remains. He further stated that, knowing what he knows now, he should have consulted an expert on the subject of dental identification, as well as an expert on the tape recordings Gray surreptitiously made of defendant.
Fleming also acknowledged that, although he knew there was a related federal investigation and contemporaneous investigations in Missouri and Iowa, he did not meet with or talk to any federal representatives or inquire into the Missouri investigation. He did contact Iowa authorities.
Finally, Fleming also testified that he was at a disadvantage at the time of Wilkins’ trial in 1996 because he was a solo practitioner with no office staff or research assistance. This meant that he was “somewhat overwhelmed.”
Gier testified that he had reviewed the evidence provided to Winter and had reviewed Winter’s report and conclusion; he had looked at photographs, X-rays, and a trial transcript but not at the 11 teeth. In Gier’s opinion, (1) Winter’s methodology was not supported in the scientific community; (2) there was not enough evidence to make a positive identification of the remains; and (3) Winter’s conclusions were not valid.
Winter testified that he had reviewed Gier’s report and substantially agreed with it. Like Gier, he was unable to make positive identifications based only on photographs. But he said that his use of the teeth supported the conclusions of his report and trial testimony. Winter also defended his methodology and explained his conclusions, acknowledging that experts can disagree.
Lopes testified that a prosecutor has a duty to divulge any and all evidence, including exculpatory evidence, and that, even if a prosecutor follows an open-file policy, a defense attorney still should make a formal request for items such as criminal histories of State witnesses and should hire an investigator to access such information. Lopes testified that, in his view, Fleming’s failure to do so was unreasonable. Lopes also testified that Fleming’s failure to cross-examine Winter was “absolutely incredible” and that, unless defense counsel “happens to have a dental degree,” failure to consult an expert for trial preparation and/or independent testimony is unreasonable. Lopes testified that he would have tried to get Gray’s polygraph results and immunity agreement into evidence because they were crucial to the Wilkins’ case. In addition, if Fleming felt overwhelmed by the case, Lopes said, he should have withdrawn, asked for additional time, or consulted a more experienced attorney for assistance. Fleming’s failure to do any of these things was unreasonable, and his deficiencies undermined Lopes’ confidence in the jury’s verdict.
On cross-examination, Lopes admitted that, if Fleming had pursued each of the avenues Lopes discussed at trial, Fleming would have been presenting eight inconsistent defenses on Wilkins’ behalf. Lopes acknowledged that such an approach might have undermined the persuasiveness of the defense.
In its memorandum decision, with regard to Wilkins’ ineffective assistance claim, the district judge stated generally that Fleming was “effective and sufficient” and “his representation was reasonable considering the circumstances.” The judge also said Wilkins had faded to demonstrate prejudice arising from Fleming’s performance, “particularly considering the totality and volume of the evidence which was presented at the trial. The death of the victim and his identity were not disputed. [Wilkins’] defense was [a] general denial and lack of participation. Expert testimony would play no significant role in developing this theory of defense.”
On Wilkins’ allegation that the prosecution had improperly withheld exculpatory evidence, the district judge noted Fleming’s awareness that Gray had been granted immunity and the fact that evidence of the immunity was admitted at trial. In the district judge’s view, the results of Gray’s polygraph examinations did not constitute exculpatory evidence because they would not have been admissible. Wilkins thus failed to persuade the judge that he was entitled to relief on the Brady issue.
On appeal, a panel of our Court of Appeals saw things differently. Focusing on Fleming’s failure to consult with or hire a dental expert and his failure to cross-examine the State’s expert, it cited State v. Orr, 262 Kan. 312, 327, 940 P.2d 42 (1997), and Mullins, 30 Kan. App. 2d at 716, for the proposition that counsel has a duty to investigate and cannot make defensible strategic decisions until he or she has fulfilled that duty. Wilkins, slip op. at 5-7. The panel concluded:
“It is a reasonable trial tactic to limit cross-examination in hopes of keeping sensitive information from the jury. However, in this case, it appears that much of Fleming’s inaction arose because he simply did not have the knowledge to formulate appropriate questions and admitted that he had no defense to the expert testimony. In the absence of this identification, the only testimony which even suggested it was possible that Shipley was dead came from Gray and Mike Bittle, both of whom had much to gain by impheating Wilkins. Under these circumstances, Fleming’s failure to cross-examine or mount a position adverse to the State can only be seen as a lack of preparation.
“We agree with Wilkins that Fleming’s failure to refute the technical evidence in this case amounted to deficient performance.” Slip op. at 6-7.
Turning to Fleming’s failure to conduct formal discovery, the panel noted that Fleming’s mere awareness that Gray was testifying under a grant of immunity was insufficient. Fleming should have looked at the document memorializing the immunity agreement and been aware that successful completion of polygraph examinations formed a condition precedent to the immunity. Fleming also did not know about the polygraph failures. Had he known that Gray exhibited deception on both exams, the panel reasoned, he “could have done more to attempt to impugn Gray’s credibility.” Slip op. at 8. Mere reliance on the prosecution’s open-file policy was, in the panel’s view, “deficient.” Slip op. at 8.
Evaluating prejudice, the panel noted that Gray was the only witness who placed Wilkins at the scene of the crime, and, “due to Fleming’s failures, the jury did not have any reason to question Gray’s credibility.” Slip op. at 9. Further, according to the panel, the identification of the remains rested solely on forensic evidence that Fleming, because of his deficient performance, was unable to challenge. The panel therefore ruled that Wilkins was entitled to reversal and remand for a new trial. Slip op. at 9.
The panel also accepted Wilkins’ position on Brady. Although, given Fleming’s reliance on the prosecution’s open-file policy, the panel did not believe the State’s failure to disclose Gray’s polygraph results was likely to have been deliberate or the product of bad faith, it found that the evidence was clearly exculpatory and so material that its suppression was prejudicial. Citing Brady, 373 U.S. at 87, and Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), the panel concluded that Wilkins was entitled to reversal and remand for a new trial on this ground as well. Wilkins, slip op. at 10-11.
K.S.A. 60-1507 Standard of Review
A district court has three options for resolving a K.S.A. 60-1507 motion.
“First, it may determine that the motion, files, and records of the case conclusively show that the [movant] is entitled to no relief, in which case it will summarily deny the . . . motion. Second, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and records, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Third, the court may determine from the motion, files, and records that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the [movant] Bellamy v. State, 285 Kan. 346, Syl. ¶ 1, 172 P.3d 10 (2007).
Regardless of the form of the proceeding, the goal is to arrive at legal conclusions regarding whether (1) the judgment was rendered without jurisdiction, (2) the sentence imposed was not authorized by law or is otherwise open to collateral attack, or (3) there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. Bellamy, 285 Kan. 346, Syl. ¶ 2.
The form of the proceeding in the district court dictates the standard of review applicable on appeal. If the district court disposed of the case summarily, the standard of review is de novo. Bellamy, 285 Kan. 346, Syl. ¶ 3. If the district court appointed counsel and held only a preliminary hearing, the appellate court applies a “findings of fact and conclusions of law standard of review to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. The district court’s ultimate legal conclusionfs . . . are] reviewed . . . using a de novo standard.” Bellamy, 285 Kan. 346, Syl. ¶ 4. If, as here, the district court conducted a full evidentiary hearing, the appellate standard of review mirrors that applied when the district court appointed counsel and held only a preliminary hearing. See Bellamy, 285 Kan. 346, Syl. ¶¶ 4, 5. Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reasonably be resolved. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). An appellate court must accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007); Graham v. State, 263 Kan. 742, 753-54, 952 P.2d 1266 (1998).
Effective Assistance of Counsel
The right to counsel under the Sixth Amendment to the United States Constitution is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting two-part test of Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 [1984]). To support his claim of ineffective assistance, Wilkins must prove that (1) counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result, and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004); see State v. Davis, 277 Kan. 309, 314, 85 P.3d 1164 (2004); Orr, 262 Kan. at 317 (quoting Strickland, 466 U.S. at 687).
The first part of this test requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness. judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Gleason, 277 Kan. at 644.
Once a defendant has established a deficient performance, he or she must also establish prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Gleason, 277 Kan. at 644.
In delineating its standard of review, the Court of Appeals recited that an appellate court reviews de novo the district court’s analysis of the two steps of this inquiry, which involve mixed questions of law and fact. Wilkins, slip op. at 3 (citing State v. Mathis, 281 Kan. 99, 110, 130 P.3d 14 [2006]).
Wilkins specifically argues that Fleming was ineffective for failing to hire or consider hiring a dental forensics expert to challenge Winter s testimony; for failing to make any formal discovery requests, instead relying on the prosecutor’s open-file policy; for failing to investigate the criminal history of the key witnesses; and for failing to introduce evidence of the benefits the key witnesses had received from the State in exchange for their testimony. We address each of these complaints in turn.
Failure to Hire or Consider Hiring Dental Forensics Expert
This court has often held that the decisions of whether and how to conduct cross-examination and whether to call or not to call a certain witness are matters of trial strategy. See State v. Ward, 227 Kan. 663, Syl. ¶ 1, 608 P.2d 1351 (1980); Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972).
Relying on Mullins v. State, 30 Kan. App. 2d 711, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002), Wilkins argues that “defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made.” Mullins, 30 Kan. App. 2d at 716 (citing Kenley v. Armontrout, 937 F.2d 1298, 1308 [8th Cir. 1991]). “Further, when counsel lacks the information to malee an informed decision due to inadequacies of his or her investigation, any argument of ‘trial strategy’ is inappropriate.” Mullins, 30 Kan. App. 2d at 716-17 (citing Clay v. State, 954 S.W.2d 344, 349 [Mo. App. 1997]). We have no hesitation in agreeing with these general statements of the law from Mullins and have enunciated similar principles in our previous cases. Mere invocation of the word “strategy” does not insulate the performance of a criminal defendant’s lawyer from constitutional criticism. See, e.g., Bledsoe, 283 Kan. at 95. We must look to the totality of the circumstances to determine whether Fleming’s performance in regard to retaining and using a dental forensics expert fell below the measure of objective reasonableness. See Bledsoe, 283 Kan. at 90-91.
Mullins involved a failure to employ an expert in the defense of a child sexual abuse prosecution. At trial, the State presented testimony from a nurse who said that the victim’s physical examination was normal but that research, never identified to the jury, demonstrated that “ ‘physical indications of anal penetration were not present in 60 to 80 percent of the children sodomized.’ ” See Mullins, 30 Kan. App. 2d at 712. The defense lawyer did nothing to contest this testimony from the nurse, and he did not obtain an expert on interviewing of children suspected to be victims of sexual abuse.
At the movant’s K.S.A. 60-1507 evidentiary hearing in Mullins, a criminal defense lawyer testified that an expert on child victim interviewing could have pointed out flaws in the interview process and could have enabled a defense challenge to the child victim’s testimony without a direct attack on the child’s credibility. This lawyer also said that the necessity of retaining such an expert was well known among members of the criminal defense bar at the time of the movant’s trial.
Under these circumstances, the Mullins Court of Appeals panel ruled that the movant had carried his burden of demonstrating that his trial counsel’s performance “so undermined the proper functioning of the adversary process that the trial cannot be relied on as having produced a just result. [Citation omitted.]” See Mullins, 30 Kan. App. 2d at 718. It noted: “We are compelled, primarily, on the essentially uncontroverted record at the [K.S.A. 60-]1507 hearing. For whatever reason, the State presented no evidence, no witnesses, and did little cross-examination of [movant’s] witnesses to provide the trial court any support for determining [movant’s] trial counsel was effective,” thus explicitly hmiting the applicability of its holding to the particular facts and procedural history of the case before it. 30 Kan. App. 2d at 718. Subsequent Court of Appeals cases have recognized this limitation. See Lewis v. State, 33 Kan. App. 2d 634, 111 P.3d 636, rev. denied 277 Kan. 924 (2003); Hill v. Simmons, No. 93, 427, unpublished opinion filed October 28, 2005; State v. Collins, No. 90,792, unpublished opinion filed June 25, 2004, rev. denied 278 Kan. 848 (2004); Bailey v. State, Nos. 90,833, 90,836, unpublished opinion filed May 14, 2004, rev. denied 278 Kan. 843 (2004); Snavely v. State, Nos. 89,156, 89,947, unpublished opinion filed October 23, 2003.
In this case, Fleming admitted at the K.S.A. 60-1507 hearing that he had no idea whether Winter’s methodology or conclusions were sound or whether they could be challenged; and he was “unable to fully understand [Winter’s] forensic testimony.” He testified that, knowing what he knows now, he should have consulted an expert on the subject of identification of human remains from dental evidence. At trial, Fleming had lodged no objection to the Winter testimony, nor did he cross-examine.
Based on these facts alone, it is understandable that the Court of Appeals panel concluded that Fleming’s failure to “consult with any forensic dental experts,” despite his lack of knowledge in that field; his failure to “cross-examine or mount a position adverse”; and his failure to refute [Winter’s] technical evidence” amounted to deficient performance under the first step of the test for ineffective assistance of counsel. Wilkins, slip op. at 6.
But there are additional facts, established by substantial competent evidence, to consider; and they can be read to support the district court result on this issue.
Fleming also testified at the K.S.A. 60-1507 hearing that he had “spent time with [Winter]” and had cross-examined him at Willdns’ preliminary hearing. (The record demonstrates that the district judge examined the preliminary hearing transcript, which has not been provided to this court.) It was Fleming’s opinion based on his experience with Winter that Winter would hold up
“in front of the jury[.] I regarded him as a skunk in the building and I wanted him out as quicldy as possible. I didn’t want to malee an issue of him. I didn’t want to spend a lot of tíme with him. I knew what he was going to say and I - I didn’t want him to be in front of the jury any longer than he had to be, so that’s why he wasn’t challenged.”
We also consider it significant that Willdns’ story was that he had not been present for or had anything else to do with Shipley’s murder. Fleming repeatedly stated that the defense did not involve contesting the identification of the remains as Shipley’s.
Under the totality of circumstances and our standard of review, the question of whether Wilkins met his burden of demonstrating unreasonable performance by Fleming on this issue is close. Even if we assume, however, that Wilkins succeeded on the first part of the test for ineffective assistance, he fell short on the second part. We see no prejudice. At the K.S.A. 60-1507 hearing, the expert testimony presented to challenge Winter did not actually include an assertion that the remains found at the pond were not Shipley’s. It merely demonstrated a divergence of expert opinion on appropriate methodology.
Moreover, in this case — unlike Mullins where the child victim’s testimony, impaired as it may have been by unchallenged coercive or suggestive interview techniques, was the only evidence that a crime occurred — there was a great deal of circumstantial and direct evidence aside from Winter’s dental forensics testimony that Shipley was murdered and that Wilkins was at least one of his killers. Particularly damning were Wilkins’ unprompted statements to law enforcement that showed he was aware of the location of the pond and the murder weapon — we see no reasonable probability that, but for what may be deemed Fleming’s deficient performance on the dental forensics expert issue, the result of Wilkins’ trial would have been different.
Failure to Conduct Discovery, Introduce Responses into Evidence
Fleming acknowledged that he failed to make any discovery requests, relying instead on the prosecutor’s open-file policy. The district court concluded this did not constitute deficient performance; the Court of Appeals disagreed. Specifically, Wilkins alleges that Fleming’s reliance on the open-file policy was prejudicial to the extent that he did not seek copies of the prosecution’s written grant of immunity for Gray; its plea agreement with Bitde, which Fleming knew existed; or the results of Gray’s polygraph examinations, which, unbeknownst to Fleming, Gray had failed. Wilkins also points to Fleming’s failure to conduct any independent investigation into the criminal histories of Bitde and Gray and his failure to introduce evidence of the benefits received by those two men tiirough their deals with the State.
The Court of Appeals panel stated that, had Fleming done any independent discovery, he could have “done more to attempt to impugn Gray s credibility.” Wilkins, slip op. at 8. “Given the fact that this case involved an off-grid felony, we do not believe it was reasonable to merely rely on an open file policy in lieu of actively defending Wilkins. Consequently, we believe Fleming’s performance in this area was deficient.” Slip op. at 8.
With regard to Fleming’s failure to obtain and use written evidence of Gray’s immunity, as the district court recognized, the fact that Gray had received immunity in exchange for his testimony was clearly established at trial. The jury would have well understood that Gray was receiving a substantial benefit from his testimony against Wilkins and that Gray had a substantial incentive to fabricate an engaging story in the service of the State’s case. The agreement itself, other than its condition that Gray be truthful, would have added nothing to this understanding. Indeed, any emphasis on the existence of the condition that Gray’s testimony be truthful would have tended to bolster rather than undercut his credibility before Wilkins’ jury.
Regarding Fleming’s failure to obtain and use a copy of the State’s plea agreement with Bittle, our analysis is basically identical to the above. Fleming knew of the Bitde plea agreement, and it was discussed at some length throughout the trial. The juiy was thus capable of taking the benefits of the agreement into account in assessing Bittle’s credibility.
As to the written reports of Gray’s polygraph examinations, they would not have been admissible in Wilkins’ trial absent a stipulation. See State v. Shively, 268 Kan. 573, 579, 999 P.2d 952 (2000). Generally, neither would the fact that the examinations had been administered. See State v. Webber, 260 Kan. 263, 276, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). Although mere mention of a polygraph does not require a mistrial, State v. Green, 245 Kan. 398, 406, 781 P.2d 678 (1989), reference to such an examination, direct or indirect, is prohibited. In re Care & Treatment of Foster, 280 Kan. 845, 862, 127 P.3d 277 (2006).
Even if we were to overlook the problem of inadmissibility, we note that Wilkins’ principal argument regarding the polygraph reports is unpersuasive. At oral argument, counsel rehed upon the interview results recited in the two reports, which included re peated mention of Gray s statement that Shipley might not have been dead when Gray sank Shipley in the pond. Gray’s belief on this point already came in at Wilkins’ trial. Also, as both a practical and legal matter, additional proof that Gray’s behavior in sinking Shipley may have contributed to Shipley’s death would not have absolved Wilkins of the culpability that attached when he shot Shipley beforehand.
Wilkins also argues that Fleming’s failure to investigate the criminal histories of Bittle and Gray was unreasonable and prejudicial. Wilkins relies on cases from the United States Court of Appeals for the Ninth Circuit and the Michigan Court of Appeals to argue that a criminal defendant is denied effective assistance of counsel when his or her lawyer fails to discover and capitalize upon prior criminal records to impeach the credibility of the State’s key witnesses. See Sanders v. Ratelle, 21 F.3d 1446, 1456-61 (9th Cir. 1994); People v. Nickson, 120 Mich. App. 681, 684-87, 327 N.W.2d 333 (1982). Again, we do not dispute these basic principles of law. We agree that, in certain cases, a defense lawyer’s failure to discover and use a witness’ prior criminal record for impeachment may constitute ineffective assistance requiring a new trial. But neither this court nor our sister courts have adopted a bright-line rule necessitating reversal and retrial in such situations. We still analyze this alleged failure under the two steps governing analysis of an ineffective assistance claim.
Here, Fleming’s failure to investigate the criminal histories of Bittle and Gray may have been unreasonable. Nevertheless, he repeatedly established the criminal involvements and untrustworthy characters of both. Fleming proved that Bittle and Gray were involved in illegal drugs, prostitution, theft, and child pornography, while Wilkins was not. Fleming also elicited testimony that Bittle was the leader of the Klan group, that Bittle had threatened to kill other members of the group, and that Bittle had offered to kill one member’s stepfather and then tried to blackmail her about it. Fleming consistently contrasted the wayward lifestyle of the Iowa-based group with that of the Kansas-based Wilkins, who was the only one among the group who held a steady job. The evidence also showed that Bittle had told several inconsistent stories about Shipley s disappearance: Shipley was killed in Iowa; Shipley’s body was dumped from a jeep on a Kansas highway; Shipley had been hung in Kansas City; and Shipley was shot in Kansas and his body dumped in a pond.
In short, any effort that Fleming may have engaged in to obtain information about Bittle’s and Gray’s formal criminal records could not have made Bittle and Gray look much more unsavory and less worthy of belief than the evidence already before Wilkins’ jury. Although Fleming’s performance in relation to this issue may have been unreasonable, it could not have changed the outcome of the Wilkins’ trial.
Wilkins also argues that Fleming failed to introduce evidence of the benefits Bittle and Gray received in exchange for their testimony against Willdns. As discussed above in relation to Wilkins’ criticism of the thoroughness of Fleming’s discovery on Gray’s immunity and Bittle’s plea agreement and on both witnesses’ criminal records, the record does not support the idea that Wilkins’ jury was uninformed about any such benefits. In our view, there is no substantial competent evidence to support any conclusion that Fleming’s performance was deficient in this respect.
In holding against Willdns on his ineffective assistance of counsel claim, we also note that the district court judge who presided over the K.S.A. 60-1507 proceeding was the same judge who presided over Wilkins’ trial. We have previously observed that substantial questions of fact about the performance of trial counsel “can best be evaluated by the judge who presided at trial.” Bellamy v. State, 285 Kan. 346, 357, 172 P.3d 10 (2007). Here, under our standard of review we are comfortable that the district court arrived at the correct legal conclusions, supported by substantial competent evidence, on Wilkins’ Sixth Amendment issue.
Disclosure of Exculpatory Evidence
Willdns also argues that the prosecutor committed misconduct by withholding exculpatory evidence, specifically the Gray grant of immunity, the Bittle plea agreement, and the reports of Gray’s polygraph tests.
A prosecutor’s withholding of exculpatory evidence is misconduct that implicates constitutional rights, regardless of the prosecutor’s good or bad faith. See Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). There are “three components or essential elements of a Brady prosecutorial misconduct claim: ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ ” Banks v. Dretke, 540 U.S. 668, 691, 157 L. Ed. 2d 1166, 124 S. Ct. 1256 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 144 L. Ed. 2d 286, 119 S. Ct. 1936 [1999] ); Haddock v. State, 282 Kan. 475, 506-507, 146 P.3d 187 (2006). As this court has outlined the analysis:
“When the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, a defendant should be granted a new trial only if the record establishes that: (1) the evidence was withheld or suppressed by the prosecution; (2) the evidence was clearly exculpatory; and (3) the evidence was so material that its omission from the trial was clearly prejudicial to the defendant.” [Citation omitted.]’ ” State v. McCarty, 271 Kan. 510, 514, 23 P.3d 829 (2001) (quoting Taylor v. State, 251 Kan. 272, 293-94, 834 P.2d 1325 [1992]).
Wilkins’ first obstacle to obtaining relief on this issue is procedural. He is required to show exceptional circumstances excusing his failure to raise it at trial or on direct appeal. See Supreme Court Rule 183(c) (2007 Kan. Ct. R. Annot. 243); Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007); Johnson v. State, 271 Kan. 534, 535, 24 P.3d 92 (2001). We have said that a movant in Wilkins’ position can overcome a procedural default, i.e., a failure to raise an issue at trial or on direct appeal, by persuading the court that there was (1) ineffective assistance of trial counsel; (2) ineffective assistance of direct appeal counsel; or (3) newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and the movant at the time of trial and direct appeal. Bledsoe, 283 Kan. at 88-89.
Fleming testified at the K.S.A. 60-1507 hearing that he had received more than 1,000 documents from the prosecutor under the open-file policy, and he could not verify all of the contents of his file because it had since been destroyed. The trial transcript makes clear, however, that he was at least generally aware of Gray’s immunity and Bittle’s plea agreement; both were discussed in some detail before the juiy. We therefore hold that, even if Wilkins could prove that the prosecution failed to disclose the documents memorializing the Gray and Bittle deals, this failure cannot support Wilkins’ Brady claim, raised for the first time on his K.S.A. 60-1507 motion. The defense was aware at the time of trial of at least the probable existence of the documents; it was aware of their essential contents; and it capitalized upon its awareness. There are no exceptional circumstances excusing Wilkins’ failure to make that part of his Brady argument dependent upon these documents at trial or on direct appeal.
The situation is different on die reports of Gray’s polygraph examinations. Fleming was certain that the reports were not among the documents he reviewed in preparation for Wilkins’ trial. Thus there is substantial competent evidence in the record that the State failed to produce the reports to the defense pursuant to the prosecutor’s open-file policy. This satisfies the first component of a Brady claim.
Willdns also can demonstrate that the reports were exculpatory; the examiner’s conclusions that Gray was deceptive had a tendency to discredit him generally and a tendency to discredit him specifically on whether he had participated personally in causing Shipley’s death. We have held that evidence tending to discredit a key prosecution witness is exculpatory and should be disclosed by the State. State v. Kelly, 216 Kan. 31, 36-37, 531 P.2d 60 (1975) (quoting Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 [1972]).
Even then, however, Wilkins must also show that the evidence was material, i.e., that the failure to disclose it was prejudicial to his case. “[Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. ‘A reasonable probability is a probability sufficient to undermine the confidence of the outcome.’ [Citation omitted].” Haddock, 282 Kan. at 507. This is where Wilkins’ Brady claim breaks down. As discussed above, polygraph results are inadmissible in Kansas. See Shively, 268 Kan. at 579. Moreover, even if admissible, the reports would not have exonerated Wilkins. Their principal value was mere reinforcement of evidence already before the jury on Gray’s doubt about whether Shipley had died between the shooting and the sinking in the pond. This would not have been enough to prompt the jury to arrive at a not guilty verdict on Wilkins.
Conclusion
In view of all of the foregoing, Wilkins is not entitled to reversal of his convictions or retrial because of ineffective assistance of trial counsel and/or evidence withheld by the prosecutor.
The decision of the Court of Appeals is therefore reversed. The decision of the District Court is therefore affirmed.
Davis and Johnson, JJ., not participating.
Greene, J., and Larson, S.J., assigned. | [
48,
-24,
125,
28,
11,
-32,
59,
-78,
82,
-29,
-26,
115,
-87,
46,
69,
121,
-69,
61,
116,
105,
-15,
-74,
7,
-32,
118,
115,
-103,
69,
-99,
92,
-75,
-33,
72,
112,
10,
101,
70,
-22,
-89,
30,
-118,
4,
-69,
67,
82,
-62,
52,
58,
30,
15,
53,
-98,
-93,
42,
28,
-57,
9,
44,
91,
-84,
80,
-71,
-101,
31,
-20,
52,
-93,
-94,
-100,
-89,
-16,
54,
-36,
48,
1,
-24,
113,
-124,
-54,
-11,
77,
-119,
-60,
34,
-30,
4,
-67,
-19,
-88,
-119,
14,
118,
-99,
-89,
-104,
88,
5,
76,
-98,
-97,
102,
116,
15,
-4,
-47,
31,
5,
108,
-122,
-34,
-76,
-111,
-83,
48,
70,
-118,
-53,
37,
16,
113,
-57,
-22,
109,
86,
58,
83,
-118,
-112
]
|
The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages on account of an alleged conspiracy among the defendants to injure plaintiff in his business and occupation as a barber. From a judgment in favor of plaintiff the defendants appeal.
The original petition, briefly stated, alleged that plaintiff and defendant Cavender were residents of Nemaha county; that defendant Wilson was a resident of Leavenworth county; defendant Remmele was a resident of Riley county, and defendant Stivers, of Smith county, and defendants Wilson, Remmele and Stivers composed the Kansas state barber board; that for many months prior to March 30, 1932, plaintiff was a duly licensed barber conducting a business in Sabetha, making a living for himself and family, and that on March 30, 1932, the defendants conspired to prevent his practicing his trade at Sabetha and to injure him in his standing and business reputation and to hinder him in the practice of his trade at prices charged by .him, knowingly, willfully and maliciously caused defendant Wilson to file a criminal complaint against plaintiff for violation of a regulation of the state barber board with reference to the use of towels; that plaintiff was arrested and held until he gave bail and later went to trial, when the case was dismissed. A second cause of action alleged a similar conspiracy, and that o.n April 7, 1932, defendants caused defendant Wilson, without any just or reasonable cause therefor, to file a complaint against plaintiff before the Kansas state barber board for violation of the rule of the board with reference to the use of towels; that at the time the criminal proceedings were dismissed, defendants stated they would revoke plaintiff’s license and put him out of business; that on April 14, 1932, defendants Wilson, Stivers and Remmele held a pretended hearing; that they were not honest, unprejudiced competent persons to hear the complaint, but prejudiced and unfair and had already stated and determined to revoke plaintiff’s license, and without any evidence before them unlawfully revoked the license, to plaintiff’s damage. Copies of the criminal complaint, warrant and bond and of the complaint and notice before the barber board were attached as exhibits. Summonses were issued directed to the counties of residence of the several defendants. To this petition Cavender filed a general demurrer, and the other defendants entered special appearances, and moved to quash the services of summonses upon the ground the court had no jurisdiction of the moving defendants. On December 15, 1932, the demurrer was overruled, and the motions denied. Later a motion to strike out an allegation was allowed, and thereafter an amended petition was filed, which will be noticed later. All of the defendants filed motions to make the amended petition more definite and certain, which motions were denied, and thereafter each filed general demurrers which so far as here material were overruled on April 24, 1933. Thereafter each defendant answered. The first four specifications of error are that the court erred in overruling Cavender’s demurrer to the original petition, in denying the other defendant’s motion to quash the service of summons, in denying the motion to make the amended petition more definite and certain, and in overruling the demurrers to the amended petition.
In so far as rulings on all demurrers are concerned, the record shows no notice of appeal was served until November 27, 1933, or more than six months after the last ruling. The question is no longer open. (King v. Stephens, 113 Kan. 558, 563, 215 Pac. 311, and cases cited, and Hamill v. Hamill, 134 Kan. 715, 717, 8 P. 2d 311.)
On the question of whether the motion to quash was properly denied, however, it becomes necessary to examine the petition and the amended petition to determine that a cause of action was stated against Cavender, for if no cause was stated against him, there was no basis for bringing in the nonresidents. (See King v. Ingels, 121 Kan. 790, 792, 250 Pac. 306, and cases cited.)
What constitutes a sufficient pleading? In 12 C. J. 629 et seq. it is said:
“In an action on the case in the nature of a conspiracy, the grounds, or gravamen of the action whether single or several, must be set out with the same certainty as in an action against a single defendant for the same character of action, whether it be libel, slander, assault and battery, malicious prosecution, or false imprisonment; for the judgment may be against a single defendant without proof of the conspiracy, although it cannot be entered against joint defendants without such proof.” (p. 629.)
“In an action of the nature under consideration, the rule is to allow great latitude in setting out in the complaint the particular acts from which the conspiracy is to be inferred; even going so far as to allow the individual acts of the conspirators to be averred. The act complained of, however, must be definitely and issuably stated, so that, if the facts themselves should be admitted, the court can draw legal conclusions, and so the opposite party will be apprised of what he is called on to answer. An averment that a party has acted unlawfully without showing what he did is not an averment of issuable facts.” (p. 630.)
In 5 R. C. L. 1103 it is said:
“Little need be said with reference to the pleadings in actions for conspiracy, as the rules with reference thereto do not differ materially from those applicable in other actions. The complaint must, 'as in other cases, contain allegations of the facts necessary to constitute a cause of action. For example, in an action for conspiracy maliciously to prosecute the plaintiff, the complaint must contain sufficient averments to sustain an action for malicious prosecution; it must allege want of probable cause. .
In the early case of L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kan. 169, it was held that where the petition alleged in general terms only that there was a fraudulent and corrupt conspiracy and that the act complained of was done in pursuance of such conspiracy, the defendant has the right upon motion to have the petition made definite and specific by a statement of facts showing the terms, nature and extent of the conspiracy. That case and the rule stated were cited with approval in State, ex rel., v. Williams, 39 Kan. 517, 520, 18 Pac. 727. While not involving the question of pleading, the recent case of Harvey v. Tucker, 136 Kan. 61, 12 P. 2d 847, holds:
. “However odious any conspiracy is and ought to be, no civil liability exists against anyone in the conspiracy unless something is actually done by one or more of the conspirators pursuant to the scheme and in furtherance of the object which results in damages.” (Syl. ¶ 3.)
In Federal Reserve Life Ins. Co. v. Gregory, 132 Kan. 129, 133, 294 Pac. 859, it was said:
“The rule that the specific facts of a fraudulent transaction must be pleaded is not to be so rigidly applied as against a demurrer, that the parties who perpetrated the fraud may keep their ill-gotten gains because they have abstracted and concealed the books and papers which should contain a record of it, and where the details of the transaction were perpetrated in secret and are not within the knowledge of the defrauded party, but well known to the parties which committed it.” (p. 133.)
And see, also, Hutson v. Imperial Royalties Co., 135 Kan. 718, 13 P. 2d 298, where the question of conspiracy is treated.
From the above-mentioned cases and texts and others which might be cited to the same general effect, it is deduced that the mere charging of a conspiracy without stating the facts and circumstances which warrant recovery against the claimed conspirators, is not sufficient, and in order that the petition state a cause of action the acts of the parties from which it follows or may be inferred that there was a conspiracy, must be alleged as well as the facts showing that as a result the plaintiff suffered damages for which he is entitled to recover.
The original petition, after alleging residence of the various parties, and that plaintiff was a licensed barber at Sabetha where he bore a good reputation and where his business provided proper support for himself and his family, charged that on and prior to March, 1932, the defendants, maliciously intending to hamper the plaintiff in his business and to prevent him from practicing his trade, to injure him in his standing and business reputation and to hinder and prevent him from practicing his trade at the prices charged by him, conspired together to prevent him from so practicing his trade, and knowingly, etc., induced, caused and procured defendant Wilson to file a criminal complaint in the justice court against him charging a violation of Rule No. 7 of the Kansas state barber board with reference to the use of towels, said complaint being made without good or proper cause, and caused a warrant to issue thereon, all solely in an endeavor to coerce plaintiff into charging more for his services; that arrest and imprisonment followed; that he was compelled to give bond and to hire attorneys to defend him and that when the case was called it was dismissed by the justice of the peace. In what was denominated a second cause of action, but which was in fact only a continuation of the first cause of action, as appellants evidently believe it was, for they filed a motion which the court sustained to strike out that sentence charging a second cause of action, similar allegations were made with reference to a hearing before the state barber board, at which the plaintiff’s license was revoked on account of a claimed violation of the same rule which was involved in the criminal action, the allegation being made that at the time the criminal complaint was dismissed the defendants constituting the state barber board stated in the presence of the plaintiff and others that the board would revoke the plaintiff’s license and put him out of business. With reference to the revocation of license, it is alleged that at the time the complaint was made there was no just or reasonable ground therefor, and no just or reasonable ground for any trial in connection therewith, all of which was well known, to the defendants and each of them. It is not necessary to set out the damages claimed. No motion'to make more definite and certain was leveled at the original petition. We have no difficulty in saying that the petition charged a conspiracy by all of the defendants to prosecute the plaintiff criminally in the justice court and civilly before the state barber board with the intent to prevent him from carrying on his occupation as a barber, in an endeavor to coerce him into charging more for his services, and the doing of acts calculated to produce that result; that while the acts charged were general rather than special as to the defendant Cavender, a cause of action was stated against him as well as against the other defendants. It follows that the petition against Cavender being sufficient, the other defendants were not entitled to have their motions to quash the service of summons allowed.
After the trial court ruled on the above demurrer and motions the plaintiff filed an amended petition, to which each of the defendants filed motions to make more definite and certain, by setting out the facts and circumstances which constituted the conspiracy, what inducements the defendants made to procure defendant Wilson to file the criminal complaint, and how each defendant acted in conjunction with the others in connection with matters before the barber board. Space prevents a repetition of the allegations as amplified and supplemented in the amended petition. In addition to other allegations, it is charged that all of the defendants conspired for the purpose of coercing plaintiff into charging more for his services, and there is ample allegation of what was done in furtherance thereof. While possibly the court should have sustained the motion so far as stating what each defendant did in entering into the conspiracy, it is not made to appear that any one of them suffered any in his defense. After the motions were denied, each demurred and the demurrers were overruled, whereupon defendant Cavender filed his answer in which he denied entering into any conspiracy and each of the other defendants filed answers setting up a general denial, a specific denial of conspiracy, and alleging his appointment as a member of the state barber board, the duties of that board, the adoption of rules and regulations by the board, the enforcement thereof by the board, that defendant Wilson, in performance of his duties, found that plaintiff had violated Rule 7 with reference to the use of towels and caused plaintiff’s arrest; that there was probable cause for believing him guilty; that Wilson’s act in causing plaintiff’s arrest was not known to the other defendants until afterward, and was not the result of any conspiracy, but was in performance of his duty as a member of the state barber board. That when plaintiff was tried on the criminal charge, it was dismissed because of a claim that the regulations of the board had not been duly published; that defendants did not state they would revoke plaintiff's certificate; that proceedings were instituted before the state barber board to revoke plaintiff’s certificate for violation of Rule 7; that a hearing was had at which defendant Wilson did not sit; that a certificate was thereafter reissued to plaintiff; that all acts of the defendants, members of the barber board, were done by them officially, in good faith, without malice and in the honest exercise of their best judgment; that there was no conspiracy between each answering defendant and the remaining defendants to prevent plaintiff from practicing his trade, and “any concerted action taken by this defendant and any other defendant or defendants herein in relation to plaintiff was solely for the purpose of enforcing the provisions of the statutes of the state of Kansas relating to the practice of the barber trade and required of the defendant members of said state barber board by law,” and a denial that plaintiff had suffered any damage or if so it was the result of his own unlawful acts. The last allegation was that the action against defendant Cavender was not brought in good faith but only for the purpose of obtaining jurisdiction over the other defendants.
The case was tried before a jury. After plaintiff’s opening statement had been made, each defendant objected to the introduction of any evidence for the reason that the amended petition and opening statement do not state facts sufficient to constitute a cause of action. The overruling of this motion is assigned as error. The opening statement is not abstracted, so we do not know what was said, but assuming it outlined a case similar to that alleged in the amended petition, for reasons heretofore given, the motion was properly denied. At the conclusion of plaintiff’s case defendant Cavender demurred to the evidence as not proving a cause of action, and the overruling of this demurrer is assigned as error. It is contended there was no evidence connecting Cavender with any conspiracy or that he did anything in carrying out any conspiracy. Only such testimony as tends to show this will be noticed. Plaintiff came to Sabetha from Missouri in 1929, and obtained a license in Kansas and operated a shop for himself in Sabetha. Cavender had a shop across the street. Plaintiff testified that prior to the matters complained of, a meeting of about fifty barbers was held at Caven der’s shop, the defendants other than Cavender not being there. The question of prices to be charged was discussed. Plaintiff had a schedule of prices posted in his shop of 15 cents for a shave and 25 cents for a haircut. The other shops in Sabetha were charging 20 cents for a shave and 35 cents for a haircut. After that meeting, another meeting was held at another shop, Cavender being present with seven or eight others. They endeavored to get plaintiff to raise prices with them, but plaintiff refused, and went home. Before this last meeting, defendant Wilson had inspected plaintiff’s shop, and inquired what prices were charged. Wilson told him he couldn’t make a living and keep his shop sanitary at his prices, and he had better get in line with the other barbers. Plaintiff refused, and Wilson said he was going to send some spotters around to check up some of “us fellows” for violating the law. Three or four days thereafter there was another meeting at Cavender’s shop. After plaintiff had retired, two men came to his home and said defendant Wilson was at the meeting and wanted him to come. About the same time two strangers, whom he suspected of being spotters, came into his shop, played pool in a part of the room to the rear, and afterwards were shaved by plaintiff, although one of them did not need a shave. He used a clean towel on each of them. He saw defendant Wilson in town the same day. The next day he was arrested and went to Judge Miner’s court, where he saw the complaint signed by defendant Wilson. He went out in custody of a constable and procured a bond. He hired an attorney, procured his witnesses and attendee! the trial later had when the case was dismissed. Before it was dismissed he heard the defendant members of the barber board consult together and heard Wilson tell the county attorney to dismiss the case “and we will revoke his license.” About an hour after the dismissal he was served with notice of the hearing to be held at Holton, at which his license was revoked. All three members of the board were in his shop when he was given notice. He appeared at the hearing in Holton with his counsel and witnesses. The two young men whom he suspected of being spotters appeared and testified. His attorney objected to Wilson sitting, and Wilson did not sit, but was present at the hearing. The two young men testified that Wilson had hired them to come up and “spot” him for violation of a rule; they were to receive five dollars to come to Sabetha and if they got the “goods on me” they were to get five dollars more.
A witness testified he was a barber and had worked in Sabetha five years; that he attended five meetings of the Northeast Kansas Barbers in 1932, two of the meetings being in Sabetha, saw various members of the barber board at these meetings, but the meeting at Holton was the only one at which all were present. Two meetings were held in Cavender’s shop, plaintiff being present at the first, which was attended by forty or fifty people. Prices were discussed and they tried to get plaintiff to raise his prices, the main purpose of the meeting being to get all' the barbers together on the same prices. At that time plaintiff was the only one not charging the prices wanted generally. Cavender was present and took part. Cavender was present at the Holton meeting where there was some conversation with reference to plaintiff, heard defendant Stivers tell one Levick if they could not get plaintiff to raise his prices they would have to revoke his license. The purpose of the Holton meeting was to see if northeast Kansas could not be organized to have one price. At the second meeting at Cavender’s shop defendant Wilson was present, as was Cavender. Wilson said that if plaintiff would not raise his prices, they would have to try to get his license revoked.
Another witness testified he attended meetings of the Northeast Kansas Barbers Association. He attended more than one meeting at Cavender’s shop, and at one meeting Wilson was present and said with regard to plaintiff: “If we can’t get him to do it otherwise we will revoke his license.” Witness’ recollection was this was the night before plaintiff was arrested. There were other witnesses as to what took place at the trial, what Wilson said about revoking plaintiff’s license, what the two “spotters” had done at plaintiff’s shop; that plaintiff had used clean towels on each of the spotters; about the hearing at Holton, about the damages sustained by plaintiff. Certain evidence, the competency of which is questioned, is hereafter referred to.
In 5 R. C. L. 1103 the rule of evidence in civil cases for conspiracy is stated:
“The rules of evidence applicable in criminal prosecutions for conspiracy, which have already been considered, are effective in civil cases of conspiracy. The combination or conspiracy may be proved by evincing a concurrent knowledge and. approbation in the persons conspiring, of each other’s acts; and it is usually done by proof of the separate acts of several persons concentrating in the same purpose or particular object. The greater the secrecy that is observed relative to the object of such concurrence, and the more apparent the similarity of the means employed to effect it, the stronger is the evidence of conspiracy. For -the purpose of showing such connection, therefore, circumstantial evidence suffices. The plaintiff may either prove the conspiracy which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy.”
And in discussing the necessity of direct evidence, it 'is said in the same volume, page 1088:
“Conspiracies need not be established by direct evidence of the acts charged, but may, and generally must be, proved by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be accomplished. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused, done in pursuance of an apparently criminal or unlawful purpose in common between them. The existence of the agreement or joint assent of the minds need not be proved directly. It may be inferred by the jury from other facts proved. It is not necessary to prove that the defendants came together and actually agreed in terms to have the unlawful purpose, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part of the same so as to complete it, with a view to the attainment of that same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. If, therefore, one concurs in a conspiracy, no proof of agreement to concur is necessary in order to make him guilty. His participation in the conspiracy may be established without showing his name or giving his description.”
The question is also discussed in 12 C. J. 632 et seq., it being stated, page 634, that—
“In the reception of circumstantial evidence great latitude must be allowed. The jury should have before them and are entitled to consider every fact which has a bearing on and a tendency to prove the ultimate fact in issue and which will enable them to come to a satisfactory conclusion. The government has the right to show the whole history of the conspiracy from its commencement to its conclusion. And it is no objection that the evidence covers a great many transactions and extends over a long period of time, that it may show another crime, that the acts, evidence to show which is offered, occurred some time before the alleged formation of the conspiracy, provided, however, that the facts shown have some bearing on and tendency to prove the ultimate fact at issue. But much discretion is left to the trial court in a case depending on circumstantial evidence, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact. However, this latitude will not be extended so as to embrace collateral facts not pertinent or relevant to the matter in issue.”
Also, see Chisler v. Randall, 124 Kan. 278, 259 Pac. 687, and Harvey v. Tucker, 136 Kan. 61, 12 P. 2d 847, as bearing on the matter.
In our opinion the above evidence was sufficient as against a demurrer and required that the matter be submitted to the jury, and the court did not err in overruling the demurrer.
Error is assigned in allowing certain evidence to be introduced over defendant’s objection. One witness was permitted to testify that at one of the meetings when Cavender was present, one Kinsley, once a member of the state barber board, had said that they, evidently meaning persons present at the meeting, were proceeding in the wrong manner and there was a better way than doing the way some of them seemed to think they ought to do. What Kinsley or anyone else thought ought to be done was not shown. This evidence was properly admitted under the authorities above cited. The other evidence objected to pertained to what was said and done when two men went to plaintiff’s house and told him defendant Wilson wanted to see him at Cavender’s shop, and that he refused to go. One or possibly two of these witnesses said they wanted to talk prices. We are of the opinion that this evidence was properly admitted, but in any event it had little or nothing to do with the final outcome. Assuming it should not have been admitted, there is no showing of prejudice.
During the course of the trial it developed that defendant’s counsel had a transcript of the testimony taken at the Holton hearing, and plaintiff’s counsel asked for it to use it in cross-examination of defendant Remmele. The court ruled they might do so. Error is assigned on the court’s ruling. There is no showing that it was used by plaintiff’s counsel, and whether the court’s ruling was right or wrong did not affect the result.
Error is also assigned because the court refused to give eleven requested instructions, although in the brief the argument is confined to only three. One directed a verdict in favor of the defendant Cavender and another a verdict in favor of the other defendants. They were properly refused. The other was that if the jury found the defendant guilty of violating Rule 7, it should return a verdict in favor of defendants. The court gave instructions, of which no complaint is made, touching the board’s power to make rules and regulations, including the one pertinent here, and that a violation thereof constituted a misdemeanor, and that in event the board, in good faith, and carrying out the duties imposed upon it, caused a prosecution of plaintiff, he could not recover. These instructions were more favorable to the defendants than the one requested, and the failure to give the requested instructions was not error.
Complaint is made that the court refused to set aside the answer to a special question:
“If you answer question 1 in the affirmative, state what was done in furtherance of said conspiracy by each of the conspirators named in answer 2. A. Prosper Wilson, James W. Cavender: instigators and promoters. Paul Remmele, Milo C. Stivers: unjustly revoked plaintiff’s license as a barber.”
There is no showing that when the verdict and answers were returned the defendants requested the answer be made any more definite. It is clear to us that the answer intended to mean and did mean that Wilson and Cavender proposed the matter and that Remmele and Stivers carried it out. There was evidence which warranted the jury in so answering.
The general verdict fixed plaintiff’s damages at $2,500. in answer to a special question, the jury allowed the plaintiff damages as follows: Loss of business $700; loss of place of business $350 and exemplary damages $1,450. When the motion for a new trial was decided, the trial court found that the item of $350 was unsupported by the evidence and that the item of $700 was excessive and should be reduced to $110, and that the item of $1,450 exemplary damages was not excessive and should stand, and judgment was rendered for $1,560. The error assigned is that amount allowed for actual damages is insufficient to support the judgment for exemplary damages, and it is argued that the act of the court in reducing the allowance for actual damages shows that the verdict was influenced by passion and prejudice. It must be borne in mind that the $350 item was set aside because of failure of evidence to sustain it.
It requires no citation of authority that before exemplary or punitive damages may be awarded there must be actual damages and a right of recovery therefor established. That test has been met here. In Titus v. Corkins, 21 Kan. 722, Brewer, J., stated the distinction between actual and punitive damages, and said:
“But punitive damages mean more than compensation; they imply punishment, and are to deter the wrong-doer, as well as compensate the injured.” (p. 723.)
In Cady v. Case, 45 Kan. 733, 26 Pac. 448, the syllabus reads:
“The cases of Malone v. Murphy, 2 Kan. 250; Wiley v. Keokuk, 6 id. 94, and other similar decisions in this court, holding that, whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages, followed.”
The question was again presented in Stalker v. Drake, 91 Kan. 142, 136 Pac. 912, where it was said:
“Such damages are allowable not because of any special merit in the plaintiff’s case, but are imposed by way of punishing the defendant for malicious vindictive or a willful and wanton invasion of the plaintiff’s rights, the purpose being to restrain him and deter others from the commission of like wrongs. Such damages are only given where malice, fraud or a willful and wanton disregard of the rights of others enter into the case.” (p. 150.)
And see Roseberry v. Scott, 120 Kan. 576, 244 Pac. 1063, where the last two mentioned cases are cited, and also Cheesman v. Felt, 92 Kan. 688, 693, 142 Pac. 285, where the question is discussed, and a number of our cases are cited.
In the case at bar, the jury, in answer to one of the special questions, found that the members of the state barber board acted with malice, corruption and oppression in revoking plaintiff’s barber certificate, and there was evidence which warranted the finding. In 8 R. C. L. 680 it is said:
“It is difficult to lay down any rule by which to test the question of excess in a verdict for punitive or exemplary damages. At common law the amount was left almost entirely to the jury, and the courts generally refused to grant a new trial on the ground that the award was excessive, and would do so only in a glaring case of outrageous damages, and which all mankind at first blush must think so. It is now generally held, however, that the jury is not at liberty, unrestrained, to award by way of punitive damages any amount, regardless of how large it may be. While their verdict will not be set aside unless it is so large as to satisfy the court that it was not the result of an honest exercise of judgment, an award of exemplary damages is subject to revision by the court to the same extent as awards of compensatory damages, and will be set aside if it is grossly excessive or appears to be the result of passion or prejudice or improper sympathy. The court will not interfere except in extreme cases, however, and where it appears that an injustice has been done, and, perhaps, will proceed with more caution in such a case than where only compensatory damages are involved.”
We have reviewed the evidence from which it appears that a determined effort was made to compel plaintiff to agree to a certain schedule of prices, and upon his refusal to agree thereto he was criminally prosecuted and civilly deprived of his right to carry on his trade. The fact that his certificate or license was later restored lessened his actual damage, but that does not excuse the wrongful acts of the defendants. In our judgment, the amount of punitive damages allowed was not so large that we can say it was excessive.
In support of various assignments, defendants argue that the state barber board is a creature of statute, charged with the making and enforcing of certain rules and regulations, and that in so doing it is not a judicial tribunal governed by technical rules applicable to law courts, and that in the absence of fraud, corruption or oppression its findings are conclusive, to all of which we agree, but that does not mean that the members of any such board — -here the barber board — to force in line one who does not agree with his fellow workers as to the value of services, may adopt measures which, although performed under the forms of law, are conceived in iniquity, and be relieved from the consequences flowing from their unlawful acts. Possibly different minds might come to different conclusions from the evidence, much of which favorable to the defendants it has not been necessary to mention, but the matter has been fully and fairly presented to a jury, which resolved the question in favor of the plaintiff.
No error appearing, the judgment of the trial court is affirmed. | [
-16,
-22,
-72,
15,
26,
-32,
40,
30,
81,
-93,
-89,
115,
-23,
-34,
0,
109,
-37,
29,
80,
123,
-30,
-78,
23,
-117,
-126,
-45,
-37,
-43,
-71,
79,
-10,
-9,
72,
48,
74,
-107,
70,
-126,
-59,
28,
-114,
4,
104,
-64,
89,
73,
52,
106,
54,
3,
113,
47,
-13,
43,
28,
-61,
104,
44,
-37,
56,
81,
-15,
-54,
85,
125,
16,
3,
34,
-100,
3,
72,
47,
-104,
49,
-127,
-24,
115,
-74,
2,
116,
15,
-119,
12,
102,
98,
34,
17,
-81,
-88,
-120,
47,
115,
-99,
-89,
-80,
72,
66,
13,
-98,
-99,
119,
22,
7,
116,
-23,
-113,
26,
-84,
0,
-33,
-76,
-77,
-113,
62,
-116,
23,
-21,
-123,
49,
97,
-123,
38,
95,
87,
50,
-101,
94,
-76
]
|
The opinion of the court was delivered by
Hutchison, J.:
The defendant in this action appeals from a conviction and sentence for forging and uttering three checks on the Hoxie State Bank, and assigns many errors of the trial court, the first one being the overruling of defendant’s motion to quash the information on the ground of its being indefinite and uncertain and because it did not state facts sufficient to constitute a public offense.
There were three counts of forgery in the second degree under R. S. 21-608, all three checks being made payable to Sears, Roebuck & Company for different amounts and purporting to have been signed by R. E. Little, B. C. Runyon and Dr. S. E. Rice, respectively. The forgery counts follow the language of the statute generally, but do not state that the checks were drawn on an incorporated bank, as stated in the statute, and do not state whether Sears, Roebuck & Company was a corporation or a firm.
The case of State v. Washington, 259 Mo. 335, is cited by appellant as being especially in point as our statute on forgery is substantially the same as that in Missouri, and there it was held by a divided court that the information which did not charge that the bank on which it was drawn was incorporated was not sufficient to charge forgery. This case is cited in two later cases, State v. Stegner, 276 Mo. 427, and State v. Hascall, 284 Mo. 607. In the latter case it was held not to be error to have permitted the word “corporation” to be substituted in the information for the word “institution” after the jury had been sworn.
R. S. 9-101 provides for the incorporation of state banks. R. S. 9-102 requires that the name selected for every such bank shall include the word “state.” R. S. 9-147 provides that the word “state” shall not be a part of the name of any private bank in this state. R. S. 9-165 provides that private banks may transact a banking business in this state without being incorporated. Under these statutes every state bank in this state using the word “state” as a part of its name must be an incorporated bank, as it was stated on page 410 in the case of State v. Phillips, 136 Kan. 407, 15 P. 2d 408, concerning a national bank that it necessarily was an incorporated bank because of a similar federal statute. Therefore, when the information charged the forging of checks on the Hoxie State Bank it definitely and specifically charged they were drawn on an incorporated bank.
As to the charges in the information being insufficient and indefinite in the references made therein to Sears, Roebuck & Company, the case of State v. Suppe, 60 Kan. 566, 57 Pac. 106, is cited by appellant, where it was held: (
“An information alleged that the defendant knowingly and feloniously received into his possession personal property which had been stolen from the Carterville Mercantile Company, without averring whether said company was a corporation, joint-stock company, or partnership. Held, that the court erred in overruling a motion to quash the information.” (Syl. ¶ 1.)
This decision was carefully considered in two comparatively recent cases in this court, the first being a burglary casé and the second a robbery case, where the following determinations were reached on this question:
“In an information for burglary of a store and for larceny committed in connection with the burglary, ownership of the store and goods was alleged to be in ‘The Durnil Dry Goods Company.’ Held, it was not necessary further to identify the owner by stating whether the company were a corporation or a partnership.” (State v. Toliver, 109 Kan. 660, syl. ¶ 4, 202 Pac. 99.)
“Where an information charging robbery alleges that the money taken was the property of the Pirst National Bank of LeRoy, Kan., it is not necessary to allege that such bank was incorporated.” (State v. Phillips, 136 Kan. 407, syl. ¶ 1, 15 P. 2d 408.)
The case of State v. Wahl, 118 Kan. 771, 236 Pac. 771, was a forgery and uttering ease like the one at bar, and it was there said in the opinion:
“It is contended that the first count of the information was defective in that it did not allege the name of the person intended to be defrauded by the forging of the check. The language used in the information is in the language of the statute relating to the forging of an instrument, and it is a general rule that it is sufficient to allege such an offense in an information in the words of the statute, especially where the statute itself names the elements constituting the offense.” (p. 772.)
Appellant urgently insists that the trial court erred in submitting the case to the jury where the witnesses called to 'compare the handwriting on the checks with that of defendant were only amateurs instead of experts, and only two of them testified, whereas R. S. 62-1427 not only requires that such witnesses be experts but that there be at least three of them. In support of this proposition appellant cites State v. Foster, 30 Kan. 365, 2 Pac. 628, and State v. Frey, 111 Kan. 798, 208 Pac. 574. Counsel for the state frankly admit the requirements of R. S. 62-1427 as to the necessity of three expert witnesses, but contend that the rule only applies when such evidence is relied upon entirely to prove the forgery, whereas in this case the record shows evidence along several different lines tending to prove the forgery, as the delivery of letters addressed to Sears, Roebuck & Company, to the mail carrier by the wife of defendant, the orders accompanying the checks, the evidence of defendant and his wife about the receipt of numerous packages of furniture and other articles from mail-order houses and the signing of express weigh bills for some of such articles. So that the testimony of the two supposed experts was not the only evidence as to the genuineness of the signatures on the checks. On this subject it was said in the first paragraph 'of the syllabus in the case of State v. Leatherwood, 129 Kan. 686, 284 Pac. 402:
“The statute (R. S. 62-1427) that when persons of skill, or experts, be called to testify as to the genuineness of a note three witnesses shall be required to prove the fact does not apply when there is other evidence as to the genuineness of the instrument than that of the testimony of the experts.”
One of the two witnesses as to comparison of signatures and handwriting was a postmaster and the other a rural mail carrier, both with considerable -experience in reading and examining handwriting. In the case of State v. Nordmark, 84 Kan. 628, 114 Pac. 1068, it was said:
“If a witness has acquired peculiar knowledge or skill, by experience, observation or practice on a subject with which the mass of mankind is not supposed to be acquainted, he may give his opinion on it.” (p. 631.)
We conclude that the testimony of these two witnesses was not incompetent, although their experience may have been somewhat limited, and although there were only two of them instead of three, when their testimony was not the only evidence tending to prove the forging of the checks.
Appellant complains of the admission of evidence of other forgeries, the possession of forged checks and the goods procured by the use of such, and of the instructions of the trial court as to the extent of the proper consideration of the evidence to show intent of defendant and his usual course of dealing in similar matters. We think the evidence, as shown by the record to have been admitted, and the instructions given on this subject are well within the recognized exception to the general rule concerning the same.
Appellant complains of evidence of defendant signing a waybill by using his Christian name instead of his initials as usual because such was not a similar forgery or a forgery at all. The evident purpose of such admission was not to show intent or custom, but rather to show his handwriting, as witness Shepard said he saw him sign such paper.
The conversation had by the sheriff and county attorney with the wife of the defendant in the absence of the defendant might be incompetent if it had not been substantially repeated by her or the defendant after he joined the group.
We are hardly concerned with the orders and directions given certain officers by the post office department, nor the seizing and removing, rightly or wrongly, of certain property found in the house of the defendant.
Complaint is made of the admission in evidence of the acts done and statements made by the wife of defendant without first showing a conspiracy or concerted action between them. They were jointly charged with the same offense, but because of the request of the defendant he was being tried separately. The evidence of the sheriff, as set out in the counter abstract, shows quite a little of such concerted action and was introduced in connection with and before the most of such evidence of which complaint is made.
Many exhibits are mentioned in the abstracts and briefs, but none are copied or fully described therein, so this court cannot conclude the omission to introduce any particular one was error.
It is suggested that the forgery charges of the information are drawn literally under R. S. 21-616 instead of R. S. 21-608, as in structed by the trial court. If so, much work and time has been needlessly spent upon the question of the necessity of the bank on which the checks were drawn being incorporated, as the former section contains no such provision, and it covers only such altering, forging or counterfeiting as “is not hereinbefore declared to be a forgery in some other degree."
Other assignments of error, including the overruling of the motion for a new trial, being fully considered, and those herein before being separately mentioned and treated, are held not to constitute reversible error.
The judgment is affirmed. | [
-16,
-18,
-15,
-68,
12,
-28,
48,
-70,
51,
-95,
-91,
115,
-7,
-52,
21,
125,
-9,
-83,
112,
113,
-9,
-78,
7,
-85,
-46,
-77,
-39,
-51,
-71,
91,
-90,
-42,
76,
48,
-54,
-35,
102,
-54,
-61,
-36,
-118,
36,
41,
-63,
81,
80,
100,
-30,
-48,
10,
113,
-99,
-13,
59,
30,
66,
104,
46,
75,
-67,
80,
-15,
-102,
77,
93,
21,
-93,
6,
-116,
7,
-40,
14,
-104,
115,
17,
-7,
114,
-106,
-122,
116,
75,
59,
8,
110,
98,
0,
-79,
-49,
-124,
-104,
39,
-34,
-99,
-89,
-110,
-119,
35,
47,
-98,
-99,
126,
18,
2,
-36,
-26,
4,
27,
108,
1,
-114,
-4,
-73,
-99,
61,
30,
59,
-5,
-93,
32,
97,
-122,
-32,
93,
-107,
59,
19,
-50,
-68
]
|
The opinion of the court was delivered by
Hutchison, J.:
This appeal is by the state from an order of the district court in effect affirming the ruling of the probate court in determining that seven certain persons, by name, were the heirs.of the' intestate whose estate was being administered, without setting aside the earlier ruling made by and in the probate court finding that the intestate had died without heirs, and directing that the net proceeds of the personal property in the hands of the administrator in the sum of $5,130.48, as shown by the final report of the administrator, be paid to the county treasurer for the' benefit of the permanent school fund of the state of Kansas. This part of the proceeding was commenced by six of these claimants filing a petition and an amended petition in the case pending in the probate court. The petition was supported by evidence tending to show they were nieces and nephews, and was opposed by the' state and the administrator, and the probate court held them to be heirs of the deceased. The state appealed the case to the district court where the same decision was rendered, except by adding one more heir, and from that judgment this appeal is taken by the state.
The deceased, Wilhelm Braun, died intestate in Edwards county on December 20,1925. An administrator was appointed on January 2, 1926. This administrator resigned January 14, 1928, and Harold Payne was at once appointed and qualified as administrator de bonis non. On June 24, 1929, the administrator filed his final report, and three days later published his notice of final settlement to be made on July 27,1929. On July 27,1929, the record shows his final report was approved, the court finding that Wilhelm Braun “died intestate and without heirs,” and that the residue of the funds in the hands of the administrator in the sum of $5,130.48 should be paid to the county treasurer of Edwards county for the benefit of the permanent school fund of the state of Kansas. The record shows this was done by the administrator, and the receipt of the county treasurer was filed in the office of the probate court.
The first petition was filed by these claimants on July 26, 1930, or one day less than one year after the finding, order and distribution was made by the probate court, and the amended petition was filed February 13, 1932, about a year and a half later.
Appellant urges that it was error for the district court to entirely ignore and disregard the former order made by the probate court finding the intestate died without heirs, which appellant claims was a final order and never set aside, and carried with it the distribution of the funds. Appellant also claims this is a collateral attack upon a final judgment. If the first order made by the probate court was a final order or judgment, we would have no difficulty in approving and concurring in the logical argument of the appellant supported by very convincing decisions. But we cannot agree with the assertion that the order of the probate court made on July 27, 1929, was a final order or judgment as contemplated by R. S. 60-3007, 60-3008 and 60-3016, cited by appellant. It was more nearly like an interlocutory order affecting only the proceeds of the personal property belonging to the estate. The administrator was not discharged, but specifically continued with a bond reduced in amount, and the estate was not closed but continued and held open, as a part of the same order. The last two paragraphs of the order in question are as follows:
“And it is by the court further considered, ordered and adjudged that upon the filing of the receipts of the aforesaid distributees for the several sums ordered to be paid to them that the liability of the principal and surety on the bond of Harold Payne, as administrator d.b.n. of said estate, be reduced to the sum of $1,000.
“And it is by the court further considered, ordered and adjudged that said estate be not closed at this time, but that the same be continued and held open for the purpose of further proceedings herein in relation to the sale of real estate owned by the said Wilhelm Braun at the date of his death.”
R. S. 22-904 is the section which provides for the probate court determining who are the heirs, and it can only be done on the hearing of the final settlement. R. S. 22-906 provides that the probate court shall make final settlement “if it appear to the court that such notice was duly published, and that the estate of the deceased has been fully administered.” In Harvester Co. v. Algie, 101 Kan. 654, 168 Pac. 876, it was said:
“Final settlement of the estate of a deceased person is not to be made until the estate is fully administered, and the administrator should not be discharged or released until his trust has been fully performed and he has accounted for and paid out all the moneys received by him, as the law requires.” (Syl. ¶ 1.)
“A final settlement is a direct adjudication that the estate is fully administered, that the administrator has completely executed his trust and has accounted for all moneys received, as the law requires; and it is final and conclusive unless appealed from.” (p. 657.)
The journal entry itself prevents the order of the probate court from being a final settlement, and, of course, it was not a final settlement, nor a final order or judgment. It is easy to see how one might readily think of it as a final settlement. If the intestate had well-known heirs about whose rights as such there was no dispute or question, it would be a final settlement, as the administrator had, as shown by his final report, paid all the debts out of the personal property and had a definite balance left for distribution, and his services would be needed no further as the title to the real estate had vested in the well-known heirs. Now just because there were no known heirs when he made his settlement, and the real estate remained to be sold and disposed of, the settlement was not final.
Appellant relies especially upon the case of Christianson v. King County, 239 U. S. 356, because the court of last resort held the settlement in the probate court of the state of Washington, finding no heirs and turning the proceeds of the land over to the county, from which judgment no appeal was taken, to be a final judgment. In that case the intestate died in the territory of Washington in 1865. The settlement of the estate, including the proceeds of the real estate, was made in 1869 when the only requirement was that the administrator might at any time after settlement of accounts and upon appropriate notice make application to the probate court for distribution of the funds and his discharge as administrator. This order was made directing the payment of this fund to the county because there were no heirs. Eorty-two years thereafter this action was commenced in the federal court by one claiming to be an heir to set this ruling aside, and it was held to be a final judgment.
Appellant also cites In re Apostolopoulos’ Estate, 68 Utah 344. There the statute provides that if no one appears within five years after decedent’s death to claim succession to the property it shall escheat to the state. The final settlement, including all the property, was made by the administrator in a little more than a year after the death of the intestate, and the probate court approved it and made distribution of the residue of the estate to the state of Utah. More than five years after the death of the intestate claimants commenced proceedings in the district court to recover the residue, and they were denied such right because of the statutory limit of time. To apply this ruling to the case at bar, it would be the same as if, after the farm had been sold and all the funds of the estate turned over to the county treasurer under order of the probate court, claimants had come in more 'than twenty-one years after such payment had been made. Of course the claimant was too late, and the opinion recognizes the judgment as being final.
There is some discussion in the briefs as to the provision of our law under which this personal property would finally escheat to the state of Kansas. It is suggested that R. S. 22-933 to 22-935 relate only to funds derived from the sale of real estate, and that R. S. 22-932 relates to funds distributed to heirs, next of kin, or legatees which they fail to call for within a year. But appellant insists that section 3 of article 6 of the constitution is self-executing where it lists among the proceeds of the school fund “all estates of persons dying without heir or will.” It is hard to concur in this self-executing theory when the several legislatures of the state have, from the very beginning to the present time, deemed it necessary to put on our statute books rules and regulations as to the process and requirements under which these funds, or most of them, are to be handled. This means of executing the constitutional provision by legislative provisions is recognized in the recent case of State, ex rel., v. Rector, 134 Kan. 685, 8 P. 2d 323, although it is there stated that other means and provisions may be used for the same or similar purpose, that being an action by the state of Kansas to contest a supposed will. (See, also, First Colored Baptist Church v. Caldwell, 138 Kan. 581, 27 P. 2d 237.)
Appellant assigns error in the trial court overruling its motions to dismiss, to strike from the files, to modify its judgment and to grant a new trial. Each of these motions depend to some extent upon the theory of appellant herein first considered, that the order of the probate court of July 27, 1929, was a final judgment, and we therefore think there was no error in overruling these motions.
In the reply brief mention is made of another claimant who has filed proceedings since this appeal was taken, and a reference to the same is contained in the brief of an amicus curia, but such, however important it may be to this new claimant as well as the earlier claimants to whom beneficiary certificates have been ordered issued, is not a matter that can be cared for on appeal, the trial court not having considered it. Besides, there remain, even yet, about sixteen years for claimants to assert their rights to the proceeds of this estate.
The judgment is affirmed. | [
-15,
-20,
-44,
124,
10,
-32,
74,
24,
81,
-95,
36,
83,
-23,
-38,
21,
125,
115,
13,
65,
105,
-29,
-73,
23,
-128,
-46,
-13,
-67,
-35,
-77,
93,
-26,
-42,
73,
112,
10,
-107,
-58,
-58,
-57,
84,
-116,
4,
-87,
-20,
-35,
96,
54,
101,
54,
15,
81,
46,
-9,
42,
28,
-13,
-56,
44,
-37,
-81,
8,
-80,
-85,
-121,
-1,
23,
0,
2,
-40,
-123,
72,
42,
-104,
113,
-128,
-8,
51,
-90,
-58,
116,
39,
41,
40,
118,
71,
49,
-67,
-17,
-72,
-120,
15,
-42,
-99,
-89,
-102,
89,
-30,
1,
-74,
-103,
117,
-48,
7,
-4,
-26,
21,
94,
-84,
-116,
-113,
-42,
-111,
90,
120,
-104,
10,
-5,
-127,
50,
113,
-103,
-62,
92,
-25,
56,
27,
-121,
-80
]
|
The opinion of the court was delivered by
Harvey, J.:
This is an action in forcible detainer. The trial court directed a verdict for plaintiff. Defendant has appealed.
The facts may be stated thus: M. L. Morford owned certain lots in the city of Sabetha, on which he started to build an oil service station. When the building was about completed he leased it to the Phillips Petroleum Company for a term of three years, beginning April 1, 1931, for one dollar per annum and an amount equal to one cent per gallon on the gasoline sold through the service station, payable monthly. The oil company was to put in equipment for handling petroleum products, with the right to remove them at the termination of the lease, and also had the option of extending the lease for an additional five years by giving notice in wi'iting. This has been done. The lease was in writing, acknowledged by Morford, and duly recorded. On the same day the lease was executed an operator’s agreement was entered into in writing between the oil company and Morford by which he agreed to operate the service station and sell or dispense through it gasoline and other petroleum products of the Phillips Petroleum Company only, and for this he was to be paid by the oil company three cents per gallon for gasoline delivered to him for sale through the station and a percentage on other petroleum products. This instrument was not acknowledged or recorded.
In pursuance of these agreements the oil company installed underground storage tanks, gasoline pumps and other equipment at the station. Morford began operating it, and continued to do so until in February, 1933, receiving his rental each month under the lease and his commissions for the sale of gasoline and other petroleum products. He then sold the property to the wife of John Koch, a real-estate dealer in Sabetha, who operated it through a Mr. Carpenter, who had previously worked for Morford, until the latter part of May, 1933, when he sold it to the defendant Skinner. While Koch operated the station he received the rents provided in the lease, and also the commissions set out in the operator’s agreement. When Skinner purchased the property, about May 24, 1933, he knew of the lease to the oil company, for he was told about it, and it showed on his abstract. He also knew Carpenter was in charge of the station for Koch, and a few days after he took possession Carpenter showed him the operator’s agreement, which was in the files at the station.
Skinner operated the station and received the rents under the lease and the commissions mentioned in the operator’s agreement until sometime in July, 1933. At that time the Phillips Petroleum Company asked him to execute a new operator’s agreement, which would materially reduce his commissions, and which contained other provisions not in.the former one. Skinner refused to do this, asserted he was occupying the property as owner and was under no obligations to sell the products of the Phillips Petroleum Company. He took that company’s equipment out of the station to the grounds of the company’s general station at Sabetha. The Phillips Petroleum Company then brought this action. Defendant prevailed before a jury in justice court. Plaintiff appealed to the district court, where there was a trial, with the result previously stated.
Appellant contends the court erred in directing a verdict. We are unable to see in the record any controlling fact which was controverted in the evidence. If we are correct in this, it was proper for the court to direct the verdict. See 26 C. J. 866, and cases there cited. Appellant contends the lease and operator’s agreement, executed by Morford, must be construed together as one instrument, and that when plaintiff sought to have a new operator’s agreement it necessarily abandoned the old one, and the effect was to set aside the lease. We cannot concur in this view. By the lease plaintiff acquired the right to the use of the premises. It was at liberty to make an operator’s agreement with anyone other than Morford. The fact that it made one with him gave Morford, or one holding under him, no more rights than a third person, operating the station under an agreement with plaintiff, would have had. The plaintiff did not in fact terminate the operator’s contract; it merely sought to modify it. But if it had terminated that contract, such action would have had no effect on the lease, for the one was not dependent upon the other. (Shell Petroleum Corp. v. Ford, 255 Mich. 105, 237 N. W. 378; General Petroleum Corporation of California v. Beanblossom, 47 F. 2d 826; Johnson Oil Refining Co. v. Gillam, 256 Ill. App. 531; Standard Oil Co. v. O’Hare, 122 Neb. 89, 239 N. W. 467; and see, generally, 13 C. J. 561, 563.) -
Appellant contends he did not sell plaintiff’s products, but bought from plaintiff, paid cash, and sold his own property. This contention lacks merit. The operator’s agreement provided the operator should pay for gasoline delivered, at three cents per gallon less than plaintiff’s posted retail price. That is what appellant did.
Appellant seeks to make something out of the fact he had purchased the property. But he necessarily purchased subject to the lease, which gave plaintiff the right to possess and to use the property. Much is said in the briefs about whether Morford, Koch and Skinner were agents of plaintiff. The name applied to the relationship is not important. They were there under an agreement with plaintiff, who had the right of possession by virtue of its lease, and their occupancy and possession of the premises was necessarily for and on behalf of plaintiff. Defendant was in no position to deny plaintiff’s right to possession and assert a claim of his possession by reason of his ownership of the property, for such ownership was subject to plaintiff’s lease, and its right to possession thereunder.
Appellant argues forcible detainer was not a proper remedy. In view of the lease, the only right defendant had to the possession of the property was under and by virtue of some agreement with plaintiff. Morford made such an agreement, and was succeeded by Koch, and she by defendant. When he denied possession under that agreement and attempted to assert his right to possession under some other claim, plaintiff could regain its possession by an action in forcible detainer.
The judgment of the court below is affirmed. | [
-16,
-4,
120,
-113,
58,
-32,
58,
-101,
91,
-94,
-25,
83,
-83,
71,
0,
105,
83,
125,
85,
105,
-126,
-77,
7,
115,
-46,
-13,
121,
-47,
-80,
79,
-10,
-41,
72,
52,
-62,
85,
-90,
2,
117,
92,
-50,
-91,
-87,
96,
-47,
0,
50,
59,
48,
79,
113,
14,
-13,
40,
16,
-58,
-119,
44,
-21,
63,
80,
-16,
122,
-115,
-33,
54,
-96,
102,
-100,
-121,
-8,
62,
-104,
-79,
24,
-24,
115,
-90,
-60,
116,
15,
-85,
40,
34,
98,
3,
37,
-21,
-24,
24,
15,
-6,
-115,
-90,
-112,
88,
34,
64,
-65,
-99,
50,
20,
6,
-10,
-26,
-107,
89,
44,
2,
-53,
-74,
-127,
13,
108,
-110,
27,
-53,
-63,
49,
100,
-51,
-78,
92,
7,
126,
31,
-113,
-111
]
|
The opinion of the court was delivered by
Smith, J.:
This was an action for damages to real estate caused by the seepage of salt water, thereby ruining the water supply on the real estate. Judgment was for plaintiff. Defendants appeal.
Many of the facts were agreed to. - Briefly they are as follows: In August, 1928, an oil and gas well was drilled near the -town of Valley Center, approximately eight miles north of the city of Wichita. This well and later developments made in the field were located near and on the banks of the Little Arkansas river. As soon as the discovery well was found to be a producer an intensive drilling campaign started in the Valley Center oil field. A short time after the wells had been drilled they began producing salt water, as well as oil from the same wells. This condition caused various companies to place at each well what is known as settling tanks. The oil and salt water coming from the well was pumped into the tank. The tank had two outlets, one located above the other. The fluid coming from the well was kept at such a level that the oil passed out at the upper opening and the salt water at the lower opening. At' each location, or at each well, the companies constructed a concrete pit, into which the salt water from the settling tank was emptied. Oil was discovered at Valley Center, a few miles north of the city of Wichita, in August, 1928. ■ The Little Arkansas river runs through the center of this field and flows south through the city of Wichita to a junction with the Big Arkansas river, near the center of the city. Near this junction the water supply of the city is obtained. Before reaching this junction the river flows through approximately two hundred acres of city-park property. About three-quarters of a mile east of the Little Arkansas river, at Twenty-first street, is located the heavy industrial district, with packing houses, refineries, railroad shops, stockyards, etc. Running in a southeasterly direction from this industrial district is an open sewer of the city, known as the Wichita drainage canal, originally constructed about 1908 and widened in 1925. This drainage canal empties into the Big Arkansas river south of the city limits of Wichita. Just above Eighteenth street t-his open drainage canal divides, the center branch running north, a branch running northeast to the city limits, referred to as the east branch, and a branch extending to the northwest, referred to as the west branch. This west branch passes by the packing houses, crossing Lawrence street at about Twenty-fourth street and continuing northwest to the city limits at about Twenty-seventh street. This drainage canal is sometimes referred to as Chisholm creek. About 1920 an inclosed concrete sewer was constructed through the city of Wichita, commencing at approximately Twenty-fourth street and Lawrence avenue and having its outlet in the Big Arkansas river south of the city limits. This was known as the Wichita sanitary sewer, its only outlet being in the big river south of the city.
Soon after the discovery well was drilled a representative of the city commission advised the oil companies in the field that salt water might be produced, and that if it was the city-water supply would be endangered and the park system damaged. The oil com panies were advised that action would be taken by the city unless satisfactory arrangements were made to take care of the salt water.
The result of this correspondence and these conferences was that the city demanded that the oil companies bring their salt water to the city of Wichita and turn it into the sewer system of the city of Wichita for conveyance through the city to the big river south of the city. As evidence of this agreement the city passed an ordinance giving the Gypsy Oil Company a revocable permit to construct a pipe line to a designated point in the city, and granting to the company the right to connect this pipe line with the sewer system, and to empty salt water into the sewer. This right was granted by the city upon condition that the pipe should be attached to the sewer in a workmanlike manner, and that “said grantee shall at all times have a properly connected line into Chisholm creek with suitable valves for an emergency discharge into said, creek, and shall operate said emergency discharge in accordance with the instructions of the city.” The city reserved the right to revoke the permit and to pass and enforce any reasonable regulations necessary to control of the pipe. The Continental Oil Company succeeded the Gypsy Oil Company.
Following the passage of the ordinance and acceptance by the oil companies a pipe line was constructed from the Valley Center oil field and connected with the Wichita sanitary sewer at Twenty-third and Lawrence streets. This sewer is an inclosed, concrete sewer running completely through the city. Pursuant to the ordinance an emergency outlet was also constructed at approximately Twenty-fourth street and Lawrence and connected with the Wichita drainage canal. This emergency outlet was so arranged that the salt water could be turned into the west branch of the drainage canal at the option of the city. The operation of each of these outlets was at all times under the control of the city of Wichita. The city of Wichita kept the keys to the gates and regulated' the flow of salt water either into the city sewer or through the emergency outlet at its own convenience and in the manner in which the city deemed advisable.
At the beginning of December, 1930, the emergency outlet of the salt-water line from Valley Center was extended from its original location at approximately Twenty-first street, and the Wichita sanitary sewer to a location at Twenty-first, and the east branch of the Wichita sewer system, known as the Wichita drainage canal, at which point the emergency outlet remained until in the month of April, 1931, when at the instance and request and upon the demand of the city of Wichita at that time the emergency outlet was carried farther south and discharged at a point in the east branch of the sewer system, known as the Wichita drainage canal, at approximately Nineteenth street, where it remained until some time in April, 1933. The emergency outlets were constructed in each instance at the request of the city and at locations designated by the city.
The arrangement entered into with the city of Wichita in the first instance was that the city of Wichita would carry this salt water through its sanitary sewer system except when the city deemed it advisable to turn the salt water into' the open drainage canal for flushing purposes. It was the understanding that they were carrying this water through the sanitary sewer system except in a case of emergency, or except when they found it necessary to divert it into the drainage canal for the purpose of further flushing the drainage canal.
The water was emptied into the canal from July 15, 1929, until August 15, 1929; from September 15, 1929, to February 15, 1931; from March 15, 1931, to March 20, 1931; and from April 26, 1931, until April 7, 1933.
The oil companies pumped through their salt-water line about 24,000,000 barrels of salt water. In 1930 they pumped 5,500,000; in 1931, 7,000,000 barrels; in 1932, 6,000,000. Nearly all that was pumped in 1931 and 1932 was put into the drainage canal.
The property owned by the plaintiff, and which she claims was damaged, is located immediately south of Twenty-first street and about 250 feet south and west of the point where the salt water was discharged into the drainage canal.
The terrain here is level. About four feet of black soil forms the surface structure, eight or ten feet of clay lies under that, and under the clay is sand. About twelve or fourteen feet under the surface of the ground is pure sand. At a depth of about twenty-one or twenty-two feet water is encountered. At a depth of about forty-eight feet shale is found. The Wichita drainage canal is bottomed in sand and is between sixteen and twenty feet deep. City water is not available in this section and the people depend upon wells for their water supply.
The petition alleged the general situation about as we have given it here. The petition then alleged that by means of the pipe line spoken of the oil companies emptied their salt water into the drainage canal and that by reason of the nature of the soil the salt water percolated into and under plaintiff’s property. The petition alleged the location of the well, and that before the happening of the events pleaded the water in the well was pure and wholesome, and that, by reason of the salt water being so discharged, the water allowed to pass into the canal had percolated into the ground and into the water supply in which her well is located, and has poisoned and ruined her water to such an extent that it is unfit for any use whatever, “and that by reason of the acts of the defendants in so conducting said water from the town of Greenwich to the point above described and there discharging the same into said ditch, together with the acts of the other defendants as hereinafter set out, have caused this plaintiff great damage; that said injury is permanent.”
The petition did not make any allegations of negligence. The defendants answered with a general denial and an allegation pleading the statute of limitations. The answer further set out the facts with reference to the location of the sewers and the land of plaintiff; that the drainage canal is a part of the sewer system of the city, and was at all times under the control of the city; that many industrial firms had been depositing their sewage in the canal for years, and that if plaintiff had suffered the damage claimed it was not caused by defendant, but was caused by pollution escaping from the canal in the course of its operation by the city, and this pollution had been deposited there by these firms independently of each other and of defendant. The answer further alleged the facts about as they have been detailed here with reference to the oil field, the park system of the city, the passage of the ordinance, the laying of the pipe line and the changing of the locations of the outlets. The answer alleged that there never was a break in the pipe line maintained by the defendant, and that no salt water escaped from the pipe except into the canal in the manner and at the place where ■the city directed defendant to place it. The answer further alleged “that if any damage has resulted from said salt water in the form and manner as alleged in plaintiff’s petition, which this defendant denies, that the same did not result from any lack or want of care on the part of this defendant in the operation of said pipe line, nor did it result from any acts of this defendant in disposing of said salt water for its own convenience, but only resulted after the same had passed beyond the control of the defendant and after the same, under the orders of the city of Wichita, had been turned into the public sewer of said city known as the Wichita drainage canal, located upon the property and land belonging to said city, and if any damage resulted from said salt water, which this defendant denies, the same resulted from the improper construction, operation or maintenance of said .sewer by the city of Wichita, or by and through the failure of the city to properly handle said salt water through its sewer system after the defendant had been directed to place the same therein by said city.”
The answer further alleged that if the damage occurred it had occurred as a result of the operations of the canal long prior to the time when defendant made any use of it.
The answer further alleged that plaintiff knew, or should have known, of the manner in which the canal was being operated and that it might, in dry times, cause a pollution of the substrata, but that plaintiff made no objection to the use to which the canal was being put, and by such failure is estopped to claim that damage, if any, has resulted.
Trial was before the jury. A verdict for plaintiff in the amount of $500 was returned. This was reduced, on motion, to $300, and judgment rendered accordingly. It is from this judgment that defendant appeals.
Many errors are urged by defendants. The one most seriously argued is that the court erred in failing to sustain a demurrer to the evidence of plaintiff and in failing to instruct the jury to return a verdict for defendant.
It will be noted that there is very little dispute in this case except as concerns the water entering the canal. The theory of defendants is that when they connected their pipe line with the sewer system of the city that all duty with reference to the salt water ceased, or, stated in another way, the proximate cause of the damage to the property of plaintiff was not any act of defendants, but was an act of the city in turning the salt water into the canal instead of into the inclosed sewer. An answer to one proposition will answer the other.
The rule is well settled that an individual who sustains an injury peculiar to himself may have relief against a public nuisance and is entitled to maintain an action at law for damages on account of the special injury which he has sustained. (46 C. J. 730; Marts v. Freeman, 91 Kan. 106, 136 Pac. 943, and cases cited.) There is no question but that in this case the petition alleged and proved special damages, different from that suffered by the general public, sufficient to entitle plaintiff to bring this action under the above well-recognized rule.
It is well settled in this state that where a water supply is damaged by salt water percolating through the soil and impregnating it with salt so that the water is rendered unfit for use, the owner of the land may maintain an action for damages against the owner of the land from whose land the salt water escaped. (Gilmore v. Salt Co., 84 Kan. 729, 115 Pac. 541; Hall v. Galey, 126 Kan. 699, 271 Pac. 319.)
No less well established than these two rules is the one that — •
“The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to Iris own property, but which he knows to be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.”
The above language is from the case of Fletcher v. Rylands, L. R. 1 Exch. 263. The quotation is contained in Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208. The court in that case held:
“If the owner of a refinery permits oil, refuse and poisonous substances in large quantities to escape from the refinery and flow over and upon the land of his neighbor, causing material injury to the neighbor, the use of the rej finery will be deemed to be unreasonable and to constitute a nuisance.
“The fact that the business of the refinery is in itself a lawful one, and that the owner of it operates it carefully, will not exempt him from liability for casting oil, refuse and poisonous substances on the land of the plaintiff in such quantities as to cause him substantial injury.” (Syl. ¶¶ 1, 2.)
To the same effect is Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052; Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788; and Gilmore v. Salt Co., supra.
There is ample proof in this case that the oil companies soon after the development of the field found themselves overburdened with salt water. This salt water had been harmless as long as it was left in the ground, but once it was raised to the surface of the earth it became a harmful agent. Salt water ruins drinking water and de stroys vegetation. The problem of what to do with it has long been a perplexing one here in the Midcontinent field. Be that as it may, the company has brought something on its own property which was not naturally there, harmless to others so long as it is confined to its own property, but which it knows to be mischievous if it gets on its neighbors. There is a statute in this state which deals with this subject. It is R. S. 55-121 and is as follows:
“It shall be unlawful for any person, having possession or control of any well drilled, or being drilled, for oil or gas, either as contractor, owner, lessee, agent or manager, or in any other capacity, to permit salt water, oil or refuse from any such well, to escape upon the ground and flow away from the immediate vicinity of such well, and it shall be the duty of any such person to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof: Provided, however, That this act shall not be construed to apply to the escape of salt water, oil or refuse because of circumstances beyond the control of the person in the possession or control of such well and under circumstances which could not have been reasonably anticipated and guarded against.”
The statute has been held constitutional in State v. Lebow, 128 Kan. 715, 280 Pac. 773. It will be seen that this statute directs the companies to keep their salt water in the vicinity of the well. Such a statute was not needed, however, to make the oil companies liable for damages caused by the escape of salt water from the premises of the company. This has been the law ever since the case of Fletcher v. Rylands, supra. The statute only made it possible that the companies could be compelled to keep the salt water confined without waiting for any person to be damaged.
It must be remembered that negligence is not a necessary element of the right of recovery in a case like this. The right to recover results from the company having the harmful substance on its land and permitting it to escape to the damage of plaintiff.
The arrangement between the city and the oil companies was not that of one who contracts to perform a certain duty. The city owed no duty to the oil company nor did the oil company owe any duty to the city except to keep its salt water confined on its own property. An examination of the ordinance will disclose that the city did not agree to do anything whatever with the salt water of the companies. The most that can be said is that the city gave the oil companies the use of sewer facilities for the purpose of carrying off the salt water. The relationship between the oil companies and the city is not that of employer and employee, nor is the city’s position that of a contractor who has agreed to perform a certain work. The oil companies started the chain of circumstances that caused the damage to plaintiff when they laid the pipe line to the sewer system of the city. When the salt water once left the vicinity of the oil wells the companies became liable for whatever damage should flow from its escape. The fact that the companies put it in the power of the city to so direct the flow of the salt water that damage resulted does not excuse them. Even if the liability sprang from negligence, which it does not, the rule would probably not be different. See Harper on Torts, § 115 et seq. The liability, however, springs from the fact that the companies had salt water on their property and permitted it to escap'e’.TWe are aware of the fact that such aU ruling places a great burden on the oil industry. It is, however, no new principle which we are announcing. It is as old as the industry of man: We consider that the water supply of the people is of greater importance than the operation of a business at a reduced cost.'] 'In a vigorous brief counsel for defendants state:
“The first question in the case is, what did these defendants do? Did their acts create a nuisance? Did the acts of these defendants violate any rule of law which protects the plaintiff?”
The answer to the first question is, they permitted their salt water to escape. The answer to the second question is “yes.” See Fletcher v. Rylands, supra, and allied cases. The answer to the third question is “Yes, they permitted the salt water produced on their land to escape therefrom.” This violated their common-law duty, as ■well as the statute. Counsel argues that the action of the oil companies was taken pursuant to a demand of the city. The companies argue that it was the city’s plan. The city had no power to force any plan upon the oil companies. There was no duty on the oil companies to bring their salt water to the city sewer system. The only duty the oil companies owed anyone was to keep the salt water on their own premises, or, if it escaped, to so dispose of it as not to cause damage to any person. Defendants cite many cases holding that where there is an intervening cause to which the damage can be traced the person responsible for the remote cause will not be held liable. The cases are not in point here because they all deal with negligence. In this case negligence is not an' element.
Defendants argue that the court erred in failing to permit counsel for defendants to argue to the jury the question of proximate cause and that the acts of the city, not defendants, were the cause of the damage. This argument was based on the idea that has just been dealt with in this opinion and does not merit further consideration. Defendants asked that the following instruction be given:
“You are instructed that before plaintiff can recover in this case he must prove by a preponderance of the evidence that the acts of the defendants, or one or more of them, in transporting the salt water from Valley Center and delivering the same to the Wichita sewer system was the proximate cause of the injury, if any, sustained by plaintiff.”
This instruction was refused, and, to cover the point, the court gave the following two instructions:
“Before plaintiff can recover she must prove by a preponderance of the evidence that the acts of the defendants, or one or more of them, in transporting and discharging the salt water alleged in the pleadings' and described and designated in the testimony, was the proximate cause of the damage alleged by plaintiff.
“Proximate cause of injury is that cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury complained of, and that without such proximate cause the result, to wit, the pollution of plaintiff’s well and the water under her premises, would not have occurred.”
The defendant also requested the following instruction:
“You are instructed that if you find from the evidence in this case the city of Wichita, in order to protect the public health and public property of said city, entered into the agreement with the Gypsy Oil Company, its successors and assigns, as shown by ordinance 10-196 of said city, then and in that event it became the duty of the city of Wichita to so maintain and regulate its sewer and drainage system so that no nuisance would be caused by the transportation of salt water and other oil-field refuse by either of said systems; and if you further find that plaintiff was injured by a failure of the city of Wichita to perform its duty in this regard, your verdict must be for the defendants and each of them.
“You are instructed that in a case of this character, involving damage to the plaintiff’s property from the pollution of the underground waters thereunder by reason of salt water seeping or percolating into the same from the Wichita drainage canal, the plaintiff must establish by a preponderance of the evidence that the salt water seeping from said drainage canal not only caused or contributed to the damage in question, if any, but that the salt water passing into the drainage canal in question was the proximate result of the act or acts of one or all of the defendants herein named. So, therefore, if you find from the evidence submitted in this case that pursuant to the terms of ordinance 10-196 of the city of Wichita that the act or acts of the defendants, or any of them, was limited merely to connecting their salt-water line with an inclosed tile sewer, which would carry the salt water through and under the city of Wichita, and in providing an emergency outlet only into the drainage canal at the place or places designated by the officials of the city of Wichita,"and that thereafter any salt water finding its way into the drainage canal was due to the act or acts of the officials, agents, servants or employees of the city of Wichita in so regulating the valves that the said salt water would be so diverted from the sanitary sewer into the drainage canal, and that the defendant or defendants at no time had any control over or did not manipulate in any way said valves causing such diversion of salt water, then your verdict shall be for the defendants and against the plaintiff.”
Instead, the court gave the following instruction:
“It was the duty of the defendant companies to dispose of the salt water without injuring any other parties. If in disposing of said salt water the defendants saw fit to bring it to the city and use the facilities of the city for carrying the said salt water on farther south, the mere fact that the defendants had a contract with the city for said services does not in the least enter into the merits of this action as between the plaintiff and said defendants for the alleged injury arising from pollution of plaintiff’s well by said salt water, if you find that to be a fact.”
Defendants argue that the failure to give the instruction asked for and the giving of the ones that were given was error. The argument is based entirely on the question that has heretofore been considered and decided in this case.
The defendant requested the following instruction:
“You are instructed that where the acts of a person, or group of persons, are merely passive and a nuisance is created and maintained by the active operations of an independent or third person, over whom such passive persons have no supervision or control, before the owner of property injured by the creation and maintenance of such nuisance may recover from the parties who are passive only, such owner must bring to the notice of such passive parties notice of his injury and request the abatement of the nuisance causing damage to him.
“As applied to the facts of the instant case, you are told that if you find a nuisance was created by the city of Wichita, permitting pollutive substances to escape from its custody, and thereby injured the water supply of plaintiff, and that the Continental Oil Company and those associated with it merely delivered the salt and mineralized water to the city and did not permit such substances to escape while same were under their control or custody, then and in that event the plaintiff cannot recover as against the Continental Oil Company or its associates, unless you find from the evidence that the plaintiff gave Dotice to the Continental Oil Company and its associates of the circumstances of such nuisance and requested an abatement of same.”
This was refused. Defendants urge that as error. The instruction and cases supporting it are not in point here. This is not a case where the oil companies passively continued a nuisance. The nuisance was permitting the salt water to escape. There was nothing passive about it. The same may be said with reference to the special questions which defendants sought to submit to the jury.
Defendants requested the following instruction:
“If you find from the evidence that the defendants, and each of them, have discontinued the acts complained of by the plaintiff prior to the time of the trial herein and are now disposing of the alleged salt and mineralized water by draining same through steel casing and inclosed tile sewers into the Arkansas river, and that none of said salt and mineralized water can escape therefrom and that such salt water as is so carried does not and cannot affect the underground waters of plaintiff’s water supply, and that such damage, if any, is not of a permanent nature, then your verdict must be for the defendants.”
This was refused. Instead the court gave the following instruction:
“If you find for the plaintiff, then you will allow her an amount of money as compensation for the injury which she has suffered by way of loss or damage to her said real property as a direct result of the acts of the defendants. In determining the amount you will allow you will take the difference between a fair and reasonable market value of her property just prior to the pollution of the water thereunder, and the fair and reasonable market value of the property immediately after such pollution. Along with such consideration you should determine whether or not such pollution is permanent or temporary in nature and character.”
Along with the argument on these instructions defendants point out the following question that was answered by the jury: Do you find that the waters underlying plaintiff’s property are percolating or moving waters? If so, then state the direction of the flow. The answer was “southwest.” Defendants argue from this that the injury to the real estate of plaintiff was only temporary and that since plaintiff sued for permanent damages she should not recover for temporary damage. This court has held that proof that damage to real estate would continue for an indefinite time was sufficient to support a judgment for permanent damages. (See Hall v. Galey, supra.) The evidence in this case was that the water in plaintiff’s well had been sweet and wholesome and fit for drinking purposes, and that since the salt water had been allowed to flow into the canal it has become salty, has an oily scum and is altogether unfit for use for any purpose whatever. This court is not prepared to say that when the substrata has once become saturated with salt from an oil well the water moving through it will cleanse it so that the water in the well will become pure again. The evidence on this point is too vague. We doubt if anybody knows. We think the instructions correctly state the law.
The judgment of the trial court is affirmed. | [
-16,
106,
-76,
108,
8,
-32,
56,
-37,
73,
-71,
-27,
83,
-51,
-53,
12,
109,
-57,
121,
116,
105,
-41,
-78,
1,
-44,
-46,
-13,
121,
-49,
-70,
125,
-12,
-41,
76,
32,
-54,
-107,
-58,
-128,
-57,
-36,
-50,
-123,
-120,
109,
-35,
2,
54,
107,
38,
3,
117,
-83,
-14,
41,
29,
-29,
-115,
60,
-33,
46,
83,
-15,
74,
-106,
-3,
20,
33,
102,
-102,
-57,
-22,
58,
-48,
-79,
8,
-84,
115,
-90,
-58,
116,
15,
-117,
44,
-16,
98,
43,
53,
-21,
-24,
8,
15,
-33,
-115,
-90,
-80,
88,
98,
97,
-65,
-99,
124,
0,
7,
126,
-18,
-91,
91,
44,
3,
-114,
-42,
-95,
7,
-71,
-103,
19,
-21,
-121,
32,
100,
-51,
-86,
92,
71,
112,
-97,
15,
-104
]
|
The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the district court overruling a motion to dismiss a claim against the estate of a decedent, the probate court having sustained the motion and claimant having appealed to the district court.
The record discloses facts as follows: A. W. Shulthis died intestate December 29, 1922. On January 6, 1923, appellants were appointed administrators of his estate and duly qualified and published notice of their appointment. On June 24, 1933, the appellee, Henry Miller, filed his claim against the estate by duly exhibiting his demand in writing. This recited in substance that for many years claimant owned a certain described forty-acre tract of valuable land, and other land adjoining it, situated in the Verdigris river bottom; that A. W. Shulthis, in his lifetime, and his estate since his death, owned land east of claimant’s land and between that and the river; that prior to 1917 there was a natural watercourse leading from claimant’s land onto and across the Shulthis land to the river, which was a sufficient drain for claimant’s land; that there is a public road along the east side of plaintiff’s land turning west at the southeast corner thereof; that sometime in 1917 Shulthis, desiring to improve his land by closing the watercourse across it, proposed to claimant that he would construct a ditch west of the road along the east side of claimant’s land to the southeast corner thereof, thence southward across intervening lands to the river; that there upon claimant and Shulthis entered into an oral agreement that claimant would permit the natural watercourse east of his land to be closed, and that Shulthis would complete such a drain along the east side of claimant’s land and south to the rvier so as to drain claimant’s land and keep it drained as well as it had been originally, and in the event of the death of Shulthis such drainage would be completed and maintained by his estate or personal representatives; that about two years after the improvements had been made the ditch was found to be insufficient, and Shulthis made further improvements thereon from time to time until his death; that thereafter his administrators told claimant on behalf of the estate that they would complete the drainage of claimant’s land according to the agreement by him with Shulthis, and employed men to try to do so from time to time until September 11, 1931, on which date such administrators entered into an agreement with claimant in writing, a copy of which was attached to the claim or demand against the estate; that thereafter Shulthis’ administrators did some work on the project, but the same was altogether insufficient; that on June 19, 1933, claimant orally demanded of the administrators that they proceed to complete the original contract by draining his land and place it in as good condition as before the natural watercourse was closed, and that the administrators refused to recognize such an agreement, and breached the same. Claimant alleged if the agreement had not been broken sixty acres of his land would have been worth $100 per acre, but because of such breach is worth not more than $25 per acre, and that it would cost claimant $4,500 to complete the drainage which Shulthis had agreed to make; that by reason of the breach of the agreement he was damaged in the sum of $4,500, and asked that his claim in that amount be allowed against the estate. The agreement of September 11, 1931, a copy of which is attached to the claim and demand, was between this claimant as party of the first part and E. Sewell and C. E. Stewart, administrators of the estate of A. W. Shulthis, deceased, as second parties. It provided that in consideration of second parties making certain improvements stated therein first party waived all claims, present and future, for damages to his land or personal property caused by the condition of the drainage from lands of second parties, or the drainage done or maintained by them, as long as second parties performed the promises specified; the promises specified were that the second parties would divert, except in time of high water, the water from the ditch on the south side of claimant’s forty-acre tract into the west half of the bridge at the crossroads at the southeast corner of the tract by building a concrete wall at a place stated, also would widen, maintain and keep open the north- and-south ditch along the east side of claimant’s forty-acre tract from a certain flume to the crossroads, and keep the ditch in such shape that there will be a free passage of waters from the flume, except in times of high water.
When this claim was presented to the probate court the administrators moved to dismiss it for the reasons, (1) that the court had no jurisdiction, and (2) the time for filing claims against the estate had expired. The probate court sustained the motion. The claimant appealed to the district court, where the motion was overruled.
We need only to pass upon the question as to whether the claim filed June 29, 1933, more than ten years after the administrators were appointed, was presented in time. The statute in force at the time of the death of A. W. Shulthis (R. S. 22-702), with certain exceptions not here important, required all claims or demands against an estate to be exhibited within two years (the time is now one year, R. S. 1933 Supp. 22-702), unless the claim was one which accrued later (R. S. 22-729). Now, what is Miller’s claim he seeks to have allowed here? It is that in 1917 Shulthis orally agreed with him to construct and maintain drainage for Miller’s land, in consideration of which Miller agreed that Shulthis might close the natural watercourse; that Shulthis never carried out his agreement, although he lived five years after the agreement was made; that the agreement never has been carried out, but has been breached; that as a result of this breach his land has depreciated $75 an acre in value, and that it would cost claimant $4,500 to do what Shulthis agreed, but failed, to do. We see no reason why a claim of that kind could not have been filed directly after the administrators were appointed. The allegation in the claim that Shulthis agreed that in case of his death the work would be completed and maintained by his estate or personal representatives also was breached by the death, intestate, of Shulthis. The only way Shulthis could bind his personal representatives to do this work would be by a will directing his executors to do it. He left no will. Hence, the breach of the agreement was complete and Miller could have filed his claim at once.
Claims against an estate not presented to the probate court within the time provided by statute are “forever barred.” The statute (R. S. 22-702) so provides, and such are our decisions. (McDaniel v. Putnam, 100 Kan. 550, 553,164 Pac. 1167; Clark v. Eaton, 109 Kan. 574, 576, 201 Pac. 71; Loveland v. Hemphill, 122 Kan. 577, 584, 253 Pac. 606; Emanuel Home v. Bergin, 127 Kan. 593, 274 Pac. 284; Forrester v. Falkenstien, 129 Kan. 485, 283 Pac. 623.)
The action alleged to have been taken by the administrators, and the contract of September 11, 1931, alleged to have been executed by them, did not toll the time of filing claim, or otherwise affect the matter. When A. W. Shulthis died intestate his real property passed to his heirs (R. S. 22-108; 22-118). The administrators had nothing to do with it, unless it was necessary to pay debts of the estate as provided by R. S. 22-801. (See Lindholm v. Nelson, 125 Kan. 223, 229, 264 Pac. 50, and cases there cited.) The administrators as such had no authority to spend any money on the real property nor to make any contracts concerning it. The claim in question, however, is not founded on any agreement between claimant and the administrators. If it were it would not be well founded, for it is well settled an estate cannot be held liable for the promise of an administrator, which promise he had no legal authority to make. (Brown v. Evans, 15 Kan. 88.)
The result is, the judgment of the trial court must be reversed, with directions to sustain the motion to dismiss. It is so ordered. | [
-16,
108,
-36,
31,
42,
-32,
10,
-40,
121,
-93,
37,
119,
47,
-37,
24,
103,
-13,
13,
-16,
107,
-42,
-93,
86,
-126,
83,
-13,
-13,
-35,
-71,
-4,
-28,
79,
76,
36,
-62,
-107,
-26,
-62,
-59,
-48,
6,
17,
-119,
-27,
-39,
112,
50,
43,
118,
79,
117,
-66,
-13,
40,
29,
-29,
-120,
60,
-5,
-96,
64,
-88,
-114,
-114,
91,
21,
48,
-26,
-104,
-125,
72,
10,
-112,
113,
-128,
-20,
51,
-74,
-106,
116,
75,
-103,
8,
114,
67,
18,
-27,
-17,
-96,
-104,
14,
-6,
-115,
-90,
82,
24,
-56,
96,
-76,
-99,
121,
80,
-89,
118,
-2,
-107,
95,
44,
3,
-113,
-106,
-79,
-125,
-72,
-116,
-125,
-37,
1,
48,
112,
-49,
-94,
92,
99,
113,
27,
7,
-102
]
|
The opinion of the court was delivered by
Harvey, J.:
This is an action against a former county treasurer and the surety on her bond. The trial court sustained a demurrer to the petition. Plaintiff has appealed. The principal legal question presented is the application of the statute of limitations.
The petition, filed September 30, 1933, in the name of the state, on the relation of the county attorney, alleged in substance that at the general election in 1926 the defendant, Minnie McKay, was elected county treasurer of Cloud county; that she duly qualified and entered upon the duties of that office on the second Tuesday in October, 1927; that as such officer she received from her predecessor a sum named which, with moneys she collected and received during her term of office for taxes, fees and charges which as county treasurer it was her duty to collect and receive, made a total of $2,086,-611.18, which moneys belonged to the state, county and the several taxing districts in the county; that of this total sum she neglected and refused to pay over to her successor in office, at the close of her term on the second Tuesday in October, 1929, the sum of $8,365.81, as it was her duty to do, and since that time has not accounted for that sum or paid it over to anyone entitled to receive it, but has wrongfully and fraudulently retained it for her own use; that she fraudulently concealed her misappropriations of this sum by failing to make entries on the books of her office of moneys received and disbursed, and by making false entries in such books and in her reports, by reason of which plaintiff had no knowledge of such wrongful acts until August 31, 1933; that in qualifying for the office she gave bond unto the state of Kansas, in the sum of $50,000, with the American Surety Company, as surety, conditioned:
“. . . that if the said Minnie McKay and her deputies shall pay according to law, all money which shall come to her hands as treasurer, and will render a just and true account thereof, whenever required by the law, and shall deliver over to her successors in office, or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining thereto or belonging to her said office, then the above obligation to be void. . . .”
By an amendment to the petition, filed December 23, 1933, it is alleged that certain false entries, statements and reports made by Minnie McKay on various dates, from December 18, 1928, to October 8, 1929, fraudulently concealed the embezzlement and conversion to her own use of the sum of $8,365.81, previously mentioned. The prayer was for judgment against both defendants for $8,365.-81, with interest at six per cent since October 12,1929, and for costs.
Appellant first presents the question whether any statute of limitation can be invoked by defendants, since the bond sued on runs “unto the state of Kansas,” and the action is brought by the state on the relation of the county attorney, in view of the general rule that statutes of limitation do not run against the state unless it is clear it was intended they should do so. (State v. School District, 34 Kan. 237, 8 Pac. 208; Horton v. Jones, 110 Kan. 540, 542, 204 Pac. 1001; State, ex rel., v. Paul and Grice, 113 Kan. 412, 214 Pac. 245; Sedgwick County Comm’rs v. Conners, 121 Kan. 105, 245 Pac. 1030; State v. Zimmerman, 121 Kan. 346, 347, 246 Pac. 516; Colver v. Miller, 127 Kan. 72, 272 Pac. 106; Nemaha County Comm’rs v. City of Seneca, 138 Kan. 895, 28 P. 2d 1034.)
Two answers may be made to this question: (1) Here the state is the nominal party only, for the reason that the statute requires the bond to run unto the state of Kansas (R. S. 19-501). An action may be brought on the bond in the name of the state for the benefit of the county and the several taxing districts therein (Comm’rs of Harvey Co. v. Munger, 24 Kan. 205, 208, 209), although the county, or any of the several taxing units therein, might sue for default specifically affecting it (id.). Our statutes relating to state taxes and the obligations and liabilities of counties respecting them, which statutes are collected and commented upon in Clay County Comm’rs v. French, 139 Kan. 815, 817, 33 P. 2d 312, make it clear the state has no real financial interest in the matter. In an action such as this against the county treasurer and the surety on his bond the state acts for the benefit of the county and the taxing districts therein specifically affected by the defalcation of the county treasurer. In determining whether the statutes of limitation are applicable the court will look through the form of the proceeding to the real party in interest (Horton v. Jones, supra; Glathart v. Madden, 122 Kan. 563, 570-573, 253 Pac. 426). (2) The legislature, by statute (R. S. 60-306, fifth clause), has provided a limitation for actions on bonds of this character. This precludes the view that no statute of limitations is applicable. Clearly the legislature intended the appropriate statute of limitations to run on official bonds, even though by statute the state is named as obligee therein.
The next question argued is: What statute of limitations is applicable? R. S. 60-306, fifth clause, provides that an action on an official bond can only be brought within five years after the cause of action shall have accrued. This is the maximum time for bringing such an action. But the action may be barred by some of the other provisions of the statute, for they must be construed together. The bond does not give the cause of action; it simply furnishes security to those who suffer for the wrongs or delicts of the officer, the principal on the bond. It is these wrongs or delicts of the officer which constitute the basis for cause of action. We look to those to see the time within which the action must be brought against the officer. When the action is barred as to the officer, it is barred as to his surety, for the bond being security only for the officer’s conduct, when time has elapsed so the officer cannot be sued no action can be maintained on the bond. All this is well settled by our former decisions.
(Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; Comm’rs of Graham Co. v. Van Slyck, 52 Kan. 622, 35 Pac. 299; Davis v. Clark, 58 Kan. 454, 49 Pac. 665; City of Topeka v. Ritchie, 102 Kan. 384, 388, 170 Pac. 1003.)
Now the wrong or delict of the county treasurer, which by the petition is the foundation of this action, was her failure to pay to her successor in office the full amount she should have paid. The petition and its amendment allege inaccuracies in keeping the books and making reports. Whatever these were, and whatever the motive which prompted them, they would not have formed the basis of a civil action against the treasurer or her surety if, notwithstanding them, she had paid over to her successor all that should have been paid. The failure to do this is what hurt, and it is the one wrong or delict of the treasurer which furnishes the basis for this action. The statute (R. S. 19-513) requires the treasurer, upon the termination of his office, to deliver to his successor “all the books and papers belonging to his office, and all moneys in his hands by virtue of his office.” The petition alleges the treasurer failed to perform that duty. The civil liability is one created by statute, and the three-year statute of limitations (R. S. 60-306, last part, second clause) applies.
(Comm’rs of Graham Co. v. Van Slyck, supra; Davis v. Clark, supra; Cloud County v. Hostetler, 6 Kan. App. 286; Hawk v. Sayler, 83 Kan. 775, 112 Pac. 602; Pretzel v. Fiss, 84 Kan. 720, 115 Pac. 536; Donley v. Goll, 132 Kan. 746, 297 Pac. 426.)
Appellant realizes the force of rules of law as stated and applied in the above cases, but contends they do not apply here because of the allegations in the petition of fraud and concealment on the part of the county treasurer, and argues this is an action for relief on the ground of fraud, which may be brought within two years after the fraud is discovered (R. S. 60-306, last portion, third clause). The trouble with this argument is that the action is not one “for relief on the ground of fraud.” As above pointed out, the fraud al leged would have given no basis for the action if the treasurer had paid the proper amount of money to her successor. This provision of our statute of limitations is applicable only when relief is asked because of the fraud. (Stinson v. Aultman, 54 Kan. 537, 38 Pac. 788.) The statute “only applies when the party against whom the bar of the statute is interposed is required to allege fraud in pleading his cause of action or to prove fraud to entitle him to relief.” (Dassler’s Kansas Civil Code, § 70.) Here, if there had been no fraud, the failure to pay to the successor would have afforded the same basis for the action as now exists. This cause of action existed irrespective of whether there were allegations of fraud. Under this situation the allegations of fraud and concealment made in the petition constitute matters of inducement leading up to the real defalcation of the officer which formed the basis of this action, namely, the failure to pay the full amount to her successor. (Hawk v. Sayler, supra.) Our statutes do not make concealment one of the grounds for tolling the statute of limitations. Perhaps that should be done, but it is the function of the legislature and not of the courts to do it. (Railway Co. v. Grain Co., 68 Kan. 585, 587, 589, 75 Pac. 1051; McAllister v. Fair, 72 Kan. 533, 535, 84 Pac. 112; Baxter v. Krause, 79 Kan. 851, 853, 101 Pac. 407; Caspar v. Lewin, 82 Kan. 604, 627, 109 Pac. 657.)
Concealment does not toll the statute of limitations for an action founded on-contract (Railway Co. v. Grain Co., supra; Pickens v. Campbell, 98 Kan. 518, 522, 159 Pac. 21; Rucker v. Hagar, et al., 117 Kan. 76, 79, 230 Pac. 70), nor for an action founded on liability created by statute (City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P. 2d 807). In the case last cited the pertinent syllabus reads:
“Action on a liability created by statute is barred in three years (R. S. 60-306, second), notwithstanding existence of the cause of action is concealed by the person liable.”
See, also, Regier v. Amerada Petroleum Co., 139 Kan. 117, 181-183, 30 P. 2d 136, where many of the cases above cited are reviewed and followed.
Appellant cites and relies largely on Allen v. State, 6 Kan. App. 915, and McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892. These cases may readily be distinguished from the one before us. In the Allen case it is quite clear from the opinion that all the legal questions involved were not carefully treated, although the conclusion reached may be sustained, in harmony with our opinions, on the ground that the fraud of the county clerk in falsely writing the warrants and getting the money on them was the basis of the civil action to recover the amount so obtained. That cannot be said here. The McMullen case has been distinguished in the only two of our cases in which it has been cited on this point. In Railway Co. v. Grain Co., supra, it was said:
“In that case a fiduciary relation existed between the parties, McMullen being in fact an agent. . . The relation of trust and confidence placed that case in another class. . .” (p. 592.)
It also is distinguished in City of Coffeyville v. Metcalf, supra, where a syllabus is quoted and some of the facts stated (p. 365) which demonstrated its lack of application to the case then being considered. For similar reasons we regard it inapplicable here.
Our attention is called to the fact that some of our decisions herein cited are not in harmony with some decisions from other states having statutes similar to our own, and it is contended there is lack of harmony in our own decisions. As to this last contention, a careful examination of our cases does not disclose serious lack of harmony. It is not deemed necessary to analyze each of them. The lack of harmony in decisions from other states — some of which accord with our own and others taking a somewhat different view— has been noted in some of our cases previously cited. It is sufficient to say that Ryus v. Gruble, supra, was decided in 1884, and Railway Co. v. Grain Co., supra, in 1904. Both cited earlier cases. So, for more than a generation, county and state officials, attorneys and jurists have known the legal principles controlling this case. Within that time the legislature has met repeatedly, yet it has never enacted that the time for bringing an action on contract, or one on liability created by statute, should be tolled by fraud or concealment. Clearly there has been no general recognition of the need of such a statute.
The judgment of the trial court is affirmed. | [
-44,
110,
-40,
-35,
42,
-32,
43,
24,
66,
-95,
-95,
87,
-23,
-54,
4,
125,
123,
109,
101,
120,
-61,
-73,
119,
73,
-110,
-77,
-120,
-41,
-73,
95,
-10,
-41,
8,
48,
10,
-107,
102,
-54,
101,
-36,
-50,
-125,
-119,
-28,
-39,
-56,
48,
99,
98,
14,
-15,
110,
-13,
42,
60,
98,
8,
44,
-21,
-87,
-64,
-31,
-85,
-123,
127,
23,
-111,
69,
-100,
-61,
-24,
-81,
-104,
63,
0,
-24,
114,
-90,
-122,
84,
79,
-87,
44,
-10,
34,
33,
-75,
-17,
-100,
-120,
22,
-9,
29,
-89,
-46,
88,
43,
-88,
-76,
29,
124,
-112,
3,
116,
-28,
5,
95,
108,
2,
-114,
-42,
-109,
15,
52,
-120,
7,
-9,
-95,
50,
97,
-51,
98,
92,
103,
50,
27,
-49,
-8
]
|
The opinion of the court was delivered by
Smith, J.:
This is an action for workmen’s compensation. Judgment was for claimant allowing his claim in part. Claimant and respondent both appeal.
On February 26, 1931, claimant suffered an accidental injury to his left eye. The effect of this injury was to keep his left eye turned in against his nose so that his line of sight is at an acute angle to the right. The right eye was not injured in this accident, but since childhood he has been almost blind in it. As a result of this the examiner found that the only way for claimant to work would be for him to turn his head far to the left so as to see in front of him. He held that this would be out of the question. The examiner there-, fore concluded that claimant did not have such use of his eyes as to enable him to perform labor, and had suffered the loss of the sight of both eyes.
The examiner allowed for total permanent disability, but applied R. S. 1938 Supp. 44-510 (3) (24), which is as follows:
“If a workman has suffered a previous disability and received a later injury, the effects of which together with the previous disability shall result in total permanent disability, then and in that event the compensation due said workman shall be the difference between the amount provided in the schedule of this section for his prior injury and the total sum which would be due said employee for such total disability computed as provided in section 11 of this act, but in no case less than six dollars ($6) per week nor more than eighteen dollars (SIS) per week.”
Applying that section, the award was for 4l5 weeks less 110 weeks or 305 weeks in all. The deduction of 110 weeks was made because that is the award provided for in R. S. 1933 Supp. 44-510 (3) (15) for the loss of the sight of an eye. There is no doubt in this case that claimant had lost the sight of his right eye before the accident occurred that injured his left eye.
This award was appealed by claimant and respondent to the district court, where it was affirmed. No appeal was taken from this judgment.
Acting pursuant to the award, respondent paid compensation to claimant until January 19, 1934. On that date respondent filed a motion for review and modification of the award on the ground that it was excessive and that the incapacity and disability of the claimant had terminated.
To this motion claimant answered denying that the award was excessive or that the disability or incapacity of claimant had changed.
Claimant further answered that on account of the deduction heretofore spoken of the award was inadequate. Claimant asked that the award be modified by adding 110 weeks’ compensation to it.
The examiner denied both applications. Claimant and respondent both appealed to the district court. That court affirmed the award. They both appeal to this court.
The section under which this second proceeding was had is R. S. 1933 Supp. 44-528. It is as follows: . •
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof .agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, and in connection with such review the commission may appoint a physician or surgeon, or two physicians or surgeons to examine the workman and report to the commission and the commission shall hear all competent evidence offered and if it shall find that the award has been obtained by fraud or undue influence, or that the committee, or arbitrator, making the award acted without authority, or was guilty of serious misconduct, or that the award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations hereinbefore provided in this act; and if the commission shall find that the workman has returned to work for the same employer, in whose employ he was injured or for another employer and is earning the same or higher wages than he did at the time of the accident or injury, or is gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the accident or injury, or shall find that the workman has absented himself and continues to absent himself so that a reasonable examination cannot be made of him by a physician or surgeon selected by the employer, or has departed beyond the boundaries of the United States, the commission shall cancel the award and end the compensation: Provided, That the provisions of this section shall not apply to an award of compensation provided for in the schedule of specific injuries in section 10 of this act.”
Respondent argues that the appeal to this court should be dismissed because it was not taken within twenty days after the final order was made by the district court. The argument is that the appeal is really from the order of the district court affirming the award on June 5, 1931. This point is not good. The statute provides that either party may ask for modification of the award on the ground that it was inadequate or that it was excessive or that claimant had recovered. In the proceedings under consideration here claimant claimed the award was inadequate. Respondent claimed that claimant had recovered. The examiner and the district court heard both sides and overruled both. This appeal is from that judgment and is taken in time. The last award of the commission was a new award and the order of the district court affirming it was an appealable order.
Respondent next points out that the evidence it furnished the examiner that the disability of claimant had terminated or diminished was uncontradicted, and on that account the original award should have been modified. The trouble is that the examiner was not able, from the record in this case, nor could the district court say, nor can this court say, that .the disability of the claimant had diminished from what it was when the first award was made because there is no evidence in this record as to what that condition was. Moreover, the examiner and the district court .were not obliged to believe the witnesses who testified for respondent even though their evidence was uncontradicted. (See Sharp v. Losee, 109 Kan. 211, 199 Pac. 94; also Weber Implement & A. Co. v. Dubach, 132 Kan. 309, 295 Pac. 979.)
Claimant argues that the 110 weeks’ compensation should not have been deducted from the award of compensation. In support of this contention claimant relies on the opinion of Moore v. Western Coal and Mining Co., 124 Kan. 214, 257 Pac. 724. In that case this court held that the amount provided to be paid for an injury to an eye where a later injury to the other eye rendered the claimant totally blind could not be deducted from the award for loss of the sight of both eyes. That opinion does not discuss the statute relied on here, and apparently the court did not consider it. In so far as it is not in accord with the views expressed herein, it is overruled. In making the deductions in this case the court followed exactly the provisions of the statute. The evident reason for the provision is well illustrated by a case such as the present one. Here the accident causing the injury did not really injure both eyes. It only injured one eye. The total disability is not on account of the injury alone. It is on account of the injury together with the condition of the other eye, which is not due to the injury at all.
The subject of workmen’s .compensation is entirely a matter of statute. Without a statute there would be no such thing. The statute has provided a rule for cases like this. We hold that the examiner and the trial court made the correct interpretation of it.
The judgment of the trial court is affirmed. | [
-112,
126,
-36,
-99,
26,
96,
42,
-102,
89,
-86,
-89,
-109,
-27,
22,
84,
45,
-27,
45,
81,
107,
-42,
-93,
23,
-69,
-46,
-13,
-5,
-59,
-67,
109,
-10,
-44,
78,
48,
74,
-107,
-26,
-56,
68,
20,
-50,
-123,
-87,
-19,
-7,
2,
56,
110,
-128,
79,
17,
-98,
-22,
46,
24,
95,
44,
45,
-53,
-86,
-48,
-15,
-126,
13,
-19,
21,
-95,
5,
-98,
71,
-40,
12,
-104,
49,
69,
-8,
82,
-66,
-57,
-76,
97,
-71,
12,
98,
102,
-128,
21,
119,
-8,
-40,
14,
-10,
-99,
-91,
-105,
88,
-102,
7,
-68,
-103,
110,
20,
38,
124,
-26,
29,
85,
40,
3,
-117,
-74,
-79,
-49,
108,
-118,
-117,
-21,
-119,
-78,
113,
-50,
-94,
92,
69,
123,
-101,
-121,
-104
]
|
The opinion of the court was delivered by
Hutchison, J.:
This appeal is by the plaintiff in a mortgage foreclosure ease from the ruling of the trial court sustaining the motion of the defendant owner to set aside the sheriff’s sale and its confirmation because the bid made by the plaintiff, the purchaser, was substantially inadequate.
The decree of foreclosure gave the plaintiff a personal judgment against the owner of the land and a first lien thereon. Two defendants, having filed cross petitions, were each given personal judgments against the owner and subsequent liens upon the same land. One of these was prior to the other, thus making a first, second and third lien upon the land. After fourteen months’ delay the plaintiff filed a praecipe for an order of sale, and at the sheriff’s sale bid the full amount of its judgment, taxes, interest and costs, and thereafter the sale was confirmed and the eighteen months’ redemption period was allowed. The owner, shortly after confirmation, filed this motion, stating and urging that any bid which did not include all three judgments, interests thereon, taxes and costs would be substantially inadequate. The trial court did not accept this view of the law urged by the owner, but held that the second mortgage, being a commission mortgage, should be considered as a part of the same transaction in which the agreement for the first mortgage' was made and the two together should be considered as one judgment, and any bid which was less than the total sum of the two judgments, interest, taxes and costs was substantially inadequate.
The journal entry contained a provision to the effect that if the holder of the second lien should within twenty days voluntarily release its judgment, the decree of confirmation might stand, and further shows that after twenty days it was not released. So the sale and confirmation were set aside and held for naught, and the court fixed the total of the first and second judgment liens, with interest, taxes and costs, as the minimum or upset price for which the property must be sold in order to be confirmed.
R. S. 60-3463 provides that “the sheriff shall at once make a return of all sales made under this act to the court; and the court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same.” The history of this section, and earlier ones along the same line, and the construction our court has given it, are plainly and in detail set out in the opinion in the case of Kaw Valley State Bank v. Chumos, 138 Kan. 714, 27 P. 2d 244. That opinion closes with a reference to the new act of the legislature interpreting this section (Laws 1933, ch. 218), which was too late to be controlling in that case. This new act, being designated as R. S. 1933 Supp. 60-3463a, is as follows:
“The court in determining whether or not the proceedings in judicial sales are regular and in conformity with law and equity, as expressed in section 60-3463 of the Revised Statutes of Kansas of 1923, may decline to confirm the sale where the bid is substantially inadequate, or, in ordering a sale or a resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the premises must be bid in if the sale is to be confirmed, or the court may, upon application for the confirmation of the sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require that the fair value of the property be credited upon the judgment, interest,'taxes and costs. A sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate. This act is intended as declaratory of the equity powers now existent in the courts under section 60-3463 of the Revised Statutes of Kansas of 1923.” v
This interpretation makes plainer and easier the duty of the court in determining whether or not the bid is substantially inadequate and whether or not the proceedings are regular and in conformity with law and equity. The last sentence but one in this new interpretive section completely settles the question of inadequacy of bid. in this case, unless the first and second judgments and liens must be considered as one judgment and lien. In the case of State v. Shawnee County, 83 Kan. 199, 110 Pac. 92, it was held:
“The legislature has the power, under the constitution, to declare by a later act the meaning and intention of an earlier one, and in such event the legislative interpretation is binding in all cases arising after it has been made manifest.” (Syl. ¶ 2.)
This rule was followed in the more recent cases of Dew v. Davis et al., 115 Kan. 219, 224, 222 Pac. 750, and State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 712, 22 P. 2d 1093.
There is no question here involved as to the value of the property sold as there was in the Kaw Valley State Bank case, supra. The sole question here is whether the second lien is really a part of the first judgment and lien, because the trial court says in the journal entry that it is a part of the same transaction. The second lien and judgment is in favor of a different corporation than the plaintiff. The holder of the commission mortgage, the second lien, may have earned the commission, either as the agent of the lender or borrower. In either event the borrower has by his own act separated the commission entirely from the loan, or the extension of the loan, by executing in payment thereof a separate note and a separate mortgage, acknowledging in the latter that it is a separate indebtedness and subordinate, subject and inferior to the first mortgage as a lien on the property — a very different method of handling the transaction than by deducting the commission from the amount of the loan, under which method the commission might very reasonably be called a part of the same indebtedness or judgment.
We cannot agree with the trial court that in the face of the unambiguous language of the interpretive section of the statute, above quoted, as to what is to be’ deemed an adequate bid, a commission note and mortgage designated by the landowner as a second lien and held by a different party than the plaintiff is a part of the plaintiff’s judgment and lien. We are cited no precedent or holding in support of the view that the two judgments should be considered as one.
We think the defendant’s motion to set aside the sheriff’s sale and the confirmation thereof should have been overruled. It is so ordered, and the judgment is reversed. | [
-15,
-20,
-107,
-84,
10,
96,
42,
-72,
-55,
-95,
38,
-37,
-17,
-54,
20,
105,
-11,
109,
101,
-23,
87,
-93,
39,
97,
-46,
-77,
-111,
-51,
-65,
126,
102,
23,
76,
48,
-54,
-107,
102,
-128,
-61,
84,
10,
-125,
-103,
69,
-15,
74,
52,
59,
80,
9,
21,
-116,
-29,
45,
29,
74,
72,
40,
-53,
61,
-112,
-72,
-69,
-115,
95,
5,
17,
53,
-34,
-57,
122,
42,
-112,
53,
0,
-24,
114,
-74,
-122,
116,
73,
59,
40,
38,
98,
0,
69,
-21,
-8,
-104,
46,
118,
-113,
-90,
-111,
88,
0,
32,
-74,
-99,
108,
16,
38,
-2,
-18,
-108,
-99,
-20,
31,
-50,
-106,
-109,
-97,
116,
26,
-117,
-18,
-127,
48,
112,
-49,
-96,
92,
102,
27,
-101,
14,
-100
]
|
The opinion of the court was delivered by
Miller, J.:
This is an appeal by Ames Real Estate, Inc., from a judgment for $35,217.47 entered against it and in favor of Mr. and Mrs. Larry J. Madsen, following a jury trial in Lyon District Court. A statement of the complicated background facts is necessary to an understanding of the various issues presented.
Fred Warbritton and Marion Gum organized a corporation, Cinderella Homes, Inc., in 1974. The purpose of the corporation was to build houses in Emporia. Office space for Cinderella Homes, Inc. was provided virtually free of charge in the offices of Ames Real Estate. During its short existence, Cinderella built six houses in Emporia, and Ames Real Estate had some connection with or interest in each of them.
Larry Madsen and his wife Elizabeth lived on Goura Street in Emporia, in a home which they had purchased through Ames Real Estate. In August, 1974, Madsen went to the Ames office and talked to Bill Ames about building a new home. Ames told Madsen that Ames Real Estate was not building houses anymore, but that Cinderella Homes, in their office, was; Ames introduced Madsen to Gum, and the three of them looked at house plans and discussed costs. Madsen told them that he would need a V.A. loan. The possibility of building on one of three lots, all of which were owned by Ames Real Estate, was discussed. Madsen decided to view the lots.
Madsen looked at the lots several days later, selected one on Trailridge, and returned to the Ames office where he engaged in further discussion with Ames and Gum. Madsen signed an application for a V.A. loan, and told Ames and Gum that the only way he could afford to build a house on Trailridge was to sell the Goura Street property. Bill Ames orally guaranteed Madsen that the Goura Street property would sell for $25,000. Mr. and Mrs. Madsen signed a contract with Cinderella Homes at the Ames office, on October 11, 1974, for the construction of a new home on the Trailridge lot. The contract price for. the land and improvements was $34,350, and Madsens had a commitment for a V.A. loan at 814% interest for the purchase price. Ames and Gum told Madsen that he would be in the new home by Christmas.
Ames Real Estate conveyed the Trailridge lot to Cinderella Homes on December 23, 1974. Cinderella gave Ames a note for the purchase price, but no mortgage was executed. Bill Ames helped arrange a construction loan to Cinderella from the Emporia State Bank and Trust, granted on December 24. The basement was dug and construction commenced the last week in December. Ames and Gum told Madsen that the delay in construction was caused by V.A. loan paper work.
Ron Foxx did the concrete work on the Trailridge house. He was contacted by Bill Ames, left his bid with Ames Real Estate, took his statements to Ames Real Estate, and received his checks there. He thought he was working for Ames. His concrete work was inspected by Bill Ames, Paul Henshew (an Ames employee), and Marion Gum. The basement was done in December, 1974, and the walls were poured in late January, 1975.
Gum left Cinderella in late January, 1975, and went to work for Ames Real Estate. Fred Warbritton continued to manage Cinderella Homes, and attempted to complete the Trailridge house. Finally, in April, with Warbritton’s consent, the Madsens moved into the yet unfinished home. Meanwhile, Ames Real Estate had been unable to sell the Goura Street property. Madsen asked Bill Ames to honor his $25,000 guarantee; Ames responded that the guarantee was contingent upon closing the Trailridge transaction. Madsens then decided to try to sell the Goura Street property themselves; they were unable to do so.
On August 9, with liens of subcontractors already filed against the new house, Ames, Warbritton, Madsen, and the latter’s attorney, Marc Hurt, met at the Ames Real Estate office. Warbritton promised to complete the construction. Ames and Madsen negotiated a settlement on the Goura Street property; Ames Real Estate was to pay and Madsen was to accept $23,700 less Ames’ 6% commission.
A few days later Ames rented the Goura Street property to Jim and Sheryl Moddrell. They signed a lease for one year, paid the first month’s rent, a $230 cleaning deposit, and $230 for an option to buy the property. Moddrells were interested in buying the property for $25,000, and so informed Ames. Ames never communicated the offer to the Madsens, and at trial contended that Moddrells had no option, and were not financially able to buy the property. Mrs. Moddrell testified that they had $1200 in cash plus some certificates of deposit; finally, after repeated contacts with Ames, they gave up and bought another house through another agent. Their cleaning deposit and option money was refunded and the balance of their lease was canceled by Ames Real Estate. The Goura Street house was finally sold by another realtor for $23,500 less a 6% commission.
On September 5, Warbritton, in writing, authorized Ames Real Estate to complete the Madsen house on Trailridge, as well as two other houses Cinderella had under construction. A further meeting was held at the Ames office September 19. The Madsens signed a waiver of completion so that the V.A. would release the loan funds. Bill Ames orally agreed to pay off the mechanics’ liens, and he agreed in writing to complete seven items of construction. Thereafter, Ames completed some but not all of the construction items, but he did not pay the lienholders. The V.A. loan commitment expired. In November, an Ames employee told Madsens that they were going to have to move out of the house because the contract price was less than the amount of the liens.
One of the subcontractors, Modern Air Conditioning, Inc., filed this lien foreclosure action on April 8, 1976. The Madsens and Ames Real Estate were among the defendants. The Madsens filed a cross-claim, which is the subject of this appeal, against Ames Real Estate. This was tried separately; the lien claims were tried first. Foreclosure of the liens was ordered; at the sale, after all bidders except Madsen and Bill Ames had dropped out, Ames bid the price up about $5,000; Madsen was ultimately the successful bidder and bought the property for $35,101 on March 17, 1977.
Madsens’ cross-claim alleged that Ames Real Estate, Cinderella Homes, Gum and Warbritton were joint venturers in the development of the Trailridge property, with Ames supplying the unimproved lot and Cinderella constructing the house; that all parties to the joint venture intended to participate in the profits and all exercised joint control and joint ownership. Madsens claimed that their contract was with the joint venturers, and they sought $15,000 for nonperformance and breach of that contract. Default judgment was entered against Cinderella Homes and Warbritton; the cross-claim against Gum was apparently not pursued; only the claim against Ames Real Estate was tried, and is of interest here.
By an amended cross-claim, the Madsens also claimed that Ames Real Estate, by its agent, Bill Ames, promised to pay all liens and complete construction of the Trailridge house, and failed to do so; that such promises constituted material misrepresentations and fraud, entitling Madsens both to actual and punitive damages. They also claimed that Ames defaulted on its promise to buy the Goura Street property for $25,000, and that Ames breached its fiduciary duty as a realtor when it failed to sell the Goura Street property to the Moddrells, who offered $25,000 for it. They sought actual damages of $1500 and punitive damages of $4500 for breach of this fiduciary duty. The jury returned a verdict for the Madsens for $17,217.47 actual damages and $18,000 punitive damages, against Ames Real Estate. The jury answered special questions as follows:
“If you find for the [Madsens] because you find [Ames Real Estate] and Cinderella Homes, Inc., were engaged in a joint venture, what factors do you find to indicate a joint venture:
“(1) Shared office. (2) [Ames Real Estate] did not take security (mortgage) on lot at 1349 Trailridge drive. (3) By the close association of Ames & Cinderella Homes a strong impression was given that this was a joint venture because of the mutual acts and conduct of both parties,
“If you find for the [Madsens] because you find [Ames Real Estate] made contracts with [the Madsens] to complete certain items of construction and pay certain liens and bills on the Trailridge property, what do you find to be the consideration for such contracts:
“1. Marc Hurt’s title opinion $ 50.00
2. Closing of sheriff’s sale 223.00
3. Increased interest on V.A. loan at 8Vi% 5,168.47
4. Increased interest on conventional loan at 9Vi% 3,247.50
5. Tax lien held by IRS at 8% 6,277.50
6. Price differential at sheriff’s sale 751.00
7. Price differential on house at 1302 Goura 1,500.00
Total 17,217.47”
The first, and perhaps the most substantial issue, is whether there was sufficient competent evidence to justify the giving of an instruction on joint venture by the trial court, and to support the jury’s finding of joint venture. Both parties rely upon Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 388 P.2d 824 (1964). In that opinion we said:
“It is unnecessary to define precisely the term ‘joint adventure,’ but suffice it to say it is an association of two or more persons to carry out a single business enterprise for profit. (Whan v. Smith [130 Kan. 9, 11, 285 Pac. 589 (1930)]; Curtis v. Hanna, 143 Kan. 186, 53 P.2d 795.) A joint adventure can exist only by the agreement of the parties. (Whan v. Smith, supra.) The agreement may be found in the mutual acts and conduct of the parties. (National Bank v. Hoover, 114 Kan. 394, 218 Pac. 1003; Howard v. Zimmerman [120 Kan. 77, 79, 242 Pac. 131 (1926)]; Curtis v. Hanna, supra; Grannell v. Wakefield, 169 Kan. 183, 186, 217 P.2d 1059.) While courts do not treat joint adventure in all respects as identical with a partnership, it is so similar in its nature and in the contractual relations created thereby that the rights and liabilities as between the adventurers are governed practically by the same rules that govern partnerships. (Whan v. Smith, supra; Curtis v. Hanna, supra; Flitch v. Boyle, 147 Kan. 600, 602, 78 P.2d 9.) The usual test of a partnership as between the parties to a joint adventure is their intent to become partners. Joint ownership of property is not essential to create the relationship; it is only a circumstance which should be considered with other circumstances. (Grantham v. Conner, 97 Kan. 150, 154 Pac. 246; Grannell v. Wakefield, supra.)” (p. 363.)
The issue in Stricklin was whether the petition, filed under our earlier rules of civil procedure, adequately alleged a joint venture. We held that the petition in Stricklin, disclosing a series of correlated facts and circumstances, some of which meet some one of the tests regarded as a standard for determining the relationship, was sufficient when attacked by a demurrer. We noted that the petition tends to show that by their mutual acts and conduct, the defendants were associated together in a joint adventure with equal privileges to control the method and means, and to prescribe the conditions and use of the property.
In the recent case of Neighbors Construction Co., Inc. v. Seal-Wells Construction Co., Inc., 219 Kan. 382, 548 P.2d 491 (1976), we discussed joint ventures and the agency relationship between members thereof. We said:
“A joint venture is defined in 46 Am. Jur. 2d, Joint Ventures, § 1, pp. 21, 22:
“ ‘A joint venture is an association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business venture for joint profit, for which purpose they combine their efforts, property, money, skill, and knowledge, without creating a partnership or a corporation, pursuant to an agreement that there shall be a community of interest among them as to the purpose of the undertaking, and that each joint venturer shall stand in the relation of principal, as well as agent, as to each of the other coventurers, with an equal right of control of the means employed to carry out the common purpose of the venture. . . .’
“The agency relationship between members of a joint venture is stated in 46 Am. Jur. 2d, Joint Ventures, § 57, p. 76:
“ ‘The liability of one engaged in a joint enterprise, for the acts of his associates, is founded on principles of agency. In accordance with the general rule that each member of a joint venture acts as both principal and agent of his coventurers as to those things done within the apparent scope of the venture and for its benefit, it is held that each of several joint venturers has power to bind the others and to subject them to liability to third persons in matters which are strictly within the scope of the joint enterprise. . . ” (p. 385.)
Also, we noted in Neighbors that joint ventures and partnerships are so similar in nature that they are governed by the same rules of law. In Potts v. Lux, 161 Kan. 217, 222, 166 P.2d 694 (1946), Justice Parker enumerated various factors which may be considered and which are helpful in determining whether a partnership exists, when the existence of the relationship is controverted. Many of those items are enumerated above.
In sum, the cases indicate that a joint venture is an association of two or more persons or corporations to carry out a single business enterprise for profit; it may be found in the mutual acts and conduct of the parties. Among the acts or conduct which is indicative of a joint venture, but no single one of which is controlling in the determination, are: (1) the joint ownership and control of property; (2) the sharing of expenses, profits and losses, and having and exercising some voice in determining the division of the net earnings; (3) a community of control over and active participation in the management and direction of the business enterprise; (4) the intention of the parties, express or implied; and (5) the fixing of salaries by joint agreement. The following acts or conduct have also been mentioned as being helpful, but one authority does not consider them so: (a) investment in the business of undistributed profits for the purpose of building up a substantial cash reserve; (b) the charging of losses against accumulated profits; and (c) division of undistributed profits in the event of liquidation contingent upon repayment to one of the parties of cash originally invested in capital.
Ames Real Estate contends that there was no evidence of any intention by Cinderella or Ames to enter into a joint venture; there was no evidence of an agreement to enter into a joint venture; no profits or losses were shared; and there was no evidence that Ames shared in the management and direction of the business. The Madsens, on the other hand, point to a number of facts which support the finding of joint venture: Cinderella and Ames Real Estate shared office space, secretarial help and telephone lines; Ames was to receive a fee for all building referrals to Cinderella; Bill Ames introduced Madsen to Gum and participated fully in the negotiations; Ames Real Estate owned the Trailridge lot, transferred title to Cinderella and took back a promissory note but no mortgage as security; Ames Real Estate was to receive a profit of $4,500 on the building of the Madsen house and sale of the Trailridge lot; this amounted to approximately 1214% of the gross sales price; Cinderella gave written authorization to Ames to complete the Madsen house, as well as two others; Ames Real Estate had financial ties with all houses built by Cinderella; Ames agreed to complete the construction and to pay the mechanics’ liens, and gave repeated assurances to the Madsens that Ames would do so; Ames’ employees inspected the structure during construction; Ames’ employees contacted and arranged for the employment of subcontractors, handled the paper work, and sent bills for labor and materials to the bank for payment.
When the sufficiency of the evidence is attacked upon appeal, our scope of review is well established. It is not the province of this court to weigh evidence or pass on the credibility of the witnesses; a verdict cannot be disturbed on appeal if there is substantial evidence in the record to support it. Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 581 P.2d 372 (1978). Where the existence of a joint venture is controverted, the relationship may be found in the mutual acts and conduct of the parties. We have carefully considered the evidence in this case, and conclude that there was sufficient competent evidence to justify the giving of the joint venture instruction by the trial court, and to support the verdict of the jury, finding a joint venture.
Next, appellant contends that there was not sufficient evidence of consideration to support its promise to complete construction and pay off the lienholders. As we noted above in the quotation from Neighbors, each member of a joint venture acts as the agent of his coventurers; thus Ames, having been found to be a coventurer, was already bound to complete construction and pay the liens. The finding on the joint venture issue disposes of this consideration argument.
Appellant contends that there was no evidence to support the trial court’s instruction on punitive damages, based on fraud and misrepresentation. Appellees agree that in order to entitle them to punitive damages, there must be some evidence of conduct by the opposing party that can be characterized as malicious, vindictive, oppressive, fraudulent, or a willful and wanton disregard of the other’s rights. The only charge before the court and jury here was that the promises of Ames Real Estate to pay the liens and complete construction constituted material misrepresentations and fraud. There was no specific allegation of willfulness, wantonness, or of malicious, vindictive, or oppressive conduct. An unjustified breach of contract does not entitle an opposing party to punitive damages; as a general rule, damages for breach of contract are limited to pecuniary loss sustained. Hess v. Jarboe, 201 Kan. 705, 443 P.2d 294 (1968). The mere statement by Ames that he would pay the liens and complete the construction was not a false representation of an existing and material fact, unless at the time the statement was made Ames had no intention of performing those promises. When alleged fraud relates to promises or statements concerning future events, the gravamen of such a claim is not the breach of the agreement to perform, but the fraudulent representation concerning a present, existing intention to perform, when such intention is in fact nonexistent. Edwards v. Phillips Petroleum Co., 187 Kan. 656, 360 P.2d 23 (1961); and see PIK Civ. 2d 14.41 (1977). Thus Ames’ promise to perform, and his failure to do so, do not entitle Madsens to punitive damages, unless the evidence discloses that Ames did not intend to perform upon those promises at the time they were made; that the promise was made with intent to deceive Madsens and to induce them from refraining to act; that Madsens reasonably relied upon the promises; and that they sustained damages thereby. The burden of proving fraud is by a preponderance of the evidence, but that evidence must be clear, convincing, and satisfactory. Fox v. Wilson, 211 Kan. 563, 579, 507 P.2d 252 (1973). “Clear and convincing evidence” means that the witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue. Gonzalez v. Allstate Ins. Co., 217 Kan. 262, 535 P.2d 919 (1975), quoting from In re Estate of Shirk, 194 Kan. 424, Syl. ¶ 2, 399 P.2d 850 (1965).
Upon a careful review of the evidence before us, we conclude that there was no independent tort which would be necessary to support an award of punitive damages in a breach of contract action, and there was no intentional fraud established by clear and convincing evidence. We find nothing to indicate that, at the time the promises were made, Ames did not intend to complete the few items of construction remaining, pay the lienholders, and close the transaction. Thereafter, when it became apparent that the liens exceeded the amount of money available for distribution, the promises were not carried out. This was simply a breach of contract.
We have not overlooked Madsens’ contention that Ames breached its fiduciary duty as a realtor in failing to disclose the Moddrell offer, and that breach of a fiduciary duty may in some circumstances give rise to a claim for punitive damages. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976). In the case at hand, however, Bill Ames explained that he did not know and was not advised that the Moddrells had some certificates of deposit which they could have cashed and used in effecting the purchase. There is nothing in the record to show that those certificates were disclosed to Ames by Mr. and Mrs. Moddrell. Accordingly, Ames might well have concluded that the Moddrells were not financially able to conclude the transaction; at any rate, the evidence is not sufficiently clear and convincing to establish such a gross neglect of duty as would justify the imposition of punitive damages. The judgment for punitive damages must therefore fall.
Appellants complain that the answer of the jury to the second special question was not an answer to the question but was, in effect, a listing of the actual damages which the jury found; and appellants contend that the answer constitutes sufficient grounds for the granting of a new trial. By that question, the court asked the jury to designate the consideration for the agreement of Ames Real Estate to complete construction and pay the liens. Since the jury determined that Ames was a joint venturer, the issue of consideration was no longer of importance in the case, and the jury’s error in responding to the second special question is immaterial.
Next, appellants challenge the propriety of certain of the ele merits of actual damage enumerated by the jury in response to the second question. They first contend that the award of $223 for loan closing charges was improperly permitted to stand, since under the contract the Madsens were required to pay loan closing costs. The simple answer to this is that the $223 represented short term loan closing costs, caused by the breach of the initial contract. They challenge the increased interest charges, totaling $8,415.97 which the jury enumerated in two items, $5,168.47 and $3,247.50. While the method followed by the jury in arriving at these precise figures is not clear from the evidence, there was testimony by a certified public accountant that over the life of a conventional loan, the Madsens would be required to pay $11,662.15 in additional interest and other costs over and above that which they could have expected to pay under the initial contract and V.A. loan commitment. Included in Mr. Pool’s computation was the item of $869 which the Madsens could have taken on their 1975 federal income tax return, had the sale been closed prior to the end of that calendar year. The housing credit law expired, and credits could not be taken for that purpose on 1976 and future federal income tax returns. The delay in closing the sale, which the jury found was attributable to Ames’ breach of the contract, caused the loss of that credit. We conclude that evidence of the loss of the housing credit was properly admitted into evidence and that there was substantial competent evidence to support the jury’s award of increased interest cost.
Appellants contend that the court should not have permitted evidence of the amount of the federal tax lien, $6,277.50, which amount was awarded to the Madsens as actual damages by the jury in its computation. The United States government was made a defendant in the initial lien foreclosure action; its lien, in the amount stated above, was foreclosed, along with the other liens. Counsel acknowledged on oral argument that the right of the government to redeem had since expired; and there is no showing in the record that the Madsens had to pay the amount of the federal tax lien over and above the sale price. Presumably the government received a percentage of its claim, along with the other lienholders, at the time funds were disbursed, following sale; and the government determined not to exercise its redemption rights. Under the circumstances we conclude that the amount of the government’s tax lien, like the liens of those who supply labor and material to the premises, is not a special item of damage and should not have been awarded to the Madsens as an item of actual damage. The award must therefore be reduced by that amount.
We have carefully considered each of the other points raised, and find no error.
The case is remanded to the district court with directions to set aside the judgment for punitive damages, and to reduce the judgment for actual damages from $17,217.47 to $10,939.97. As so modified, the judgment is affirmed. | [
-15,
46,
121,
-84,
60,
-62,
10,
-39,
121,
-90,
-77,
95,
-81,
-34,
17,
105,
-76,
45,
-63,
104,
-45,
-77,
67,
-93,
-42,
-103,
-13,
-11,
-71,
-20,
-12,
85,
77,
52,
-54,
-99,
-94,
2,
-43,
92,
78,
-121,
-85,
72,
-11,
64,
54,
-101,
8,
74,
97,
-114,
-77,
44,
28,
82,
40,
46,
-1,
57,
-64,
-8,
-118,
-105,
95,
54,
-93,
36,
-106,
-121,
120,
12,
-112,
-15,
1,
-23,
51,
-90,
-106,
116,
1,
27,
44,
-92,
99,
32,
-111,
-1,
-8,
-104,
14,
-10,
-123,
-89,
-43,
28,
98,
101,
-67,
-100,
112,
18,
7,
-2,
-22,
-108,
29,
109,
15,
-54,
-106,
-111,
-115,
122,
-107,
19,
-1,
5,
33,
113,
-51,
36,
95,
52,
50,
-69,
6,
-8
]
|
The opinion of the court was delivered by
Miller, J.:
This is an action in habeas corpus. The district court of Marshall County entered judgment awarding custody of a twelve-year-old boy, Robert, to his father,. Boyd Beebe, the appellee. The child’s mother, Marilyn Jean Beebe Chavez, appeals, asserting numerous errors which we will consider later in this opinion.
Robert Beebe, son of Boyd and Marilyn, was born on October 5, 1965. While they were living in Havasu City, Arizona, Boyd and Marilyn separated in June of 1970, Boyd returning to Nebraska and Marilyn remaining in Arizona. Boyd paid little if anything towards the support of his wife and son during the ensuing 18 months. In November, 1971, the marriage was dissolved by decree of the Superior Court of Cochise County, Arizona. Marilyn was awarded custody of Robert, and Boyd was required to pay support, attorneys’ fees, and costs. Boyd was awarded visitation privileges. A provision in the decree prohibited Marilyn from taking Robert outside of the United States without a prior court order, excepting for visits of short duration to the Republic of Mexico. Following the granting of the divorce, Boyd made regular child support payments until the fall of 1974. He has paid nothing since that time, and he has not paid the attorneys’ fees as ordered in the Arizona divorce decree. No motion to enforce visitation, to modify child support payments, to change visitation, to change custody, or to cite either parent for contempt has ever been made in the original action.
Marilyn remarried on September 12, 1973. Her second husband, Mr. Chavez, is a citizen and resident of the Republic of Mexico. Since 1973 Marilyn and Robert have been living with Mr. Chavez in Mexico. Marilyn, meanwhile, has made regular trips back to the United States, in order to maintain her citizenship. She has friends who live in the same home occupied by Marilyn and Boyd during their marriage, which Marilyn still owns; all mail addressed to Marilyn at that address, including the support payments which were sent there by the clerk of the Arizona court, is forwarded to Marilyn, wherever she may be. Marilyn and her husband have lived at four different places in Mexico, and Robert has regularly attended public school there.
In October, 1974, Marilyn and Robert came to Marysville, Kansas, because of the illness of Marilyn’s parents. Marilyn hoped to reside there and obtain a sponsor for Mr. Chavez, so that he too could come to the United States. Marilyn rented an apartment and enrolled Robert in school. Robert obtained a pair of glasses upon recommendation of school officials. Boyd visited Marilyn in Marysville; he had a support check in his pocket, but did not deliver it. According to Boyd, he was hoping to force Marilyn to return to the Arizona court by cutting off support payments; he had already done so. About the time of this meeting, Boyd contacted a Nebraska attorney who advised him of the possibility of kidnapping Robert in order to obtain custody. Marilyn learned of the potential kidnapping threat and she immediately fled, taking Robert with her, and returned to Mexico. In her hurry, she left behind various items of clothing and Robert’s glasses. After she arrived in Mexico, Marilyn wrote to Boyd, telling him in effect that she did not want any further support payments, and to leave her and Robert alone.
Marilyn next returned to Marysville about March 5,1977, at the request of her father; her mother was dying of cancer. Marilyn took Robert out of school and brought him with her; arrangements were made for Robert to enter school in Marysville on or about March 15. A cousin of Marilyn’s by marriage, Jane Oehm, called Boyd and arranged for him to see the district magistrate judge at Marysville on Saturday night, March 12, 1977.
The juvenile file, containing the records of the proceedings before the district magistrate judge, was handed to the district judge at the time of the hearing of the habeas action which is the subject of this appeal. There was no objection made to the offer, and the reasonable inference is that counsel was requesting the court to take judicial notice of the file in its own court. See K.S.A. 1978 Supp. 38-801 et seq., and chapter 59 of the Kansas Statutes Annotated, as amended. Obviously, under these circumstances, the trial court took judicial notice of the juvenile records, which it was authorized to do. That juvenile record is thus made a part of the record in this case, and a statement of those proceedings is necessary to a complete understanding of the matter before us.
Although no petition was on file and no proceeding was pending, the district magistrate judge entered an order on March 12, apparently based upon the testimony of Boyd, granting the immediate temporary custody of Robert to the Kansas Department of Social and Rehabilitation Services until the further order of the court. No prior notice was given to Marilyn, nor was she permitted to appear and be heard. The order states that the court hears the testimony of Boyd and considers other evidence indicating that Robert is in need of medical attention; that Robert has not attended school; that Marilyn “has purposely lived in Mexico to avoid the jurisdiction of the Superior Court of Arizona in reconsidering the award of child custody to her”; and that Marilyn has forced Robert to vomit to rid him of “demons.” The order giving SRS the immediate temporary custody of Robert was executed around 10 o’clock that night; agents of SRS, the sheriff’s office, or both, armed with copies of the court order, took Robert from his mother and placed him in a foster home. Robert was examined by Donald Argo, M.D., on the same date, presumably after he was taken into custody. The physician’s complete report reads:
“Re: Robert Beebe.
“I did on March 12, 1977, examine this child.
“I found no physical evidence of neglect.
“My impression was that he was in good physical health. I did, however, note a slight speech impediment and that he is perhaps somewhat mentally slow, this could be a lack of formal education.”
Thus on the night Robert was taken into custody, SRS and the court found that the major reason advanced for emergency action was false: Robert was in good health; he was not neglected; he needed no medical care.
Two days later, on March 14, a representative of SRS filed a petition in the “Juvenile” court, alleging that Robert is a dependent and neglected child because:
“The natural parent neglected or refused when able to do so, to provide proper or necessary support and education required by law, or other care necessary for his well being.
“Said child is without proper care, custody or support. All in violation of the Kansas Juvenile Code.”
The wording is taken almost verbatim from the statutory definition of a dependent and neglected child contained in K.S.A. 38-802(g). There is no showing that the petitioner had any personal knowledge of the “facts” therein recited, or that any investigation was made by the SRS prior to that time. The details of Marilyn’s alleged neglect of her child were not disclosed.
Marilyn was notified on March 14 to appear at 9 o’clock a.m. on March 16 to answer the petition. The transcript does not explain why, but the hearing was not held on that date; it was delayed until March 30. Marilyn then appeared without counsel; the court heard testimony, found Robert to be “a dependent and neglected child,” and awarded custody to SRS; the court requested a complete report from that agency. There is no indication in the file that any such report was ever furnished. The testimony at the March 30 hearing was not reported, and no summary of it — and no findings of fact — are contained in the court’s order.
Later, Marilyn retained counsel; many motions were filed in her behalf. One sought visitation privileges, alleging that Marilyn was only permitted to see her son twice during the first three months he was in SRS’s custody. The motions were never ruled upon; instead, on June 16, the court on its own motion continued the case “until further notice.”
Boyd filed this habeas action on July 7, 1977. On the following day, Marilyn was notified that the juvenile matter would be heard on July 14; on that day the juvenile proceeding was dismissed by agreement of the parties. Robert was returned to the custody of his mother, but she was ordered not to leave the jurisdiction of the court pending disposition of the petition for habeas corpus. Five days later, on July 19, 1977, this case was tried before the district judge on the petition for the writ. The court heard testimony from several witnesses, including Boyd, Marilyn, the foster mother, and members of Marilyn’s family, and several exhibits were received into evidence. We will detail the evidence later. At the conclusion of trial, the court placed Robert in the custody of SRS, and Robert was returned to the foster home. Boyd and Marilyn were ordered to submit to psychological evaluation and home studies, and the court also ordered that Robert be evaluated to determine his psychological, emotional and academic condition, with consideration for his bilingual background.
Several matters that surfaced during the hearing deserve attention: Robert’s vision; Robert’s hearing; his immunization; and Marilyn’s religion. As to vision, when Robert was enrolled in school it was found that he was nearsighted. Glasses were obtained for him, and he was advised to wear them while reading or watching television. When Marilyn left in 1974 and failed to take Robert’s glasses along, she knew that Boyd had been advised to kidnap Robert; Marilyn left hurriedly to avoid losing her son. As to Robert’s hearing, the trial court, on September 22, 1977, issued an ex parte order, apparently on the advice of a Topeka hearing specialist who had not seen Robert, ordering that Robert submit to treatment for an alleged hearing problem. Marilyn objected, and the matter was dropped when the physician refused to see Robert. The foster home operator, in whose care Robert was placed for many months by SRS, said nothing about any hearing problem; the school Robert attended is not reported to have suggested any such problem; and the guardian ad litem found no hearing problem. There was no evidence before the trial court that Robert has any hearing deficiency. As to immunization, when Robert was enrolled in school in Marysville, state-required immunizations were necessary. Boyd authorized the immunizations by written consent. Testimony adduced at the hearing indicated that Robert initially questioned whether the immunizations were compatible with his religious beliefs. Apparently no effort was made to secure authorization for immunizations from Marilyn, and the immunizations were secured. We will discuss the matter of religion later in this opinion.
Counsel argued various motions on November 28, 1977, and the trial court expressed its views in a formal memorandum decision issued December 13, 1977. The material parts of that memorandum read as follows:
“The record concerning defendant is not clear, but she apparently made frequent visits to Mexico to engage in her work as a non-sectarian religious sermonizer. She eventually married a Mexican national who does not have the necessary papers to immigrate to the United States so Mrs. Chavez journeys back to the United States at certain intervals in order to renew her permits to live in Mexico. The Chavezes have a 14-month old daughter, as a result of the marriage. Mrs. Chavez testified that her work in Mexico requires frequent moves, that they live in adobe houses without many of the conveniences found in America, that she believes God will take care of her and Robert and that she does not believe in medical treatment, that Robert can attend school in Mexico as opportunity may provide as many Mexican nationals do not attend school as do children living in the United States, that if she is granted custody of Robert she will return to Mexico.
“The Court finds that the defendant and her son, Robert, were in Marshall County, Kansas, during the spring of 1977, that Robert did not attend school and a petition was filed alleging that he was dependent and neglected. This petition was eventually withdrawn and the instant action was filed.
“The defendant in this action complains that plaintiff should not be afforded any equitable consideration because he comes into Court with ‘unclean hands.’ The plaintiff did not exercise visitation privileges because defendant spent most of her time in Mexico which apparently was in violation of the Arizona decree. It is further true that he has made but little in the way of child support payments, but here again defendant cannot complain because she asked plaintiff in 1974 not to make any further payments. This Court is of the opinion that there has not been such misconduct or malfeasance on the part of the plaintiff to invoke the ‘clean hands’ doctrine.
“The defendant also contends that K.S.A. 60-1501 through 60-1505 and 60-1610 are unconstitutional and that they violate petitioner’s right to family integrity and privacy in contravention of the First, Ninth, and Fourteenth Amendments to the Constitution of the United States. Defendant also contends that her Sixth Amendment rights were also violated. This Court is of the opinion that in child custody proceedings the rights of the parents are not at issue and that the child’s best interest is the cardinal principle in determining the right as between parents to custody, Burns v. Burns, 177 Kan. 116, Lyerla v. Lyerla, 195 Kan. 259. In Re. Bort, 25 Kan. 215 [sic 308],
“Although it is the policy of this state to give to a decree of divorce rendered in a sister state the same force and effect, so far as it can be done, as though the decree were entered by a court of this state, full faith and credit has only limited application to a child custody decree, it being inherent in such a decree that it is not final or conclusive but is always subject to the rights of the parties to show a subsequent change of circumstances and conditions, Anderson v. Anderson, 214 Kan. 387.
“The Court now finds that circumstances have changed since the Arizona decree in 1971, defendant and Robert no longer are full time residents of the United States, defendant has now interpreted her religion as barring medical treatment for her son and she shows no great concern for Robert’s education who, despite her wishes to live in Mexico, is a United States citizen and who is entitled to all of the educational advantages afforded to United States citizens.
“The order of the Arizona court is res judicata only as to matters as they existed when the order was made and does not bar inquiry into the issue of custody where circumstances have changed.
“Some persons prefer to live in and pursue their interests in foreign lands. However, this Court, as well as any average person in the United States, can hardly overlook the many articles in the newspapers and magazines of national distribution, that many persons, particularly Mexican nationals, enter the United States by the hundreds of thousands each year. Would it be in the best interest of Robert that he be returned to the custody of his mother to return to live in Mexico as she testified she would do as soon as these proceedings were terminated, so that she may continue to pursue an unorthodox religion. Should a person of tender years be precluded from the advantages available to citizens of the United States simply because his mother prefers to live in a foreign country. This court is of the opinion that the interests of Robert be best served if he remained in the United States where he could obtain proper medical treatment and proper schooling and such other advantages as available to a citizen of this country.
“Accordingly the Court awards custody of Robert J. Beebe to his father, Boyd Beebe, the defendant to have all reasonable visitation privileges so long as they do not involve removal of the child to Mexico or to any other place outside the continental United States. Cost of this action assessed to plaintiff.”
The appellant challenges K.S.A. 60-1501, 60-1505(c) and (d), and 60-1610(a)(i) as being unconstitutional. The argument asserted depends primarily upon recognition of a constitutional right to family integrity. The appellant relies on two United States District Court cases, Alsager v. District Court of Polk Cty., Iowa, 406 F. Supp. 10 (S. D. Iowa 1975), and Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976).
It must be noted the Alsager and Roe cases involved temporary or permanent termination of parental rights as part of a dependency and neglect or child abuse proceeding. The court is cited to no cases where the family integrity doctrine has been applied to a custody dispute between parents who are both fit custodians. While this litigation commenced with the initiation of an action under K.S.A. 1978 Supp. 38-320 et seq., entitled “Dependent or Neglected Children,” which provided the basis for the original summary seizure of the child, that action was dismissed and no appeal has been taken from those proceedings.
The Kansas Appellate Courts have recognized the importance of parental rights in severance proceedings. See In re Atwood, 2 Kan. App. 2d 680, 681-2, 587 P.2d 1 (1978).
Contrary to the appellant’s contention, the right to family integrity is not infringed in a purely domestic dispute over custody of a child. The right to family integrity has only been recognized when a non-parent third party, or the State, was seeking to remove the child temporarily or permanently from the parents or lawful guardian.
Older Kansas cases indicate that custody disputes are matters of private rights contested between private parties. However, that statement of the law has been relied upon only in cases questioning the res judicata effect of prior proceedings. See Walker v. McNutt, 165 Kan. 533, 539, 196 P.2d 163 (1948); Wear v. Wear, 130 Kan. 205, 213, 285 Pac. 606 (1930); In re Hamilton, 66 Kan. 754, 756, 71 Pac. 817 (1903). See also 39 C.J.S., Habeas Corpus § 124 b., p. 915.
To recognize the family integrity doctrine urged by the appellant in the context of a custody dispute between parents would lead inevitably to a wholesale rejection of the “best interest of the child” standard. That standard is inherently vague; but we have not found, nor do our cases suggest, a practical alternative to it.
We do not find the habeas corpus statutes unconstitutional. These statutes do not require the court to separate a child temporarily from both parents pending hearing and final decision in the case; separation is a discretionary matter. The test upon appeal in a habeas corpus action involving child custody, where the best interests of the child are at stake, turns upon the reasonableness of the exercise of the discretionary power of the trial court. In all such cases the exercise of a trial court’s power of discretion is subject to review on the issue of reasonableness, and the matter of jurisdiction is subject to appellate review. Before we turn to those issues, however, we should note that K.S.A. 60-1610(o)(i) is not subject to constitutional challenge in this action. This is a habeas corpus proceeding, and that statute is not here involved. We deal here with K.S.A. 60-1501 and 60-1505(c) and (d), and for the reasons stated we hold that those statutes are not unconstitutional.
We turn first to the question of jurisdiction. The habeas action below was in effect but a continuation of the juvenile proceeding started many months before — with the father of the child “mending his hold” and changing his tactics to rely upon the “best interest of the child” test when it appeared that his claim of neglect must fail. Clearly there is nothing in this entire record to suggest — let alone establish — that Marilyn neglected Robert. To the contrary, the record is overflowing with her love,, care, and concern for him. He was in school, he was in good health, he needed no physical, medical, or spiritual care. He was never separated from his mother until the awesome power of the State of Kansas wrested him from her late that March night.
One basic and fundamental principal of American law is that a litigant must have notice and an opportunity to be heard before any decision is made in a case involving that person. Notice and an opportunity to be heard and to defend are essential elements of due process of law. Brown v. Fitzpatrick, 224 Kan. 636, 640, 585 P.2d 987 (1978). The requirements of notice and hearing were incorporated in and made a requisite of the detention hearing procedure by the 1976 amendment to K.S.A. 38-815b. The magistrate completely ignored that statute. Marilyn was denied her right to due process; to notice and an opportunity to be heard; to a fair hearing. The magistrate decided that she was not a fit parent, but a neglectful and harmful one, and that her child ought to be seized by the State and taken from her forthwith, all without notice and hearing. The decision was made at night, away from the public eye, on the basis of statements of her former husband. Once that decision was made, the die was cast. Marilyn had lost all, without her day in court.
One point deserves emphasis: there was no emergency. Robert needed no medical attention; the physician’s report settles that issue. If he needed glasses or a hearing aid, certainly those problems could be dealt with in the usual course; neither was of an emergency nature. There was no abandonment; no abuse; no mistreatment; nothing to require or justify immediate action.
Robert and his mother were temporary visitors in our state. The courts of Arizona had continuing jurisdiction over both custody and support. Ariz. Rev. Stat. § 25-332; Anderson v. Anderson, 14 Ariz. App. 190, 481 P.2d 881 (1971); Beard v. Greer, 116 Ariz. 536, 570 P.2d 223 (1977). Absent any showing of an emergency situation, our courts should have refused to exercise jurisdiction in the interest of comity. Our legislature has since made this clear: the mere presence of a child within this state is not alone sufficient to confer jurisdiction to make a child custody determination, unless the child has been abandoned, or an emergency requires that the child be protected, or no other state has jurisdiction, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum. K.S.A. 1978 Supp. 38-1303(o)(3) and (4). Further, courts of Kansas may not exercise jurisdiction in child custody cases “if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with” the Kansas Uniform Child Custody Jurisdiction Act. K.S.A. 1978 Supp. 38-1306. Arizona has also adopted that act. Ariz. Rev. Stat. 1978-1979 Supp. § 8-401 et seq.
Professor Bodenheimer, commenting upon the emergency jurisdiction provisions of the Uniform Child Custody Jurisdiction Act, says:
“One of the basic tenets.of the Act is that the physical presence of a child in a state does not confer on that state jurisdiction to modify custody if another state has jurisdiction. Only when a child is stranded or abandoned in the state, or there is an emergency arising from mistreatment, abuse or neglect, may the state where the child is present take protective measures. The Commissioners intended this emergency exception to have a very limited scope: ‘this extraordinary jurisdiction is reserved for extraordinary circumstances .... When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph.’
“This exceptional jurisdiction exists in very few cases. Naturally, there will be attempts to circumvent the Act by ‘shouting fire’ in every conceivable situation. Emergency jurisdiction must be denied, however, when it is invoked as a pretext in order to reopen a custody controversy. Unless judges and attorneys are constantly alert to the dangers inherent in misuses of emergency jurisdiction to circumvent the Act, the exception could tear so large a hole in the Act that custody decrees made in one state would again be relitigated in other states; and the interstate chaos that the Act was intended to remedy would be revived and perhaps intensified.
“The question, then, is: What are legitimate uses of emergency jurisdiction?
“Clearly, an emergency exists when a child is in immediate danger from a source within the state’s borders. For example, suppose a case in which a child’s parents are killed in an accident away from home and the child survives. A court in the state of the accident has jurisdiction to place the child into a temporary home. Or suppose that the custodial parent travels to the state where the child is visiting and threatens the former spouse and the child with violence. Again, the state of the visit has power to intervene. Additionally, an emergency exists if, prior to any custody adjudication, a parent brings the child to a state and the other parent, who still has equal custody rights, follows to claim the child. In such a situation the child has no parent capable of exercising effective parental control; the parental feud is fraught with danger for the child so that it is urgent to settle the dispute by way of a temporary custody order pending adjudication in the proper state.” 65 Cal. L. Rev. 978, 992-993 (1977).
Robert and his mother were not Kansas residents, at least with any degree of permanency; they had been here only a few days. Boyd was not a Kansas resident. Absent any real emergency, the Kansas courts had no responsibility or immediate interest in the matter of custody, and in the interest of comity should not have assumed jurisdiction beyond the initial issue of the claimed unlawful restraint.
The case of Jolly v. Avery, 220 Kan. 692, 556 P.2d 449 (1976), was our most recent pronouncement upon the subject of habeas corpus dealing with child custody at the time the case now before us was heard. In Jolly v. Avery, the parties had been divorced in Michigan, and the courts of that state had continuing jurisdiction over the matter of custody and support of the child. The child was in Kansas temporarily for visitation with the father; he refused to return the child to the mother; she sought a writ of habeas corpus in an effort to regain custody. The trial court recognized its jurisdiction to have an evidentiary hearing under the then applicable Kansas law, but declined to do so in the exercise of its discretion. We affirmed.
Similarly, in Anderson v. Anderson, 214 Kan. 387, 520 P.2d 1239 (1974), the trial court refused to hear evidence of changed circumstances and determined only the issue of unlawful restraint. We held that, in the exercise of its discretion, the trial court was fully justified in that action, and we affirmed.
The petitioner here, Boyd, had made no effort to secure any change of custody in the Arizona court. He had not made the payments for support and attorneys’ fees required by that court’s order, and for that reason was reluctant to apply to that court for relief, though the Arizona court had continuing jurisdiction. Under those circumstances we hold that the trial court abused its discretion when it proceeded to hold an evidentiary hearing and decree a change of custody.
However, assuming that jurisdiction was properly exercised, are the findings of the trial court supported by substantial, competent evidence? And does the order of the trial court rest upon sound logic and lawful grounds?
The court characterizes Marilyn as “a non-sectarian religious sermonizer” whose work requires frequent moves. The record does not support these findings; to the contrary, Marilyn testified that her faith did not require her to leave her residence and to attend meetings, conventions, or religious ceremonies. It does not take her away from home. Her home has been open to children who need food, clothing, shelter, and love; she couldn’t begin to count those who have been in her home during the past three years. During the first four years of her marriage to Chavez, Marilyn lived in four different cities; nowhere in the record is there evidence that these moves were necessitated or occasioned by her religion.
Custody was changed for two reasons:
(1) because Marilyn would raise Robert in Mexico where he could not obtain “proper medical treatment” and “proper schooling” and “such other advantages as [are] available to a citizen of this country”; and
(2) because Marilyn pursues “an unorthodox religion.” The fact that a child may secure what one person may consider
“proper schooling” in one area and not in another may be a factor to be considered, but it should not be controlling in a matter as complex as child custody. Should custody always be given to a parent who lives in a metropolitan school district, where perhaps a more sophisticated educational process is available than in a less populous area where the other parent may reside? Of course not.
There was no evidence that “proper medical treatment” was unavailable in Mexico, or that Robert was ever neglected for that reason. He lived and attended school in Mexico for three years, and he emerged “in good physical health.”
Marilyn was not questioned as to her religious beliefs concerning medical treatment, and the evidence of her beliefs is sparse. Assuming, however, that her religion does discourage or prohibit the use of drugs or medications, or treatment by physicians, is that a valid reason to change custody? Christian Science, a denomination with wide membership, has similar teachings; it discourages as unnecessary the use of drugs or treatment by physicians; yet though such beliefs may be “unorthodox” to the trial judge, they are constitutionally protected and form no basis for denying or changing custody. In Jackson v. Jackson, 181 Kan. 1, Syl. ¶¶ 5, 6, 309 P.2d 705 (1957), we said:
“[T]he question of religion cannot be regarded by the court in determining the care, custody and control of minor children. The courts have no authority over that part of a child’s training which consists in religious discipline, and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified.”
“Religious freedom, as guaranteed by our Constitution, should be faithfully upheld, and religious teachings to the children by a parent or parents, regardless of how obnoxious the same might be to the Court, the other parent or the general public should not. and must not be considered as basis of making child custody orders.”
The record overflows with evidence of Marilyn’s love for her son, of his love for her, and of their close relationship. The guardian ad litem found “a strong bond of affection.” Boyd, on the other hand, has had no hand in raising Robert; he has cut off Robert’s support twice for long periods of time; and there is no indication of Boyd’s love, affection, care, or parental concern, except his demand for custody. Love, affection, care, and concern, deserve as much if not more attention and consideration than does the matter of financial worth or affluence. Marilyn did not neglect Robert; she gave him constant love and care. Her custody should not have been terminated.
Other points raised need not be discussed in view of our disposition of this case.
The judgment is reversed and the case is remanded with directions to dismiss the petition. | [
-80,
100,
117,
124,
11,
97,
42,
26,
123,
-93,
-93,
-45,
-87,
75,
16,
121,
115,
47,
101,
120,
-45,
-77,
7,
-30,
114,
-13,
-72,
-44,
-77,
-35,
-84,
-42,
76,
32,
-118,
85,
102,
-54,
-59,
-44,
-54,
22,
-101,
-11,
81,
-126,
52,
107,
18,
79,
113,
-113,
-13,
40,
-67,
-22,
44,
46,
31,
-67,
24,
-72,
-97,
20,
95,
2,
-75,
-92,
-110,
-90,
88,
126,
-104,
-111,
8,
-24,
114,
-74,
-122,
116,
119,
-103,
-120,
96,
98,
5,
109,
-19,
-8,
-120,
14,
-34,
29,
-28,
-106,
88,
41,
103,
-66,
60,
124,
20,
74,
-6,
-1,
12,
61,
-28,
12,
-114,
-44,
-127,
-115,
56,
-120,
0,
-29,
99,
0,
85,
-59,
-78,
125,
102,
59,
-103,
7,
-14
]
|
The opinion of the court was delivered by
Harman, C.:
This is an action against a sheriff and his surety for damages for invasion of privacy and assault committed by the sheriff’s deputies. The trial court sustained defendants’ motions to dismiss for failure of the petition to state a claim upon which relief can be granted. Plaintiffs have appealed from that order.
After alleging that defendant Johnny Darr is the sheriff of Sedgwick county, Kansas, and defendant Ohio Casualty Insurance Company is a surety company doing business in Kansas, plaintiffs petition continued:
“III
“As Sheriff of Sedgwick County, the defendant Darr is responsible for all acts of his deputies which are performed as peace officer.
“IV
"Plaintiff Monroe is a citizen who works the late evening shift and is unable to get to bed at his home, Apartment 601, Royal Regency Apartments, 4244 South Hydraulic, Wichita, Sedgwick County, Kansas, until approximately 2:00 a. m.
“V
“Plaintiff Appel is a resident of Denver, Colorado, who was a guest of Mr. and Mrs. Monroe on the occasion in question.
“VI
“At approximately 10:00 a. m., Thursday, February 8, 1973, the plaintiff Monroe was awakened by a noise in his apartment, where he, Mr. Appel, and Monroe’s two children were sleeping, and the first thing he heard was the voice of a sheriff’s deputy ordering him to slowly remove his hands from under the cover. The person speaking was holding a shotgun, and it was pointed directly at Mr. Monroe. Other personnel of the Sheriff’s Office, including an unknown sergeant, were also in the Monroe apartment, and the sergeant was pointing his handgun at Mr. Appel. Although the officers were uniformed, none of them stated their names or any reasons for their action before instituting a search of the premises, all of which was conducted while plaintiffs were looking down the less advantageous ends of gun barrels. There was no search warrant authorizing the deputies to enter the Monroe apartment or to search the premises.
“VII
“After several minutes of being frightened by the deputies, plaintiffs were told that the wrong apartment had been entered, and the deputies left in haste with no further explanation or apology.
“VIII
“This type of official misconduct has occurred on prior occasions since the defendant became sheriff, and it endangers the peace of mind of every private citizen whose home might be entered at gun point by officers who have made an insufficient preliminary investigation before using unreasonable force against innocent victims of police incompetence.
“IX
“Since the assault and the invasion of their privacy, both plaintiffs, in varying degrees, have lost sleep, become apprehensive, have generally lost their peace of mind and suffered undue mental anguish as a result of the events in question. They have further become distressed over the defendant’s unwillingness to take appropriate corrective measures to remedy the situation and to give the public protection from further incidents of this type.
“XI
“The defendant Ohio Casualty Insurance Company of Hamilton, Ohio, is the surety on the bond of the defendant Darr, and as such, is liable under K. S. A. 19-802 to the extent of the Sheriffs’ liability to the plaintiffs.”
In making its rulings the trial court had before it only plaintiffs’ petition and the motions to dismiss. The ground for dismissal stated in the motions was simply that plaintiffs had not stated facts sufficient to sustain a cause of action against defendant Darr in his capacity as sheriff. The journal entry of judgment does not reveal the legal principles controlling the trial court’s decision nor does the record on appeal otherwise disclose its rationale. The parties state no record was made of the trial judge’s oral announcement of the ruling and they do not agree as to just what was previously argued by counsel — factors which bear on one of defendants’ contentions for affirmance of the judgment.
We summarize the parties’ present contentions. Plaintiff-appellants rely wholly upon statutory law making a sheriff responsible for the official acts of his deputies and his sureties liable on his official bond for the deputies’ misconduct.
Defendant-appellees respond that in the trial court appellants relied solely on the doctrine of respondeat superior for recovery; a sheriff is not liable for a deputy’s misconduct on that theory; having relied upon that doctrine in the trial court appellants may not change theories upon appeal; further the petition shows the deputies were not performing official acts at the time of their alleged misconduct. There is no contention the petition fails to allege tortious conduct on the part of the deputies.
Appellees correctly assert that a sheriff is not liable for the official acts of his deputy upon the doctrine of respondeat superior (Duran v. Mission Mortuary, 174 Kan. 565, 258 P. 2d 241; Libby v. Schmidt, 179 Kan. 683, 298 P. 2d 298). It must be borne in mind, however, this court in stating the rule was referring to the common law doctrine of respondeat superior — not a liability prescribed by statute albeit that liability is of virtually the same import.
In Libby it was said:
“In this state the liability of a sheriff for the official acts of his deputy is not based upon the doctrine of respondeat superior but on the fact that by statute the deputy is his representative for whose acts he is liable as if they had been done by himself.” (p. 685.)
The statute in question is K. S. A. 19-805, which provides:
“Each sheriff may appoint such and so many deputies as he may think proper, for whose official acts and those of his undersheriffs he shall be responsible, and may revoke such appointments at his pleasure; and persons may also be deputed by such sheriff or undersheriff in writing, to do particular acts; and the sheriff and his sureties shall be responsible, on his official bond, for the default or misconduct of his undersheriff and deputies.”
K. S. A. 19-802 prescribes the conditions of the official bond required to be filed by a sheriff prior to assuming his office — essentially faithful performance of duties. We have many cases under these 1868 enactments holding that sheriffs and their bondsmen are responsible for acts of their deputies performed or committed in discharging their official duties (5 Hatcher’s Kansas Digest, rev. ed., Sheriffs, § 17; 8A West’s Kansas Digest, Sheriffs & Constables, § 100). Typical for present purposes is Pfannestiel v. Doerfler, 152 Kan. 479, 105 P. 2d 886. There a petition alleged that deputy sheriffs in maldng an arrest under a warrant used excessive force by discharging a tear gas gun into plaintiff’s eyes at close range and thereafter failed to provide needed medical attention. The petition was held to state a cause of action under 19-805 as interpreted by prior case law.
As indicated the record here does not reveal the parties’ contentions at trial level nor the reason given for the ruling there made. This, however, is of little or no moment, nor is the fact that the statute, 19-805, was not pleaded, despite appellees’ contentions to the contrary. Under our former code of civil procedure it was not necessary to plead a statute. The rule was that where a statute provided a cause of action it was not necessary to plead the statute where the facts alleged were sufficient to bring the case within it (Patrick v. Haskell County, 105 Kan. 153, 181 Pac. 611). More broadly, we have held that a petition which alleged a cause of action upon any theory was sufficient to withstand a demurrer lodged against it (Beggerly v. Walker, 194 Kan. 61, 397 P. 2d 395). With the advent of present notice-type pleading more illiberal construction should not be the order of the day and the foregoing rules should still prevail. Our proviso for a motion to dismiss an action for failure of the petition to state a claim upon which relief can be granted (K. S. A. 1973 Supp. 60-212 [b] [6]) is patterned after Rule 12 of the federal procedural code. In 5 Wright and Miller, Federal Practice and Procedure, § 1357 this judicial tenet is expressed:
“The complaint should not be dismissed merely because plaintiff’s allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” (pp. 601-602.)
The federal view appears sound in principle because all that is required of a petition is that it contain a short and plain statement of the claim showing the pleader is entitled to relief (K. S. A. 60-208 [a]) and, accordingly, we adopt that view.
We turn to consideration of appellants’ petition. Appellees urge it is fatally defective because it reveals the deputies were performing without benefit of an arrest or search warrant and hence their actions were outside the scope of their authority, with the result they were not performing official acts at the time of their alleged misconduct. They assert there was no violation of an official duty and point to the following language found in Libby:
“In Hitsman v. Kennedy, 138 Kan. 564, 27 P. 2d 218, this court adhered to the rule that liability upon an official bond arises only with reference to acts of the officer which pertain to some function or duty which the law imposes upon his office, and that a sheriff and his bondsman are not liable for an unofficial act of a deputy where the act is one which the law does not require him officially to perform.” (p. 686.)
It is correct that 19-805 does not impose liability on a sheriff and his bondsman for every act of misconduct on the part of his deputy. Liability attaches only when the misconduct occurs in the performance of an official act by the deputy. In Libby an official act was defined as an act or duty imposed on an officer by law, that is, an act which the law requires him officially to perform.
Does the petition here sufficiently allege performance of official duty by the offending deputies?
First it should be noted that the deputy sheriffs were alleged to be in uniform (K. S. A. 1973 Supp. 19-822, with exceptions which do not presently appear to be material, provides that sheriffs and their deputies, when on duty, shall be dressed in a distinctive uniform and display a badge of office). Evidently one of them bore indicia of a sergeant. They were armed. It appears to be a fairly drawn inference that they were making an arrest and conducting a search — work clearly within the realm of the duties of deputy sheriffs. Although not determinative (and surplus verbiage is included) the petition does characterize the deputies’ action as “official misconduct” and it mentions K. S. A. 19-802, the statute prescribing the conditions for the sheriffs official bond.
It is true the petition makes no mention of an arrest warrant. However, Kansas law enforcement officers have a right, moreover a duty, to arrest and also to conduct a search without a warrant under particular circumstances, the extent of which authority is of no present concern.
Long ago this court recognized the concept of acts done under color of office in determining what constituted official acts of a law enforcement officer. In Hoye v. Raymond, 25 Kan. 665, the action was one for damages against a constable and the sureties on his official bond for wrongs committed by the constable’s deputy. The deputy allegedly levied execution upon property of the plaintiff rather than upon that of the person named in the writ. In holding the petition good as against demurrer, this court stated:
“The deputy is the agent of the constable for the service of process and whatever the deputy does under color of his office, the constable in legal contemplation also does, and is responsible therefor.” (pp. 666-667.)
In Hitsman v. Kennedy, 138 Kan. 564, 27 P. 2d 218, a sheriff and his undersheriff were invited by the sheriff of another county to attend a raid upon an illicit still located within the jurisdiction of the latter. Suit was brought against the visiting sheriff and his official bondsman for wrongful acts of his undersheriff in the course of the expedition. This court held the out-of-county officers had no official duty to perform in the raid and no more official status than neighbors near the raided property would have had had they joined the party. This rule was stated:
“The liability on the sheriff’s official bond does not extend beyond acts done by virtue of his office or color of office, nor for acts done in his private and unofficial capacity.” (Syl.)
Consideration of acts done under color of office as constituting official acts received more elaborate treatment under statutes similar to our own in Miles v. Wright, 22 Ariz. 73, 194 Pac. 88. There a deputy sheriff boarded a train and made a warrantless arrest of the plaintiff upon a charge of larceny. Suit was brought against the sheriff and his surety. Defendants demurred to plaintiff’s petition on die ground it did not state a cause o£ action in that it failed to allege the deputy was in the performance of an official act or that his acts were done in obedience to any duty imposed by law, and further revealed the deputy had no warrant upon which to make an arrest. After stating Arizona law similar to our own which authorized a peace officer to arrest without a warrant under certain circumstances, the court had this to say respecting official acts:
“Our examination of the cases, however, convinces us that the correct rule is stated in Turner v. Sisson, 137 Mass. 191, wherein the court defines an official act as follows:
“ ‘It means any act done by the officer in his official capacity under color and by virtue of his office.’
“The court, in the case of Hall v. Tierney, 89 Minn. 407, 95 N. W. 219, approves the Massachusetts definition of an ‘official act’ and adds:
“ ‘The distinction originally made between acts done by virtue of an office and acts done by color of office has been entirely disregarded by leading authorities within the past few years [citing authorities] . . . Under G. S. 1894, § 7120, the right is given the sheriff to arrest a person without a warrant, and it has been held in this state that, whether a sheriff arrests under a warrant or under the authority thus given by statute (that is, without a warrant), he acts in his official capacity. Warner v. Grace, 14 Minn. 487. As a peace officer, the sheriff arrested and incarcerated the plaintiff in jail. He made this arrest without a warrant, and in so doing acted officially, and, it is alleged without authority of law.’
“Quoting and adopting the definition of an ‘official act’ in the Tumer-Sisson case, the Supreme Court of Illinois made this comment:
“ ‘By an official act is not meant a lawful act of the officer in the service of process; if so, the sureties would never be responsible. It means any act done by the officer in his official capacity, under color and by virtue of his office.’ Greenberg v. People, 225 Ill. 174, 8 L. R. A. (N. S.) 1223, 116 Am. St. Rep. 127, 80 N. E. 100.
“In a very recent case, Reichman v. Harris, 252 Fed. 371, loc. cit. 384, 164 C. C. A. 295, 308, this court said:
“ ‘Where the act of the deputy is an official act and causes an injury, the sheriff is answerable; and this is true where the act is done in execution of the deputy’s office, even though he may be mistaken as to the lawfulness of the act, for otherwise no action could ever be maintained against a sheriff for the misconduct of his deputy [citing cases]. Although the sureties of the sheriff are not parties here, yet the controlling principles laid down in these cases and by Judge cooley are necessarily involved and applied in decisions granting recovery against a sheriff or other like officer and his sureties for misconduct of the officer or his deputies [citing authorities].’
“Also in Meek v. Tilghman et al., 55 Okl. 208, 154 Pac. 1190, the court said:
“ ‘In Brown v. Weaver, 76 Miss. 7, 71 Am. St. Rep. 512, 42 L. R. A. 423, 23 South. 388, in a well-considered opinion the court quotes from Murfree on Sheriffs as follows:
“ * “If the act from which the injury resulted was an official act, the authorities are clear that the sheriff is answerable; if it was not an official, but a personal, act, it is equally clear that he is not answerable. But an official act does not mean what the deputy might lawfully do in the execution of his office; if so, no action would ever he against the sheriff for the misconduct of his deputy. It means, therefore, whatever is done under color or by virtue of his office."’
“We think the more modem view taken by most of the courts is well expressed, by Mr. Justice chadwick in Greenius v. American Surety Co., 92 Wash. 401, L. R. A. 1917F, 1134, 159 Pac. 384, as follows:
“ ‘Much mental energy has been expended in drawing distinctions between acts of public officers done colore officii and acts done virtute officii, and we shall not undertake to assemble definitions. Our understanding is that, when an officer acts in the performance of his duty and, so acting, acts to the hurt or annoyance of a third party or an innocent party, he is nevertheless acting in virtue of his office. That is to say, if his office gives him authority to act, he is acting in virtue of his office, although, in the performance of a specific duty, he improperly exercises his authority. For instance, if an officer have a warrant for A. and, without reasonable ground for believing him to be the guilty person, takes B., he is still acting in virtue of his office. If it were not so, he would never be liable upon his bond. Nor would his surety ever be liable except for his lawful acts, which is reductio ad absurdum, for it follows that there could be no liability if there had been no breach of duty.’ ” (pp. 83-85.)
In the Kansas cases cited, Hoye and Hitsman, this court appears to have had in mind the definition of an official act as elaborated by the Arizona court and the authorities cited therein. Accordingly, it must be held that an official act includes any act done by an officer in his official capacity under color of his office.
Since it may be fairly inferred from appellants’ petition that the deputies were making an arrest and search under color of authority, it follows the sheriff and his surety would be answerable for wrongs committed by them and the trial court erred in dismissing the action (at this stage we are not concerned with whether their conduct was actually tortious). On the other hand, if the deputies at the time in question were on a private errand of their own, completely apart from the duties of a peace officer, that fact can be pleaded by appellees as a defense and shown at trial.
The judgment is reversed and the cause remanded with directions to set aside the order of dismissal and proceed wiih trial of the action.
APPROVED BY THE COURT. | [
-16,
-20,
-7,
-116,
9,
97,
58,
-72,
115,
-79,
39,
83,
-85,
-61,
5,
107,
-6,
125,
117,
88,
65,
-78,
3,
42,
-14,
50,
-47,
-59,
-78,
75,
-12,
-41,
76,
96,
-118,
-43,
-122,
-54,
-123,
92,
-114,
-121,
-71,
-12,
-46,
66,
48,
57,
-30,
11,
49,
-67,
-29,
42,
18,
-41,
73,
44,
-37,
45,
-80,
113,
-21,
21,
-50,
18,
-77,
32,
-104,
7,
-8,
18,
-104,
49,
0,
-24,
115,
-90,
-106,
52,
43,
-101,
-84,
110,
67,
33,
-123,
-28,
-20,
-103,
14,
123,
-97,
39,
-75,
104,
106,
12,
-105,
-99,
116,
53,
67,
-4,
-25,
84,
31,
108,
-89,
-53,
-44,
-73,
77,
114,
-112,
-125,
-49,
33,
52,
113,
-57,
36,
84,
69,
16,
-65,
-50,
-112
]
|
The opinion of the court was delivered by
Six, J.:
This is a constitutional law case. Plaintiffs/taxpayers (retired military), in consolidated class actions, challenge the taxing of federal military retirement benefits under the Kansas Income Tax Act (KITA), K.S.A. 79-3201 et seq. State and local government retirement benefits are not taxed under KITA.
The plaintiffs/taxpayers appeal from the trial court’s memorandum decision and order, which denied their motion for summary judgment and entered summary judgment in favor of the defendants (the State, the Department of Revenue, and two state officials). The trial court upheld the differential tax treatment of federal military retirement benefits under KITA.
Is K.S.A. 79-3201 et seq. constitutional? The primary issue is whether the inconsistent tax treatment is directly related to and justified by significant differences between federal military retirees taxed by Kansas and other retirees not taxed by Kansas.
Our jurisdiction is under K.S.A. 20-3017. We granted the taxpayers’ motion to transfer from the Court of Appeals.
We find no error and affirm. K.S.A. 79-3201 et seq. is constitutional.
Facts
On March 28, 1989, the United States Supreme Court held that a Michigan statute imposing a state income tax on retirement benefits of federal civil service retirees, while exempting retirement benefits of State retirees, violated the doctrine of intergovernmental tax immunity. Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 103 L. Ed. 2d 891, 109, S. Ct. 1500 (1989).
On April 17, 1989, the instant class action suits were filed challenging the validity of the provisions of KITA. The challenged provisions tax federal military retirement benefits while exempting retirement benefits received by state and local government retirees.
All named plaintiffs in the instant action are Kansas residents who are retired members of the United States Armed Forces and, where applicable, their joint taxpayer spouses. They have paid Kansas income taxes on federal military retirement pay during one or more years from 1984 through 1989. The certified class is defined as:
“[A]ll retired members of the federal or United States armed forces who are recipients of federal armed forces retirement benefits [under applicable provisions of Title 10 or Title 14 or the United States Code] subject to Kansas state income taxation during one or more of the tax years from 1984 through 1989 and, where applicable, their respective spouses who have filed or will file joint Kansas state income tax returns during one or more of the tax years irom 1984 through 1989.”
There are approximately 14,000 military retirees who are members of the class.
Defendants are the State of Kansas, the Kansas Department of Revenue, Secretary of Revenue Ed Rolfs, and Acting Director of Taxation Steve Stotts. Defendants Rolfs and Stotts are named in their official capacity as administrators charged with enforcement of KITA.
The Taxpayers’ Claims
The taxpayers claim KITA discriminates against federal military retirees and, therefore, violates: (1) 4 U.S.C. § 111 (1988), and constitutional principles of intergovernmental tax immunity as discussed and applied in Davis; (2) the supremacy clause of the United States Constitution; (3) the privileges and immunities clause of the Fourteenth Amendment of the United States Constitution; and (4) Article 11, § 2 of the Kansas Constitution. The taxpayers also allege deprivation of their civil rights as secured by the United States Constitution and laws in violation of the Fourteenth Amendment and of 42 U.S.C. § 1983 (1988).
The taxpayers sought declaratory judgment that KITA is unconstitutional as applied to federal military retirees and that military retirement pay is exempt from Kansas income taxation for tax years 1984 to the present. The taxpayers also seek a permanent injunction prohibiting defendants from levying, assessing, and/or collecting Kansas income taxes on military retirement benefits. Refunds of Kansas income tax paid by members of the plaintiff class on their military retirement benefits from tax years 1984 to the present (with interest at the rate of 12% per year until paid) and costs including reasonable attorney fees under 42 U.S.C. § 1988 (1988), are also requested.
The taxpayers filed a motion for summary judgment. They argued that under Davis KITA is unconstitutional because it discriminates in favor of state and local government retirees and against federal military retirees based on the source of retirement benefits. Taxpayers further argued that the inconsistent tax treatment is neither directly related to nor justified by significant differences between the classes of retirees.
Defendants’ Claims
The defendants responded to the taxpayers’ contentions by arguing that the inconsistent tax treatment of the two classes of retirees is directly related to, and justified by, significant differences between the two classes; that Davis has been complied with; and that the Kansas income tax law is supported by a rational basis and does not violate the Kansas Constitution. Defendants also argued that the taxpayers are not entitled to relief under 42 U.S.C. § 1983 because: (1) the State of Kansas and the Kansas Department of Revenue are not “persons” under § 1983; (2) the Secretary of Revenue and the Director of Taxation, acting in their official capacities, are not “persons” under § 1983; (3) exhaustion of administrative remedies is required before a state tax may be challenged under § 1983; and (4) 4 U.S.C. § 111 does not create enforceable individual rights. Finally, defendants asserted that if the court finds KITA invalid, the taxpayers are not entitled to retrospective relief under either federal law or K.S.A. 79-32,105(c).
The Trial Court’s Decision
The trial court entered its memorandum decision denying the taxpayers’ motion for summary judgment and entered summary judgment sua sponte for defendants. The trial court held that KITA, as applied to military retirement pay, is constitutional and does not violate 4 U.S.C. § 111. Finding that there are substantial differences between the two classes (military retirees and state and local government retirees) justifying the disparate tax treatment, the trial court stated:
“Viewed in toto the military retired system is unique to other retirement systems, especially in light of the fact that military retirees are subject to recall and during active service do not contribute to their retired pay. The absence of contribution during active service by military retirees or by their employer, the Federal Government, is consistent with the [United States v.] Tyler, [105 U.S. (15 Otto) 244, 26 L. Ed. 985 (1881),] and McCarty [v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981),] decisions which state military retired pay is reduced compensation for reduced current services.”
The trial court considered all other issues raised by the parties and found them to be without merit. Finding KITA valid, the trial court did not address the request for refunds. The trial court stated that defendants’ motion for partial summary judgment on the civil rights claim under 42 U.S.C. § 1983 was moot.
The Relevant KITA Tax Scheme
Under KITA, federal adjusted gross income (AGI) is the starting point for determining an individual’s Kansas income tax liability. An individual’s Kansas AGI is an individual’s federal AGI, subject to certain modifications. K.S.A. 1990 Supp. 79-32,117(a). An individual’s Kansas taxable income is Kansas AGI less Kansas deductions and exemptions. K.S.A. 79-32,116.
Federal AGI includes military retirement benefits and state and local government retirement benefits. 26 U.S.C. § 61(a) (1988). Retirement benefits received from the Kansas Public Employees Retirement System (KPERS) are subtracted from federal AGI to arrive at Kansas AGI and are exempt from Kansas income tax. K.S.A. 1990 Supp. 79-32,117(c)(ii). See K.S.A. 1990 Supp. 74-4923(b) (also exempts benefits paid under the Kansas Police and Fireman’s Retirement System [KP&F]). There are similar statutory exemptions for benefits received by other retired state and local employees. K.S.A. 1990 Supp. 74-4978g (benefits from the highway patrol pension fund payable under KP&F); K.S.A. 72-1768a and K.S.A. 72-17,122 (benefits paid under the school employees’ supplemental retirement system); K.S.A. 1990 Supp. 20-2618 (benefits paid under retirement systems for judges); K.S.A. 12-llla, K.S.A. 1990 Supp. 12-5005, K.S.A. 13-14al0, and K.S.A. 14-10al0 (benefits paid to policemen and firemen under local retirement plans); K.S.A. 1990 Supp. 79-32,117(c)(ix) (benefits paid to retired city employees); and K.S.A. 1990 Supp. 79-32,117(c)(xiii) (benefits paid to retired employees of a board of public utilities).
Certain federal retirement benefits are also subtracted from federal AGI to arrive at Kansas AGI and are exempt from Kansas income tax. Benefits received as annuities under the federal civil service retirement system or benefits received by retired railroad employees are exempted from Kansas income tax. K.S.A. 1990 Supp. 79-32,117(c)(vii) and (viii).
Military retirement benefits are not subtracted from federal AGI and are included in Kansas AGI under KITA. Military retirement benefits are subject to Kansas income tax. Military retirees age 62 or older are entitled to a $120 tax credit against Kansas income tax. K.S.A. 79-32,111b.
The net result is that benefits paid to federal civil service, railroad, state, and local government retirees are exempt from Kansas income tax while benefits paid to military retirees are not.
Presumption of Constitutionality
In determining the constitutionality of K.S.A. 79-3201 et seq., we note the following principles: Construction of a statute is a question of law, and it is the function of this court to construe a statute to give it the effect intended by the legislature. NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989).
The constitutionality of a statute is presumed and all doubts should be resolved in favor of its validity. Before the statute may be struck down, it must clearly appear the statute violates the Constitution. It is this court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way to construe the statute as constitutional, we should do so. Guardian Title Co. v. Bell, 248 Kan. 146, 149, 805 P.2d 33 (1991). However, when legislation encroaches upon constitutional provisions, it is our duty and obligation to declare the legislation unconstitutional. Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 62-63, 152 P.2d 53 (1944).
Intergovernmental Tax Immunity and the Davis Decision
The taxpayers filed the instant action in response to the United States Supreme Court’s decision in Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 103 L. Ed. 2d 891, 109 S. Ct. 1500 (1989). In Davis, a retired federal government employee receiving federal civil service retirement benefits challenged the Michigan Income Tax Act (MITA). MITA is similar to KITA. MITA commences with federal adjusted gross income to define Michigan taxable income and allows a deduction for all benefits received from public retirement systems created by the State of Michigan or its political subdivisions. MITA limits the deduction for most other retirement benefits, including federal civil service retirement benefits, to $7,500 for a single return and $10,000 for a joint return. Davis, 489 U.S. at 806 n.2.
Davis challenged the taxation of his federal civil service retirement benefits under the doctrine of intergovernmental tax immunity and 4 U.S.C. § 111. 4 U.S.C. § 111 provides in relevant part:
“The United States consents to the taxation of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted tax authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.”
The doctrine of intergovernmental tax immunity carries a traceable lineage to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819). McCulloch held that a state may not impose a discriminatory tax on the Bank of the United States. The United States Supreme Court, speaking through Chief Justice John Marshall, reasoned that the Bank was an instrumentality of the federal government and taxation by the state would interfere with the exercise of federal powers delegated to the Bank.
This doctrine was more fully developed in Helvering v. Gerhardt, 304 U.S. 405, 82 L. Ed. 1427, 58 S. Ct. 969 (1938) (the federal government could levy nondiscriminatory taxes on the income of most state employees), and Graves v. N.Y. ex rel. O’Keefe, 306 U.S. 466, 83 L. Ed. 927, 59 S. Ct. 595 (1939) (federal employees were subject to nondiscriminatory taxes levied by the states). “After Graves, therefore, intergovernmental tax immunity barred only those taxes that were imposed directly on one sovereign by the other or that discriminated against a sovereign or those with whom it dealt.” Davis, 489 U.S. at 811.
In effect, 4 U.S.C. § 111 codified the result in Graves. The final clause of § 111, “if the taxation does not discriminate against the officer or employee becausé of the source of the pay or compensation,” makes it clear that immunity from taxation was waived for only nondiscriminatory taxes. Because § 111 embodied the modem constitutional doctrine of intergovernmental tax immunity, the United States Supreme Court in Davis concluded that the dispositive question was whether MITA violated the doctrine of intergovernmental tax immunity. Davis, 489 U.S. at 813-14.
Relying on Phillips Co. v. Dumas School Dist., 361 U.S. 376, 383-85, 4 L. Ed. 2d 384, 80 S. Ct. 474 (1960), the Davis court stated: “[T]he relevant inquiry is whether the inconsistent tax treatment is directly related to, and justified by, ‘significant differences between the two classes.’ ” 489 U.S. at 816.
Michigan unsuccessfully asserted two allegedly significant differences between federal and state retirees.
First, Michigan argued that its interest in hiring and retaining qualified civil servants through the inducement of a tax exemption for retirement benefits justified the preferential treatment of its retired employees. The United States Supreme Court rejected this argument, stating the argument does nothing to demonstrate differences between the classes, but merely demonstrates that Michigan has a rational basis for discriminating between the two similar classes. Michigan’s interest, no matter how substantial, was irrelevant. 489 U.S. at 816. An equal protection analysis is irrelevant in the context of intergovernmental immunity. See Phillips Co., 361 U.S. at 383-85.
Second, Michigan argued that its retirement benefits are significantly less munificent than federal retirement benefits in terms of vesting requirements, rate of accrual, and computation of benefit amounts. The substantial differences in the value of the re tirement benefits, in Michigan’s view, justified the inconsistent tax treatment. 489 U.S. at 816. The Davis Court rejected this argument by pointing out that, while the average federal civil servant receives a larger pension than his state counterpart, there are undoubtedly instances in which the opposite is true. The Court stated: “A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees.” 489 U.S. at 817.
The Davis Court concluded that MITA violated principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal government employees. Michigan conceded that a refund was appropriate; therefore, Davis did not address the issue of retrospective relief. Davis was remanded on the issue of prospective relief. The Davis Court stated that discriminatory taxation could be avoided by either extending the exemption to federal retirees or removing the exemption for state and local retirees, but recognized that the Michigan courts are in the better position to determine how to comply with the mandate of equal treatment. 489 U.S. at 817-18.
Davis relied on Phillips, 361 U.S. 376. In Phillips, the State of Texas imposed a tax measured by the full value of real property owned by the United States upon the lessee of that property (Phillips Chemical Co.). Real property owned by the United States was exempt from tax. Lessees of exempt property owned by the state and its political subdivisions, with similar lease provisions, were not taxed on their leaseholds.
A unanimous Supreme Court reversed the Texas Supreme Court, holding that the tax imposed on federal government lessees unconstitutionally discriminated against the United States and those with whom it dealt. 361 U.S. at 387. Because the discrimination was apparent, the Court stated: “The imposition of a heavier tax burden on lessees of federal property than is imposed on lessees of other exempt public property must be justified by significant differences between the two classes.” 361 U.S. at 383.
Texas argued three differences justified the disparate tax treatment: (1) The State can collect in rent what it loses in taxes from its own lessees, which it cannot do with federal government lessees; (2) the State may foster its own interests by adopting measures which facilitate the leasing of its property; and (3) the greater magnitude of the federal leasing of exempt land has a greater impact on the finances and operations on local government than does the State’s leasing activities. 361 U.S. at 383-84.
The Court in Phillips found none of these considerations justified the disparate tax treatment. In regard to the first proffered justification, the Court reasoned that what the Texas political subdivisions lose in taxes from the State’s lessees is not made up in increased rent. Other local taxpayers, including the federal government’s lessees, must make up the difference. The State’s second proffered justification was a legitimate state objective; however, the discriminatory taxation of the federal government’s lessees was impermissible regardless of the State’s legitimate objective. As to the alleged greater impact of federal leasing, the Court stated that the taxing statute was not based on this difference. The taxing statute imposed its burdens on all lessees of government property with no relation to the impact on local government. 361 U.S. at 384-85.
Unfortunately, neither Davis nor Phillips provide further guidance on how to determine whether the inconsistent tax treatment is “directly related to, and justified by, ‘significant differences between the two classes.’ ”
One post-Davis commentator has observed that the courts are now left without easy guidelines to determine whether a state tax is discriminatory. Note, Rejection of the “Similarly Situated Taxpayer” Rationale: Davis v. Michigan Department of Treasury, 43 Tax Law. 431, 439-40 (1990).
KITA exempts federal civil service retirement benefits from taxation. In this respect, Davis is not directly on point. The crucial issue in the case at bar is whether the inconsistent taxation of federal military retirement benefits is “directly related to, and justified by, ‘significant differences’ ” between federal military retirees and state and local government retirees.
The Taxpayers’ Contentions
The taxpayers contend that the inconsistent tax treatment of military retirees is not directly related to, and justified by, significant differences between the two classes. They advance various arguments, sometimes overlapping, to support their “no significant difference” contention.
The taxpayers argue that federal military retirees and state and local government retirees are similarly situated and should be treated the same under KITA. In other words, there are no significant differences between the two classes. In support of this argument, they assert the trial court emphasized immaterial differences. The taxpayers point to the following similar characteristics: (1) both federal military retirees and state and local government retirees are entitled to retire and receive retirement benefits upon satisfying statutory requirements for eligibility; (2) upon retirement both classes of retirees leave active government service; (3) retirees of each class receive retirement benefits based on their number of years of service and their highest salary received before retirement; and (4) Kansas treats both federal military retirement benefits and state and local government retirement benefits as deferred compensation.
The Defendants’ Contentions
Defendants counter, contending that federal military retirees and state and local government retirees are not similarly situated. Defendants mark the following differences: (1) federal military retirees remain members of the armed forces of. the United States after they retire from active duty; they are retired from active duty only; (2) federal military retirees are subject to the Uniform Code of Military Justice (UCMJ) and may be court martialed for offenses committed after retirement; (3) they are subject to restrictions on civilian employment after retirement; (4) federal military retirees are subject to involuntary recall; (5) federal military retirement benefits are not deferred compensation but current pay for continued readiness to return to duty; and (6) the federal military retirement system is noncontributory and funded by annual appropriations from Congress; thus, all benefits received by military retirees have never been subject to tax.
In contrast, defendants assert: State and local government retirees are completely severed from employment and have no continuing connection with government employers. State and local retirees are not subject to government personnel procedures or disciplinary rules, and there are no restrictions on their post- retirement activities. State and local government retirees are not subject to involuntary recall. State and local government retirement benefits are deferred compensation, not current pay. KPERS benefits are funded by regular employee and employer contributions. Participation in KPERS is mandatory, and state employees are required to make contributions to KPERS after working for the State for one year. Employee contributions to KPERS are subject to Kansas income tax in the year in which they are made; thus, KPERS benefits received by State employees include these previously taxed contributions.
The first four differences between military and state and local government retirees asserted by defendants support the contention that federal military retirement benefits are reduced compensation for reduced current services. The reduced compensation for reduced current services difference was the basis for the trial court’s decision in the case at bar. Relying on McCarty v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981), United States v. Tyler, 105 U.S. (15 Otto) 244, 26 L. Ed. 985 (1881), and Cornetta v. United States, 851 F.2d 1372 (Fed. Cir. 1988), the trial court found “that due to the United States Supreme Court’s characterization of military retired pay as reduced compensation for reduced current services the KITA must be found constitutional.”
The Federal Cases
The United States Supreme Court held in Tyler that a retired military officer was entitled to the benefit of a statute that increased the pay of commissioned officers for every five years of service. The statute applied to the years in the service after retirement as well as before. The Court stated with reference to military retirement pay: “[Compensation is continued at a reduced rate, and the connection is continued, with a retirement from active service only.” 105 U.S. at 245. The Tyler Court concluded:
“It is impossible to hold that men who are by statute declared to be part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the rules and articles of war, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service.” 105 U.S. at 246.
In McCarty, an Army officer challenged a California Superior Court ruling that his “military pension and retirement rights” were subject to division as quasi-community property upon dissolution of marriage. 453 U.S. at 218. The California Court of Appeals affirmed, relying on In re Marriage of Fithian, 10 Cal. 3d 592, 111 Cal. Rptr. 369, 517 P.2d 449, cert. denied 419 U.S. 825 (1974), which held that military retirement was properly subject to division as community property upon divorce. The California Supreme Court denied McCarty’s petition for hearing. 453 U.S. at 218-19.
On appeal to the United States Supreme Court, McCarty argued that “military retired pay in fact is current compensation for reduced, but currently rendered, services” and may not be treated as community property since it is earned after the dissolution of the marriage. 453 U.S. at 221. The United States Supreme Court noted that military retired pay differs in some significant respects from a typical retirement plan: The retired officer remains a member of the Army; the officer continues to be subject to the Uniform Code of Military Justice; the officer may forfeit all or part of retirement pay if certain activities are engaged in; and the retired officer remains subject to recall to active duty at any time. 453 U.S. at 221-22. The McCarty Court stated: “These factors have led several courts, including this one, to conclude that military retired pay is reduced compensation for reduced current services.” (Emphasis added.) 453 U.S. at 222.
We consider the “retired pay is reduced compensation for reduced current services” characterization by the United States Supreme Court in McCarty to be significant in resolving the issue before us in the case at bar.
The Court in McCarty declined to decide whether federal law prohibits a state from characterizing retired pay as deferred compensation. The Court accepted McCarty’s alternative argument that California’s community property laws improperly interfered with the federal military system, which indicated that Congress intended military retirement pay to be a personal entitlement of the retiree.
In response to McCarty, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA), Pub. L. No. 97-252, 96 Stat. 730 (1982). The USFSPA includes 10 U.S.C. § 1408(c)(1) (1988), which authorizes state courts to treat disposable retired pay as marital property. Mansell v. Mansell, 490 U.S. 581, 584-85, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989). “Disposable retired or retainer pay” is defined as “the total monthly retired or retainer pay to which a member is entitled,” less certain deductions. 10 U.S.C. § 1408(a)(4).
Following congressional enactment of the USFSPA, the Kansas Court of Appeals held that military retirement pay was not marital property and was nothing more than a future stream of income which will cease at the death of the retiree. Grant v. Grant, 9 Kan. App. 2d 671, 676, 685 P.2d 327, rev. denied 236 Kan. 875 (1984). The Court of Appeals concluded: “[Mjilitary retirement pay has no present determinable value which would qualify it as a marital asset subject to division.’ 9 Kan. App. 2d at 676. In 1987, Kansas amended K.S.A. 23-201(b) (Ensley 1981) to treat military retirement pay as marital property upon commencement of an action for divorce, separate maintenance, or annulment.
The taxpayers argue that regardless of federal case law, Kansas has opted to treat military retirement pay as marital property and, therefore, not current income. The taxpayers assert that Kansas may not rely on federal case law involving nontaxation issues which state that military retired pay is reduced compensation for reduced current services.
Defendants counter the taxpayers’ argument by reasoning that the USFSPA authorizes states to treat military retirement pay as marital property only between spouses in divorce cases. Furthermore, under K.S.A. 23-201(b), military retirement pay is not considered marital property until the commencement of an action for divorce, separate maintenance, or annulment. Defendants reason taxpayers have not alleged the commencement of such an action; consequently, Kansas does not consider their military retirement pay as marital property.
The trial court rejected the taxpayers’ K.S.A. 23-201(b) argument, relying on Cornetta v. United States, 851 F.2d 1372. The trial court reasoned that the USFSPA did not change the legal characterization of military retirement pay for any other purpose than cases involving marital property settlements. We agree.
Cornetta involved a retired Marine officer who brought a wrongful discharge claim against the government approximately seven years after his discharge. The federal district court dismissed the action on the grounds of laches, finding that the seven-year delay was unreasonable and that the government had been prejudiced by the delay. Initially, the Court of Appeals affirmed the federal district court holding. Cornetta v. United States, 831 F.2d 1039 (Fed. Cir. 1987). On motion for rehearing, the court reversed, finding in part that the possibility that the officer might receive increased retirement benefits was not sufficient economic prejudice to the government. The Court of Appeals reasoned:
“Retired pay is reduced pay for reduced current services. Hotinsky v. United States, 292 F.2d 508, 510, 154 Ct. Cl. 443 (1961) (an officer draws retired pay because he is ‘still an officer’ in service of country); Lemly v. United States, 75 F. Supp. 248, 249, 109 Ct. Cl. 760 (1948) (an officer receiving retired pay ‘is still an officer in the service of his country even though on the retired list’); see United States v. Tafoya, 803 F.2d 140, 142 (5th Cir. 1986) (retired pay is “ ‘current pay” designed in part to compensate [an officer] for his continuing readiness to return to duty should his country have need to call upon him’); Costello v. United States, 587 F.2d 424, 427 (9th Cir. 1978) (’retirement pay does not differ from active duty pay in its character as pay for continuing military service’); Berkey v. United States, 361 F.2d 983, 987 n.9, 176 Ct. Cl. 1 (1966) (retired pay ‘has generally not been considered a pension, grant, or gratuity, but as something the serviceman earns and has earned’). . . .
“Unlike an award of back pay where the government in effect pays for unperformed service, receipt of retired pay by an officer means the government will pay for the reduced service it then receives. This is no detriment; the government gets what it pays for.” 851 F.2d at 1382.
Cornetta noted that 10 U.S.C. § 1408(c)(1) did not affect the characterization of military retired pay as reduced compensation for reduced current services. 851 F.2d at 1382 n.3 (citing United States v. Tafoya, 803 F.2d 140, 142 n.7 [5th Cir. 1986]).
We consider the status analysis of military retirement pay found in Cornetta significant.
In Tafoya, the defendant appealed from a court order withholding a portion of his army retirement pay to repay the government for services rendered by a public defender. The Tafoya court noted: “By some quirk of history, however, Tafoya’s re tirement pay is actually not ‘retirement pay’; it is instead ‘current pay’ designed in part to compensate Tafoya for his continuing readiness to return to duty should his country have need to call upon him.” 803 F.2d at 142 (citing McCarty). Current pay may not be offset absent specific statutory authority. The court in Tafoya noted that McCarty had been superseded by statute but found that the classification of military retired pay as current pay remains viable. 803 F.2d at 142 n.7. After determining military retired pay is current pay, the court denied the right of setoff, finding no statutory authority to set off Tafoya’s pay. 803 F.2d at 143. Tafoya’s “current pay” determination of military retired pay extends cumulative support to affirmance of the trial court in the instant case.
In Costello v. United States, 587 F.2d 424 (9th Cir. 1978), military retirees brought suit to challenge statutory changes to military retirement compensation. The retirees argued that military retirement pay is deferred compensation for past services, which could not be prospectively altered. The Ninth Circuit rejected this argument, finding that military retirement pay does not differ from active duty pay in its character as pay for continuing military service. The compensation could be prospectively altered without offending due process. 587 F.2d at 427-28. Costello provides a Ninth Circuit endorsement of the similar character of military retired pay and active duty pay.
In In re Siverling, 72 Bankr. 78 (Bankr. W.D. Mo. 1987), creditors objected to the debtor’s claim that his military retirement pay was not property of the estate under 11 U.S.C. § 541(a)(6) (1988). 11 U.S.C. § 541(a)(1) provides that the bankruptcy estate consists of “all legal or equitable interests of the debtor in property as of the commencement of the case.” However, “earnings from services performed by an individual debtor after the commencement of the case” are not property of the estate. 11 U.S.C. § 541(a)(6). The court cited Tyler and McCarty, finding military retirement pay is “reduced compensation for reduced current services” and not property of the estate. 72 Bankr. at 78-79.
These federal cases offer interpretative assistance and demonstrate the current vitality of Tyler’s conclusion in 1881 that military retirement pay is reduced current .compensation for re duced current services. In addition, Cornetta, Tafoya, and Siverling, all post-USFSPA cases, indicate that the USFSPA has not changed the federal characterization of military retirement pay as reduced current compensation for reduced current services.
The IRA Deduction
The taxpayers also argue that KITA considers military retirement pay as a pension, annuity, or deferred compensation; therefore, KITA may not also consider military retirement pay as current compensation. Because Kansas utilizes federal AGI to calculate Kansas taxable income, Kansas has incorporated 26 U.S.C. § 219 (1988) into KITA.
26 U.S.C. § 219 governs the deductibility of taxpayer contributions to an individual retirement account (IRA). The IRA deduction is limited to the amount of the taxpayer’s “compensation” for the tax year. 26 U.S.C. § 219(b). For purposes of § 219, “the term ‘compensation’ does not include any amount received as a pension or annuity and does not include any amount received as deferred compensation.” 26 U.S.C. § 219(f)(1). Each “active participant” in a retirement or pension plan “established for its employees by the United States, by a state or political subdivision thereof, or by an agency or instrumentality of any of the foregoing,” is subject to further limitations on the IRA deductions which may render the deduction unavailáble. 26 U.S.C. § 219(g)(1), (2), and (5)(A)(in).
Under § 219(f)(1), “Retirement income, including federal, civil and military retirement income, is not compensation for purposes of making deductible contributions to an IRA.” 6 Mertens Law of Federal Income Taxation § 25C.12, p. 58 (1988).
“This interpretation is consistent with the legislative intent behind the enactment of the tax law relating to IRAs. The purpose of an IRA is to give employees or self-employed individuals the opportunity to set aside some of their earnings for retirement. [Citations omitted.] To base an IRA deduction upon contributions made with retirement pay would be inconsistent with this purpose.” IRS Letter Ruling 8227053 (CCH) (April 9, 1982).
Section 219 does not consider military retirement pay as current income for reduced current services. However, this limited definition of “compensation” applies to § 219 only. 26 U.S.C. § 219(f)(1). As noted above, to allow an IRA deduction for contributions made with retirement pay would be inconsistent with the purpose of an IRA, regardless of whether retirement pay is “deferred compensation” or “reduced compensation for reduced current services.” Additionally, compensation does not include current income from passive sources such as rental income, interest income, and dividend income. Mertens, § 25C.12, p. 58.
Thus, the distinction is not so much the characterization as current income or deferred compensation, but rather active versus passive activities required to earn the income.
Funding Differences
Defendants also rely on the difference in funding the military retirement system and state and local retirement systems. State and local retirement benefits are funded by employee and employer contributions. See, e.g., K.S.A. 1990 Supp. 74-4919(1) (KPERS employee contribution) and K.S.A. 1990 Supp. 74-4920 (KPERS employer contribution). The employee’s contribution is taxed by Kansas in the year that it is made. K.S.A. 1990 Supp. 79-32,117(b)(vi); K.S.A. 1990 Supp. 74-4919(2). Part of the state and local government retirement benefits received after retirement include previously taxed contributions.
In contrast, the military retirement system is noncontributory. Neither military personnel nor the armed forces contribute to the military retirement system. The military retirement system is funded by annual appropriations from Congress. McCarty v. McCarty, 453 U.S. 210, 214, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981). All military retirement benefits received by military retirees consist of money which has never been subject to tax. The federal government’s method of funding prevents Kansas from taxing a portion of the military retirement benefits before such benefits are received.
The taxpayers argue that the inconsistent taxation of state, and local retirement pay and federal military retirement pay is not directly related to significant differences between the two classes. Kansas income tax exemptions are identified stricdy by source under K.S.A. 1990 Supp. 79-32,117(c). If the inconsistent tax treatment were directly related to significant differences, the taxpayers claim, KITA would not base its distinctions on source but instead would base them on: (1) retirees who completely retire versus retirees who retire from active duty only; (2) retirees who are subject to involuntary recall; (3) retirees who are subject to the Uniform Code of Military Justice; (4) retirees who are subject to post-retirement restrictions; and (5) retirees who participate in a contributory retirement program. The taxpayers rely on Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 817, 103 L. Ed. 2d 891, 109 S. Ct. 1500 (1989), which stated: “A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees.”
Defendants counter this “basis of the source” argument by pointing out that the statement from Davis quoted above followed the Davis Court’s rejection of Michigan’s proffered rationale for its inconsistent tax treatment. Michigan contended that the inconsistent tax treatment was justified because federal civil service retirement benefits were more munificent than Michigan’s state retirement benefits. Specifically, Michigan asserted that the value of federal civil service benefits was larger than the value of state retirement benefits. The Davis Court observed that the average federal civil servant receives a larger pension than his or her state counterpart but that there are individual instances in which the opposite holds true. Davis, 489 U.S. at 817.
Defendants then advance the language accompanying the quoted statement:
“A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees. Cf. Phillips Chemical Co., supra, at 384-385 (rejecting proffered rationale for State’s unfavorable tax treatment of lessees of federal property, because an evenhanded application of the rationale would have resulted in inclusion of some lessees of State property in the disfavored class as well).” (Emphasis added.) Davis, 489 U.S. at 817.
Defendants contend that the differences between the two classes, those receiving federal military retirement benefits and those receiving state and local government retirement benefits, are common to all members of each class. Thus, an evenhanded application of the rationale for taxing all members of one class (military retirees) does not result in taxation of some members of the other class (state and local government retirees).
We agree with this interpretation of Davis. All persons receiving federal military retirement benefits receive current compensation while all persons receiving state and local government retirement benefits receive deferred compensation. The fact that KITA exempts federal civil service retirement benefits and federal railroad retirements benefits is further evidence that KITA taxation of federal military retirement benefits is not based on the federal government source.
Other Federal Retirees
Taxpayers also assert inconsistent tax treatment of retirement benefits of other federal retirees. For example, federal retirement systems for members of the CIA, Foreign Service, bankruptcy judges, and United States magistrates are all contributory, yet these classes of federal retirees are subject to Kansas income tax. Similarly, retirement benefits received by retired members of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA) are taxed under KITA. However, retirement benefits received under federal civil service retirement or by retired railroad employees are exempt. K.S.A. 1990 Supp. 79-32,117(c)(vii) and (viii). Taxpayers argue that these differences indicate no rhyme or reason for the disparate tax treatment.
Defendants assert that it is inappropriate to look at other federal retirement benefits, arguing that the justifications for taxing other federal retirement benefits do not affect whether the taxation of military retirement benefits are directly related to the differences between military retirees and state and local government retirees. The legal interests of other federal retirees are not at issue in this appeal. The justifications for taxing these federal retirement benefits should be addressed if and when they are challenged and properly before the court.
As pointed out by taxpayers, military retirement benefits are unique in comparison to other federal retirement benefits. If another class of federal retirees had exactly the same characteristics as the class of military retirees and was taxed differently, that fact would be relevant. However, absent such a circumstance, such comparisons are not helpful given the uniqueness of the military retirement system.
Finally, taxpayers argue that inconsistent tax treatment is not justified by significant differences between the two classes. They contend that the noncontributory funding of military retirement benefits does not justify differential tax treatment and military retirement pay cannot be characterized as reduced compensation for reduced current services to justify inconsistent taxation.
The resolution of the primary issue in this appeal depends on our agreement with, and acceptance of, the rationale of the federal cases holding that military retirement pay is reduced current compensation for reduced current services.
Several state courts have rejected the contention that military retirement pay is reduced compensation for reduced current services. These courts have held that military retirement pay is realistically viewed as deferred compensation. In re Marriage of Fithian, 10 Cal. 3d 592, 111 Cal. Rptr. 369, 517 P.2d 449, cert. denied 419 U.S. 825 (1974); In re Marriage of Gallo, 752 P.2d 47, 52-54 (Colo. 1988); In re Marriage of Howell, 434 N.W.2d 629, 632 (Iowa 1989); United States v. Miranda, 581 S.W.2d 711, 711-12 (Tex. Civ. App. 1979); and Greene v. Greene, 751 P.2d 827, 830-31 (Utah App. 1988), cert. denied 765 P.2d 1278 (Utah 1988).
A state is justified in taxing reduced current compensation paid for reduced current services while not taxing deferred compensation. We agree with, and accept, the rationale of the federal cases.
The Post-Davis Cases
Davis has generated litigation in states which taxed federal retirement benefits while exempting state and local government benefits. See Bohn v. Waddell, 164 Ariz. 74, 790 P.2d 772 (T.C. 1990), aff'd on reconsideration 82 Ariz. Adv. Rep. 52, 807 P.2d 1 (T.C. 1991); Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991); Hackman v. Director of Revenue, 771 S.W.2d 77 (Mo. 1989), cert. denied 107 L. Ed. 2d 738 (1990); Ragsdale v. Dept. of Rev., 11 Or. T. R. 440 (1990); Bass v. State, 302 S.C. 250, 395 S.E.2d 171 (1990), vacated and remanded 115 L. Ed. 2d 1047 (1991); Harper v. Virginia Department of Taxation, 241 Va. 232, 401 S.E.2d 868, vacated and remanded 115 L. Ed. 2d 1049 (1991); Hogan v. Musolf 157 Wis. 2d 362, 459 N.W.2d 865 (Ct. App. 1990), rev'd 163 Wis. 2d 1, 471 N.W.2d 216 (1991).
Bohn was a suit brought by five plaintiffs — two retired United States military retirees, one United States civil service retiree, and two spouses of the military retirees. Arizona’s tax scheme started with federal adjusted gross income and provided a deduction for all benefits received from Arizona state retirement systems. Only a $2,500 deduction was provided for benefits received from the United States civil service retirement system. No deduction was provided for military retirement benefits. Shortly after Davis, the Arizona legislature amended its income tax laws to give all state and federal pensioners a $2,500 deduction. The Arizona Tax Court in Bohn declared the prior Arizona tax scheme unconstitutional. The tax court stated: “The income tax treatment of state and federal pensions cannot be equal if the treatment of all federal pensions is not the same.” 164 Ariz. at 82. Aside from this statement, Bohn provides little helpful analysis for the case at bar. There is no mention of any argument advanced by Arizona to uphold the disparate treatment of military retirees. In light of the legislative action, it appears that the Arizona legislature believed that federal civil service retirees are similarly situated to federal military retirees.
In Hackman, plaintiffs were a federal military retiree and his spouse. The Missouri scheme started with federal AGI. The scheme allowed deductions for retirement benefits received from state and local government retirement systems while allowing no deductions for retirement benefits from nonstate retirement plans. The court stated: “4 U.S.C. § 111 draws no distinction between federal military personnel; nor shall we draw such a distinction.” 771 S.W.2d at 80. However, the Missouri Director of Revenue conceded that Missouri’s taxation scheme offended 4 U.S.C. § 111 under Davis.
In Ragsdale, á federal pensioner brought the action to challenge Oregon tax laws which exempted pensions of state and local employees while taxing pensions of federal employees. The Oregon Tax Court found that Oregon’s tax provisions came within the Davis holding. Ragsdale did not involve military retirees and provides little assistance on this issue.
Following Davis, South Carolina amended its tax laws to comply with Davis. Bass, 302 S.C. at 252. The only issue in Bass was whether Davis should apply retrospectively.
Harper was a challenge by federal civil service retirees and federal military retirees who sought refunds for taxes paid in the tax years of 1985-1988. The only issue before the court was whether Davis should apply prospectively. Virginia’s General Assembly amended its tax statutes to comply with Davis.
Hogan was a class action brought by federal retirees following Davis. The Wisconsin legislature amended its tax statute to comply with Davis for tax years beginning in 1988. Because Hogan did not involve military retireés and because Wisconsin amended its statute to comply with Davis, Hogan is not helpful.
In Pledger, the Arkansas Supreme Court reviewed a class action certification issue. The Arkansas class certified by the lower court consisted of three groups of retired Arkansas residents from: (1) various United States civil service agencies; (2) various branches of the United States armed services; and (3) the agencies and political subdivisions of other states. A question on appeal was the propriety of including military retirees and retirees from other states in the certified class. The Arkansas Supreme Court affirmed the inclusion of both groups. The Pledger court relied on three of its own divorce case opinions in reasoning “that those cases which hold that military pay is actually deferred compensation or in the nature of a pension represent the better reasoned application law.” Slip Op. at 10. No mention is made of Tyler, McCarty, Cornetta, Tafoya, Costello, or Siverling.
Of the post-Davis cases, Bohn, Hackman, and Pledger reasoned that civil service retirees and military retirees should be treated alike.
In our view, the district court in the case at bar was justified in relying on federal precedents.
The Kansas Constitution
Without discussion or explanation, the trial court concluded that KITA does not offend Article 11, § 2 of the Kansas Consti tution. Apparently, the trial court based this holding on the same reasoning used to reject taxpayers’ challenge under Davis.
Article 11, § 2 prohibits the State from levying or collecting income taxes based upon classifications which are arbitrary, capricious, and discriminatory. A discriminatory tax must have a reasonable relationship to the subject of the right and privilege taxed. Hartman v. State Commission of Revenue and Taxation, 164 Kan. 67, 77-78, 187 P.2d 939 (1947). Nothing forbids different taxation of different classes where there is a reasonable basis for differentiation. See Missouri Pacific Railroad Co. v. McDonald, 207 Kan. 744, 752, 486 P.2d 1347 (1971).
Taxpayers contend, as demonstrated by their arguments on intergovernmental tax immunity, that KITA artificially, unnaturally, and irrationally discriminates in favor of state and local government retirees and federal civil service retirees against federal military retirees solely on the basis of the source. Taxpayers assert that, because all such retirees belong to the same class of public sector retirees, the unequal tax burden does not have a reasonable relation to the subject matter.
Defendants correctly point out that the standard of review under Article 11, § 2 of the Kansas Constitution is a more lenient standard than that mandated in Davis. Under Davis, the discriminatory tax must be directly related to and justified by significant differences between the classes. Under Article 11, § 2, the discriminatory tax must bear a reasonable relationship to the subject taxed. Defendants argue that the State has a legitimate purpose in providing an orderly means whereby state and local employees may retire without hardship (to enable employees to provide for old age and to effect economy and efficiency of government affairs). A tax exemption for state and local government employees is rationally related to this purpose. Further, the State has a “rational reason” for discriminating between state and federal retirees when it seeks to advance its interest in hiring and retaining qualified employees.
We have held KITA constitutional under principles of intergovernmental tax immunity. It is constitutional under Article 11, § 2 of the Kansas Constitution. The discriminatory tax bears a reasonable relationship to the subject taxed. The tax is not arbitrary or capricious.
Having held KITA to be constitutional, we need not address the remaining issues raised by the taxpayers.
Affirmed.
McFarland and Herd, JJ., not participating.
Michael J. Malone and Dean J. Smith, District Judges, assigned. | [
-48,
-6,
-43,
124,
8,
-32,
59,
-102,
56,
-107,
39,
83,
111,
-118,
21,
127,
-7,
29,
80,
79,
-73,
-93,
55,
-119,
94,
-77,
-39,
-35,
-71,
78,
-92,
86,
12,
-8,
-86,
-43,
70,
10,
-59,
30,
-20,
6,
-86,
73,
-7,
0,
52,
99,
-78,
11,
113,
-50,
121,
10,
28,
-63,
-128,
32,
89,
-95,
-63,
-111,
-81,
-121,
126,
16,
51,
0,
-100,
-57,
-48,
47,
-106,
57,
-56,
-88,
91,
-90,
18,
52,
105,
-71,
5,
102,
98,
-95,
57,
-20,
-4,
8,
46,
-46,
-115,
-91,
-43,
89,
115,
12,
-108,
-99,
124,
84,
-113,
-4,
-22,
20,
31,
-20,
14,
-50,
-18,
-79,
76,
116,
-109,
-125,
-1,
-112,
-110,
97,
-64,
-94,
92,
87,
58,
59,
-57,
-68
]
|
Per Curiam:
This is an original proceeding in discipline filed by the disciplinary administrator against Jo Elaine Heaven of Topeka, an attorney admitted to the practice of law in Kansas. A hearing was held on September 18, 1990, before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared in person and by her attorney Richard E. Jones.
The complaint against respondent involves her actions in a check kiting operation with her personal bank accounts and with her attorney trust account. The accounts were at Shawnee Federal Savings, Topeka Bank and Trust, and Bank IV. The respondent admitted the allegations in the complaint to be true and testified in mitigation of her conduct, a summary of which is set out.
Ms. Heaven earned a Masters degree in social work from Kansas University. She pursued a social work career for several years, during which time she taught part-time at Wichita State University. She considers herself a pioneer in Kansas in the development of specialized service units for child protection. She saved money from these jobs to enter law school. She wished to combine a legal career with social work. She and her adopted daughter moved to Topeka and she enrolled in Washburn Law School. She graduated with above average grades and went to work for Court of Appeals Judge Sherman Parks as a research attorney. Thereafter, she entered the private practice of law against the advice of Judge Parks. Her experience in the law practice was catastrophic, relegated primarily to court appointments with no office practice. She did not make a living practicing law: Her funds were gone. As a result she began applying for numerous positions, including non-legal. She was rejected as being overqualified.
Ms. Heaven continued to keep her law office open even though she saw very few clients. She kept hoping conditions would change as she had two children and an 85-year-old cousin to provide for. Eventually, she lost her house and was forced to live in a friend’s vacant house which had no heat or running water. These dire circumstances were the cause of the check kiting. She denies ever using any client funds for her own use.
Ms. Heaven has abandoned her dream of engaging in the private practice of law. Her objective now is to obtain employment in a government agency or with a corporation where she can use her legal and social work skills.
The disciplinary panel found the respondent had violated MRPC 1.15 (1990 Kan. Ct. R. Annot. 247) and MRPC 8.4 (1990 Kan. Ct. R. Annot. 290). The panel took into consideration the mitigating circumstances and recommended that Ms. Heaven be suspended from the practice of law for a period of six months in accordance with Standard 4.12 of the ABA Standards for Imposing Lawyer Sanctions (1986).
After a careful review of the record and taking into consideration the panel’s recommendation, the mitigating circumstances, and that respondent has not been practicing law for more than the six months for which the panel recommended she be suspended, this court is of the opinion that suspension not be imposed but that respondent be placed on probation for a period of one year during which time she is not to engage in the private practice of law except when supervised by a person admitted to the practice of law in Kansas and who is acceptable to the disciplinary administrator as a supervisor.
It Is By The Court So Ordered.
It Is Further Ordered that in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to the respondent and this court shall take whatever disciplinary action it deems appropriate without further formal proceedings.
It Is Further Ordered that respondent pay the costs of these proceedings and that this order be published in the official Kansas Reports. | [
-79,
-20,
-56,
124,
-118,
-29,
58,
62,
85,
-45,
-9,
119,
-21,
-51,
4,
105,
-48,
13,
-112,
99,
-57,
-74,
119,
72,
98,
-5,
-8,
-43,
-72,
127,
-28,
-43,
72,
48,
-126,
-59,
70,
-62,
-61,
88,
-114,
2,
11,
-44,
91,
-125,
32,
115,
-109,
15,
117,
14,
51,
44,
27,
104,
40,
76,
-66,
-83,
120,
-43,
-98,
-107,
125,
21,
-93,
5,
-100,
-121,
-40,
63,
-118,
56,
1,
-88,
50,
-74,
-102,
116,
71,
-87,
-115,
118,
98,
-78,
-111,
-29,
-76,
-115,
47,
-9,
-115,
-89,
-103,
80,
83,
-117,
-116,
-68,
125,
20,
39,
-4,
98,
69,
27,
-24,
13,
-50,
-44,
-109,
15,
-75,
76,
-69,
-17,
-89,
32,
81,
-115,
-30,
93,
-41,
50,
27,
-82,
-79
]
|
The opinion of the court was delivered by
Allegrucci, J.:
The State appeals the district court’s granting of the defendant’s motion to dismiss for lack of jurisdiction. This court’s jurisdiction is invoked pursuant to the provision of K.S.A. 22-3602(b)(3) for an appeal by the prosecution upon a question reserved.
The facts are not in dispute. Defendant Gerald M. Freeman entered a plea of no contest to one count of unlawful deprivation of property on December 1, 1988. Freeman was placed on probation for a period of two years from that date and ordered to pay $20,000 to Highland Park State Bank “in regular monthly payments consistent with his income.”
Freeman’s probation status report, dated December 13, 1990, shows the amount of restitution remaining to be paid at $19,864. The probation officer recommended a two-year reinstatement of probation based on the large amount remaining.
On December 13, 1990, the probation officer mailed an order to extend probation and a waiver of right to probation extension hearing form to Freeman for his signature. He signed the waiver form on December 14, 1990. The district court’s order to extend probation for two years was filed on December 20, 1990.
On January 31, 1991, Freeman filed in the district court a motion to dismiss the probation extension action for lack of jurisdiction. Defendant argued that, when his period of probation expired on December 1, 1990, without State action having been taken for extending it beyond the two-year period initially ordered, the district court lost jurisdiction over the subject matter.
After a hearing on March 20, 1991, the district court sustained defendant’s motion. The district court ruled that K.S.A. 1990 Supp. 22-3716 is substantive and, therefore, cannot be applied retroactively to extend the period of Freeman’s probation. It concluded that the State had failed to comply with the provisions of K.S.A. 22-3716, the version in effect in 1988. Further, it concluded that the State had failed to comply with the provisions of the statute as amended in 1990.
We first consider whether this court should exercise jurisdiction pursuant to K.S.A. 22-3602(b)(3). The question was specifically reserved by the State. The rule of this court with regard to the entertainment of questions reserved by the State in a criminal proceeding is that such appeals
“have been generally accepted where they involve questions of statewide interest important to the correct and uniform administration of the criminal law. State v. Glaze, 220 Kan. at 325. As we noted in State v. Holland, [236 Kan. 840,] recently enacted statutes which have not previously been before this court are appropriate subjects of questions reserved. 236 Kan. at 841.” State v. Adee, 241 Kan. 825, 826-27, 740 P.2d 611 (1987).
The present case involves the applicability of subsection (4) of K.S.A. 1990 Supp. 22-3716. It was enacted in 1990 and became effective July 1 of that year. This matter has not previously been before this court, although the district court’s references to other rulings on this question indicate that a number of trial courts have been confronted with it. We find it is a matter of statewide interest and is important to the administration of the criminal law and conclude it is a proper question for an appeal by the State on a question reserved.
The question presented is which version of 22-3716 governs whether the district court had jurisdiction following the end of the term of probation — the version in effect when the offense was committed and the period of probation began or the version in effect when probation ended?
K.S.A. 22-3716 sets out the procedure to be followed when the State acts upon a defendant’s violation of any of the conditions of probation. Before amendment in 1990, 22-3716(1) provided, in part:
“At any time during probation, assignment to a community correctional services program or suspension of sentence, the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment or a notice to appear to answer to a charge of violation.”
This is the version of the statute which was in effect at the time Freeman committed the criminal offense for which he was serving probation and when his period of probation began.
The current version of the same provision states, in part:
“At any time during probation, assignment to a community correctional services program, suspension of sentence or pursuant to subsection (4), the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment or a notice to appear to answer to a charge of violation.” K.S.A. 1990 Supp. 22-37Í6(l).
Subsection (4) was added in 1990 and extended the time in which the State may act on a defendant’s violation of probation conditions. It states the following:
“The court shall have 30 days following the date probation, assignment to a community correctional servicefs] program or suspension of sentence was to end to issue a warrant for the arrest or notice to appear for the defendant to answer a charge of a violation of the conditions of probation, assignment to a community correctional servicefs] program or suspension of sentence.”
This is the version of the statute which was in effect at the time Freeman’s probationary period expired.
If the current version of the statute with its 30-day “grace period” applies in the circumstances of the present case, the action taken by the State to extend Freeman’s probationary period for his failure to satisfy the condition of restitution would be timely.
The State argues that 22-3716 is procedural rather than substantive. It quotes State v. Hutchison, 228 Kan. 279, Syl. ¶ 8, 615 P.2d 138 (1980), to this effect: “As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” The State points out that the statute is part of the Kansas Code of Criminal Procedure rather than the Kansas Criminal Code. Thus, the argument continues, the general rule that statutes are to be construed to operate prospectively “is modified where the statutory change is merely procedural . . . and does not prejudicially affect the substantive rights of the parties.” 228 Kan. 279, Syl. ¶ 7.
Freeman argues that an extension of the period of probation prejudicially affects his substantive rights. He cites, among other cases, State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991), for the proposition that “the penalty for an offense is that provided by statute at the time the offense was committed.” 248 Kan. at 107-08. The penalty for his criminal offense was a two-year period of probation, not to be extended unless State action was taken before the period expired. Application of the amended version of 22-3716 in the circumstances of the present case would alter the punishment itself in that it would result in lengthening his penalty.
In Sutherland, substantive criminal law was described as dealing with the “length of the sentence to be imposed and not merely how the sentence is to be served or how the length of the sentence is to be determined.” 248 Kan. at 106-07. The statute at issue in Sutherland was K.S.A. 1989 Supp. 21-4603(3), which deals with the district court’s authority to modify a sentence. The alternative versions of the statute provided that, at any time within 120 days of sentencing, the district court may modify a sentence and shall modify a sentence if recommended by the State Reception and Diagnostic Center. This court concluded that, even though the statute was not an express prescription for the length of the penalty, it affected the punishment itself:
“The sentence to be served was subject to reduction, and the defendant could also have been placed on probation. . . . Thus, it deals with the length of the sentence to be imposed and not merely how the sentence is to be served or how the length of the sentence is to be determined.” 248 Kan. at 106-07.
The statutory amendment, therefore, was to be applied prospectively and not to Sutherland’s case.
The reasoning of Sutherland applies in the present case. First, it is noted that the legislature did not include language in K.S.A. 1990 Supp. 22-3716(4) to indicate that it intended the statute to operate retroactively. Thus, if the statute prejudicially affects the substantive rights of defendant, it operates prospectively. The statute is not a prescription for the length of the penalty. Nevertheless, it effectively enhances the punishment itself. The statute provides, in part:
“If the violation is established, the court may continue or revoke the probation, assignment to a community correctional services program or suspension of sentence and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” K.S.A. 1990 Supp. 22-3716(2).
The defendant’s probation was subject tó being revoked or continued. If probation were revoked, the defendant would be required “to serve the sentence imposed, or any lesser sentence.” The application of K.S.A. 1990 Supp. 22-3716 in the present case would have extended the period of his punishment from two years to at least four years. Thus, the statute prejudicially affected the substantive rights of defendant; therefore, it is substantive and operates prospectively and not retroactively. We conclude that K.S.A. 1990 Supp. 22-3716(4) is not applicable to the present case.
The appeal on the question reserved is denied. | [
-48,
-18,
-8,
62,
26,
68,
58,
-104,
123,
-77,
34,
115,
105,
83,
21,
121,
75,
61,
85,
105,
-58,
-77,
7,
-63,
-2,
-5,
-104,
92,
-67,
95,
-20,
-33,
12,
-80,
2,
53,
70,
-118,
-93,
-100,
-118,
5,
-103,
76,
-15,
74,
48,
97,
50,
10,
49,
31,
-69,
42,
26,
-61,
-23,
41,
-37,
-65,
0,
-16,
-101,
-123,
111,
0,
-93,
5,
-100,
3,
112,
62,
-104,
57,
1,
-24,
-14,
-90,
-122,
-12,
111,
-101,
-84,
102,
99,
33,
93,
-17,
-4,
-103,
46,
62,
-113,
-26,
-104,
88,
11,
68,
-106,
-99,
117,
20,
15,
-4,
-25,
-124,
-107,
108,
3,
-54,
-76,
-111,
-49,
57,
42,
-38,
-13,
-95,
48,
49,
-116,
-26,
92,
86,
90,
11,
58,
-78
]
|
On August 19, 1991, the disciplinary administrator received a letter from Meredith Ratcliff, staff counsel for the office of Chief Disciplinary Counsel of the Missouri Supreme Court. That letter forwarded a copy of the court’s order of disbarment, dated July 17, 1991, of respondent Donald E. Reynolds.
On October 31, 1989, respondent, of Rock Port, Missouri, an attorney licensed to practice law in the State of Kansas, was suspended from the practice of law in Kansas for failure to pay the attorney registration fee for the year 1989, pursuant to Supreme Court Rule 208 (1990 Kan. Ct. R. Annot. 143).
On May 7, 1991, respondent signed a plea agreement, pleading guilty to one count of bank fraud and one count of interstate transportation of money in the amount of $113,512.88, which had been obtained by fraudulent means. On September 30, 1991, respondent was sentenced to four years’ imprisonment and fined $1,000 by the United States District Court for the Western District of Missouri.
On October 7, 1991, respondent, pursuant to Supreme Court Rule 217 (1990 Kan. Ct. R. Annot. 154), voluntarily surrendered his license to practice law in the State of Kansas.
The court, having examined the files and records of the office of the disciplinary administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It is therefore ordered that Donald E. Reynolds be and he is hereby disbarred from the practice of law in the State of 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 Donald E. Reynolds from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith comply with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
Dated this 11th day of October, 1991.
It is further ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
-80,
-22,
109,
124,
26,
97,
56,
-66,
94,
-45,
53,
83,
-23,
86,
1,
123,
-62,
73,
112,
121,
85,
-74,
119,
-32,
102,
-5,
-39,
-59,
-71,
79,
-28,
-75,
72,
-16,
-56,
-107,
-122,
-62,
-61,
28,
-114,
6,
-119,
-60,
83,
-56,
-78,
104,
0,
11,
33,
-82,
-77,
47,
28,
-117,
-24,
44,
-85,
13,
73,
-111,
-101,
21,
111,
21,
-109,
4,
-100,
7,
84,
47,
-104,
59,
33,
-23,
115,
-74,
2,
-12,
103,
-53,
12,
102,
98,
7,
81,
-81,
-68,
-120,
54,
122,
-99,
-94,
-111,
73,
65,
13,
-106,
-99,
98,
20,
15,
-4,
-32,
5,
29,
104,
14,
-50,
-12,
-77,
-114,
125,
-50,
27,
-5,
-91,
48,
68,
-44,
-28,
75,
19,
114,
-101,
-114,
-11
]
|
The opinion of the court was delivered by
Six, J.:
This case involves the application of the cy pres doctrine to a testamentary trust. We are presented with a first impression review of K.S.A. 1990 Supp. 59-22a01, which codified the cy pres doctrine judicially recognized by this court.
The residuary legatee contending charities are the Marymount Memorial Educational Trust Fund (MMETF) and the Salvation Army.
The Salvation Army appeals, contending the district court erred in applying the cy pres doctrine. The Salvation Army reasons that the testamentary trust language evidenced a specific charitable intent to benefit students at Marymount College.
The Court of Appeals disagreed and affirmed the district court’s application of cy pres. In re Estate of Crawshaw, 15 Kan. App. 2d 273, 806 P.2d 1014 (1991). We granted the Salvation Army’s petition for review.
Although the cy pres doctrine has been previously recognized in this jurisdiction, it receives its first application in the case at bar.
We shall address whether the district court erred: (1) in finding a general charitable intent in the testamentary trust and applying the cy pres doctrine codified by K.S.A. 1990 Supp. 59-22a01; and (2) in selecting MMETF to administer the trust.
We affirm the application of the cy pres doctrine and the selection of MMETF; however, we modify the trial court’s ruling concerning the administration of the Crawshaw trust by MMETF and its trustee.
Facts
Chester D. Crawshaw bequeathed the bulk of his estate to two residuary beneficiaries: the Salvation Army with its Kansas Office at Wichita, Kansas (15% of residue outright) and Marymount College located at Salina, Kansas (85% of residue in trust).
Crawshaw died testate on May 4, 1989. Paul S. Gregory was appointed administrator with will annexed. Crawshaw’s will designated Marymount as trustee of a testamentary trust with a purpose to provide loans to nursing and other students at Mary-mount. Because Marymount ceased operation on June 30, 1989, it filed a petition for an order directing administration of the trust. Alleging that Crawshaw manifested a general charitable intent, Marymount requested the district court to apply the cy pres doctrine as set forth in K.S.A. 1990 Supp. 59-22a01. Mary-mount also requested the transfer of Crawshaw’s testamentary trust funds to MMETF.
The Salvation Army: (1) denied general charitable intent; (2) objected to MMETF as a proper successor trustee; (3) alleged Crawshaw did not manifest charitable intent to benefit students attending colleges other than Marymount; and (4) asked the court to determine that the bequest should be distributed to the Salvation Army as the remaining beneficiary of Crawshaw’s residuary estate.
Gregory alleged that Crawshaw had general charitable intent and that the bequest to Marymount is impossible to distribute. Gregory sought a determination from the district court as to the proper entity to receive the bequest.
Fort Hays State University Endowment Association (FHSUEA) filed a petition for order directing administration of the trust. FHSUEA also requested transfer of the funds of Crawshaw’s testamentary trust to FHSUEA under K.S.A. 1990 Supp. 59-22a01 to be administered for the benefit of Fort Hays State University students. The trial court denied the petition of FHSUEA.
FHSUEA is not a party to this appeal.
Stipulation
The parties agreed to the following stipulated facts:
“1. Chester D. Crawshaw, a resident of Osborne, Kansas, died testate on May 4, 1989. On May 12, 1989 his Last Will and Testament (attached as Exhibit ‘A’) was admitted to probate in Osborne County District Court, Probate Division. (Petition to Probate Will). Paul S. Gregory was appointed as administrator with Will annexed. (Letters Testamentáry).
“2. The Last Will and Testament of Chester D. Crawshaw provides for the distribution of the personal effects of the deceased, and further provides for certain legacies to four individuals, said legacies totaling $350.00. (Last Will and Testament). The residuary estate is valued in excess of $140,000.00. (Inventory and Appraisement).
“3. Upon distribution of these bequests and legacies, the Will directs that the personal property and real property remainder of the estate be sold and converted to cash and that the proceeds be distributed as follows:
“A. I direct that said Executor first pay all of my just debts, including my funeral expenses and expenses of my last sickness, and the costs of administering my estate, and all legacies provided for by this, my Last Will and Testament.
“B. I give, devise and bequeath fifteen percent (15%) of the rest, residue and remainder of the funds, proceeds and property of my estate to the Salvation Army, with Kansas office at Wichita, Kansas, to be used by it as it shall deem fit, without any restrictions whatever.
“C. I give, devise and bequeath the remaining eighty-five percent (85%) of the rest, residue and remainder of the funds, proceeds and property of my estate to Marymount College, located at Salina, Kansas, in trust, or in the event that said college does not have the legal capacity to accept and administer the herein created trust, then, in trust, to the official Board or Association of said college having the legal capacity to accept and administer the herein created trust, in any event hereinafter referred to as Trustee, and that said trust is created for the purposes, and subject to the conditions, hereinafter stated:
“1. That such trust fund, with its accretions, shall perpetually be called and known as the ‘Mary Anna and Chester D. Crawshaw Trust Fund’.
“2. That said trust fund shall be paid to said legatee and devisee by my Executor at the time of the final settlement of my estate.
“3. The funds herein provided for may be loaned to students in the nursing department of said college. If there are no eligible candidates in said nursing department for this fund in any academic year, then the administrators may grant a loan to any other student or students attending said college.
“4. The administration of the fund shall be left entirely to the Trustee.
“5. Any and all loans made from said fund shall be evidenced by a note for the amount, and stating the terms of such loan, and signed by the person receiving such loan. Any such note shall not bear interest during the time such loan recipient is in regular attendance at said college, and is satisfactorily carrying a normal school load. The note of any loan recipient shall draw interest as shall be fixed by the Trustee, and shall bear interest from date of graduation of such loan recipient, or from the time any loan recipient shall fail to attend, or shall withdraw from, said college, or from the time any loan recipient shall fail to make grades acceptable, or required, for graduation. The principal of each note, with interest, shall be due and payable in four equal annual installments, following the graduation of said loan recipient from college, or from the date of his or her withdrawal from college, or from the end of the semester in which he or she fails to make satisfactory passing grades. For good cause shown, the Trustee may extend the time of payment of any note. When interest is received on any note, it shall be added to, and become a part of, the principal of said trust lund, and shall be used in the same manner as the original amount. Additions to the trust fund may be made from time to time by any person, persons, firms or corporations desiring to do so. (Last Will and Testament of Chester D. Crawshaw).
“4. Chester D. Crawshaw was not Catholic but his deceased wife was Catholic and they were married in the Catholic Church. Chester D. Craws-haw received a Methodist burial service. Chester D. Crawshaw was not a Marymount College alumni, director, employee, former employee, teacher, or former teacher, nor is it known that he had any other type of special personal relationship with Marymount College.
“5. Effective June 30, 1989' Marymount College of Kansas terminated its nursing department and all other departments, programs and curricula offered at its campus in Salina, Kansas. (Petition of Marymount College, Par. 5):
“6. Marymount College of Kansas is now and at all times pertinent herein and has been a not-for-profit Kansas corporation. Although its Articles of Incorporation were forfeited on March 15, 1989 for failure to timely file its annual report, its Articles of Incorporation were renewed and revived in accordance with K.S.A. 17-7002 and K.S.A. 17-6003 with the same force and effect as if said Articles of Incorporation had not been forfeited. Attached hereto as Exhibit ‘B’ is a Certificate of Good Standing issued by the Secretary of State of Kansas.
“7. The termination of the nursing department and other departments and academic programs at Marymount College of Kansas make the Decedent’s bequest to Marymount College impossible and impracticable of fulfillment, and the Decedent makes no provision for any alternative plan of disposition in the event Marymount College of Kansas should cease operations as an institution of higher learning. (Petition of Marymount College, Par. 5).
“8. The Marymount Memorial Educational Trust Fund (hereinafter referred to as ‘MMETF’) was established on September 13, 1989 by and between Marymount College of Kansas and George K. Fitzsimons, Bishop of the Roman Catholic Diocese of Salina in Kansas. (Petition of Marymount College, Par. 7; and MMETF Trust Agreement (Exhibit ‘C’)).
“9. On September 19, 1989 Marymount College petitioned the Saline County District Court and obtained an Order that the MMETF Trust Agreement was a proper and suitable trust arrangement to carry out the general charitable intention of those settlors and testators of certain endowment and scholarship funds specifically identified by name in the Exhibit ‘A’ to Mary- mount College’s petition therein, as well as the general charitable intention of the settlors and testators of any other separate endowment or scholarship fond which may be held by Marymount College for which no alternative plan of disposition was provided. (Petition of Marymount College, Par. 7; Marymount College Petition filed in Saline County District Court (Exhibit *D’); Order of Saline County District Court (Exhibit ‘E’)).
“10. The Mary Anna and Chester D. Crawshaw Trust Fund had not yet been funded when the Marymount Educational Trust Fund agreement was signed. Therefore, the Mary [Anna] and Chester D. Crawshaw Trust Fund was not one of those trust fonds named in the Exhibit ‘A’ list attached by Marymount College to its petition to the Saline County District Court and incorporated by reference in the Order thereto. (Petition of Marymount College, Par. 7; Marymount College Petition filed in Saline County District Court (Exhibit ‘D’); Order of Saline County District Court (Exhibit ‘E’)).
“11. FHSU Endowment Association is a not-for-profit corporation and the objects and purposes to be transacted and carried on by said Endowment Association are as follows: “To raise funds for the purposes for which this corporation is created; to support educational undertakings at Fort Hays State University and to receive and hold in trust any property, real and personal, given, devised, bequeathed, given in trust, or in any other way transferred to this corporation for the use and/or benefit of Fort Hays State University, or of any student or employee therein as such, or of any school, division, department or branch thereof or for the carrying on at said institution of any line or work, teaching or investigation which the donor, grantor or testator may designate (Petition of FHSU Endowment Association, Par. 8)\,
“12. Fort Hays State University has an established School of Nursing that offers both a bachelors and a masters degree in nursing. (Petition of FHSU Endowment Association, Par. 9).”
The Trial Court’s Ruling
The district court found that Crawshaw had general charitable intent to benefit nursing and other students. The trial judge reasoned:
“[T]his will does not give the money to any college, but does create its own separate trust fond and puts a name on it, indicating that these fonds are to be provided under the name of the Crawshaws and given out in that manner. The Court also finds that the method of giving the money is charitable in nature. Even though it’s intended to draw some interest, it’s still only to guarantee that the fund continues and is able to provide for its existence in the future. The Court finds that the Crawshaws did not have any particular — neither one of them were graduates of Marymount College. It truly was his intent to benefit nursing students and other students. The Court finds general charitable intent by the nature of his will.”
The district court then found that MMETF was the appropriate entity to administer the trust.
Scope of Review
Our scope of review is de novo. The facts were submitted by stipulation. The construction of a written instrument is a question of law. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 31, 744 P.2d 840 (1987).
The Kansas Rule
The testamentary trust in question contained no alternate disposition in the event the bequest lapsed or became void. In Kansas, a lapsed or void bequest falls into the residuum and will be disposed of by the residuary clause, if one has been provided. Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass’n v. Kring, 225 Kan. 499, 506, 592 P.2d 438 (1979). Crawshaw’s will contained a residuary clause with two provisions: the first was a bequest of 15% of the residue outright to the Salvation Army; the second was a bequest of 85% of the residue creating the trust that is the subject of this action. If the trust fails, all proceeds would be distributed to the remaining residuary legatee, the Salvation Army.
Contentions of the Parties
The Salvation Army asserts that the will unambiguously indicates Crawshaw’s specific charitable intent to benefit only students at Marymount. Therefore, it contends, the district court and the Court of Appeals erred in applying rules of judicial construction and in looking beyond the provision of the will establishing the testamentary trust.
The Salvation Army relies on the testamentary trust language in the will. Clauses C.3. and C.5. of Crawshaw’s will (set out in the stipulation) refer to “said college.” The Salvation Army argues that the C.3., C.5. provisions unambiguously indicate Crawshaw’s intent to benefit nursing and other students only at Marymount College. The Salvation Army suggests it is inappropriate,to look beyond this language. If we disregard these limitations, the Salvation Army reasons, we would not be construing Crawshaw’s will but constructing a new one, which we should not do.
Marymount and Gregory argue that both the district court and the Court of Appeals appropriately found that Crawshaw had general charitable intent and applied the cy pres doctrine, as codified by K.S.A. 1990 Supp. 59-22a01. They contend that it is appropriate to look beyond the specific will provision creating the testamentary trust to determine Crawshaw’s intent. They also contend that an examination of the will and extrinsic evidence of Crawshaw’s relationship with Marymount indicate that Crawshaw had general charitable intent to facilitate higher education. Mary-mount was merely an agent to effect Crawshaw’s gift.
Marymount and Gregory assert that Crawshaw’s intent may not be determined from a single provision. We are encouraged to look at the entire will. They emphasize other provisions in the will which they assert demonstrate Crawshaw’s general charitable intent.
Our attention is invited first to the opening paragraph of the testamentary trust:
“[T]o Marymount College, located at Salina, Kansas, in trust, or, in the event that said college does not have the legal capacity to accept and administer the herein created trust, then, in trust, to the official Board or Association of said college, having the legal capacity to accept and administer such trust.”
This provision indicates, according to Marymount and Gregory, that Crawshaw did not want the trust to fail because of a problem with the named trustee. They advance the theory that Crawshaw named Marymount as an agent to carry out his purpose of furthering higher education. Marymount asserts that Clause C.3. demonstrates that Crawshaw anticipated the problem of a lack of eligible nursing students. He wished to benefit other students, indicating his general charitable intent to benefit higher education. In addition, the clause utilizes “may,” which is precatory.
Clause C.4. leaves the administration of the fund entirely to the trustee. Marymount reasons that the C.4. language is evidence of Crawshaw’s intent to give the trustee maximum flexibility to change the way the fund is administered. C.4. also permits the trustee to carry out the objectives of the trust in spite of changing circumstances.
Clause C.l. states: “That such trust fund, with its accretions, shall perpetually be called and known as the ‘Mary Anna and Chester D. Crawshaw Trust Fund.’ ” Gregory asserts that Crawshaw would not have wanted this perpetual fund to cease to exist merely because Marymount terminated its educational programs.
Gregory also points out the disparity of the bequests to the Salvation Army (15%) and to the trust fund (85%). Gregory contends that Crawshaw’s interest in higher education was superior to his interest in the charitable nature of the Salvation Army.
Finally, Marymount asserts that few charitable trusts are devoid of any designation as to where the funds should be spent. It argues that if the Salvation Army’s view, specific charitable intent by virtue of the mention of the specific college where the scholarship fund is to be spent, is accepted, the cy pres doctrine will be effectively abolished.
The Cy Pres Doctrine
Cy pres is a common-law doctrine that has been recognized by Kansas courts, but never applied because this court and the Court of Appeals have always found specific charitable intent. Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass’n. v. Kring, 225 Kan. 499; Shannep v. Strong, 160 Kan. 206, 160 P.2d 683 (1945); and In re Estate of Coleman, 2 Kan. App. 2d 567, 584 P.2d 1255, rev. denied 225 Kan. 844 (1978).
The Court of Appeals, in Coleman, succinctly described the cy pres doctrine.
“The doctrine of cy-pres permits a court to implement a testator’s intent and save a gift to charity by substituting beneficiaries when the named charitable beneficiary is unable to take the gift. In order for the doctrine to apply, several conditions must be met. First, the gift must be to a charitable organization for a charitable purpose. Second, it must be impossible, impractical or illegal to carry out the donor’s stated charitable purpose. Finally, it must appear that the donor had a general charitable intent. The fundamental concept of the doctrine is that a donor may have a general charitable intent, and that the particular charitable institution he has designated as recipient of the gift is only an agent for effectuating that gift. Therefore, when it becomes impossible for the gift to take effect exactly as the donor specified, the court must look for another agent, as nearly like the designated one as possible, that will receive the gift and effectuate the general charitable intent expressed in the will or gift instrument.” 2 Kan. App. 2d at 574.
The cy pres doctrine should not be applied if the testator has: (1) manifested a specific charitable intent; (2) has anticipated pos sible failure of the trust; or (3) has made an alternate disposition of the property if the charitable gift should fail. Kring, 225 Kan. at 504.
In 1988, the Kansas legislature enacted K.S.A. 1990 Supp. 59-22a01, which provides in part:
“(a) If a trust for charity is or becomes . . . impossible or impracticable of fulfillment or if a devise or bequest for charity, at the time it was intended to become effective is . . . impossible or impracticable of fulfillment, and if the settlor or testator, manifested a general intention to devote the property to charity, any judge, on application of any . . . interested party . . . may order an administration of the trust, devise or bequest as nearly as possible to fulfill the manifested general charitable intention of the settlor or testator. In every such proceeding, the .attorney general, as representative of the public interest, shall be notified and given an opportunity to be heard. The provisions of this act shall not be applicable if the settlor or testator has provided, either directly or indirectly, for an alternative plan in the event the charitable trust, devise or bequest is or becomes illegal or impossible or impracticable of fulfillment.”
K.S.A. 1990 Supp. 59-22a01(c)(l) states: “ ‘Charity’ and ‘charitable’ includes, but is not limited to, any eleemosynary, religious, benevolent, educational, scientific, artistic or literary purpose.”
K.S.A. 1990 Supp 59-22a01 codifies the common-law doctrine of cy pres. Marymount asserts that the legislature intended to broaden the application of the doctrine.
The fundamental rule of statutory construction is that the intent of the legislature governs. In considering legislative intent, this court is not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the constructions suggested. Cyr v. Cyr, 249 Kan. 94, 98, 815 P.2d 97 (1991).
The legislative history of K.S.A. 1990 Supp. 59-22a01 contains no information supporting Marymount’s broader application contention. Minutes of Kansas Senate Committee on the Judiciary, March 1, 1988, S.B. 565. Minutes of the Kansas House Committee on the Judiciary, March 21, 1988, S.B. 565. Neither the legislative history nor the language of the statute provide additional guidance for determining either general or specific charitable intent.
In the absence of Crawshaw providing a specific guidance provision, our task of determining whether he had a general charitable intent could be advanced if we were able to answer two questions: First, if Crawshaw had known that Marymount College would not be in existence at the time his will was admitted to probate, would he have wanted the trust funds to go for loans to nursing and other students generally; or second, would he have wanted the funds of his entire residuary estate to go to the Salvation Army? These two inquiries arise from a counter-factual proposition. It is difficult to determine what Crawshaw would have wanted by assuming that certain events that did not occur had occurred.
A court will seldom have sufficient information about the pref-. erences of a testator to determine how the testator’s thought process in a counter-factual situation should guide the court; consequently, we must look for guidance to our past cy pres decisions.
In Shannep v. Strong, 160 Kan. 206, the testator devised two quarter sections of land to a trustee to manage and pay the income to “ ‘the United Brethren in Christ Church Association at Bums, Marion Couney [county], Kansas,’ ” a local church. 160 Kan. at 207. After the church ceased to exist, the testator’s widow, as the residuary legatee, filed an action to have the trust declared as lapsed and to have the land pass to her under the residuary clause. The board of trustees of the parent church intervened and claimed to be entitled to the income from the trust as the successor of the local church. We stated that the primary consideration in construction of a will is the testator’s intention which must be ascertained from all provisions within the four corners of the will and not from any single or isolated provision. 160 Kan. at 211. The question in Shannep was whether the testator intended to create a trust for religion generally or a trust for the benefit of a particular church in a particular community. We found that the testator intended to benefit the particular local church, not religion generally, and declined to apply the cy pres doctrine.
Three decades after Shannep, the Court of Appeals considered the cy pres doctrine in Coleman, 2 Kan. App. 2d 567. Coleman construed a residuary clause in the will of the testator leaving the residue: (1) two-fifths to the American Cancer Society, (2) twoTifths “to the College of Emporia, a Presbyterian educational institution located at Emporia, Kansas,” and (3) one-fifth to the Presbyterian Manor, a Presbyterian home for the aged. 2 Kan. App. 2d at 569.
The College of Emporia closed its doors on December 31, 1973. The testator died on August 3, 1975. The will was executed in 1965: Sterling College, a Presbyterian College similar to the College of Emporia, urged the trial court to apply the cy pres doctrine and substitute Sterling College as beneficiary. The Court of Appeals stated the question was whether the testator had a general charitable intention to benefit Presbyterian higher education or a narrow, special intention to benefit the College of Emporia, and no other Presbyterian college. 2 Kan. App. 2d at 575. Sterling College asserted that the modern tendency is to presume a general charitable intent in any charitable gift that may be negated by either the gift instrument or extrinsic evidence. The Court of Appeals declined to create such a presumption, reasoning that the presumption favoring charitable gifts, the presumption against intestacy, and the duty of the court to uphold the intent of the testator adequately protect charitable gifts. Coleman held that the entity seeking the application of the cy pres doctrine has the burden to demonstrate, either by extrinsic evidence or by evidence within the will itself, that the donor had the requisite general charitable intent. 2 Kan. App. 2d at 577.
The Coleman court found one “crucial” fact supporting the trial court’s finding that there was no general charitable intent. 2 Kan. App. 2d at 577. The testator executed his will shortly after being made aware of the College of Emporia’s financial plight which bolstered- the theory that he named the College of Emporia as a residúáry legatee with the specific thought of aiding that particular Presbyterian college. Although there was no evidence of a special personal relationship between the testator and the college (he was not an alumnus or a trustee), there was a special personal relationship between the testator and other nauied beneficiaries: The Court of Appeals found these facts supported the theory that the testator wished to benefit the College of Emporia rather than Presbyterian higher education.
Syllabus ¶ 5 in Coleman, 2 Kan. App. 2d 567, is instructive:
“In determining whether the testator had a general charitable intent, courts may consider all available, admissible evidence, both intrinsic and extrinsic, which is indicative of the testator’s intent. Among the factors which may be considered are the existence of a reversionary or gift-over provision, the existence of a limitation or reservation on the use of the gift, whether the bulk of the estate was bequeathed to charity, and whether specific devises and bequests were made to individuals who would have taken the estate by intestacy.”
Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass’n v. Kring, 225 Kan. 499, represents our latest discussion on the cy pres doctrine. The testator, George M. Hoffman, bequeathed $60,000 in trust directing that the income from the trust be paid “ ‘to the Board of Directors and Trustees of The George M. Hoffman Memorial Hospital of Little River, Kansas, to be used by them for the benefit of and the maintenance of said The George M. Hoffman Memorial Hospital.’ ” 225 Kan. at 500. The provision setting up the testamentary trust provided that if the hospital should fail to operate as a hospital for any reason whatever for one year, the entire fund should go to George Green, a friend of Hoffman’s, or to Green’s heirs.
Hoffman had built the hospital in 1916. He died in 1931. In 1972, the building could no longer be used as a hospital. In 1975, the trustees of the trust filed the action to determine ownership of the trust assets. Hospital District No. 2, the successor to the assets of the Hoffman Memorial Hospital Association, operated a nursing home in Little River. District No. 2 sought the application of the doctrine of cy pres. With regard to construction of the trust, we stated: “With respect to testamentary trusts the general charitable intent must first be found within the instrument itself. Only if that does not resolve the question do we resort to extrinsic circumstances surrounding the actions taken by testator.” 225 Kan. at 504. We reasoned the instrument showed that Hoffman had a particular charitable intent. The trust was to benefit a specific charity which bore Hoffman’s name. In addition, the presence of the gift over negated the existence of general charitable intent; thus, it was unnecessary to examine extrinsic evidence.
In the case at bar, the Court of Appeals found the facts “remarkably similar” to those in Coleman with the exception of the personal relationship. 15 Kan. App. 2d at 282. The court focused on the Coleman testator’s knowledge of the College of Emporia’s financial trouble. This knowledge was crucial in finding specific charitable intent in Coleman. This crucial finding is missing in Crawshaw’s relationship with Marymount.
We view Coleman as a well-written comprehensive opinion setting forth the factors to be considered in determining general charitable intent. Those factors are supported by case law from other jurisdictions. See Howard Savings Inst. v. Peep, 34 N.J. 494, 170 A. 2d 39 (1961); Board of Trustees of UNC-CH v. Heirs of Prince, 311 N.C. 644, 319 S.E.2d 239 (1984) (applying the statute which K.S.A. 1990 Supp. 59-22a01 apparently was modeled after); and Bogert, Trusts and Trustees § 437, 137-43 (1991).
We agree with the analysis of the Court of Appeals in the case at bar. First, charitable trusts are favorites in the law and should receive a liberal construction. In re Estate of Freshour, 185 Kan. 434, 441, 345 P.2d 689 (1959); In re Estate of Porter, 164 Kan. 92, 100, 187 P.2d 520 (1947). Second, we should consider the entire will and extrinsic evidence regarding Crawshaw’s relationship with Marymount rather than considering only the individual clauses as urged by the Salvation Army. Shannep, 160 Kan. at 211; Coleman, 2 Kan. App. 2d at 577.
We reason that Crawshaw had general charitable intent. We base our conclusion on the following facts:
1. The will contained no gift over provision;
2. The will contained provisions indicating Crawshaw did not wish the will to fail;
3. The trust was to be perpetual and was named after Crawshaw and his wife;
4. Crawshaw made small specific bequests to his heirs and did not include them in the residuary clause;
5. The bulk of his estate was given to charity;
6. The bulk of the residuum, 85%, was given to Marymount as a perpetual trust named after Crawshaw versus 15% outright to the Salvation Army. This indicates Crawshaw placed importance on his name living on with the scholarship loan fund;
7. Crawshaw had no known personal relationship with Mary-mount, supporting the theory that Marymount was an agent to effect his general charitable intent of furthering higher education.
The Marymount Memorial Education Trust Fund
At the hearing before the district court, Marymount argued that it would fulfill Crawshaw’s intention and administer the fund as set out in his will, the exception being that the students benefiting would not be those attending Marymount College.
The trial court named MMETF as the successor trustee and then stated: “I assume, however, that you’ll receive lots of applicants from Fort Hays and elsewhere to handle the nursing scholarships. Therefore, you will — unless you run out of applications for nursing students, you’ll be limited to that loan.”
A review of the quoted language of the trial judge appears to reflect that he intended to restrict MMETF in the administration of the trust to the purposes set forth in Crawshaw’s will. The district court’s order, which was approved by all parties, contains no such restriction.
The district court’s order requires that the bequest be transferred to the trustee of the MMETF and administered under terms of that fund.
The trustee of MMETF is George K. Fitzsimons, Bishop of the Roman Catholic Diocese of Salina in Kansas.
The MMETF trust agreement provides, in part:
ARTICLE I
“This trust shall be known as the ‘Marymount Memorial Educational Trust Fund’. A primary objective and purpose of this charitable trust is to perpetuate the name of Marymount College as an institution of higher learning dedicated to the excellence of academic education and professional training in the field of nursing. For this reason the trustee is requested to administer the trust estate exclusively for educational purposes and in a manner that will further those educational objectives associated with Marymount College during the years of its existence. The trustee is further requested to carry out to the maximum extent practicable the expressed intent of any original settlor or testator of existing scholarship funds which may be added to and become a part of the trust estate. These requests, however, are precatory only and shall not impose any legal obligation on the trustee or limit the trustee from exercising any discretionary right or power otherwise conferred by the provisions of this trust agreement." (Emphasis added.)
Other provisions in the agreement allow the trustee to make distributions of income or principal to any charitable organization or for any charitable purpose. The Crawshaw testamentary trust could be used for charitable purposes unrelated to Crawshaw’s general charitable intent to benefit students, particularly nursing students. Counsel for the MMETF acknowledged this fact during oral argument.
K.S.A. 1990 Supp. 59-22a01(a) provides that any judge “may order an administration of the trust, devise or bequest as nearly as possible to fulfill the manifested general charitable intention of the settlor or testator.” (Emphasis added.)
We restrict the administration of the Crawshaw testamentary trust within the MMETF trust to comply with Crawshaw’s intent as expressed in his will.
The MMETF trustee, in administering Crawshaw funds, shall be controlled by the terms of the Crawshaw testamentary trust. Our affirmance of Bishop Fitzsimons, or his successor in trust, as the cy pres trustee of the “Mary Anna and Chester D. Crawshaw Trust Fund” is contingent upon his written acceptance of the limitation upon his use of Crawshaw trust funds established in this opinion. The trustee’s written acceptance shall be filed with the district court not later than 20 days after the date of the mandate in this case. In the event such trustee does not file the written acceptance, the district court shall name another trustee to administer the Crawshaw trust in accordance with the terms of that trust and this opinion.
If during administration, the stated conditions of the Crawshaw trust prove to be impracticable, the trustee may petition the district court for instructions to, as nearly as possible, effect the intention, of the testator.
The judgments of the district court and Court of Appeals are affirmed as modified.
Holmes, C.J., concurring in the result. | [
-11,
-20,
-3,
124,
10,
-32,
2,
30,
67,
-96,
52,
83,
41,
-53,
65,
123,
-6,
29,
65,
121,
-41,
-89,
7,
-127,
-46,
-13,
-71,
-35,
-76,
93,
-90,
127,
72,
112,
42,
-43,
-58,
-54,
-56,
28,
-114,
-117,
40,
-57,
89,
-104,
-76,
99,
18,
75,
113,
30,
-77,
32,
24,
99,
104,
44,
75,
-72,
68,
-71,
-85,
-121,
127,
23,
1,
0,
-104,
-61,
96,
47,
90,
49,
8,
-24,
113,
-74,
-106,
-12,
73,
9,
41,
100,
98,
1,
48,
-17,
-16,
-104,
30,
-41,
-99,
-25,
-101,
89,
97,
77,
-76,
30,
117,
84,
6,
124,
-26,
-108,
94,
-20,
5,
-114,
-42,
-95,
-116,
56,
30,
-118,
-21,
1,
48,
112,
-52,
-14,
93,
83,
50,
-105,
-90,
-80
]
|
Per Curiam:
This is an original proceeding in discipline filed by the disciplinary administrator against Paul D. Coleman of Topeka, Kansas, an attorney admitted to the practice of law in Kansas. The facts, as determined by the hearing panel of the Kansas Board for the Discipline of Attorneys (the panel), are not disputed.
The complaints against respondent are numerous and are set out herein.
Count I
Nellie M. Mays died on September 10, 1977, leaving a will naming her grandson, Edwin L. Mays, Jr., as executor and sole heir. Edwin L. Mays, Jr., was and is a resident of the State of California. Mays retained respondent to probate the estate.
On September 14, 1977, respondent filed a petition for probate of will under the Simplified Estates Act, K.S.A. 59-3201 et seq., in the District Court of Shawnee County, Kansas, case No. 77-P-486. The following documents were prepared and filed by respondent on that date:
Proceeding for Probate of Will;
Petition for Probate of Will;
Last Will and Testament;
Affidavit for Non-Military;
Waiver of Notice;
Order for Hearing;
Affidavit of Subscribing Witnesses;
Order Admitting Will to Probate;
Oath of Executor;
Letters Testamentary;
Appointment of Resident Agent;
Acceptance by Resident Agent.
During the following 12 months, respondent published notice to creditors, filed an inventory and valuation, and prepared and filed a Kansas inheritance tax return.
On July 31, 1979, the Internal Revenue Service (IRS) filed a claim for $35,091.62 in taxes, a penalty of $2,486.93 plus $175.46 per month beginning August 11, 1979, and interest of $2,310.87 plus $5.77 per day beginning July 13, 1979. Respondent took no action with regard to satisfying the taxes, penalties, and interest due, nor did he inform Mays of this obligation.
Respondent filed annual accountings through September 9, 1980. Thereafter, on five occasions Judge Mary Schowengerdt set the matter for hearing to obtain an accounting. Respondent failed to appear for any of the hearings. Judge Schowengerdt then issued a contempt citation and respondent appeared on October 25, 1985. A subsequent citation was issued and respondent failed to appear at that hearing. However, no action was taken by the court. On September 14, 1987, Judge Schowengerdt ordered the respondent to close the estate within 30 days or request an extension. No response was received.
Judge James P. Buchele was then assigned to the case. On October 26, 1987, Judge Buchele issued an order to appear and show cause. Pursuant to this order respondent did appear on November 9, 1987. An accounting was ordered. The matter of fiduciary contempt was continued.
Respondent then appeared as directed by the court and kept the court informed as to the status of the case until July 1, 1988, when respondent failed to take the action previously ordered by the court and failed to appear.
Respondent again established contact with the court and status reports were again submitted until February 1, 1989, when respondent failed to file an accounting as ordered.
An interim accounting was filed by respondent on February 21, 1989, and a petition and order for partial distribution of $20,000 to the IRS was entered. Respondent never distributed the $20,000 to the IRS.
By letter dated June 13, 1989, Mays discharged respondent as his attorney and retained Carl Quamstrom.
On October 9, 1989, Judge Buchele ordered respondent to file his final accounting on or before November 1, 1989; Said accounting was never filed.. By .letter dated December .21, 1989-Judge Buchele ordered respondent to appear to render an accounting and to turn over the assets of the estate. Respondent failed to appear. On January 18, 1990, Judge Buchele issued an order to appear and show cause to respondent, but respondent could not be located for service. Respondent has not been located since that time and has had no' contact with Judge Buchele since February 21, 1989.
The actions of respondent have resulted in Mays having to travel from California to Topeka, Kansas, to appear on a contempt citation, and in substantial penalties and interest being assessed against the estate.
Respondent has failed to provide competent representation to Mays. He has handled a legal matter without preparation adequate in the circumstances and has neglected a legal matter entrusted to him. Respondent has failed to act with reasonable diligence and promptness in representing Mays, has failed to carry out a contract of employment, and has damaged his client during the course of the professional relationship. Respondent has not made reasonable efforts to expedite litigation consistent with the interest of Mays. Finally, respondent has engaged in conduct that is prejudicial to the administration of justice and has engaged in conduct that adversely reflects on his fitness to practice law.
Count II
The decedent owned real property that was the subject of a condemnation action brought by the city. An award was made and the trial court divided the award between the estate as the owner of the property and the lessee of the property. Respondent suggested to Mays that this decision be appealed. Mays agreed and believed that the respondent was taking the necessary actions in this regard. Respondent did not perfect the appeal.
Respondent failed to abide by Mays’ decision to appeal the judgment, failed to act with reasonable diligence and promptness regarding the appeal, and failed to keep Mays reasonably informed about the status of the appeal.
Count III
The court file reflects that Mays first corresponded with Judge Buchele by letter dated October 5, 1988, expressing his frustration with the lack of communication by respondent.
The court file also includes a letter dated December 19, 1988, from Mays indicating that respondent failed to supply him with a copy of the decision in the condemnation suit.
The court file reflects a letter dated February 28, 1989, in which Mays informed Judge Buchele that he had had no communication directly from respondent for over one year, despite his various attempts.
The court file reflects a copy of a letter dated April 26, 1989, from Mays to respondent in which Mays complains about the lack of communication as well as respondent’s lack of action on his behalf. Mays requested that respondent contact him within 15 days. No contact was made by respondent.
Mays has had no direct contact with respondent since approximately February 1988.
Respondent failed to keep Mays reasonably informed about the status of the estate and failed to comply with Mays’ requests for information.
Count IV
Judge Schowengerdt and Judge Buchele made numerous requests for information and requests for contact which were ignored by respondent. Further, respondent failed to abide by orders of the court.
Such conduct is discourteous and degrading to the tribunal, is prejudicial to the administration of justice, and adversely reflects on respondent’s fitness to practice law.
Count V
Mays discharged respondent on June 13, 1990. Carl Quamstrom was retained by Mays on June 13, 1990. Quamstrom made several attempts to contact respondent to obtain necessary information and documents pertaining to the case. Further, Judge Buchele ordered respondent to appear and turn over the assets of the estate.
Upon termination of representation, respondent failed to surrender the papers and property to which Mays was entitled arid failed to take necessary steps' to protect die interests of his client.
Count VI
The instant complaint, was filed with the Disciplinary Administrator’s Office on January 19, 1990. By letter dated January 23, 1990, Coleman was furnished a copy of the complaint by Bruce E. Miller, disciplinary administrator. Miller requested a response from respondent within 7 days. No response was submitted.
J. Steven Pigg was appointed to investigate the matter. On January 31, 1990, Pigg wrote to respondent requesting a written response within 10 days. No response was submitted. On March 12, 1990, Pigg again wrote to respondent, enclosing a copy of the earlier letter and requesting that respondent provide a written response and contact Pigg to arrange an interview. No response was made to either request. Neither letter was returned to Pigg as undeliverable.
The respondent has failed to cooperate with the Disciplinary Administrator’s Office and the investigator.
Notice of time and place of the hearing before the disciplinary panel as well as the formal complaint were mailed to the respondent at his last registered address as shown with the Clerk of the Appellate Courts of Kansas. The respondent did not appear at the hearing before the panel.
The panel adopted all of the matters contained in the formal complairit as findings of fact.
The panel concluded by clear and convincing evidence that the respondent has violated the following:
“1. MRPC 1.1 [1990 Kan. Ct. R. Annot. 216], in that respondent has failed to provide competent representation to a client.
“2. MRPC 1.3 [1990 Kan. Ct. R. Annot. 219], in that respondent has failed to act with reasonable diligence and promptness in representing a client.
“3. MRPC 3.2 [1990 Kan. Ct. R. Annot. 258], in that respondent has failed to make reasonable efforts to expedite litigations consistent with the interest of the client.
“4. MRPC 8.4(d) [1990 Kan. Ct. R. Annot. 290], in that respondent engaged in conduct that was prejudicial to the administration of justice.
“5. MRPC 8.4(g) [1990 Kan. Ct. R. Annot. 290], in that respondent engaged in conduct that adversely reflects on his fitness to practice law.
“6. MRPC 1.4 [1990 Kan. Ct. R. Annot. 220], in that respondent failed to keep a client reasonably informed about the status of a matter and failed to promptly comply with reasonable requests for information.
“7. MRPC 1.2 [1990 Kan. Ct. R. Ánnot. 217], in that respondent failed to abide by client’s decision concerning the lawful objectives of legal representation.
"8. DR 6-101 [1990 Kan. Ct. R. Ánnot. 188], in that respondent failed to act competently in handling a legal matter.
“9. DR 7-101 [1990 Kan. Ct. R. Annot. 193], in that respondent failed to represent a client zealously.
“10. Supreme Court Rule [207] [1990 Kan. Ct. R. Annot. 141] in that respondent failed to cooperate with the disciplinary administrator’s office and its investigator.”
The panel unanimously recommended that the respondent be disbarred.
The respondent did not file exceptions to the panel report. He did not appear before this court either in person or by counsel.
After a review of the record before this court, we agree with and adopt the panel’s findings, conclusions, and recommendations.
It Is Therefore Ordered that Paul D. Coleman be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts is directed to strike the name of Paul D. Coleman from the roll of attorneys licensed to practice law in Kansas and that respondent forthwith comply with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to the respondent.
Dated this 12th day of July, 1991. | [
-76,
108,
-55,
92,
-117,
97,
58,
10,
97,
-47,
117,
83,
-19,
-62,
5,
109,
119,
45,
-47,
121,
71,
-73,
122,
73,
70,
-69,
-3,
-44,
-78,
109,
-27,
-41,
73,
-96,
10,
-43,
-126,
-126,
-123,
84,
-114,
0,
-119,
-32,
-39,
-64,
52,
109,
31,
13,
-79,
62,
-69,
43,
28,
97,
108,
44,
-3,
46,
-64,
-112,
-117,
21,
127,
19,
-96,
5,
-112,
-115,
88,
-85,
-104,
56,
0,
-20,
51,
-90,
6,
-12,
43,
105,
41,
102,
98,
51,
-123,
-19,
-76,
-120,
31,
-78,
-115,
39,
-45,
89,
51,
13,
-74,
-97,
116,
80,
7,
-4,
-20,
84,
61,
-20,
15,
-18,
-42,
-109,
30,
-42,
-116,
-102,
-21,
-123,
48,
81,
-100,
-30,
92,
-45,
48,
-101,
-122,
-80
]
|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Gary W. Brown from his convictions of two counts of aggravated criminal sodomy and his sentence to a term of 15 years to life on each count (to run concurrently),
The victims in this case are the 11-year-old son and 8-year-old daughter of Brown’s live-in girl friend.
Brown raises five issues on appeal, He alleges the trial court erred in failing to grant him a continuance during the trial, denied him a speedy trial, violated his Fifth Amendment privilege against self-incrimination during the sentencing procedure, abused its discretion in sentencing him, and erred in refusing to order a psychiatric examination of the male child victim.
1. Request for a Continuance
After the male child reported Brown’s alleged activities to his mother, she contacted the police. The police took the male child to a hospital where a sexual assault examination was conducted, including the taking of a rectal specimen. Teresa Kocher, a medical laboratory technician, reviewed the gram stain slides of the rectal specimen sent to the lab for testing. Kocher testified that she found a sperm head. She requested that Dr. Roman Hiszczynskyj, a pathologist, confirm her findings. Dr. Hiszczynskyj signed a report noting the existence of “a rare structure highly suspicious of a sperm head.”
The slides were misplaced for about 18 months and relocated on June 2, 1990. Dr. Hiszczynskyj reviewed the slides on June 11, 1990, and found no material alterations to them. This time, Dr. Hiszczynskyj concluded that seven sperm heads were present on the slides. Dr. Hiszczynskyj testified that he systematically examined the slides on June 11 because he realized he might be called to testify. When the doctor reviewed one slide in December 1988, he reviewed it simply to confirm Kocher’s findings. On the first occasion, he was satisfied with the accuracy of Kocher’s findings after he found a couple of sperm heads.
After the State informed the defense of the results of Dr. Hiszczynskyj’s June 1990 findings, Rrown moved for a continuance. The trial court denied the motion. Rrown later moved for a new trial becaúse the trial court did not grant the requested continuance. That motion also was denied.
“The granting of a new trial is a matter of discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of discretion.” State v. Bell, 224 Kan. 105, 108, 577 P.2d 1186 (1978). K.S.A. 22-3401 provides that “[c]ontinuances may be granted to either party for good cause shown.”
“ ‘The granting or denial of a continuance in a criminal case is a matter [that] rests in the sound discretion of the trial court. Absent a showing of prejudice to the defendant, and an abuse of the court’s discretion, the ruling of the court will not be disturbed on appeal.’ Discretion is abused only [if] no reasonable [person] would take the view adopted by the trial court; if reasonable [persons] could differ [concerning] the propriety of the action taken by the trial court, then it cannot be said the court abused its discretion.” State v. Galloway, 238 Kan. 415, 418-19, 710 P.2d 1320 (1985).
If the defendant can show that the trial court abused its discretion in denying the continuance, then it follows that the trial court also abused its discretion in denying the request for a new trial.
Brown argues that because the continuance was denied, the defense was “unable to review the slide[s], review the report, engage a pathologist for the defense, or otherwise prepare a new defense in line with the updated report.” As a result, the defendant claims he suffered prejudice in that the defense had to proceed with the planned trial strategy that there was a lack of physical evidence to corroborate the children’s stories. In support of his argument, Brown cites to State v. Lewis, 238 Kan. 94, 708 P.2d 196 (1985). Brown contends that he suffered the same type of prejudice the Lewis defendant suffered.
In Letois, two defendants appealed their convictions of aggravated battery and aggravated robbery. Defense strategy included the absence of blood on the knife allegedly used to stab the victim. In opening statements, defense counsel told the jury that even the State’s expert witness would testify there was no blood on the knife. During trial and before the State’s expert testified, the expért informed the prosecutor that her written report was incorrect and that there was blood on the knife. The prosecutor did not inform the court or defense counsel of this fact. In fact, the prosecutor saved this “new” evidence until his last question to the expert. The trial court did not grant defense counsel’s request for a mistrial; instead, the court told the jury to disregard any evidence regarding blood on the knife.
On appeal, this court reversed and remanded for a new trial, stating:
“Prosecutorial misconduct occurs when the county attorney fails to disclose to both the trial judge and the defense counsel that he intends to introduce into evidence a report which he failed to inform the defense counsel had been corrected. If the corrected statement changes the theory of defense as presented to the jury in opening statement, then neither admonition nor instructions by the trial judge can cure the resulting prejudice.” 238 Kan. 94, Syl. ¶ 2.
Lewis can be distinguished from the case at hand. Here, there are no allegations of prosecutorial misconduct. The State informed the defendant that the slides had been located. Here, over a week prior to trial, the State told Brown that Dr. Hiszczynskyj would examine the slides again and that a report would be forthcoming. Upon receipt of the report, the State shared it with the defendant. Additionally, Brown knew before the slides had been located that the State planned to introduce Dr. Hiszczynskyj’s initial findings into evidence. The pathologist’s June 1990 report was not a reversal of his earlier conclusions. His second viewing of the slides produced a more thorough report, but the report still was consistent with his initial findings.
Without the second report, the evidence would have been that Kocher “found a sperm head” when she viewed one slide and that she “recognized it immediately because it is pretty obvious what it is when you see it.” Dr. Hiszczynskyj testified that he also only examined the one slide on the initial examination. He confirmed Kocher had observed a sperm head and he saw “one or two other additional sperm.” He testified sperm has a very unique structure and nothing else looks like sperm. Only one of the two slides contained sperm. He also testified the language “a rare structure highly suspicious of a sperm head” is a standard phrase used by professionals in his field.
When Dr. Hiszczynskyj examined the slide immediately prior to trial, he found seven sperm heads. He made a cursory observation when he first examined the slide to confirm Kocher’s observation. A more lengthy examination was made in preparation for trial.
Whether Dr. Hiszczynskyj testified there were two or three sperm heads on the slide or seven sperm heads would be of no significance to either the prosecution or the defense. While Dr. Hiszczynskyj’s initial report is not as definite as it could have been, knowledge of both Kocher’s and Dr. Hiszczynskyj’s testimony was available to the defendant in that both were listed as witnesses and available to be interviewed. After the defendant was informed the slides had been located, the defendant made no effort prior to trial to have the slides examined. The argument that the second report changed trial strategy has no merit in view of the information available to the defendant prior to the second report. The trial court did not abuse its discretion in denying a continuance and in refusing to grant a new trial.
2. Speedy Trial
Brown contends that both his statutory and constitutional rights to a speedy trial were violated. Concerning his claim that his statutory speedy trial right was violated, Brown was continuously in jail from the date of his arraignment until the date of his trial (94 days). K.S.A. 22-3402 outlines the statutory right to a speedy trial.
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under section (3).
(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons: . . . (d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
Brown was arraigned on March 9, 1990, and originally scheduled to go to trial on April 23, 1990. At á hearing held on April 17, 1990, the following conversation took place between the trial judge and defense counsel:
“THE COURT: . . . [Apparently this case is to be continued for other reasons. And, I don’t know, did [the Administrative Judge] give you a new trial assignment docket or—
“[DEFENSE COUNSEL]: He didn’t, Judge. He asked when the arraignment date was and noticed that there weren’t any problems. Then he went back upstairs. So I think he was going to check what kind of time he’s got. “THE COURT: Well, I’ll just refer it back to the Administrative Judge for rescheduling, then.”
At the June 21, 1990, hearing held to consider Brown’s motion to dismiss, the parties discussed the reason for the continuance of the April 23, 1990, trial date. Defense counsel informed the court the trial was rescheduled by the administrative judge because the prosecutor had a conflict with another trial. The defendant argues that a four-day violation of his statutory right to a speedy trial occurred.
The State asserts three reasons why there is no statutory speedy trial violation: Brown acquiesced in the granting of the continuance; the court initiated the continuance; and Brown was not in jail solely because of the aggravated criminal sodomy charges.
In State v. Porter, Green & Smith, 228 Kan. 345, 353, 615 P.2d 146 (1980), this court stated that in determining a speedy trial violation pursuant to K.S.A. 22-3402, “any period of delay resulting from a continuance granted at the request of the defendant is to be excluded in computing the time for trial under the statute.” This philosophy was expanded upon in State v. Bean, 236 Kan. 389, 691 P.2d 30 (1984). A defendant, by his or her conduct, may waive the statutory right to a speedy trial. Such conduct includes requesting or even acquiescing in the grant of a continuance. 236 Kan. at 392.
A strong case can be made that defense counsel acquiesced in the rescheduling of the trial. Defense counsel started the machinery in motion by discussing the State’s scheduling problems with the administrative judge and did not raise an objection. Defense counsel’s actions are attributable to the defendant in computing speedy trial violations. See State v. Ward, 227 Kan. 663, 666-67, 608 P.2d 1351 (1980).
The State argues that it did not seek the continuance. The administrative judge continued the case on his own initiative, which the State argues is proper because the trial court has the “[ultimate responsibility for management of the trial calendar.” See State v. Higby, 210 Kan. 554, Syl. ¶ 2, 502 P.2d 740 (1972). The State suggests that this case is similar to State v. Steward, 219 Kan. 256, 259, 547 P.2d 773 (1976), in that because of the number of pending trials and the lack of time to try the case, the administrative judge continued the case on his own initiative. 219 Kan. at 259. This court found that the “trial court properly exercised its discretion in entering the continuance.” 219 Kan. at 262. Furthermore, a trial court is not required to conduct a formal hearing before granting a continuance under K.S.A. 22-3402(3)(d). 219 Kan. at 262.
We are satisfied from the admissions and statements of defendant’s counsel at trial that the administrative judge, in managing the trial docket, continued the case because the number of pending scheduled trials exceeded the State’s ability to try them. In addition, defense counsel acquiesced in at least four days of that continuance. Thus, the trial court did not err in holding the defendant’s right to a statutory speedy trial was not violated.
Having so held, it is unnecessary to consider the State’s argument that the defendant was not being held solely because of the pending charge.
Brown also alleges that his constitutional right to a speedy trial was violated.
“In Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the United States Supreme Court adopted a case-by-case, flexible approach for determining whether an accused’s constitutional right to a speedy trial had been violated:
‘A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
‘The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’ 407 U.S. at 530.
“The court has used the Barker analysis on many occasions. See, e.g., State v. Rosine, 233 Kan. [663, 664 P.2d 852 (1983)].” State v. Fitch, 249 Kan. 562, 563, 819 P.2d 1225 (1991).
The original complaint was filed December 22, 1988, and Brown was taken into custody on February 20, 1990. The record offers little guidance to Brown’s whereabouts during this time period. In defendant’s motion to dismiss filed June 11, 1990, it was noted that Brown “was arrested and incarcerated for this warrant on November 2, 1989, in Minneapolis, Minnesota. He was subsequently extradited back to the State of Kansas and is currently in custody.” In State v. Chuning, 199 Kan. 215, 217, 428 P.2d 843 (1967), this court ruled that if the delay in arrest is caused by an accused’s absence from the state, the accused is foreclosed from arguing that he has been deprived of his constitutional right to a speedy trial.
We consider only Brown’s argument that he was prejudiced because of delay between when he was taken into custody, February 20, 1990, and when the trial began, June 11, 1990. The length of delay is 111 days. In State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989), this court said that on the facts of that case, “a little over a year between arrest and trial ... is not clearly presumptively prejudicial.” The same can be said for this case. “Until there is some delay that is presumptively prejudicial, there is no need to inquire into the other factors.” State v. Fitch, 249 Kan. 562, Syl. ¶ 3.
The trial court did not err in holding the defendant’s constitutional right to a speedy trial was not violated.
3. Fifth Amendment Privilege
The defendant’s argument is that the trial court considered the fact that th'e defendant maintained his innocence both in sentencing the defendant and in refusing to modify his sentence. The defendant reasons that his sentence was based, at least in part, on his refusal to incriminate himself.
Prior to pronouncing sentence, the trial court informed the defendant that the court had reconsidered the trial testimony, read the letter defendant wrote to the court, and paid careful attention to the presentence investigation report on the defendant. The court then applied the seven sentencing factors listed in K.S.A. 21-4606 to Brown’s case. The trial court set out the facts and factors it took into account in imposing sentence. The court did not discuss the guilt or innocence of the defendant except in terms of the jury’s verdict.
The State correctly asserts that there is no evidence the trial court attempted to compel Brown to speak. Brown, through his counsel, was given an opportunity to speak. In fact, defense counsel asked the court to consider that Brown continued to assert his innocence. Brown was not forced to incriminate himself, and his Fifth Amendment privilege against self-incrimination was not violated at the July 16 sentencing hearing.
On October 17, 1990, a hearing was held on Brown’s motion to modify his sentence. The trial court listened to witnesses for the defendant and to the State’s arguments not to reduce the sentence. The court stated it had carefully reviewed the State Reception and Diagnostic Center (SRDC) report. The court denied the defendant’s motion, setting forth the following reasons.
“With respect to the application of the factors under the statute I refer to the facts and circumstances in this case. I do remember the testimony at the trial, I do remember the testimony of the children who at the time of the offense were stepchildren of the defendant’s ages 8 and 11 years respectively. After hearing the evidence the jury found the defendant guilty of both counts and it did so correctly because the evidence showed the defendant guilty of both offenses beyond a reasonable doubt.
“The defendant has no prior convictions but we deal here with an unusually serious offense. A terrible sex offense, several of them, with the defendant’s stepchildren. I spoke of this at time of sentencing; no one knows the extreme harm the defendant has caused these two lovely children. It can’t be measured and we’ll never know that. We only know it is terrible and it can’t be undone.
“Of course at sentencing we also look at the case prospectively, how are we going to correct this so it won’t happen again. And that’s our only goal. And that’s just about as bleak as what has already happened. I have studied the defendant’s comments, find no remorse, I find no grief, I find no concern for these children, I find concern only for himself and the position in which he now finds himself and that’s not the worst of it. The worst of it is the denial that it even happened and I agree totally with the prosecutor we haven’t begun with Mr. Brown until Mr. Brown faces the facts as they really are. You might start with that today because that’s where you begin and until that process starts, sir, I find that the safety of the public will be jeopardized and your own welfare will not be served by any modification of this sentence. That’s my finding today. There is a person who could change it and it’s you. So far you’ve been absolutely disinterested. And that’s why public safety doesn’t permit you to be at large not even in your own best interests. There could come a time if you make it so that a Court might seriously consider a proceeding like that and that’s possible.”
At the sentence modification hearing, the State pointed out to the court that the SRDC report recommended Brown receive treatment for sex offenders while he is incarcerated. The SRDC report suggested the treatment might be helpful even though Brown did not admit guilt. The prosecutor added; “I think as the Court is probably well aware in any kind of treatment for this type of offense the very first step is admission that there is some sort of a problem and that still is not evident here.”
Brown’s claim that his privilege against self-incrimination was violated is not timely. Timeliness was considered in Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358 (1980). The issue was “whether the District Court properly considered, as one factor in imposing sentence, the [defendant’s] refusal to cooperate with officials investigating a criminal conspiracy in which he was a confessed participant.” 445 U.S. at 553. The defendant insisted
“that he had a constitutional right to remain silent and that no adverse inferences can be drawn from the exercise of that right. We find this ar gument singularly unpersuasive. The Fifth Amendment privilege against compelled self-incrimination is not self-executing. At least where the Government has no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion. Garner v. United States, 424 U.S. 648, 653-655[, 47 L. Ed. 2d 370, 96 S. Ct. 1178] (1976); United States v. Kordel, 397 U.S. 1, 7-10[, 25 L. Ed. 2d 1, 90 S. Ct. 763] (1970); see United States v. Mandujano, 425 U.S. 564, 574-575[, 48 L. Ed. 2d 212, 96 S. Ct. 1768] (1976) (opinion of Burger, C.J.); id., at 591-594 (Brennan, J., concurring in judgment).” 445 U.S. at 559-60.
Here, the defendant had been convicted of the offenses by a jury. The trial court was attempting to rehabilitate the defendant and to protect the public. The judge had no reason to believe at that point that the defendant’s cooperation with the court services officer or SRDC would be incriminating to the defense.
Because Brown failed to raise this issue at the trial court level, it will not be considered for the first time on appeal.
4. Abuse of Discretion
Although Brown acknowledges that aggravated criminal sodomy “is always a heinous offense,” he maintains there is no evidence the victims in this case suffered more than any victim of aggravated criminal sodomy suffers. The defendant does not dispute that the court also “mentioned” the statutory factors outlined in K.S.A. 21-4606. Brown argues that the trial court focused too much attention on the nature of the crime when it sentenced him to the maximum time allowed by law.
In support of his argument, Brown relies upon State v. Linsin, 10 Kan. App. 2d 681, 709 P.2d 988 (1985), for the proposition “that the sentencing court may not rely solely upon the nature of the crime to overcome the statutory presumption of probation because that disregards the policy of individualized treatment set forth in K.S.A. 21-4601 and 21-4606.”
The defendant’s reliance upon Linsin is misplaced. The Court of Appeals in Linsin stated that
“in order to overcome the statutory presumption of probation in K.S.A. 1984 Supp. 21-4606a, the sentencing court may not merely rely upon the nature of the crime committed, but must follow the sentencing objectives of K.S.A. 21-4601 and include in the record its consideration of additional sentencing factors as set forth in K.S.A. 21-4606.” 10 Kan. App. 2d at 684. (Emphasis added.)
K.S.A. 21-4606a provides the guidelines for presumptive sentences of probation for certain class D or E felonies. Aggravated criminal sodomy is a class B felony. K.S.A. 21-3506(2). There is no statutory presumption of probation in this case; thus Linsin is inapplicable.
The general rule is “[a] sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law and the realm of trial court discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989). Brown only alleges that the trial court abused its discretion.
“Judicial discretion is abused [if] judicial action is arbitrary, fanciful, or unreasonable. Stated another way, discretion is abused only [if] no reasonable person would take the view adopted by the trial court. If reasonable persons could differ [regarding] the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” 245 Kan. at 621.
Brown’s sentence was within the limits prescribed by law. The trial court considered the statutory criteria contained in K.S.A. 21-4606, applied them to the facts of this case, and concluded the defendant’s conduct warranted the maximum sentence. The trial court did not abuse its discretion.
5. Requested Psychiatric Examination
Brown filed a motion for a psychiatric examination of the male victim approximately two months before trial. The defendant based his request for a psychiatric examination upon a letter written by Dr. Schulman, who had seen the child twice in February 1989 (two months after charges were filed in this case). The doctor commented upon the anger he had seen in the child and also stated that he did not think the child would be a reliable witness if the State went to trial at that time. Additionally, Brown argued that the child had changed the time the last alleged sexual abuse took place and that the child was having trouble in school.
The State pointed out that the child had no trouble testifying at the preliminary hearing on March 9, 1990, some 13 months after Dr. Schulman examined the child. Furthermore, Brown failed to submit any evidence that the child had any kind of mental illness, any kind of psychosis, or any kind of mental instability.
After studying the preliminary hearing transcript and State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), the trial judge concluded that these circumstances did not warrant a psychiatric examination.
“I believe that the other . . . traditional and standard methods for challenging the credibility ... of a witness are all in place and are sufficient to, to give the Defendant a fair trial. Further, I think there’s some conversations in the case regarding the potential of, of an expert subverting the function of a jury to test the credibility and determine the truth and veracity of witnesses, and that’s something that’s generally frowned upon.
“So I guess basically the bottom line is that I don’t find enough here that would warrant an order to require [a] . . . psychiatric examination, so I’ll deny the motion.”
In State v. Gregg, 226 Kan. at 489, this court held that “a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination.” If a denial of such motion is appealed, the standard of review is whether the trial court abused its discretion. The abuse of discretion standard has been discussed previously.
Brown focuses much of his argument on the following language from Gregg:
“The motion for the examination, made the day before trial, rested on such factors as the child’s age, the seriousness of the crime, and the lack of corroborating evidence. . . . No facts were stated or evidence introduced as to the child’s mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination.” 226 Kan. at 490.
The defendant relies upon trial testimony to prove his case falls within the Gregg guidelines. The measure is what evidence the trial court had before it when it acted upon the motion for a psychiatric examination. Here, much of the evidence the defendant relies upon to show abuse of discretion is from the trial transcript. The only evidence presented at the hearing was a report from Dr. Schulman that was approximately a year old (and which is not included in the record on appeal). The defendant presented no testimony that would warrant such an intrusive examination. The child already had testified at the preliminary hearing, and the trial court did not have sufficient evidence before it for us to say the trial court abused its discretion in refusing to order a psychiatric examination.
Affirmed. | [
48,
-20,
-3,
-66,
56,
-31,
-22,
120,
113,
-93,
39,
115,
-83,
-37,
20,
107,
-110,
61,
76,
35,
-34,
-77,
7,
-64,
-66,
-5,
-70,
-48,
-15,
91,
-27,
-44,
12,
48,
-118,
53,
66,
-54,
109,
-44,
-126,
13,
-7,
-28,
83,
66,
38,
98,
118,
71,
57,
-98,
-93,
46,
29,
-58,
-87,
44,
91,
44,
72,
-111,
-87,
29,
-19,
16,
-93,
-80,
28,
-124,
-8,
63,
-40,
-79,
-112,
-24,
50,
-42,
-126,
116,
79,
-119,
-120,
96,
98,
-127,
13,
-27,
121,
-119,
14,
31,
-115,
-90,
-104,
97,
73,
37,
-74,
-65,
100,
86,
43,
-8,
-27,
92,
29,
-28,
32,
-113,
-96,
-111,
79,
-75,
-116,
-104,
-13,
1,
16,
117,
-113,
-12,
92,
87,
121,
-37,
110,
-77
]
|
The opinion of the court was delivered by
Allen, J.:
The ruling of the court sustaining the demurrer to the plaintiff’s amended petition was right. The decree of divorce rendered by the district court of Shawnee county contains no provision imposing a liability on the defendant for the support of the minor children, and it has been held that no such liability exists independent of the decree. (Harris v. Harris, 5 Kan. 46.) The petition and exhibit “B” thereto attached make no claim for unpaid alimony, but recovery is sought for the support of the children only.
The judgment is affirmed.
All the Justices concurring. | [
-108,
100,
-75,
93,
-54,
-32,
11,
72,
115,
-111,
55,
83,
-23,
-30,
16,
121,
50,
59,
80,
104,
85,
-89,
47,
-63,
-42,
115,
-15,
-59,
-79,
127,
-82,
-42,
76,
48,
42,
-43,
70,
74,
-59,
16,
-114,
10,
11,
69,
89,
-61,
52,
109,
114,
11,
-75,
-65,
-14,
41,
25,
-61,
-84,
44,
89,
39,
-48,
-104,
-118,
71,
95,
15,
-79,
-92,
-108,
38,
72,
-86,
-108,
57,
0,
-20,
50,
38,
-58,
116,
89,
-87,
9,
116,
114,
33,
-99,
-17,
-68,
-100,
78,
-44,
29,
-26,
-103,
88,
10,
3,
-73,
61,
125,
116,
-113,
-6,
-30,
4,
31,
108,
5,
-117,
-48,
-71,
-113,
120,
26,
-119,
-29,
-95,
16,
113,
-63,
-78,
92,
-62,
24,
-101,
-49,
-102
]
|
The opinion of the court was delivered by
Johnston, J. :
On April 6, 1891, Albert A. Ayres was engaged as a switchman in the yards of the Atchison, Topeka & Santa Fe Railroad Company at Nickerson, Kan., and had been acting in that capacity for about three months prior to that time. Two crews of men were engaged in the yards, each consisting of three men, viz., a yardmaster and tw.o switchmen. Ayres belonged to-the night crew, of which Frank Low was yardmaster; Logan Lawson pulled the pins between the cars and between the engine and the cars, while Ayres generally caught cars which were cut off from others, and moved to different parts of the yards, but occasionally he was required to uncouple cars and to pull pins. On the night of April 6, 1891, which was dark and windy, the crew were engaged in making up a train, and it became necessary to set 18 cars which were upon one track over upon another. The switch-engine was backed down to connect with them, and Lawson, whose duty it was to pull pins and direct the movements of the engine, stood on the running-hoard attached to the tender. That .end of the engine was attached to what is called a “Mexican” car, which had a pin in the drawhead that could not be taken entirely out. There was a slot in the pin, through which a rivet passed, and the pin was so made that when it was drawn up as far as the rivet would permit it to go, the head of it dropped back, and the slot would catch in the draw-bar and hold the pin in position. Quite a number of cars with such couplings were used on that railroad system, but the pins so placed would not always stay up. Occasionally, when passing over a switch or anything which would cause a jolt, they would fall back again. The cars were pulled out from one track and were being backed in upon another at a rate of' from three to five miles an hour, and Low and Ayres had climbed upon the other end of the train with a view of setting the brakes and stopping the cars when they reached a certain point. When they had proceeded a short distance, and it was desired to cut the engine off, Lawson, standing on the footboard of the tender, with his lantern in one hand, pulled the pin of the Mexican car, and set it back, and at once turned to catch the handhold of the tender with one hand, and signal the engineer with his lantern with the other to stop the engine. Upon this signal, the engineer stopped the engine, but the pin had fallen back, and recoupled the engine to the Mexican car, which caused a jerk ‘throughout the entire train of 18 cars. Just before this occurred, Ayres had climbed upon the train and was over near the end of the eighteenth car, while Low had climbed on the seventeenth car, but had not reached the top. When Low felt the jerk, he looked back and saw Ayres’s lantern falling, but he was unable to see whether Ayres had fallen, or what had become of him. Low at once set the brakes and stopped the cars, and, after a search, Ayres was found in the middle of the track, with one foot cut off, and his body badly bruised. In a short time he died, and his widow brought this action to recover for the loss suffered by his death. The jury found in her favor, and awarded damages in the sum of $7,987.
The sufficiency of the evidence is attacked, and while it is weak and unsatisfactory in some respects, the court is of opinion that it was sufficient to take the case to the jury. Whatever may be said of the testimony as to the negligence of the company, it is certain that there was none offered tending to show a wanton and wilful injury, nor anything which approached gross negligence. The court, however, in its charge, and over the objection of the company, stated at length the definition of gross negligence, and instructed that if the jury believed the injury and death of Ayres was caused by the gross negligence of the railroad company, they should find for the plaintiff, unless the deceased was guilty of contributory negligence. In view of the testimony this instruction was misleading and erroneous. The casualty is attributed to want of care on the part of Lawson, the pin puller, but we fail to find anything which warranted the giving of these instructions. It is conceded that the falling of the pin, which caused the jerk, was accidental. Pins fastened as this one was occasionally fall when the car is jolted, and the one upon this car had fallen once before on the same night. Lawson pulled and set the pin as the car approached the switch, and probably the jolt resulting from passing over the switch caused the pin to fall. While Lawson knew that Ayres was on the other end of the train, he could not see him when he was upon the footboard, uncoupling the engine from the cars, and there is nothing to show that Lawson believed that Ayres was in danger. Jerks of the kind which probably caused the fall of Ayres are not uncommon in the yard, and Lawson states that he had no idea that the jerk was sufficient to throw a man from the train. More than that, the jury found that, in pulling the pin ahd signaling the engineer, Lawson acted in the usual and ordinary way of doing such things in that yard. It is further found that Low, the other switchman, did not know that Ayres was thrown from the car until he had climbed on the top and looked over the sides and end; and, further, that after the jerk he could not have done anything to prevent the casualty. Under this state of facts, an instruction directing the attention of the jury to the rule which obtains where the negligence is malicious or wilfully and wantonly reckless was prejudicial error. (K. P. Rly. Co. v. Peavey, 29 Kan. 169 ; C. K. & W. Rld. Co. v. O’Connell, 46 id. 581; A. T. & S. F. Rld. Co. v. Wells, ante, p. 222, 42 Pac. Rep. 699.)
Some of the instructions appear to have been given upon the theory that there was testimony that Lawson believed, or had reason to believe, that the deceased had been jerked from the train and was liable to be run over, and the jury -were therefore advised that, unless he then used all the means within, his power to prevent injury to Ayres, he was guilty of culpable negligence. In one of them it is said that in such case it was Lawson's duty, “if in his power, to take such precautionary measures as would insure the safety of the deceased, and if he failed to do so, and the deceased was not at fault, the defendant would be liable for the 'injuries thus occasioned.” Nothing in the testimony tends to show that Lawson knew or had reason to apprehend that Ayres had been jerked from the train ; and, in any event, the railroad company is not required to insure the safety of its employees, and can only be held liable for the failure to exercise ordinary care.
The twenty-third, twenty-fourth and twenty-fifth instructions are objectionable in this respect, and should not have been given.
For the errors mentioned the judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
112,
98,
-40,
-1,
42,
67,
62,
-104,
113,
-79,
-25,
87,
13,
-101,
89,
117,
-5,
111,
-112,
43,
-10,
-89,
7,
-93,
83,
115,
-7,
-60,
61,
78,
36,
93,
73,
112,
74,
-43,
-26,
72,
77,
30,
-114,
37,
-22,
-32,
-103,
40,
62,
126,
22,
94,
17,
-98,
-13,
42,
28,
-13,
108,
55,
-1,
44,
-64,
114,
-110,
-123,
117,
28,
0,
36,
-100,
7,
96,
55,
-40,
21,
4,
-4,
115,
-92,
-109,
-11,
97,
-39,
64,
98,
102,
1,
61,
-81,
44,
-120,
94,
-110,
-113,
-90,
52,
25,
59,
33,
-106,
-57,
-94,
20,
6,
126,
-18,
85,
92,
104,
-128,
-117,
-96,
-57,
93,
48,
-108,
45,
-53,
5,
52,
97,
-36,
-78,
93,
4,
19,
-109,
-113,
-16
]
|
The opinion of the court was delivered by
, Martin, C. J.
: I. The court instructed the jury that the conductor, engineer, yardmaster, acting yardmaster, yardmen and yard switchmen were all coemployees of the plaintiff, and that if they believed from the evidence that the inj ury complained of was caused by the negligence or want of ordinary care of any of the coemployees of the plaintiff, then it was their duty to find in favor of the defendant. Yet, in answer to a particular question of fact, the jury stated that the misinformation, orders and instructions respectively given by the conductor and the acting yardmaster to plaintiff' concurrently and proximately caused and materially contributed to the plaintiff’s injury. The plaintiff below introduced in evidence the decision of the supreme court of Missouri in Moore v. Railway Co., 85 Mo. 588, which defines with some particularity who are fellow servants and who is a vice-principal in that state ; but in our view of the case it is immaterial whether the foregoing instruction of the court was justifiable or not under said decision. The blame was laid by the petition and in the answer of the jury upon the acting yardmaster and the conductor, but we are unable' to discover any negligence on their part. They told Carruthers that there was one car to cut out, and that the train would be ready by the time that he got around with the engine. This was doubtless their opinion of the time it would require to accomplish a certain result. After Carruthers had gone on his errand, they found it necessary to adjust two other cars and place them together in the train. "We cannot presume that it was improper or unnecessary to make such adjustment for this would be against the evidence. They did not know that Carruthers would have any difficulty in coupling the front car to the tender, nor, when the cars were being shifted, that he was in any place of danger. Under such circumstances, it would be an extraordinary precaution for the yardmaster or the conductor to search for Carruthers to inform him that further switching was necessary than had been contemplated at the time of the conversation with him. In any event, the judgment being against the railroad company, Carruthers has no reason to complain of the instructions upon the law as to coemployees or fellow servants.
II. It -was claimed by the plaintiff below that the railroad company was guilty of negligence in failing to prescribe proper rules and regulations for notice or warning of the movement and approach of detached cars, and that the injury complained of was the result of such negligence ; and the jury found that this failure and omission of the company materially contributed to and concurrently and proximately caused said injury. The plaintiff below introduced in evidence the decision in Reagan v. Railway Co., 93 Mo. 348, to show that it may be the duty of a railway company to prescribe rules sufficient for the orderly and safe management of its business, and that whether the company was guilty of negligence in failing to prescribe suitable rules was a question for the jury. In that case, however, a demurrer to the petition was sustained. It is nowhere intimated that the jury could pass upon the question without any evidence upon the subject. In the j)resent case no evidence was given tending to show that any notice of the approach of detached cars in railroad yards or in those at Marceline, Mo., would be useful or practicable. It appears to have been the custom to ring the bells of engines while in motion, and whether any warning of the ap proach of detached cars by any known method would have been of any avail for the protection of the plaintiff below under the circumstances we are left entirely to conjecture. No manual signal in the direction of the moving cars could have been seen by him while he was between the stock-car and the engine, and the distance and the noise precluded any efficient use of the voice. Whether in such a place the danger to men working upon, about or between cars would be lessened by the whistling of the locomotive we are not advised. Possibly, where tracks are numerous and several engines are at work in the same yards, such signals would be little or no protection to the men; and, in the entire absence of testimony as to the feasibility or usefulness of any code of rules or system of signals, the jury was not justified in finding that the railroad company was negligent in failing to prescribe the same.
The judgment must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-80,
104,
-52,
-65,
10,
98,
58,
-38,
117,
-79,
-90,
-45,
-19,
-125,
17,
43,
-2,
63,
-48,
43,
116,
-125,
7,
-29,
-109,
-45,
-13,
-123,
-75,
74,
102,
95,
77,
48,
78,
-47,
102,
72,
69,
28,
-114,
39,
-24,
-23,
25,
-104,
52,
122,
22,
79,
21,
-98,
-5,
42,
24,
-61,
45,
45,
-23,
61,
-64,
112,
-118,
-113,
103,
4,
51,
36,
-98,
-93,
104,
44,
-104,
53,
1,
-4,
115,
-74,
-125,
-12,
105,
-103,
8,
98,
99,
33,
21,
103,
-4,
-104,
62,
-66,
-113,
-89,
54,
9,
-85,
5,
-74,
-35,
82,
16,
-106,
-2,
-29,
29,
92,
52,
3,
-117,
-76,
-45,
95,
52,
-102,
-117,
-53,
-127,
16,
33,
-52,
-70,
93,
5,
19,
27,
-113,
-98
]
|
The opinion of the court was delivered by
Johnston, J.
: When the will of Susan Grimes was executed, in 1887, six of her children were living. She had survived two sons, E. B. Grimes, who died intestate and childless in 1883, and from whom she inherited considerable property, and John T. Grimes, who died in 1870, leaving his wife, Anna, and two children, Katie and Nellie Grimes, who brought this proceeding to contest the will. The husband of the testatrix, Dr. W. H. Grimes, died in 1877, and most of- the time since then the two daughters, Eliza Jane and Alice, have lived with her. She was about 76 years of age at the time the will was made, and about 79 years of age at the time of her death in 1890, and for several years before she had been very feeble. Al though not subject to insane, delusions, her mind had been impaired by disease and advancing years, but whether it was so far impaired as to render her incapable to make a will is a difficult question. The evidence respecting her testamentary capacity was conflicting and unsatisfactory, and while, if the testimony had been submitted to this court in the first instance, a different conclusion might have been reached, we regard it to be sufficient under the rules which obtain here to sustain the finding of the jury and the trial court. She had suffered a number of apoplectic attacks, one of which was as early as 1859, and her daughter, in speaking of that attack, said that her tongue was slightly paralyzed. There is testimony that this was followed by other attacks more severe and serious, which resulted-in drawing her face out of shape, affecting her speech, and producing a sort of stupor. Neighbors whom she had known well testified that she failed to recognize them, did not comprehend what they said, and that her answers to questions were irrational and unsatisfactory. They stated that for seven or eight years before her death she appeared to be failing and to grow weak in body and mind. Her daughter testified that for four or five years before her death there seemed to he nothing that would engage her attention ; that she would sit for hours at a time with her head in her hands and finger at her mouth, paying no attention to what was going on in the house. She also stated that, when persons spoke to her mother, her daughters,' Mrs. Graham or Mrs. Smith, would answer for her, and that for five or six years her mind had been so feeble that she was subject to the will of others. Another testified that, in 1883, when her son, E. B. Grimes, was seriously sick, she took no interest in the discussions respecting his illness, and when the report was made by the doctor that he could not live long, she showed no interest or emotion. Still others testified that she did not understand anything about her business, and that, when matters of great business, concern were suggested to her, she exhibited.no interest in or comprehension of them. Physicians testified that apoplectic attack's of • the. kind said to have been suffered by the testatrix ordinarily produce paralysis, and when the mouth is drawn and the tongue and speech affected it is evidence that certain parts of the brain are affected. Where such symptoms exist, it indicates that the memory and intelligence of the person are to some.extent affected and impaired. The tendency of repeated attacks of the kind mentioned, and especially with persons advanced in age, it is stated, would be to weaken .the mental faculties and gradually to grow worse. One of the physicians who saw her,while she was alive, but after the will was made, stated that she was physically and mentally weak, and had "senile dementia." • He stated that the condition was a symptom of softening of the brain, which is a result or associate of paralysis.
The testimony to show the exercise of ’undue influence is weak, although some of it tends to show that the daughters who resided with the testatrix, and who received the larger share by the terms of the will, may have controlled her will and influenced her to exclude some of her relatives from an equal share of her bounty.. If the evidence sustains the ground of incapacity, however, the will must be held invalid, and .the judgment must stand.
The main controversy in the case was with respect to the testamentary capacity of the testatrix. On one part, it is contended that the mere weakness of the mind does not take away capacity to make a will, but that actual insanity must be shown in order to in val r idate the will. On the other part, it is contended that it is not necessary to' show that the testatrix is absolutely insane, but that if the mind has been enfeebled by paralysis and old age so that she is unable to understand the effect and operation of her will upon her property and those entitled to receive • it, the will should be rejected: The view taken by the trial court is shown by the instructions given to the jury, and the rulings upon the evidence show that the same theory was maintained throughout the trial.
“4. It is not claimed, upon the part of the plaintiff's contesting the validity of the will in question, that Susan Grimes, the testatrix, at the time the same was executed, was insane, but, by reason of her advanced years, and from frequent apoplectic attacks, had suffered paralysis which had greatly impaired and injured her mind, as well as debilitated her body, and that thereupon her mind became so impaired that the same had become unsound and impaired beyond the power to make valid disposition of her • property and estate by will and testament, long prior to September 16, 1887.”
“6. A person of sound mind and memory, within the meaning of the law, is one who has full knowledge of the act she is engaged in and of the property she possesses, an intelligent understanding of the disposition she desires to make of it, and of the persons she desires shall receive her property, and the capacity to recollect and apprehend the nature of the claims of those who are excluded from participating in her bounty. It is not necessary that she should have sufficient capacity to make contracts, to do business generally, or to engage in complex and intricate business matters ; and if the jury believe, from the testimony in this case, that, at the time of making the will in controversy, the deceased, Susan Grimes, had such a knowledge as above defined, and possessed such understanding of the disposition she desired to make of her property, and of the persons she desired to receive the same, and had capacity to recollect and apprehend the nature of the claims of those who were excluded from participating in her bounty, then she would be of sound mind and memory within the meaning of the law, even though the jury may believe from the testimony that she was physically weak, and did not have the mental capacity sufficient to make contracts, to do business generally, or to engage in complex and intricate business matters. But if, on the other hand, you find by a preponderance of the evidence that, at the time of making the will in controversy, the deceased, Susan Grimes, had not such knowledge as above defined in this instruction, and did not possess such understanding as to the disposition she desired to make of her property, and of the persons she desired to receive the same, and did not have capacity to recollect and apprehend the nature of the claims of those who were excluded. from participating in her bounty, then she would not be of sound mind and memory, within the meaning of the law.”
“ 10. The jury are instructed that, in determining the issues in fact submitted to you under the instructions herein, you should carefully look to all the evidence in this case, and in so doing you should take into consideration the physical condition of Susan Grimes arising from her age, sickness, or any other cause; the condition of her mind at and before the time of the execution of the will in controversy ; the execution of the will and its contents; the execution of any former wills by her and the provisions thereof; the relations existing between her and the parties respectively herein, at and before the execution of the will in controversy ; her family and connections ; the terms upon which she stood with them ; the claims of particular individuals ; the condition and relative situation of the legatees or devisees named in the will; the situation of .the testatrix herself, and the circumstances under which the will was made ; and, in brief, every fact or circumstance which tends to throw any lig’ht upon the question submitted to you.”
We think the theory of the court as to the degree of intelligence or amount of mental capacity requisite to make a will is correct. (Delaney v. City of Salina, 34 Kan. 532 ; Converse v. Converse, 21 Vt. 168 ; Thompson v. Kyner, 65 Pa. St. 368 ; 25 Am. & Eng. Ehcyc. of Law, 992.) This was not a case of absolute insanity as generally understood. There were no delusions or derangements of the mind — no perversion of the mental machinery; but rather a wearing out and a failure of the mental faculties to work with sufficient force. It was a case, as described by one of the ■witnesses, of “senile dementia,” or a weakness of the understanding and reason, resulting, as the testimony tends to show, from old age, and also repeated apoplectic attacks followed by paralysis. As absolute soundness of mind is not always the te.st of testamentary capacity, the omission to instruct the jury as requested upon sanity and insanity was not prejudicial to the plaintiffs in error. What constituted a sound mind and memory, within the meaning of the statute, was fairly submitted to the jury, and the additional definitions requested would, we think, have tended to confuse rather than to aid them in the determination of the issues presented to them.
We think there is no good reason to complain of the form in which the issues were submitted to the jury. (Mooney v. Olsen, 22 Kan. 78 ; Delaney v. City of Salina, supra.) They are not to be likened to particular questions of fact, and the findings when made are not conclusive upon the court. In cases of this character, the parties are not, as a matter of right, entitled to a jury, but the issues may be submitted to one for the information of the court, and to relieve it from th.e burden of determining controverted questions of fact. The court may accept findings in whole or in part, or, if not satisfied with them, may ignore them and proceed to make findings of its own upon the evidence submitted. In the present case the findings of the court upon the questions involved are the same as those returned by the jury.
A number of objections were raised to the testimony, as well as to the rulings upon the instructions, but the view that has been taken disposes of those that are deemed to be material, and a reference to them in detail appears to be unnecessary.
There is á claim of misconduct on the part of the court and jury, but, from a careful reading of the testimony, we are unable to say that it constitutes a ground for the reversal of the judgment.
The judgment will be affirmed.
Martin, C. J., having been of counsel, did not sit in the case.
Allen, J., concurring. | [
-111,
105,
-100,
-82,
-86,
112,
106,
90,
96,
-128,
-79,
115,
-21,
-46,
81,
9,
58,
-19,
80,
107,
-32,
55,
23,
-95,
-46,
-5,
-69,
-97,
-79,
-40,
-11,
85,
76,
96,
-54,
25,
-26,
-54,
-39,
80,
-116,
-41,
-87,
-31,
27,
-78,
54,
47,
-44,
-114,
-47,
26,
-73,
46,
29,
70,
40,
40,
107,
61,
84,
-96,
-114,
-124,
77,
22,
-110,
34,
-100,
-127,
-54,
44,
80,
21,
-128,
-24,
49,
-106,
-106,
84,
79,
-37,
12,
115,
102,
-95,
108,
-17,
-48,
-120,
7,
54,
-83,
-89,
-114,
89,
-56,
69,
-75,
-47,
116,
80,
43,
120,
-2,
-44,
124,
124,
64,
-97,
-106,
-127,
-51,
56,
-104,
-85,
-29,
-83,
50,
113,
-51,
34,
85,
65,
113,
-101,
-114,
-70
]
|
The opinion of the court was delivered by
Martin, C. J.
: The railway company contended, on the trial that its servants were under the exclusive control of Swift & Co., and therefore it was not liable for any negligence on the part of the crew while doing the work of Swift & Co. in their private yards. It also claimed that if the man who interfered with the rope was one of its servants, yet he was not in the line of duty in taking hold of the rope, and that it was exempt from liability for his act. No evidence was given as to the arrangement between the railway company and Swift & Co. respecting the doing of/such work further than as above indicated. Yet theycourt, at the instance of the defendant below, instructed the jury that the railway company had the right to turn over its crew and engine to Swift & Co. for use in their particular work, and to put such crew under the entire control of Swift & Co., and, if it did so, the defendant had no control over such crew when it was engaged in the work in Swift & Co.’s yards ; and said crew, for such work, were Swift & Co.’s servants, even though in the pay of the railway company owning the engine ; and further, that a finding in favor of the railway company would not in any manner prevent the plaintiff below from recovering a judgment against Swift & Co. in an action brought for that purpose, if his injuries were caused by the negligence of the servants of Swift & Co. Other intructions were somewhat involved, and not entirely clear. There was no evidence to justify the assumption that the railway company had turned over its crew and engine to Swift & Co., except as above shown, and the suggestion that a recovery might be had against Swift & Co., who were not parties to this action, was perhaps prejudicial to the plaintiff below, and it should not have been given. It is possible that the railway company and Swift & Co. maybe jointly or severally liable. (C. R. I. & P. Rly. Co. v. Groves, ante, p. 601, 44 Pac. Rep. 628.)
It was held in Bedell v. National Bank, 16 Kan. 130, that where a new trial has been granted on the ground that the jury may have been, and probably were, misled by one of the instructions given, this court will' not reverse the order granting a new trial; and in Sanders v. Wakefield, 41 Kan. 11, 14, that a new trial ought to be granted whenever in the opinion of the trial court the party asking it has not in all probability had a reasonably fair trial or received substantial justice.
Tested by these rules, we cannot hold that the court erred in granting a new trial, and the judgment must be affirmed.
All the Justices concurring. | [
-16,
122,
-36,
-65,
88,
106,
42,
-40,
97,
-59,
-90,
83,
-115,
-63,
1,
107,
-25,
125,
-16,
43,
-9,
-45,
-121,
-29,
-46,
-45,
-13,
-115,
-79,
72,
102,
-49,
77,
48,
-54,
-47,
-26,
72,
65,
28,
-114,
0,
40,
-19,
89,
-72,
48,
126,
20,
71,
17,
-98,
-5,
42,
24,
-61,
41,
45,
107,
37,
-48,
113,
-117,
-57,
87,
16,
-78,
4,
-100,
39,
-24,
60,
-40,
21,
1,
-4,
123,
-76,
-125,
-44,
45,
-87,
72,
98,
98,
33,
53,
-17,
-116,
-120,
44,
-34,
-99,
-89,
20,
0,
-85,
73,
-73,
-35,
66,
20,
-89,
126,
-30,
-99,
93,
36,
3,
-117,
-106,
-126,
13,
54,
-98,
38,
-53,
25,
53,
100,
-60,
-70,
93,
7,
26,
27,
-97,
-98
]
|
The opinion of the court was delivered by
Herd, J.:
In this criminal action, Wiley Harris appeals the trial court’s dismissal of his motion for a new trial based upo,n newly discovered evidence. The trial court held it did not have jurisdiction to hear Harris’ motion because Harris had a K.S.A. 60-1507 motion on appeal before the Court of Appeals at the time he filed his new trial motion pursuant to K.S.A. 22-3501.
Defendant Wiley Harris was found guilty of one count of aggravated robbery (K.S.A. 21-3427) on January 9, 1987, in case number 86 CR 708. He was sentenced to 15 years to life on February 17, 1987. Harris took a direct appeal to this court from that conviction, which was affirmed in an unpublished memorandum opinion, number 60,582, filed March 25, 1988.
On January 17, 1989, Harris filed in case number 89 C 8 a motion in accordance with K.S.A. 60-1507, alleging denial of his Sixth Amendment rights to effective assistance of counsel and compulsory process. Following a hearing conducted by the district court on July 11, 1989, the court denied the motion. Harris timely appealed the denial of his K.S.A. 60-1507 motion to the Court of Appeals. Oral argument on Harris’ 1507 motion occurred on March 27, 1990; however, the opinion affirming the district court was not announced until April 27, 1990.
On March 12, 1990, while his 1507 appeal in case number 89 C 8 was pending, Harris filed a pro se motion for a new trial based upon newly discovered evidence pursuant to K.S.A. 22-3501(1). Harris alleged that testimony at the evidentiary hearing on the 1507 motion materially contradicted the testimony presented during his trial. Counsel was appointed for Harris on his motion for new trial.
The district court heard the motion for new trial on April 19, 1990. At the hearing, defense counsel stated two issues needed to be addressed: (1) whether the motion for new trial was timely, and (2) whether the district court had jurisdiction to entertain the motion for new trial while Harris’ 1507 motion was pending before the Court of Appeals. The district court ruled that Harris’ motion for new trial was timely filed because it was filed within two years of this court’s decision on Harris’ direct appeal. Nevertheless, the court held that it could not hear the new trial motion, stating:
“[I] find that I have no jurisdiction to hear this motion, because this case, and I’m speaking of 89 C 8 now, is in the jurisdiction of the Court of Appeals of the State of Kansas and it has not been remanded to the District Court level, and so I’m saying that I refuse to hear such motion due to the lack of jurisdiction. Now, what that does to the motion I’m not saying at this time, but that is the position of this Court. The Court is going to deny the motion, because it is without jurisdiction to hear it.
“That will be the order of the Court.”
Harris timely appealed the denial of his motion for new trial.
The sole issue on appeal is whether the district court erred in ruling it was without jurisdiction to hear Harris’ motion for a new trial.
Harris argues that a motion made .pursuant to K.S.A. 60-1507 is a civil action and cites for support Supreme Court Rule 183(a) (1990 Kan. Ct. R. Annot. 126). Supreme Court Rule 183(a) states the nature of the remedy available under K.S.A. 60-1507 is “exactly commensurate with that which had previously been available by habeas corpus.” The rule further explains: “A motion challenging the validity of a sentence is an independent civil action which should be separately docketed, and the procedure before the trial court and on appeal to the Court of Appeals is governed by the Rules of Civil Procedure insofar as applicable.”
Additionally, Harris points to our decisions that state “[a]n appeal in a proceeding to vacate sentence pursuant to K.S.A. 60-1507 cannot be joined with a direct appeal from judgment and sentence in a criminal case.” State v. Back, 196 Kan. 308, Syl. ¶ 2, 411 P.2d 601 (1966).
The State initially responds by agreeing that Harris’ argument “superficially” bears some merit. The State even points out that this court in State v. Thomas, 239 Kan. 457, 459, 720 P.2d 1059 (1986), stated that a motion pursuant to K.S.A. 60-1507 creates “a new case, not a criminal case, and the proceeding under that section [is] in the nature of a civil action.’.’ The State, however, argues that Harris’ two cases, the 60-1507 civil motion and the motion for new trial pursuant to K.S.A. 22-3501, cannot exist simultaneously.
In support of its mutual exclusion argument, the State cites State v. Washington, 198 Kan. 275, 280-81, 424 P.2d 478 (1967), which refers to Rule 121(c)(3) (197 Kan. lxxiv). The rule at that time stated: “[A] motion to vacate, set aside or correct a sentence [pursuant to K.S.A. 60-1507] cannot be maintained while an appeal from the conviction and .sentence is pending or during the time within which an appeal may be perfected.” Rule 121(c)(3) (197 Kan. lxxiv).
Rule 121 was the forerunner of Rule 183, which is now in force and contains an identical provision. Rule 183(c)(2) (1990 Kan. Ct. R. Annot. 126). The State interprets this to mean that Harris would have to withdraw his K.S.A. 60-1507 appeal in order for the district court to have jurisdiction to hear his motion for new trial. -
The State’s interpretation is incorrect. The appeal referred to in Rule 121 (now Rule 183) is a direct appeal taken from the district court following conviction and sentence pursuant to K.S.A. Chapter 22, Article 36. Harris filed a post-trial motion in accordance with K.S.A. 22-3501. A 60-1507 motion attacking sentence creates a new civil case. State v. Thomas, 239 Kan. at 459. A motion for new trial based on newly discovered evidence is governed by K.S.A. 22-3501. The jurisdictional requirements for each of Harris’ motions should be examined separately. This conclusion is supported by the fact that motions filed pursuant to K.S.A. 60-1507 go to the Court of Appeals. Rule 183(k) (1990 Kan. Ct. R. Annot. 126). In contrast, Harris’ appeal from the denial of. his motion for new trial would be heard by this court because he has been given a maximum sentence of life. K.S.A. 1990 Supp. 22-3601(b)(l).
Moreover, in Baker v. State, 243 Kan. 1, 755 P.2d 493 (1988), we addressed two appeals by the defendant “generated by the same criminal convictions” which were consolidated in this court. One case was an appeal from an adverse ruling in the defendant’s action pursuant to K.S.A. 60-1507. The other case was an appeal by the defendant from the denial of his motion for a new trial based upon newly discovered evidence pursuant to K.S.A. 22-3501. Baker, 243 Kan. at 3. Each of the two appeals were addressed separately and the defendant was not precluded from bringing these separate actions simultaneously.
We hold a 1507 motion and a motion for a new trial can proceed simultaneously.
We now turn our attention to the question of whether the motion for a new trial was timely filed. K.S.A. 22-3501(1) states in pertinent part: “A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only upon remand of the case.” First, Harris must have filed his motion for new trial within two years after final judgment'. “A conviction is not considered final until the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed.” State v. Osbey, 238 Kan. 280, 283, 710 P.2d 676 (1985). The district court judge found the two-year limitation began to run on March 25, 1988, when this court announced its decision in Harris’ direct appeal of conviction. Harris filed his motion for new trial on March 12, 1990, and, therefore, the district court properly held Harris’ motion was filed within the time allowed.
Next, in order to meet the requirements of K.S.A. 22-3501, the district court cannot grant the motion while “an appeal is pending,” but may grant the motion on remand. K.S.A. 22-3501(1). The appeal referred to in the statute is a direct appeal from final judgment (i.e., conviction and sentence). The district court misinterpreted this phrase. Harris did not file his motion for new trial while his direct appeal was pending. Thus, Harris met all the jurisdictional requirements of K.S.A. 22-3501.
The judgment of the trial court is reversed and the case is remanded for further proceedings. | [
112,
-22,
-31,
63,
26,
-31,
58,
-72,
66,
-13,
-92,
83,
41,
-33,
68,
121,
26,
29,
85,
-7,
-52,
-73,
71,
-47,
-78,
-13,
-63,
-41,
-79,
93,
-18,
-76,
76,
-76,
2,
113,
102,
-56,
-27,
20,
-114,
5,
-71,
-29,
90,
0,
32,
106,
54,
15,
53,
62,
-29,
42,
26,
-62,
-55,
44,
91,
-82,
80,
-103,
-117,
15,
62,
16,
-93,
-80,
-98,
7,
80,
62,
-36,
49,
0,
-8,
50,
-122,
-106,
-76,
109,
-103,
108,
36,
98,
33,
93,
-17,
-84,
-120,
31,
94,
-67,
-26,
-103,
0,
73,
101,
-106,
-35,
119,
86,
10,
-12,
-19,
85,
17,
108,
-113,
-33,
-112,
-79,
13,
57,
10,
-37,
-21,
5,
0,
117,
-50,
-30,
92,
86,
123,
-97,
-117,
-108
]
|
The opinion of the court was delivered by
Allegrucci, J.:
This interpleader action, which is presently pending in the United States District Court for the District of Kansas, involves a dispute between the United States and the State of Kansas about the priority of competing tax liens. Judge Dale E. Saffels of the United States District Court has certified to this court the following question, pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq.: Does a Kansas sales tax lien attach to real property which is subject to a claim of homestead exemption under Article 15, § 9 of the Kansas Constitution?
The facts are stipulated to by the parties. Marcia C. Shook, who is the debtor and taxpayer in this action, and Ralph V. Shook, who is Marcia’s husband, acquired a tract of property as their homestead in Shawnee County, Kansas, on February 28, 1971. Marcia operated a floral shop known as “Rosemary Gardens” in Topeka, Kansas. She began to incur unpaid state withholding and sales tax liabilities in September 1983. On July 3, 1984, the Director of Taxation, Kansas Department of Revenue (Department), issued a tax warrant for the sum of $15,719.94 against Marcia for unpaid sales tax, penalties, and interest.
Homestead Land Title Company (Homestead) tendered the sum of $4,364.32 to the court in this interpleader action. The court, the parties, and interested persons agreed that the funds should be disposed of as follows:
Homestead Land Title (legal expenses) $ 600.00
Ralph V. Shook 1.582.16
Clerk of the Court for distribution in the interpleader action 2.182.16
Total $4,364.32
Upon payment in accordance with this order, plaintiff Homestead was dismissed as a party and discharged from further liability. At issue in this case is the $2,182.10 representing Marcia Shook’s share of the proceeds from the sale of the property.
In the pretrial order filed December 21, 1990, the parties stipulated to the following:
“1. This court has jurisdiction of the subject matter of this case and the cross-claim of the Director of Taxation, State of Kansas pursuant to 28 U.S.C. § 1391(e) and 28 U.S.C. § 2410. 28 U.S.C. .§ 2410 does not independently create jurisdiction over a suit against the United States, but does serve to waive sovereign immunity such that the United States may be subject to a cross-claim of codefendant.
“2. The debtor, Marcia C. Shook, and her husband Ralph V. Shook sold certain property, which they had together occupied as a homestead, on or about November 21, 1989.
“3. On July 6, 1984, the Director of Taxation, Kansas Department of Revenue filed its lien, pursuant to Kansas statute, with the Clerk of the District Court, Shawnee County, Kansas, against said property for Ms. Shook’s failure to pay Kansas sales taxes.
“4. On April 24, 1986, the United States of America registered its lien in the records of the Register of Deeds, Shawnee County, Kansas, at book 2346, page 523 against said property for Ms. Shook’s failure to pay federal taxes.
“5. Both the Kansas sales tax lien, recorded on July 6, 1984, and the federal withholding tax lien, recorded April 24, 1986, were proper and in accordance with the .respective state and federal statutes governing each.
“6. Ms. Shook’s share of the proceeds from the sale of homestead property is $2,182.16.”
The parties extensively discuss cases that concern who has priority to the proceeds of this interpleader action. In considering the question certified, we are not concerned with the question of priority. Issues of priority are questions of federal law that will be decided by Judge Saffels. As the United States Supreme Court noted in United States v. Rodgers, 461 U.S. 677, 683, 76 L. Ed. 2d 236, 103 S. Ct. 2132 (1983): “[I]t has long been an axiom of our tax collection scheme that, although the definition of underlying property interests is left to state law, the consequences that attach to those interests is a matter left to federal law.”
Here, the parties stipulated that the Department filed a lien with the Clerk of the District Court of Shawnee County, Kansas, on July 6, 1984. The United States of America (USA) registered its lien in the records of the Register of Deeds in Shawnee County, Kansas, on April 24, 1986. If the liens became effective at the time they were filed, these filing dates suggest that the Department’s lien became effective before USA’s. However, priority is a question that will be decided by the federal court. Instead, we must decide whether the lien of the Department attached to this real estate when it was filed pursuant to Kansas statute on July 6, 1984. The homestead law at issue in this case is contained in Article 15, § 9 of the Kansas Constitution and provides as follows:
“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, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, That provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife And provided further, That the legislature by an appropriate act or acts, clearly framed to avoid abuses, may provide that when it is shown the husband or wife while occupying a homestead is adjudged to be insane, the duly appointed guardian of the insane spouse may be authorized to join with the sane spouse in executing a mortgage upon the homestead, renewing or refinancing an encumbrance thereon which is likely to cause its loss, or in executing a lease thereon authorizing the lessee to explore and produce therefrom oil, gas, coal, lead, zinc, or other minerals.”
Under Article 15, § 9, a husband and wife may consent to sell the homestead, in which case the sale is not forced. Otherwise, the owners cannot be forced to sell a homestead unless the sale is done under one of the following three exceptions:
(1) for taxes;
(2) for páyment of obligations contracted for the purchase of said premises; and
(3) for erection of improvements on the premises.
Nothing in the record indicates that the sale here was forced or was the result of foreclosure of any lien. Instead, it appears the parties consented to the sale of this property on November 21, 1989. The proceeds remaining from the sale were filed in this interpleader action.
USA argues that the lien did not attach because the homestead law prevented the Department from having any interest in the property at the time the lien was filed. Because the lien filed by the Department was not for taxes arising against this property, USA argues that the Department could not enforce the lien by selling the property; therefore, the lien was ineffective. USA is arguing that, because the Department could not have foreclosed the tax lien on the property, the lien did not attach at the time it wa:s filed but, instead, became effective only when the property was isold. In support of this argument, USA relies heavily upon a previous Tenth Circuit case that arose out of the United States District Court for the District of Kansas, United States v. Hershberger, 475 F.2d 677, 681 (10th Cir. 1973).
In Hershberger, the United States attempted to foreclose a federal tax lien against a husband, using property owned in joint tenancy by the husband and his wife. Both the United States and the State of Kansas had income tax liens against the property but stipulated to the priorities of their liens. They also admitted that the tax claims were against only the husband’s one-half interest in the property and that the wife owed no taxes. United States v. Hershberger, 338 F. Supp. 804, 805-06 (D. Kan. 1972). The court concluded that the wife’s homestead right prevented enforcement of the tax liens for delinquent income taxes on the property claimed as a homestead. Although the court recognized that one of the exceptions to the homestead law was for payment of taxes, the court concluded that the only taxes that would allow foreclosure and sale of the homestead property had to arise from the property involved. In making this decision, the court noted:
“The taxes covered by the Kansas exception must relate only to taxes arising against the property involved. At the time the term was used in the Kansas Constitution there was no such thing as income, sales, etc. type of tax by the Federal Government or the State Government. Not only that, but in addition, the tax on the homestead property was not severable against any individual homesteader.” 338 F. Supp. at 808.
The Tenth Circuit affirmed the district court’s decision, noting that the homestead law was intended to benefit the family and society by protecting “ ‘the. family from destitution and society from the danger of her citizens becoming paupers.’ ” 475 F.2d at 681 (quoting Morris v. Ward, 5 Kan. 239, 244 [1869]).
The court concluded that, because the wife owned an indivisible, undivided one-half interest in the property that was separate and apart from her husband’s interest, and because she was entitled to enjoy her interest in the property as long as it was used as a homestead, the Kansas homestead law prevented the government from enforcing its federal tax lien by foreclosing on the property. 475 F.2d at 682.
The power of a federal court to order the sale of the family home subject to a state homestead exemption in order to satisfy a federal tax lien was recently addressed by the United States Supreme Court in United States v. Rodgers, 461 U.S. 677. Although this issue is not the question this court must decide, the parties discuss Rodgers at length, and the case itself discusses Hershberger. However, in Rodgers, the Court recognized the distinction between the attachment of a tax lien and the forced sale of the property to satisfy that lien: “In the homestead context, by contras]:, there is no doubt, even under state law, that not only do both spouses (rather than neither) have an independent interest in the homestead property, but that a federal tax lien can at least attach to each of those interests.” 461 U.S. at 702 n.31. The Court further noted:
“We agree with the Court of Appeals that the Government’s lien under [26 U.S.C.] § 6321 cannot extend beyond the property interests held by the delinquent taxpayer. We also agree that the Government may not ul timately collect, as satisfaction for the indebtedness owed to it, more than the value of the property interests that are actually liable for that debt. But, in this context at least, the right to collect and the right to seek a forced sale are two quite different things.” 461 U.S. at 690-91.
USA, relying upon Hershberger, argues that the taxes covered by the Kansas Homestead Exemption “relate only to taxes arising against the property involved.” 338 F. Supp. at 808. Because the taxes here do not arise from the property that was subject to the homestead law, USA argues that the Department’s tax lien could not have attached at the time it was filed. The Department spends a great deal of time rebutting this argument. Its brief reviews at length the arguments surrounding the enactment of the Homestead Exemption that are contained in the Wyandotte Constitutional Convention.
If this case involved an attempt to foreclose on the property due to taxes owed by the taxpayers, then it would be necessary to decide whether the provision of the Homestead Exemption allowing a forced sale of the property “for taxes” should be interpreted to involve only taxes that arise from the land in issue. This case, however, does not involve a forced sale. The property has been sold with the consent of the owners. The Homestead Exemption does not discuss whether a lien can attach.
The Department points out that the Tenth Circuit in Tillery v. Parks, 630 F.2d 775 (10th Cir. 1980), recognized a distinction between the attachment of a tax liability lien to an interest in a homestead and the ability to force a sale of the same homestead. In Tillery, a husband defaulted on his obligation to pay withholding taxes as a responsible officer for two corporations. The Internal Revenue Service filed federal tax liens for the unpaid taxes against all of the husband’s property, including his interest in the homestead. The wife brought an action to quiet title to the homestead, arguing that, under Hershberger, the tax lien should be discharged against the homestead property. The court noted that the narrow issue it had to decide was “whether federal tax liens arising solely through the tax liability of one’s spouse may attach to his interest in the homestead of both spouses in Oklahoma.” 630 F.2d at 776. The court concluded that they could.
In deciding Tillery, the court noted that state law determines whether the taxpayer has property or rights to property to which a tax lien may attach. 630 F.2d at 776 (citing Aquilino v. United States, 363 U.S. 509, 513, 4 L. Ed. 2d 1365, 80 S. Ct. 1277 [1960]). The husband in Tillery owned an undivided one-half interest in the property. Like Kansas, the Oklahoma homestead law placed restrictions upon the joint owners of a homestead and their creditors for the protection of the family. 630 F.2d at 776. These restrictions, however, do not negate the proprietary interest of the taxpayer. The court noted that, for a federal tax lien to attach, it did not matter how extensive the property interests of the taxpayer were or what restrictions existed on the enjoyment of the rights by the property owner. 630 F.2d at 777.
The wife in Tillery argued that the decision in Hershberger precluded attachment of a federal tax lien on homestead property. The Tenth Circuit disagreed, pointing out that the issue in Hershberger dealt solely with foreclosure and did not concern the propriety of attaching a lien to a spouse’s interest in the homestead property at issue. Tillery, 630 F.2d at 777. The Tenth Circuit concluded that the district court erred in Tillery by not drawing a distinction between the attachment of a federal tax lien and the enforcement in a foreclosure action. The court noted that, under § 7403 of the Internal Revenue Code, the court may decree a sale of any property subject to a tax lien, which implies the exercise of equitable discretion in deciding whether to order foreclosure, under § 6321 of the Internal Revenue Code. The court has no discretion on whether a lien shall attach to the property of a delinquent taxpayer. 630 F.2d at 777. In fact, the court in Tillery noted that the decision in Hershberger recognized the validity of the lien against the husband’s interest in his Kansas homestead property. Although the lien attached, the question in Hershberger was whether it necessarily followed that foreclosure was mandated. The court concluded that the lien properly attached to the husband’s undivided one-half interest in his Oklahoma homestead. Tillery, 630 F.2d at 777-78.
The question of whether these tax liens could have been foreclosed under the Homestead Exemption, which is the issue repeatedly argued by the parties, does not determine whether the lien of the Department attached. A lien is an encumbrance upon property as security for payment of a debt. 51 Am. Jur. 2d, Liens § 1, p. 142. This court has described a lien as follows:
“A lien is a hold or claim which one has upon the property of another as security for a debt or charge, as a tie that binds the property to a debt or claim for its satisfaction, as a right to possess and retain property until a charge attaching to it is paid or discharged, as a charge imposed upon specific property by which it is made security for the performance of an act, and as being synonymous with a charge or encumbrance upon a thing. Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 (1955).” Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. 958, 962, 685 P.2d 866 (1984).
The Kansas Legislature, in K.S.A. 79-3617, specified that to collect delinquent sales or compensation taxes, as were owed here, the Department must issue a warrant directed to the sheriff of any county to levy upon and sell the real and personal property of the taxpayer found within the county. After receipt of the warrant, the sheriff is required to file a copy of the warrant with the clerk of the district court. K.S.A. 79-3617 states, in pertinent part:
“The amount of such warrant so docketed shall thereupon become a lien upon the title to, and interest in, the real property of the taxpayer against whom it is issued. The sheriff shall proceed in the same manner and with the same effect as prescribed by law with respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for services.”
Later, the statute continues by providing as follows:
“If a warrant is returned, unsatisfied in full, the secretary or the secretary’s designee shall have the same remedies to enforce the claim for taxes as if the state of Kansas had recovered judgment against the taxpayer for the amount of the tax. No law exempting any goods and chattels, land and tenements from forced sale under execution shall apply to a levy and sale under any of the warrants or upon any execution issued upon any judgment rendered in any action for sales or compensating taxes. The secretary or the secretary’s designee shall have the right at any time after a warrant has been returned unsatisfied, or satisfied only in part, to issue alias warrants until the full amount of the tax is collected.” K.S.A. 79-3617.
The validity of a lien created by statute depends upon complying with the terms of the statute. Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P.2d 280 (1959). Here, the parties do not dispute that the Department complied with the provisions of the statute in appropriately filing the tax lien. Therefore, because this court must rely upon the record as submitted by the parties in reaching its decision on this certified question, we should assume that the warrant was appropriately filed as required by K.S.A. 79-3617, which created a lien upon the title of the real property of the taxpayer.
Marcia Shook had “title to, and interest in the real property” in question. Therefore, the unpaid sales tax, penalty, and interest became a lien upon her interest in the real property jointly owned by the Shooks on July 6, 1984.
The answer to the question certified by the United States District Court is yes.
Holmes, C.J., and Herd, J., concur in the result. | [
-43,
110,
-47,
30,
8,
-32,
49,
-120,
105,
-73,
35,
83,
111,
-54,
5,
57,
51,
31,
65,
104,
-58,
-90,
83,
-64,
80,
-77,
-71,
93,
-69,
91,
-25,
-44,
12,
49,
-54,
-43,
-90,
-110,
-121,
28,
-20,
2,
-119,
117,
-13,
64,
52,
-21,
122,
9,
113,
-114,
-13,
47,
24,
-15,
8,
40,
-53,
43,
-63,
-72,
-85,
5,
127,
19,
33,
5,
-40,
67,
104,
-22,
-112,
57,
0,
-56,
115,
54,
-106,
-12,
3,
-103,
9,
-26,
99,
33,
21,
-19,
-20,
-104,
46,
-1,
-113,
-25,
-111,
88,
98,
-120,
-74,
-99,
124,
66,
67,
-2,
-18,
5,
-99,
-36,
15,
-82,
-106,
-111,
15,
116,
1,
83,
-17,
-95,
-80,
97,
-49,
-90,
92,
71,
56,
59,
-50,
-12
]
|
The opinion of the court was delivered by
McFarland, J.:
Tyrone L. Baker, Sr., appeals his jury trial convictions of premeditated first-degree murder (K.S.A. 1990 Supp. 21-3401), aggravated burglary (K.S.A. 21-3716), conspiracy to commit aggravated burglary (K.S.A. 21-3302, K.S.A. 21-3716), and three counts of kidnapping (K.S.A. 21-3420).
Ida Mae Dougherty lived in the Westboro area of Topeka. She was a close friend of Lester and Nancy Haley, who lived next door, and Verne Horne, who lived across the street. During the late morning of December 4, 1989, Mrs. Horne received a telephone call from Nancy Haley, who was concerned because Ida Mae’s néwspaper remained in the driveway and she had failed to answer her telephone. Mrs. Horne walked over to the Dougherty home, where she met Mr. Haley. They entered the home with Mr. Haley’s key. They checked the downstairs rooms and then the upstairs rooms. In a bedroom they encountered a black male (láter identified as defendant), who ordered them to lie face down on the floor. A short while later, Nancy Haley arrived and was ordered to join the other two prisoners.
Later, defendant ordered the three into Ida Mae’s automobile and drove them into a secluded area east of Topeka. They were ordered out of the automobile at gunpoint. When a pickup truck drove by, defendant ordered the trio back into the vehicle and drove to the end of a road from where they walked a short distance and were ordered to lie down. The Haleys complied. Mrs. Horne had, throughout the automobile trip, maintained a conversation with the defendant. He had told her. various facts about himself. At this point, she told him if he had not killed Ida Mae, he was not a murderer and offered him money. Defendant stated he was not sure whether or not he had killed Ida Mae. Mrs. Horne suggested he should check on Ida Mae and said the trio would wait for his return. Defendant hesitated and then drove away.
The Haleys were elderly and quite infirm. Mrs. Horne told them to hide while she went for help. She had trouble finding the help, but ultimately received assistance from a passing motorist. Later, Ida Mae’s body, covered with leaves, was found just east of the Shawnee-Douglas County line. The cause of death was asphyxia or smothering. The Haleys’ bodies were also found in Douglas County. They had been shot.
Lisa Pfannenstiel testified she was defendant’s girlfriend and pregnant by him. She stated that on December 3, 1989, she and defendant were walking through Westboro looking for a house to burglarize. Defendant selected Ida Mae’s home. They both saw Ida Mae in her home. They first went to the home of a friend, Chris Miller, to obtain duct tape to muffle the sound of the window glass breaking. They returned around 10:00 p.m. and saw Ida Mae cooking in the kitchen. Defendant broke a window after taping it, entered the home, and confronted Ida Mae.
Lisa testified defendant made Ida Mae lie on the floor and taped her feet together. Ida Mae began screaming, and defendant told Lisa he would have “to do her.” He secured a pillow and went back to Ida Mae. Lisa heard sounds of a struggle arid then it became quiet. Defendant put Ida Mae in the trunk of her car. Lisa and defendant then drove to Douglas County where defendant dumped the body and covered it with leaves. During the early morning hours of December 4, they returned to Ida Mae’s home to select which belongings they wished to take. They stayed overnight. Late in the morning the Haleys and Mrs. Horne came over and were taken prisoner. Lisa placed some of Ida Mae’s belongings in the car and walked to Chris Miller’s residence. Later in the afternoon, defendant joined her and placed Ida Mae’s belongings in a storage closet of a friend. Ida Mae’s vehicle was left in a parking lot. Chris Miller drove Lisa and the defendant to the Ramada Inn South, where he obtained a room for them. Mrs. Horne testified she did not see Lisa Pfannenstiel at Ida Mae’s residence but heard people talking in whispers to each other. The following day (December 5), defendant changed his appearance by cutting and permanent waving his hair. He was arrested the same day at the motel. Other facts will be stated as necessary for the discussion of particular issues.
JURY PANEL
For his first issue, defendant contends the district court erred in denying his motion, under K.S.A. 22-3407, to discharge the jury panel.
His argument on this issue takes three routes:
1. The method of granting excuses resulted in a jury panel that was not a fair cross section of the community;
2. the judge, rather than the jury coordinator, should have heard and decided the requested excuses from service and deferrals; and
3. defendant had the right to be present in person and by counsel when any action was taken on the requests for excuses and deferrals.
Defendant’s particular complaint about the prospective jurors reporting for jury service on his case is that the 60-and-over age group, was overrepresented.
In Taylor v. Louisiana, 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975), the United States Supreme Court held that the systematic exclusion of women during the jury selection process, resulting in jury pools not “reasonably representative” of the community, denies a criminal defendant his right, under the Sixth and Fourteenth Amendments, to a petit jury selected from a fair cross section of the community. In holding that “petit juries must be drawn from a source fairly representative of the community,” the Supreme Court explained that “jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” 419 U.S. at 538. The Supreme Court further explained that this requirement did not mean “that petit juries actually chosen must mirror the community.” 419 U.S. at 538.
In Duren v. Missouri, 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979), the Supreme Court held that a male criminal defendant was denied his constitutional right to a trial by a jury chosen from a fair cross section of his community when women were granted automatic exemption from jury service upon request. Building upon their holding in Taylor v. Louisiana, 419 U.S. 522, the Supreme Court stated the requirements necessary to establish a prima facie violation of the fair-cross-section requirement as follows:
“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” 439 U.S. at 364.
The Supreme Court concluded its analysis of the “fair-cross-section” requirements: . .
“We recognize that a State may have an important interest in' assuring that those members of the family responsible for the care of children are available to do so. An exemption appropriately tailored to this interest would, we think, survive a fair-cross-section challenge. We stress, however, that the constitutional guarantee to a jury drawn from a fair cross section of the community requires that States exercise proper caution in exempting broad categories of persons from jury service. Although most occupational and other reasonable exemptions may inevitably involve some degree of over-inclusiveness or underinclusiveness, any category expressly limited to a group in the community of sufficient magnitude and distinctiveness so as to be within the fair-cross-section requirement — such as women — runs the danger of resulting in underrepresentation sufficient to constitute a prima facie violation of that constitutional requirement. We also repeat the observation made in Taylor that it is unlikely that reasonable exemptions, such as those based on special hardship, incapacity, or community needs, ‘would pose substantial threats that the remaining pool of jurors would not be representative of the community.’ [Citation omitted.]” 439 U.S. at 370.
Let us look now at Kansas statutes (K.S.A. 43-107 et seq.) and our rules on jury panel selection.
K.S.A. 43-155 provides:
“The public policy of this state is declared to be that jury service is the solemn obligation of all qualified citizens, and that excuses from the discharge of this responsibility should be granted by the judges of the courts of this state only for reasons of compelling personal hardship or because requiring service would be contrary to the public welfare, health or safety-; that all litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross section of the community in the district wherein the court convenes; and that all citizens shall have the opportunity to be considered for service on juries in the district courts of Kansas.”
This statute is obviously intended to comply with the requirements of the United States Supreme Court.
Qualifications for jury service are governed by K.S.A. 43-156 as follows: “Every juror . . . shall be a citizen of the state, resident of the county and possess the qualifications of an elector as now, or in the future established.”
Exclusions from jury service are governed by K.S.A. 43-158 and K.S.A. 43-159..
K.S.A. 43-158 provides for mandatory exclusion from jury duty as follows:
“The following persons shall be excused from jury service: (a) Persons unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out a jury questionnaire form prepared by the commissioner;
(b) persons under adjudication of incompetency;
(c) persons who within ten (10) years immediately preceding have been convicted of or pleaded guilty, or nolo contendere, to an indictment or information charging a felony.”
K.S.A. 43-159 provides for the permissive exclusion from jury duty as follows:
. “In addition to the persons excused from jury service in K.S.A. 43-158, the following persons may be excused from jury service by the court: (a) Persons so physically or mentally infirm as to be unequal to the task of ordinary jury duty;
(b) persons who have served as jurors in the county within one (1) year immediately preceding;
(c) persons whose presence elsewhere is required for the public welfare, health or safety;
(d) persons for whom jury service would cause extraordinary or compelling personal hardship;
(e) persons whose personal relationship to the parties or whose information or interest in the case to be tried is such that there is a probability such persons would find it difficult to be impartial.”
This court adopted “Standards Relating to Jury Use and Management” as guidelines “to assist the District Courts in the management of jury systems within the State of Kansas.” The standards were incorporated into the Supreme Court Rules relating to district courts effective July 15, 1983 (1990 Kan. Ct. R. Annot. 49). There are 19 standards set forth to guide the district courts. Standard 3 concerns the random selection procedures to be used in the juror selection process. Standard 3(c) states, in pertinent part:
“Departures from the principle of random selection are appropriate:
(i) to exclude persons ineligible for service in accordance with Standard 4,
(ii) to excuse or defer prospective jurors in accordance with Standard 6 . . . .” (1990 Kan. Ct. R. Annot. 49.)
Standard 4 provides:
“All persons should be eligible for jury service except those who:
(a) are less than eighteen years of age;
(b) are not citizens of the United States;
(c) are not residents of the county in which they have been summoned to serve;
(d) are unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out a jury questionnaire;
(e) are presently under an adjudication of mental disability; or .
(f) have been convicted of a felony and have not been relieved of the disabilities imposed by law.” (1990 Kan. Ct. R. Annot. 50.)
Standard 6 addresses exemptions, excuses, and deferrals from jury service as follows:
“(a) All automatic excuses or exemptions from jury service should be eliminated for all persons determined eligible under Standard 4.
“(b) Eligible persons who are summoned may be' excused from jury service by a judge or duly authorized court official only if:
(i) their ability to receive and evaluate information is so impaired that they are unable to perform their duties as jurors,
(ii) their service would be an extraordinary or compelling personal hardship to them, or to members of the public, or
(iii) they have been called for jury service during the preceding twelve months.
“(c) Requests by eligible persons for deferral of jury service for a reasonable period of time should be liberally permitted by a judge or duly authorized court official to minimize the inconvenience and financial sacrifice of jury service.
“(d) Guidelines for determining requests for excusal and deferral should be adopted by the judges of each judicial district.” (1990 Kan. Ct. R. Annot. 51.)
Standard 10 is titled “Administration of the Jury System” and significantly provides, in part:
“(c) Responsibility for administering the jury system should be vested in an administrator acting under the supervision of the court.” (1990 Kan. Ct. R. Annot. 52.)
When Shirley Young, the Third Judicial District Jury Coordinator, testified at the June 18, 1990, hearing on the motion to discharge the jury panel, she testified that she was familiar with the Standards Relating to Jury Use and Management which this court adopted and that she used those standards in her duties as the Jury Coordinator for Shawnee County. Ms. Young-testified that she was the administrator for Shawnee County that Standard 10(c) referred to. She further testified that she excused or deferred prospective jurors in accordance with Standard 6.
Of the 89 prospective jurors who were excused, and the 49 prospective jurors who were deferred, Ms. Young testified that the following persons were excused or deferred:
EXCUSED
NUMBER REASON AUTHORITY
1 served on jury within past year K.S.A. 43-159(b)
51 age or health K.S.A. 43-159(a)
4 students working way through college K.S.A. 43-159(d)
11 not reimbursed for jury duty K.S.A. 43-159(d)
7 job-related K.S.A. 43-159(d)
2 religious beliefs K.S.A. 43-159(d)
1 prejudiced (unable to maintain
an open mind) K.S.A. 43-159(d)
10 no babysitter; run day care K.S.A. 43-159(d)
1 Rossville resident without transportation K.S.A. 43-159(d)
89 non-citizen K.S.A. 43-156
DEFERRED
NUMBER REASON AUTHORITY
29 job-related Standard 6(c)
12 vacation — prepaid tickets Standard 6(c)
3 children home, no sitter Standard 6(c)
1 subpoena to another court
1 getting married
3 49 school-related
Ms. Young further testified, during cross-examination, concerning, the exclusion of certain groups or classifications of people as follows:
“Q. [By Mr. Irigonegaray, assistant prosecutor] Do. you, ma’am, systematically exclude any member of our society as a potential juror for jury duty in our county?
“A. No.
“MR. WURTZ [defense counsel]: Your Honor, I object. That’s a legal conclusion. She can testify as to what she does, but the ‘systematic exclusion’ is a legal term of art.
“THE COURT: I don’t think it is. Overruled.
“Q. Do you exclude automatically, for example, women?
“A. No.
“Q. Do you exclude, for example, automatically, anyone under the age of
21?
“A. No.
“Q. Anyone over the age of 60?
“A. No.
“Q. Do you exclude Hispanics?
“A. No.
“Q. Do you exclude disabled people?
“A. No.
“Q. Does the county have any policy whatsoever of excluding any segment of our society?
“A. No. There would be one thing as excluding, as if they didn’t understand the English language or if they didn’t understand that’s by statute. So they’re automatically excluded.
“Q. Other than the statutory exclusions, do you employ any other exclusions for the exclusion, systematic exclusion of potential jurors?
“A. No.”
The age breakdown of the proposed venire which defendant relies upon for his charge that his right to a jury from a fair cross section of the community was violated is as follows:
AGE % OF VENIRE
60-35
50-59 19.4
40-49 16.5
30-39 18.4
20-29 6.8
under 20 1
Defendant’s primary concern about the panel is that the overage-60 group is overrepresented (35%), while the younger group is underrepresented. Valid exemptions can have this effect. People charged with care of small children are generally in the under 60 category as are. persons whose presence at their employment is required for public welfare, health, or safety (policemen, firemen, etc.).
In denying the motion herein, the district court reasoned:
“It may be that this particular panel has a higher percentage of persons over 60 than in some previous panels, but that in and of itself is no showing that it’s not a fair cross section of population of this county. There’s certainly been no showing that any segment or portion of the population has been systematically excluded from this jury panel.
“As far as the people being excused because of extraordinary or compelling personal hardship is concerned, that is a matter within the province of the Court. I don’t think that the parties or counsel have any standing to challenge the Court’s excusing of people for that reason. In that connection, I would direct your attention to State [v.] Folkerts in 229 Kansas 608. I think the evidence is clear that this panel has been selected in accordance with the state statutes and there’s been no violation of any constitutional protection.”
In the present case, there has been no showing that any distinctive group has been systematically excluded. The individual situation of the person seeking to be excused was the determining factor — not their age, race, religion, gender, education level, etc. There is absolutely no showing the jury coordinator deviated from the statutes or Supreme Court standards in any significant respect. We find no merit in defendant’s contention he was denied a fair cross section of the community in the jurors assigned to appear for the trial of his case.
Next, defendant contends that only a judge could properly excuse a member of a jury panel from service. He acknowledges that no statute imposes such a restriction and cites no authority that such is a constitutional right. Our standards expressly authorize a court to delegate such duties to a “duly authorized court official.” Standard 10(c) directs that responsibility for administering the jury system be vested in an administrator acting under supervision of the court. That is exactly the role Ms. Young occupied. She testified that she consulted with the appropriate judge when any problems arose. We find no merit in this point.
For his next point, defendant argues he had a constitutional right to be present in person and by counsel when excuses from jury service and deferrals were determined. This point was not directly presented to the trial court and seems to have crept in on appeal.
Defendant cites no authority for the proposition he has a constitutional right to be so present and represented. He argues that his absence from a portion of the jury selection can never be harmless error. In support thereof, he cites United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied 394 U.S. 908 (1969). This reliance is misplaced. In Crutcher, five men were charged with hijacking a truck. Two pled guilty and two were scheduled for trial with the fifth remaining at large. On the day of trial, the fifth man (Payne) was arrested in another state. The trial court appointed an attorney for Payne and proceeded to impanel the jury, Payne, of course, being absent. Payne was brought into the state after the jury had been selected, but prior to commencement of the evidence. In Crutcher, one defendant missed a crucial part of the trial — the selection of the jury.
The concept that a defendant and his counsel must be present when persons receiving summonses for jury duty are requesting to be excused, but prior to when the trial has commenced, is not even feasible. More often than not, one panel serves many cases in different divisions. Often it is uncertain at this stage which cases will actually be tried during their service. Many courts have primary cases set with various back-up cases listed. It would be impossible to bring all defendants and their counsel together to be present when the decision is to be made on a panel member’s request to be excused from jury service. Also, such requests are not determined in a group, but on an individual basis. Such request will probably be in the form of a telephone call or note. No authority has been cited for the proposition that this is a stage of the proceeding requiring defendant’s attendance in person and by counsel.
We note also that K.S.A. 22-3405(1) provides: “The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury . . . .” Assembling the jury panel is not the “impaneling of the jury.” As used in this statute, “impaneling of the jury” means jury selection. A criminal defendant’s statutory and constitutional rights to be present in person and by counsel at trial do not extend to the determination of excuses from jury service sought by individuals who have received summons for jury duty but have not reported for service on a particular case.
We find no merit in this point.
ASSISTANT ATTORNEY
For his second issue, defendant contends the use of an assistant attorney exceeded the scope of involvement permitted by K.S.A. 19-717, and, thus, violated his right to a fair trial.
K.S.A. 19-717 provides:
"That the prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the objection of such associate counsel until the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court.”
Pedro Irigonegaray was hired by the victims’ families pursuant to said statute. He served as an assistant prosecutor under K.S.A. 19-717 rather than as a special prosecutor under K.S.A. 1990 Supp. 22-2202(17). In State v. Berg, 236 Kan. 562, 694 P.2d 427 (1985), we discussed the difference between a special prosecutor and an attorney hired to assist the prosecutor. We stated, inter alia:
“In our opinion an attorney hired by the complaining witness to assist the prosecutor pursuant to 19-717 is not a ‘special prosecutor’ within the meaning of 22-2202(19). Although we find no Kansas cases which define ‘special prosecutor,’ we are of the opinion that, as used in the statute, it refers to one who is temporarily appointed by the court to replace the absent county attorney pursuant to K.S.A. 19-711 or 19-715. The 19-717 attorney does not take over the role of the prosecutor. The controlling word in 19-717 is ‘assist.’ The attorney is to assist the prosecutor who will maintain ultimate control of the case.
“In State v. Wells, 54 Kan. 161, the Supreme Court held that although it was not error for the lower court to permit private counsel to assist the county attorney, the entire prosecution was to remain under the supervision and control of the county attorney. K.S.A. 19-717 was enacted in 1901, subsequent to the Wells case. Since the statute specifies that the attorney employed by the complaining witness ‘assists’ the prosecutor, the statute codifies the holding in Wells and was not meant to override that case. More recently, in State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), this court held that it was not error to hire an assistant to the prosecutor under 19-717 since ‘[t]he district attorney participated fully in the prosecution and there is nothing to show he was not in full control of the case.’ 225 Kan. at 723. See also State v. Atwood, 187 Kan. 548, 358 P.2d 726 (1961).
“In discussing 19-717 in [State ex rel. Rome v. Fountain, 234 Kan. 943, 678 P.2d 146 (1984)], this court stated:
‘This statute does not give to the associate counsel the right to take an appeal to an appellate court from an order dismissing the case. . . .
‘. . . Although the complaining witness does have the right to employ private counsel to assist the county attorney, the ultimate prosecution of the case remains at all times in the hands of the public prosecutor.’ 234 Kan. at 949.
“The drastic difference in roles between the ‘public’ prosecutor and the ‘private’ prosecutor was observed in Note, Private Prosecution — The Entrenched Anomaly, 50 N.C.L. Rev. 1171, 1173 (1972):
‘From his sole function as procured advocate for a prosecution, the duties of the public prosecutor have taken new dimensions. He is not an advocate in the ordinary sense of the word, but is the people’s representative, and his primary duty is not to convict but to see that justice is done. The prosecutor is an officer of the state who should have no private interest in the prosecution and who is charged with seeing that the criminal laws of the state are honestly and impartially administered, unprejudiced by any motives of private gain. It is his duty to show the whole transaction as it was, regardless of whether it tends to establish a defendant’s guilt or innocence.
‘Conversely, a privately retained attorney owes his client individual allegiance, and once employed he must not act for an interest even slightly adverse to that of his client in the same general matter. Therefore, in view of the ethical and judicial restrictions imposed on the public prosecutor and the generally recognized loyalties of the private .advocate, “private prosecutor” is a contradiction in terms. The high standard of impartiality demanded of a prosecutor realistically cannot be expected of the private advocate.’ ” 236 Kan. at 566-68.
Defendant contends that, in essence, the district attorney turned over the prosecution of this case to Mr. Irigonegaray and abdicated his role as the prosecutor. The record reflects:
1. The district attorney filed the complaint;
2. the district attorney conducted the preliminary hearing although an associate of Mr. Irigonegaray’s was present;
3. the district attorney worked out the plea agreement with Lisa Pfannenstiel which led to her testimony against the defendant;
4. the district attorney conducted all of the trial proceedings except those which will be enumerated as having been done by Mr. Irigonegaray.
Mr. Irigonegaray was assigned the following primary duties by the district attorney:
1. voir dire of the jury;
2. direct and redirect examination of Verne Horne (his client);
3. direct and cross-examination of the expert psychiatric expert witnesses relative to defendant’s insanity defense;
4. cross-examination of the defense witnesses;
5. the second half of the State’s closing argument.
Both the district attorney and Mr. Irigonegaray appeared at the sentencing and expressed their views.
This was a lengthy and complex trial in which the State called over 50 witnesses. We have carefully examined the record and conclude that defendant has failed to establish his claim that Mr. Irigonegaray was “lead” counsel for the State, and that the district attorney had relinquished his responsibilities to the assistant attorney. If so assigned by the district attorney, an assistant under K.S.A. 19-717 may take an active role in the proceedings, and need not confine himself to taking notes and advising the district attorney, which is apparently the role defendant believes is appropriate herein.
Before proceeding to the next issue, some reference needs to be made to a sort of “sidecar” point riding along beside the main point in this issue. Defendant contends that Mr. Irigonegaray acted improperly in connection with a party flier distributed by a family member of the victims (Suzanne James). The party was to be held on a day when the trial was in progress. The flier made references to defendant’s insanity defense. Defendant filed a motion prior to trial to remove Mr. Irigonegaray from the case for having leaked confidential psychiatric information on defendant to Ms. James. On hearing, the motion was denied. Defendant characterizes the attorney’s behavior in this regard as “reckless and vengeful.” This sidecar point is really seeking review of the district court’s denial of the motion. The district court held that Mr. Irigonegaray did not disclose the information to Ms. James and, that there was no “gag” order on the data anyway. We have been provided with no basis for overturning the trial court’s denial of this pretrial motion.
We conclude that this issue is without merit in its entirety.
CLOSING ARGUMENT
Defendant next contends that he was denied a fair trial by remarks made by Mr. Irigonegaray in his portion of the- closing argument.
The general rules relative to claims of prosecutorial misconduct in closing arguments are as follows. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial. State, v. McKessor, 246 Kan. 1, Syl. ¶ 7, 785 P.2d 1332 (1990). The prosecutor is entitled to considerable latitude in arguing the case to a jury. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel. State v. Hanks, 236 Kan. 524, Syl. ¶ 7, 694 P.2d 407 (1985). Since Kansas does not follow the “plain error” rule used in federal courts, reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged. State v. Bird, 238 Kan. 160, Syl. ¶ 13, 708 P.2d 946 (1985). Remarks made by the prosecutor in closing argument are harmless error if the court finds that the error had little likelihood of changing the result of the trial. State v. Buckland, 245 Kan. 132, Syl. ¶ 6, 777 P.2d 745 (1989).
A number of complaints are made relative to this portion of the closing arguments. We will list each.
Mr. Irigonegaray referred to defense counsel’s statement during closing argument that the true measure of a society is how it treats those who are sick or poor, to which Mr. Irigonegaray said should be added “how it treats those that are the victims of crime, how it treats those that are buried in. our cemeteries.” Defense counsel objected. The objection was sustained and the jury was admonished to disregard the comment.
The next complained-of remarks need some additional background material to place them in context. While the defendant was driving the Haleys and Mrs. Horne to Douglas County, Mrs. Horne engaged defendant in conversation. One of the matters he discussed was a prior lawsuit he had been involved in which arose from his being struck by a truck. The point of this line of testimony was to show defendant’s state of mind and control of his faculties and to rebut his insanity defense. Defendant told a police officer shortly after the accident that he had been chased into the street by a large dog. When he filed the lawsuit against the truck driver, the dog was not mentioned.
In closing argument, Mr. Irigonegaray stated:
“Tyrone Baker is not insane. Tyrone Baker is a criminal, and this nice boy image that you are in fact being advised of by the defense is nonexistent. It’s a smoke screen. If in fact this young man is such a wonderful human being, why did he lie under oath when he sued Kent Bigham on the allegation that because the driver of that truck was negligent, he had been struck by the truck? In this lawsuit that he filed, dated on March the 9th, 19 — ”
Defense counsel objected and was overruled. Then, the following transpired:
“MR. IRIGONEGARAY: On March the 9th, 19 hundred and 89, this good boy files a suit in this courthouse, Division 8, wanting more than $10,000 from the person that ran into him. There is no mention here of any wild dog chasing him whatsoever.
“MR. WURTZ: Your Honor, I’ve got to object on this. There’s no requirement, I don’t believe, that it — that that is being alleged in the original petition. It’s misleading.
“THE COURT: Well, overruled.
“MR. IRIGONEGARAY: Your Honor, the allegation is and you read this, the only reason for the accident was the negligence of the driver of the vehicle. Read this if you wish and see if you see anything in there where he’s — he was being chased and that it was his fault that he ran into that truck as now they try to tell you occurred.”
What defendant may or may not have included in his pleadings in the truck case is extremely trivial. Aside from the remarks being neither gross nor flagrant, there is absolutely no basis to conclude they deprived defendant of a fair trial.
The next area of complaint stems from remarks about the gun identified as having killed the Haleys and as having been borrowed by the defendant for his burglary of the Dougherty home.
These remarks are as follows:
“MR. IRIGONEGARAY: This is the murder weapon, Exhibit 5, this is what that man used to take three lives — two of them, excuse me, two lives. And when he was through, with taking those—
“MR. WURTZ: Your Honor, the murder of the Haleys isn’t an issue here.
“THE COURT: I’m sorry?
“MR. WURTZ: The murder of the Haleys isn’t an issue here.
“MR. IRIGONEGARAY: The murder of the Haleys has been involved in this case from the beginning, Mr. Wurtz.
“THE COURT: Well, I’m aware of that.
“MR. WURTZ: Thank you.
“MR. IRIGONEGARAY: When he took those two lives and he no longer needed this weapon, knowing that he [no] longer needed it, being able to formulate that clear thought in his mind, what did he do with this? He took it to his friend and said, you better get rid of it. This weapon, however, showed up not because he wanted you to see it, but because through a very fortuitous set of events, it ended up in this courtroom. And the ballistics match. There’s no doubt that this is the weapon that killed Nancy and Lester Haley, and there’s no doubt that this is the weapon that Tyrone Baker obtained for the purpose of burglárizing Ida Mae Dougherty’s home.”
There was no contemporaneous objection lodged against these remarks, hence reversible error cannot be predicated on these remarks. State v. Bird, 238 Kan. 160, Syl. ¶ 13. Even if a contemporaneous objection had been lodged, we would find no reversible error herein. Insanity was the defense herein. The circumstances under which defendant obtained and disposed of the gun were relevant thereto. Additionally, defense counsel had referred to the gun and the circumstances under which defendant had obtained it in his closing argument.
Defendant next complains about the following statements:
“MR. IRIGONEGARAY: May it please the Court, Your Honor, Counsel: Before I commence my rebuttal of Mr. Wurtz’s closing argument, I must out of order first address a comment that was made by Mr. Wurtz. No one is more dedicated to the principle of constitutional appearance than I am.
“MR. WURTZ: Objection, Your Honor, personal opinions are improper argument.
“MR. IRIGONEGARAY: You told the jury that we bought a witness.
“THE COURT: Overruled.
“MR. IRIGONEGARAY: No one is more concerned with the rights of the accused than I am.
“MR. WURTZ: Personal comments, Your Honor, objection.
“MR. IRIGONEGARAY: You told us we bought a witness.
“MR. WURTZ: And I believe it.
“MR. IRIGONEGARAY: I believe what I’m saying as well.
“THE COURT: Counsel, that’s enough.
“MR. IRIGONEGARAY: No one bought Dr. Modlin. That is simply an untruth. It is false and it is insulting not only to the judicial process, it is insulting to a man'who for 50 years has served the psychiatric profession with distinction, honor and ability, and to suggest to you that any amount of money is going to get Dr. Modlin to come into this courtroom and lie to you is as preposterous, is as ridiculous, it’s as insane as to believe that this man did not know what he was doing.”
In defense counsel’s closing argument, he had discussed Dr. Modlin’s testimony and his excellent credentials then implied that the doctor had not done his job on this case. Dr. Modlin was the State’s expert witness on the defendant’s defense of insanity. In concluding his remarks on Dr. Modlin, defense counsel stated: “What the State did here was buy an opinion.”
The complained-of remarks by Mr. Irigonegaray were in direct response to the “buying an opinion” remark. Both attorneys became personal in their discussion of the objection. Defense counsel even added he personally believed the witness had been bought. We find no error in the State’s complained-of remarks relative to Dr. Modlin.
Additionally, defendant complained of the following Irigonegaray remarks:
“Tyrone Baker is a criminal, is a criminal who was progressively getting involved in more and more crime. And if we buy their defense that a nice person doesn’t kill, then no one would ever be convicted of murder. Because all murderers have to kill once for the first time. He didn’t stop there, though. Once he murdered he murdered twice more to cover up the crime. Tyrone Baker is not insane. Tyrone Baker is a criminal, and this nice boy image that you are in fact being advised of by the defense is nonexistent. It’s a smoke screen.”
Defendant contends this was an innuendo that if not convicted he would kill again. We do not so construe the remarks. However, there was no contemporaneous objection thereto and, accordingly, the remarks could not be the basis for reversible error.
We have reviewed the complained-of remarks in closing argument both individually and collectively and find no reversible error.
SANITY
For his next issue, defendant challenges the sufficiency of the evidence for the jury to find beyond a reasonable doubt that the defendant was sane at the time of the commission of the offenses herein.
Defendant asserted an insanity defense. In Kansas the test to be applied is the M’Naghten test, which we adopted in State v. Nixon, 32 Kan. 205, Syl. ¶ 1, 4 Pac. 159 (1884). We have stead fastly adhered to that test. State v. Wood, 235 Kan. 915, 921, 686 P.2d 128 (1984), and cases cited therein. Under the M’Naghten test, the defendant is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act. Under the “right and wrong” test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law. It is not sufficient to prove that he believed thát, while what he was doing was legally wrong, it was morally right. State v. Lawton, 241 Kan. 140, 143-44, 734 P.2d 1138 (1987). The jury Was instructed on the M’Naghten test. Defendant was found guilty of first-degree murder, three counts of kidnapping, one count of aggravated burglary, and one count of conspiracy to commit aggravated burglary.
Defendant contends that the evidence was insufficient for the jury to find beyond a reasonable doubt that he was not insane during Ida Mae Dougherty’s murder, the burglary of her home, or the kidnapping of Verne Horne and the Haleys.
The rule of appellate review of a claim of insufficient evidence is well established: 1
“When the sufficiency of evidence is challenged, the standard of review 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 the defendant guilty beyond a .reasonable doubt.” State v. William, 248 Kan. 389, Syl. ¶ 19, 807 P.2d 1292 (1991).
See State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990); State v. White, 246 Kan. 28, Syl. ¶ 5, 785 P.2d 950 (1990).
Recently in State v. Pioletti, 246 Kan. 49, 56-57, 785 P.2d 963 (1990), we discussed the burden of proof in an insanity case. Quoting State v. Hollis, 240 Kan. 521, 731 P.2d 260 (1987), we said:
“[T]he state is not required in the first instance to introduce evidence to prove sanity, for the law presumes that all persons are sané, and this presumption of sanity takes the place of evidence in the first instance. It answers for evidencé of sanity on the part of the state. But if evidence is introduced which tends to shake this presumption, the jury must then consider the same, and its effect upon the main issue of guilty or- not guilty, and if upon considering the whole of the evidence introduced on the trial, together with the presumption of sanity, the presumption of innocence, and all other legal presumptions applicable to the case under the evidence, there should be a reasonable doubt as to whether the defendant is sane or insane, he must be acquitted. . . . [The defendant] is required only to raise a reasonable doubt as to his guilt. The burden of proof is always upon the state, and never shifts from the state to the defendant.” ’ 240 Kan. at 529 (quoting State v. Crawford, 11 Kan. 32, 44-45 [1873]).” 246 Kan. at 56-57.
The only testimony concluding that defendant was insane at the time of the crimes was that of Dr. Gilbert Parks, a psychiatrist who testified for the defense. He concluded that defendant was a paranoid schizophrenic with an avoidance personality disorder and, at the time of the crimes, was possessed or dominated by his psychotic personality, which believed that breaking the law was doing good.
Dr. Parks’ testimony, however, was disputed. The State’s expert witness, Dr. Herbert Modlin, a psychiatrist, testified that the defendant had schizophrenia, but that he was not insane at the time of the alleged crimes.
In State v. Sanders, 225 Kan. 147, Syl. ¶ 4, 587 P.2d 893 (1978), we said:
“The testimony of medical experts that an accused was legally insane at the time of a criminal act is not conclusive merely because' it is not disputed by other medical testimony. The testimony of nonexpert witnesses who observed the actions of the accused immediately before, during and after the criminal act may be considered by a jury along with testimony of expert witnesses. ”
See State v. Hollis, 240 Kan. at 532.
There was a great deal of pertinent lay testimony in this case.
Verne Home, Lisa Pfannenstiel, Chris Miller (the friend who loaned defendant the duct tape), and Kris Miller (defendant’s friend who loaned him the gun) all portray defendant as a sane person in control of his faculties who knew what he was doing. His actions in planning the crimes, obtaining necessary equipment, disposing of the bodies, hiding the property taken in the burglary, disposing of the gun, and changing his appearance after the crimes all support the jury’s conclusion that the defendant was legally sane at the time of the commission of the offenses.
We are convinced that a rational factfinder could have found beyond a reasonable doubt that the defendant was sane at the time of the commission of the crimes herein.
CONSPIRACY
Next, defendant contends that the evidence was insufficient to prove that an agreement existed between defendant and Lisa Pfannenstiel to commit aggravated burglary.
In State v. Rider, Edens & Lemons, 229 Kan. 394, 404-05, 625 P.2d 425 (1981), we discussed the interpretation and application of the conspiracy statute, K.S.A. 21-3302(1), as follows:
“State v. Roberts, 223 Kan. at 52, contains a nutshell summary of the proof required to sustain a conviction on the conspiracy charge, as follows:
“ ‘Our conspiracy statute provides:
“A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.” ’(K.S.A. 21-3302[1].)
“ ‘In State v. Daugherty, 221 Kan. 612, 562 P.2d 42, this court holds:
“Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.” ’ (Syl. 4.)
“ ‘ To prove a conspiracy it must be established that the conspirators had a mutual understanding.or tacit agreement, a meeting of the minds, for the accomplishment of the common purpose. This meeting of the minds may be expressed or implied from the acts of the parties. (15A C.J.S., Conspiracy, § 40, pp. 734-735.) However a conspiracy to commit a crime is not established by mere association or knowledge of acts of the other parties. There must be some intentional participation in the conspiracy with a view to the furtherance of the common design and purpose. (15A C.J.S., Conspiracy, § 39, pp. 733-734.)’ ”
Lisa Pfannenstiel’s testimony establishes that she and the defendant had, if not a mutual understanding, a tacit agreement to commit the crime of aggravated burglary.
Lisa Pfannenstiel was the defendant’s girlfriend. On the night of the aggravated burglary, the two were walking around the Westboro neighborhood. The stated purpose was to find a house to break into. Lisa knew defendant had a gun. Defendant decided on Ida Mae’s house after the two of them had seen she was at home. They went together to get the duct tape that defendant decided was necessary to lessen the sound of breaking glass. Upon their return, they each saw Ida Mae in the kitchen. The window was taped and then broken. They then entered the premises. The purpose of the burglary was to obtain money in order to rent a place of their own (defendant and Pfannenstiel were living with friends).
We find no merit in this issue.
MOTION TO DISMISS
Defendant contends the district court erred in denying his motion to dismiss based upon violation of K.S.A. 22-2302(2).
K.S.A. 22-2302(2) provides:
“Affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel for such disposition as either may desire.”
Defendant contends that the prosecution and the court violated the defendant’s right to contest the publication to the public of the affidavit filed in support of the complaint.
The complaint and affidavit were filed at 4:19 p.m. on December 7, 1989. Defendant’s motion to seal the affidavit filed with the complaint was filed 19 minutes later, at 4:38 p.m. on December 7, 1989. Media representatives apparently gained immediate access to the affidavit.
On January 23, 1990, defendant filed a motion to dismiss for violation of K.S.A. 22-2302(2).
Although it is not in the record before us, Administrative Order Number 205 of the Third Judicial District (adopted in 1985) apparently grants authority to the Clerk of the District Court to release affidavits upon request. The purpose of the rule, as stated by defense counsel, was to relieve parties from having to go to court in order to obtain the release of an affidavit.
In denying the motion, the district court stated:
“I’m going to deny the motion, but I want to say that I agree with Mr. Wurtz. This administrative order effectively eliminates a case-by-case evaluation on the question of whether or not an Affidavit or sworn ■ testimony that’s been filed in a criminal case should be released. The rule reverses the legislative proscribed procedure. In other words, a party wishing to prohibit disclosure is forced to carry the burden to prevent release where the statute prohibits release unless it’s waived placing the burden on the party desiring to inspect the material to have the burden of proof.
“Now, if the legislature had not wanted to, or if the legislature had wanted all Affidavits and sworn testimony to be public record, they would not have enacted this statute. Administrative Order Number 205 attempts to make all of these materials public records, per se.
“There’s another concern, and I admonish counsel to think about it. I don’t think there’s anything I can do about it particularly here, but there is a canon of ethics that applies to prosecutors that prohibits them from commenting on statements or confessions of witnesses and the identity of parties or witnesses in a criminal action. Now, here, by virtue of this rule, the District Attorney can effectively circumvent this canon by putting in the Affidavit the same material and filing the statements, and it’s wrong.
“I don’t have the authority to declare Administrative Order Number 205 void. But I do declare that it — the rule itself was violated by a release before the warrant was served and I think that 205 violates the statute 22-2302. And I don’t know what the Appellate Court will do with this. It will be up to them.
“I agree with Mr. Olander that the prejudice does not sufficiently — or does not sufficiently demonstrate prejudice to warrant dismissal of this case, and whether or not the pretrial publicity will prevent a fair trial only remains to be seen after we have attempted to pick a jury. But I think that — I guess what I’m saying is that the way we have apparently been doing things, I’m here to tell you, it’s wrong and I think that there’s no other reading that you can give 22-2302 but to say what I’ve already said, that the District Court of Shawnee County has attempted to make that statute work backwards. And it’s clearly contrary to the legislative intent, but the motion will have to be denied anyway. We’ve all had our say on that issue.”
The Third Judicial District’s Administrative Order No. 205 was contrary to K.S.A. 22-2302(2) and, accordingly, invalid. Defendant contends that because of said violation his convictions should be reversed. He cites no authority in support of such an extreme remedy. Although the record does not so state, presumably the Third Judicial District has amended or repealed the rule so that it is no longer in violation of the statute. If not, the matter should be taken care of.
This case received a great deal of media attention from the date the commission of the crimes herein became known through the preliminary hearing and trial. There is no indication of how the release of the affidavit denied defendant a fair trial. We conclude the error was harmless.
The judgment of the district court is affirmed. | [
112,
-24,
-3,
-65,
58,
97,
10,
24,
112,
-13,
-14,
87,
105,
-19,
1,
41,
58,
125,
85,
105,
113,
-74,
71,
32,
-46,
123,
-79,
-44,
-77,
-33,
-89,
-33,
73,
98,
10,
85,
38,
10,
39,
30,
-116,
-105,
-95,
-14,
-108,
18,
34,
59,
-124,
14,
-27,
-98,
-77,
42,
30,
-22,
-119,
44,
91,
45,
80,
-15,
10,
15,
-51,
4,
-93,
-90,
-70,
1,
-16,
62,
-36,
117,
64,
-24,
115,
-122,
-126,
116,
79,
-119,
44,
102,
98,
33,
-51,
-24,
40,
-119,
15,
118,
-75,
-89,
92,
73,
65,
68,
-73,
-99,
115,
117,
14,
-4,
-43,
23,
60,
108,
-120,
-113,
-108,
-111,
73,
51,
-102,
-86,
-21,
5,
34,
113,
-51,
-94,
68,
102,
112,
-65,
-114,
-80
]
|
The opinion of the court was delivered by
Abbott, J.:
Sherry and Obafemi Taiwo filed a civil suit against Kim Phan Thi Vu alleging assault, battery, false imprisonment, and intentional infliction of emotional distress (the tort of outrage). The jury awarded $20,000 to the Taiwos, and the trial judge assessed $3,000 in punitive damages. Ms. Vu appealed to the Court of Appeals. The Court of Appeals set aside the judgment and remanded for a new trial in an unpublished decision filed October 12, 1990. We granted the Taiwos’ petition for review.
The underlying facts, when viewed in a light most favorable to the party who prevailed at the trial court level, are as follows.
In August 1988, Ms. Vu hired Sherry Taiwo, a certified schoolteacher, to bring Ms. Vu’s day-care center, Peppermint Patty’s Daycare Center in Overland Park, Kansas, into compliance with state laws. Mrs. Taiwo soon resigned because Ms. Vu would not agree to follow state laws.
About three o’clock in the afternoon on August 31, 1988, Mrs. Taiwo and her husband, a Nigerian national, went to Peppermint Patty’s to pick up Mrs. Taiwo’s final paycheck. Ms. Vu repeatedly refused to give the check to either Mrs. Taiwo or Mr. Taiwo. A disagreement ensued, and Ms. Vu called the police. Ms. Vu told Officer Dennis R. Baldwin that Mrs. Taiwo’s check would not be ready until around 6 p.m. Mrs. Taiwo agreed to come back later.
When the Taiwos returned to the day-care center at the appointed hour and Mrs. Taiwo went inside to pick up her check, Ms. Vu initially refused to give Mrs. Taiwo her paycheck. Ms. Vu eventually prepared a check; however, the rate of pay had been reduced from $4.50 to $3.35 an hour, and the number of hours had been cut. Mrs. Taiwo and Ms. Vu argued about the check. Then, Ms. Vu shoved Mrs. Taiwo in the chest and told her to take the check or leave it. Mrs. Taiwo asked, “Why are you doing this?” Ms. Vu replied, “Because you quit I’m going to inconvenience you.” Ms. Vu then left the building, locking Mrs. Taiwo inside the day-care center. After Mrs. Taiwo discovered she was locked inside, she attempted unsuccessfully to attract her husband’s attention through a window. As she was looking through the window, Mrs. Taiwo saw Ms. Vu walk behind the Taiwos’ car and write something down. Ms. Vu then came back inside the day-care center, called the police, and reported that “a black man [is] sitting out in my parking lot vandalizing my car.”
Officer Baldwin arrived 10 to 20 minutes later and talked with the Taiwos outside of the day-care center. Mrs. Taiwo explained the problem with the check. Baldwin suggested to the Taiwos that they contact an attorney because the difference in Mrs. Taiwo’s pay was not subject to criminal law. After the Taiwos accepted the check and left, Ms. Vu then came outside to talk with the officer. Ms. Vu reported that Mr. Taiwo broke the rear window of her van. Baldwin regularly patrolled the parking lot. He previously had noticed the same damage to the rear window while on routine patrol and thus knew the accusation was false.
The next morning Ms. Vu went to the Overland Park Police Department. Ms. Vu reported that Sally Matthies, who worked at the Town and Country Store (which is across the street from Peppermint Patty’s), had seen a black male damaging Ms. Vu’s Cadillac (a different vehicle than the van) and had taken down the suspect’s license plate number. Ms. Vu told the police she thought a former employee had done the damage. Ms. Vu then signed a police report. The following affirmation immediately preceded her signature:
“I am aware of the fact that it is unlawful to make a false report to a police officer. I affirm the above information is true and I wish to assist in the prosecution of any persons responsible for the above-described offense. I understand this data may be computerized in local, state, and national files.”
A check on the license plate number referred the police to the Taiwos. Detective Jesse Rollwagen sent Mr. Taiwo a letter, stating that a vandalism report had been filed with the Overland Park Police and that Mr. Taiwo’s license plate number had been given as belonging to the suspect.
Upon receipt of the letter, the Taiwos immediately called Rollwagen and repeatedly asserted their innocence. The Taiwos agreed to and did take polygraph tests on September 17, 1988.
Sally Matthies, the alleged eyewitness, first told police she had witnessed the Taiwos vandalizing the Cadillac. After the police received the results of the polygraph tests, Rollwagen again contacted Sally Matthies. She quickly recanted her story. She told Rollwagen she did not work at Town & Country, but was actually employed by Ms. Vu and Ms. Vu had instructed her to lie to the police.
Rollwagen contacted Ms. Vu again. After she reiterated the same story, Rollwagen told her Sally Matthies had recanted her story and he knew Sally was one of Ms. Vu’s employees. In response, Ms. Vu claimed the name of the witness was Sally Matty, then Sally Martin, and finally Mary Ann Martin. Ms. Vu challenged the detective to prove the Taiwos had not damaged her vehicle.
Rollwagen informed the Taiwos they would not be prosecuted. A complaint was filed against Ms. Vu for filing a false police report. The charge, however, was dropped because Sally Matthies failed to appear at two court dates to testify.
When the Taiwos filed this action against Ms. Vu, Ms. Vu filed a counterclaim. She alleged Mrs. Taiwo breached an oral employment contract because Mrs. Taiwo failed to appear for work on August 18 and 19, 1988, and did not give notice. Ms. Vu also claimed Mr. Taiwo assaulted her. Prior to trial, the trial court granted, with prejudice, Ms. Vu’s motion to dismiss her counterclaim.
The case was tried in the District Court of Johnson County, Kansas, on December 11 and 12, 1989. After the Taiwos rested their case, Ms. Vu moved for a directed verdict on all counts. The trial court took the matter under advisement. Ms. Vu presented no evidence on her behalf, and the case was submitted to the jury. The jury found for the Taiwos, awarding $20,000 in damages. A general verdict form was used. The jury also found that the trial court should be permitted to impose punitive damages. After a hearing pursuant to K.S.A. 1990 Supp. 60-3702, the court assessed $3,000 in punitive damages against Ms. Vu. Additionally, the trial court denied Ms. Vu’s motion for directed verdict on all counts.
Ms. Vu timely appealed to the Court of Appeals and raised three issues. She argued that the trial court erred in not granting her motion for directed verdict on the tort of outrage because her behavior did not constitute outrageous conduct, that the trial court erred in not granting her motion for directed verdict on the tort of assault because the evidence was insufficient to prove assault, and that the jury awarded excessive damages.
The Court of Appeals panel ultimately held that the trial court took Ms. Vu’s motion for a directed verdict under advisement and did not rule on it until after the jury had returned its verdict. The court found that Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175 (1981), requires a trial court to make two threshold determinations regarding a tort of outrage claim before the case is submitted to the jury. Here, the jury verdict was in the form of a general verdict. Because a general verdict makes it impossible to ascertain what portion of the damages was awarded for the tort of outrage, the Court of Appeals panel ordered the entire judgment set aside and remanded the case for retrial. We granted review.
The Court of Appeals’ ruling, that Roberts v. Saylor requires the trial court to resolve whether the two threshold determinations regarding a tort of outrage claim have been made before the case may be submitted to the jury, is based upon the following language in Roberts:
“Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine . . . .” 230 Kan. at 292. (Emphasis added.)
“In the first instance the court must determine if these threshold requirements have been met. If the court determines from the pleadings, stipulations, admissions, and deposition of the plaintiff that reasonable fact finders might differ as to whether defendant’s conduct was sufficiently extreme and outrageous as to subject him to liability for emotional distress, and if the court further determines plaintiffs emotional distress was such that reasonable fact finders might differ as to whether plaintiff’s emotional distress was genuine and so severe and extreme as to result in liability, then and only then, it must be left to the jury to determine liability based on the evidence at trial.” 230 Kan. at 294. (Emphasis added.)
The issue in Roberts was whether the motion for summary judgment had been overruled properly. The Taiwos argue that “[t]he Court of Appeals has taken this summary judgment test, which admittedly applies in substance to motions for directed verdict and concludes that this language imparts a new procedural requirement to motions for directed verdict on the tort of outrage.”
An earlier tort of outrage case, Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974), involved a motion for directed verdict. In Dawson, a creditor harassed a debtor even though the creditor knew the debtor was ill. Because of the harassment, the debtor’s health worsened.
In discussing the court’s duty to determine outrageous conduct in a debtor-creditor relationship and when a jury question exists, this court stated:
“In ruling on a motion for a directed verdict the court is required to resolve all facts and inferences, reasonably to be drawn from the evidence, in favor of the party against whom the ruling is sought, and [if] the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. [Citation omitted.] Comment h under § 46(1) of the Restatement of Torts (Second), establishes that it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so, and [if] reasonable men may differ, the question is for the jury to determine.” (Emphasis added.) 215 Kan. at 824.
For tort of outrage cases using the “first instance” language, see, e.g., Moore v. State Bank of Burden, 240 Kan. 382, 388, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987); Burgess v. Perdue, 239 Kan. 473, 475, 721 P.2d 239 (1986); Neufeldt v. L. R. Foy Constr. Co., 236 Kan. 664, 667-68, 693 P.2d 1194 (1985); Hanrahan v. Horn, 232 Kan. 531, 536, 657 P.2d 561 (1983); Dotson v. McLaughlin, 216 Kan. 201, 210-11, 531 P.2d 1 (1975); Bradshaw v. Swagerty, 1 Kan. App. 2d 213, 216, 563 P.2d 511 (1977).
K.S.A. 1990 Supp. 60-250(c), in pertinent part, provides:
“Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” (Emphasis added.)
This case falls within the language of the statute, “[w]henever a motion for a directed verdict made at the close of all the evidence . . . for any reason is not granted . . . .” Here, at the close of all the evidence, the trial court took Ms. Vu’s motion for a directed verdict under advisement and then submitted the case to the jury. Because the motion was not granted, the court was deemed to have submitted the tort of outrage claim to the jury, subject to the trial court ruling at a later date on any legal questions raised by the motion, including the two threshold requirements that must be met and that the trial court is required to determine prior to submitting a tort of outrage case to a jury. K.S.A. 1990 Supp. 60-250(c) does not require that a trial court rule on a directed verdict motion before the case may be submitted to the jury. The statutory language does not provide for any exceptions.
Ms. Vu argues that the directed verdict statute is procedural while the Roberts threshold requirements are substantive. We are of the opinion that K.S.A. 1990 Supp. 60-250(c) controls and that the trial court did not err in submitting the case to the jury before ruling on the motion for directed verdict. Cf. City of Haven v. Gregg, 244 Kan. 117, 122-23, 766 P.2d 143 (1988) (“When a statute conflicts with the common law, the statute controls.”).
In Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), this court discussed the standard for appellate review of a directed verdict motion.
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250 the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. (Citations omitted.] . . . Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury.”
This court has defined the tort of outrage as follows:
“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. [Citations omitted.] Proof of four elements is required to establish the cause of action: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant’s conduct and plaintiff’s mental distress; and (4) plaintiff’s mental distress must be extreme and severe.
“Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.” Roberts, 230 Kan. at 292-93.
Ms. Vu claims that the Taiwos failed to prove the extreme and outrageous conduct requirement. In Roberts, this court discussed what type of conduct is extreme and outrageous enough to permit recovery.
“In Dotson v. McLaughlin, 216 Kan. at 210, Mr. Justice Prager speaking for the court adopted guidelines from the Restatement of Torts. It was pointed out that recovery must depend on the facts and circumstances of each case but liability may only be found in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. It was further said liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead that citizen to spontaneously exclaim, ‘Outrageous!’
“It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind. The law should not intervene where someone’s feelings merely are hurt. Freedom remains to express an unflattering opinion and to blow off relatively harmless steam which comes from an uncontrollable temper. Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.” 230 Kan. at 293.
Ms. Vu attempts to defeat the extreme or outrageous conduct requirement by arguing the police followed routine procedure in questioning the Taiwos, sending the letter to Mr. Taiwo, and encouraging the Taiwos to submit to polygraph tests. The extreme and outrageous conduct in question here concerns Ms. Vu’s behavior, not the conduct of the police. The uncontested evidence reflects that her behavior was intentional and malicious: She assaulted, battered, and falsely imprisoned Mrs. Taiwo; she first lied to a law enforcement officer when she called the police and then she lied to Officer Baldwin, both times claiming Mr. Taiwo had vandalized her van; she filed a false police report against the Taiwos concerning her Cadillac; Ms. Vu then induced an employee to lie to the police about the Taiwos’ involvement in vandalism and when she was confronted, she challenged Detective Rollwagen to prove the Taiwos had not committed the vandalism.
The Taiwos’ claim is distinguishable from our prior cases involving the tort of outrage. Here, Ms. Vu’s liability did not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. This was not a matter of the Taiwos’ feelings merely being hurt. Ms. Vu’s conduct cannot be explained as simply expressing her opinion or the result of a mistaken belief. She abused the criminal justice process to her own ends. Even when the police gave her the opportunity to correct her story, she refused. Reasonable people could regard her behavior as atrocious and utterly intolerable in a civilized society. If reasonable people do not agree on whether Ms. Vu’s behavior was outrageous, then the question should be submitted to the jury.
Ms. Vu also contends that the Taiwos failed to show they suffered extreme and severe mental distress. Again, the Roberts court discussed this requirement.
“The second threshold requirement which must be met and which the court must first determine as present is that the plaintiffs emotional distress is sufficiently severe, genuine and extreme that no reasonable person should be expected to endure it.
“Emotional distress passes under various names such as mental suffering, mental anguish, nervous shock, and includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, embarrassment, anger, chagrin, disappointment, and worry. However, it is only when emotional distress is extreme that possible liability arises.
“The extreme distress required must be reasonable and justified under the circumstances, and there can be no liability where the plaintiff has appeared to suffer exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor had knowledge. [Citations omitted.] The emotional distress must in fact exist, and it must be severe.” 230 Kan. at 293-94 (citing Prosser, Law of Torts 59 [4th ed. 1971]).
Ms. Vu argues there is no evidence that the Taiwos suffered extreme and severe mental distress. She points out that neither of the Taiwos consulted a doctor or mental health professional, neither exhibited any physical symptom of extreme stress such as weight fluctuation, and neither missed any time from work because of stress.
In contrast, the Taiwos contend that Ms. Vu’s “deceitful abuse of our police resources” wrought “three weeks of fear, uncertainty, humiliation, mental anguish, interrogations, and electronic probing [from the polygraphs]” upon the Taiwos. The Taiwos cite to the jury’s verdict as evidence of the extreme and severe mental distress endured by the Taiwos.
“The jury, who had the benefit of observing the witnesses’ demeanors and the [Taiwos’] emotions on the stand, were clearly outraged by [Ms. Vu’s] actions. The fact that they awarded $20,000.00 is also strong evidence that they felt [the Taiwos] had suffered genuine emotional distress that was extreme and severe.”
This court has adopted Restatement (Second) of Torts § 46(1) (1963); comments j and k to that section are instructive:
“The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed. . . .
“The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge. . . .
“It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.
“Normally, severe emotional distress is accompanied or followed by shock, illness, or other bodily harm, which in itself affords evidence that the distress is genuine and severe. The rule stated is not, however, limited to cases where there has been bodily harm; and if the conduct is sufficiently extreme and outrageous there may be liability for the emotional distress alone, without such harm. In such cases the court may perhaps tend to look for more in the way of outrage as a guarantee that the claim is genuine; but if the enormity of the outrage carries conviction that there has in fact been severe emotional distress, bodily harm is not required.”
Mrs. Taiwo testified she was fearful and very upset when Ms. Vu pushed her; she did not know what Ms. Vu would do next. Mrs. Taiwo was afraid when Ms. Vu locked her inside the daycare center that she would leave her there. Mrs. Taiwo was upset, scared, and felt taken advantage of when the Taiwos received the letter from Detective Rollwagen and when it appeared the police did not believe the Taiwos were innocent of the charges. She was fearful of taking the polygraph test. Until the police notified the Taiwos that all charges against them were being dismissed, Mrs. Taiwo was worried they might be arrested. She worried about what else could happen.
Mr. Taiwo testified that he was scared when he received the letter from Rollwagen. He said he was “really, really scared” to take the lie detector test. Being from Nigeria, he did not know how the police or criminal justice system in this country works. He was scared he was going to go to jail even though he had not committed a crime. Additionally, he had heard of a Nigerian living in the United States who had been killed while in jail.
Rollwagen testified that after receiving his letter, the Taiwos telephoned him several times to assert their innocence. The Taiwos were very upset when they called.
Ms. Vu’s conduct by itself is important evidence that the Taiwos’ distress existed. See Restatement (Second) Torts § 46(1) comment j. She falsely accused the Taiwos of breaking the law. She filed a false report with the police. She induced an employee to lie — to tell the police the employee was an eyewitness to the alleged crime. The Taiwos spent two to three weeks attempting to convince the police they were innocent. There was little they could do, other than take the polygraph tests, to prove they did not vandalize either of Ms. Vu’s vehicles.
In our opinion, the enormity of the outrage created by Ms. Vu’s conduct is sufficient to satisfy the second threshold requirement of severe and extreme mental distress. Thus, the trial court did not err in submitting the case to the jury.
As her second issue, Ms. Vu claims there was insufficient evidence to prove assault. The jury was instructed on the elements of an assault, pursuant to PIK Civ. 2d 14.01: “An assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
Ms. Vu argues that the element of “immediate apprehension of bodily harm” was not proven. Her argument is based upon Mrs. Taiwo’s testimony that she did not think Ms. Vu was going to beat her up and the fact that Mrs. Taiwo stayed in the same room with Ms. Vu after Ms. Vu shoved her. Mrs. Taiwo also testified that she was scared and upset; she did not know what Ms. Vu was going to do to her next. The requirement of “immediate apprehension of bodily harm” does not require that the victim believe the aggressor is going to beat or severely injure the victim. Mrs. Taiwo’s testimony supports the inference that she was in immediate apprehension of bodily harm. The trial court did not err in submitting this claim to the jury.
For her final issue, Ms. Vu maintains that the jury award of $20,000 is excessive. She claims that the Taiwos failed to show actual damages and that the Taiwos are entitled to nominal damages only for the torts of battery and false imprisonment. In contrast, the Taiwos contend the jury verdict is not excessive because they have suffered mental anguish and emotional distress, indignity, humiliation, and inconvenience.
“ ‘An examination of the numerous cases challenging the sufficiency, or insufficiency, of a verdict reveals no simple, symmetrical pattern or design. Each case seems to stand on its own facts. . . .’
“An appellate court should be cautious when requested to substitute its judgment for that of the trier of fact that heard the case.” McGuire v. Sifers, 235 Kan. 368, 373, 681 P.2d 1025 (1984).
On the four counts of assault, battery, false imprisonment, and the tort of outrage, it cannot be said the amount of damages was so excessive that it shocks the conscience of the court.
The record fails to show that Ms. Vu requested a special verdict form or requested that interrogatories accompany the general verdict. See K.S.A. 60-249. On appeal, the appellant has the burden to show error. Hartman v. Stumbo, 195 Kan. 634, 637, 408 P.2d 693 (1965). Additionally, it is the appellant’s burden to designate a record sufficient to establish the claimed error. Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 399, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988).
If there has been no request for a special finding of fact, a general verdict resolves all controversial issues in the prevailing party’s favor. Rowhuff v. Kansas Turnpike Authority, 182 Kan. 748, 751, 324 P.2d 147 (1958). Ms. Vu did not designate a record sufficient to establish her claim of excessive damages. A reasonable person could find that, under the facts of this case, $20,000 is not an excessive award for assault, battery, and false imprisonment.
Ms. Vu also alleges that from the following statement contained in the police report she signed the jury concluded the Taiwos had been damaged because their names were listed in police records: “I understand this data may be computerized in local, state and national files.” While deliberating, the jury sent the trial judge the following question: “Can the computer (National Crime Computer) records be changed so it will not reflect badly on Mr. Taiwo? If the records are not changed, what will they say?” The judge responded: “It is your obligation to reach your decision based upon the evidence as submitted and the instructions given you by the Court.”
In her brief to the Court of Appeals, Ms. Vu included an affidavit from an Overland Park prosecutor who swore that the computer records show no criminal charges have been filed against the Taiwos. The affidavit is not part of the record. Furthermore, according to the record, Ms. Vu did not object to the introduction of the police report containing that statement. She also did not object when the statement was read to the jury. A verdict will not be set aside or a judgment reversed because of the erroneous admission of evidence unless the complaining party timely objected. K.S.A. 60-404, nor may a party raise an issue of this nature for the first time on appeal.
The judgment of the Court of Appeals reversing the district court and remanding for new trial is reversed. The judgment of the district court is affirmed. | [
-48,
-4,
-88,
108,
8,
96,
59,
-102,
103,
-121,
39,
-13,
-117,
-63,
16,
109,
-5,
111,
80,
105,
-45,
51,
5,
64,
-30,
-5,
-16,
-39,
-69,
111,
-12,
-35,
72,
48,
-86,
-35,
102,
66,
-27,
-48,
-114,
2,
-87,
-45,
83,
-62,
52,
107,
10,
11,
49,
-82,
-93,
108,
25,
66,
72,
63,
123,
-83,
68,
-13,
-126,
23,
127,
4,
-109,
38,
30,
-121,
-38,
46,
-99,
49,
34,
-24,
50,
-74,
-126,
124,
69,
-117,
13,
-30,
98,
50,
-108,
119,
-8,
-120,
46,
126,
-99,
39,
-108,
120,
43,
12,
-84,
-100,
60,
-106,
15,
88,
-37,
29,
11,
104,
15,
-118,
-76,
-77,
15,
-76,
-106,
-86,
-17,
53,
32,
65,
-49,
-94,
93,
65,
51,
-45,
-33,
-78
]
|
The opinion of the court was delivered by
Six, J.:
This is a tort action arising out of the alleged sexual molestation of H.R. by her school bus driver, H. Ardon Davidson. H.R. is a six-year-old girl afflicted with Down’s syndrome.
The case presents issues involving: (1) the sufficiency of the evidence to prove that the school district and Davidson’s employer knew or should have known that air undue risk of harm would exist because of Davidson’s employment; (2) school district immunity and the discretionary function exception under K.S.A. 75-6104(e) of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.; (3) existence of a private right of action under the mandatory child abuse reporting statute, K.S.A. 1990 Supp. 38-1522; (4) apportionment of fault of negligent tortfeasors with the fault of an intentional tortfeasor; (5) the application of the KTCA K.S.A. 75-6105 $500,000 maximum liability provision; and (6) the amount of the damage verdict.
Our jurisdiction is under K.S.A. 20-3017 (transfer from the Court of Appeals to this court by motion).
The action is being prosecuted in the name of Kansas State Bank & Trust Company (Kansas State Bank), as conservator and next friend of H.R., a minor.
The Trial Court Rulings
Plaintiff filed suit against Davidson for intentional battery and against Unified School District No. 259 (U.S.D.) and Specialized Transportation Services, Inc., (S.T.S.) on theories of respondeat superior, negligent hiring, and negligent retention and supervision of Davidson.
U.S.D. cross-claimed against S.T.S. asserting, in part, that S.T.S. had agreed to indemnify U.S.D. for any claims arising out of or in connection with the U.S.D.-S.T.S. transportation contract. Judgment was entered for U.S.D. against S.T.S. on the indemnification agreement cross-claim.
U.S.D. and S.T.S. were granted summary judgment on the respondeat superior and negligent hiring claims. The trial court held that the intentional criminal act of Davidson was outside the scope of his employment and the uncontroverted facts show that Davidson was otherwise a competent and qualified person suitable for employment as a school bus driver. Summary judgment for U.S.D. was denied as to negligent retention and supervision of Davidson (genuine issues of material fact existed). The trial court further ruled U.S.D. was not immune from liability under the Kansas Tort Claims Act (KTCA) because the actions alleged by plaintiff to be wrongful were not discretionary functions.
After the plaintiff rested its case, U.S.D. and S.T.S. moved for a directed verdict, arguing that neither U.S.D. nor S.T.S. knew or should have known that Davidson had a propensity to sexually molest children. U.S.D. again argued that it should be granted immunity under the discretionary function provision of the KTCA.
The trial court denied the motion, finding that there was sufficient evidence to send the case to the jury and that the jury should determine whether it was foreseeable that Davidson would commit a battery on one of the students he transported to and from school.
The jury returned a verdict for $1,800,000. The verdict was assessed against Davidson, the intentional tortfeasor. Fault was apportioned under K.S.A. 1990 Supp. 60-258a between U.S.D. (70%) and S.T.S. (30%). The trial court ruled that liability as between Davidson and the negligent tortfeasors would be joint and several. Judgment was entered for the plaintiff against U.S.D. for $1,260,000 and against S.T.S. for $540,000. U.S.D. prevailed on its cross-claim for indemnification against S.T.S. No appeal was taken on the cross-claim.
U.S.D. and S.T.S. appeal the judgments in favor of plaintiff. Davidson has not appealed. We affirm in part, reverse in part, and remand.
Facts
H.R.’s parents were determined to maximize her potential. H.R. attended Starkey Developmental Center (Starkey) from June 1984 until September 1985 when she was enrolled at Bryant Elementary School (Bryant). In September 1984, Starkey pre pared H.R.’s social history report. The report observed that H.R. had occasional urination accidents. The report also stated: “One problem behavior that the [parents] have with [H.R.] is her dislike of seat belts. [H.R.] can release them in a second. Mrs. [R., the mother,] puts masking tape on the release button to avoid this problem. She requests that this be done on the van.” Starkey records also indicated incidents of H.R. taking her clothes off.
H.R. entered Bryant at the age of five. She was placed in the trainable mentally handicapped level one class (TMH-1). A TMH-1 class is designed for students between five and eight years old with IQ’s between 45 and 60.
H.R. was transported to and from school in a nine-passenger van operated by S.T.S. S.T.S. provided this transportation for U.S.D.’s special education children under a contract with U.S.D. S.T.S. had a “very good” record in performing its transportation duties and was considered superior to its predecessor.
Davidson was H.R.’s van driver from the fall of 1985 until December 1986. Davidson began driving for S.T.S. in 1984. S.T.S. requires its drivers to attend 24 hours of training, consisting of 10 hours of first aid, 8 hours of defensive driving, 2 hours behind the wheel (to go over the routes), and 4 hours of training in dealing with special students. The manager of S.T.S. testified that Davidson complained, as did all of the S.T.S. drivers, about behavior problems of the special education students. Davidson was instructed to fill out “school bus incident reports,” turn them in, and speak with the principal.
H.R.’s mother testified of an encounter she had with Davidson in November 1985. Davidson was sometimes a few minutes early or late picking H.R. up. Mrs. R. asked Davidson to park 5 or 10 feet forward so that she could see the van from her kitchen window. Davidson became angry, waved his hands, yelled, and was “out of control.” He asked her to close the van door. Mrs. R. refused until he settled down. Davidson started to drive off, and Mrs. R. had to close the door as he was driving away.
Mrs. R. called Jerry Burns, the Bryant principal, to report the incident. Mrs. R. was concerned about the children because Davidson was “out of control.” Bums said he would see if he could switch Davidson to another route. Burns later told Mrs. R. the switch was not feasible.
Mrs. R. testified that the day after the van door incident, Davidson insisted that H.R. sit in the front passenger seat next to him. Following the door incident, Mrs. R. noticed a change in H.R.’s behavior. H.R. became depressed, began wetting the bed, and became mean. Mrs. R. characterized this behavior as “acting out.”
Mrs. R.’s babysitter was also having a problem with Davidson (horn honking, rude, and in a hurry) and asked that Mrs. R. call the school. Mrs. R. called Burns; Burns said he would handle it. Mrs. R. asked Burns if she could call the bus company. Burns said it was school policy to go through the school.
H.R.’s behavior gradually worsened in the spring of 1986. However, when H.R. attended summer school and was driven there by a different bus driver, her behavior improved. The bed wetting stopped and she was well-behaved at school.
In the fall of 1986, Davidson was again H.R.’s van driver. In October 1986, Mrs. R. attended an Individual Educational Program (IEP) meeting with H.R.’s teacher, Kim Brown. According to Mrs. R., the teacher indicated H.R. was overly affectionate and displayed inappropriate behavior such as hugging the driver. After the IEP meeting, school personnel called Mrs. R. and told her that H.R. was drinking toilet water, licking the toilet and the bathroom floors, and plugging the toilets up, which flooded the floor.
Mrs. R. knew something was wrong. She kept calling the school and telling school personnel something was wrong. She talked about H.R.’s behavior problems with Betsy Carrell, another of H.R.’s teachers. She told Carrell about the argument with Davidson and that she was afraid Davidson was verbally taking it out on H.R. According to Mrs. R., Carrell was concerned and said she would keep an eye on Davidson. Carrell commented that Davidson seemed emotionally disturbed.
Mrs. R. testified that on December 10, 1986, she was called at work by someone from the school and told to go to the babysitter’s house to meet the bus because the babysitter was not there. When she arrived at the babysitter’s house, the babysitter was there and claimed to have been there all along.
Mrs. R. told investigators of the Exploited and Missing Child Unit (EMCU) that school personnel had called her on that day and told her that H.R. had been uncontrollable on the bus.
At trial, Mrs. R. testified that on the night of December 10, 1986, she sat down to have a talk with H.R. to see what the problem was. H.R. was upset. Mrs. R. stated, in her interview with EMCU investigators, that she asked H.R. if H.R. was going to be able to behave on the school bus. H.R. responded that she did not like the bus driver. She said he touches her “dinky” and pokes her “bum.” H.R. uses the terms “dinky” to refer to her genital area and “bum” to refer to her buttocks.
Mrs. R. was in shock. She wrote down both the questions she had asked H.R. and H.R.’s responses. H.R. removed her clothes and began pushing on her genital area to show Mrs. R. what the bus driver had done.
The next day, December 11, 1986, Mrs. R. accompanied H.R. to school, saw Bums, and requested a meeting with Bums, the teacher, the school counselor, the school psychologist, and someone from the bus company. She stated that she did not tell Bums what the meeting was about.
Paul Pritchard, the U.S.D. director of transportation, testified that Burns called him the morning of December 11, 1986, and told him that Mrs. R. had felt that there was a possibility H.R. was being sexually molested by Davidson. Pritchard contacted the manager of S.T.S. and requested that Davidson be taken off the route until the matter was investigated.
A meeting was set up for that afternoon. Mr. and Mrs. R., Burns, Pritchard, Kim Brown (H.R.’s teacher), and Barbara White, Security Supervisor for U.S.D., attended the meeting. Mrs. R. repeated what H.R. had told her. Mrs. R. testified that Burns said he knew what the meeting was going to be about. According to Mrs. R., Burns said, in hindsight, he should have thought something was wrong when Mrs. R. had complained about Davidson and when he had seen H.R. sitting on Davidson’s lap. According to Mrs. R., Brown stated at the meeting that it frustrated her that Davidson insisted H.R. sit in the front seat.
Mrs. R. stated: “I never in my wildest dreams would ever have dreamt that something so horrible was going on, but I knew that there was something that this man was — that something was up setting my daughter about this man.” Mrs. R. testified if she had known these things (H.R. sitting on Davidson’s lap and Davidson insisting that H.R. sit up front), she would have been able to piece the problem together. Mrs. R. had testified earlier that she knew prior to the meeting that Davidson required H.R. to sit in the front seat.
Brown testified about H.R.’s behavioral problems. In addition to the behavior observed by Mrs. R., Brown related that H.R. pinched and hit other children and took her clothes off in the bathroom. Brown also noticed H.R. masturbating from time to time. Brown recalled that she told Mrs. R. about the masturbation in the fall of 1986 before the report of molestation. According to Mrs. R., she was not told that H.R. was masturbating until the 1987 spring I.E.P. meeting. Brown observed that other children in her class masturbated. She did wonder, concerning H.R., if something was going on. Brown knew that Mrs. R. was divorced and wondered if Mrs. R. was dating. Brown talked about H.R. with Mrs. R. They discussed the fact that there had been a recent divorce and there were changes going on in the home. Brown did not suspect abuse.
Brown was frustrated that Davidson insisted that H.R. be the last one to enter the bus because Davidson was having trouble with H.R. while he waited for all the children to be loaded. She felt that loading was his responsibility, not hers. Brown observed that H.R. never indicated a reluctance to get on the bus. Brown had no indication that Davidson might have a propensity to sexually molest one of his student passengers.
Following the December 11 afternoon meeting, Burns reported the allegations of H.R.’s sexual molestation to the Kansas Department of Social Rehabilitation Services. On December 18, 1986, the case was assigned to Detective Pamela Horn of the Wichita Police Department and her social work partner, Dan Crask, both of the EMCU. Horn and Crask investigated the incident. Their report was admitted into evidence. H.R. told Horn and Crask that Davidson had “poked” her. H.R. also told them that Davidson poked other students on H.R.’s bus.
Horn and Crask interviewed Tara and Rosie, also students on H.R.’s bus. Tara stated that the bus driver was a “good man.” The interviews were not productive. Other students and their parents, were not interviewed.
Horn testified that she checked in the Kansas towns where Davidson had lived. He had never been convicted of, arrested for, or reported as a suspect in any crime. Horn found no information that Davidson had ever been involved in any sort of sexual molestation.
A pediatrician examined H.R. on January 2, 1987. H.R. told the doctor that the bus driver had “poked” her with a finger, a knife, and a marble. The poking occurred from behind while she was on the bus drivers lap. The results of H.R.’s genital exam were consistent with a blunt, penetrating trauma. The doctor testified concerning a number of signs indicative of sexual abuse.
Davidson denied the allegations. He recalled that he had problems with H.R. from the first day. H.R. did not want to stay in her seat belt. She bothered the other children. Davidson required H.R. to sit in the front seat because he could not handle H.R. in the back of the van. Davidson admitted allowing the students, other than the “bigger kids,” to sit on his lap.
Davidson denied that he had sexually molested anyone. In response, plaintiff presented two witnesses who testified Davidson had molested one of them at the age of 11 in the presence of the other, who was then 7 years old.
According to Davidson, he reported H.R.’s behavioral problems. He wrote up discipline slips (school bus incident reports) until the bus supervisor, William T. Benjamin, told him not to. Davidson stated Benjamin said that Burns did not like the slips to be written up. Davidson complained to Nelda Treadwell, manager of S.T.S., quite a bit and was told to write up slips until something was done at the school. He stated, “That’s why I was writing so many.” According to Treadwell, Davidson should not have stopped but should have continued to turn them in. Even though the slips Davidson wrote up were not sent out, he wrote up more than any other driver.
Davidson testified that he reported the trouble he was having with the children to Treadwell, the dispatchers, Benjamin, and to Brown throughout the three semesters. Bums would hardly talk to the S.T.S. drivers, but Davidson did talk with Burns a time or two. Each time Burns “told him off” and hollered at him, saying that S.T.S. did not have any good drivers and that Bums was going to call Treadwell. Davidson responded,
“I says here’s the radio. I got a little loud talking to him because he was just a hollering. I said here’s the radio, she’s there, call her, I’ll talk to her on the phone. He never once ever called Treadwell to discuss the problems at all and he knew.”
Nothing was done to help Davidson’s problems.
Benjamin testified at trial. No one asked him about the failure to follow the discipline slip procedure. Benjamin explained that it is not uncommon for the affectionate TMH children to sit on the laps of their bus drivers while waiting for the bell. He observed that TMH children also commonly sit on the laps of teachers.
Bums also testified at trial, but was not asked if he knew slips were not being turned in. Burns recalled that Davidson had difficulty with the children and submitted school bus incident reports on numerous occasions. According to Bums, the school’s copies of the incident reports concerning H.R. are no longer in existence because the school’s file is purged at the end of each year.
The school bus incident reports are five-copy forms. A copy of the form is distributed to the parent, principal, bus contractor, driver, and district transportation department. Mrs. R. became aware of the incident reports after “all this happened” (after H.R. had explained her experiences with the bus driver). Mrs. R. received a report from a bus driver in March of 1988. Thurman Mitchell, a former Field Supervisor of Student Transportation Services, testified at trial that if he did not receive a copy of the report or did not receive a communication from parent or principal, he would have no way of knowing that a problem existed. A problem with Davidson was not brought to Mitchell’s attention. Mitchell stated that had the circumstances concerning H.R. been brought to his attention, he would have requested a conference with the driver, the parents, and the school administration to resolve it.
H.R.’s teacher in the fall of 1987 believed H.R. was one of her brightest students. The teacher observed no evidence of academic regression and stated that H.R. had one of the highest progress rates of her students.
Foreseeability of Propensity to Sexually Molest — Summary Judgment — Directed Verdict
U.S.D. and S.T.S. appeal the denial of their motions for summary judgment and directed verdict on the issue of negligent retention and supervision of Davidson. They argue that they cannot be held liable for Davidson’s intentional criminal act of sexual molestation unless they knew or should have known of Davidson’s particular propensity to sexually molest. They reason that no evidence was presented which would allow the jury to find that either U.S.D. or S.T.S. knew or should have known of such a propensity. The trial court erred, they contend, in denying their motions for summary judgment and for a directed verdict and in refusing to specifically instruct on their knowledge of Davidson’s propensity to sexually molest.
Amicus curiae Kansas Association of School Boards (KASB) endorses the U.S.D.-S.T.S. argument. In addition, KASB asserts that if we find the evidence in this case sufficient to make sexual molestation foreseeable, school districts will be forced to incur the expense of hiring school bus monitors.
Plaintiff asserts: (1) U.S.D. and S.T.S. may be liable if any harm to H.R. was foreseeable; (2) the precise injury sustained need not be foreseeable; (3) the issue of foreseeability is a question of fact for the jury; (4) the jury was properly instructed; and (5) the verdict is supported by the evidence. The plaintiff also contends that, even if the standard of foreseeability asserted by U.S.D. and S.T.S. is the proper standard, there is evidence that the sexual abuse of H.R. was foreseeable.
A party seeking summary judgment bears a heavy burden. We have repeatedly stated the rules controlling summary judgment. A recent recitation is found in Hammig v. Ford, 246 Kan. 70, 72-73, 785 P.2d 977 (1990).
When the denial of summary judgment is challenged on appeal, this court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
In ruling on a motion for a directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where the evidence is such that reasonable minds could reach different conclusions, the motion must be denied and the matter submitted to the jury. On appeal, this court applies the same standard as the trial court. Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987).
U.S.D., S.T.S., and the plaintiff rely on Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan. App. 2d 302, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978). In Hollinger, plaintiff was injured when an employee of the defendant hospital attempted to play a prank on her. The employee’s employment records indicated that his work was unsatisfactory. The hospital knew that the employee had a tendency to talk with others rather than complete his work; that he was careless in failing to return his equipment to storage areas; and that on one occasion a visitor to the hospital had fallen in an area where the employee was buffing the floor without displaying appropriate warning signs. Hollinger sued the hospital, relying on respondeat superior and negligent hiring, supervision, and retention. The trial court sustained the hospital’s motion for summary judgment as to the issue of respondeat superior. Hollinger appealed from a verdict in favor of the hospital on the negligence issue, arguing that the negligent retention instruction was improper.
The Court of Appeals, in approving the trial court’s negligent retention instruction, reviewed Kansas negligent retention case law. Following its review, the Hollinger court stated:
“The gist of instruction No. 3 is that there must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of his employee’s particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable.” 2 Kan. App. 2d at 307.
The only other Kansas case on negligent hiring or retention is Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984). In Gable, Higgins, an employee of defendant Empire Drilling Company (Empire), intentionally sabotaged one of plain tiff Plains Resources, Inc.’s (Plains) wells. The trial court found that Empire knew, or had reason to know, of Higgins’ propensities and was liable under the theory of negligent retention of Higgins. The finding was based on Higgins’ failure to maintain the equipment, his attitude, his comments toward Plains’ personnel, and his statements of past criminal escapades. Higgins had informed Empire of his intended sabotage. We affirmed the trial court.
In the case at bar, the trial court gave the following negligent retention instruction:
“NO. 9
“All persons entrusted with children have a special responsibility to supervise their charges.
“An employer may be negligent when it has reason to know that an employee, because of his qualities, is likely to harm others. If the dangerous quality of the employee causes harm, the employer may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.
“Such an employer is hot liable merely because the employee is incompetent or careless. If liability results, it is because, under the circumstances, the employer has not taken the care which a reasonable and prudent man would take in retaining the employee for the work at hand. What precautions must be taken depend upon the situation. One can normally assume that another who offers to perform simple work is competent and is not dangerous to others.
“Liability results under this rule not because of the employer-employee relationship of the parties, but only if the employer had reason to believe that an undue risk of harm would exist because of the employment. The employer is subject to liability only for such harm as is within the risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by plaintiffs would have been foreseen by the employer.
“School authorities are required by law to exercise reasonable care and supervision for the safety of the children under their control.
“A school is required to act when a child, while in its charge, is threatened by a third party, and it must make reasonable efforts to avoid injury to the child.
“Teachers, school administrators, and school employees are required to report promptly any suspicion of sexual abuse to the department of social and rehabilitation services. The failure to do so is a violation of Kansas law and is negligence.”
U.S.D. and S.T.S. objected to instruction No. 9. U.S.D. and S.T.S. submitted and requested the following instruction:
“If you find that plaintiff has met her burden of proof in establishing that defendant Specialized Transportation Services, Inc. was negligent, you must then decide whether such negligence was the cause of plaintiff’s claimed injury. There must be some causal relationship between the claimed dangerous propensity or quality of defendant Davidson, of which his employer, Specialized Transportation Services, Inc. had or should have had knowledge, and the injuries suffered by plaintiff; Specialized Transportation Services, Inc. must, by virtue of knowledge of defendant Davidson’s particular quality or propensity, have had reason to believe that an undue risk of harm existed to others as a result of the continued employment of defendant Davidson; and the harm which [is] claimed by plaintiff must be within the risk created by a known propensity in order for Specialized Transportation Services, Inc. to be liable. That is, plaintiff must prove that Specialized Transportation Services, Inc. knew or should have known that defendant' Davidson had a propensity which created a risk that he would sexually molest [H.R.].”
U.S.D. and S.T.S. contend that their requested instruction was modeled after the language in Hollinger, 2 Kan. App. 2d at 307.
Instruction No. 9 given by the trial court in the instant case followed instruction No. 3 in Hollinger, which was approved by the Court of Appeals. Hollinger, 2 Kan. App. 2d at 305-06, 308.
We have stated the rules regarding appellate review of jury instructions in Bechard v. Concrete Mix & Construction, Inc., 218 Kan. 597, 600-01, 545 P.2d 334 (1976).
The trial court in the case at bar did not rule on the issue of the scope of foreseeability until after the close of evidence when the U.S.D.-S.T.S. motion for a directed verdict was denied. At that time, the trial court ruled that there was sufficient evidence to submit the case to the jury to determine whether it was foreseeable that Davidson would commit a battery on one of the students. The trial court apparently rejected the U.S.D.-S.T.S. contention that they would only be liable if they knew or should have known of Davidson’s particular propensity to sexually molest.
In closing argument, U.S.D. and S.T.S. explained their interpretation of instruction No. 9 to the jury. U.S.D. and S.T.S. argued that before they could be found liable for H.R.’s injuries they had to have foreseen that Davidson had a propensity for sexual molestation and, thus, that children were at risk.
U.S.D and S.T.S. rely on cases from other jurisdictions which they claim denied employer liability for sexual misconduct of an employee where there was no evidence that the employer knew of previous episodes of sexual misconduct St. Paul Fire & Marine Ins. Co. v. Knight, 297 Ark. 555, 764 S.W.2d 601 (1989); Alma W. v. Oakland Unified School Dist., 123 Cal. App. 3d 133, 176 Cal. Rptr. 287 (1981); Kane v. Hartford Accident & Indemnity Co., 98 Cal. App. 3d 350, 159 Cal. Rptr. 446 (1979), Boykin v. District of Columbia, 484 A.2d 560 (D.C. 1984); and Bozarth v. Harper Creek Bd. of Ed., 94 Mich. App. 351, 288 N.W.2d 424 (1979). We have reviewed these cases and found that they involve procedural, statutory, or factual distinctions that diminish their precedential value.
The trial court’s analysis of the foreseeability issue in the case at bar was correct. The jury was instructed on battery. Thus, if Davidson’s battery of H.R. was foreseeable, the employer, S.T.S., may be liable. When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer. Therefore, instruction No. 9 as it relates to the employee-employer relationship was proper. (The last paragraph of instruction No. 9 relates to U.S.D.’s duty to report child abuse and is discussed later in this opinion.)
Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law. Robbins v. Alberto-Culver Co., 210 Kan. 147, Syl. ¶ 5, 499 P.2d 1080 (1972).
U.S.D. and S.T.S. assert that there was no information whatsoever that Davidson had mistreated any of his student passen gers. There was evidence that he was rude and temperamental to parents and teachers. U.S.D. and S.T.S. contend that the evidence is insufficient to establish foreseeability to commit a battery.
Plaintiff asserts that there was sufficient evidence to establish foreseeability. Plaintiff argues that Kim Brown, H.R.’s teacher, testified that she believed H.R.’s behavioral problems were a result of exposure to sexual conduct. Brown questioned Mrs. R. about this. Mrs. R. reported Davidson’s behavior, which established that children on the bus were in a sphere of risk. Mrs. R. testified that Davidson called the children names and that he was “out of control.”
According to Mrs. R., Carrell stated that she thought Davidson was “emotionally disturbed.” Principal Burns told Mrs. R. that he knew what the December 11, 1986, meeting was going to be about before Mrs. R. told him. Additionally, Burns told Pritchard that there was a possibility Davidson had molested H.R. before Mrs. R. told Bums about H.R.’s allegations. It may be inferred that Burns was able to foresee the harm before Mrs. R. told him.
This is a close case. We are not requiring clairvoyance in employers; however, viewing the evidence and all inferences in favor of plaintiff, the foreseeability of the risk of harm was a jury question. The trial court did not err in denying the U.S.D.S.T.S. motions for summary judgment and directed verdict on this issue.
The Kansas Tort Claims Act — Discretionary Function
U.S.D. asserts that it should have been granted immunity under K.S.A. 75-6104(e), the “discretionary function” exception to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (KTCA). U.S.D. argues that the day-to-day supervision and retention of Davidson as a school bus driver was based on individual judgment and the exercise of discretion unrelated to regulatory mandates of the Secretary of Transportation.
Plaintiff contends that the discretionary Junction exception was intended to protect “formulation of policy.” Plaintiff asserts that U.S.D. established a supervisory scheme over the contracted transportation services through the school bus incident report procedure and that U.S.D. personnel circumvented this reporting procedure. Plaintiff reasons that the failure to follow established policy was a ministerial act not entitled to immunity under the discretionary function exception to the KTCA.
Amicus curiae KASB joins in U.S.D.’s argument that supervision and retention of employees is a discretionary function entitled to immunity under K.S.A. 75-6104(e).
The KTCA is an open-ended act making governmental liability the rule and immunity the exception. Nichols v. U.S.D. No. 400, 246 Kan. 93, 94, 785 P.2d 986 (1990).
K.S.A. 75-6103(a) provides:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act of omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
In K.S.A. 75-6102(c), the term “governmental entity” is defined to include a school district. Employee does not include an independent contractor under contract with the governmental entity. K.S.A. 75-6102(d). Therefore, S.T.S. is not subject to the KTCA.
K.S.A. 75-6104 states in part:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” (Emphasis added.)
The burden is on the governmental entity to establish immunity under one of the exceptions in K.S.A. 75-6104. Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).
We have considered the discretionary function exception in several cases. The discretionary function exception may be the most important exception to liability in the KTCA. (Prior to the 1987 amendment to K.S.A. 75-6104[d] [Ensley 1984], which added the phrase “and regardless of the level of discretion involved” in what is now K.S.A. 75-6104[e], the discretionary function exception was designated as subsection [d]. The 1987 amendment is not applicable to the instant case.)
In Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 (1982), we rejected the “planning level-operational level test” and held that the determining factor was the nature and the quality of the discretion exercised rather than the status of the employee. The “nature and quality” test was set out in Downs v. United States, 522 F.2d 990 (6th Cir. 1975), i.e., whether the act is of “the nature and quality” which Congress intended to put beyond judicial review. 522 F.2d at 997.
In Downs, an FBI agent’s negligent handling of an airplane hijacking situation caused the deaths of plaintiffs’ decedents. The agent’s negligence consisted of his failure to follow specific procedures governing hijacking situations set forth in an FBI handbook. Downs held that the agent’s acts were not of “the nature and quality” necessary for a discretionary function. The court reasoned that the mere exercise of some judgment cannot be the test for a discretionary function because “[¡Judgment is exercised in almost every human endeavor.” 522 F.2d at 995. Rather, a discretionary function must involve some element of policy formulation. The relevance of the FBI handbook was that the FBI had already made the policy determination about the proper procedures in hijacking situations, and thus the agent was not making policy in responding to this particular hijacking situation.
The more a judgment involves the making of policy the more it is of a “nature and quality” to be recognized as inappropriate for judicial review. Robertson held that police officers were exercising a discretionary function when they refused to remove a drunken trespasser from the owner’s property. 231 Kan. at 362.
In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), Cansler, a police officer, sued the State for injuries resulting from the escape of dangerous prisoners from the penitentiary. No notice of the escape was given to law enforcement officers in neighboring communities. We reasoned that the duties to confine and notify are imposed by law and are ministerial. Thus, the State’s failure to do so was not discretionary and it was not entitled to immunity.
The wife and children of James Fudge brought a wrongful death and survival action against an intoxicated driver and a municipality in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). Fudge was killed when his van collided with the intoxicated driver’s car. It was alleged that prior to the collision, city police officers had encountered the intoxicated driver in a parking lot and negligently failed to prevent him from driving. The jury found the City 18% at fault. The City appealed, arguing in part that it was immune under the discretionary function exception of the KTCA. The police department had a standard operating procedure manual which detailed mandatory procedures for handling a variety of police situations. The police were also subject to a general order which provided that individuals who are incapacitated by alcohol and likely to inflict physical injury to themselves or others will be taken into protective custody. We held that the City had adopted a specific mandatory set of guidelines for police to use in handling intoxicated persons that left no discretion. The City was not immune under the discretionary function exception to the KTCA. 239 Kan. at 372-75.
It is clear that failure to follow mandatory guidelines is not subject to immunity under the discretionary function exception to the KTCA. Fudge, 239 Kan. at 375; Jackson, 235 Kan. at 289-90.
“Simply stated, our more recent cases hold that the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow.” Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d 272 (1988).
U.S.D. reasons that all the ministerial acts in K.A.R. 36-13-32, with respect to the employment of Davidson, were fulfilled. We agree. Plaintiff does not discuss K.A.R. 36-13-20 et seq.
K.A.R. 36-13-32 relates specifically to school bus driver qualifications. Review of K.A.R. 36-13-32 indicates that Davidson was a qualified bus driver. However, the negligent hiring claim was disposed of by the trial court’s ruling prior to trial and is not in issue.
The U.S.D.-S.T.S. contract addressed pupil discipline:
“Pupil Discipline. The Operator and its drivers shall maintain careful supervision over all passengers for their safety in riding, loading, or unloading from all vehicles. Drivers shall make prompt written reports to the Principal or principal’s designee of the names and manner of conduct of any pupils who are undisciplined or conduct themselves in such a manner as to cause serious disturbance or otherwise create a hazard to the safety and convenience of other passengers, themselves, or the operator of the vehicle. Drivers shall not discipline pupils.” (Emphasis added.)
Plaintiff asserts that U.S.D. failed to follow the school bus incident report procedure. The report form is entitled, “School Bus Incident Report to Parents.” The initial language states:
“Dear Parents:
“The purpose of this report is to inform you of an incident which occurred on the bus and involved your son/daughter. This incident may have jeopardized the safety and well-being of all the pupils riding the bus. You are urged to appreciate the' actions taken by the bus driver and the school personnel in their attempt to resolve the problem. You are further urged to cooperate in our efforts to help your child understand the necessity for good conduct while getting to and from school.”
Plaintiff argues that U.S.D. failed to follow its bus incident reporting policy. Davidson testified that he was told not to fill out so many reports. Treadwell testified that when Davidson reported he had been told not to fill out so many reports she advised him to fill the reports out anyway. The record supports plaintiffs contention that U.S.D. failed to follow the established reporting procedure.
U.S.D. procedures called for Mitchell to receive a copy of the disciplinary slip. If he noticed five or six slips in a given period of time he might investigate. Mitchell would advise drivers not to listen to school principals or to bus supervisors if they told the driver not to fill out the slips. He testified that if a driver could not handle the student on a continuing basis, the driver was switched off the route. Mitchell would have switched a driver if the problems had been continuing for over three semesters. Mitchell would have attempted to hold a conference with the driver, the parents, and the school administration to resolve the problem.
Dr. Melhorn, the pediatrician who examined H.R., testified that H.R. told her the molestation occurred more than once. According to plaintiffs expert Dr. Milner, a psychologist, the molestation occurred over a period of nine months to a year. Helen Swan, a social worker in the area of child abuse, expressed the opinion, based on her evaluation, that the sexual abuse of H.R. continued for approximately a year.
One copy of the bus incident report was to go to the parent. H.R. finally told her mother of the molestation when her mother asked H.R. why H.R. would not behave on the bus. The jury could have reasoned that H.R. would have told Mrs. R. sooner if U.S.D. had followed its bus incident reporting procedure by forwarding the parents’ copy of Davidson’s incident reports involving H.R. to her mother.
The testimony indicates that had the school bus incident reporting procedure been followed, some type of remedial action may have been taken.
The development of the bus incident reporting scheme was a discretionary act involving policy formulation. What is important is that U.S.D.’s personnel failed to follow the required reporting procedure. The policy determination to implement the reporting procedures had already been made. U.S.D.’s personnel were not making policy when they decided not to follow the required reporting procedure. Under the facts in the case at bar, it was for the jury to determine whether U.S.D. would have been alerted to the danger if the reports had been made and distributed as required.
U.S.D. cites cases from other jurisdictions which hold that hiring, supervising, and retaining school employees are discretionary functions. Doe “A” v. Special Sch. Dist. of St. Louis County, 637 F. Supp. 1138 (E.D. Mo. 1986); Rosacrans v. Kingon, 154 Mich. App. 381, 397 N.W.2d 317 (1986), lv. to appeal denied 428 Mich. 862 (1987); Willoughby v. Lehrbass, 150 Mich. App. 319, 388 N.W.2d 688 (1986); and Kimpton v. New Lisbon School Dist., 138 Wis. 2d 226, 405 N.W.2d 740 (Ct. App. 1987).
Each case is distinguishable from the case at bar. None of the U.S.D.-S.T.S. authorities are controlled by legislative enactments similar to the KTCA “open ended” concept of liability. In addition, none of the cited cases involve the failure of a school district to follow established procedures.
U.S.D. relies on our recent decision in Hackler v. U.S.D. No. 500, 245 Kan. 295, 777 P.2d 839 (1989). Hackler involved a personal injury claim by a minor for injuries sustained when crossing the street from his home. The student had been let off at a school bus stop. The defendant school district advanced the KTCA discretionary function exception of K.S.A. 75-6104(e) as a defense. We affirmed the trial court’s reasoning that the district had not breached any duty owing to Hackler. We did not determine the discretionary function issue.
The trial court, in the case at bar, was correct in ruling that U.S.D. is not entitled to immunity under the K.S.A. 75-6104(e) discretionary function exception to the KTCA.
The Mandatory Child Abuse Reporting Statute
The trial court gave the following instruction (the last paragraph of instruction No. 9) over U.S.D.’s objection: “Teachers, school administrators, and school employees are required to report promptly any suspicion of sexual abuse to the department of social and rehabilitation services. The failure to do so is a violation of Kansas law and is negligence.”
U.S.D. challenges the propriety of giving this instruction, reasoning the instruction was contrary to: (1) the pretrial order; (2) the uncontroverted evidence that sexual abuse was not suspected; (3) the discretionary function exception to the KTCA; and (4) the reporting statute, K.S.A. 1990 Supp. 38-1522, which grants no private right of action. (Plaintiff’s claim under the child abuse reporting statute is against U.S.D. only.)
Plaintiff counters with two arguments. First, plaintiff explains that there is no specific finding the jury relied on this instruction to find U.S.D. negligent. Plaintiff suggests there was ample evidence of the breach of other duties which would explain the verdict. Second, plaintiff contends K.S.A. 1990 Supp. 38-1522 creates a private civil cause of action. K.S.A. 1990 Supp. 38-1522 establishes a duty for school teachers and administrators to report all suspicions of child abuse.. Plaintiff reasons the reporting duty benefits children as a specific segment of the public intended to be protected by the statute and argues the criminal penalty provided in K.S.A. 1990 Supp. 38-1522(f) is ineffective because of problems proving a willful and knowing violation. Plaintiff asserts that Brown was sufficiently suspicious of sexual abuse to question H.R.’s mother about sexual activity in the home. Thus, according to plaintiff, there was evidence of unreported suspicion. An examination of the record reflects that Brown knew Mrs. R. was divorced and wondered if Mrs. R. was dating. Brown spoke with Mrs. R. about her recent divorce and about changes going on in the home. Brown testified she did not suspect abuse.
Plaintiff does not address the U.S.D.-S.T.S. argument that the instruction was beyond the pretrial order.
Amicus curiae Kansas Child Abuse Prevention Council (KCAPC) joins in plaintiffs argument asserting that K.S.A. 1990 Supp. 38-1522 does grant a private cause of action. KCAPC contends that the statute provides protection for the benefit of a class, or individuals of a class, i.e., abused children.
K.S.A. 1990 Supp. 38-1522 provides in part:
“(a) When any of the following persons has reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided in subsection (c) or (e): . . . teachers, school administrators or other employees of a school which the child is attending .... The report may be made orally and shall be followed by a written report if requested. . . .
“(f) Willful and knowing failure to make a report required by this section is a class B misdemeanor.”
The omitted portions of subsection (a) describe other persons who are required to report suspected abuse. These persons may be categorized generally as licensed professionals. Subsection (b) states that any other person may report suspected abuse.
K.S.A. 38-1526 grants immunity from liability for persons who make such reports without malice.
U.S.D. first contends that the discretionary function exception of the KTCA protects school employees who exercise judgment and discretion in evaluating behaviors of children to attempt to identify a possible extrinsic source of behavior problems. For this reason, sanctions should only be imposed if the failure to report is “willful and knowing.”
In the case at bar, the trial court rejected the argument, ruling that reporting suspected child abuse is a ministerial act, not a discretionary function, under the KTCA.
U.S.D. also contends that K.S.A. 1990 Supp. 38-1522 does not provide a private right of action. We agree and, consequently, need not address the discretionary function issue in the context of reporting suspected child abuse.
The relevant portion of instruction No. 9 indicated that violation of K.S.A. 1990 Supp. 38-1522 is negligence per se. However, violation of a statute alone does not establish negligence per se. The plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the leg islature. Statutes enacted to protect the public, therefore, do not create a duty to individuals injured as a result of a statutory violation. Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 125, 804 P.2d 978 (1991).
Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 804, 740 P.2d 606 (1987).
Michigan’s Child Protection Law, Mich. Comp. Laws § 722.621 et seq. (1979), requires persons who have reasonable cause to suspect child abuse to report to authorities. The statutes specifically provide that failure to do so may result in civil liability. Mich. Comp. Laws § 722.633 (1979). Rosacrans v. Kingon, 154 Mich. App. at 387-88.
The following cases have held that no private cause of action exists for violation of mandatory child abuse reporting statutes: Thelma D. v. Board of Educ. of City of St. Louis, 669 F. Supp. 947 (E.D. Mo. 1987) (following Doe “A” v. Special Sch. Dist. of St. Louis County, 637 F. Supp. 1138); Fischer v. Metcalf, 543 So. 2d 785 (Fla. Dist. App. 1989) (en banc); and Borne v. N.W. Allen County School Corp., 532 N.E.2d 1196 (Ind. App. 1989). See Annot., 73 A.L.R.4th 782, § 11[b].
Our research has indicated only one jurisdiction which has held that a mandatory child abuse reporting statute impliedly grants a private right of action. Landeros v. Flood, 17 Cal. 3d 399, 131 Cal. Rptr. 69, 551 P.2d 389 (1976). See Annot., 73 A.L.R.4th 782, § 11[a].
In Landeros, 17 Cal. 3d 399, the minor plaintiff, who had been abused by her mother and her mother’s common-law husband, sued a doctor for failure to report suspected child abuse. The doctor had treated the minor plaintiff in an emergency room (comminuted spiral fracture of the right tibia and fibula, bruises over entire back, superficial abrasions on other parts of the body, and nondepressed linear fracture of skull — all symptomatic of the medical condition known as the battered child syndrome). The California Supreme Court held that a private cause of action exists for intentional violation of the reporting statute. The court stated: “If plaintiff wishes to satisfy that requirement [violation of statute], it will be necessary for her to persuade the trier of fact that defendant Flood (the treating doctor) actually observed her injuries and formed the opinion they were intentionally inflicted on her.” 17 Cal. 3d at 415.
U.S.D. submits that no private cause of action was intended by the legislature and that we should not create one. Legislative creation, rather than judicial creation, is a persuasive policy argument.
K.S.A. 38-1521 states:
“It is the policy of this state to provide for the protection of children who have been subject to physical, mental or emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect, insuring the thorough and prompt investigation of these reports and providing preventive and rehabilitative services when appropriate to abused or neglected children and their families so that, if possible, the families can remain together without further threat to the children.”
The purpose of the reporting statute is to provide for the protection of children who have been abused by encouraging the reporting of suspected child abuse and by insuring the thorough and prompt investigation of such reports. There is no express indication of legislative intent to impose any liability for failure to report. The decision to report suspected abuse should be based on something more than suspicion.
The Indiana Court of Appeals in Borne, a case involving sexual abuse of a special education elementary school girl by classmates during a school field trip, considered the reporting issue. In holding that no private cause of action existed for failure to report, the Indiana court stated:
“When the provisions of the act are considered as a whole, there is no apparent intent to authorize a civil action for failure of an individual to make the oral report that may be the means of initiating the central procedures contemplated by the act. Furthermore, such an action is not authorized at common law and its maintenance would raise substantial questions of causation since the failure would not in the direct sense be a proximate cause of the injury to the child. It would, we believe, misdirect judicial time and attention from the very real problems of children in need of services in favor of pursuing collateral individuals, who are presumably capable of responding in money damages, on the ground that they knowingly failed to make an oral report. We concluded that was not within the legislative purpose of the act.” 532 N.E.2d at 1203.
If the legislature had intended to grant a private right of action in K.S.A. 38-1522 it would have specifically done so. The statute was revised in 1983, 1985, 1986, 1987, and 1988. The legislature has not utilized the amendment opportunities to add a private cause of action. No private cause of action exists under K.S.A. 1990 Supp. 38-1522. The child abuse reporting portion of instruction No. 9 should not have been given.
Did the giving of the instruction result in prejudicial error? Under the facts of this case, we think not.
The objectionable portion of instruction No. 9 related only to U.S.D. The judgment entered against U.S.D. is to be paid by S.T.S. because U.S.D. prevailed on its cross-claim for indemnification against S.T.S. If the case were remanded for retrial any alteration in the percentages of negligence (70% U.S.D. — 30% S.T.S.) would not affect the total of 100% to be assessed between the two defendants. S.T.S., under the indemnification agreement cross-claim judgment, would be responsible for payment of the amount awarded against U.S.D. upon retrial.
Comparison of Fault
The jury returned the verdict form, which provides in part:
“1. Did H. Ardon Davidson commit a battery upon [H.R.]?
Yes X No_
(Number of jurors in agreement 10 )
“2. If you answer Question #1, ‘yes>' do you find that such battery occurred at least in part due to the acts or omissions of Specialized Transportation Services, Inc., and/or Unified School District 259?
Yes X No_
(Number of jurors in agreement 11 )
“3. If you answer question #2 ‘yes>’ then considering the fault of Specialized Transportation Services, Inc., and Unified School District 259 at one hundred percent, what percentage of the fault is attributable to each of
them?
Specialized Transportation Services, Inc. (0% to 100%) 30%
Unified School District 259 (0% to 100%) 70%
Total 100%
“(Number of jurors in agreement 11)”
(Emphasis added.)
Judgment was entered against Davidson for $1,800,000, the total amount of the jury verdict. Judgment was entered against S.T.S. for $540,000 (30% of the total verdict) and against U.S.D. for $1,260,000 (70% of the total verdict).
U.S.D. and S.T.S. argue the trial court erred in failing to instruct the jury to compare their fault (negligence) with Davidson’s fault (intentional). U.S.D. and S.T.S. assert that the trial court’s refusal to instruct as requested is inconsistent with the principle that negligent tortfeasors shall not be liable for more than their fair share of the loss. See Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). U.S.D. and S.T.S. also contend that comparison of intentional acts and negligent acts is an issue of first impression in Kansas. Amicus curiae Kansas Association of Defense Counsel (KADC) supports the U.S.D.-S.T.S. argument.
Plaintiff disagrees with the assertion that the comparative fault issue is one of first impression. Plaintiff reasons that we have refused to compare the fault of negligent tortfeasors with that of intentional tortfeasors, citing Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986), and M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 675 P.2d 864 (1984). Plaintiff’s analysis is correct.
Plaintiff also asserts that allowing U.S.D. and S.T.S. to compare their fault with Davidson would allow an intentional tortfeasor to reduce his/her share of damages. Plaintiff misconstrues the U.S.D.-S.T.S. argument. U.S.D. and S.T.S. are not arguing that Davidson’s fault should be reduced under comparative negligence.
Amicus curiae Kansas Trial Lawyers Association (KTLA) reasons that M. Bruenger and Gould control and should be upheld. KTLA suggests that it would be unfair to allow the intentional act of one defendant to be compared with the negligent act of a defendant whose duty it is to protect the plaintiff from the act committed by the intentional tortfeasor.
In M. Bruenger, the plaintiffs truck was stolen due to the negligence of a bailee, defendant Dodge City Truck Stop. The trial court allowed the jury to compare the negligence of the bailee with the fault of the thief. We reversed and held the trial court erred in allowing the comparison. We ruled that a bailee is required to exercise reasonable care to prevent the theft. The harm is complete when the theft occurs. 234 Kan. at 687.
In Gould, a customer of Taco Bell was injured by another patron, and Taco Bell’s manager negligently delayed rendering assistance, to him. The trial court denied Taco Bell’s motion to join the intentional tortfeasor for fault comparison purposes. The trial court in Gould reasoned that intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it is to protect the plaintiff from the intentional acts committed by the third party. We agreed. Taco Bell attempted to distinguish M. Bruenger, asserting that M. Bruenger is limited to a bailment situation. We disagreed. Justice Herd, speaking for the court, stated:
“[W]e are not comparing apples and oranges. We look to the nature of the duty owed in each instance. A bailee owes a duty of reasonable and ordinary care to prevent the theft of bailed property. The premises owner owes a duty to use reasonable and ordinary care for the safety of invitees. The duty is the same in both cases. Accordingly, our holding in M. Bruenger is applicable to the present case and the trial court did not err in denying appellant’s motion to join Karen Brown [the intentional actor] as an additional party to the action.” 239 Kan. at 571.
U.S.D., S.T.S., and amicus curiae KADC rely on two law review articles. Westerbeke, Survey of Kansas Law: Torts, 33 Kan. L. Rev. 1 (1984); Westerbeke and Robinson, Survey of Kansas Tort Law, 37 Kan. L. Rev. 1005 (1989).
In 33 Kan. L. Rev. 1, Professor Westerbeke agreed with the Court of Appeals’ refusal to provide a proportionate fault reduction of the intentional tortfeasors’ liability in Lynn v. Taylor, 7 Kan. App. 2d 369, 642 P.2d 131 (1982). However, he stated that the imposition of joint and several liability on the negligent tortfeasor is unsound. Westerbeke proposed a “hybrid” approach, stating:
“A third, and arguably preferable, choice involves a hybrid approach in which the intentional tortfeasors are jointly and severally liable for the total amount of damages, but the negligent tortfeasor is liable only for that portion of the total damages representing his proportionate fault.” 33 Kan. L. Rev. at 33.
M. Bruenger and Gould have been criticized by use of the following hypothetical situation:
“Assume that a visibly intoxicated third person in the restaurant negligently stumbles into and knocks down one guest, then intentionally pushes down another guest. In each case the restaurant breached its duty in the same manner — by failing to remove the intoxicated person from the premises before he harmed a guest. The results, however, vary. The restaurant is liable for only a proportionate fault share of the damages suffered by the first guest, but is jointly and severally liable for all damages suffered by the second guest.” 37 Kan. L. Rev. at 1049.
No judicial authority in support of the hybrid approach has been cited by U.S.D., S.T.S., or amicus curiae KDAC, or in the articles relied on by the parties. We acknowledge the contradiction in the “restaurant guest” example.
We have considered the “hybrid approach” but elect to follow the precedential path marked by M. Bruenger and Gould.
The asserted U.S.D.-S.T.S. act of negligence in the case at bar was the failure to prevent Davidson from committing the intentional act of battery. We note that the verdict form required linkage between the intentional act of Davidson and U.S.D.S.T.S. before consideration of any percentage of fault attributable to U.S.D.-S.T.S. Negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.
Application of the $500.000 K.S.A. 75-6105 Maximum Liability Provision
U.S.D. and S.T.S. entered into a “Pupil Transportation Services Agreement.” Under this agreement, U.S.D. required S.T.S. to obtain insurance with the following liability limits:
“A. Minimum liability coverage: Bodily injury liability in an amount not less than $500,000 for each person; in an amount not less than $1,000,000 for each occurrence; and in an amount not less than $500,000 for property damage for each student.
“B. Excess liability insurance coverage with minimum limits of $1,000,000 per occurrence.”
The agreement also provided:
“The District, its employees, agents, and members of the Board of Education, shall be named as additional insureds on the Operator’s aforementioned insurance policies.
“The purchase of insurance by the Operator shall not constitute a waiver of exemption from liability of the District under the Kansas Tort Claims Act, K.S.A. § 75-6101 et seq. The Operator or its Employees are not and shall not be considered agents or employees of the District. The Operator is and shall be considered an independent contractor.”
The agreement also included a hold harmless indemnification clause which required S.T.S. to indemnify U.S.D. for any loss arising from operations connected with the agreement. S.T.S. purchased the required insurance naming both U.S.D. and the City of Wichita as additional insureds. No additional premium was charged for adding U.S.D., its employees, agents, and board members. The policy issued to S.T.S. by Insurance Company of North America did not limit the amount of coverage extended to U.S.D. to $500,000. No distinction as to coverage was made between S.T.S. as an insured and U.S.D. and its employees, agents, and board members as additional insureds. U.S.D. purchased its own liability policy from a different carrier with a limit of $500,000.
K.S.A. 75-6105(a) states: “Subject to the provisions of K.S.A. 75-6111 and amendments thereto, the liability for claims within the scope of this act shall not exceed $500,000 for any number of claims arising out of a single occurrence or accident.”
K.S.A. 75-6111 provides in part:
“With regard to claims pursuant to the Kansas tort claims act, insurers of governmental entities may avail themselves of any defense that would be available to a governmental entity defending itself in an action within the scope of this act, except that the limitation on liability provided by subsection (a) of K.S.A. 75-6105 and amendments, thereto shall not be applicable where the contract of insurance provides for coverage in excess of such limitation in which case the limitation on liability shall be fixed at the amount for which insurance coverage has been purchased . . . .” (Emphasis added.)
At the hearing to formalize the journal entry, Insurance Company of North America (the S.T.S. carrier) and Pacific Employers Insurance Company (the U.S.D. carrier), appeared as intervenors. Counsel for the intervenors carried the U.S.D.-S.T.S. argument that the judgment against U.S.D. should be limited in the amount of $500,000. The movants (U.S.D., S.T.S., and the two insurance companies) acknowledged K.S.A. 75-6111 but argued that the statute required that U.S.D. actually purchase the insurance with public funds. In the case at bar, the movants contend U.S.D. only purchased $500,000 in coverage (the Pacific Employers pol icy) while S.T.S. purchased the $2,000,000 policy (Insurance Company of North America). The movants also contend that the provision in the U.S.D.-S.T.S. agreement, which provided that purchase of insurance by S.T.S. shall not constitute a waiver of exemption from liability under the KTCA, is significant. The movants argued that the indemnity agreement was not intended to waive the liability limit.
The intervening insurance companies are not before us on appeal.
The trial court ruled there was insurance in excess of $500,000 and the limitation was waived. The journal entry on the cross-claim entered judgment for U.S.D. against S.T.S. for $1,260,000 (70% of the total judgment of $1,800,000).
U.S.D.-S.T.S. assert that the requirement in the agreement that S.T.S. purchase insurance naming U.S.D. as an additional insured was to secure U.S.D.’s general right to indemnity also granted under the agreement. U.S.D.-S.T.S. contend that under K.S.A. 75-6111(a) the $500,000 liability limit is waived only if U.S.D. purchases insurance with coverage exceeding $500,000.
U.S.D. advances the policy argument that if the action taken in the case at bar is construed as a “purchase of insurance” constituting a waiver of the K.S.A. 75-6105(a) maximum liability provision, government entities will insist that their contractors limit liability coverage to $500,000. U.S.D. reasons that public policy and citizen interests are promoted by insisting that private contactors insure themselves according to the risk without fear that the government entity will waive the liability limit.
Amicus curiae KASB joins in U.S.D.’s policy arguments. We acknowledge the U.S.D.-amicus policy concerns; however, in our view, the expressed apprehension is more imagined than real.
The U.S.D.-S.T.S. arguments are not persuasive. First, we note the language of the agreement relied on by U.S.D. and S.T.S. states that the purchase of insurance by S.T.S. shall not constitute a waiver by U.S.D. of its liability exemptions under the KTCA. The KTCA liability exemptions are set out in K.S.A. 75-6104 (see paragraphs [a] legislative function, [b] judicial function, [c] law enforcement, [e] discretionary function, and others enumerated in the statute). The K.S.A. 75-6105 $500,000 limit on liability and the reference in K.S.A. 75-6111 to a contract of insurance in excess of the $500,000 limit do not refer to KTCA liability exemptions but to monetary limits on liability exposure. The U.S.D.-S.T.S. reliance on the language of the agreement to support their $500,000 limit argument is misplaced.
Second, U.S.D. and S.T.S. overlook the statutory language of K.S.A. 75-6111, which states, “[A] governmental entity may obtain insurance . . . .” (Emphasis added.) In the case at bar U.S.D. obtained insurance by contractual requirement. One of the S.T.S. obligations was the purchase of insurance to cover U.S.D. as an additional insured. The U.S.D.-S.T.S. emphasis on the word “purchase” is not compelling. U.S.D. prudently sought to cover any liability exposure it might have arising from the S.T.S. transportation agreement. U.S.D. contracted for a hold harmless indemnification from S.T.S. and for insurance coverage on the S.T.S. policy as an additional insured. S.T.S. complied with the terms of the agreement. U.S.D. received what it contracted for.
The $2,000,000 limit on U.S.D. liability as an additional insured applies only to claims arising under the S.T.S. transportation agreement. The public policy apprehension voiced by U.S.D. and amicus KASB is dispelled by insuring the district for $500,000, as an additional insured, and thus, limiting the district to the K.S.A. 75-6105 $500,000 liability.
The trial court did not err in refusing to limit the judgment against U.S.D. to $500,000.
The Damage Verdict
The trial court gave the following instruction concerning damages:
“NO. 12
“If you find for [H.R.], you will then determine the amount of her recovery. You should allow the amount of money as will reasonably compensate her for her injuries and losses resulting from the occurrence in question, including any of the following shown by the evidence.
“1. Pain, suffering, disabilities and any accompanying mental anguish suffered by [H.R.] to date and those she is reasonably expected to experience in the future;
“2. The reasonably necessary increased cost of supervised living expenses, reduced to present value; and
“3. Loss of income which is reasonably certain to be lost in the future, reduced to present value.
“In arriving at the amount of your verdict, you should consider. [H.R.’s] age; condition of health, before and after; and the nature, extent, and duration of the injuries. For such items as pain, suffering, disability, and mental anguish, there is no unit value and no mathematical formula the court can give you. You should award such sum as will fairly and adequately compensate her, the amount to be awarded resting within your sound' discretion.
“The total amount of your verdict may not exceed $5,000,000.00, the amount of plaintiff’s claim.”
The jury returned a special verdict form:
“4. If the answer to either of the above is ‘yes’, what are [H.R.’s] damages in each of the following categories?
(A) Pain and suffering $200,000
(B) Pain and suffering reasonably expected to be sustained
in the future $100,000
(C) Disability to date $100,000.
(D) Disability reasonably expected to be sustained in the
future $100,000
(E) Mental anguish to date $200,000
(F) Mental anguish in the future $100,000
(G) Increased cost of housing in the future $700,000
(H) Future wage loss $300,000
“(Number of jurors in agreement 11 )”
U.S.D. and S.T.S. assert: (1) The evidence supporting the $200,000 award for pain and suffering was insufficient; (2) there was no evidence to support an award for future pain and suffering, disability to date, future disability, mental anguish to date, and future mental anguish; and (3) the $700,000 award for increased housing costs in the future and the $300,000 future wage loss award were based on speculation.
Plaintiff asserts that a prima facie case on these dámage elements was presented to the jury.
Plaintiffs counsel initially told the jury that plaintiff was not seeking damages for pain and suffering and mental distress; however, counsel later informed the jury that plaintiff did suffer these items of damages. The trial court so instructed, and the jury awarded damages on these items. Counsel’s earlier remarks do not bar recovery.
In an action for personal injuries, the trial court should instruct the jury only on those items of. damages upon which. there is some evidence to base an award. Bridges v. Bentley, 244 Kan. 434, 441, 769 P.2d 635 (1989);
Ordinarily, the assessment of damages in a personal injury action is exclusively the province of the jury. Germann v. Blatchford, 246 Kan. 532, 537, 792 P.2d 1059 (1990).
When a verdict is attacked on the ground that it is contrary to the evidence, this court does not reweigh the evidence. If the evidence with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party below, will support the verdict, we should affirm. Tice v. Ebeling, 238 Kan. 704, 708, 715 P.2d 397 (1986).
A review of the special verdict form and the record indicates that there is evidence to support the elements of damage on the special verdict form, with the exception of the category of future pain and suffering.
(A)Pain and Suffering
H.R. told Detective Pamela Horn and Social Worker Dan Crask of EMCU that she cried when Davidson “poked” her. Plaintiff’s expert, Social Worker Helen Swan, testified that H.R. said she cried when Davidson “poked” her. Swan said that this was her way of saying the event was painful. Both Swan and Dr. Milner were of the opinion that the abuse occurred over an extended period of time — nine months to a year.
Although the evidence was minimal and the award generous, the record supports this element of damage.
(B)Future Pain and Suffering
There is no evidence in the record to support this element of damage. The only evidence of future suffering relates to future mental anguish, a separate element of damages.
(C)Disability to Date and
(D)Future Disability
Dr. Milner testified that H.R. was progressing until kindergarten, then her improvement stopped. H.R. is now regressing intellectually. The early years for those affected by Down’s syndrome are very important for development. If H.R. does not “catch up” with her prior rate of development, which does not appear likely at this point, H.R. will have to be in a structured environment of some sort. Dr. Milner also testified that H.R. is suffering from post-traumatic stress syndrome and the symptoms are continuing to occur. Dr. Milner believed that H.R. will not recover from this trauma for a considerable length of time.
(E) Mental Anguish to Date and
fF) Mental Anguish in the Future
Dr. Milner testified that H.R. talked, with a lot of anxiety, about the bus driver. H.R. spontaneously began to masturbate in front of Dr¡ Milner at the mention of the bus driver. Children do not normally masturbate in public unless there is anxiety about something they are talking about. Depression and anxiety were apparent in H.R. earlier, but are not so much a problem now.
According to Swan, H.R. showed a lot of embarrassment, guilt, anger, and anxiety. Swan observed that H.R. showed signs of long-term damage. Because H.R. was (1) penetrated rather than just fondled, (2) threatened and told not to tell, and (3) abused for approximately a year, Swan testified that H.R. “comes up” on the severe side óf trauma. H.R. still has extensive emotional damage and still suffers from the trauma.
(G) Increased Cost of Housing in the Future
Dr. Milner’s opinion was that H.R. might have been a candidate for independent living when she reached adulthood before this trauma occurred. Dr. Milner reasoned that, if H.R. does not progress and if the sexualized and aggressive behavior continues, H.R. will have to be in a restrictive environment of some sort. The worst-case scenario is a hospital setting.
Michael Strouse, Executive Director of Community Living Opportunities, Inc., which provides services to mentally retarded people, testified for plaintiff regarding the cost of supervised living. Strouse stated that the cost of a semi-independent group home would be $30-$60 per day. The cost of 24 hour supervision which may be required for a Down’s syndrome individual exhibiting excessive aggressiveness and excessive masturbation, would be $150 to $225 per day.
An economist, John Morris, appeared for plaintiff. Morris calculated the present value of the increased cost of care of H.R. from age 18 to her life expectancy of age 50. He used a figure of $100 per day as increased cost of care and estimated the present value at $1.2 million.
(H) Future Wage Loss
Dr. Milner acknowledged that H.R. would not be able to work in a sheltered workshop if she could not control her aggressive and sexualized behavior. Dr. Milner did not know whether this behavior could be controlled, but all attempts so far have not worked.
Morris calculated the present value of estimated loss of earnings at $200,000 to $300,000. He based this estimate on a 40-hour work week using two levels of minimum wage, $3.35 per hour and $4.55 per hour, and on a life expectancy of age 50.
The awarded elements of damages and amounts are supported by the evidence with the exception of future pain and suffering ($100,000).
Evidence of mental suffering generally should not be considered to support an award of. future pain and suffering (which should be limited to physical pain and suffering) when the verdict form also provides a category for mental anguish. See Leiker v. Gafford, 245 Kan. 325, 342, 778 P.2d 823 (1989).
It appears the trial court submitted the K.S.A. 1990 Supp. 60-249a itemized verdict form to the jury. The jury is to be instructed only on the items of damages upon which there is evidence to base an award. K.S.A. 1990 Supp. 60-249a(c). There is no evidence of future pain and suffering (special verdict form, item [B]). The verdict is reduced by $100,000. See Williams v. Withington, 88 Kan. 809, 816, 129 Pac. 1148 (1913).
We have held, in an action for unliquidated damages, that a plaintiff must either consent to a reduced verdict or receive a new trial. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 276, 553 P.2d 254 (1976). Under the facts of this case, the use of the itemized verdict form negates our traditional requirement of plaintiffs consent to a reduced verdict.
Davidson did not appeal. Plaintiff s judgment against Davidson is not affected by the instant appeal.
We remand to the trial court to enter judgments:
(1) For plaintiff against S.T.S. and U.S.D. in the amount of $1,700,000.
(A) For plaintiff against S.T.S. in the amount of $510,000.
(R) For plaintiff against U.S.D. in'the amount of $1,190,000.
(2) For U.S.D. against S.T.S. on the U.S.D. cross-claim in the amount of $1,190,000.
Affirmed in part, reversed in part, and remanded.
Holmes, C.J., not participating. | [
-104,
-20,
-28,
-68,
26,
99,
58,
26,
17,
-109,
-73,
-45,
-21,
-50,
5,
109,
-2,
55,
-64,
107,
115,
-77,
3,
-126,
-110,
-14,
-15,
77,
-69,
75,
36,
-34,
76,
112,
74,
-43,
38,
74,
-91,
-44,
-118,
6,
-86,
-32,
91,
-54,
-84,
125,
118,
70,
49,
-100,
-5,
40,
28,
-61,
104,
46,
121,
-19,
-45,
-15,
-21,
-105,
93,
82,
-93,
4,
-98,
9,
112,
43,
-46,
-69,
8,
-24,
114,
-90,
-62,
-12,
105,
-87,
-128,
-28,
98,
99,
-76,
-59,
-4,
-120,
15,
-10,
45,
-90,
-102,
104,
33,
12,
-97,
24,
86,
23,
13,
-8,
-45,
76,
31,
108,
9,
-49,
-124,
-111,
-51,
-79,
30,
43,
-1,
1,
33,
69,
-55,
-48,
92,
81,
26,
-109,
126,
-74
]
|
The opinion of the court was delivered by
Herd, J.:
This is a tort action for injuries sustained by the McGraw family as a result of long-term exposure to carbon monoxide. They contend the heating system in their house was negligently designed and installed by Lee Construction, Inc., (Lee) and Unger Heating and Air Conditioning (Unger). Appellants further allege Peoples Natural Gas Company (Peoples) negligently failed to find or correct the problem.
The district court found the action was barred by the statute of limitations and granted summary judgment in favor of Unger, Lee, and Peoples. Appellants appealed and the Court of Appeals reversed. Gilger v. Lee Constr., Inc., 14 Kan. App. 2d 679, 798 P.2d 495 (1990). We granted the appellees’ petition for review.
The following facts gave rise to the controversy: Lee was the general contractor for a residence in Sagebrush Estates, Garden City, Kansas, and Unger, a subcontractor, installed a two-fumace heating system in the residence. All work was completed by August 1, 1977.
The McGraws moved into the residence in 1981. Within the first year of moving into their new home, Kathryn McGraw began to experience health problems. In the next several years she consulted numerous physicians for headaches, nausea, numbness in her arms and legs, digestive problems, menstrual pain, rapid heart rate, joint pain, and hallucinations. Kathryn suspected gas in the house was the source of her health problems, but also attributed the health problems to various other medical conditions. In January 1983, Kathryn’s mother, Iona R. Gilger, moved into the McGraws’ residence. By October, 1985, all family members living in the house suffered health problems.
In 1982, Peoples sent a serviceman to the McGraw residence to check a purported gas leak in the furnace; however, no leak was discovered. Sometime in 1984 or 1985 the Finney County Sanitarian and Finney County Building Inspector visited the McGraw residence in response to complaints by Kathryn about the heating system. Appellants were advised that fresh-air ventilation was needed in the furnace room. On February 15, 1985, Unger inspected the McGraws’ furnace and flue and discovered a bird’s nest which caused the flue to backdraft. Correction of these defects did not stop the health problems.
In mid-October 1985, Howard Sheets began carpentry work on the McGraw residence. Mr. Sheets became ill and suggested to Kathryn that she have the furnace checked for a gas leak. On October 18, 1985, Peoples inspected the McGraw residence for carbon monoxide and natural gas. Peoples found the furnace operated properly. On October 23, 1985, Unger once again checked the McGraws’ furnace to assure it was working properly. At no time were the appellants warned by Unger or Peoples about improper venting of the furnace.
The appellants contend they did not discover their health problems were caused by the improperly vented furnace until November 24, 1985, when Calvin Fowler inspected the furnace. Appellants filed a negligence suit against Unger, Lee, and Peoples on November 16, 1987.
Upon ruling on appellees’ motions for summary judgment, the district court concluded all alleged negligent acts occurred prior to November 14, 1985, and that the adult appellants knew or could have reasonably ascertained prior to November 14, 1985, that their injuries were caused by appellees’ negligent acts. Thus, the court found appellants’ action was time barred by K.S.A. GO-SIS and granted summary judgment. As for the minor appellants, the district court determined their negligence action against Lee and Unger was barred by an eight-year statute of limitations, K.S.A. 60-515, because the negligent act giving rise to the cause of action occurred no later than August 1, 1977, when the house was fully constructed. The minor appellants’ claim against Peoples, however, was found within the statute of limitations because Peoples’ last act of negligence occurred on or prior to October 18, 1985, when it inspected the McGraws’ furnace.
Upon appeal, the Court of Appeals ruled that summary judgment was improper because genuine issues of fact remained as to when the appellants ascertained their injuries were the result of appellees’ negligence. 14 Kan. App. 2d at 687-88. The Court of Appeals also determined that the act giving rise to appellants’ cause of action did not occur in 1977 as the district court found, but in 1981, when appellants were first exposed to appellees’ negligence. 14 Kan. App. 2d at 691.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, we read the record in the light most favorable to the party who defended against the motion for summary judgment, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990); Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
Where the affirmative defense of the statute of limitations is asserted, summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run. But in a tort action where the evidence is in dispute as to when substantial injury first appears or becomes reasonably ascertainable, the issue is for determination by the trier of fact. Hecht v. First National Bank & Trust Co., 208 Kan. 84, 93, 490 P.2d 649 (1971); George v. W-G Fertilizer, Inc., 205 Kan. 360, 366, 469 P.2d 459 (1970).
The statute of limitations for a tort action is two years. K.S.A. 60-513(a). The date upon which the statute of limitations commences in this case is determined by K.S.A. 60-513(b). It provides:
“Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation’ shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
In the present action, the parties dispute when the statute of limitations commenced to run. Lee and Unger allege negligent design and installation could have occurred no later than August 1, 1977 — the date the house was completed. The alleged negligence of Peoples occurred in October 1982 and in October 1985 when it inspected the furnace. Since appellants’ injuries were not immediately ascertainable after the initial act of alleged negligence, the issue in dispute is when the fact of injury became reasonably ascertainable to appellants.
Appellees contend appellants became aware of the damage by 1982 when Kathryn McGraw began to suffer numerous health problems. In any event, appellees assert the appellants knew or could have reasonably ascertained the source of their injuries by October 1985, more than two years prior to the commencement of this action. Appellees’ argument is based upon the fact that Kathryn McGraw sought medical treatment within one year of moving into the residence and was periodically suspicious of gas in the house. In addition, Mr. Sheets and a county inspector advised the McGraws to check the furnace for proper ventilation. Finally, the McGraws had complained about the presence of carbon monoxide.
Appellants, on the other hand, admit they were aware of substantial health problems prior to October 1985, but did not know the nature and cause of the problems until November 24, 1985, when they were informed the furnace was installed without proper venting. Thus, argue appellants, the statute of limitations did not commence to run until November 24, 1985, when the fact of injury and appellees’ negligence became reasonably ascertainable. In further support of their position, appellants assert they justifiably relied upon Ungers’ and Peoples’ service reports which indicated the furnace was functioning properly. Finally, appellants point out that prior carbon monoxide tests had produced negative results.
I
The first issue we address is whether the ten-year statute of limitations under K.S.A. 60-513(b) bars prosecution of Lee and Unger, who finished construction of the home August 1, 1977. This negligence action was filed November 16, 1987.
As previously pointed out, the applicable statute is K.S.A. 60-513(b). The pertinent clause to this issue provides: “but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
Lee and Unger argue the legislature intended to cut off all negligence actions ten years after the negligent act, regardless of when the cause of action accrues, substantial injury occurs, or the fact of injury becomes reasonably ascertainable. We have held otherwise.
In Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 519 P.2d 661 (1974), we construed what is now K.S.A. 60-513(b). Ruthrauff arose from a gas explosion and fire on September 17, 1970, which destroyed Mrs. Smith’s residence and caused her death twelve days later. The administratrix of Mrs. Smith’s estate filed a suit against the building and plumbing contractors for damages on September 15, 1972. The contractor’s last work on the residence was completed in May 1959. 214 Kan. at 186. Thus, the action was filed within two years of the explosion, but thirteen years after the contractors completed construction of the residence. The trial court invoked what is now 60-513(b) and entered summary judgment in favor of the contractors. 214 Kan. at 187.
We reversed, with a discussion of 60-513(b), stating:
“Under K.S.A. 60-510 this primary 2 year period [in 60-513(a)] is not to commence until each cause of action shall accrue, i.e., when substantial injury results. The 10 year provision is secondary and speaks to this primary period when it states ‘but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.’ The ‘period’ referred to would appear to be the ‘period of limitation’ mentioned immediately preceding and this refers to the primary 2 year period provided for in the statute. This would indicate to us that the legislature did not intend to place a restriction on the primary 2 year period which commences when the action accrues. It is merely a limitation on the extension of the 2 year period when substantial injury is not immediately ascertainable. If the legislature intended otherwise it could have clearly expressed itself by saying that in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. This they did not do. Accordingly we hold that the last clause in this statute, which states ‘but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action,’ does not affect or limit the primary 2 year period for bringing an action where the fact of substantial injury is immediately apparent as in the case of an explosion and resulting fire.” 214 Kan. at 191. (Emphasis in original.)
Justice Fromme, speaking for the court, concluded that plaintiffs claim accrued when the explosion and injury occurred on September 17, 1970, that action on the claim was commenced within the primary two-year period of limitation, and that the ten-year limitation did not apply because substantial injury was immediately ascertainable. 214 Kan. at 192.
For ready referral we repeat the first clause of K.S.A. 60-513(b), which states: “[T]he cause of action in this [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury . . . .”
The Ruthrauff opinion construes that clause to mean that the two-year limitation does not commence until there is substantial injury. Thus, even if the wrongful act occurs at some prior time (1959), the cause of action does not accrue until there is substantial injury (1970).
Ruthrauff also held that the ten-year limitation applies only when substantial injury is sustained but the facts of such injury are not reasonably ascertainable until a later date. We concluded the ten-year limitation is merely a limit On the extension of the two-year limitation when an injury is not immediately ascertainable. Thus, the ten-year limitation is not an absolute cutoff from the date of the wrongful act, but acts as an outside limit on the two-year limitation. Under Ruthrauff, construing K.S.A. GO-SIS^), a wrongful act alone does not commence the limitation unless substantial injury occurs at the time of the act. Rather, when an act occurs which later causes substantial injury, both the two-year and ten-year periods of limitation are triggered at the time of substantial injury, unless the facts of such injury are not ascertainable until later, in which case the two-year statute of limitations begins at the later date. Rut in no event, under K.S.A. 60-513(b), shall the period of limitations extend beyond ten years from the date of substantial injury.
We applied this interpretation of Ruthrauff in Kinell v. N. W. Dible Co., 240 Kan. 439, 731 P.2d 245 (1987). Kinéll involved a damage suit by a group of condominium owners against the builder and original owner of the condominium complex for negligent installation of fireplaces. Construction of the condominium units was completed in 1970. This action was commenced for damages caused by a fire which occurred on November 29, 1981. 240 Kan. at 440-41.
The trial court granted judgment for the builder on the theory the statute of limitations had run. 240 Kan. at 442. We reversed and stated:
“The portion of K.S.A. 60-513(b) applicable herein states an injured party’s cause of action shall not be deemed to accrue until after the tort first causes substantial injury. Some tortious acts do not cause injury until more than two years after the tortious act occurred. This statutory provision gives the injured party two years to bring an action after he or she has first sustained substantial injury. The ten-year cap contained in K.S.A. 60-513(b) is applicable only where the fact of injury is not reasonably ascertainable until some time after substantial injury occurs. See Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 519 P.2d 661 (1974). In the case before us, the action was brought in less than two years after the 1981 fire, and ensuing official investigation into the cause of the fire resulted in plaintiffs becoming obligated to make expenditures for remedial construction to their fireplaces. Under the facts herein, the ‘substantial injury’ provision in K.S.A. 60-513(b) means when the act giving rise to the injury first caused substantial injury to plaintiffs.” 240 Kan. at 443.
Therefore, we concluded the district court erred in ruling the statute of limitations barred plaintiffs’ claims because plaintiffs did not suffer substantial injury until 1981. 240 Kan. at 443-44.
The Ruthrauff rule was also applied in Olson v. State Highway Commission, 235 Kan. 20, 679 P.2d 167 (1984). Olson brought suit for damages to her house caused from blasting by the State Highway Commission and its contractor. The blasting occurred between the spring of 1978 and September 1979. Olson first saw a small crack in the foundation in May or June of 1978. The defendants advised they would discuss the matter with Olson when the blasting was completed; however, the discussion never occurred. In March, 1980, Olson discovered fourteen or fifteen cracks in the foundation and filed suit on October 29, 1980. 235 Kan. at 21-22.
The trial court held the statute of limitations had run. Citing Ruthrauff, we reversed and statéd that a cause of action does not accrue until the act giving rise to the cause of action first causes substantial injury or until the fact of injury is reasonably ascertainable. 235 Kan. at 26. In addition, we acknowledged and applied Judge Gard’s comments on K.S.A. 60-513(b) where he states: “ ‘There is no limitation period running from the time of the initial act of negligence unless the act of negligence and injury are simultaneous.’ ” 235 Kan. at 26 (quoting 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-513, pp. 23-26 [1979]). Thus, we held the date substantial injury became reasonably ascertainable, whether when one hairline crack appeared or when additional blasting occurred, was an issue of fact to be determined by the jury. 235 Kan. at 27.
Analysis of the foregoing cases clearly establishes that the statute of limitations under K.S.A. 60-513(b) is not triggered until substantial injury occurs or is reasonably ascertainable, regardless of the antiquity of the wrongful act which caused the injury. This interpretation of K.S.A. 60-513(b) expresses the clear legislative intent. This is more apparent when we examine the 1976 amendment to K.S.A. 60-513.
In 1976 the legislature amended K.S.A. 60-513, in part, by adding subsection (c), which pertains only to health care providers. The legislature saw fit to adopt the language we suggested in Ruthraujf to create a long-term limitation by stating, “but in no event shall such an action he commenced more than four (4) years beyond the time of the act giving rise to the cause of action.” L. 1976, ch. 254 § 1. This language created an absolute four-year outside limit on negligence actions against health care providers as contrasted to the language of K.S.A. 60-513(b), which stated that the period could not be extended more than ten years beyond the time of the act giving rise to the cause of action.
We construed subsection (c) in Stephens v. Snyder Clinic Assn, 230 Kan. 115, 631 P.2d 222 (1981), where we compared the meaning of subsection (c) with the Ruthraujf interpretation of subsection (b). In Stephens, we recognized the statutory change of language in subsection (c), applicable to health care providers, changed the rule of law previously expressed in Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64 (1951), where we first held tort actions accrue on the date of substantial injury. In Ruthraujf, we held subsection (b) codified Kitchener and applied that rule to the ten-year statute of limitations in all tort actions. In Stephens, we affirmed Ruthraujf but distinguished the language of K.S.A. 60-513(c), which applies only to negligence actions against health care providers. 230 Kan. at 123.
In our examination of K.S.A. 60-513(b), we cannot ignore Tomlinson v. Celotex Corp., 244 Kan. 474, 770 P.2d 825 (1989). Tomlinson arose from a certified question presented by the United States District Court. The certified question presented the following issue: “Does the ten-year limitation of K.S.A. 60-513(b) apply to claims involving latent diseases and, if so, is it constitutional as applied to this plaintiff?”
We answered both questions in the affirmative. Tomlinson filed suit on May 11, 1987, for personal injuries sustained from exposure to asbestos which was manufactured, sold, or distributed by eight corporate defendants. Tomlinson’s last exposure to the asbestos was in 1971; however, his injuries were not ascertained until Sejptember 1986. Thus, his suit was filed within two years of his ascertainment of substantial injury but more than ten years after his last exposure to the asbestos. 244 Kan. at 474-75.
We acknowledged that K.S.A. 60-513(b) was the applicable statute. Following a long, detailed analysis of Ruthrauff, we stated: “[T]he rule announced in Ruthrauff remains applicable to the present case.” 244 Kan. at 477. In spite of this strong statement, we abandoned the Ruthrauff rule and held the statute of limitations started running at the time of Tomlinson’s last exposure to asbestos in 1971 and that the ten-year statute had run. 244 Kan. at 486.
In reaching this conclusion, we examined two conflicting federal district court interpretations of K.S.A. 60-513(b) as applied to latent diseases. In Colby v. E. R. Squibb & Sons, Inc., 589 F. Supp. 714 (D. Kan. 1984), Judge Kelly interpreted the language of K.S.A. 60-513 and concluded the time of the act giving rise to the cause of action meant the date on which the plaintiff received substantial injury and not the date of defendant’s action. 589 F. Supp. at 716. In Cowan by Cowan v. Lederle Laboratories, 604 F. Supp. 438 (D. Kan. 1985), Chief Judge O’Connor interpreted K.S.A. 60-513(b) to mean that the date of exposure of the injured party to the alleged harmful substance was the time of the act giving rise to the cause of action, rather than the date of a subsequent substantial injury. 604 F. Supp. at 443.
In Tomlinson, we did not follow the rule of Ruthrauff, which held the ten-year statute started running from the date of substantial injury and adopted the interpretation of Judge O’Connor. Although Tomlinson was concerned with the commencement of the statute of limitations as applied to a latent disease, there is no latent disease exception in K.S.A. 60-513(b) by which Tomlinson would be placed in a separate category of negligence actions. The statute of limitations applicable to Tomlinson is the same as that for all negligence actions, whether they deal with latent diseases or other injuries which are not immediately ascertainable. We are unable to distinguish Tomlinson from Ruthrauff, Olson, or Kinell.
Thus, under the rule of Ruthrauff, Tomlinson had timely filed his action. His injuries were not ascertained until September
1986, and his suit was filed on May 11, 1987, within two years of his ascertainment of substantial injury but sixteen years after his last exposure to asbestos. We incorrectly applied K.S.A. GO-SIS^) as construed by Ruthrauff and thereby barred Tomlinson’s claim for damages. We hereby overrule Tomlinson.
As the foregoing discussion establishes, we have ratified the Ruthrauff rule on numerous occasions. In 1987 the legislature also recognized the rule of Ruthrauff by amending K.S.A. GO-SIS^) to conform to the language suggested in Ruthrauff and continued the Ruthrauff rule in force until July 1, 1989. The amendment (now found at K.S.A. 1990 Supp. 60-513[b], [d]) provides:
“(b) Except as provided in subsection (c), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. [Emphasis added.]
“(d) The provisions of this section as it was constituted prior to July 1, 1987, shall continue in force and effect for a period of two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.” L. 1987, ch. 222.
We conclude the Ruthrauff rule is applicable to the present case and hold appellants’ cause of action did not accrue until they had suffered substantial ascertainable injury. Substantial injury could not have occurred prior to 1981. Appellants filed their action in 1987, and the ten-year limitation, therefore, does not bar prosecution in this case.
II
The next issue we consider is the time when the minor McGraws’ cause of action accrued. K.S.A. 60-515(a) authorizes a plaintiff, who is a minor at the time a cause of action accrues, to bring an action within one year after reaching majority, “except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.”
The statute of limitations for minors, above quoted, uses the language suggested in Ruthrauff as an absolute limitation on the commencement of an action. This language was adopted by the legislature in K.S.A. 60-513(c) for health care providers. As previously stated, we construed that language in Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, holding the four-year statute of limitations begins when a negligent act occurs rather than when substantial injury is ascertained.
Thus, we hold that K.S.A. 60-515(a) triggers the eight-year statute of limitations for minors on the date of the negligent act. Appellants’ causes of action based on faulty design and installation of the furnace arose on August 1, 1977, and are therefore barred by the foregoing statute. Their cause of action for negligent inspection against Unger and Peoples arose in 1985 and is not barred by the eight-year statute of limitations.
III
The final issue to determine is when the fact of injury should have become reasonably ascertainable to the appellants. The facts disclose appellants sought an explanation of their ill health from 1981 through November 24, 1985. On that date, a repairman told them their furnace was improperly vented.
In Miller v. Beech Aircraft Corporation, 204 Kan. 184, 460 P.2d 535 (1969), the plaintiff brought a negligence action against his employer for negligent failure to provide a safe work environment. Plaintiff s work area was very dusty and poorly ventilated. After fourteen years of service, plaintiff developed emphysema and pulmonary fibrosis and was forced to resign for health reasons. 204 Kan. at 184-86. Although plaintiff was con cerned about his work environment for a number of years and had requested face masks and the installation of fans, he had never been warned of a medical risk in returning to work. This court determined:
“[T]he evidence as to what if any medical advice plaintiff received, and whether he was or should have been aware of the actual state of his health and the connection between his employment and the pulmonary fibrosis ravaging his lungs, was not sufficiently conclusive for the trial court to resolve, as a matter of law, the issue raised by the statute of limitations.” (Emphasis added) 204 Kan. at 189-90.
Hecht v. First National Bank & Trust, Co. 208 Kan. 84, 490 P.2d 649 (1971), dealt with a medical malpractice suit wherein the plaintiff suffered damages from alleged negligent radiation therapy. The defendant asserted plaintiffs action was barred by the two-year statute of limitations, and the district court granted summary judgment. 208 Kan. at 85. Plaintiff began radiation treatment on January 28, 1966, but it was discontinued on February 7, due to an abnormal skin reaction. Throughout the month of March, plaintiffs physician told her the skin reaction was subsiding and healing. 208 Kan. at 87. On March 12, 1966, a second physician determined the treatment was unsuccessful and by December 1966, plaintiff was advised an ulcer caused by the radiation required surgical removal. 208 Kan. at 88-89. The defendant alleged plaintiff knew of her injury in February 1966 and no later than March 12, 1966. Plaintiff argued the fact of her injury was not reasonably ascertainable until January 1967, when surgery was prescribed. 208 Kan. at 92.
The Hecht court found there was inconclusive evidence for the trial court to resolve the issue of when plaintiff s substantial injury became reasonably ascertainable:
“Since the evidence presented, as we see it, is inconclusive as to what point in time plaintiffs injury could be said to be substantial or reasonably ascertainable, we conclude that plaintiff should be afforded an opportunity to prove that she neither knew nor could reasonably have been expected to know of defendant’s alleged negligence until the date alleged in her petition [January 1967]. A summary judgment based on the premise that plaintiff on March 13, 1966, knew or could have reasonably ascertained that she had suffered substantial injury resulting] from alleged acts of negligence by defendants necessitated a finding of fact which was, we believe, in good faith disputed.” 208 Kan. at 92. (Emphasis added.)
Finally, we examine Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985). In Cleveland, the plaintiff underwent surgery on May 19, 1978, to correct a recurrent urinary tract infection. The defendant, plaintiffs physician, warned plaintiff he might suffer temporary urinary incontinence and sexual impotence. 237 Kan. at 411. Plaintiffs incontinence and impotence continued for twenty months and on September 22, 1979, plaintiff was advised the incontinence was a permanent condition, the result of the prior negligently performed surgery. 237 Kan. at 412-14.
Plaintiffs action was commenced August 14, 1980. Defendant argued the action was barred by the statute of limitations because plaintiffs injury was reasonably ascertainable immediately after the surgery. We found that although plaintiffs symptoms and injuries were known prior to August 14, 1978, the fact of the injury was not immediately ascertainable because plaintiff had no reason to suspect the conditions were permanent or the result of negligence by the defendant. 237 Kan. at 414-15.
Appellees rely on Friends University v. W. R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), and Roe v. Diefendorf, 236 Kan. 218, 689 P.2d 855 (1984). Their reliance is misplaced. In Friends, plaintiff brought an action against the manufacturer of roofing material used to roof the college’s new library. The roof of the library was complete in 1969 and in 1970 it began to leak with every rainfall. In April, 1975, the college learned defendant’s failure to bond the roofing material to the substructure was the cause of leaking. 227 Kan. at 559-61. Plaintiffs action was not filed until March 1977.
We determined plaintiffs failure to know the exact scientific nature of the problem did not toll the commencement of the statute of limitations where it was clearly apparent there was a severe problem with the roof caused by defective design, materials, or workmanship in 1970. 227 Kan. at 563.
In Roe v. Diefendorf, the plaintiff was injured in an automobile accident negligently caused by defendant on November 14, 1979. In February 1981, the plaintiff reinjured his back and brought an action against defendant on June 28, 1982. 236 Kan. at 219. Plaintiff argued the statute of limitations did not commence running until February 1981, when he realized the full extent of his injuries sustained in the automobile accident. We ruled otherwise, holding that an action accrues when the victim has a sufficient ascertainable injury to justify an action for damages, regardless of the extent of the injury. 236 Kan. at 222.
Unlike the plaintiffs in Friends and Roe, the appellants in the present case do not claim they did not realize the extent of their health problems. In Friends and Roe, the parties whose negligence caused the injuries were immediately known and the injuries were ascertainable within a short period of time. In the case at hand, however, there are disputed facts as to when the appellants realized their health problems were associated with the alleged improperly ventilated furnace.
It is axiomatic that every case involving actionable negligence must contain three essential elements: (1) There must be a duty running from the defendant to the plaintiff; (2) the defendant must have breached the duty; and (3) the breach of duty by the defendant must have injured and damaged the plaintiff. Kitchener v. Williams, 171 Kan. at 547 (quoting Faris v. Hoberg et al., 134 Ind. 269, 33 N.E. 1028 [1892]).
Here, the appellants knew they were ill long before the suit was filed. They suspected carbon monoxide gas poisoning; however, there were differing medical opinions on the cause of their illnesses. Injury and damages alone are not sufficient for the accrual of a negligence action. Establishing when the facts of injury were reasonably ascertainable is an essential element in determining when a tort action accrued. In this case, the evidence is controverted as to when the injury was reasonably ascertainable and when the cause of the injury was determined. If we accept Kathryn McGráw’s testimony as true, as we must for purposes of summary judgment, then the determination of the cause of the injury was made on November 24, 1985.
In light of the foregoing, we hold summary judgment was improper. The issue of when the appellants reasonably ascertained they suffered substantial injuries caused by appellees’ negligence is a material question of fact which should be resolved by the jury.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is reversed as to the adult plaintiffs, affirmed as to the minors’ faulty design and installation causes of action, and reversed as to the minors’ negligent inspection cause of action. The case is remanded for further proceedings consistent with this opinion.
Abbott, J., not participating. | [
-44,
106,
-35,
-100,
12,
-31,
104,
-38,
103,
-71,
-25,
83,
-49,
-56,
-123,
107,
67,
53,
-63,
91,
113,
-77,
19,
83,
-106,
-13,
57,
-43,
-72,
95,
-10,
-1,
72,
112,
10,
-43,
-90,
-54,
-33,
-44,
-122,
5,
73,
-32,
89,
-110,
32,
106,
86,
79,
49,
5,
-77,
46,
52,
-53,
104,
38,
-21,
-83,
64,
-7,
-118,
5,
77,
4,
39,
6,
-106,
15,
-2,
62,
-38,
-79,
0,
-84,
51,
-74,
-126,
60,
79,
-103,
13,
-95,
98,
33,
5,
-25,
104,
-72,
15,
-106,
15,
39,
-94,
56,
-77,
42,
-97,
-99,
124,
118,
6,
120,
-25,
77,
95,
40,
0,
-114,
-108,
-111,
71,
96,
-36,
39,
-1,
39,
37,
112,
-63,
-96,
94,
-57,
115,
-97,
94,
-66
]
|
The opinion of the court was delivered by
Johnston, J. :
This action was brought by the board of county commissioners of Kearny county to recover from F. P. Lindsay, formerly county attorney of that county, the sum of $4,275.70, alleged to have been paid to him without authority, as compensation for his services as county attorney, and also to recover a certain penalty, and an additional sum as attorney’s fee. An attempt was made to obtain service upon him, but it appears to have been ineffectual. A paper in the form of a summons, except that it was not signed by the clerk of the district court, was prepared, and a copy of the same was served upon Lindsay. He challenged the sufficiency of the process at once, making a special appearance for that purpose. The record contains a literal copy of the paper that was served upon him ; and it, together with the testimony offered upon the motion, shows beyond doubt that the original paper was not signed by the clerk of the district court, and that no valid process was ever served upon him. The summons is the process by which parties defendant are brought into court, and it is important, therefore, that the statutory requirements respecting the same be substantially observed. It is provided that "the summons shall be issued by the clerk, . . . . shall be under the seal of the court from which the same shall issue, shall be signed by the clerk, and shall be dated the day it is issued.” (Civil Code, § 59) ; and section 700 of the code provides that ‘ ‘ the style of' all processes shall be ‘ The State of Kansas.’ It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it is issued.” The statutory requirement that the summons shall be signed by the clerk is imperative, and it cannot be safely disregarded. The signature of the clerk is equally as important to the validity of the summons as is the seal, and with respect to that this court has expressly de cidecL that “if the summons was issued without a seal it would be void, and a judgment founded thereon a nullity.” (Dexter v. Cochran, 17 Kan. 447.) The objection to the service is not to be treated as a collateral attack. As the attack upon the process was promptly made by a motion to quash, the question here is whether the overruling of that motion was erroneous. Attention is called to the name of the clerk attached to- an indorsement on the back of the paper,'stating-the amount for which judgment would be taken in case of a default. This indorsement, however, is not required to be signed by the clerk, and the mere fact that his name is appended thereto does not supply the omission nor give force to the unsigned summons.
In the entry of judgment, made after the motion was overruled, is a formal finding that the defendant had been duly served with summons ; but, as this finding is plainly contradicted upon the face of the record and by the uncontradicted proof, it cannot be regarded. There is a contention that the prima facie character of the finding of the court that personal service had been made cannot be overthrown, for the reason that it does not affirmatively appear that all of the testimony is'in the record. The record'shows that with the ease-made the following'notice was served: “The above and foregoing is the case made by the defendant in the above-entitled cause, and contains all the pleadings, proceedings, and the judgment thereon.” On the same- page is an acknowledgment of service in the following form : “ The above-entitled case-made of the defendant was this day served on me, and as it'contains a true and correct transcript of the proceedings, pleadings and judgment in said cause, I have no suggestion of amendments to make.'” - It thus appears that the attorney for defendant in error not only was advised that the case-made purported to contain all the proceedings, which would embrace the evidence, but that he expressly admitted that to be a fact. Under these circumstances it' must be held that the case-made embraces all of the testimony, and that the finding that due service of summons was made is wholly without support.
The judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
-14,
-4,
-8,
29,
11,
97,
-94,
-86,
81,
-95,
39,
115,
-27,
-62,
28,
99,
115,
45,
112,
104,
76,
-78,
55,
73,
-74,
-14,
-63,
85,
-71,
77,
-28,
-10,
76,
-80,
-22,
-43,
70,
74,
-123,
-108,
-50,
-127,
9,
100,
-15,
8,
52,
41,
-46,
11,
-75,
-1,
-13,
42,
24,
71,
-55,
44,
75,
-17,
-64,
-112,
-97,
-107,
127,
22,
-79,
6,
-104,
-57,
88,
46,
-100,
57,
3,
-24,
114,
-74,
6,
-12,
105,
59,
9,
102,
98,
32,
21,
-23,
-8,
-67,
46,
86,
29,
-90,
-109,
24,
107,
41,
-106,
-99,
101,
22,
7,
118,
-9,
5,
27,
44,
10,
-49,
-46,
-77,
15,
119,
-118,
15,
-17,
50,
-112,
17,
-122,
-28,
94,
87,
51,
-101,
-113,
-108
]
|
The opinion of the court was delivered by
Allbn, J.
: A railroad company seeking to condemn land for a right of way or other uses connected with the construction and operation of its railroad, under the statute, takes only a right to the use of such land as is definitely described in the report of the commissioners. The concealed purposes or intentions of the representatives of the company or of the board of commissioners can confer no rights. The landowner may rely implicitly on the report filed. The commissioners in this case condemned a right of way across 20 acres only: The law requires the commissioners to embody their doings in a written report, and to file the same with county clerk. This rejiort becomes the' evidence, and the only evidence, of their doings. (The State v. Armell, 8 Kan. 288 ; Reisner v. Union Depot & Rld. Co., 27 id. 382; C. K. & W. Rld. Co. v. Grovier, 41 id. 685.)
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
-9,
106,
-4,
-99,
-117,
98,
50,
-102,
65,
-95,
38,
83,
13,
-54,
-128,
59,
-81,
-65,
116,
122,
68,
-93,
87,
-29,
86,
-13,
91,
-51,
-80,
73,
102,
-59,
77,
48,
10,
117,
-26,
-56,
69,
26,
-114,
46,
-120,
73,
-63,
64,
52,
43,
86,
79,
21,
15,
-13,
42,
24,
-63,
105,
44,
-21,
37,
8,
120,
-70,
-49,
29,
6,
49,
0,
-104,
-125,
72,
47,
16,
49,
11,
-20,
119,
-90,
-108,
-12,
9,
-39,
8,
46,
99,
35,
20,
-49,
44,
-104,
14,
89,
-115,
-25,
16,
24,
-29,
97,
-105,
-99,
80,
82,
7,
126,
-26,
-123,
89,
108,
1,
-125,
-74,
-95,
-113,
44,
-110,
67,
-53,
-95,
17,
116,
-63,
-78,
95,
71,
18,
-101,
-114,
-106
]
|
The opinion of the court was delivered.by
Johnston, ■).:
In an indictment containing two counts, it was charged that, in October, 1893, 0. H. Menke, as cashier of The Hutchinson National Bank, feloniously received deposits when the bank was in failing circumstances, and while it was in an insolvent condition. A motion to quash the indictment was made, and, among other grounds, it was alleged that the statutes under which the indictment was filed had no application to officers of a national bank, and that the acts charged to have been committed were not a violation of any statute of the state. The motion to quash was sustained’, and the defendant was discharged. The state appeals, and contends that the prosecution can be maintained under section 1 of chapter 48 of the Laws of 1879. It reads as follows :
“Section 1. If any president, director, manager, cashier, or other officer of any banking institution, or any private banker or officer of a private bank, doing business in this state, shall receive or assent to the reception of any deposit of money or other valuable thing in such bank or banking institution, or if any such banker, officer or agent shall create or assent to the creation of any debts or indebtedness by such bank or banking institution, in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof shall be punished in the manner and to the same extent as is provided by law for stealing the same amount of money deposited, or valuable thing, if loss occurs by reason of such deposit.”
It is contended that in its terms the act is broad and comprehensive enough to include national banks, and that it was not only within the intention, but also within the power, of the legislature to make such officers amenable under this statute. The statute quoted, as will be seen, does not refer to national banks in terms, and whether it was so intended by the legislature becomes unimportant by reason of a later enactment upon the same subject. In 1891 an act was passed relating to the organization and regulation of banks and the banking business, and penalties for violations of the act were prescribed. (Laws 1891, ch. 43.) In section 16 of that act it was provided:
' “No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts circulating as money or currency, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank, who shall knowingly violate the provisions of this section, or be accessory to or permit, or connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000 or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment.”
By an examination of the title and the several provisions of the act, it will clearly appear that it was not the purpose of the legislature to regulate or control the business conducted by national banks, nor that the penalties prescribed would be operative as against officers of national banks. It first provides for the organization of banks, and, as the state has no power to organize or control national banks, it is manifest that no other than state banks were in mind. The subsequent provisions relate to such banks as may have been organized under the act, or as are referred to and described in the earlier sections of the act. The supervision and control of the banks and banking officers for which provision was being made was given to a bank commissioner, whose duties were prescribed by the same act, and certainly it could not have been the legislative purpose to give that officer supervision and control of national banks. The act appears to be a complete revision of the then-existing law relating to banking, and added thereto are many features entirely new. Instead of expressly repealing the sections revised, there was inserted in the act a general clause repealing all the acts and parts of acts inconsistent therewith. Although chapter 48 of the Laws of 1879 was not specifically repealed, section 1(5 of the later act is so clearly a revision of the former that it operates to abrogate the former one. A comparison of the two sections leaves no doubt that the later covers the whole subject of the former one, and as the later act omits some parts of the first, changes others, and embraces new provisions, thereby increasing the penalty, it is obvious that it was intended as a substitute for the first act, and under the rule frequently declared it will operate as a repeal of that act. (The State, ex rel., v. Studt, 31 Kan. 245 ; The State v. Showers, 34 id. 269 ; C. K. & N. Rly. Co. v. City of Manhattan, 45 id. 419 ; Beadle v. K. C. Ft. S. & M. Rld. Co., 51 id. 248.)
As the act of 1891 has no application to a national bank or its officers," and operates as a repeal of chapter 48 of the Laws of 1879, it follows that the acts charged to have been committed by the defendant do not constitute a public offense under our statutes, and that the trial court ruled correctly in quashing the indictment.
Judgment affirmed.
All the Justices concurring. | [
-80,
-8,
-8,
-66,
42,
96,
42,
-102,
67,
-95,
-91,
115,
-23,
1,
21,
121,
-46,
-71,
-44,
105,
-42,
-73,
47,
105,
-46,
-77,
-47,
-19,
-74,
95,
-28,
-43,
12,
-80,
-54,
-11,
102,
-62,
67,
-36,
-118,
37,
40,
-61,
-7,
40,
52,
47,
118,
11,
113,
14,
-13,
42,
26,
66,
105,
45,
74,
-67,
-16,
-79,
-118,
-115,
111,
21,
-109,
34,
-104,
7,
-48,
44,
-104,
51,
1,
-8,
123,
-122,
-122,
84,
111,
25,
-52,
98,
98,
19,
-11,
-17,
-84,
-120,
54,
-1,
-115,
-121,
-112,
64,
10,
9,
55,
-103,
54,
18,
-122,
-12,
-21,
-107,
49,
108,
5,
-101,
-76,
-109,
13,
125,
26,
127,
-13,
-93,
48,
113,
-50,
50,
93,
87,
123,
27,
-114,
-12
]
|
The opinion of the court was delivered by
Allen, J.
: The information charges
“That on the 20th day of February, 1895, in said county of Morton and state of Kansas, one William B. Lowe and one Al. Lawder, then and there being, did then and there, unlawfully and feloniously, kill certain neat cattle, the property of J. N. and J. W. Beaty, partners as Beaty Bros., to wit, one red brindle cow, five years old, of the value of $15; one red and white spotted cow, three years old, of the value of $15 ; one red and white spotted steer, four years old, of the value of $25 — then and there with the intent, then and there, unlawfully and feloniously to steal, take and carry away and convert to their own use the carcasses of said animals so killed as aforesaid.”
On this charge the appellant was tried, convicted, and sentenced to confinement in the penitentiary for the term of two years. He appeals, and assigns numerous errors in the proceedings of the court. There is nothing substantial in the plea of abatement. The only difference pointed out between the complaint filed before the justice of the peace and the information is, that in the complaint three persons were charged with killing the cattle, while in the information two only are named. The sufficiency of. the information was challenged by a motion to quash. The criticism of it is that section 83 of the act regulating crimes and punishments, under which the information is filed, in defining the offense uses the word “wilfully,” while the information charges the' defendants with having ‘£unlawfully and feloniously ’ ’ killed the cattle. It is contended that neither the word ££ unlawfully ’ ’ nor £ £ feloniously ’ ’ is synony mous with the Word “wilfully,” and that an act may be both unlawful and felonious, and yet not be wilfully done. Conceding that this is true, we yet think the information sufficient. It charges that the defendants killed the cattle with the intent to steal and convert to their own use the carcasses. It is not necessary that the information should contain the precise words used in the statute. It is sufficient if every element of the offense, as defined in the law, is clearly charged in the information. If the defendants killed the cattle with a definite purpose and intent to convert the carcasses to their own use, the killing must necessarily have been intentional and wilful. The idea of an accidental killing is excluded by the statement of the purpose of the defendants in doing the act. One of the grounds on which the defendant asked that the information be quashed is-that it was not duly verified. The form of verification used by the county attorney is not commendable. It would be as easy to allege directly, that he is informed and verily believes the matters stated in the information to be true, as to state that they are true to the best of his knowledge and belief, and it is always better to comply strictly with the requirements of the statute ; but such a defect has never been regarded as sufficient ground for reversing a judgment. On the contrary, the cases hold informations so verified sufficient. (The State v. Ladenberger, 44 Kan. 261; The State v. Stoffel, 48 id. 364.)
Numerous errors are assigned on the action of the court in impaneling the jury.' A challenge to the array was sustained, but most of the jurors who had been summoned on the regular panel were included in the special venire and called into the jury-box. This was entirely proper. They were not personally disqualified. (The State v. Yordi, 30 Kan. 221.) It appears that three of the jurors had been summoned on the regular panel of jurors for the February term. This case was tried in October following. It is claimed that they were therefore disqualified, under section 3, diaper 14, of the General Statutes of 1889, which makes the fact that any person called as a juror has served in that capacity at any term of the court during the year next preceding a good cause of challenge. These persons, though summoned as jurors, did not actually serve, but were discharged without having been called to try any case, there being no jury cases to try. This is not sufficient to disqualify them under the law. To afford a sufficient ground of challenge they must have actually served as jurors — must have sat as such in the trial of a case.
It is claimed that the juror Jackson was disqualified because his name did not appear on the assessment roll for the preceding year. It was admitted by the prosecutor that his name did not appear on the roll. The juror, however, testified that Mr. Hamilton was the assessor of his township, and assessed him in the year 1894, and that he made a statement on which he was assessed. The amount of property he possessed is not stated. It is probable that the valuation .of his property was less than $200, and the assessor may have deemed it unnecessary to place his name on the assessment roll for that reason. His name should have been placed on the roll if he had any property to list, whether it was of sufficient value to.render any portion of it taxable or not. (The State, ex rel., v. Comm’rs of Phillips Co., 26 Kan. 419.) The failure of the assessor to enter his name on the roll when it was his duty to have done so does not disqualify him as a juror. Although, the statements in the record are meager, and do not definitely show that the juror had property, as they do show that he was in fact assessed, we cannot, for the purpose of reversing the judgment of the trial court, assume that he had no property. We must rather interpret the record so as to uphold the ruling of the trial court, when it is fairly susceptible of such interpretation.
The juror Bitner was examined with reference to statements it was claimed he had made concerning the guilt of the defendant after having been called as a juror, during the adjournment of the court. He denied having made any statements of the kind alleged. Thereupon the defendant asked leave to introduce witnesses to prove that he had made such statements, but the court refused to hear them. While the court undoubtedly has the right to hear testimony other than the statements of the juror himself as to his competency to sit, and is not absolutely concluded by the juror’s statements, it would be a very extreme case where a reviewing court would be authorized to reverse a judgment because the trial court refused to have other witnesses sworn to testify with reference to the competency of a juror. Such a proceeding has not been generally regarded as permissible, and the court ought not to spend time unnecessarily in trying a preliminary question of this character. We could only reverse the judgment on the ground that an incompetent juror had been retained when the undisputed testimony showed him to be incompetent. No matter how many witnesses might have contradicted the juror in this case, the court still had the power to overrule the challenge. The peremptory challenges allowed the defendant are ordinarily quite sufficient, to enable him to get rid of all such jurors as he believes to be unjustly biased against him, and who do not disclose by their own statements their disqualifications.
It is claimed that the examination of several of the jurors disclosed the fact that they had formed opinions with reference to the guilt or innocence of the defendant. The jurors were very artfully interrogated by counsel for the defendant, and some of their answers taken singly would indicate that they entertained disqualifying opinions. The whole examinations, however, have abundantly satisfied us that the court committed no error in overruling the challenges, and 'that neither one of the jurors entertained such opinion as rendered it necessary or even proper to exclude him from the jury for that reason, nor do we think that there was any error, in view of the difficulty experienced in obtaining a jury, in retaining a man whose hearing was somewhat defective, when it is made clear that he in fact heard all of. the evidence, and that the defendant was not prejudiced by his infirmity.
On the merits of the case, it is contended that there is a failure of proof as to the ownership and identity of the cattle killed. It is shown, we think beyond question, that two at least of the cattle were marked with what is termed a “ dewlap brand,” and, while the testimony is not very full, we think there is yet sufficient to show that Beaty Bros, owned cattle branded in that manner running in the vicinity of the place where these animals were killed, and that there were no other cattle in that portion of the country branded in the same manner. This proof, taken in connection with all the circumstances developed by the testimony, appears sufficient to warrant the jury in finding that the cattle killed belonged to Beaty Bros.
A portion of the language used in the sixth instruction is criticized, and it is claimed that the court in it assumes that the defendant killed the cattle, or assisted in killing them. If this language were, disconnected it would he objectionable; but when read in connection with the balance of the instruction immediately preceding it, it is clear that the court did not assume, and the jury could not have understood it as meaning to assume, that the defendant actually killed or assisted in killing the cattle ; but on the contrary they were expressly instructed, that before they could convict the fact must be established that the defendant killed the animals, or participated in the killing of them, or of one of them. The instructions, as a whole, appear to be correct.
"We find no error in overruling the motion for a new trial. The-statements contained in the affidavits filed appear altogether improbable, and were contradicted by the testimony of the juror whose competency they undertook to impeach. On the whole record, the defendant seems to have had a fair trial.
The judgment is affirmed.
All the Justices concurring. | [
-16,
110,
-35,
61,
42,
96,
42,
-102,
67,
-95,
-74,
83,
-51,
-61,
5,
121,
99,
61,
85,
121,
-60,
-73,
115,
-61,
-78,
-13,
-47,
-43,
49,
77,
-18,
-44,
79,
16,
10,
21,
-26,
72,
-63,
-100,
-82,
5,
41,
-47,
-61,
0,
60,
111,
54,
10,
49,
62,
-93,
46,
30,
-45,
41,
44,
106,
-81,
112,
-15,
-70,
-49,
-1,
18,
-77,
34,
-84,
5,
88,
46,
-104,
49,
1,
-24,
115,
-124,
-124,
116,
109,
-119,
12,
98,
99,
33,
-36,
15,
32,
-116,
47,
-5,
-115,
-89,
-112,
64,
67,
32,
-106,
-99,
54,
84,
-121,
-8,
-9,
13,
29,
108,
-127,
-53,
-108,
-77,
79,
60,
-108,
121,
-5,
-89,
48,
117,
-51,
-30,
93,
71,
86,
-109,
-114,
-44
]
|
The opinion of the court was delivered by
Martin, O. J.
: I. The original complaint was filed with the j ustice of the peace on July 16,1894, and a warrant was issued on that day for the arrest of the defendant. The complaint, as also the information filed October 17, 1894, charged the commission of the ofense on July 1, 1894. The evidence first offered tended to show the time of the offense to be in October, 1892, or on the night that the girl’s mother went to Denver
on a two weeks’ visit, tlie day of the month not being shown. After the girl had testified to this occurrence, she was permitted, against the objection of the defendant, to testify to another affair as happening about July 1, 1894, in the nature of an indecent assault upon her by the defendant. After the close of the testimony for the prosecution, the court requiring it, the state elected to rely for conviction upon the offense of October, 1892, and the court instructed the jury to disregard the evidence as to any other offense. The court erred in admitting testimony as to.the second offense. It had no relation to the circumstance relied upon for a conviction, and threw no light upon the same. In its nature it could not have been otherwise than prej - udicial to the defendant. The rule that the evidence must correspond with the allegations and be confined to the point in issue is applicable alike in civil and criminal cases. (1 Bish. Or. Pr. § 1046 ; 1 Ohitty, Cr. Law, 556; The State v. Boyland, 24 Kan. 186.) The information contained one count only, and it charged a single crime, and although the state was not bound to prove the time of the commission of the offense just as alleged, yet the defendant was notified by the information that he was charged with one crime only. The court evidently had the impression that in felonies, as well as in certain classes of misdemeanors, several different offenses of the same nature could be proved under a. single charge, and the state might then be compelled to elect upon what particular transaction it would rely for a conviction ; but this rule is not applicable to felonies. While two or more distinct felonies of like nature may be united in one information or indictment, the charges should be made under separate and distinct counts. (The State v. Goodwin, 33 Kan. 538.) And where the information charges a single felony, the evidence should be confined to it alone, unless it is necessarily connected or associated with another offense, in.which case the evidence as to the two offenses cannot be disassociated, as in The State v. Folwell, 14 Kan. 105, and The State v. Adams, 20, id. 311, 319. And sometimes it maybe competent to show several distinct acts tending to prove a motive, and there may be other exceptional cases where like evidence may be admitted; but proof 9'f an assault nearly two years after the crime charged and relied upon, as in this case, does not come within any exception to the rule. It was well said by Chief Justice Horton in The State v. Boyland, supra : “You cannot prejudice a defendant by proof of particular acts of crime other than the one for which he is being tried, unless the acts have been committed in the preparation for the crime, or the actual doing of the crime, or in concealing it or its fruits.” The same subject was incidentally touched upon in The State v. Bonsor, 49 Kan. 758, where, although the case was of the same character as that now under consideration, the evidence of several distinct offenses seems to have been admitted without objection.
II. The trial court, over the objection of the defendant, permitted the state to introduce in evidence the original complaint, the warrant, the requisition upon ihe governor of Missouri, the justice’s docket, the recognizances for the appearance of the defendant, and the information. They were admitted, as the court said, for the single purpose of showing when the action was commenced and the continuous prosecution of the case. The defendant claims that this evidence was prejudicial to him, especially that part ' of the same containing the finding of the justice of the peace that the crime had been committed, and that the defendant was probably guilty. The defendant claimed that, unless the offense was committed within two years prior to the filing of the information, the prosecution was barred, but no authority was cited except In re Griffith, 35 Kan. 377, and this holds only that the filing of a complaint for felony, upon which no warrant is issued nor arrest made, is not such a commencement of the prosecution as will take the case out of the operation of the statute of limitations. In the present case the court should have taken judicial notice that the prosecution was commenced July 16, 1894, and should have so informed the jury without the introduction of any evidence. (The State v. Bowen, 16 Kan. 475.) The office of the certified transcript of the examination made by the justice of the peace under section 64 of criminal code (¶ 5127, Gen. Stat. 1889) is to inform the district court as to the proceedings before the magistrate, and in this case the transcript was quite full and explicit. Where a docket is not in existence or is imperfectly kept, or no transcript is on file, it may be necessary to resort to the best evidence obtainable to show the prior proceedings in the case ; but then it would seem that the evidence should be introduced merely for the information of the court, and not to go before the jury.
The defendant assigns several other errors, but we think they are not sustained by the record. For the specific errors hereinbefore discussed, however, the judgment must be reversed and the case remanded for a new trial.
All the Justices concurring. | [
-16,
106,
-51,
-68,
42,
96,
42,
-72,
65,
-13,
-76,
83,
-23,
90,
20,
105,
27,
125,
84,
105,
-60,
-74,
87,
75,
-6,
-13,
-16,
-43,
-73,
-35,
102,
124,
78,
-80,
66,
-111,
102,
-54,
-63,
18,
-118,
13,
-104,
-62,
-46,
-64,
52,
57,
50,
15,
113,
-82,
-29,
42,
16,
-33,
41,
44,
106,
-67,
-8,
112,
-101,
-75,
-51,
22,
-77,
38,
-100,
5,
-24,
12,
-40,
16,
0,
104,
115,
-106,
2,
-12,
109,
-119,
8,
98,
98,
1,
45,
-25,
44,
-120,
55,
63,
-67,
-89,
16,
72,
75,
109,
-66,
-103,
52,
80,
43,
-2,
-29,
77,
81,
100,
13,
-53,
-106,
-77,
79,
54,
-102,
113,
-29,
-95,
17,
116,
-50,
-10,
92,
84,
50,
-37,
-122,
-89
]
|
The opinion of the court was delivered by .
Allen, J.
: The facts of this case, as presented by the evidence offered on behalf of the plaintiff in error in the trial court, are substantially as follows : The plaintiff, a child two years old, resided with her parents in Butler county, on a farm about three-and a half miles northeast from Augusta. The track of the defendant’s railroad passed through the lands on which Johnston lived, and within a short distance from the house. There were five children in the family, the oldest being nine years old at that time. Johnston’s corral was situated across the track of the railroad, and he and the members of his family were accustomed to go to it by a path leading from the house -across the railroad. On the evening of the 27th of October, 1889, which was a bright, clear day, some time between sundown and dark, the older children and an aunt of theirs were over at the corral feeding the stock. The plaintiff wandered away from the house and went upon the track of the railroad at a little distance from the place where the path crossed it. She had on a dress of light brown and white checked gingham. A freight-train, consisting of about nine cars, partly loaded, came from the northeast, running at the rate of about 25 miles an hour. Northeast from the house in which the Johnstons lived, and at a distance of about 315 feet from the point where the plaintiff was injured, there is a railroad crossing. When the train reached this crossing the whistle was sounded. The mother of the child had started from the house in search of it, and saw it standing on the track. She ran to get it, but before she could get to it, it was struck by the engine and thrown into the ditch. Although it was severely bruised, and four of its teeth knocked out, no bones were broken. The father of the plaintiff testified that there was a whistling-post about 1,000 feet northeast from the crossing, but that the first whistle that he heard was when the train reached the crossing, and again, after it had passed the crossing, three or four short blasts were given. He was in such a position that the house prevented him from seeing the accident, but he saw a man on the step of the engine before it reached the child. No effort appears to have been made to stop the train. There is no direct statement of any witness showing that the engineer or fireman saw^ the plaintiff before she was struck, but witnesses testified that she could have been seen for a distance of 1,600 or 1,700 feet from the track northeast of where she was. A demurrer to the plaintiff's evidence was sustained by the court, and judgment entered in favor of the defendant.
It is not contended in support of the ruling of the court that the plaintiff was of sufficient age to be chargeable with negligence contributing to her injury, but it is claimed that she was a trespasser to whom the company owed no duty, unless her presence in a position of danger was known to some employee of the company on the train who could have prevented injury to her. Whether the engineer and fireman, in the discharge of their duties, could and ought to have kept such a lookout along the track ahead of the train as would necessarily have discovered the plaintiff in time to stop the train and avoid injury to her, is a question we do not feel warranted in answering, as a matter of law. It does appear in this case that between the approaching train and the child there was a public crossing, where people passing along the public highway had a right to go across the track. In approaching such crossings it is clearly the duty of the engineer to be on the alert, not merely for the purpose of avoiding injury to persons and property crossing the track, but also for the protection of his train and all that is upon it. The child was but a short distance from this crossing. We cannot say that there is absolutely no evidence tending to show that the engineer or fireman, or both of them, did-actually see the plaintiff in her position of danger in time to have stopped the train, or, at least, to have slackened its speed to such a degree that the mother running toward it might not have rescued it from danger. It was the duty of the engineer to be looking toward the crossing, and in the direction of the plaintiff. Did he look, and did he see her? These questions we think were for the jury, and that it was not imperatively required of the plaintiff to prove by the direct statement of a witness that the engineer or the fireman actually saw her. There were circumstances, possibly quite slight and unconvincing, tending to show that he did actually see her. If so, it is quite clear that it was his duty to avoid injuring her.
It is argued tliat the parents of the plaintiff were negligent, and that, while the plaintiff herself was too young to be guilty of contributory negligence, yet that the negligence of the parents should be imputed to her. We do not think the facts disclosed by the testimony render it necessary now to pass on the question of imputed negligence. The child had escaped from the house but a very few minutes before it was injured, and the mother was already in search of it, and running to get it, before it was injured. The testimony of botli father and mother tended to show that they were very careful to keep their children away from the track. Though the proof of negligence was not strong, we think the case ought to have been submitted to the jury.
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
-15,
124,
-100,
-114,
-86,
97,
104,
-38,
97,
-95,
-90,
-13,
-81,
-61,
25,
105,
-22,
45,
-47,
43,
70,
-77,
19,
-29,
-102,
-45,
55,
-35,
-79,
110,
-28,
-41,
13,
48,
10,
85,
102,
72,
-59,
84,
-114,
63,
-23,
-20,
59,
96,
-84,
123,
118,
15,
21,
-97,
-29,
42,
92,
-46,
104,
47,
-21,
-87,
-64,
113,
-118,
-59,
37,
0,
-77,
18,
-98,
-89,
72,
28,
-104,
53,
2,
-68,
115,
-92,
-109,
-12,
97,
-87,
12,
-26,
102,
33,
-51,
-21,
44,
-120,
38,
126,
-113,
-89,
26,
80,
3,
45,
-65,
-99,
59,
80,
7,
110,
-1,
77,
92,
100,
-128,
-113,
-108,
-87,
-49,
-92,
-110,
51,
-61,
-91,
50,
101,
-51,
-70,
93,
5,
114,
-101,
-97,
-2
]
|
The opinion of the court was delivered by
Allen, J.
: The appellant and one John Tannyhill were jointly charged with obtaining from William C. Bowser three horses and a check for $20 by means of false pretenses. It appears that the defendant had at one time worked for Bowser, who was a farmer. On the 8th of December, 1892, Davis and Tannyhill went to the residence of Bowser. Tannyhill, being a stranger, was introduced to Bowser by Davis. The defendant testified in his own behalf, and admitted that he went to Mr. Bowser’s house at the time stated, in company with Tannyhill, and introduced him to Bowser; that Tannyhill asked Bowser if he had a team of horses to sell; that Bowser replied he had; that Tannyhill and Bowser then went out to the corral ; that he remained and talked with Mrs. Bowser; that Bowser came back to the door, showed him a note, and asked him if it was his note ; that he looked at the note and said, “Yes, I gave that note to Tannyhill in settlement ’ ’ ; that Tannyhill afterward brought out two horses; that he was not present during the negotiations for the horses ; that he understood when they went there that Tannyhill intended ■ to trade his note for horses; that afterward Bowser approached him to buy cattle; that he-then bargained for some cattle, and gave a check for $111 on the Effingham bank; and that he did not have money of his own in the bank to meet it, but expected his brother to pay for the cattle and take them. The horses were taken away by Tannyhill, but the cattle were still left in Bowser’s possession.
The false pretenses charged are that Davis represented to Bowser that the note before referred to, which was for $240, was given by Davis to Tannyhill in payment for cattle which he had bought, and which he (Davis) then had in his possession, and was feeding with other cattle at or near Muscotah; that he also pretended that he had money deposited in the bank of Effingham to meet the check for $111. The means by which it is charged that the property was obtained was through a trade'of an interest of $160 in Davis’s note by Tannyhill to Bowser in exchange for two horses. The information contains two counts : The first charges obtaining the two horses as above stated ; the second count charges obtaining another horse and Bowser’s check for $20 on the next day, by means of the same false pretenses.
The issue at the tidal was narrowed down to the question whether or not the pretenses alleged were in fact made. Bowser, his wife and daughter testified that they were made. The defendant denied making, any such statements or representations. There was no controversy as to the fact that the property charged in the information to have been obtained was in fact purchased by Tannyhill from Bowser and taken away, nor that the only consideration paid for it was the Davis note for $240. Nor was there any claim by Davis that the note was in fact given for cattle he was then feeding. His claim on the witness-stand was that the note was given on a settlement of accounts, in payment for $175 of borrowed money, a pony, and a cow. Davis was not present at the time the third horse and Bowser’s check for $20 were obtained. The only manner in which he 'was connected with the transaction was by what took place on the 8th of December, and á note claimed to have been written by Davis to Bowser and presented to him by Tannyhill and one Dunkel, who was with him on the 9th. This paper was not produced at the trial, and one of the claims of error is in the admission of oral testimony as to its contents. No one appears to have seen it after the day on which it is claimed to have been presented. The only proof as to the signature is that of Jessie Bowser. It appears that she wrote the first check for $111 on the 8th, and saw Davis sign his name to it. She testifies that she was acquainted with his signature, and that the signature to the paper was Davis’s; that its contents were : “Mr. Bowser, pay to Mr. John Tannyhill the balance in the note, and I will sta,nd good as I promised yesterday.” Dunkel, who it is claimed presented this paper to Bowser, was placed on the witness-stand and denied ever having had such a paper. We think the loss of the paper was sufficiently shown, if it ever existed, by the testimony of the Bowsers, and that there was competent testimony as to the genuineness of the signature.
It is earnestly insisted, however, that the testimony was wholly insufficient to sustain the conviction of Davis on the second count. If the false pretenses charged to have been made were in fact made by Davis on the 8th, they undoubtedly formed the basis of Bowser’s confidence in the value of the note and Davis’s ability to pay it. The note written by him is sufficient to connect him with the transaction on the 9th, to show that he knew of and was privy to the design to obtain from Bowser the balance of the $240 over the price of the team of horses obtained on the 8th. .While counsel earnestly insist that the evidence is insufficient to warrant a conviction, we are not able to say that it is so. The pretenses charged to have* been made were well calculated to inspire confidence in the ability of Davis to pay. It is not at all improbable that a man of ordinary prudence in making a sale of horses would make some inquiry as to the value of the paper he took in payment for them, and it clearly appears from Davis’s own testimony that his note was worthless ; that he did not at the time of the trade have any means of payment, nor was there anything in his circumstances or his business to recommend the note as a good one. The jury, who saw the witnesses, have given credit to those who testified in behalf of the state, and we find nothing in the record to convince us that they were deceived.
Many errors are claimed in the instructions. Some of them appear at first blush to be serious, but when considered in the light of all of the testimony offered at the trial, we find nothing sufficient to warrant a reversal. The main, and we may say substantially the only issue, tried, was whether or not the defendant did pretend that the note was given for cattle, and that he was feeding the cattle near Muscotah, where he lived, and that he had money in the bank to pay the check he gave to Bowser. These pretenses were as to a past transaction and existing facts, affecting materially the ability of the defendant to pay. If false, and made for the purpose of defrauding the complaining witness, and relied on by bim, the property having been actually obtained by means of them, they constituted a crime.
Eight instructions were asked by the defendant. The first was modified and given, and the only portions of the instruction as given that appear objectionable are copied from the instructions asked, and those portions do not appear prejudicial to the- defendant under the issue actually tried. The second and third instructions asked do not correctly state the law. It is not indispensable that the representations “be as to the possession by the party at the time of certain property,” and “the fact that the maker of said note, Thomas Davis, was and. may have been at the time financially irresponsible and insolvent ’ ’ was not wholly immaterial under the issues in the case. So much of the fourth, fifth and sixth instructions asked as were sound and applicable to the case are contained in the twenty-seventh instruction given by the court. We perceive no valid objection to the seventh instruction given. The eighth, which is to the effect that the jury may take into account the inability of Bowser to read, is only objectionable because his inability to read would not render him any more easily deceived by pretenses of the kind claimed than if he were a very learned man. The jury were told that they might take this into consideration with all the other circumstances. It is to be presumed that the jury gave such weight, and such only, to this circumstance as it was fairly entitled to. Twelve such men as are usually impaneled- to try a case in the district court are ordinarily quite capable of determining what circumstances should be given weight, and what not, and in this case the court did not attempt to tell them anything more than that they ought to consider this circumstance. In some cases it might be a very important circumstance, though in this it appears to us quite unimportant, and we have no doubt it was so considered by the jury.
The tenth instruction, standing by itself, would be erroneous, but taken in connection with all the other instructions and as applied to the determination of the actual controversy in this case, doe.s not appear to be misleading, and is not sufficient ground for a reversal.
It is insisted that the fifteenth instruction is misleading because it states that it is not necessary that the evidence should show that Davis shared in the proceeds of the property obtained: The evidence in the case clearly shows that Tannyhill and Davis came to Bowser’s together, and went away together. It also shows that whatever false representations were made were in fact made by Davis himself. We do not think it was incumbent on the state to show that any division was made of the property obtained by this fraudulent transaction. It was sufficient when it was proven that Davis and Tannyhill, acting together, obtained Bowser’s property by means of false pretenses, with the intent to cheat and defraud him of it. If it were a fact that Tannyhill kept all the property, Davis would still be guilty.
Other errors are claimed on the instructions and in the admission of evidence, none of which appear worthy of especial mention. Viewing the whole record, the defendant appears to have been fairly tried, and the judgment must be affirmed.
All the Justices concurring. | [
114,
100,
-23,
31,
122,
-32,
42,
-72,
101,
-95,
-25,
83,
-55,
-42,
0,
49,
-25,
13,
85,
104,
100,
-77,
19,
97,
82,
-45,
-45,
-51,
-79,
76,
-74,
87,
73,
20,
10,
85,
102,
-54,
-61,
84,
-114,
1,
43,
-24,
-37,
0,
52,
47,
55,
75,
113,
46,
-69,
47,
20,
115,
105,
46,
107,
41,
-64,
-15,
-98,
-114,
-35,
14,
18,
38,
-66,
5,
74,
46,
-112,
49,
1,
-8,
122,
-90,
-110,
-12,
77,
-103,
8,
102,
98,
1,
-51,
-17,
40,
-52,
47,
95,
-113,
38,
-48,
80,
2,
97,
-106,
-99,
-13,
80,
-121,
-8,
-1,
-115,
28,
104,
35,
-98,
-106,
-125,
77,
62,
-102,
19,
-45,
55,
19,
113,
-51,
-86,
93,
100,
48,
-101,
-114,
116
]
|
Per Curiam:
At April term, 1891, the plaintiffs recovered judgment against Elizabeth Bunn and D. M. Bunn for $13,112.40, on a promissory note and six coupons, but the court refused to render judgment on three other coupons of $700 each, on the ground that the right of action thereon was barred by the statute of limitations. The plaintiffs excepted to this refusal of judgment on the three coupons, and on October 31, 1891, they instituted this proceeding in error. Before doing so, however, the defendants had paid and the plaintiffs received the full amount of the judgment rendered, together with interest and costs, and for this reason the defendants in error move to dismiss this proceeding; and the motion must be sustained, on the authority of Savings Bank v. Butler (just decided) and the cases therein cited. | [
-14,
108,
-72,
110,
74,
32,
32,
-102,
67,
-128,
-77,
83,
-23,
67,
21,
45,
119,
105,
81,
123,
-45,
-93,
55,
3,
-13,
-78,
-103,
-43,
-75,
103,
117,
-41,
76,
48,
-22,
-43,
70,
-62,
-23,
20,
-114,
5,
-88,
-19,
-7,
64,
48,
123,
68,
3,
49,
-36,
-93,
46,
24,
70,
104,
40,
-55,
57,
-32,
-72,
-101,
-123,
111,
22,
-127,
21,
-100,
71,
-54,
46,
-108,
53,
1,
-24,
50,
-90,
-58,
84,
99,
57,
36,
98,
102,
-95,
5,
-1,
-100,
-88,
38,
-33,
-113,
-122,
-109,
80,
11,
105,
54,
-99,
-12,
4,
-89,
-2,
-50,
-124,
92,
44,
29,
-98,
-44,
-77,
-97,
122,
-84,
3,
-17,
51,
50,
113,
-51,
96,
92,
-57,
58,
-77,
-114,
-68
]
|
The opinion of the court was delivered by
Johnston, J. :
The language of the act (Laws 1895, ch. 5) leaves no doubt of the legislative purpose. It was to appropriate specific sums to the 34 persons named therein, who had furnished cane to the sugar company. It may be that under the prior acts providing for the payment of bounty by the state for the manufacture of sugar, the sugar company had earned a share of the promised bounty, and that a moral obligation rested upon the state to pay it. If such an obligation exists, it is one which cannot be enforced against the state by the sugar company. The payment of such an obligation rests entirely with the legislature, and until a specific appropriation is made by that department, not a dollar of the public money can be withdrawn for that purpose.
The claim that so much of the act as designates the persons to whom the money appropriated should be paid may be ignored, and the remaining provisions, which it is claimed would authorize the payment of the money to the sugar company or its assignees, treated as valid, cannot be sustained. To strike down that part of the act which specifically provides who shall receive the money, and then, upon an interpretation of the emasculated act, declare that the money should be paid to others, would be a plain disregard of the legislative will, and would be an exercise of a power which the court does not possess. The judiciary cannot prescribe to the legislative department limitations upon the exercise of an acknowledged power. The legislative power may appear to be exercised inequitably, but, so long as it is within the constitutional limits, the power is supreme. Moneys rightfully in the state treasury cannot be withdrawn “exceptin pursuance of a specific appropriation made by law.” (Const., art. 2, §24.) The appropriation made is specific, and designates particularly who shall receive it. To eliminate that provision would be to divert public moneys to purposes and persons other than those intended by the legislature, when, as counsel well says, the court has no power whatever over moneys in the state treasury, or over the custodians of the public moneys, for the purpose of directing their payment, except in aid of a “specific appropriation made by law.” The court, in proper cases, may adjudge a legislative act to be partially or wholly void ; but, if there is any weakness in the provisions of the act in question, the.bank is not in a position to question it. No money has been set apart to the bank or the sugar company which they can claim, and the provisions encouraging the manufacture of sugar and providing for the payment of boun ties under certain circumstances gave them no right to any particular fund or moneys. If by virtue of those acts they have an equitable claim against the state they should look to the legislature. It cannot be obtained upon an attempt to obstruct an approprition made to others, nor can it be paid out of the state treasury until a specific appropriation is made by law for that purpose. For some reason which the legislature deemed to be sufficient, money was appropriated to pay the cane-growers who furnished cane to the sugar company. It may be that those who furnished the cane were not paid for the same, and that it was thought that they had a stronger claim upon the state for the bounty than those who converted it into sugar. Whatever may have been the moving influence, it is clear that the legislature did appropriate money for the cane-growers, and did not appropriate any for the sugar company or its assignee. The state does not question the validity of the appropriation to the cane-growers, and the bank is a mere volunteer who has no authority to act as guardian of the treasury, nor any standing in court to attack a specific appropriation made to other parties.
The judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
114,
124,
-36,
-4,
26,
-96,
11,
16,
81,
-95,
-26,
83,
-23,
62,
-108,
121,
-29,
37,
80,
106,
-12,
-25,
7,
96,
-69,
-13,
-39,
-43,
-79,
92,
-52,
127,
12,
48,
-118,
-11,
102,
66,
73,
-108,
-114,
-87,
42,
-51,
-15,
0,
52,
11,
18,
75,
81,
-49,
-25,
36,
24,
87,
-23,
44,
89,
63,
-63,
-16,
-98,
-115,
93,
6,
-78,
34,
-104,
35,
-56,
46,
24,
17,
1,
-24,
123,
-90,
-126,
84,
13,
-119,
8,
98,
98,
-124,
101,
-17,
-100,
-120,
46,
-34,
-115,
-90,
84,
89,
2,
76,
-75,
31,
95,
20,
-122,
116,
-9,
-107,
95,
44,
1,
-118,
-44,
-89,
-81,
60,
-104,
86,
-49,
35,
50,
97,
-51,
-86,
92,
71,
118,
19,
-121,
-40
]
|
Tlie opinion of the court was delivered by
Johnston, J.
: On September 13, 1895, H. G. Chip-chase, the manager of the Missouri and Kansas Telephone Company at Wichita, was arrested for the violation of an ordinance of the city of Wichita imposing a license tax on telephones, and prescribing penalties for using them without complying with its requirements. The first section of the ordinance provides that any company, corporation or person engaged in the telephone business in the city of Wichita shall pay a license tax of $12 per annum upon each business ’phone, and a tax of $10 per annum for each residence ’phone, used in carrying on such business, and making it unlawful to carry on the business without having obtained from the city clerk a license therefor. The second section provides that if any company, corporation or person carries on the business without procuring a license they will forfeit the sum of $25 for each day that each ’phone is used or operated. The third section makes it an offense to carry on the business without paying the tax and procuring a license, and provides that any manager, agent, servant or employee of a company, corporation or person who shall violate the ordinance shall upon conviction be fined in any sum not exceeding $100. The telephone company of which Chipchase was the manager was engaged in the telephone business in Wichita, and it is alleged that the company had about 290 telephones in use within the corporate limits of the city. The company refused to pay the license tax or otherwise comply with the provisions of the ordinance, and, upon a complaint made, Chipchase was arrested under a warrant issued by the police judge of the city of Wichita. Upon the application of Chip-chase the writ of habeas corpus was issued. In the return of the city marshal he sets forth the fact that Chipchase is in his custody by virtue of a warrant duly issued as aforesaid, and also setting out a copy of the city ordinance under which the petitioner was prosecuted. Chipchase excepts to the sufficiency of the return and asks to be discharged from custody. It is insisted by the petitioner that the ordinance is void, first, because the license tax is unreasonable and excessive ; second, because it obstructs and places a burden upon interstate commerce ; third, because the instruments upon which the license taxes are assessed are covered by letters patent.
In the application for the writ are found allegations to the effect that the license tax imposed is grossly excessive, and that, as the business of the company extends beyond the limits of the state, the license tax amounts to a tax on interstate commerce. These and other averments of the application, however, are not admitted in the return to the writ, and they were denied by counsel for respondent at the hearing. The questions so well argued by counsel are therefore not ripe for decision, nor do any of the objections made afford grounds for the discharge of the petitioner. No issue was joined nor proof offered in the case. The averments of the application are not to be taken as true because they are not denied in the return. The return is not treated as an answer to the application, but rather as a response to the writ. The averments in the application are made for the purpose of obtaining the allowance of tlie writ, and it is not necessary that they should be answered or denied by the officer in his return to the writ. The statute prescribes what the return shall state, and in this instance it sets forth the cause of restraint, together with a written copy of the authority under which the petitioner is held, and appears to comply with the statutory requirement. (Civil Code, §668.) If the petitioner desires to controvert the return or any part thereof, or allege any new matter showing the restraint to be illegal, he may do so after the return is made. (Civil Code, § 669.) In this way an issue may be formed, and upon a hearing the disputed questions of fact may be settled. As the ordinance is included in the return, we may inquire and determine whether upon its face it is valid. Express authority has been given by the legislature to levy and collect license taxes upon all callings, trades, professions, and occupations, including telephone companies, within the limits of cities of the first class. (Gen. Stat. 1889, ¶" ¶ 555, 804.) In such cases it has been held that the municipality is not limited to the mere expense of regulation, but that they may be imposed for the purpose of obtaining revenue to meet the general expenses of the city. (Fretwell v. City of Troy, 18 Kan. 271; City of Newton v. Atchison, 31 id. 151; Tulloss v. City of Sedan, 31 id. 165 ; City of Cherokee v. Fox, 34 id. 16 ; City of Wyandotte v. Corrigan, 35 id. 21; City of Girard v. Bissell, 45 id. 66.) While the tax levied appears to be very large, we cannot say as a matter of law that it is excessive, nor can we without proof hold that it is oppressive or prohibitive. In Fretwell v. City of Troy, supra, it was said that “The mere amount of the tax does not prove its invalidity.” The city cannot impose a license tax beyond the necessities of the city, nor can it impose one so excessive as to prohibit or destroy the occupation or business. (City of Lyons v. Cooper, 39 Kan. 324.) Many things, however, enter into the determination of what constitutes a just and reasonable license tax, but as to the conditions existing in Wichita'we are not advised. There is the nature of the franchise or privileges enjoyed by the company within the city, the prices which it charges for the service given by it to its patrons, the amount of property tax, if any, paid by the company, the current expenses of the municipality, and the amount of its indebtedness. Without information upon these questions, the court cannot determine that a license tax of $12 per annum upon a business ’phone and $10 upon a residence ’phone is prohibitive, excessive, or oppressive. Habeas corpus may not be the most appropriate proceeding in which to determine the questions presented and discussed by counsel, but before we can decide them in this proceeding an issue must be joined, and the facts must either be established by proof or agreed upon by the parties.
The petitioner will be remanded.
All the Justices concurring. | [
-48,
-6,
-4,
-98,
10,
-32,
18,
-78,
27,
-79,
-90,
83,
73,
64,
5,
123,
82,
125,
-48,
123,
-9,
-73,
103,
98,
-54,
-5,
-39,
-43,
-79,
79,
-20,
-4,
72,
48,
-54,
-43,
38,
66,
77,
-36,
-50,
1,
9,
89,
121,
0,
36,
105,
114,
11,
113,
-115,
-77,
42,
28,
-61,
-87,
60,
-37,
-87,
-127,
-7,
-86,
-108,
124,
22,
19,
4,
-101,
-123,
-56,
44,
-104,
25,
8,
-24,
115,
-92,
-126,
116,
13,
-23,
13,
96,
98,
32,
-119,
-21,
-16,
-120,
46,
-46,
-99,
-89,
-108,
88,
2,
45,
-98,
-99,
100,
22,
7,
-2,
-1,
20,
23,
124,
9,
-98,
-12,
51,
-113,
118,
-122,
23,
-1,
-89,
50,
112,
-58,
-82,
94,
71,
114,
27,
-98,
-36
]
|
The opinion of the court was delivered by
Allen, J.
: The defendants were charged with burr glariously breaking and entering a hen-house, belonging to Jennie Johnson, and stealing therefrom 23 hens and 2 roosters. They pleaded guilty to petty larceny, but not guilty as to burglary. The jury found them guilty of both burglary in the second degree and petty larceny, and they were thereupon sentenced to confinement in the penitentiary for 30 days for the larceny, and five years for the burglary.
The principal complaint is of the admission of the testimony of witnesses narrating a conversation with the defendants, in which they admitted not only the stealing of Johnson’s chickens, but of chickens belonging to other persons, and a hatchet, at about the same time. It is claimed that the prosecution sought to convict the defendants of the crime of burglary in this case by proving the commission of other larcenies, and many authorities are cited to the effect that proof of offenses distinct from the one with which the defendants are*charged is inadmissible. This is, doubtless, the general rule, though it is subject to some exceptions not necessary now to state. But these conversations were admissible because they were the declarations of the defendants as to what they did on the night of the burglary, and their statements as to the larceny of other chickens were made in the same conversation, and in such manner that they could not well be disconnected from those with reference to the taking of Johnson’s chickens. The proof of the burglary depended to a considerable degree on the identity of the chickens taken, and whether they were taken from the hen-house or from the trees, as claimed by the defendants. But even if there had been error in the admission of this testimony it could not have been regarded as material, for the defendants themselves testified on the trial to stealing other chickens and the hatchet, substantially as they had stated in the conversation, which they now claim was improperly admitted in evidence.
It is contended that the proof of breaking and entering the hen-house is insufficient. The witness Johnson testified that the chickens were in the hen-house when he went to bed; that he had shut and . fastened the door with a hook and staple ; that in the morning, when he got up, he found the door shut, but not in the way he shut it; that some of the chickens were gone, and that he found 22 of his hens and one of his roosters in the possession of the defendants. He also testified that he put a nail in between the hook on the door and the board, so that if any .one opened it the nail would fall down, and that in the morning the nail was lying on the ground, and that the hook wasn’t down in the staple.
We think the jury had a perfect right to disbelieve the story of the defendants that they found the chickens in the trees, and to infer, from the testimony of Johnson with reference to the fastening of the door and the chickens being in the hen-house at night, and the conceded fact that the defendants got them, that they took them from the hen-house by unfastening the door and entering it, and not from the trees. The argument with reference to the habits of chickens in hot weather was doubtless urged on the consideration of the jury, and given due weight by them.
The final objection urged is that the defendants could not be lawfully sentenced to confinement in the penitentiary for petty larceny. But paragraph 2201 of the General Statutes of 1889 provides that, if a person in committing burglary also commit larceny, he shall be punished by confinement and hard labor not exceeding five years, in addition to the punishment for the burglary.
The judgment is affirmed.
All the Justices concurring. | [
113,
-8,
-3,
-65,
42,
96,
42,
-104,
66,
-119,
34,
-37,
-31,
-45,
4,
97,
-77,
93,
84,
97,
-60,
-73,
51,
-31,
-78,
-5,
-77,
-44,
-69,
75,
-19,
127,
76,
52,
-62,
93,
-26,
-54,
-61,
84,
-118,
47,
-72,
-53,
-28,
82,
52,
57,
-76,
15,
-91,
-97,
-29,
42,
30,
-41,
41,
40,
75,
61,
80,
-7,
-66,
-115,
79,
22,
-78,
38,
-104,
7,
-6,
110,
-108,
49,
3,
-24,
115,
-108,
-126,
92,
79,
-119,
13,
34,
102,
0,
109,
-53,
40,
-55,
46,
103,
-115,
-89,
-104,
64,
75,
32,
-66,
-99,
116,
80,
38,
122,
-25,
77,
61,
100,
1,
-97,
-108,
-109,
-51,
40,
-100,
-16,
-29,
39,
17,
113,
-59,
-94,
92,
117,
112,
-101,
-114,
-15
]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.