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The opinion of the court was delivered by
Johnston, J.
: A question of jurisdiction has been presented, based on what is alleged to be the absence of necessary parties. It is contended that the presence of L. R. Staudenmayer, jr., and Anna M. Drury is necessary to a review of the case, and that their absence compels a dismissal. Although no personal judgment was sought against U. R. Staudenmayer, jr., the court for some reason rendered a joint judgment against him and his father, who is designated as “Doctor Staudenmayer,” for $2,965.79, and it is therefore clear that he is a necessary party to the proceeding. He was not served with summons, nor was a formal entry of appearance made in his behalf until more than a year after the final judgment was rendered. It appears, however, that the case-made was served upon him as the law requires, and that in good time his attorneys executed a written waiver of summons and delivered the same to the attorney of plaintiffs in error, who forwarded the same to the clerk of the supreme court. If it was ever received, it cannot be found among the records of the court. Under these circumstances we think he was a party to the proceeding from the beginning.
Anna M. Drury was a party to the notes and mortgage decreed to be' canceled, and although Doctor Staudenmayer sought to recover a judgment against her upon the notes, the judgment of the court was that she be discharged from all liability on both notes and mortgage. If she was a party in the district court, her presence here is undoubtedly necessary to a review. She was not mentioned as a party in the title to any of the pleadings in the case, nor was there any order of the court obtained expressly directing or allowing her to become a party. When Doctor Staudenmayer set up the Drury notes and mortgage he asked that she be made a party, and in the reply, which was filed a few days later, there is the following language : “Further replying herein, these plaintiffs, and said Anna M. Drury joining herein, and as the wife of said R. B. Drury, having no other interest in the subject-matter thereof, say,” etc. The counsel signed this pleading as “plaintiffs’ attorneys.” In the judgment, the court adjudges the annulment of “the three several notes executed by the plaintiffs R. B. Drury and Anna M. Drury,” which were secured by by a mortgage ; “ that the said notes, and each thereof, and the said mortgage, each as the obligation of the said defendants R. B. Drury and Anna M. Drury, as also any liability on account thereof of the other defendants, C. J. Drury and Robert McCrie, be canceled.” The majority of the court are of the opinion that, as no leave was obtained from the court to make her a party, and that as she did not sign any of the pleadings as plaintiff or defendant, and no attorney expressly signed for her, she cannot be regarded as a party in the trial court, and therefore her presence is not necessary here. It is the view of the writer that, when she was joined in the reply with plaintiffs, she became a party plaintiff, and that the attorneys who signed the reply signed for her as well as the others. From that time the parties appear to have proceeded upon the theory that she was a party, and certainly she was regarded to be a party by the court when he relieved her from any liability upon the notes and mortgage, and canceled them. It follows, from the holding of the majority of the court, that the motion to dismiss the proceeding cannot be sustained.
This brings us to the merits of the case, and we are all united in the opinion that the testimony does not sustain the findings and judgment of the court. The rescission was sought on the ground of the representations of Doctor Staudenmayer that the Courtney debt had been paid, and that the mortgage given to secure the same was no longer a lien upon the property. It appears that the representations were not in fact false, and we fail to see that an actual fraud was practiced upon the purchasers. The transaction was had at a time when there was an active demand for real estate, and during what is characterized by the parties as the “Atchison boom.” While it lasted, prices of land and lots in and about Atchison were greatly inflated, and the purchasers desired to obtain the land in question to subdivide and sell the same out in small parcels for profit. R. B. Drury went to North Carolina and found Doctor Staudenmayer and purchased his interest in the property for $15,300. The history of the transaction shows that they were eager to obtain the land, and gave the price asked by the doctor with little hesitation. L. R. Staudenmayer, jr., who owned the remaining interest in the property, was in South Carolina, and it is said that the doctor encouraged Drury to believe that his son would sell the remaining interest to him. Before the transfer was made, however, Drury visited the son in South Carolina, who told Drury that he would not sell his interest to him, and that his father was mentally incapable of making a contract or transfer of his interest. Notwithstanding this denial and protest Drury purchased the land, paying $2,500 in cash, and for the balance of the purchase-money gave three separate notes of $4,266.66f each, signed by himself and his wife, and secured by a mortgage on the real estate purchased. According to the testimony, when Drury purchased the property the mortgage stood as an incumbrance on the record title, and, besides, he had actual knowledge of that fact. He concedes that he called the attention of Doctor Staudenmayer to the incumbrance during the first negotiations, but the doctor told him it had been paid, and should have been discharged. The doctor insisted then, as he has since that ’time, both in and out of court, that the debt had been paid, and that no lien actually existed against the land. With full knowledge of the unsatisfied mortgage, Drury purchased the property, and it is difficult to see from the testimony in this record that the purchase was induced by deception or fraud. The representation said to have been made by the doctor, that he would induce the son to sell his interest, cannot weigh much in this controversy, for the reason that the plaintiffs were well advised before the transfer that the son would not sell his interest, nor consent to a sale of the interest held by the father. The first negotiation for the land was on April 27, 1887, and the purchase-money was not paid, nor the deeds and mortgages exchanged, until May 6, 1887, when R. B. Drury went to North Carolina and personally attended to the transfer. It does not appear that when the transfer was made Drury demanded or asked for a written receipt of the payment of the money, nor did he demand the production of a written discharge of the incumbrance. About two months afterward the purchasers began their action for partition of the property. Soon after the commencement of that proceeding Maria L. Courtney came into the case, and set up the mortgage of 1858, claiming that it was an incumbrance upon the property, and asking for a foreclosure of the same. The mortgage was resisted alike by Doctor Staudenmayer as well as the purchasers, each alleging that it had been paid and satisfied. Notwithstanding this claim and the open manner in which it was made, no charge of fraud was made against Doctor Staudenmayer, nor was rescission asked for by the purchasers until March 27,1890, when the' amended and supplemental petition was filed. Although the controversy in the litigation had continued for nearly three years, and although the purchasers appear to have possessed full knowledge of the situation, no complaint had been previously made that the purchase was induced by misrepresentations. The facts that partition was delayed and the litigation concerning the same protracted afford no grounds for rescission. The rule is, that the right to disaffirm a contract for fraud must be exercised promptly after its discovery. (Bell v. Keepers, 39 Kan. 105.)
We are inclined to the view that the testimony fails to show that the purchasers were misled or induced to purchase by reason of the false representation of any material fact. A rescission of the con-tract and the cancellation of the conveyanees is an extraordinary power of equity, and should not be exercised unless it is clearly established that the representations were false or fraudulent, and that they were relied on by the purchasers. It appears that the statements of Doctor Staudenmayer with respect to the payment and satisfaction of the Courtney mortgage were in fact true. He asserted it to the purchasers, alleged it in his pleadings, and it has been established by a judgment of the trial court which has just been affirmed in this court. The findings of the court respecting the Courtney debt and mortgage are strangely inconsistent, and are another reason why the judgment should be set aside. Special findings of fact and of law were made in the trial of the issue respecting the Courtney debt and mortgage, and they are embraced in the record of this proceeding. In the first the court held that the debt was paid and the lien discharged, while in the second set of findings, upon another issue in the same case and sub stantially upon the ' same testimeny, the court, in effect, found that the mortgage debt had not been paid. This was one of the controlling considerations in the judgment of rescission. It may be remarked here that the court found that on July 8, 1887, R. B. Drury received one-half of an award of damages allowed for the establishment of a highway over the land, in the sum of $75, and on April 12, 1888, he received one-half of an award of $50 for the establishment of another highway over the same land. Taking the testimony of the admitted knowledge of the parties with respect to the incumbrance, their conduct in the negotiations and the litigation, and the long delay in asserting that the purchase was induced by misrepresentation and fraud, we think the testimony fails to show any grounds for rescission, and that the findings and judgment are unsupported by the testimony.
The judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J.
: I. It is strongly urged by counsel for defendant that the court erred in refusing to grant a continuance on account of his sickness and disability. The embarrassing and delicate duty of passing upon the defendant's physical and mental condition was devolved upon the court. The proceedings ivere very unusual, but we cannot say that they were not justified by the situation, the good faith of the application for a continuance being challenged by the state. In The State v. Rhea, 25 Kan. 576, 579, it was declared that
“Continuances are largely within the discretion of the trial court; and, before error can be affirmed, it must be shown that such discretion has been abused. It is not enough that conditions and circumstances are shown which would justify a postponement; there must be those which compel such postponement. Any uncertainty or doubt in this respect must be resolved in favor of the ruling below. Abuse of discretion is never presumed; it must be proved.”
See, also, Cushenberry v. McMurray, 27 Kan. 328 ; Krapp v. Hauer, 38 id. 430 ; and Harlow v. Warren, 38 id. 480, where applications were made for continuances on the ground of the sickness of a party. In Hottenstein v. Conrad, 9 Kan. 435, 440, 441, it was held that whatever fact a court may inquire into on a motion it can also determine, and its determination establishes the fact for all the purposes of the motion. Upon the record, we cannot say that the court erred in its conclusion, nor that it abused its discretion in refusing to grant a continuance.
II. It is insisted that the court erred in admitting testimony over the defendant's objections. The prosecution offered to introduce in evidence some statements made by the defendant on the first trial by selecting and reading portions only of what was claimed to be his testimony, as shown on certain designated pages of the bill of exceptions. To this his counsel Objected that a part of such former testimony could not be introduced against him, but that it must all go to the jury, and the court took this view of the case ; and counsel for the state then proceeded, under protest, to read it all from the bill of exceptions transcribed from the stenographer’s notes. The defendant then interposed the general objection that the testimony was incompetent, irrelevant, and immaterial. The attorney for the state thereupon inquired of counsel for the defendant if he would admit that he was reading from the bill of exceptions filed by the defendant in the former trial, and counsel responded in the affirmative, but said that he still objected to the evidence as incompetent, irrelevant, and immaterial, which objection was overruled; and it is then stated in the record that counsel “reads to the jury the following testimony of G. W. Rogers, which is in words and figures as follows, to wit.” And apparently all the testimony of the defendant on the former trial was here read to the jury. Doubtless, the testimony of a defendant in a criminal case in his own behalf on a former trial or examination may be offered in evidence against him, and the state is not required to read the whole of his testimony; but if that which is offered relates to any particular subject or fact, then all bearing on that subject or fact should be placed before the jury. (The State v. Sorter, 52 Kan. 531, 540.) But the defendant had the benefit of the objection against the reading of a part only. The general objection made, however, by the defendant was not obviated by that circumstance. The regular method of introduction of such evidence is to call the stenographer who transcribed the testimony from his notes, or some other person who heard the witness testify and knows that the bill of exceptions contains a correct statement of what he said from the witness-stand, as in Solomon Rld. Co. v. Jones, 34 Kan. 443, 460. But where it is admitted, as in this case, that the document produced is the bill of exceptions filed by the defendant in the former trial, and the record shows that counsel for the state reads to the jury the testimony of the defendant, any further identification of the testimony is unnecessary.
It was the theory of the prosecution that the crime was conceived by the defendant, and that he induced George H. Shirley to manage the destruction of the records, and that Shirley employed Harris, English, and Riffle, three professional burglars, to do the work. G. 0. Smith was -working in Matthews’ restaurant, which kept open day and night, and which Shirley often frequented in the night season ; and Smith was called as a witness to testify to Shirley’s conduct at the restaurant early in the morning that the offense was committed. The objection made to this testimony is that the crime had already been committed, and that evidence of Shirley’s conduct thereafter was inadmissible against his codefendant, who was being tried separately; but the record shows that the peculiar conduct of Shirley testified to by the witness was about four o’clock in •the morning, and this is just about the time that the professional housebreakers were engaged in their desperate business. The defendant also complains of the admission of the testimony of Thomas Carroll, who had been solicited by Shirley to assist him in destroying the records. It is said that there was no proof that any conspiracy had been formed at that time to which Rogers was a party. He testified that Shirley said he would see his partner, and it is claimed that this was inadmissible for the purpose of showing that a conspiracy then existed. It is true that such testimony would not be admissible for that purpose, but evidence was given on the trial tending to show that the conspiracy between the defendant and Shirley was formed before that time. The testimony of the witness H. W. Black, as to a conversation with Shirley at Wichita, wherein Shirley inquired if he knew where he could “get a man to do some dirty work,” is complained of, but it was admissible for the reasons above indicated; and these objections to the testimony of Smith, Carroll and Black were substantially disposed of when the case was here before.
III. The next complaint respects the giving* and refusal of instructions. No. 24, as given, reads as follows :
“You are instructed that, before you are warranted in finding the defendant guilty, each of you must be able to truthfully and conscientiously say that his guilt has been established by the evidence in the case beyond reasonable doubt; and if, after a consideration of the whole case and consulting with your fellow jurymen, any one of the jurors entertains a reasonable doubt as to whether defendant’s guilt has been established, you cannot convict the defendant; but you cannot acquit the defendant unless all the jurors entertain a reasonable doubt.”
The last clause is severely criticised, counsel saying that this would compel a person charged with the commission of an offense, in order to secure an acquittal, to establish a reasonable doubt of his guilt in the mind of each juror; and they asked an instruction to the effect that if a single juror entertained a reasonable doubt, then the defendant must be acquitted. That the instruction asked was erroneous is settled by the case of The State v. Witt, 34 Kan. 488, and we can conceive of no valid objection to the instruction as given, and this notwithstanding the case of Stitz v. The State, 104 Ind. 359, 362. In that case the court below instructed the jury that “ while each juror must be satisfied of the defendant’s guilt beyond a reasonable doubt to authorize a conviction, such reasonable doubt, unless entertained by all the jurors, does not warrant an acquittal ’ ’ ; and the Indiana supreme court concludes, from a process of reasoning incomprehensible to us, that “this must have induced the jurors to think that, unless all concurred in entertaining a reasonable doubt, the verdict should be against the defendant.” We cannot see that it meant anything more than that the verdict, either of conviction or acquittal in a criminal case, must be the result of the concurrence or running together of the minds of all the jurors. If the minds of the jurors do not so concur, there must be a disagreement. But it is hardly necessary to instruct an American jury touching their right to disagree, for this is universally understood. Some of the other instructions given are criticised, it being said that the court assumed the guilt of Shirley, which • was a step necessary to establish the guilt of the defendant; but we do not think that the language of the court is subject to this construction. And there was no error in the instruction that, in determining the weight and credibility of the evidence of the defendant, they should consider his motives and his testimony the same as the other witnesses. If the instruction had singled out his motives alone, perhaps the word ‘ ‘ may ’ ’ ought to have been used rather than ‘ ‘ should ’ ’ ; but when the defendant was referred to only as one of the witnesses, and his motives were spoken of in the same connection, we cannot say that the language used was erroneous or prejudicial. The defendant asked certain instructions to the effect that, if the facts and circumstances relied upon by the state to establish guilt could be reasonably explained upon the theory of the guilt of some person other than the defendant, then he must be acquitted. This would have been error prejudicial to the state, for the proof of the guilt of Harris, English, Riffle and Shirley was much more direct and positive than the evidence of the guilt of the defendant; and it was necessary to prove their guilt before that of the defendant could be established. This, however, would constitute no good reason for the defendant’s acquittal. Another instruction asked was upon the force of circumstantial evidence, and embodied the proposition that, in order to authorize a conviction, all the circumstances must be consistent with each other. Minor circumstances may be in evidence which are inconsistent with each other, and yet, if the jury can say upon the evidence that all the circumstances are consistent with the defendant’s guilt, and inconsistent with any other rational conclusion, a jury may be warranted in returning a verdict of guilty. There was no material error in the giving or refusing of instructions, which seem to have been drawn carefully, with a view to the protection of all the rights of the defendant.
IV. The practice of calling in a jury and lecturing them upon the desirability of an agreement, although obtaining to a considerable extent in this state, is not to be commended. Jurors very generally understand the importance of agreement, and the inconveuience and expense of another trial. It is presumable that, in their arguments pro and con for many hours together, they chide each other sufficiently, and they ought not to be visited with a scolding by the court because differences of opinion still remain. In this case, however, the oral remarks of the court seem to have had no immediate or early effect, for there was no verdict until the next day ; and upon considering the language of the court, we cannot see enough in the remarks to induce us to believe that they were efficacious in producing an agreement. The language is compared with that used in The State v. Bybee, 17 Kan. 462, 464, 465, but there is little resemblance ; and under the circumstances of this case we would not feel warranted in ordering a reversal, as the retnarks contain nothing in the nature of instructions, unless at the close, and this was at most but a harmless repetition.
V. It is argued that the conviction was erroneous and illegal, because the term at which the trial commenced ended by operation of law, and another term commenced in Harvey county on May 21,1895. It was held in In re Millington, 24 Kan. 214, that courts cannot be legally held at the same time in two counties of the same judicial district. But the district court of one county is not prohibited from adjourning to a time beyond the regular term in another county of the same district; (The State v. Montgomery, 8 Kan. 351, 356;) and in The State v. Palmer, 40 id. 474, 478, the court in one county was adjourned to a time one day subsequent to the commencement of the term in another county of the same district, which latter term was on the first day adjourned to a time beyond the adjourned term of the former county ; and this practice was held proper. This case would be exactly in point here if the oral statement of the trial judge should be taken as evidence, but this is objected to. We hold, however, that, in the absence of any showing that the court was held in Harvey county on May 22 and the following days of the trial of this case, the defendant’s objection to the regularity of the term cannot be sustained.
YI. It is said that the court erred in failing to admonish the jury on the adjournment of Saturday, May 25, as required by statute. The record does not affirmatively show whether the admonition was given or not; and the presumption, in the absence of anything in the record, is that the court discharged its duty in admonishing the jury before they were allowed to separate. (Linton v. Housh, 4 Kan. 535, 539 ; The State v. Palmer, supra.)
We find no substantial error in the record prejudicial to the defendant, and the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
I. The principal contention of the plaintiff in error is, that it was the duty of the deceased, Hinds, to stop before attempting to cross the railroad track, under all the circumstances of the case. It is admitted on both sides that the track on which the train was approaching was completely obscured by the rank growth of sunflowers from the view of a traveler approaching on the highway, and that a very high wind was blowing atthe time, which rendered it difficult to hear. Under these circumstances, it is contended that the court should declare, as a matter of law, that it was the duty of the deceased to stop, and that, having failed to dp so, he was guilty of contributory negligence barring a recovery. It would serve no purpose to review the authorities from other states cited in support of this contention. Under the prior decisions of this court, it was a question to be determi/iied by the jury under proper instructions. (A. T. & S. F. Rld. Co. v. Morgan, 43 Kan. 1; A. T. & S. F. Rld. Co. v. Hague, 54 id. 284 ; C. R. I. & P. Rly. Co. v. Williams, ante, p. 333; A. T. & S. F. Rld. Co. v. Shaw, ante, p. 519, 43 Pac. Rep. 1129.)
The jury find that the train which caused the death of Hinds was running at the rate of 30 miles an hour. It is not shown that such warnings by sounding the whistle, ringing the bell, or both, were given, as the state of the weather, the surroundings of the crossing and the speed of the train rendered necessary, or that Hinds could not have heard such signals in time to avoid injury if they had been duly given. In order that we may declare that it was negligence, as a matter of law, for him to fail to stop, there must be an evident necessity under the circumstances that he should stop, and this must be made so certain that the minds of reasonable men would not differ in regard to it. A reasonable man would hardly expect to meet a train running backward past a depot at so high a rate of speed, where the track was obscured, without any warning of its approach.
II. The tenth instruction, imposing the burden of proof of contributory negligence on the defendant, is criticized, because it is claimed that contributory negligence was shown by the evidence on behalf of the plaintiffs. The rule of law declared by the court is well settled. (K. P. Rly. Co. v. Pointer, 14 Kan. 37 ; K. C. L. & S. Rld. Co. v. Phillibert, 25 id. 582; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 412; Mo. Pac. Rly. Co. v. McCally, 41 id. 639.) The instruction criticized does not state in terms that in determining this question the jury may not consider evidence offered by the plaintiffs tending to show contributory negligence, and by other instructions the jury were plainly told
that if the deceased was guilty of negligence the plaintiffs could not recover, and that they were to determine this question from all the evidence in the case. The sixth instruction is a correct statement as to the duty of the company in operating its trains, when it suffers the view of its track from the public highway to be obstructed. It is not open to the objection that it declares the railway company liable absolutely where it permits such obstruction, if the party injured exercises ordinary care. The instruction is rather an abstract statement of the duty of the company under such circumstances than a direct application of the law to the case under consideration. It cannot be doubted that when a railway company negligently permits a growth of sunflowers on its depot grounds, which obstructs the view of persons approaching the track on the public highway, it then becomes its duty in operating its trains to use such precautions that a traveler on the highway may by the use of ordinary care cross the track in safety. But, of course, the plaintiffs who seek to recover damages can only do so on the ground that the railway company has been negligent in some particular, and that that negligence wás the proximate cause of the death of ITinds. The other instructions given by the court wrere very full, clear, and fair, and there is noth ing in this one which could have misled the jury, when taken in connection with the rest.
III. The ninth instruction is a correct statement of the law, and is applicable to the facts in this case. It is true that there was uncontradicted evidence that the deceased looked to see whether there was a train approaching, and that there was therefore no occasion for resorting to a presumption on that point, biR the instruction could not possibly have harmed t/he defendant in that particular. There was no evidence whether the deceased listened or not, for there was no person in a position to know that fact. As to this matter, the instruction with reference to the presumption was applicable and right. Ordinary negligence is the want of ordinary care, and ordinary care is such care as people of ordinary prudence usually exercise under like circumstances. The very definition of ordinary care implies a presumption that it will usually be exercised. It is because people ordinarily, in crossing a railroad track, look and listen for their own protection that a failure to do so is held to be negligence. It can never be presumed, in the absence of evidence, that a person fails to do that which people ordinarily do to avoid injury. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586.) There was no error in refusing the eighth instruction. For the reasons stated in considering the other assignments of error, the court did not err in refusing to enter j udgment in favor of the defendant on the special findings, nor in refusing the motion for a new trial.
The judgment is affirmed.
All the Justices concuiTing. | [
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The opinion of the court was delivered by
Maktin, C. J. : I. The railroad company takes the position that James F. Briggs, as administrator of the estate of Mrs. R. B. Fitch, deceased, could not acquire title to said lot, and therefore had no right to appeal. Authorities are cited upon the point that an executor or administrator cannot, either directly or indirectly, purchase the real estate of his decedent which he has been ordered by the probate court to sell. This is forbidden as well by public policy as the express terms of section 132 of the act respecting executors and administrators. (Oh. 37, Gen. Stat. 1889.) But this was land of the Aults, subject to a mortgage lien upon which it was the duty of the administrator to realize for the benefit of the estate, and no consideration of public policy forbade him from taking in the land toward the payment of the indebtedness, especially if it could not be sold for cash. Of course, the administrator is bound to account in the probate court to the heirs of Mrs. Fitch and the creditors of her estate for this land, to which he holds the title only in his representative capacity. The deed was valid, and passed the title to him. ( Valentine v. Belden, 20 Hun, 537, 541, 542; Lockman v. Reilly, 95 N. Y. 64, 71; Stevenson v. Polk, 71 Iowa, 279, 290, 291.)
II. It seems a hard case when a railroad company is required to pay the value of improvements which it has placed upon a strip of ground occupied as a right of way, but it is a familiar principle that on a mortgage sale the title of the purchaser relates back to the execution of the mortgage, and cuts off intervening rights and equities acquired from the mortgagor by purchase ; and this is applicable to alllandowners alike. The decree of June 4, 1891, followed by the sheriff's deed executed in iDursuance thereof, divested the railroad company of its title, and "forever barred, foreclosed, enjoined ” and cut it off "from claiming any interest or estate in or to the real estate, or any part thereof.” Unless, therefore, we may judicially declare that these buildings and structures were not and are not real estate, we must hold that they passed by the sheriff’s deed to the purchaser at his sale. Attention has been called to the fact that for the purposes of taxation such improvements are treated as personal property, but this applies as well to the lands occupied for right of way, depot grounds, and otherwise for the convenient and daily operation of the road. (Ch. 107, art. 7, Gen. Stat. 1889.) Whether railway property be treated as real or personal, however, for purposes of taxation, is a mere matter of convenience, and does not have the effect of transforming the one into the other. If the right of possession of a crowbar or a lifting-jack used by the railroad company should be in dispute, the proper form of action to settle it would be replevin; but if the right to occupy a strip of land for its road, or a lot for dei30t grounds, were in controversy, it would be necessary to resort to an action of ejectment for the determination of the question. These structures were real property. What right, if any; the company would have had prior to the foreclosure sale to remove them, or to obtain a condemnation without paying their value, is not involved in this case. (For some authorities on this subject, see Cohen v. St. L. Ft. S. & W. Rld. Co., 34 Kan. 158.) Before the company instituted its condemnation proceeding on November 20, 1890, it had been cut off and barred from claiming any interest in said lot 3, which included these structures; and the act of March 2, 1889, was in force, expressly prohibiting the removal of buildings from mortgaged premises without written permission. (Gen. Stat. 1889, ¶¶3900, 3901, 3902.)
The judgment will therefore be reversed and the cause remanded, with directions to allow the plaintiff the sum of $3,104 as an award of damages upon condemnation, to be paid within a short time, to be fixed by the court, together with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Six, J.:
This is a tort claims act “failure to warn” personal injury case. The result in the trial court was summary judgment for both defendants.
Russell Howard Collins sued the Board of Douglas County Commissioners (the Board) and Douglas County (County) and Wakarusa Township (Township) for personal injuries resulting from his dive off a low-water bridge.
The issues for resolution require our interpretation of a bridge maintenance statute, K.S.A. 68-1104, and our analysis of the discretionary function and signing exceptions to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6104(e), (h).
We ground our summary judgment affirmance (1) for the Township upon K.S.A. 68-1104 as the Township had no bridge maintenance responsibility, and (2) for the County upon K.S.A. 75-6104(e) and (h), as the posting of either “no diving” or “shallow depth” signs or the installation of a depth gauge indicator was discretionary.
Our jurisdiction is under a K.S.A. 20-3018(c) transfer to this court.
Facts
Collins dove into a rural creek from a low-water bridge located on a Wakarusa Township road in Douglas County. He broke his neck, resulting in quadriplegia. Collins alleged in his petition that the Township and the County had knowledge that the creek was used by local residents as a swimming area. He also asserted that the Township and County had altered the depth of the creek bed by dumping rock into the creek at the location of his dive. Collins contended that the Township and County were negligent in failing to warn of the dangerous condition of the “swimming area” by not posting either a “no diving” or a “shallow depth” sign, or by not installing a depth gauge or indicator. Collins filed an amended petition asserting gross and wanton conduct.
Collins’ Contentions
Collins asserted that on prior occasions he had been swimming in the creek and that the water had been over his head. Collins furthered asserted that the. Township and the County: (1) knew that the creek area where he was injured had been used frequently as a “swimming hole” and (2) dumped rocks and/or other debris in the creek, changing the depth to approximately three feet. To support his assertions, Collins attached an affidavit of Dave Hill, an insurance adjuster assigned to investigate the accident. Hill stated that he was told by Roger Barnes, the Township foreman, that people swam in the creek and that the County dumped rocks in the creek where the accident occurred.
Collins advanced the additional contention that there are manuals and written guidelines for construction, maintenance, and repair of low-water bridges and waterways and for control of waterway erosion. Collins referenced his supplement to his designation of expert witnesses in support of his written guideline assertion. In his expert witness supplement, Collins stated that Dr. David Parr was expected to testify that such manuals and guidelines exist and that failure to follow the manuals and guidelines was gross and wanton negligence.
Collins reasons that (1) the act of placing signs at the bridge was not discretionary; consequently, there is no immunity under the KTCA; (2) K.S.A. 8-2003 adopts the Manual on Uniform Traffic Control Devices (MUTCD), thus establishing a statutory duty and written guidelines for the placement of warning signs; and (3) once the Township and the County voluntarily undertook the inspection, repair, and maintenance of the creek area, the tasks were ministerial and consequently unprotected by the KTCA discretionary function exception.
The County’s Contentions
The County filed a motion for summary judgment, contending that the decision to place either a warning sign or a depth indicator is discretionary; therefore, it is immune from liability under the KTCA, K.S.A. 75-6104(e) and (h).
The County asserts that there are no manuals, written guidelines, or objective standards to assist the decisionmaker in determining whether to place a warning sign or indicator at the bridge. The County supported its reasoning with affidavits of two county officials: Frank Hempen, Director of Public Works/County Engineer, and Pamela Madl, Director of Personnel and Risk Management.
The County also emphasizes that Collins presented no specific manuals or guidelines regarding the posting of warning signs. The MUTCD, the County contends, does not address the placement of warning signs under the circumstances of the case at bar. The County submitted an additional affidavit of Hill stating that Barnes did not specifically indicate where rocks were dumped but that Hill had assumed rocks were dumped in the creek where Collins dove. The County also referenced the deposition of Hempen, who testified that he had no knowledge of the county dumping rocks in the creek at the low-water bridge and, if the County had dumped there, he would have known about it.
The County also relied upon the deposition testimony of Dean Harvey and Barnes, who are primarily responsible for road and bridge maintenance in the Township. According to Harvey, the Township dumped rocks and dirt 500 feet away from the low-water bridge on the edge of the creek along the road to prevent the road from eroding. Harvey was not aware of the County dumping rocks in the creek. Barnes testified that he did not know anything about the County or the Township dumping rocks in the creek. Barnes denied telling Hill that the County had dumped rocks and debris in the creek.
The County also argued that (1) it had no duty to warn Collins not to dive or swim; (2) it was unaware that anyone would dive or swim in the creek; and (3) Collins was a trespasser or, in the alternative, a licensee. Consequently, the County only owed Collins a duty to refrain from willfully or wantonly injuring him. The County claimed that there is no evidence of willful and wanton conduct.
The County attempted to refute the allegation that it had knowledge of people swimming in the creek at the low-water bridge site. The County referenced the depositions of Hempen, Harvey, and Barnes. Hempen testified that he had never seen anyone swim or fish at the area in question. Harvey denied knowledge that people were using the area for swimming. Barnes stated that he had seen people fishing and wading around the bridge area. He denied ever having told anyone that he knew people were swimming in the area.
The Township’s Contentions
The Township contended, with reference to the creek bed where Collins was injured, that it had knowledge of neither swimming nor the dumping of rocks or debris. The Township admitted placing large rocks along the road at a spot 500 feet away from the low-water bridge.
The Township argues: (1) It did not exert any control over the bridge (all control over county bridges, including signage, is delegated to the County); (2) it is immune from liability under the recreational use exception to the KTCA, K.S.A. 75-6104(o); (3) it is immune from liability because the decision to place a warning sign is discretionary; (4) it had no duty to place a warning sign because Collins was a trespasser, or in the alternative, a licensee; and (5) K.S.A. 8-2003 and the MUTCD relate to traffic control, not to individuals diving off a low-water bridge.
The Trial Court’s Ruling
The trial court granted summary judgment to defendants, observing that our Rule 141(b) (1990 Kan. Ct. R. Annot. 110) “requires that a party opposing a motion for summary judgment present evidence setting forth the facts and conditions upon which it relies with specific reference to the discovery documents.” Because no transcripts were furnished, the trial court had to rely on documents in the record and attachments to the motions and responses in making its findings.
The trial court stated the following facts were either uncontroverted or interpreted in the light most favorable to Collins:
“a. On July 11, 1987, Plaintiff [Collins] dove off a low-water bridge on a Wakarusa Township road into Washington Creek, striking his head on objects beneath the surface of the water. As a direct result, Plaintiffs neck was broken and he is now a quadriplegic.
“b. Defendant, Douglas County, regularly inspected, maintained and repaired the bridge where Plaintiff was injured.
“c. Defendant, Wakarusa Township, placed large rocks on the edge of the creek along the road at a spot five hundred feet away from the low-water bridge as a means of erosion control.
“d. The Township and/or the County dumped rocks into the pool area where the accident occurred. Although it is confusing from the record what exactly occurred, there is a hearsay affidavit which the Court is considering in the light most favorable to the Plaintiff in making this finding.
“e. The foreman of the Wakarusa Township Road Department supervised the maintenance work done on the road where this accident occurred, drove this road regularly, and observed people swimming in the area on numerous occasions.
“f. All dumping of rocks was done in an effort to keep the area from washing out or eroding during the high water times.
“g. There is no evidence in the record to show that the dumping of the rocks resulted in an inappropriate depth in the creek at the time of Plaintiffs injury.”
The trial court found that (1) there was no evidence that either the Township or the County raised or lowered the water level by dumping rocks; (2) Collins failed to show that if the dumping of rocks raised or lowered the water level, such dumping caused his injuries; (3) the County was immune under the KTCA because the posting of signs was discretionary under the facts of the case; (4) the Township had no responsibility or authority to exercise discretion to place signs on the bridge and, even if if did have such authority, it would be immune because placing such signs is discretionary; and (5) assuming the area was intended or permitted to be used for recreational purposes, which the trial court did not find, there was no evidence of gross and wanton negligence.
Summary Judgment
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).
On appeal, we apply the rule that where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. McGee v. Chalfant, 248 Kan. 434, Syl. ¶ 1, 806 P.2d 980 (1991).
We have also emphasized the responsibility of a party opposing summary judgment to take steps to provide evidence by way of deposition or affidavits or, if necessary, to request time to make additional discovery. The nonmoving party cannot rely solely upon the pleadings and allegations. The nonmoving party must come forward in opposition with something of evidentiary value. Willard v. City of Kansas City, 235 Kan. 655, 657, 681 P.2d 1067 (1984).
K.S.A. 1990 Supp. 60-256(e) states in part:
“When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
Our summary judgment Rule 141 requires the supporting documentation for contentions of fact to be “contained in the court file and otherwise included in the record.” (1991 Kan. Ct. R. Annot. 117.)
Bridge Maintenance — K.S.A. 68-1104
The construction and maintenance of county bridges are governed by the plain language of K.S.A. 68-1104:
“The board of county commissioners shall construct, reconstruct, repair and maintain all county bridges and county culverts located on county roads and township roads .... All township culverts shall be constructed, reconstructed, repaired and maintained by the township .... [A]ll approaches to culverts and bridges on township roads shall be constructed, reconstructed and maintained by the township.”
The trial court found that the Township had no responsibility or authority to place warning signs on the bridge.
Collins contends that K.S.A. 68-1104 gives joint and several responsibility to the Township and the County for the area in question. First, Collins states that his injury began on a county culvert and ended in the creek, which qualifies as an approach to a culvert. K.S.A. 68-1104 places responsibility for maintenance of county bridges and culverts on the county, and the responsibility for maintenance of “approaches to culverts” of township roads on the township. Second, Collins contends there is a factual dispute as to whether the culvert is a county culvert or a township culvert for which the County assumed the maintenance tasks for the Township. If the latter is true, Collins claims the Township may not delegate its responsibility.
The Township reasons that K.S.A. 68-1104 unambiguously places responsibility for maintenance of the low-water bridge on the County and responsibility for maintenance of township culverts and approaches to bridges and culverts on the Township. We agree. If the culvert contained in the county bridge is construed to be a township culvert, as suggested by Collins, the statute would give control of the structure to two entities. The Township asserts it should be presumed that the legislature intended to give exclusive control of the structure to one entity.
K.S.A. 68-1101 defines “bridge” and “culvert” as follows:
“(1) The word ‘bridge’ shall mean a structure having a clear span of more than twenty (20) feet, measured along the center line of the road between the inside faces of end supports, and multiple-span structures where the sum of the individual clear spans plus the aggregate width of the intermediate support or supports is in excess of twenty (20) feet;
“(2) the word ‘culvert’ shall mean any waterway structure not defined as a bridge.”
The legislature did not intend to place joint responsibility for the low-water bridge or culvert on the County and the Township. The low-water bridge is either a county bridge, a county culvert, or a township culvert. If it is a county bridge or culvert, the County has sole responsibility for its maintenance. If it is a township culvert, the Township has sole responsibility for its maintenance.
The record contains no measurements or expert testimony applying the K.S.A. 68-1101(1) definition of a bridge. The Township stated in its memorandum in support of summary judgment that the County constructed, inspected, and maintained the low-water bridge, designated as Bridge No. 10.80 N-10.25 E. The Township supported this contention with references to depositions of Hempen and Harvey. In addition, the contention of county control is partially supported by the County’s 1984 Bridge Inspection Report attached to Collins’ memorandum in opposition to summary judgment. This inspection report lists the length of the low-water bridge as 55 feet. There is no measurement of the “clear span.” Neither Collins nor the County refuted the Township’s contention that the County maintained the bridge under K.S.A. 68-1104.
Collins presents a creative interpretation of K.S.A. 68-1104. The statute assigns responsibility for “all approaches to culverts and bridges on township roads” to the Township. Collins suggests that “all approaches to culverts” includes the creek bed itself (a waterway approach). Collins asserts also that the culvert is a part of the Township road.
If the language of K.S.A. 68-1104 is interpreted as suggested by Collins, the statute would be contradictory on its face, giving control of the culvert to both the County and the Township. Collins’ interpretation is flawed because it does not harmonize with the plain language of the statute.
Collins presented no support for his interpretation of the statute. The plain language of the statute controls. The district court was correct in (1) finding that Collins dove off a low-water bridge, and (2) ruling that the Township had no control over the bridge.
KTCA — The Discretionary Function and Signing Exceptions
The trial court ruled that the County was immune from liability because the posting of swimming or diving warning signs at the accident site was discretionary under the facts of the case.
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). Under K.S.A. 75-6103(a), a governmental entity is liable for the negligent or wrongful acts or omissions of its employees acting within the scope of their employment under the same circumstances that a private person would be liable.
Statutory exceptions to liability are found in K.S.A. 75-6104, which provides 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 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;
“(h) the malfunction, destruction or unauthorized removal of any traffic or road sign, signal or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction or removal. Nothing herein shall give rise to liability arising from the act or omission of any governmental entity in placing or removing any of the above signs, signals or warning devices when such placement or removal is the result of a discretionary act of the governmental entity.”
The fundamental rule of statutory construction is that the purpose and intent of the legislature govern when the intent can be ascertained from the statute. When construing statutes, legislative intent should be determined from a general consideration of the entire act. Stauffer Communications, Inc. v. Mitchell, 246 Kan. 492, Syl. ¶ 1, 789 P.2d 1153 (1990).
A reading of the pertinent provisions of K.S.A. 75-6104 suggests that the legislature gave special attention to traffic or road signs, signals, and warning devices. Subsection (h), the traffic signing exception, distinguishes between the repair and replacement of existing traffic control devices and the decision to place or remove a traffic control device. Carpenter v. Johnson, 231 Kan. 783, 786, 649 P.2d 400 (1982); Westerbeke, Survey of Kansas Law: Torts, 33 Kan. L. Rev. 1, 69 (1984).
Collins alleges negligence in the failure to place either a “no diving” or “shallow depth” warning sign or a depth indicator. We have analyzed the failure to place traffic or road signs under both the discretionary function exception (e) and the signing exception (h). See Finkbiner v. Clay County, 238 Kan. 856, 714 P.2d 1380 (1986); Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984); and Carpenter v. Johnson, 231 Kan. 783. The relevant question under both exceptions is whether the placement of such a sign or indicator is a discretionary act.
In Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982), we concluded that it is the nature and quality of the discretion exercised which should be the focus rather than the status of the employee exercising the discretion. The test is whether the judgment of the governmental employees is of the nature and quality which the legislature intended to put beyond judicial review. 231 Kan. at 361-62.
In Dougan v. Rossville Drainage Dist., 243 Kan. 315, 757 P.2d 272 (1988), we reviewed Kansas and federal case law and concluded that the discretionary function exception is applicable only when no clearly defined mandatory duty or guideline exists. We have recently applied the exception in Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991).
In the case at bar, the County stated as uncontroverted facts: (1) The discretionary decision to place a warning sign is made by the County Commission for the County; and (2) there are no manuals or written guidelines to assist the decisionmaker in determining whether to place a warning sign under the circumstances of this case. These two statements were supported by the affidavits of the Director of Public Works/County Engineer and the Director of Personnel and Risk Management.
Collins, in opposing summary judgment, denied the statements. Collins set out as uncontroverted facts: (1) There are manuals and written guidelines for the construction, maintenance, and repair of low-water bridges/culverts and waterways; (2) there are manuals and written guidelines for the control of erosion in waterways; and (3) due to the existence of these manuals and guidelines, there is no discretion involved in the construction, maintenance, and repair of low-water bridges/culverts. Collins referenced his supplement to his designation of expert witnesses, stating that Dr. David Parr was expected to testify that such manuals and guidelines exist.
The County argues that summary judgment was proper because Collins did not controvert the assertion concerning the absence of manuals and guidelines with something of evidentiary value. We agree.
Collins did not meet his burden to controvert the Township/ County’s statements of uncontroverted facts which were supported by affidavits and depositions. He did not advance a concise statement of conflicting testimony or evidence. Collins did not depose Parr, attach Parr’s affidavit, or request time for further discovery. The response designating Parr as an expert witness did not state that Parr expected to testify that there were manuals and guidelines which mandated a warning sign under the facts of this case. It simply stated that Parr was expected to testify that there are manuals and guidelines governing erosion control and construction, repair, and maintenance of low-water bridges/ culverts.
The sole allegation of negligence against the County and the Township is failure to place a warning sign or depth indicator at the low-water bridge. The only evidence before the trial court was that there were no manuals or guidelines to aid the decisionmaker in determining whether to place a warning sign at the accident site.
K.S.A. 68-1104 imposes the responsibility for bridge maintenance on the County, not the Township. The posting of warning signs is discretionary under the facts of this case. The trial court did not err in granting summary judgment for the Township and the County.
Because our interpretation of K.S.A. 68-1104 and our application of the K.S.A. 75-6104(e), (h) discretionary function and signing exceptions disposes of the appeal, it is unnecessary to address the other issues raised by the parties.
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The opinion of the court was delivered by
Herd, J.:
In this appeal the State of Kansas appeals a trial court finding that a Johnson County Park and Recreation District regulation which restricts horseback riding within certain parks is unconstitutional.
On May 28, 1990, Sally and John Risjord were horseback riding on Barkley Drive, a public roadway in Shawnee Mission Park. On that date, the Risjords were charged with violation of Article 1, Section 6 of the Johnson County Park and Recreation District Rules and Regulations for riding horses in the park without dis playing valid riding permits. The Risjords were found guilty of violating the regulation in Johnson County Traffic Court.
The Risjords appealed to the district court and a trial de novo was held on October 4, 1990. Sally and John each stipulated they were riding in the park without a valid permit. They argued, however, that the regulation unconstitutionally regulated horse-drawn or horseback transportation on public roadways in violation of the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution and the applicable sections of the Kansas Constitution.
The district court determined the park governing board could not constitutionally prohibit horseback riding as a means of conveyance on the park roadways where other forms of transportation were not prohibited. In addition, the district court found the board could not charge for the use of park roadways simply because the elected mode of transportation was by horseback. The case was dismissed and the State appeals.
The sole issue presented in this appeal is whether Article 1, Section 6, of the Johnson County Park and Recreation District rules and regulations unconstitutionally regulates horseback riding on public roadways.
K.S.A. 19-2868(g) empowers the Johnson County Park and Recreation District Board (Board) to adopt, promulgate, and enforce reasonable rules and regulations for the operation of parks. In addition, the Board is authorized to prescribe penalties for violation of any rules and regulations. K.S.A. 1990 Supp. 19-2873. Finally, the Board is statutorily prohibited from charging an admission fee into a park, but is authorized to charge a reasonable fee for recreational activities. K.S.A. 1990 Supp. 19-2873.
Article 1, Section 6 of the Board rules and regulations provides:
“Horseback Riding: In the interest of public safety, horses may only be ridden in designated areas at Shawnee Mission Park and Heritage Park. Horses shall not be ridden on the park’s paved roadways or asphalt trails except at designated horse crossings, where horses may cross at right angles to vehicular traffic. Each horse being ridden in the park area is required to have a visibly displayed, valid horseback riding permit.”
Before we consider the validity of this regulation, let us review the general principles applicable to appellate review of the constitutionality of a statute, ordinance, or regulation.
“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]
“ ‘In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citations omitted.]
“ ‘Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]
“ ‘The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere. [Citations omitted.]’ State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978).
“The general rule for reviewing statutes or ordinances enacted pursuant to the police power is stated in City of Wichita v. White, 205 Kan. 408, 469 P.2d 287 (1979), as follows:
‘In reviewing statutes such as these, the court begins with the proposition that all presumptions are in favor of their validity. [Citations omitted.] The court does not sit in judgment on the merits of such legislation. If the statute here challenged does not contravene significant constitutional or inherent rights of individuals, if the classification on which it is based is reasonable, if it is within the scope of the police powers of the state, if it is appropriately related to a proper purpose of such police power, the statute is not to be invalidated by the judicial arm of government.’ [Citation omitted. ]
“In State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 76-77, 410 P.2d 308 (1966), we said:
‘Once a subject is found to be within the scope of the state’s police power, the only limitations upon the exercise of such power are that the regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose. [Citations pmitted.]
‘The reasonableness of restrictions imposed by the legislature by the exercise of the police power is a judicial matter, and all presumptions are in favor of constitutionality of the act. Within the zone of doubt and fair debate legislation is conclusive upon the court and must be upheld. [Citations omitted.]’ ” City of Baxter Springs v. Bryant, 226 Kan. 383, 385-86, 598 P.2d 1051 (1979).
Cities and other governmental bodies have broad police powers to enact ordinances which regulate and restrict activities in the interest of the health, safety, and welfare of their citizens. Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 320, 492 P.2d 183 (1971). It is well settled that governing bodies may properly exercise their police power to limit, control, or regulate the use of public roadways to promote the safety and general welfare of the people. Manzanares v. Bell, 214 Kan. 589, 600, 522 P.2d 1291 (1974); Riddle v. State Highway Commission, 184 Kan. 603, 611, 613, 339 P.2d 301 (1959). Thus, the Board was acting within the scope of its police power when it enacted the regulation under consideration.
The Risjords contend that the Board regulation which prevents horseback riders from traversing the park on public roadways violates the fundamental right to travel. See Shapiro v. Thompson, 394 U.S. 618, 629, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). Since a fundamental right is violated by the regulation, the Risjords argue, we must apply a “strict scrutiny” test rather than the traditional “rational basis” test to determine the constitutionality of the regulation. It is true that the “standard of scrutiny increases with the perceived importance of the right or interest involved and the sensitivity of the classification.” Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987). The United States Supreme Court has utilized three levels of judicial review when determining whether a statute, ordinance, or regulation violates the due process or equal protection clause of the Fourteenth Amendment.
The most critical level of analysis is “strict scrutiny,” which applies in cases involving “suspect classifications such as race, ancestry, and alienage, and fundamental rights expressly or implicitly guaranteed by the Constitution.” Farley, 241 Kan. at 669. When applying the strict scrutiny test, the burden is placed upon the State to show there is a compelling state interest in the statute, ordinance, or regulation; otherwise it is unconstitutional.
The least critical level of analysis is the “rational” or “reasonable” basis test. Under the “rational basis” test, if there is any rational relationship between the act and a legitimate govern mental objective, the act passes muster. Under this test one challenging the constitutionality of the act bears the burden of showing no rational relationship exists, between the means and the end.
Finally, “heightened scrutiny” is the intermediate level of review used by the United States Supreme Court and is applicable to “quasi-suspect” classifications. This court has not adopted the “heightened scrutiny” level of judicial review when applying the Kansas Constitution. Gender- and legitimacy-based classifications have been subjected to intermediate-level scrutiny. Heightened scrutiny “requires the statutory classification to substantially further a legitimate legislative purpose. Under this standard, a greater justification, for. the statutory classification than is required under the rational basis analysis must be shown, including a direct relationship between the classification and the State’s goal.” Farley, 241 Kan. at 669.
An argument similar to the Risjords’ was asserted in Manzanares v. Bell, 214 Kan. 589, wherein we considered the constitutionality of a legislative act requiring owners and operators of motor vehicles to purchase vehicle liability and first-party coverage benefits. 214 Kan. at 600. We found there was no reason to apply the compelling state interest test because the act affected all owners and operators of certain vehicles alike and did not affect the right to travel freely. No fundamental right was affected. Instead, we found the act was a valid exercise of police power to regulate traffic by establishing a condition precedent for operating a motor vehicle on public roadways. The governmental interest of protecting those who use public roadways was held to justify the compulsory liability and first-party insurance, coverage. Thus, the rational basis test was .applied to determine, whether the act violated due process and equal protection principles. 214 Kan. at 600-02.
. In the present case, the Risjords assert that the right to travel is a fundamental right. Shapiro, 394! U.S. at 629; Manzanares, 214 Kan. at 600. We. agree that the right to travel is a fundamental right but disagree with the argument that this regulation affects that right. Appellees have available to them all of.,the, various modes of travel such as by automobile, bicycle, motorcycle, airplane, bus, train, or foot — all subject, of course, to regulation for safety. This regulation does not curtail the Risjords’ fundamental rights; thus, the rational basis test is applicable.
Now let us turn to the question of regulation of horseback riding which applies to all equestrians alike and determine if it violates the due process or equal protection clause of the Fourteenth Amendment. The interest affected by the regulation is not the freedom to travel but regulation of travel. The Hoard regulation restricts the mode of conveyance that may be used on the park roadways. As we previously stated, the Hoard may validly exercise its police powers to limit or control the use of public roadways whenever necessary to promote the safety and general welfare of the people. City of Wichita v. White, 205 Kan. 408, 412, 469 P.2d 287 (1970). Finally, we recognize that preventing accidents and reducing the seriousness of accidents on public roadways is a legitimate governmental interest. Manzanares, 214 Kan. at 601; City of Wichita, 205 Kan. at 412. Thus, the governmental interest justifies the issuance of a regulation prohibiting equestrians from use of public roadways by limiting the non-vehicular traffic on the roadways.
The test to determine the constitutionality of a regulation under due process and equal protection principles is virtually the same. When a statute or regulation is attacked as violative of due process, the test is whether the legislative means selected have a real and substantial relation to the objective sought. Clements v. United States Fidelity and Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988). When a statute or regulation is attacked as violative of equal protection principles, a reasonable basis test is applied to determine whether any situation exists which justifies the classification. State v. Moore, 237 Kan. 523, 530, 701 P.2d 684 (1985). A classification that has some reasonable basis does not offend equal protection laws even if the classification results in some inequality. Dandridge v. Williams, 397 U.S. 471, 485, 25 L. Ed. 2d 491, 90 S. Ct. 1153, reh. denied 398 U.S. 914 (1970). There need not be an exact exclusion or inclusion of persons or things, but the classification may not be created arbitrarily, discriminatorily, or unreasonably. Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 296, 42 L. Ed. 1037, 18 S. Ct. 594 (1898); Henry v. Bauder, 213 Kan. 751, 753, 518 P.2d 362 (1974).
The State contends the Board regulation bears a reasonable relation to its legislative objective of promoting public safety. The State asserts horses are not allowed on the park roadways because asphalt can be slick and dangerous to both horse and rider. In addition, these roadways accommodate large volumes of vehicular, pedestrian, and bicycle traffic. According to the State, horseback riding on park roadways is hazardous to both the rider and other traffic; thus, prohibiting equestrians from using the park roadways reduces the danger .not only for the rider but also for the general public.
The Risjords argue that the regulation is not reasonable and that the State has failed to demonstrate that horseback riding on public roads is more dangerous than other forms of transportation. The Risjords contend that a slippery road is also dangerous for pedestrians, bicyclists, roller skaters, joggers, and motorcyclists. Thus, they allege the regulation which prohibits horseback riding on the park’s public roadways is invidiously discriminatory.
Regulating traffic on public roadways to promote public safety is a legitimate legislative objective. Recognizing innate differences of various vehicles using highways is a legitimate reason for governing bodies to regulate the use of those vehicles based upon differences in their characteristics. Manzanares, 214 Kan. at 613; see City of Wichita v. White, 205 Kan. at 411.
In City of Colby v. Hurtt, 212 Kan. 113, 116, 509 P.2d 1142 (1973), we found a city ordinance which restricted the location of mobile homes to designated areas was not constitutionally void. This court recognized that although mobile homes served as a residence, special characteristics warranted separate regulation. Furthermore, in State v. Moore, 237 Kan. at 533-34, we found that a vehicular classification based solely upon the distinction between private vehicles and vehicles owned by a political subdivision had a rational basis and did not violate constitutional principles.
In the present case, the regulation prohibiting equestrians from using public roadways within the park is reasonably related to the governmental objective of promoting public safety, health, and general welfare. All equestrians are treated alike. The Board has determined that horseback riding on asphalt roads poses a potential hazard to riders and other traffic. In addition, the dis tinct characteristics of horses present a justifiable reason for creating a separate regulation based upon both health and safety concerns. A horseback rider cannot exert the same control over the horse’s movements as could the driver of a motor vehicle or bicycle. Sanitary concerns also justify the regulation of restricting horses to designated areas. Finally, we conclude that limiting traffic on public roadways to exclude animal traffic is a valid exercise of the Board’s police power. Therefore, we hold the park regulation does not violate either the due process or equal protection clauses of the United States Constitution or the Kansas Constitution.
The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State of Kansas from an order dismissing the criminal complaint charging Robbie Fitch with burglary and felony theft. The trial court dismissed the complaint on the grounds that Fitch was denied his constitutional right to a speedy trial.
The State contends the dismissal was premature, was not supported by the facts, and was an abuse of discretion by the trial court.
The complaint was filed on October 12, 1989. Fitch was arrested the same day and immediately released on bond. He has been free on bond since that time. The defendant has never been arraigned nor had a preliminary hearing. The complaint was dismissed at the defendant’s request on December 17, 1990.
The speedy trial question in this case must be decided on constitutional grounds. The Kansas statute on speedy trials, K.S.A. 22-3402, does not apply because defendant was never arraigned. See State v. Rosine, 233 Kan. 663, 664 P.2d 852 (1983); State v. Calderon, 233 Kan. 87, 94, 661 P.2d 781 (1983).
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.
This court has used the Barker analysis on many occasions. See, e.g., State v. Rosine, 233 Kan. at 666.
Here, the total length of time is 402 days. On the facts of State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989), this court stated that “a little over a year between arrest and trial — is not clearly presumptively prejudicial.” Fitch’s circumstances can be distinguished from Goss because the delay here is not between arrest and trial. Fitch never received a preliminary hearing, and the trial court found it would be at least one month before a preliminary hearing could be held and several more months before trial could commence. We are satisfied the delay is presumptively prejudicial, and an examination of the other elements of the Barker analysis is warranted.
It should be noted numerous cases have held that longer periods of time than 402 days do not violate the speedy trial right. These cases, however, should not be taken to provide a set period of time. Barker mandates an ad hoc approach in which each case is analyzed according to its particular circumstances. In Barker, a five-year delay was held not violative. In State v. Calderon, 233 Kan. at 94-95, 97, a 13-month delay was held nonviolative. In State v. Wilson, 227 Kan. 619, 622, 625, 608 P.2d 1344 (1980), this court held that a three-year delay did not violate the speedy trial right. In State v. Fink, 217 Kan. 671, 678, 680, 538 P.2d 1390 (1975), a 14-month delay was held not violative. In State v. Hunt, 8 Kan. App. 2d 162, 167-68, 651 P.2d 967 (1982), a one-year delay was held not violative. In all of these cases, the end of the delay is measured by the date of the trial. The alleged speedy trial violation here is based on the delay between the arrest of Fitch and when the trial court dismissed the charges against Fitch. The statute requires that a preliminary hearing be held within 10 days of arrest unless a continuance is granted for good cause. K.S.A. 22-2902(2). This time limitation, however, is directory. Inconsequential delay beyond the 10 days will not require dismissal of the charges. State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980).
Why this case was continued for over a year is not reflected clearly in the record. Fitch was arrested on October 12, 1989, and released on bond immediately. The preliminary hearing was set first for January 31, 1990. By joint motion of the parties, an order for continuance changed the hearing date to February 12, 1990. Then, the record contains four notices of hearing, signed by the county attorney, with hearing dates of March 26, 1990; July 9, 1990; September 12, 1990; and September 24, 1990.
Next, the record contains a notice of and motion for leave to withdraw by defense counsel filed September 24, 1990, giving as a reason that “[d]efendant renders it unreasonably difficult for the lawyer to carry out his employment effectively.” New counsel was appointed to represent Fitch on September 27, 1990.
Finally, there is another notice of hearing, signed by the county attorney, with a hearing date of October 29, 1990. Following this are two orders for continuance, reflecting that they were by motion of the State. The hearing dates were to be November 8, 1990, and November 15, 1990. There is an additional notice of hearing, with a hearing date of December 17, 1990, for the court to hear arguments regarding Fitch’s motion to dismiss for lack of a speedy trial.
The transcript of the hearing on the motion to dismiss does not explain the reason for the delay. At this hearing, the prosecutor made vague statements that the delay resulted from negotiations over a proposed diversion agreement. The State alleges the defendant repeatedly promised to sign the diversion agreement and then refused to sign it; however, there is no actual testimony supporting the State’s allegation, despite the trial court telling the State such testimony was necessary. “Statements of counsel . . . are not evidence any more than are the opening statements of counsel in the presentation of a case before a jury or to the court.” State v. Brown, 181 Kan. 375, 394, 312 P.2d 832 (1957).
There is no evidence the State deliberately delayed the preliminary hearing (and trial) to thwart Fitch’s defense or to gain an advantage. At most, the State was negligent. Negligence is a more neutral reason than the deliberate hampering of the defense and, therefore, is weighed less heavily against the State. See Fink, 217 Kan. at 678-79. The trial court reached this conclusion and the record amply supports that finding.
Here, Fitch did not assert his right to a speedy trial until the preliminary hearing was reset and it appeared the preliminary hearing would be held. In Barker v. Wingo, 407 U.S. at 532, the United States Supreme Court stated “that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” The trial court found Fitch had not asserted his right to a speedy trial, and the record before us amply supports that finding. This factor thus weighs heavily against Fitch.
The trial court found that the defendant had been prejudiced by the delay. Although several arguments are raised here, the trial court’s main thrust is that two witnesses (allegedly prosecution witnesses) might not be locatable.
The purpose of the constitutional right to a speedy trial further defines potential prejudice. This right “is designed to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused, and to limit the possibility the defense of the accused will be impaired.” State v. Mick, 229 Kan. 157, 159, 621 P.2d 1006 (1981).
Shortly after Barker was filed, this court, rpeaking through Justice Fontron, considered prejudice to a defendant because of delay in State v. Otero, 210 Kan. 530, 534-36, 502 P.2d 763 (1972), and stated:
“We pass now to the last of the four factors identified in Barker as requiring consideration, namely, prejudice to the defendant. This court has always recognized prejudice as an element of prime importance in speedy trial cases, although it has tended to view prejudice in the context of the accused’s ability to defend himself. (State v. Brooks, [206 Kan. 418, 479 P.2d 893 (1971)]; State v. Stanphill, [206 Kan 612, 481 P.2d 998 (1971)].)
“The record offers no concrete evidence that the long delay in this case hampered the defendant in presenting his defense at the trial. There is nothing to show, for example, that witnesses were dead or could not be located; nothing to suggest that records had been destroyed or had come up missing. Nonetheless we cannot say the element of prejudice is entirely missing in this case. It is increasingly being recognized in this modern age that the impairment of a defendant’s capacity to conduct his defense is only one form of prejudice which may flow from long delay in bringing charges to trial. Justice Brennan, concurring in Dickey v. Florida, [398 U.S. 30, 38, 26 L. Ed. 2d 26, 90 S. Ct. 1564 (1970),] makes this point clear on page 54 by quoting from United States v. Mann, 291 F. Supp. 268, 271 [(S.D.N.Y. 1968)]:
. . “[Prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years” . . . .’ (Emphasis supplied.)
“The state argues vigorously that prejudice is not to be presumed from a long lapse of time, alone, but that the burden of establishing prejudice rests upon the accused. Statements to the contrary may be found among the cases involving the speedy trial issue. Moreover, it must be kept in mind that the primary burden is on the courts and prosecutors to assure that cases are brought to trial. (See Barker v. Wingo, p. 529.)
“But we do not predicate our opinion on a presumption of .prejudice arising from lengthy delay, but on a balancing of factors of which prejudice is only one, albeit an important and substantial one. Furthermore, the state’s argument assumes that prejudice is important only as it relates to the ability of an accused to make his defense. We have already demonstrated the error of such an assumption. Mr. Justice White put the matter succinctly in United States v. Marion, 404 U.S. 307, 320, 30 L. Ed. 468, 92 S. Ct. 455 [(1971)], where he said:
'. . . [T]he major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. . . .’ ”
Here, Fitch suffered no oppressive incarceration. Fitch argues, however, that he has suffered “severe emotional distress” and that his job with the railroad company was suspended because of the charges. The railroad company’s suspension of Fitch’s job was only in part because of the pending criminal charges against him. The burglary and theft charges against Fitch involved railroad property. The railroad company conducted its own investigation and hearing. At the time of the motion to dismiss hearing, Fitch was awaiting an appeal for his termination from the railroad. Fitch did testify that, because of the pending charges, his attorney advised him not to testify at the termination hearing, thus depriving him of the opportunity to present his story.
The trial court found that there was prejudice to the defendant in that certain prosecution witnesses were unable to be located. It was not clear from the testimony at the hearing whether witnesses could be located. Don Grisham, a special agent for the railroad, testified that there were two potential witnesses, John Chapleo and Richard Fox. Chapleo had told Grisham that he had seen Fitch in the area of the boxcar. Chapleo had appeared at a railroad investigation of the theft, and Fitch had had an opportunity to question him. The record does not disclose whether Chapleo would testify favorably toward Fitch. Grisham did not know if either of the witnesses were in the area because he had not attempted to contact them. According to Grisham, he never talked with Fox. The police had tried unsuccessfully to locate Fox. Apparently, Fox had moved out of the area. It is not known to what, if anything, Fox would testify.
The trial court found that the State had not made a diligent effort to locate the witnesses and to disclose their location to Fitch. In determining there was prejudice to Fitch, the trial court stated:
“What the prejudice is is that the defendant doesn’t know where [the witnesses] are and cannot investigate on their own, interview the witnesses on their own, test [the witnesses’] stories, do their own investigation of the surrounding circumstances and come in to a trial and be ready and prepared to cross-examine or in some other way attack the credibility of those witnesses.”
In State v. Wilson, 227 Kan. at 624-25, the defendant alleged that the delay caused not only his memory to fade, but also affected the recall of potential alibi witnesses. The defendant claimed that as á result of his fading memory, he was unable to remember sufficient details to locate other witnesses. The court found there was no prejudice to the defendant. Fleeting encounters with potential witnesses caused the defendant’s loss of memory, not the three-year delay. The court determined that the defendant could have attempted to contact witnesses when counsel first was appointed for him three years earlier.
Here, as in Wilson, the defendant could have attempted to contact witnesses when charges first were filed. There is no showing that the defense tried or wanted to find the witnesses. Further, the defense had the opportunity to question at least one of the witnesses at the railroad hearing. The trial court’s conclusion that there was prejudice to Fitch because of the two witnesses is weak.
There is evidence in the record that the defendant appeared three times for his preliminary hearing only to have it postponed. The trial court told the State that it must present evidence to justify the delay, and the State did not present any evidence. (Statements of counsel, as opposed to testimony of counsel, cannot be considered.) Thus, the trial court had to consider that the State offered no evidence to justify the delay and that 14 months had elapsed and the defendant had not had a preliminary hearing. The defendant testified he was present and ready to proceed on three occasions (one of which appears to have been the day the trial court dismissed the case). Based on the record before us, we cannot say the trial court erred in dismissing the case.
Appeal denied. | [
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The opinion of the court was delivered by
Six, J.:
This first impression criminal case concerns a defendant’s statutory right under K.S.A. 22-3424(4) to address the trial court and to present evidence in mitigation prior to the imposition of sentence. The issue for resolution rests in statutory interpretation.
David M. Heide appeals from the sentence imposed for his convictions after pleas of guilty to one count of kidnapping (K.S.A. 21-3420, a class B felony), one count of aggravated sexual battery (K.S.A. 21-3518, a class D felony), and one count of attempted aggravated burglary (K.S.A. 1990 Supp. 21-3301; K.S.A. 21-3716, a class D felony).
A maximum sentence of life imprisonment has been imposed; consequently, our jurisdiction is under K.S.A. 1990 Supp. 22-3601(b)(1).
We reverse and remand for resentencing.
Facts
Heide was originally charged with five criminal counts. The State alleged Heide entered the apartment of a young woman and assaulted her with a table knife. He allegedly grabbed her from behind, placed the knife at her throat, and told her to cooperate or she would be “number 17.” Heide took the woman by force from the kitchen area of her apartment to the bedroom, where he sexually assaulted her by fondling her breast. He attempted to place a sheet over her head and then left through the bedroom window. The woman was scratched during the ordeal. ;
The State alleged, with reference to a second young woman, that at approximately 2:00 a.m., Heide cut a screen to her apartment, slid open a window, and attempted to enter her apartment. The intended victim woke up, called out, “Who’s there?” and dialed 911. Heide did not enter the apartment.
After plea negotiations, Heide pled guilty to kidnapping, a class B felony, in exchange for the State reducing the charge from aggravated kidnapping, a class A felony. He also pled guilty to aggravated sexual battery and attempted aggravated burglary in exchange for the State dismissing the charges of aggravated burglary and aggravated assault. The State and Heide agreed to be “open” on the issues of sentence and probation. The trial court accepted Heide’s plea.
At the time of the plea, Heide requested the sentencing date be set for 60 days from the date of the plea, rather than the court’s typical 30 days. Defense counsel explained he needed additional time for Heide to be examined by a psychiatrist in order to present the examination report to the trial court before sentencing. Defense counsel indicated that he intended to call two additional experts who had been treating Heide. The trial court set the sentencing date for 54 days from the date of the plea. Defense counsel was instructed to provide the State with copies of the reports prior to sentencing. The trial judge advised the parties that he would limit the sentencing hearing to one hour and that they should keep the time limitation in mind.
On the date originally set for the sentencing hearing, the trial court advised Heide and the prosecutor, who had arrived for the sentencing hearing, that Heide’s attorney was appearing in federal court. The State moved to revoke Heide’s bond. The trial court granted the State’s motion and ordered Heide to the custody of the sheriff pending a further appearance for sentencing. The sentencing hearing was rescheduled.
The Sentencing Hearing
At the sentencing hearing, the trial judge noted that he had received the presentence investigation report and a number of letters on Heide’s behalf.
The trial judge first asked for the State’s recommendation. The prosecutor stated that, in accordance with plea negotiations, the parties were open on the issue of sentencing as well as whether probation was to be allowed. The State offered a videotape of both victims, which was played in open court. The prosecutor then addressed the K.S.A. 21-4606(2) factors to be considered by the court in determining the minimum term of imprisonment. The State also discussed and disputed the reports of Heide’s experts. The prosecutor stated the State’s sentencing recommendation: “I am asking the Court to run a fifteen to life sentence on the kidnap concurrent with a three to ten on the aggravated battery and three to ten consecutive term on the Olathe term consecutive to the fifteen year giving him controlling of fifteen years to life.”
The trial court then asked defense counsel for his comments. Defense counsel emphasized Heide’s psychological problems. He stressed the doctors’ findings that Heide presented a low risk of re-offending if permitted to continue his treatment. Adequate treatment would not be available in prison. However, defense counsel stated: “I don’t think today is the day to ask this Court for probation, and I am not going to spend a lot of time doing that, and I understand this is not where this Court is coming from.” Instead, defense counsel stated that an 18-year to life sentence was not appropriate and asked the trial court to have compassion and sentence Heide to “something that is appropriate.” Defense counsel then stated: “That’s all I have, Judge.”
At this point in the hearing, the following appears in the record:
“[Defendant’s expert]: Your Honor, I don’t know if it’s appropriate but I was subpoenaed, but I want to address the issue.
“THE COURT: I am sorry, I don’t have time. We don’t usually work until 12:30 or quarter of one, much less thereafter.”
The trial court then addressed Heide and asked if he had any legal reason why judgment, order, and sentence should not be imposed. Heide responded in the negative. The trial court then stated:
“No legal cause being stated and none appearing to the Court, it is the judgment, order and sentence of the Court as to count III for the crime of kidnapping pursuant to K.S.A. 21-3420, 21-3518 and 21-4501(b) it is the judgment, order and sentence of the Court that you be punished by confinement to the custody of the Secretary of- Corrections for a minimum period of fifteen years, a maximum period of life.
“As to count IV for the crime of aggravated sexual battery, pursuant to K.S.A. 21-3518 and pursuant to K.S.A. 21-4501(d) that you be punished by confinement to the Secretary of Corrections for a period of three years, a maximum period of ten years. That sentence will be ordered to run concurrently with sentence imposed in count III.
“To count V for the crime of attempted aggravated burglary, violation of K.S.A. [1990 Supp.] 21-3301, K.S.A. 21-3716 and pursuant to the penalty provisions of K.S.A. 21-4501(d) it is the judgment, order and sentence of the Court that you be punished by confinement to the Secretary of Corrections for a minimum period of three years, a maximum period of ten years.
“As recommended by the state, the sentence imposed in counts V for attempted aggravated burglary will be ordered to run concurrently with the sentence imposed in count III and IV.”
The State and the trial court then engaged in the following dialogue:
“MR. BATH: Your honor, if I might, I don’t mean to interrupt, but the State’s recommendation on the attempted ag burglary was three to ten consec, and you sentenced three to ten concurrent pursuant to my recommendation.
“THE COURT: I thought your recommendation was fifteen to life in count III, three to ten concurrent with that fifteen to life in count IV, and three to ten consec in count V.
“MR. BATH: Yes, I did, and you said the second three to run concurrently.
“THE COURT: My intent to say the sentence in count V ordered to run consecutively to the sentence imposed in counts III and IV. I misspoke. The record should be corrected appropriately.”
The trial court discussed the reasoning for its sentence and then addressed the prosecutor, stating: “Mr. Rath — I am going to assume [defense counsel] is not actively seeking probation. Do you have any comments you wish to make not made earlier?” The prosecutor replied: “[Defense counsel] at one time indicated that the defendant wanted to say something, never proffered that to the Court. I don’t know if that’s something he decided to withdraw and not pursue.”,
The trial court then asked Heide if there were any comments he wished to make. Heide spoke to the court at some length concerning his: (1) remorse, (2) childhood, (3) medication, (4) sexual impulses that are now dormant, (5) ongoing treatment, and (6) need for continued therapy.
The trial court concluded the sentencing hearing, stating:
“The record should reflect that the record takes into account both the past record as reflected by the presentence investigation prepared by Mr. Smith dating back to 1980, that I take into account as well the criteria for the establishment of minimum sentence as contained in K.S.A. 21-4606.
“Commitment is ordered to the Sheriff of Johnson County of the Defendant David Heide for transportation to the Secretary of Corrections’ custody to serve the sentence just imposed.”
Defendant’s Statutory Right to Make a Statement
Heide argues that the trial court violated his absolute statutory right to make a statement on his own behalf and to present evidence in mitigation of punishment before imposition of sentence. We agree.
Heide requests the case be remanded for resentencing before a different judge.
The State counters that Heide was given ample opportunity to address the trial court before pronouncement of sentence. The trial court asked Heide if there was any legal reason why sentence should not be imposed. Heide failed to offer his statement.
K.S.A. 22-3422 provides:
“When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court and asked whether he has any legal cause to show why judgment should not be rendered. If none is shown the court shall pronounce judgment against the defendant.”
K.S.A. 22-3424(4) states:
“Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement on his own behalf and to present any evidence in mitigation of punishment.”
In State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988), we discussed a defendant’s right to allocution as provided by K.S.A. 22-3422 and the defendant’s right to make a statement and present evidence in mitigation of punishment as provided by K.S.A. 22-3424(4). Webb pled guilty to one count of aggravated robbery and one count of aggravated assault on a police officer. At the sentencing hearing, the trial court asked for and received counsel’s comments. Defense counsel made an impassioned statement on behalf of-Webb, requesting a minimum sentence. Following defense counsel’s remarks, the trial court asked, without specifying to whom the question was addressed, if there was any legal reason why sentence should not be imposed. Defense counsel replied there was not. Webb remained silent. The trial court then sentenced Webb. Webb argued on appeal that resentencing was required because the trial court did not ask him personally whether he had anything to say before sentence was imposed, as required by K.S.A. 22-3424(4).
Speaking for the court, Justice Herd first defined allocution:
“ ‘Allocution’ is defined as the ‘[fjormality of court’s inquiry of prisoner as to whether he has any legal cause to show why judgment should not be pronounced against him on verdict of conviction.’ Black’s Law Dictionary 70 (5th ed. 1979). Such allocution is provided a criminal defendant under K.S.A. 22-3422. Historically, the term ‘allocution’ has been applied also to the right to speak at sentencing. Kansas provides a defendant this right under K.S.A. 22-3424(4).” 242 Kan. at 522.
Justice Herd reviewed early Kansas cases, which did not support Webb’s argument. However, he noted:
“The above cases were all decided before the legislature implemented, in 1970, K.S.A. 22-3424(4), which supplements the previously discussed K.S.A. 22-3422. The statute clearly states the defendant shall be addressed personally and asked if he would like to make a statement ‘on his own behalf.’ This mandate distinguishes the present law from those cases which have held statements by counsel to be sufficient.
“K.S.A. 22-3424(4) states clearly the purpose of allocution is to provide an opportunity for the defendant to present any argument in mitigation of his sentence in addition to raising claims of error.” 242 Kan. at 528.
Webb held that K.S.A. 22-3424(4) establishes the defendant’s right to allocution, which is not waived by the defendant’s silence or by arguments of counsel. However, Webb filed a motion to modify his sentence, which did not mention the denial of his right to allocution. Therefore, we held that Webb’s failure to raise the issue in his motion to modify constituted waiver of his statutory right to allocution. 242 Kan. at 529.
In State v. Wielgus, 14 Kan. App. 2d 145, 783 P.2d 1320 (1989), the trial court refused Wielgus’ request to make a statement during allocution. Relying on Webb and K.S.A. 22-3424(4), the Kansas Court of Appeals vacated Wielgus’ sentence. The case was remanded for resentencing. “The defendant in a criminal case has an absolute statutory right to make a statement to the court during that portion of a criminal proceeding known as allocution.” 14 Kan. App. 2d 145, Syl.
Neither Webb nor Wielgus are directly on point. In the case at bar, Heide responded to the trial court’s inquiry if there was any legal reason sentence should not be imposed. In Webb, the defendant remained silent. The trial court, in the case at bar, did not refuse Heide’s request to make a statement as in Wielgus. The trial court, however, failed to ask Heide if he wished to make a statement or present evidence in mitigation of punishment.
We must decide whether the trial court’s inquiry of Heide as to whether there was any legal reason why sentence should not be imposed satisfied Heide’s K.S.A. 22-3424(4) right to make a statement in his own behalf and to present any evidence in mitigation of punishment. There are no Kansas cases directly addressing the issue.
In State v. Happy, 94 Wash. 2d 791, 620 P.2d 97 (1980), the trial court asked the defendant if there was any legal cause why sentence should not be imposed. The defendant said no. A Washington statute required the sentencing court, before disposition, to “afford counsel an opportunity to speak” and to “ask the defendant if he wishes to make a statement in his own behalf and to present information in mitigation of punishment.” 94 Wash. 2d at 792 n.l. The court held that the above statutory inquiry is much broader than simply asking the defendant whether there was any legal cause why sentence should not be imposed. The Washington Supreme Court held the statute must be followed strictly. Because the statutory right was not satisfied, the sentence was vacated and the case remanded for resentencing. 94 Wash. 2d at 793-94.
Under a similar statute, New York appellate courts have also held that inquiring of a defendant if there was any legal reason sentence should not be imposed failed to satisfy the defendant’s statutory right to allocution. People v. Willbright, 61 App. Div. 2d 818, 402 N.Y.S.2d 53 (1978).
Before imposing sentence, K.S.A. 22-3424(4) unambiguously requires the court to address the defendant personally and ask if the defendant wishes to make a statement and present evidence in mitigation of punishment. K.S.A. 22-3424(4) is an additional requirement to K.S.A. 22-3422, the traditional allocution statute. Satisfying K.S.A. 22-3422 does not satisfy the requirements of K.S.A. 22-3424(4).
The State asserts that sentence is not imposed when pronounced, but when the defendant is ordered to the custody of the Secretary of Corrections. In the present case, Heide was allowed to address the court following pronouncement of sentence, but before the hearing was concluded and before Heide was ordered to the custody of the Secretary of Corrections. The State argues that deference should be given to the trial judge. If Heide’s statement had influenced the trial judge, the judge was free to change the sentence. The State cites no authority for its position.
We endorse the rationale of United States v. Posner, 868 F.2d 720 (5th Cir. 1989). In Posner, at the sentencing hearing a conversation occurred between defense counsel and the trial judge. After the conversation, the judge passed sentence in open court. Posner was given no opportunity to speak on his behalf before the judge recited the sentence. After the judge passed sentence, Posner stated he needed additional time to put his business affairs in order before surrendering to the marshal. Posner argued on appeal that he was denied his right to allocution under Fed. R. Crim. P. 32(a)(1)(C), which provides in part: “Before imposing sentence, the court shall . . . (C) address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of the sentence.” (Emphasis added.) The Court of Appeals observed that Posner spoke only after the judge had recited the sentence. The court stated: “Accordingly, appellant must be granted a resentencing hearing at which the court must give him an opportunity personally to speak in his own behalf before sentence is once again passed upon him.” 868 F.2d at 724.
The trial judge, in United States v. Navarro-Flores, 628 F.2d 1178 (9th Cir. 1980), did not address defendant Navarro-Flores personally as to whether defendant wished to make a statement. Navarro-Flores made no attempt to speak on his own behalf. The 9th Circuit Court of Appeals reversed and remanded for resentencing before a different judge. The Navarro-Flores court noted that once a judge’s mind is made up, it is difficult for the judge to resentence a defendant. “ ‘[B]oth for the judge’s sake, and the appearance of justice,’ ” the Court of Appeals remanded to a different judge for resentencing. 628 F.2d at 1185 (quoting Mawson v. United States, 463 F.2d 29, 31 [1st Cir. 1972]).
We hold that K.S.A. 22-3424(4) must be followed before sentence is imposed. Sentence is imposed under K.S.A. 22-3424(4) when pronounced by the trial judge. We vacate the sentence imposed and remand for resentencing before a different judge.
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The opinion of the court was delivered by
Herd, J.:
This is a condemnation case in which Kansas Power & Light Company (KPL) appeals from the judgment of damages awarded by separate juries to the Ryans and Dicksons, landowners in easement condemnation proceedings. Primarily, KPL alleges error in the admission of testimony by non-expert witnesses regarding fear in the marketplace of high voltage electrical transmission lines and its effect on property valuation. Due to the similarity of the issues raised by KPL on appeal, the landowners’ cases have been consolidated.
In April 1989, KPL took by right of eminent domain a 100-foot easement across 80 acres of real estate in Leavenworth County, Kansas, owned jointly by Margaret Ryan, Dennis Ryan, and Sue Ryan. The easement authorized KPL to erect “H” frame towers on the property supporting a 115,000-volt power line. The property upon which the easement lay contained two homesteads, cropland, and prairie grass. Court-appointed appraisers awarded $12,300 damages for the 10-acre tract and $4,761 for the 70-acre tract. The Ryans appealed the damages award to the district court.
At trial, one of the Ryans’ expert witnesses testified the damages to the 10-acre tract, in his opinion, was $16,750. He found the damages on the 70-acre tract to be $22,100. A second expert for the Ryans found damages on the 10-acre tract to be $15,525 and on the 70-acre tract to be $33,250.
KPL’s experts determined damages on the 10-acre tract to be $12,300 and $4,100 and on the 70-acre tract to be $4,760 and $830.
The jury found the before valuation of the 10-acre tract was $65,000 and the after value was $50,000, awarding $15,000 damages. The jury found $155,000 was the value of the 70-acre tract before the easement and $139,000 after the easement, and awarded $16,000 damages. KPL appeals the jury award of damages.
Also in April 1989, KPL acquired an easement across 120 acres of real estate in Leavenworth County, Kansas, owned jointly by Clarence and Jeanette Dickson. Like the easement acquired on the Ryans’ property, this easement authorized KPL to construct a 115,000-volt electrical power line across the Dickson property. The Dickson property contains a homestead, a herd of cattle, and brome grass. Court-appointed appraisers awarded $11,091 for damages to the property. The Dicksons appealed to the district court. In addition, the Dicksons alleged fraud by KPL in withholding information from the general public on the effect the transmission line would have outside the area of the easement on plants, animals, and humans. c
Experts for KPL testified at trial that the damages to the property were $11,091 and $10,500. Experts for the Dicksons offered damage estimates of $54,000 and $48,940. The jury returned a verdict in favor of the landowners and awarded damages of $21,200. KPL appeals the jury award for damages.
I
The first issue we consider is whether the trial court erred in allowing testimony on the topic of fear in the marketplace by witnesses other than expert witness appraisers. KPL contends only experts in appraisal and valuation can testify as to the factors within their personal knowledge which affect the value of the property appraised. KPL alleges that landowners and other witnesses are not competent to testify regarding fear in the marketplace.
The landowners argue lay testimony of fear in the marketplace based upon the hazardous effects of high-power transmission lines was properly admitted as a foundation for the expert’s conclusion that fear existed in the marketplace, which reduced the value of the property.
Both parties rely upon Willsey v. Kansas City Power & Light Co., 6 Kan. App. 2d 599, 631 P.2d 268, rev. denied 230 Kan. 819 (1981), in support of their argument. In Willsey, the landowner’s expert appraiser in a condemnation proceeding described the features he considered which contributed to and detracted from the property’s value. The expert witness testified he personally observed some buyer resistance to purchasing property with high voltage overhead lines because of the unsightliness of the lines and because of buyers’ latent fears of electrical transmission lines caused by warning advertisements published by electrical companies. 6 Kan. App. 2d at 601-02.
The Court of Appeals thoroughly examined the laws of this state and sister states to determine whether the expert testimony that public fear of electrical power lines reduced the market value of the condemned land was a noncompensable element of damages requiring the testimony to be stricken. The court held that conjectural damages are noncompensable, but found that a fear which is reasonable and affects the market value constitutes a compensable loss. 6 Kan. App. 2d at 611. Thus, the appraiser’s testimony, that in his opinion fear of power lines was so widespread as to affect market value based upon electrical companies’ warnings, was properly admissible. 6 Kan. App. 2d at 613. Finally, the Court of Appeals emphasized that neither the landowner or anyone else could base an opinion of value on personal fear. However, the opinion of a qualified witness concerning value was found admissible if based on the existence of fear in the buying public in general. 6 Kan. App. 2d at 615.
Chief Judge Foth, speaking for the Court of Appeals in Willsey, pointed out that the courts which have addressed the issue have separated into three categories with regard to admitting evidence of fear in the marketplace as affecting value of land. The so-called “majority rule” is that such evidence is too conjectural and is, therefore, inadmissible. The second or “intermediate rule” permits such evidence but requires the fear to be reasonable. The third and so-called “minority view” is that any evidence of fear in the marketplace obviously affects value and is admissible regardless of its reasonableness so long as the fear is not the personal fear of the witness. 6 Kan. App. 2d at 604-05.
After examining the Kansas cases on point, Chief Judge Foth determined such evidence was admissible but found that prior Kansas case law had not adopted the intermediate rule or the minority rule. He made this comment:
“We therefore regard the question as an open one in this jurisdiction. As we see it, in any condemnation case the objective is to compensate the landowner for damages actually suffered. Remote, speculative and conjectural damages are not to be considered; the owner cannot recover today for an injury to his child which he fears will happen tomorrow. Logic and fairness, however, dictate that any loss of market value proven with a reasonable degree of probability should be compensable regardless of its source. . . .
“This rationale obviously leads to the third, misnamed ‘minority rule’, which is the one we prefer. In this case, however, we need not go so far. The facts here meet the test of the ‘intermediate’ rule, which we believe is the most stringent rule which can justifiably be applied against the landowner.” (Emphasis added.) 6 Kan. App. 2d at 611.
Thus, the Court of Appeals found admission of testimony concerning fear in the marketplace was proper without definitively deciding whether it was adopting the intermediate rule or the minority rule. Chief Judge Foth stated, however:
“Once again, however, the evidence in this case makes it unnecessary for us to choose. The landowners’ expert testified to the perceived basis for popular fear, and that was the warning campaigns conducted by electric utilities themselves. He spoke of those campaigns from personal knowledge; their existence was not disputed, though their significance was. Although not a factor in our decision, it seems highly inconsistent for a company to warn the public repeatedly of the danger with which an instrumentality is fraught, and then say the public fear of that instrumentality is groundless. A certain amount of fear and a healthy wariness in the presence of high voltage lines strikes us as eminently reasonable.” 6 Kan. App. 2d at 614.
We submit that in effect the Court of Appeals adopted the “minority rule” in Kansas in Willsey and we agree with its rationale therein. Accordingly, in a condemnation action to acquire an easement for installation of a high voltage electrical line we find evidence of fear in the marketplace is admissible with respect to the value of property taken without proof of the reasonableness of the fear. As the above discussion indicates, fear of a high voltage line is reasonable.
Furthermore, we conclude from our analysis of Willsey and our adoption of the minority view that evidence of fear in the marketplace is admissible but that no witness, whether expert or non-expert, may use his or her personal fear as a basis for testifying about fear in the marketplace. However, any other evidence that fear exists in the public about the dangers of high voltage lines is admissible, regardless of its source. Thus, a landowner or any other non-expert witness can qualify as a witness to testify concerning fear in the marketplace if he or she establishes through foundation that members of the public have conveyed such information to the landowner or other non-expert witness.
The Willsey holding was affirmed in Masson v. Kansas City Power & Light Co., 7 Kan. App. 2d 344, 345, 642 P.2d 113, rev. denied 231 Kan. 801 (1982), and in Meinhardt v. Kansas Power & Light Co., 8 Kan. App. 2d 471, 661 P.2d 820 (1983). In Meinhardt, a condemnation proceeding, the trial court refused to admit the testimony of Dr. Beck concerning the alleged hazardous biological effects created by overhead transmission lines. The Court of Appeals affirmed the trial court ruling. Dr. Beck’s qualifications contained no formal medical training, and he could not conclusively state that hazardous biological effects were created by the power lines. Rather, he testified as to various research projects conducted nationwide, but found few conclusions from the studies. Thus, the court determined Dr. Beck’s testimony would have unlawfully invited speculation by the jury concerning loss and was properly refused. 8 Kan. App. 2d at 472.
In Meinhardt, the landowner unsuccessfully alleged Dr. Beck’s testimony was necessary to meet the foundational requirement imposed by Willsey for admission of opinion testimony taking into account public fear of power lines. In rejecting this argument, the Court of Appeals stated:
“[T]he landowners misconstrue the holding of Willsey. There the court concluded that while neither the owner nor anyone else may base an opinion of value on personal fear of power lines, an opinion of value of a qualified witness based on the existence of fear in the buying public in general which affects market value is admissible. [Citation omitted.] The court did not specify a minimum level of foundational testimony regarding the reasonableness of the public fear which must be produced before an appraiser’s opinion which takes that fear into account may be admitted.” 8 Kan. App. 2d at 472-73. (Emphasis added.)
The Meinhardt court concluded the district court properly excluded the evidence primarily because Dr. Beck failed to qualify as an expert on the biological effect of overhead transmission lines. Thus, the case did not turn on admissibility of evidence of fear in the marketplace although it affirmed Willsey. 8 Kan. App. 2d at 473.
In the condemnation proceedings presently under consideration, the landowners’ expert real estate witnesses each testified that in their opinions, fear of electrical transmission lines existed in the buying public, which thereby reduced the value of the property. These conclusions were based upon personal experience and the observation of warnings executed by electric companies. The witnesses also stated they were aware of studies and articles dealing with the element of fear and the possible health hazards generated by high power transmission lines.
Counsel for the landowners also questioned non-expert witnesses and the landowners themselves about fear of electrical transmission lines. Two KPL employees testified they were aware of studies and literature regarding the effect of power lines on plants, animals, and humans and believed the studies were inconclusive. In addition, a realtor in the area testified that in his experience buyers resisted property with electrical power line easements based on fear of the power lines and concluded this fear depressed the market value of such properties. The landowners also testified that they were aware of articles concerning the fear of effects of power lines on the environment and humans. Further, the landowners stated they had attended community meetings involving discussions of high power electrical lines and heard members of the community express their fear of such lines.
KPL contends the admission of non-expert testimony concerning fear of electrical transmission lines was prejudicial and an abuse of discretion. We do not agree.
The sole objective of a condemnation case is to compensate the landowner for actual damages suffered. Damages which are speculative, conjectural, or remote are not to be considered for compensation. However, any loss of market value proven with a reasonable degree of probability should be compensable, regardless of its source. Willsey, 6 Kan. App. 2d at 611.
In Willsey and Meinhardt, the Court of Appeals concluded a qualified witness should be allowed to testify as to his opinion that fear of power lines causes resistance by prospective purchasers and thereby reduces the market value of the property. Fear in the marketplace that actually reduces the value of the property is a factor considered by qualified witnesses in arriving at an opinion on the value of a specific piece of property.
The general purpose of allowing expert testimony on fear of electrical transmission lines is to show the factors considered by the witness in reaching an estimated value of the property and damages suffered. Non-expert witnesses are not qualified to testify concerning the value of the property. However, a non-expert qualified witness may corroborate and provide foundation testimony for the expert testimony on damages. A landowner who is qualified to testify as to the value of his own property is prohibited from testifying about personal fears of electrical transmission lines and its effect on the value of the property. See Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 271, 291 Pac. 768 (1930). However, the landowner and other non-expert witnesses are not precluded from testifying about fear in the marketplace once the individual has been qualified by showing he has knowledge of such fears other than his own. Fear in the marketplace is not a technical subject requiring professional training to discern. Rather, it is dependent upon knowing the opinion of others as to fear.
The same analysis applies to the case at hand. Fear of electrical transmission lines and the effect of this fear on the buying market was only one factor considered by the expert witnesses. The experts testified they also considered comparable sales, nuisance, and unsightliness in their calculations of damages. The landowners’ presentation of witnesses and their testimony acknowledging an awareness of studies and articles dealing with the possible ill effects caused by electrical transmission lines laid a proper foundation for qualifying them as witnesses of fear in the marketplace. We find no error in the trial court ruling.
II
Closely related to the first issue is KPL’s assertion that the trial court abused its discretion in allowing testimony by the expert witnesses regarding fear in the general public based upon newspaper and magazine articles and other literary works and in allowing into evidence a magazine article to support the allegation of fear in the marketplace. KPL argues the articles were offered as hearsay and do not qualify for the learned treatise hearsay exception. K.S.A. 1990 Supp. 60-460(cc).
KPL properly argues that newspaper articles on the subject of hazardous effects of electrical transmission lines do not qualify for the learned treatise hearsay exception. Powers v. Kansas Power & Light Co., 234 Kan. 89, 102, 671 P.2d 491 (1983). Nevertheless, newspaper articles are generally admissible to show public knowledge. Hudson v. City of Shawnee, 246 Kan. 395, 407, 790 P.2d 933 (1990). In the present action, the landowners did not introduce the articles to prove the fact that electrical transmission lines actually cause harm to plants, animals, and humans. Rather, the articles were admitted to support the expert’s opinion of public awareness of the possible danger. See Phillips Pipeline Co. v. Ashley, 605 S.W.2d 514, 519 (Mo. App. 1980); Arkansas Louisiana Gas Co. v. Cable, 585 P.2d 1113, 1116 (Okla. 1978). Thus, the hearsay exception was inapplicable, the articles were properly admissible, and we find no abuse of discretion.
Ill
Next, KPL alleges abuse of discretion by the trial court in failing to exclude portions of the testimony of two landowner expert witnesses. KPL contends it was error to allow the appraiser Jerald Job to give his opinion of the value of the Ryans’ property at trial when he could not give an opinion of the value of the property at his deposition the day before the trial. KPL also asserts that neither of the Ryans’ expert witnesses could state at their depositions that fear existed in the marketplace although both testified at trial that such fear existed. Thus, contends KPL, it was surprised at trial and had no time to prepare for the testimony in light of the expert’s changed opinions. KPL argues it was error to deny its pretrial motion fo exclude the testimony as contrary to K.S.A. 1990 Supp. 60-226(b)(4)(A)(i).
From the outset, we point out that KPL has failed to provide this court with a record of the depositions at issue. Therefore, we are limited to a review of the oral arguments at the pretrial motion to exclude the testimony. The Ryans concede that Job was unable to provide final figures at the deposition on his opinion of the market value of the property. However, Job explained at the deposition that to reach a final opinion it was necessary to confirm two comparable sales. Job provided an estimated value at the deposition and attempted to contact KPL’s attorney that same evening to provide the attorney with his final opinion as to the value of the Ryans’ property.
K.S.A. 1990 Supp. 60-226(b)(4)(A)(i) allows for discovery of facts known and opinions held by an expert by requiring the expert to state the substance of the facts and opinions to which he or she is expected to testify and a summary of the grounds for each opinion.
The trial court is vested with broad discretion in supervising the course and scope of discovery. Berst v. Chipman, 232 Kan. 180, 183, 653 P.2d 107 (1982). In addition, the trial court has discretion on the admission or exclusion of evidence, and that decision will not be disturbed on appeal absent a showing of abuse of discretion. Schmeck v. City of Shawnee, 232 Kan. 11, 32, 651 P.2d 585 (1982). The purpose of discovery is to eliminate the element of surprise from trials, to simplify issues and procedures by full disclosure to all parties of anticipated evidence and factual and legal issues, and to consider such matters as may aid in the disposition of an action. Burkhardt v. Philsco Products Co., 241 Kan. 562, 570, 738 P.2d 433 (1987).
At the deposition, Job stated his estimate of the value of the Ryans’ property and told KPL’s counsel that he could not give a final opinion until he confirmed two comparable sales. We find no prejudicial error in refusing to strike Job’s trial testimony wherein he provided a final opinion of the value of property following his confirmation of the other comparable sales. K.S.A. 1990 Supp. 60-226 does not require that deposition testimony be final and conclusive: Rather, the statute provides a method of discovery for opinions and facts known by expert witnesses. In this instance, Job provided an estimate of his opinion on the value of the property based on the facts known to him at that time. Upon ascertaining all the facts, Job was able to make a final determination of the value of the property. Admission of the testimony at trial did not contravene the rules of K.S.A. 1990 Supp. 60-226, and we find no error.
Nor do we find error in the trial court’s failure to strike the appraisers’ testimony regarding fear in the marketplace. We have no record before us to show why the .experts could not state fear existed at the time of discovery and why their opinion changed at the time of trial. However, we believe the issue of fear in the marketplace and its effect upon the value of the Ryans’ property was well known to both parties and did not come as a surprise to KPL at trial. Finally, we find that full cross-examination of the experts was permitted so the jury could weigh the probative value of their testimony. Rostine v. City of Hutchinson, 219 Kan. 320, Syl. ¶ 7, 548 P.2d 756 (1976); Bourgeois v. State Highway Commission, 179 Kan. 30, Syl. ¶ 2, 292 P.2d 683 (1956). Thus, there was no prejudicial error in refusing to strike the testimony of either of the landowners’ expert witnesses.
IV
KPL argues the trial court erred in allowing testimony regarding appellant’s duty to inform the public of inconclusive studies on the effects of electromagnetic fields on the environment. The landowners contend questions about the perceived duty of KPL to provide the public with information from studies on the controversy of possible ill effects caused by electrical transmission lines was relevant to the issue of whether there was sufficient information available to the buying public to support an expert opinion that a general fear of power lines would negatively affect the value of the landowner’s property.
We have already determined there is no minimum foundational requirement which must be met for a witness to testify concerning his or her opinion that fear exists in the marketplace and that/ such fear depletes the value of the property. The expert can testify as to the basis of his or her opinion, but the expert’s opinion cannot, however, be based upon a personal fear. Testimony by KPL employees, that they were aware of studies concerning the effects of electrical transmission lines and their conclusion the studies were inconclusive, was not relevant to the issue of market value. Nor was the testimony of a local realtor relevant wherein he indicated a perceived duty existed for KPL to inform the public of any damages resulting from electrical transmission lines. Counsel for the landowners questioned the KPL employees extensively on their awareness of numerous studies. While there is a connection between dissemination of information about the dangers of high voltage lines and fear in the marketplace, the emphasis on the duty of KPL to provide the information was more prejudicial than probative and should not have been admitted. But, in light of all the other relevant evidence, we find the admission of the evidence was harmless error.
V
The final issue raised by KPL is its assertion that misconduct by landowners’ counsel was so prejudicial as to require a reversal of the judgment. We disagree.
First, KPL alleges that landowners’ counsel questioned witnesses in such a way as to indicate the easement was the result of a forceful and unwanted taking.
A condemnation proceeding is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner. Morgan v. City of Overland Park, 207 Kan. 188, 190, 483 P.2d 1079 (1971). In striking that balance, there is no room for appeals to prejudice against the condemnor or sympathy for the landowner. Neither the relative financial position of the parties nor the landowner s unwillingness to sell are relevant to the issues of value and damages. Masson v. Kansas City Power & Light, 7 Kan. App. 2d 344, 348-49, 642 P.2d 113 (1982).
Clearly, questions concerning the landowners’ displeasure with the easement across their property were improperly asked. The questions have no relevance on the issue of value and damages.
The record is replete with objections and motions for mistrial by KPL based upon the prejudicial effect of the conduct of landowners’ counsel. In many instances the objections were sustained; however, no motion for mistrial was granted. As a general rule, this court has adopted the view that the trial court is in a better position than an appellate court to determine whether a verdict resulted from the asserted misconduct of counsel, and its conclusion will not be disturbed unless it is plainly in error. Richards v. Kansas Gas & Electric Co., 211 Kan. 199, 200, 505 P.2d 695 (1973); Collins v. City Cabs, Inc., 192 Kan. 394, 399, 388 P.2d 597 (1964). Where the right to a fair and impartial jury has been prejudiced, however, a new trial will be granted. Smith v. Blakely, Administrator, 213 Kan. 91, 96, 515 P.2d 1062 (1973); Taylor v. F.W. Woolworth Co., 151 Kan. 233, 241, 98 P.2d 114 (1940).
In the instant action, we find no line of questioning or comment by the landowners’ counsel to be so egregious and prejudicial to require reversal. Comments and questions as to the landowners’ displeasure with the easement upon their property could reasonably be presumed by the jury. Thus, the conduct of plaintiffs’ counsel was not so prejudicial as to affect the jury’s verdict.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Martin, C. J.
: On September 10, 1884, the plaintiff recovered a judgment against Moses T. Bradbury ill the district court of Jewell county, Kansas, for $3,161.53, together with interest and costs.' No execution was issued thereon. The plaintiff, on August 25, 1890, commenced an action in the district court of Decatur county against Bradbury and others in the nature of a creditor’s bill, and for the revivor of said judgment. Demurrers having been sustained to the petition and the first amended petition respectively, the plaintiff filed its second amended petition, March 31, 1891, dropping out all the parties except Bradbury, pleading said judgment of the district court of Jewell county, and praying a judgment thereon. The defendant pleaded, among other things, the bar of the five-years statute of limitations. Whether a dormant judgment rendered in one county may be revived by action in another is a question suggested, but not raised, by the record. The plaintiff’s right of action was barred by the provisions of section 18 of the code of civil procedure, it not being claimed that either party was under any disability, nor that the defendant was a non-resident of or absent from the state at any time between September 10, 1884, and'August 25, 1890. (Mawhinney v. Doane; 40 Kan. 676.) The plaintiff relies upon Baker v. Hummer, 31 Kan. 325, which holds that an action may be maintained on a dormant domestic judgment in this state if commenced within one year after dormancy; but in that case the action was not barred by the statute of limitations, for the judgment was rendered March 25, 1876, and in the following autumn the defendants removed from Kansas to Illinois, and were continuously absent from this state from that time forth to the commencement of the action. The only difficulty about that judgment was that it had become dormant; but the Jewell county judgment, upon which the plaintiff sued, besides being dormant, was barred by the statute of limitations, for a right of action accrued on it as soon as it was rendered. (Burnes v. Simpson, 9 Kan. 658, 664, 667 ; Hummer v. Lamphear, 32 id. 439, 444; Hale v. Angel, 20 Johns. 342; 2 Freem. Judg. [4th ed.] §432.) Dormancy is curable within one year, but what shall restore to life a right of action barred by the statute of limitations other than the act or default of the defendant?
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J.
: I. Truitt, being the owner of nine lots lying together in Kansas City, Kan., in 1888, planned the improvement of the same by building six double houses thereon. He entered into contracts with several parties to perform work and furnish materials therefor. Pie also executed six several mortgages to Bowman, to cover each house with the contiguous ground, and, at the same time, six second mortgages to Ball on the same properties. Truitt afterward sold four of the properties to different parties, and he mortgaged the other two to Caryl, this being the third mortgage, in order of time, upon said two properties. Mechanics’ liens were filed afterward upon these six several properties, and the Kansas Triphammer Brick Works and the Wyandotte Coal Company filed single liens covering all the properties. Certain of the first and second mortgages were assigned, and seven separate suits were filed in the district court to foreclose said mortgages and mechanics’ liens. For the purpose of trial, these several actions were consolida ted, and, as two of the liens covered the undivided property, it was proper to try all the cases together. (Civil Code, §§88, 636; Town Co. v. Morris, 39 Kan. 377 ; Johnson v. Keeler, 46 id. 304.)
II. The record shows that final judgment was rendered on February 21, and the motions for a new trial were not filed until Februai’y 25, 1891. One of the four attorneys interested in obtaining a new trial filed an affidavit to the effect that two of his associates resided at Topeka, and that he did not ascertain their wishes as to motions for a new trial until Wednesday, February 25, and that by reason of illness in his family, and being engrossed in business in the United States circuit court at Kansas City, Mo., on Februai’y 24, he was unable to file the motions until the 25th, this being the third day, excluding Sunday, after the decision was rendered. The court found that the motions were filed in due time, but there is no finding of fact to the effect that their earlier filing was “ unavoidably prevented ” (Civil Code, §308) ; and we think the showing insufficient for that purpose. The judgment was rendered on Saturday, however, and the plaintiffs in error contend that the Sunday following should be excluded from the computation, thus allowing three court days after the date of the judgment for filing the motions. This would be allowable in Missouri, Georgia, and perhaps some other states. (National Bank v. Williams, 46 Mo. 17 ; Cattell v. Publishing Co., 88 id. 356 ; Neal v. Crew, 12 Ga. 93.) Our statute governing the subject (Civil Code, §722) enacts that ‘‘the time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.” Under identical statutes, in New York and Indiana, it has been held, that while Sunday is excluded if the last day, yet it is included if an intervening day. (Taylor v. Corbiere, 8 How. Pr. 385, and cases cited; English v. Dickey, 128 Ind. 174, 182.) We hold the latter to be the true construction of our statute, and, although not expressly decided, it has been assumed by the court and accepted generally by the profession as the correct interpretation. The legislature, having Sunday in mind, provided for its exclusion when the last day, and it is presumable that its inclusion was intended when an intervening day. In Schultz v. Clock Co., 39 Kan. 334, 336, 337, where three days’ notice was necessary to revive a dormant judgment rendered by a justice of the peace, and the notice was served December 11, for hearing December 14, 1885, it was held sufficient, and no attention was paid to the fact that December 13 was Sunday. In Mercer v. Ringer, 40 Kan. 189, a verdict was rendered April 23, 1887, and a motion for a new trial reached the post office of the clerk on the evening of April 26, but he did. not receive and file it until the next morning, and it was held that the motion was out of time. But as April 24, 1887, was Sunday, the motion was in time, if that day should be excluded from the computation. Indeed, that case was just like this as to days of the week, for the judgment was rendered on Saturday, and the motion for a new trial was filed on Wednesday. Upon the theory of the plaintiff in error, the cases cited from 39 Kan. (18 Pac.), and 40 Kan. (19 Pac.), were erroneously decided. We think, however, that the decisions were correct, and that an intervening Sunday should be included, but if Sunday is the last day it must be excluded. The motions being out of time, errors for which a new trial might be granted are not reviewable.
III. Oaryl set up his mortgage, and it was adjudged to be the last in order of the incumbrances on the two properties covered by it. Some persons who were parties in the court below are not brought into this court — Caryl among the number; and a motion to dismiss upon several grounds, including the want of necessary parties, is urged upon our attention. Caryl, although litigating in the court below, took no exceptions to its rulings. It is said that he could not be injured, but would be benefited by the setting aside of the mechanics’ liens. He could not be benefited, however, as to the several liens affecting only the properties covered by his mortgage, for he made no complaint of the same, and they must be held valid as against him in any event, and it makes no difference to him whether the mechanics’ liens are prior or subsequent to the first- and second-mortgage liens. But, as to the general or “blanket” liens of the Kansas Triphammer BrickWorks and the Wyandotte Coal Company, Caryl might suffer great loss by the four other properties being relieved from them; for, as they are entire, they cannot be apportioned, and must attach to whatever property they may cover. There can be no review of a judgment in the absence of a party to it who may be prejudicially affected by its modification or reversal. We therefore hold that no readjustment of the liens can be made in the absence of Caryl. (Loan Co. v. Lumber Co., 53 Kan. 677 ; Norton v. Wood, 55 id. 559 ; Investment Co. v. National Bank, ante p. 49, 42 Pac. Rep. 321.)
The case will be dismissed for want of necessary parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J.
: I. The real controversy in the court below between Hovey, as plaintiff, and Cheney, Cross, and the First National Bank of Jerseyville, as defendants, was as to the bona Jules of the $10,000 note and mortgage to Abbie R. Parsons, and the indorsement, assignment, and transfer of the same to Hovey. We deem it unnecessary to review the evidence, although we have read and considered it all, as earnestly requested by counsel for plaintiffs in error. There is much conflicting testimony, taken orally and by deposition ; and if this court were the trier of the facts upon the testimony now appearing in the record, perhaps we should say that we regarded the whole transaction as fraudulent; but the trial court' held otherwise, and had a better opportunity of judging the value of the testimony than we possess here, for several of the most important witnesses testified in open court. It has been settled in this court since an early day that in a jury trial where there is.clear and positive testimony sustaining every essential point, and the verdict has received the approval of the trial court, it will not be disturbed, although upon the record the evidence seems greatly to preponderate the other way. (K. P. Rly. Co. v. Kunkel, 17 Kan. 145, 168, 169, and cases cited.) And the same principle is applicable to the general or special findings of the court when the trial is had without the aid of a jury. In such case, where there is some evidence fairly supporting all the material conclusions of fact, and a motion for a new trial has been overruled, such conclusions will not be disturbed by this court, although apparently against the weight of the evidence. (Ketner v.Rizer, 34 Kan. 603 ; Giffen v. Johnson, 43 id. 678 ; White v. Bird, 45 id. 759.) This court has suggested an exception to the rule where a case is tried by the court below wholly upon depositions or other written evidence, for then it comes here for examination in about the same attitude as before the trial court. (Durham v. Coal and Mining Co., 22 Kan. 232, 243; Woodward v. Clark, 30 id. 78.) This case, however, comes within the rule, and does not fall within the exception; and, as between Hovey and the plaintiffs in error, the judgment must be affirmed.
II. Ida E. Russell filed an answer and counter-claim, in which she attacked the Cheney judgment, the judgment of the First National Bank of Jerseyville, and the sheriff's deed to Andrew W. Cross ; and the court found in her favor, and adjudged that any balance of the proceeds arising from the sale of the farm after the satisfaction of the Hovey judgment should be paid to her. The plaintiffs in error complain of this, and, if the value of the farm exceeds the amount due on the Hovey judgment, the matter may be important ; and upon this question we think the evidence does not fairly tend to support the findings of the court. The validity of the original claim of indebtedness by Cheney is very doubtful, and, if the controversy were between Cheney and the creditors of I. E..Howe & Co., the findings would be sustained. But this was an attack by Ida E. Russell (formerly Mrs. Howe) upon judgments which she had been instrumental in having rendered against her firm, on obligations the validity of which she asserted by the execution of the mortgages to secure them in the first instance, and afterward by entering her appearance in the actions and then making default, so that judgment might be taken without other proof than that which she had created by her own hand. We think this branch of the case falls within the exception to the rule as to the conclusiveness of the findings of the court upon conflicting oral evidence. Tn Durham v. Coal and Mining Co., supra, the cpurt, - “ Where, testimony is drawn frojn. ihe lips of a party or his agents, no wrong vnH" ordinarily be done such party if the testimony'so given be accepted as true. A party’s admissions are good against him ; so is his testimony.” And in Woodward v. Clark, supra, where the liability of the defendant as a partner was the real issue, and the proof of the partnership consisted of correspondence, this court reversed the judgment of the court below upon a demurrer to the evidence, and held that the defendant was liable as a partner. If Mrs. Howe executed the mortgages in order to evidence an indebtedness that did not exist, and then waived service and made default, so that judgments might be taken against her, she stands in no position to obtain relief against the judgments, or against the sheriff’s deed which was executed in satisfaction of one of them.
The plaintiffs in error have assigned numerous errors, principally upon the admission of evidence ; but, in the view which we take of the case, it is unnecessary to consider them. The conclusions of fact favoring the said Ida E. Russell, however, we cannot order judgment against her, but must reverse the judgment as between her and the plaintiffs'in error, and remand the case for a new trial as to them.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.
: John Beaver was employed by the Atchison, Topeka & Santa Fe Railroad Company, at its yards in Chanute, Kan., as a car inspector and repairer. These yards consisted of two main tracks, as well as a number of side-tracks, which were used for switching, making-up and inspecting trains. For some time prior to September 16, 1889, the railroad company had been unloading cinders in the yards for the purpose of raising and ballasting the tracks. The cinders were unloaded between the tracks, after which they were used for the purpose of raising and improving the road-bed and railroad yards. It is alleged that on the night of September 16, 1889, the company unloaded a large quantity of cinders between two of the tracks, and left them heaped up in an insecure condition in the passageway over which the plaintiff was required to go in the performance of his duty as an inspector, and that, while passing over this pile of cinders in the performance of his duty, by reason of the unsafe and insecure footing caused thereby, he lost his balance and fell toward an adjoining track and was struck by a passing engine, breaking his leg and otherwise bruising and injuring his body ; and for the injury sustained he asks damages in the sum of $10,-000. The railroad company insisted that Beaver was guilty of negligence, and therefore responsible for the consequences. The case was tried with a jury, and after the plaintiff had introduced his evidence a demurrer to the same was interposed by the railroad company, and sustained by the court.
It is insisted that it was not within the province of the court to determine the question of contributoi’y negligence as one of law, and that its ruling upon the demurrer was erroneous.
“In case of a demurrer to plaintiff’s evidence, the court cannot weigh conflicting testimony, but must view that which is given in the light most favorable to the plaintiff, and allow all reasonable inferences in his favor ; and, unless all that is offered fails to establish his case or some material fact in issue in the case, the demurrer should be overruled.” (Rogers v. Hodgson, 46 Kan. 276.) See, also, K. C. Ft. S. & G. Rld. Co. v. Foster, 39 Kan. 329 ; K. C. Ft. S. & C. Rld. Co. v. Cravens, 43 id. 650.
If beyond dispute or cavil it appears that the accident was the result of Beaver’s own negligence, then there was nothing for the jury to decide. On the other hand, if the standard of care required of him was a subject upon which different opinions might be entertained, and the facts shown and inferences to be drawn from them were such that reasonable minds might differ with respect to whether he had acted as a reasonably prudent man should have done under the circumstances, the case should have gone to the jury.
The action of the railroad company in leaving long, sloping piles of cinders between tracks where the inspectors were required to pass over them in the performance of their duties may be negligence. But it is insisted that, whether the railroad company was guilty of negligence or not, Beaver cannot recover, because he had knowledge of the location and condition of the cinders, and must necessarily have assumed the clangers incident thereto. On the evening before the injury, the company unloaded the cinders between two tracks, which were about eight feet apart, ridging them up about 18 to 20 inches high, and so that they sloped off toward the rails. Shortly after dark on the same evening, it became the duty of Beaver to inspect a freight-train which was placed on one of these tracks. After inspecting a part of the train he came upon the cinders, and walked over them for about two car lengths, when an engine approached on the adjoining track. As it came up, he stopped work, straightened up, and endeavored to stand in the space between the engine and cars which he was inspecting; but the cinders, being loose and soft, gave way under his feet, and threw him toward the passing engine, by which he was struck and injured. In walking over the cinders for a distance of about two car lengths, he necessarily knew of their presence and something of the insecurity of the footing which they afforded; but how could the court fix the standard of care which he should have exercised? It was his duty to inspect the cars at the points where they were placed for inspection, and to do so with promptness and dispatch. The pile of cinders was deeper than those which he had previously seen in the yards ; and it is stated that, where cinders were to -be left in piles over night, they were leveled down by the company so as to make it safer for yardmen to pass between the tracks. As a reasonably prudent man, then, what should he have done when the engine approached him? With ordinary footing, there was ample space for him to stand safely between-the passing engine and the car he was inspecting. He testified that he knew the cinders rendered the footing somewhat insecure, but he did not apprehend danger in assuming tbe position which he did while the engine was passing. He said that if he had apprehended danger he could have gone back to the end of the pile of cinders or stepped between two of the cars he was inspecting, but that this was not customary nor deemed by him to be necessary. He adopted the course usually taken by the inspectors when an engine was jiassing on an adjoining track, and but for the unfortunate slipping of his feet as he straightened up, the position taken would have been secure. He was required to exercise ordinary prudence ; and was it apparent to an ordinarily prudent man that he could not safely stand upon the cinders in. a space of about four feet while the engine was passing? Some might say that he should have realized the danger and gone to the end of the pile of cinders; others, that he should have stepped between the cars he was inspecting; while others might think that, having seen the engine approaching in good time, and knowing the insecurity of the place, he should have made an earlier start for some place of safety. It appears that reasonable minds might draw different inferences and reach different conclusions with respect to the dangers of the situation and the proper course which Beaver should have taken; but, before the case could be taken from the jury on the ground of contributory negligence, it should be established beyond cavil or dispute, leaving no room for differences of opinion upon the question.
Our view is that the case should have been submitted to the jury, and therefore the judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Joi-inston, J.
: This was an action brought by Samuel K. Stoop, as administrator of thev estate of George W. Croxton, deceased, against the Cherokee and Pitts-burg Coal and Mining Company to recover damages sustained by the widow and next of kin of George W. Croxton, deceased, for pecuniary loss alleged to have been sustained by them by reason of his death, and which it is alleged was caused by the negligence of the company. The company owned and operated a coalmine at Frontenac, and the deceased was an employee working in the mine as a coal-miner, and it is alleged that the company negligently permitted the accumulation' of combustible and inflammable dust in the mine, which, being communicated with by a blast of powder, caused a general explosion, and, among other casualties, caused the death of George W. Croxton. There is an averment in the petition that the company knew or should have known that the presence and accumulation of dust was a dangerous element in the mine, but, notwithstanding this, it failed to sprinkle the mine, or take other reasonable precautions against danger from this cause. The answer was, first, a general denial, and second, that the deceased came to his death by reason of his own carelessness. The trial resulted in a verdict in favor of the company, and the plaintiff below asked for and obtained a new trial, and one of' the grounds for his motion was that the verdict was not sustained by sufficient evidence, and was contrary to law.
It is contended by the company that the action of the court in setting aside the verdict and granting a new trial was an abuse of discretion on the part of the trial court. The testimony of the plaintiff below was to the effect that the company negligently permitted large quantities of coal-dust impregnated with sulphur to accumulate in the mine, and that such coal-dust was combustible and explosive, and, coming in contact with a blown-out shot, caused a general explosion, which destroyed the life of Croxton. On the other hand, the testimony offered in behalf of the company was that the coal-dust was not explosive, and that the explosion in question was occasioned by the careless act of the employees in igniting the powder used by the miners in mining coal.
In view of the fact that the testimony was so conflicting and contradictory there is little left for our determination.
‘' The granting of a new trial is so much in the discretion of the trial court that the supreme court will not reverse the order of the trial court granting a new trial unless error is clearly established with respect to some pure, simple and unmixed question of law.” ( Sanders v. Wakefield, 41 Kan. 11; City of Sedan v. Church, 29 id. 190.)
It is conceded that there is a conflict in the testimony, but it is urged that this conflict was settled by the jury, who are the exclusive judges of the facts, and that it was clearly an abuse of discretion in the trial court to set aside the verdict. A trial court will be reluctant to set aside a verdict where a doubtful question of fact exists, simply because its judgment inclines the other way; but the mere fact that there is a conflict in the testimony does not relieve the court from examining the sufficiency of the evidence, nor make the verdict of the jury conclusive.
“While-the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous.” (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1.)
In the same case, it was said that
“It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same.”
Whenever a trial court determines that the verdict is clearly against the weight or preponderance of the evidence it should not hesitate to set it aside and grant a new trial, and, in arriving at this determination, the judge of the trial court must be controlled by his own-judgment, and not by that of the jury. ( Williams v. Townsend, 15 Kan. 563 ; U. P. Rly. Co. v. Diehl, 33 id. 422.) In K. P. Rly. Co. v. Kunkel, 17 Kan. 172, it was held that the judge had the same opportunities as the jury for forming a just estimate of the credence to be placed on the various witnesses; and, if it appears that the jury have found against the weight of the evidence, it is the imperative duty of the judge to set the verdict aside. If the evidence is nearly balanced, so that different minds might fairly come to different conclusions, the finding of the jury should stand, as against any mere doubts of the judge concerning its correctness ; but when his judgment tells him that the jury from some cause have found against the fair preponderance of the evidence, no duty is more imperative than that of setting aside the verdict and remanding the case to another jury. And so, in City of Sedan v. Church, supra, it was said that
“New trials ought to be granted whenever, in the opinion of the trial court, the party asking for the new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice.”
The trial judge, under whose eye and within whose hearing the evidence was presented, did not approve the verdict. Manifestly he determined that the jury had mistaken or failed properly to weigh the testimony in the case. Having in mind the superior opportunities which the trial judge has for comprehending the force of the evidence, and the discretion with which he is vested in the granting or refusal of a new trial, we cannot say that there has been an abuse of discretion in setting the verdict aside. Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, 0. J.
: At November term, 1895, the defendant was convicted of an attempt to ravish Henri etta Tyson, a female under the age of 18 years, and he was sentenced thereon to imprisonment at hard labor in the penitentiary for the term of five years. Complaint was lodged by the county attorney with the justice of the peace on October 3, 1895.- The time of the alleged commission of the offense was on or about November 5, 1893. The evidence offered by the state to prove the offense was that of J. A. Sadler and Nellie Sadler, his wife, who testified that on a Sunday afternoon, late in October, 1893, while out driving in a buggy, northwardly, toward Osage City, and not far from that place, they discovered at the bottom of a hill and beside a small culvert a man and a woman flagrante delicto; that the. parties hastily got up and into a spring wagon, and drove ahead until they came to a road turning east, when they went in that direction. Mr. and Mrs. Sadler did not then know the names of these persons, but testified that they had seen them before on the street in Osage City. Mr. Sadler hesitated in his identification of Henrietta as one of the persons seen at the roadside and in the spring wagon, but Mrs. Sadler was quite positive. Both stated that a little way back on the road they passed a woman who was watering some cattle at a pond, and when they came nearly upon these persons at the culvert, a double carriage, containing a man and three ladies, who were strangers to them, was seen starting down the hill from the north, which soon met the spring wagon with its occupants, and then these witnesses. Henrietta is the daughter of the defendant, and her age at the time of the alleged crime was about 13 years and 6 months. She denied the offense in toto, and testified that she had not been on that road with her father on any Sunday afternoon in the fall of 1893. The defendant did not testify.
Affidavits were offered in support of the motion for a new trial, as to newly-discovered evidence, some of them relating to the diligence of the defendant in discovering the occupants of the double carriage described by Mr. and Mrs. Sadler with a view to obtaining their evidence. After a time it was ascertained that the driver was probably John Ford, an employee at Atterbury’s livery stable in Osage City, but he had left the city and was not found until after the trial. His affidavit was obtained and used upon the hearing of the motion. Pie testified that he knew the defendant and his daughter Hetty; that the defendant was often about the barn; that on a Sunday afternoon in the latter part of October, 1893, he took a party of ladies from Osage City to a point near Reading ; that when he came to the top of the hill looking south toward the bottom of a small ravine, he saw a team hitched to a light wagon standing on the road, and when within about 20 rods he saw a man and a woman scramble hurriedly into the wagon and start the team ; that he soon met them, but they were strangers to him, and not William Tyson nor Hetty Tyson ; that he then met a gentleman and a lady in a single buggy, but he did not know them, and afterward passed a woman driving some cattle in the highway.
We hold that the court erred in overruling the motion for a new trial. The prosecution was long delayed, but conviction fast followed the arrest. It must have been a difficult task to ascertain the occupants of the double carriage two years after the event; and, until they were found and interviewed, no statement could be made as to their evidence in an application for a continuance. There was no lack of diligence. It is admitted that the evidence of Ford is very material, but counsel for the state contends that it is cumulative. Newly-discovered evidence, merely cumulative, and not of a material and decisive character, is not a sufficient ground for a new trial. (The State v. Rohrer, 34 Kan. 427 ; The State v. McCool, 34 id. 613 ; The State v. Stickney, 53 id. 308.) Green-leaf, in his work on Evidence, vol. I, § 2, says : “Cumulative evidence is evidence of the same kind to the same point. Thus, if a fact is attempted to be proved by the verbal admission of the-party, evidence of another verbal admission of the same fact is cumulative ; but evidence of other circumstances tending to establish the fact is not.” The identity of the persons at the roadside and in the spring wagon was a distinct fact, and the occupants of the buggy and the double carriage were the only disinterested persons who had an opportunity to form an intelligent judgment on the subject; and the testimony of the occupants of the double carriage could not be cumulative to that of Henrietta Tyson, who testified that she was not there, and knew nothing of the event which was the subject of the testimony of Mr. and Mrs. Sadler. Ford’s evidence corroborated that of Mr. and Mrs. Sadler in that a man and a woman were at the roadside and in the spring wagon. It contradicts them only as to the identity of those persons, and corroborates Henrietta’s denial that she was one of them. It is fallacious to say that Ford’s evidence is cumulative to that of Henrietta. Her testimony was negative — that she was not there and did not know who was. Ford’s evidence is positive — a man and a woman were there, but the man was not William Tyson, and the woman was not Henrietta Tyson.- If Ford had been a witness at the trial, the result would probably have been different.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, O. J.
: Neptune, on September 27, 1890, commenced his action against Franklin Cartwright and wife to forclose a bond for a deed on a quarter- section of land. He made. Armstead and Frush. parties defendant, as claiming some interest. The Cartwrights were in default. Frush filed an answer and cross-petition, alleging in substance that on September 23, 1887, the Cartwrights being the owners of said land, free and clear of all incumbrances except an equitable lien in his favor, he commenced an action in said district court against the Cartwrights claiming such equitable lien, and upon personal-service and^ appearance of the Cartwrights he afterward, on July 24,1890, obtained a judgment against Franklin Cartwright for $2,117. 51, which was decreed to be a first lien on said real property, and it was still in force, and that the claims of the other parties to the action were inferior to his lien.
Armstead filed an answer and cross-petition to the answer of Frush, stating that, in the spring of 1885, Franklin Cartwright and W. A. Frush entered into a copartnership for the purpose of buying and selling real estate under an agreement that such real estate should be held in the name of Cartwright; that on July 14, 1886, during the existence of said partnership, Cartwright purchased the quarter section of land for $2,300, and took the legal title thereto in his own name, with full power and authority to sell, incumber and convey the same as his own ; that afterward, on August 16, 1886, Cartwright and wife mortgaged the land to J. F. Tallant to secure a note for $1,500, due five years after date, with interest at 12 per cent, per annum, which note was given for a loan of that amount; that the same became and was from the date thereof a valid and existing lien on said real estate against said W. A. Frush, as to any interest he had in said real property; that said mortgage was duly recorded, and it continued to be a valid and ex isting lien until December 3, 1887, when (said partnership still existing) Cartwright borrowed of him (Armstead) the sum of $2,200, and executed his promissory note to him (Armstead) for that amount, due in two years, with interest, and, for the purpose of securing the same, Cartwright and wife executed their mortgage upon said land to him (Armstead), and out of the money so borrowed the sum of $B,940 was used by Cartwright in paying off and satisfying the mortgage held by Tallant, and the balarj/ce was used by Cartwright in paying taxes upon said real estate, and in erecting valuable and lasting improvements thereon; that Frush received the full benefit of said loan and is estopped from denying the validity of said mortgage ; and, further, that on December 13, 1889, he (Armstead) commenced an action in said court against the Cartwrights and George B. Neptune to recover judgment on said note of $2,200, and to foreclose said mortgage, and on October 6, 1890, he recovered a judgment against Franklin Cartwright for $2,386.30 and a decree of foreclosure of said mortgage, and said judgment and decree still remained in, force, unreversed and unsatisfied in any part; and, further, at the time he loaned said $2,200 to Cartwright, and at the time he brought the foreclosure suit, he had no knowledge that Frush claimed an interest in said land.
Frush moved the court to strike out the answer and cross-petition of Armstead, and on May 28, 1891, the motion was sustained, and, Armstead declining further to plead, judgment was rendered against him for costs. The motion of Frush seems to have proceeded upon the theory that the answer and cross-petition of Arm-stead did not state facts sufficient to establish any cause for relief. It is never proper to strike out an answer and cross-petition because of its insufficiency alone. In sucli case it should be attacked by demurrer or answer. If, however, we should treat the motion as a demurrer, still it ought not to have been sustained. Frush cites section 81, civil code (¶ 4164, Gen. Stat. 1889), and says that the mortgage to Arm-stead, having been executed December 3, 1887, was affected by the Us pendens of his suit, which was commenced September 23, 1887. The position of Frush would be correct, except for the doctrine of subrogation.' Under the allegations made by Armstead, Tallant held a mortgage for $1,500 and interest, which was prior to the lien of Frush, and this was satisfied out of the money loaned by Armstead to Cartwright. Perhaps the answer and cross-petition of Armstead should have directly averred that the money was borrowed and used by Cartwright for the purpose of satisfying the Tallant mortgage and paying the taxes past due on the land, but we think the averments of the pleading are substantially of this effect. The doctrine of subrogation could apply only to the prior mortgage and tax liens discharged out of the proceeds of the Armstead mortgage, and not to the improvements to be made afterward, but this is only a question of amount, and does not affect the right of Armstead to relief as to the prior liens discharged out of the proceeds of the mortgage made to him. Arm-stead does not appear to have been a mere volunteer or intermeddler in discharging the prior liens, but he did so at the instance of Cartwright, with the agreement that he should have a mortgage upon the same real estate for $2,200, which sum, although in excess of the liens discharged, would yet be good up to their amount and within the limit of $2,200. This court has been liberal in the application of the doctrine of subrogation, to such cases. (Crippen v. Chappel, 35 Kan. 495, 499, 500, and authorities cited ; Yaple v. Stephens, 36 id. 680 ; Bowling v. Garrett, 49 id. 521, 522.)
Some claim is made by Frush that the answer of Armstead was a sham, but the record contains no evidence, and the case was disposed of upon the pleadings and the motion, and so we are not dealing yrith any disputed question of fact.
The judgment will be reversed, and the c^tse remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J.
: On December 1, 1884, the defendants in error and others executed and delivered their promissory note for the sum of $8,000, payable to the order of the plaintiff in error, five years after date, with interest at 8 per cent, per annum, payable semiannually, interest coupons of $320 each being attached. This promissory note was secured by a mortgage on lots 2, 4 and 6 of block 6 in White’s addition to the city of Lyons, the Occidental hotel being built thereon. On January 25, 1885, the mortgagors conveyed the property to J. J. Maxey, who assumed the payment of the mortgage debt. On December 15,1886, said J. J. Maxey and his wife conveyed the property to Mary C. Ross and Sarah A. Hardy, who also assumed the payment of the mortgage indebtedness. On October 20, 1890, Ore bank commenced its action against the makers of the note, the mortgagors, their grantee, and the grantees of Maxey, to recover judgment upon said noté and the last two coupons, and also to foreclose the mortgage. The defendants in error set up several defenses in their answer, alleging, among other things, that the bank assented to said assumption of the debt by Maxey, and looked to him for payment, and thereby the said Maxey became the principal debtor, and the makers of the note sureties, and that, upon the sale of the property by Maxey to Mary C. Ross and Sarah A. Hardy, they assumed payment of the mortgage indebtedness, and the bank accepted them as principals, and that this was without the knowledge or consent of the defendants in error, and that, by reason thereof, the latter became and were fully discharged from all personal liability on said note, and released from the payment thereof. The plaintiff did not demur, but replied by a general denial. At the trial, May 29, 1891, the burden of proof being upon the defendants, some evidence was introduced tending to support said allegations of the answer as to some of the defendants. No objection was made to the offer of testimony under the answer, and there was no demurrer to the evidence. The court rendered personal judgment against several of the defendants for $10,391, and ordered the sale of the mortgaged premises for the payment of the debt; but no personal judgment was rendered against the defendants in error, and they were allowed their costs against the plaintiff in error, and this judgment for costs in their favor was excepted to by the plaintiff in error. The motion of the plaintiff in error for a new trial was overruled, but no exception was taken. The petition in error was filed in this court -September 23, 1891, the plaintiff in error claiming that it was entitled to a personal judgment against the defendants in error. It is admitted in open court that the mortgaged property was sold under the decree, and that on February 27, 1892, the sum of $6,638.75 was applied as a credit on said judgment, as the proceeds of such sale, and the plaintiff in error asks this court to direct the district court to render a personal judgment against the defendants in error for the residue.
Alt bough we recognize the equitable principle that a grantee, assuming the payment of a mortgage indebtedness, with the assent of the mortgagee, becomes a principal,’ and the mortgagor a surety only, (3 Pom. Eq. Jur. § 1206, and cases cited,) yet it maybe doubt- ■ ful whether the answer stated facts sufficient to absolve the defendants in error from their liability as sureties. We are relieved, however, from passing upon this question on account of the condition of the record, as hereinbefore sufficiently stated, together with the further circumstance that the bank has already received upon its judgment the amount of the net proceeds of the sale of the mortgaged property. When the sale was made the defendants in error had been relieved by the judgment of the district court from all personal liability, and, as the record stood, they had no interest in procuring bidders at a higher amount than that realized. Had the judgment remained in its entirety with this proceeding in error pending, the defendants in error might have protected' themselves at the sheriff’s sale, but the property was appropriated when they had apparently no interest in the price at which it-might sell. In Albright v. Oyster, 60 Fed. Rep. 644, it was said that “no rule is better settled than that a litigant who accepts the benefits, or any substantial part of the benefits, of a judgment or decree is thereby estopped from reviewing and escaping from its burdens. He cannot avail himself of its advantages, and then question its disadvantages in a higher court.” See, also, Babbitt v. Corby, 13 Kan. 612; Hoffmire v. Holcomb, 17 id. 378 ; Fenlon v. Goodwin, 35 id. 123 ; Price v. Allen, 39 id. 476, 477 ; Brown v. Van Cleave, 86 Ky. 381, 6 S. W. Rep. 25 ; Watkins v. Martin, 24 Ark. 14; Cassell v. Fagin, 11 Mo. 207.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
A motion is made to dismiss this proceeding because the sheriff and Herbert E. Ball, who were parties in the court below, are not made parties here. While they were proper parties in the district court, the sheriff had no interest in the litigation, but was made a defendant merely because he held an order of sale issued on the judgment, which he was about to execute, and Ball is shown by the pleadings to have had no interest in the litigation, being merely the trustee named in the original mortgage. They are not necessary parties in this court.
The record presents squarely the question whether a sheriff's return as to matters concerning the truth or falsity of which he must know is conclusive on the parties to the suit. The sheriff in this case re/urned that he had served the summons on the defendants personally. He knew whether he had or had -not done so. It is true that in this case the evidence of the sheriff, under-sheriff and Brown all shows that no service was made by the sheriff himself, but that a copy was delivered to John J! Harbour by the under-sheriff, and whatever service was made on Frances J. Harbour was by Brown, concerning whose appointment as deputy prior to that time the evidence is conflicting. The sheriff has the right, however, to act through deputies, and is responsible for their doings to the same extent as for his own. While it would be better, perhaps, in all such cases to have the return show that the sheriff executed the process by the deputy, thus placing on record the exact truth, a return signed by the sheriff in his own name alone is undoubtedly sufficient where the service is actually made by a deputy. But the real question in the case is whether there may be any contradiction of the return outside of the record in the case itself. In England it has been the established law from a very early day that the return is conclusive as between the parties, and that the remedy of a party injured by a false return is by an action against the sheriff on his official bond, in which case alone the truth or falsity of the return may be inquired into. (19 Viner’s Abridgment, 210 ; 6 Comyn’s Digest, 242.) In this country there is much diversity of judicial opinion on the subject, but the decided weight of authority seems to support the position that, as to matters falling within the personal knowledge of the sheriff, his return is conclusive as between the parties to the record, unless the falsity of the return is disclosed by some other portion of the record of the case. (Hunter v. Stoneburner, 92 Ill. 75 ; Cully v. Shirk, 30 N. E. Rep. [Ind.] 882; Stewart v. Griswold, 134 Mass. 391; Green v. Kindy, 43 Mich. 279 ; Tullis v. Brawley, 3 Minn. 277 ; Stewart v. Stringer, 41 Mo. 400; Bolles v. Brown, 45 N. H. 124; Barrows v. Rubber Co., 13 R. I. 48 ; Gatlin v. Dibrell, 74 Tex. 36 ; White River Bank v. Downers, 29 Vt. 332 ; Stewart v. Stewart, 27 W. Va. 167; 22 Am. & Eng. Encyc. of Law. 193.) These cases hold that the return of the
officer is conclusive on the question of jurisdiction. It is not necessary now to inquire how far the court may go in setting aside a service when challenged in the suit in which it is made before judgment. In this case the only ground on which the judgment of the trial court can be maintained is that the court was without jurisdiction to render the judgment in the prior action. The following cases seem to support the doctrine that a want of jurisdiction may be shown at any time, and that the return of the sheriff is only prima facie evidence of the facts stated : Dunklin v. Wilson, 64 Ala. 162 ; Watson v. Watson, 6 Conn. 334 ; Quarles v. Hiern, 70 Miss. 891; Pollard v. Wegener, 13 Wis. 569. The courts of Georgia and New York, while recognizing the existence of the general rule, hold that under the practice prevailing in those states the officer’s return is not conclusive. (Dozier v. Lamb, 59 Ga. 461; Fer guson v. Crawford, 70 N. Y. 253.) It was said in the opinion in the last-mentioned case :
“ The learned annotators of Smith’s Leading Cases, Piare and Wallace, (1 Sm. L. C. 842,) sum the matter up by saying : ‘ Whatever the rule may be where the record is silent, it would seem clearly and conclusively established by a weight of authority too great for opposition, unless on the ground of local and peculiar law, that no one can contradict that which the récord actually avers, and that a recital of notice or appearance or a return of service by the sheriff in th^record of a domestic court of general jurisdiction is absolutely conclusive, and cannot be disproved by extrinsic evidence.’ It is quite remarkable, however, that, notwithstanding the formidable array of authority in its favor, the courts of this state have never sustained this doctrine by any adjudication, but on the contrary the great weight of judicial opinion and the views of some of our most distinguished jurists are directly opposed to it.”
Counsel for defendants in error cite Bond v. Wilson, 8 Kan. 228 ; Starkweather v. Morgan, 15 id. 274; Chambers v. Bridge Manufactory, 16 id. 270 ; McNeill v. Edie, 24 id. 108, and Jones v. Marshall (Kan. App. ), 43 Pac. Rep. 840, as supporting the proposition that a sheriff’s return may be disputed even in regard to personal service. In the cases heretofore decided by this court the right to controvert the sheriff’s return has been expressly limited to matters not coming within his personal knowledge, and the opinions in all the cases, including, also, Mastin v. Gray, 19 Kan. 458, recognize this distinction.
We do not approve the rule declared in the opinion in the case of Jones v. Marshall, that a sheriff’s return may be controverted as to matters falling within his personal knowledge. Much can be said by way of argument for and against the rule which makes the sheriff’s return conclusive. We deem it the safer course to yield our assent to a rule -which has met with the approbation of so large a majority of the courts, and incline to the opinion that the weight of reason rests with that of authority. This case fairly illustrates the dangers and difficulties arising if the opposite rule is followed. Where there is a return of personal service, ordinarily the person served will be the only witness who can flatly contradict it, unless the officer himself does so. The service on John J. Harbour was entirely regular, and a summons was left at the residence of Frances J. Harbour, if not in fact handed to her in person as testified by Brown. To set aside and annul a judgment duly entered on such slight proof of Avhat can hardly be termed more than a technical defect in the service, is certainly establishing a bad precedent, and in our view a much more dangerous one than the rigid rule which we deem best to follow in this case. Under all the authorities, the proof required to controvert a sheriff’s return must be clear and convincing. But if we were to permit an inquiry into its truth, we should be met in every case brought to this court by the other rule, that the decision of the trial court on a disputed question of fact is final. We should then rest under the necessity of affirming judgments like the one now under consideration, or of weighing conflicting testimony. The hardships which may possibly result from the rule adopted are not so great nor so probable as might at first appear, when it is considered that the sheriff acts under oath and is responsible on his official bond. If he makes a mistake the court to which the process is returned may permit him to amend. The proceedings of our district courts are matters of general notoriety. Judgments are not entered here as in New York by the clerk in vacation, but must always be taken in open court. In giving conclusiveness to a sheriff’s return as to those matters coming within his personal knowledge, we do no more than give it the same credit as the parts of the record written by the clerk, any of which may be corrected under the direction 0/ the court when application is duly made, but camiot be contradicted by parol testimony. /
The judgment is reversed.
All the Justices concurring.
Not yet reported. | [
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The opinion of the court was delivered by
Martin, C.. J.
: The defendant was convicted in the police court of the city of Burlington under an ordinance for keeping swine within the city in such a manner as to constitute a nuisance. He appealed to the district court, and was again convicted, and was adjudged to pay a fine of $5 and the costs of prosecution, taxed at $117.38. He then appealed to this court. Soon after the creation of the courts of appeals, the case was certified to the court for the Southern department, Eastern division. Afterward, on August 6, 1895, that court returned the case here, holding that it had no jurisdiction. (1 Kan. App. 414 ; 41 Pac. Rep. 221.)
Section 9 of the act creating the courts of appeals, being chapter 96, Laws of 1895, conferred upon them exclusive jurisdiction “in all cases of appeal from convictions for misdemeanor in the district and other courts of record.” We think that the word “misdemeanor” was here used by the legislature in its general sense, and not in the particular one employed in classifying offenses under the laws of the state in article 1 of the code of criminal procedure. Bouvier says this term is used to express every offense inferior to felony punishable by indictment or by particular described proceedings ; and Blackstone says that in common usage the word “crime” is made to denote offenses of a deeper and more atrocious dye, while small faults and omissions of less consequence are comprised under the gentler name of “misdemeanors.” Violations of valid city ordinances are certainly offenses, although the laws of the state do not directly prescribe a punishment which is a requirement of the definition of that word in section 2 of the criminal code. These offenses against a city are not ciimes or felonies, but are commonly classed as misdemeanors, and the procedure for the enforcement of city ordinances is criminal in its nature. A review must be sought by the defendant by appeal. A finding in his favor ends the case, as to him, beyond the right of appeal by the city, and the other incidents of a criminal trial usually follow. (City of Burlington v. James, 17 Kan. 221, 222, and cases cited; In re Rolfs, 30 id. 758, 761.)
A main purpose of the creation of the courts of appeals was to aid in the disposition of the cases brought up from the lower courts for review, which had accumulated to an extent disproportioned to the working capacity of the existing judicial force. Those parts of the act conferring jurisdiction on these new tribunals ought, therefore, to be construed liberally, with a view to promote the object in view. From the general tenor of the act as to criminal cases, it seems manifest that the legislature intended to leave for this court only'felonies and appeals taken by the state.
This case will therefore be recertified to the proper court of appeals.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.
: The position of the plaintiff in error is that the title of Parker, having been obtained by fraud, was a nullity, and that no lien could attach to the lots based on any contract made by his authority ; and that in any event the plaintiff was entitled to the purchase price of the property, $3,500, as a prior claim. The plaintiff, in an action brought by him to cancel the deed to Parker and regain his title to the lots, cannot, at the same time, maintain the position of a lien holder, claiming alien for the purchase price of the lots as having been sold and conveyed to Parker. Such claims are utterly incompatible. The plaintiff saw fit to invest Parker with the legal title to the lots. As security against incumbrances by mechanics’ liens which might become prior to the $200 mortgage on each lot he had agreed to take, he saw fit to take a $6,000 indemnity bond, which he now alleges was worthless. Under this state of facts, it would be grossly inequitable to allow him to recover the lots, with the houses on them, which had been constructed with the material and by the labor of the mechanics and material men, freed and cleared of all liens whatever. By his own act he had given Parker the full title to the property, and persons constructing the buildings contemplated by the bargain itself made between him and Parker had a right to rely on Parker’s apparent title to the property. No question is presented by the record as to the validity of the liens, save that arising from the fraud, to which there is no pretense whatever that any of the lien claimants were parties.
It appears from the record that personal judgments against the plaintiff were rendered in favor of D. Cummings and J. W. Moad for the amounts of their liens. This was erroneous, and was doubtless an inadvertency on the part of the person who drew the decree. Their judgments should extend no farther as against the plaintiff than to the enforcement of liens on the property. It is claimed that parts of the claim of Moad were also allowed to Enright and Baly, thus making double charges against the property. This claim seems to be supported by a recital in the record showing that Enright and Baly claimed under Moad. While Moad was entitled to a lien for the whole amount due him, and while his employees were entitled to liens for the respective amounts due them, the decree should contain a provision that, on payment of the sums due Enright and Baly, those parts of their claims which are also included in Moad’s claim should be credited also on the judgment in favor of Moad.
We find no error in tlie allowances of attorneys’ fees as made by the court. Applications are made on behalf of certain mechanics’ lien holders for this court to tax attorneys’ fees in their favor for the services of their attorneys here. We do not think section 638 of the code of civil procedure applies to this court, and this application will be denied.
The judgment will be modified as above indicated, and by striking out so much of it as awards personal judgments against the plaintiff in favor of Cummings and Moad. In all other respects it will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action commenced by defendant in error, plaintiff below, in the district court of Riley county, to recover of the railroad company damages for the destruction of a field of rye, caused, as alleged, by the diversion of a natural watercourse. The defendant answered with a general denial, and also that the damages sustained were caused by the act of plaintiff. In due time the defendant filed its petition and bond for the removal of the case to the federal court. The ground upon which the removal was asked was that the defendant was a corporation, created and existing under the act of congress to aid in the construction of a railroad from the Missouri river to the Pacific ocean. The district court refused to order a removal. This is the first matter complained of.
We. think the decision of the district court was right, and must be sustained. We do'not care to enter into any extended examination of this question, and for these reasons: The question is one whose final determination rests with the federal supreme court. One or more cases involving this question have been decided in the circuit court of the United States of this circuit, and are now pending on appeal in the supreme court. We are aware of a difference of opinion between federal judges, but the judges of this circuit hold such a case not removable. Besides the weight which is due to the opinion of judges of such eminent ability as Justices Miller and McCrary, who united in this decision, it is well that there should be accord, so far as possible, between the federal and state courts in each district. So, without further discussion, we simply express our concurrence with the views of those judges on this question, and sustain the ruling of the district court.
To understand the further questions in this case, a brief statement of the facts as developed by the testimony is necessary. Plaintiff was the owner of a farm lying east of the Fort Riley military reserve. Through that farm and through the reserve, the defendant’s railroad runs, the right-of-way through the farm being granted by deed from the plaintiff in fee simple, and through the reserve by act of congress. On the south side of the railroad track and adjoining the reserve, plaintiff had, in the spring of 1881, a field of rye of about thirty-seven acres. That field was flooded, and in consequence thereof the bulk of the crop was destroyed. North of the railroad track about one hundred and twenty rods, the ground rises in bluffs of considerable height. Between the railroad track and the foot of the bluffs, runs a wagon-road. In these bluffs on the reserve, just west of plaintiff’s farm, are three ravines, through which the water from the hill-country back of the bluffs flows down to the Kansas river, which runs along the plaintiff’s land on the south. From these ravines the water flows in well-defined ditches, uniting just above the north side of the wagon-road; then flows over the road through a slough or depression to the railroad track; thence through a culvert built in the railroad track, and from there onward through a slough, or drain, or ditch, to the Kansas river. The railroad track with the culvert was completed before 1870. This culvert was on the reserve west of plaintiff’s land. In the fall of 1880, the railroad company enlarged and deepened a ditch on the south side of the railroad track, running eastward from this culvert to the field in which, in the spring of 1881, the plaintiff had his rye. Prior to that time, there being something of an elevation between the culvert and the rye-field, the water flowing through these ravines, slough and culvert passed southward to the river, and none of it reached the plaintiff’s field. But in the spring of 1881, owing to the enlargement of this ditch, some of the water coming through these ravines, etc., flowed eastward through the ditch and covered the field, and flooded it for a period of about thirty days, destroying the crop then growing.
The question in the case is, whether the railroad company is responsible for the destruction of this crop. Of course, to establish this liability, two things are necessary: First, that the flow of water through these ravines, ditches, sloughs, etc., was the flow of a natural watercourse; and second, that by the enlargement and deepening of the ditch above mentioned, the flow of that watercourse was diverted. The instructions of the court as to what constitutes a natural watercourse were correct within the rule laid down in the cases of Palmer v. Waddell, 22 Kas. 352; and Gibbs v. Williams, 25 id. 214. With that rule we are satisfied, think it based on correct principles, and in accord with the later and better authorities. Of the existence of a natural watercourse, within the terms of that rule, there can be no doubt. An area of country of several hundred acres (one to two sections, the witnesses state) is drained. The country is bluffy, and deep ravines have been cut in the hills for the outflow of water falling on this surface. In one of the ravines there is a small perpetual flow from a spring, evidently, although the bulk of the water flowing through these ravines is from rain and snow. The configuration of the country is such that they deserve protection as natural watercourses. The same may be said of the ditches running from the foot of these ravines and uniting just north of the wagon-road. As to that extending thence to the river, and which is called by different witnesses a drain, a ditch, a slough, a swale, and a depression, the testimony is far from satisfactory; and yet we are constrained to say that there was enough to uphold the verdict. That by the deepening of the ditches along the railroad track the water flowing down through these ravines, ditches, etc., was partially diverted and thrown upon the plaintiff’s field of rye, cannot be doubted. Possibly the flood was so great that the land would have been covered anyway. Certainly the railroad ditches helped, if they did not cause the overflow. Counsel contends that, because the company owned the fee of the right-of-way, and because the ditches dug and deepened by it were so dug and deepened for the necessities of its track, its action was proper, and afforded no ground of complaint by plaintiff of its results, and challenges the contrary ruling of the court in these respects. The court was right. A party cannot on his own land, or because of the necessities of his own business, divert the flow of a natural watercourse without paying any party injured the damages he sustains therefrom. This doctrine is clear, and a railroad company has no greater rights than any other land-owner.
These, we believe, are all the material questions, and in them appearing no error, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question arises, whether under the allegations of the petition the plaintiff is entitled to recover damages. The act relating to cities of the second class provides that “the cities coming under the provisions of this act in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by law: . . . Second, To open and improve streets, avenues, and alleys, make sidewalks and build bridges, culverts and sewers within the city. (Laws of 1881, ch. 48, § 2; see also § 32, ch. 100, Laws of 1872.) This power “to open and improve streets” includes the power to alter the grade or change the level of the land on which the streets are laid out. If the city has once fixed a grade, which it afterward finds improper or insufficient, it has not exhausted its power, and thérefore has the authority to change the grade to improve the streets. “As the duty is a continuing one, so is the power necessary to perform it.” (Smith v. The Corporation of Washington, 20 How. 135; Goszler v. Georgetown, 6 Wheat. 593.)
There is the same reason and the same justification for changing a grade once established, when the public convenience is found to require it, that there is for fixing it in the first place. Therefore the power to open and improve streets, which includes the power to grade them, may be exercised from time to time as the wants of the city may require. Of the necessity or expediency of this exercise, the mayor and council of the city, and not the courts, are judges. The injury, if any, which resulted to the plaintiff by the change made by the city in the grade of the public street, resulted from the lawful exercise of a power granted to the city by legislative authority. For the incidental injury arising from the exercise of this authority, the city is not liable. Dillon says:
“In connection with the principle that there is no implied liability for doing an act which is either direct or authorized by valid statute, may be noticed the power of municipal corporations to grade and to change the established grade or level of their streets, though the exercise of the power may be injurious to the adjoining property owners.” (2 Mun. Corp., 3d ed., § 989.)
Again, he says:
“The courts, by numerous decisions in most of the states, have settled the doctrine that municipal corporations acting under authority conferred by the legislature to make and repair, or grade, level and improve streets, if they keep within the limits of the city and do not trespass upon or invade private property, and exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to adjoining owners, whose lands are not actually taken, trespassed upon or invaded, for consequential damages to their premises, unless there is a provision in the charter of the corporation, or some statute creating a liability. There is no such liability even though in grading and leveling the street, a portion of an adjoining lot, in consequence of the removal of its natural support, falls into the highway.” (Sec. 990,id.)
(See also City of Pontiac v. Carter, 32 Mich. 164, and cases there cited; City of Atchison v. Challiss, 9 Kas. 610.)
It is true that the petition alleges that the city proceeded “ unlawfully and without authority,” and charges that the acts of the city were unlawful and unauthorized. As the city had the power to do the acts charged, and as such acts in themselves were lawful, the words “ unlawful and without authority,” as used, do not affect the case. There is no allegation that the city acted negligently, unskillfully, maliciously, or wantonly.
The Ohio cases to which we are referred stand almost alone, as the other cases are either founded upon some statute creating a liability, or upon the provisions of state constitutions differing widely from that of Kansas. The numerous cases supporting the conclusion we have reached are best sustained in principle.
Counsel insists, however, that the statute expressly provides for the payment of damages occasioned by the improvement of the streets of a city of the second class, and refers to §§ 54 and 65, ch. 100, Laws of 1872. Section 54 reads:
“ The council shall have power to open, widen, extend or otherwise improve any street, avenue, alley, or lane, etc.: . . . Provided, That all damages sustained by the citizens of the city, or the owners of property therein, shall be ascertained as prescribed in § 65.”
. Without this section the city had the power to make the improvement complained of, under § 2, ch. 40, Laws of 1881, and like power was granted under § 32, ch. 100, Laws of 1872. (See also § 19, ch. 65, Laws of 1873.) Said §54 grants to the council the power to open, widen or extend any street,'and the words “or otherwise improve” must, under the rules of construction, be limited by the preceding language of the section, and therefore must be held to refer only to such improvements as are like those mentioned, namely, “ to open, widen and extend,” or are necessarily incident thereto and which partake of the same character. Sec. 65, to which § 54 refers, merely provides for compensation to persons whose property shall be taken for public use or injured by the taking for public use; and therefore under its, terms, persons incidentally injured by a change in the established grade of a public street already opened, are not entitled to compensation. The injury incidentally affecting adjacent property by the change of the grade of a public street, is not, under said § 65, the taking of private property for public use. We think it was not intended by the sec tions referred to to compensate persons incidentally injured by a change in the established grade of a public street.
The judgment of the district court must be affirmed.
Valentine, J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
August 2, 1879, Julian McGeorge and William C. Marshall executed eight promissory notes to the Aultman-Taylor Company, or order, for the amounts hereafter stated, to become due on or before the dates hereafter-stated, and each drawing interest at the rate of ten per cent, per annum. The amounts of the notes and the dates when they respectively became due are as follows: (1) $50, due Dec. 1, 1879; (2) $100, due Nov. 1, 1880; (3) $83, due Dec. 1, 1880; (4) $34.50, due Dec. 1, 1880; (5) $100, due Jan. 1, 1881; (6) $143.50, due Dec. 1, 1881; (7) $34, due Dec. 1, 1881; (8) $140, due Jan. 1, 1882. These notes were given by McGeorge and Marshall for agricultural implements sold to them by the Aultman-Taylor Company through the agency of Thomas & Co. At the same time that these notes were given, McGeorge and Marshall executed a chattel mortgage to the Aultman-Taylor Company on said agricultural implements, to secure the payment of the notes. The sale, as before stated, was effected through the agency of Thomas & Co., who acted as the agents of the Aultman-Taylor Company; and as compensation for their services, and as a commission for effecting the sale, Thomas & Co. received the fourth and the seventh of said promissory notes. This was in substantial conformity with a previous contract entered into between the Aultman-Taylor Company and Thomas & Co., under which contract Thomas & Co. were to receive a commission generally of about ten per cent, on all the sales of agricultural implements made through their agency.
The first two notes were paid when they became due, and the other six notes have not yet been paid. The said two notes received by Thomas & Co. were transferred to them by the Aultman-Taylor Company merely by delivery. Afterward, and after the said two notes had become due, Thomas & Co. sold the same to James I. Wyer, and transferred the same to him merely by delivery. No written assignment was ever made of either the notes or the mortgage, and no assignment of the mortgage or of any interest therein was ever made except merely by the delivery of the notes. Afterward Wyer, without the knowledge or consent of the Aultman-Taylor Company, took possession of a portion of the mortgaged property, and sold the same to Moses Marshall, receiving therefor $89, which paid the said two notes held by him and left a surplus in his hands of $3.52.
Afterward the Aultman-Taylor Company commenced this action against McGeorge, William C. Marshall, Wyer, and Moses Marshall, for the purpose of recovering a judgment for the amount of the four notes still held by it, and for the purpose of having determined the priority of liens upon the mortgaged property, and of obtaining such other and further relief as would be right and proper in the case. The plaintiff, the Aultman-Taylor Company, obtained a judgment against McGeorge and William C. Marshall for $606, the amount of the four notes, with interest, still held by the plaintiff, and also obtained an order that the remainder of the mortgaged property be sold to satisfy such judgment; and such property was afterward sold for $68.90. Afterward a trial was had between the Aultman-Taylor Company and Wyer before the court without a jury, and the court, after making certain special findings of fact and of law, rendered a judgment in favor of the Aultman-Taylor Company and against Wyer for the said $3.52, but also rendered a judgment in favor of Wyer and against the Aultman-Taylor Company for costs. The Aultman-Taylor Company now brings the case to this court and seeks a reversal of this judgment.
We think the judgment of the court below should be reversed.
It is a general rule that where two or more notes secured by a single mortgage fall due at different times, they should be paid out of the mortgage fund in the order of their maturity, unless some agreement or some paramount equity would require a different order of payment. (Richardson v. McKim, 20 Kas. 350, and cases there cited; 2 Jones on Mortgages, ¶ 1699, and cases there cited.) Where two or more notes secured by a single mortgage fall due on the same day, and the mortgage fund is not sufficient to pay the entire amount of the notes, the notes should be paid pro rata out of the mortgage fund, unless some agreement or paramount equity would require a different mode of payment. And these rules apply, whether the notes are still held by the original mortgagee, or are held by him and others, or entirely by others.
In the present case, there is nothing to take the case out of the general rules for the order of payment or the mode of payment. No contract was made or understanding had between the parties authorizing the two notes delivered to Thomas & Co. to be paid prior to those retained by the Aultman-Taylor Company; and there is nothing in the case of an equitable nature, or otherwise, requiring that they should be paid prior to the other notes falling due prior to their maturity. There is nothing in the entire case that gave to Thomas & Co. any equitable rights paramount to those of the AultmanTaylor Company, and Wyer has simply succeeded to the rights of Thomas & Co. Thomas & Co. themselves transacted all the business at the time these notes were given, and they, as well as the payees and the Aultman-Taylor Company, determined the priorities of their payment. They determined which of the notes should be paid first and which last; and the transaction was supposed to be one mutually beneficial to both the Aultman-Taylor Company and Thomas & Co., and was in accordance with their previous contract, and was satisfactory at the time; and the priorities of payment should be as they then agreed that they should be.
It is true that the notes as they were originally made were all negotiable, for they were made payable to the Aultman-Taylor Company, or order; but the two transferred first to Thomas & Co. and then to Wyer lost their negotiability, for the reason that they were transferred merely by delivery, and not by indorsement, and were transferred to Wyer after they became due; and, as before stated, the mortgage was never transferred by assignment at all, except constructively by the mere delivery of the said two notes. Hence, neither Thomas & Có. nor Wyer ever obtained any equity in the mortgage fund prior to that held by the Aultman-Taylor Company for the payment of notes maturing at the same time or earlier than the two notes held by Thomas & Co. and by Wyer. Many cases might be suggested where the assignee of a note secured by a mortgage and falling due subsequently to some other note secured by the same mortgage should be first paid out of the mortgage fund; but this is not one of that class of cases. This case, as before stated, comes within the general rule of payment in such eases.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered upon the special findings in accordance with this opinion.
All the Justices concurring. | [
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Per Curiam-:
No brief has been filed in this case, or presented to any member of this court. Upon the facts of the case, we think judgment should be rendered in favor of the plaintiff and against the defendants. Judgment will be rendered accordingly, and a peremptory writ of mandamus will be allowed, as prayed for by the plaintiff; | [
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The opinion of the court was delivered by
O’Connor, J.:
This is a damage action growing out of an automobile collision in which the plaintiff, Velma V. McGlothlin, sustained personal injuries. A substantial judgment was rendered against the defendants, Harold P. Harvey and Phillip A. Wiles, and they have appealed.
The numerous trial errors urged as grounds for reversal have been condensed into four main categories for the purpose of discussion: (1) removal of plaintiff’s contributory negligence as an issue in the case; (2) denial of motions for a directed verdict and a motion for mistrial; (3) rulings as to admissibility of evidence; and (4) adequacy of the court’s instructions.
Mrs. McGlothlin, along with two other ladies, were paying passengers in a Mercury automobile driven by defendant Harvey. The collision occurred about 6:37 a. m., December 19, 1966, at the intersection of Greenwich Road and Kellogg in Wichita when the occupants of the Harvey vehicle were on their way to work at the Cessna Aircraft Company. The Harvey car was proceeding south on Greenwich Road when it was struck by a Chevrolet pickup going west on Kellogg (U. S. Highway 54). The truck, owned by Schofield Bros. Pontiac, was being driven by defendant Wiles.
Kellogg is a four-lane thoroughfare with two lanes for westbound traffic, separated from the two eastbound lanes by a 30-foot medial strip. An access road runs parallel to Kellogg on the north side thereof and is separated from the westbound lanes by an island 14 feet wide with a chain link fence approximately 5 feet high in the center of the island. The posted speed limit for traffic on Kellogg at that point is 50 miles per hour. The main intersection is controlled by yellow flashing caution signals for east and west traffic on Kellogg and by red flashing lights for north and south traffic on Greenwich Road. In addition, there is a stop sign located just north of the intersection for southbound traffic approaching the intersection on Greenwich Road. At the time of the accident, the weather was clear and the intersection was brightly illuminated by street lights. Traffic at the intersection was heavy because of the proximity of several nearby aircraft plants.
According to testimony by the occupants of the Harvey automobile, when Harvey arrived at the intersection, he stopped at the stop sign and waited for westbound traffic on Kellogg to clear the intersection. Several vehicles in the outside westbound lane were stopped or moving very slowly with their right turn signals blinking, indicating their intention to turn north on Greenwich Road. Aware of the intended movement of the cars in the outside lane, Harvey pulled to the north edge of Kellogg, made a “rolling stop,” and seeing nothing approaching in the inside lane, proceeded slowly across the outside lane. He glanced to the right for traffic from the west on Kellogg, and upon looking back to the left, saw the pickup operated by Wiles bearing down on him from the east. At that point Harvey’s vehicle was “centered over the center of the inside lane” and he “was looking right down the center of the pickup hood.” Harvey accelerated his automobile in an effort to get out of the way, but the pickup struck the left rear side and door of the Mercury. Plaintiff, who was seated on the left side of the back seat, sustained serious injuries, necessitating her being confined to a hospital for more than a month and being off work for nearly 12 weeks. The other two lady passengers who were riding in the back seat were also injured.
On the morning in question, defendant Wiles was driving the Schofield truck from his home in Augusta to his employer’s place of business in Wichita. He testified he was in and out of the two westbound lanes all the way from Augusta, passing other cars. Although he did not watch his speedometer closely during the course of his journey, he tried to stay within the speed limit of 60 miles per hour until reaching the posted 50-mile-per-hour zone M of a mile east of the Kellogg-Greenwich Road intersection, at which point he slowed to 45 or 50 miles per hour and proceeded in the inside lane of traffic. Wiles estimated he slowed to 35 miles an hour as he approached the intersection and first saw the Harvey automobile. He immediately applied the brakes and at the time of impact, in his opinion, was going no more than 10 miles per hour. The pickup left 50 feet of skid marks up to the point of impact. A police officer testified a vehicle traveling 30 to 33 miles per hour would have stopped after leaving 50 feet of skid marks.
There was also evidence defendant Wiles had passed two other automobiles proceeding in a westerly direction on Kellogg immediately prior to the collision. The occupants of one of these cars said that when Wiles passed them about two miles east of the intersection he was traveling at least 70 miles per hour. According to the driver of the other automobile, Wiles was going about 65 or 70 miles per hour when he passed him three or four blocks east of the intersection. Defendant Harvey was unable to estimate precisely the speed of the pickup immediately before impact, but did say it “was coming fast” — “at least 60 miles an hour.”
The three passengers in the Harvey automobile brought separate actions against Harvey and Wiles. The cases were consolidated for trial and judgments were entered for each of the passengers against both defendants. An appeal was perfected only with respect to the judgment rendered for the plaintiff McGlothlin.
Both defendants complain about removal of the issue of plaintiff’s contributory negligence at the close of all the evidence. Defendant Wiles argues that the evidence at least presented a jury question as to whether or not plaintiff exercised reasonable care for her own safety. Defendant Harvey makes the rather novel argument that the issue of plaintiff’s contributory negligence was improperly removed from the case because if there was any evidence of negligence on his (Harvey’s) part, such evidence would also constitute evidence of contributory negligence on the part of plaintiff. Under the facts disclosed in the record, neither argument can be upheld.
The rule is well established in this jurisdiction that a passenger in a motor vehicle has the duty to exercise reasonable care for his own safety; that is, that care which a reasonably careful person would use his own protection under the existing circumstances. (Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P. 2d 980; Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P. 2d 748; Kendrick v. Atchison, T. and S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061; Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049; Henderson v. National Mutual Cas. Co., 166 Kan. 576, 203 P. 2d 250; P. I. K. 8.91 and comment.)
In the recent case of Kelty v. Best Cabs, Inc., supra, we said that a passenger was negligent should he fail to warn the driver of approaching imminent danger. We held that the presence of a taxi cab standing in the driveway of a filling station and about to enter the street was not sufficient to suggest to the passenger in a vehicle proceeding on said street the presence of an imminent danger against which she should have warned her driver, and the trial court properly refused to submit an instruction regarding the passenger’s contributory negligence. The opposite result, however, was reached in Sander v. Union Pacific Rld. Co., supra, where a train was approaching a railroad crossing.
Both defendants seek to support their position by what was said in Beye v. Andres, supra:
. . It is a general rule in this state that although the negligence of a driver is not imputed to a guest, or passenger, it nevertheless is the duty of a guest, or passenger, to exercise reasonable care for his own safety and, where he has the same opportunity as the driver to observe the dangerous conditions and circumstances and fails to take any precaution whatsoever for his own safety until it is too late, the matter of his contributory negligence is a proper question to be submitted to a jury.” (P. 506.)
The contention is made that plaintiff was fully aware of the heavy traffic congestion at the intersection and had the same opportunity as her driver to observe traffic from the east on Kellogg. These circumstances, defendants say, presented a jury question as to whether plaintiff had kept a proper lookout and should have warned her driver of the impending danger. We do not agree.
The evidence discloses that plaintiff, as well as the other passengers, had ridden to work with Harvey for some time. AH of them had complete trust ánd confidence in his driving. Traffic conditions at the intersection were not unusual on the morning of the accident. When Harvey slowed, or came to a “rolling stop,” at the north edge of Kellogg and proceeded to cross the outside lane, plaintiff said she could see the inside lane east of the intersection for a distance of three or four car lengths and saw nothing approaching. The first notice she had of any danger was when Harvey accelerated the automobile and she looked up and saw the pickup. In her words, she “had no time to warn the driver.”
The argument advanced by defendant Harvey, that if he is negligent, plaintiff is also contributorily negligent, is whoUy untenable. Ordinarily, the duty of care imposed on a passenger in the back seat is not commensurate with that required of the driver of the automobile. A passenger, as a general rule, may properly rely upon the driver to attend to the operation of the vehicle in the absence of knowledge of danger or of facts which would give him such knowledge. In Billings v. Aldridge, 133 Kan. 769, 3 P. 2d 639, the court, speaking through Justice Harvey said:
“, . . It is true that in whatever situation a person is he is under the duty to use due care for his own safety, but what constitutes due care depends upon the situation which he is in, and perhaps on many other circumstances. With respect to watching the road, observing possible dangers, handling the car, and the like, it is clear that the duty of the passenger in the back seat is not commensurate with that of the driver of the automobile. It is difficult to state a hard and fast rule by which it may be determined whether the passen ger or guest is negligent. Circumstances may be such that he would not be at fault if he took a nap.’ ” (p. 773.)
A case bearing factual similarity to the instant case is Link v. Miller, 133 Kan. 469, 300 Pac. 1105. There, the plaintiff was riding in the rear seat of an automobile involved in a collision with another vehicle at an intersection. The evidence revealed that at a point 200 feet from the intersection plaintiff could see the other automobile approaching the intersection and that she failed to warn her driver or make any effort to avert the collision. In answer to the defendant’s contention that plaintiff was guilty of contributory negligence, barring her recovery, this court stated:
“. . . It was not the duty of Miss Link to remonstrate or take steps to leave the car until the danger became apparent. (Naglo v. Jones, 115 Kan. 140, 222 Pac. 116.) At the rate the car in which appellant was riding was traveling as it approached the intersection about ten seconds elapsed between the time when the jury found that appellee could first see the approaching car till the collision occurred. When she first saw the car she was not in a dangerous position. She had a right to expect the driver to manage the car so as to avoid a collision. She was not in a place of danger till the car reached a point near enough to the intersection that she could see it could not be stopped or slowed up quickly enough to avoid a collision. At that point what was there that she could do?” (p. 472.)
Here, the evidence is clear that plaintiff looked for approaching vehicles on the inside lane of Kellogg as Harvey moved across the outside lane, but saw no apparent danger. She had every right to expect that her driver would maintain a proper lookout for approaching vehicles and yield to those which were so close as to constitute an immediate hazard. By Harvey’s own admission, his position as driver gave him a much better vantage point than any of his passengers for observing traffic on the inside lane. The duty of a passenger is dependent upon his opportunity to observe and warn the driver of approaching imminent danger. The Harvey vehicle was proceeding across the outside lane of traffic at 10 to 20 miles per hour. Although plaintiff did not become aware of the danger until Harvey accelerated his automobile, which was too late for her to give a warning, she would have been in no better position had she maintained a constant lookout. Perhaps the danger would have become apparent at an earlier point in time, but the speed at which the respective vehicles were traveling would have rendered futile any remonstrance or warning by her.
A person is presumed to have exercised reasonable care for his own safety in the absence of evidence to the contrary. (Kendrick v. Atchison, T. and S. F. Rld. Co., supra.) The evidence here does not suggest, and no inference can be drawn, that plaintiff failed to exercise reasonable care for her own safety under all the circumstances. We cannot say the trial court erred in withdrawing the issue of plaintiff’s contributory negligence from the jury.
We now turn to the propriety of the trial court’s rulings regarding motions for directed verdict and a motion for mistrial.
Defendant Harvey moved for a directed verdict at the close of plaintiff’s evidence and again at the end of all the evidence. The overruling of the motions on both occasions is now assigned as error. Harvey pursues the alternative of his earlier argument claiming that if the trial court properly eliminated the issue of plaintiff’s contributory negligence, a consistent view of the same evidence requires the conclusion that Harvey was not negligent. The fallacy of this argument is that the duty of a passenger in the back seat of an automobile cannot be equated to the duty imposed on the driver.
We need not burden this opinion with further review of the evidence concerning Harvey’s actions leading up to the collision. It is sufficient to recall that after stopping at the north edge of the highway, he proceeded slowly across the outside lane and was nearly centered in tire inside lane when he first saw the Wiles pickup. At that point, Harvey accelerated his automobile in an effort to get out of the way, but only succeeded in moving the rear portion of his vehicle into the path of the truck. Whether his actions were those of a reasonably careful person under the existing circumstances was, in our opinion, a matter for the jury. The evidence as heretofore presented created a factual issue upon which reasonable minds could reach different conclusions and was sufficient to make a submissible case. (Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 454 P. 2d 124; Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67.)
Defendant Wiles claims the trial court should have granted his motion for mistrial because plaintiff’s counsel, in his opening statement and by questions posed to various witnesses, “deliberately and improperly brought to the jury’s attention the probability that the responsibility for the satisfaction of any judgment against Wiles would be assumed either by Schofield Bros. Pontiac Co. or its insurer.” The record reflects that counsel twice referred to Wiles’ employer in his opening statement, but it would appear in other parts of the opening statement and in the interrogation of the witnesses the matter was sufficiently clarified and the only connotation intended was the truck driven by Wiles was owned by the Schofield agency. The reference to insurance was made by plaintiff’s counsel at a side-bar conference out of the hearing of the jury, and the defendant is in no position to claim the jury was prejudiced by what transpired. From the entire record, we are satisfied the jury clearly understood the law suit was against Wiles individually, and the mere fact the pickup was owned by the Schofield agency was to have no significance with respect to the rights and responsibilities of the parties. The motion for mistrial was properly overruled.
Both defendants claim prejudicial error was committed by the district court as a result of various rulings relating to the admissibility of evidence.
One of the automobiles passed by defendant Wiles immediately prior to the collision was driven by Bernard Davis. In response to a question about his state of mind at the time, Davis, over Wiles’ objection, was permitted to testify that “I just figured the way he was driving, he was looking for an accident.” Although we cannot agree with plaintiff’s argument that the statement came within the exception to the hearsay rule found in K. S. A. 60-460 (l), we believe the testimony more nearly constituted an opinion of a non-expert witness and was admissible, if at all, under K. S. A. 60-456 (a). At any rate, its admission cannot be said to be reversible error.
Another evidentiary ruling complained of is the exclusion of Exhibit D — plaintiff’s health and work record kept by her employer. The main basis for the trial court’s ruling was that the information contained in the exhibit had previously been testified to and was already in the record. This evidence related only to the extent of plaintiffs injuries and damages. Inasmuch as no complaint is made about the verdict being excessive, defendant Harvey cannot claim he was prejudiced by the exclusion of the exhibit. Nevertheless, his argument on the point has been examined and neither error nor prejudice is affirmatively shown. (See, Shepard v. Dick, 203 Kan. 164, 453 P. 2d 134.)
Turning to the instructions, we find that the district court gave an instruction substantially in the words of K. S. A. 8-552 (b) requiring a driver approaching a stop intersection to stop and yield the right of way to any vehicle approaching so closely as to constitute an “immediate hazard.” (P. I. K. 8.29.) Defendant Wiles complains the jury was not apprised of the meaning of “immediate hazard.” The record is silent as to the reason the trial court declined to submit defendant’s suggested definition of the term. “Immediate hazard” is not one of the statutory definitions contained in the Uniform Act Regulating Traffic On Highways (K. S. A. 8-501), and we are cited no authority that error is committed if the term is not defined.
The use of statutory language in an instruction is proper when it states the law applicable to the facts of the case. (Wegley v. Funk, 201 Kan. 719, 443 P. 2d 323.) The court, however, is not required to define every phrase used in an instruction unless from a fair reading of the instructions as a whole there is likelihood the jury will be misled or left to speculate without further explanation. We note that the authors of P. I. K. did not see fit to include a definition of “immediate hazard” as one of the pattern instructions, nor did they suggest the term be defined. The term does not lend itself to a precise definition. Whether a vehicle is approaching so closely as to constitute an “immediate hazard” depends on the facts and circumstances of each particular case. (e. g. Blakeman v. Lofland, 173 Kan. 725, 252 P. 2d 852; Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538.) An instruction attempting to define the term' would of necessity include evidentiary facts, many of which could be in serious dispute. Such an instruction would frequently be susceptible to the criticism of singling out and giving special emphasis to particular evidence, or omitting an essential evidentiary fact. We are unable to agree with defendant’s contention that without benefit of a definition the jury was left to conjure and speculate as to what constituted an “immediate hazard.”
Complaint is also made by Wiles that instruction number 12 was given without an instruction that a “statutory violation must be found to have been the proximate cause of the accident.” Instruction number 12, which was verbatim from P. I. K. 8.02A, pertained to the common law duty of a driver to keep his vehicle under proper control and drive within his range of vision. The short answer to this point is that the instruction did not relate to any specific alleged statutory violation and therefore, did not come within the rule stated in Oil Transport Co. v. Pash, 191 Kan. 229, 380 P. 2d 341, that mere violations of statutes regulating traffic are not sufficient to make the driver guilty of actionable negligence unless such violations contributed to the accident and were the legal cause of the injury sustained. Furthermore, in instruction number 2 (P. I. K. 6.01) defining the issues and claims of the respective parties, the jury was informed that for the plaintiff to recover, it must find the negligence of one or both defendants was the direct cause of plaintiff’s injuries and loss.
We are satisfied that the instructions, when considered together and in light of each other, fully apprised the jury of the issues presented and the law applicable thereto.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action under chap. 94, Laws 1874, to recover of the railroad company the value of a span of horses killed on the track by a passing train. The testimony left a question whether the animals went upon the track by jumping over a sufficient cattle-guard, or entering through a broken and defective panel of fence. The jury found the latter, and we think upon the testimony the finding was correct. No special complaint is made of this finding, but it is insisted that the court erred in its instructions, for two reasons: First, it is claimed that there is conflict between those given at the instance of the plaintiff, and those given at the request of the defendant. We think not. The court in one told the-jury that, if the animals jumped a sufficient eattle-guard and-thus got upon the track, the condition of the fence was immaterial and the company not liable. This was upon the theory advanced by the defendant; and in it is no conflict with an instruction as to what constitutes a sufficient fence,, which was applicable only to the plaintiff’s theory. The other objection is, that the court gave certain abstract propositions of law which misled, or might have misled the jury.. The facts in reference to this are, that the court in its first, and second instructions given at the instance of the plaintiff, quoted literally §§4915 and 4919, Comp. Laws of 1879, the-two sections which prescribe the liability of the railroad company for stock killed in case its track is not fenced; and in its third instruction given at like instance, quoted §§ 2561,. 2562, 2563, sections which define the requisites of legal fences^ Now so far as the first two instructions are concerned, they state what of course is the law, and there is nothing in them of any moment which was not applicable to the case at bar. They simply contain the legislative declaration that a railroad company whose track is not fenced with a good and sufficient fence is responsible for cattle killed on its track. So far as the third instruction is concerned, part of the sections quoted refers to fences of a different kind from that disclosed by the testimony. Of course as to such portion of the sections the instruction was inapplicable. But while it is sometimes true that, when instructions correct as abstract propositions, but inapplicable to the case on trial, are given, the verdict cannot be permitted to stand, yet this rule obtains only when there is reason to believe that the jury were misled, or their attention diverted from the real issues by such inapplicable instructions. The mere fact that an instruction is inapplicable does not compel a reversal. If it appears that the matter contained therein is of such a nature that in no manner could it affect the jury prejudicial to the rights of the party complaining, the judgment will not be reversed. (Burton v. Boyd, 7 Kas. 17; Hentig v. Kansas Loan & Trust Co., 28 id. 617; Edwards Bros. v. Porter, 28 id. 700; Tollman v. Jones, 13 id. 438.)
These being the only matters complained of, and in them appearing no error, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment, brought August 29,1881, by John Belz against Lorenzo F. Bird, to recover a certain lot in the city of Atchison. The case was tried on May 19,1882, by the court without a jury, and the court made special findings of fact and of law, and rendered judgment upon such findings in favor of the defendant and against the plaintiff for costs. May 18, 1883, the plaintiff brought the case to this court.
The plaintiff’s claim of title is founded upon two tax deeds, the first of which was executed on May 24,1864, for the taxes of the years 1861,1862, and 1863, in pursuance of a tax sale made May 22,1862, for the said taxes of 1861. The second tax deed was executed June 17,1881, for the taxes of the years 1861,1862,1863,1864, 1865, 1866,1867, 1868,1869,1870, 1871, 1872, 1873, 1874, 1876,1877, 1878, and 1879; also in pursuance of the said tax sale of May 22, 1862.
The defendant’s claim of title is founded upon a certain tax deed executed May 18,1880, for the taxes of the year 1875, on a sale made September 9, 1876, for said taxes of 1875; and also upon a judgment rendered in favor of the defendant and against the original owner of the land, about the month of December, 1881, quieting the defendant’s title.
It seems now to be admitted by the plaintiff that his tax deeds are void as conveyances of title; but he still claims that in connection with the other facts and circumstances of the case, they are sufficient to authorize him to recover the taxes which he has paid on the property in controversy, together with interest and costs.
The first question we shall take into consideration will be the validity or invalidity of the defendant’s tax deed; for if it is valid as a conveyance, there will be but little necessity to enter into any discussion of any of the. other questions supposed to be involved in the case; for a valid tax deed extinguishes and destroys all other titles and liens existing or based upon anything existing at the time of the levy of the taxes upon which the tax deed is founded. (Board of Regents v. Linscott, 30 Kas. 240.) Is the defendant’s tax deed valid as a conveyance? The discussion of this question will require a discussion of almost all the questions involved in the case. The property in controversy has been taxable and taxed ever since and including the year 1861, and the plaintiff has paid the taxes for every year since that time, except for the year 1875. On May 22, 1862, the property was sold to Atchison county for the taxes of the year 1861. This sale seems to be regular and valid in every respect, except that the county treasurer in giving the notice of the sale simply said that he would “offer for sale” the property in controversy on the first day of May, etc., instead of saying that he would “ offer for sale at public auction” the said property at said time. In other words, he did not state in the notice of sale specifically whether the sale which he intended to make would be at public auction, or not. Now the law requires that the notice of sale should state that the property will be sold “at public auction; ” and it is possible that this defect in the present notice would alone invalidate any tax deed founded on such sale, provided any person having a right to contest the tax title should attack the same in a proper manner and at a proper time; but still we do not think that such a defect would render the sale itself absolutely void. We think the sale would nevertheless be valid until set aside in some proper proceeding by some competent authority. . It would authorize a charging up of the subsequent taxes against the property on the book of tax sales, and in proper time it would authorize a tax deed to be executed upon such sale; and if the deed were not attacked by some proper proceeding until the statute of limitations had run in favor of the deed, a perfect title would be obtained by virtue of such sale and such deed and such statute of limitations. Presumptively, the sale itself was in all respects legal and valid; presumptively, the property was in fact sold “ at public auction,” as the law requires; and therefore we must consider the sale as valid. As before stated, Atchison county was the purchaser at such sale.
On May 16, 1864, the plaintiff Belz took an assignment of the tax-sale certificate from the county treasurer; but as the county treasurer at that time had no authority to assign the tax-sale certificate, the assignment was void; and therefore the property still remained in legal contemplation, in the hands of Atchison county. (Sapp v. Morrill, 8 Kas. 677.) At the time of said sale in 1862, and since, the statutes of Kansas have provided “ that no lands or town lots so bid off for the county shall be sold for any taxes levied subsequent to such bid, until they shall have been redeemed, or shall be sold by the county, or the tax certificate issued to the county shall have been assigned.” (Comp. Laws of 1862, ch. 197, § 48; Gen. Stat. of 1868, ch. 107, § 96; Comp. Laws of 1879, ch. 107, §122.) The property in controversy has never been “redeemed” from the sale of May 22, 1862, and in legal contemplation it was not “sold” by the county, nor was the tax-sale certificate “assigned” prior to the sale of September-9, 1876. Therefore the sale made to Atchison county on September 9,1876, for the taxes of the year 1875, which is the tax sale upon which the defendant’s tax deed is founded, is void. (Morrill v. Douglass, 17 Kas. 291.) Or more properly speaking, such sale is voidable; for if the tax sale and the tax deed founded thereon were not attacked by any person having a right to attack the same, until the statute of limitations had run in favor of the tax deed, the sale would be valid, and the tax deed founded thereon would, by virtue of the statute of limitations, ripen into a valid and perfect tax title. This, then, brings us to the conclusion that the defendant’s tax deed is not sufficiently valid to withstand an. attack made by any person who has any right to attack the same. Now the original owner of the land undoubtedly had the right to attack the defendant’s tax deed; but he did not do so, but on the contrary the, defendant quieted his title as against the original owner, and by that means obtained the title of the original owner, as well as his own tax title under said tax sale of September 9, 1876, and the tax deed founded thereon; and as the title of the original owner was the better title, the title paramount, it must be held that the defendant’s tax title is now merged in the original owner’s title; for, as the defendant himself admits, when two titles are united in one and the same person, the less title is merged in the greater. And therefore if the plaintiff has the right to recover the taxes which he has paid, were the property still in the hands of the original owner, and were this suit a litigation between the plaintiff and the original owner, he still has a right to recover such taxes in this suit; for the present defendant in fact represents and is the successor of the original owner.
Now has the plaintiff the right to recover such taxes? It must be remembered that these taxes were not paid by the plaintiff for the purpose of redeeming the land, or for the purpose of discharging the land from the taxes, but they were paid for the sole purpose of procuring a tax title to the land; and hence such payment will not and cannot inure to the benefit of the original owner of the land, or to any person claiming under him. (Haxton v. Harris, 19 Kas. 511.) With reference to the original owner or his successor, the taxes have not been paid, but are still due upon the land and constitute a lien thereon. The only question that can be considered as in any respect doubtful, is whether the county of Atchison or the plaintiff is entitled to recover such-taxes. The plaintiff paid them with no intention of giving them to the county, and no county officer has as yet claimed that they belong to the county, but all the officers having any connection with the transactions- have recognized the plaintiff’s right thereto. In 1864 the treasurer assigned the tax-sale certificate to the plaintiff, and the county clerk, in pursuance thereof, executed a tax deed to him for the property. In 1881 the treasurer issued another tax-sale certificate for the benefit of the plaintiff, and the county clerk assigned the same to the plaintiff; and then the county clerk issued to the plaintiff another tax deed on such certificate; and. no officer has ever yet attempted to collect the taxes from the original owner óf the laud, or from his grantee or successor. And the law-making power of the state has also said, in express terms, that the party paying the taxes in such cases, and not the county, shall be entitled to recover them. (Gen. Stat. of 1868, chap. 107, §117; Comp. Laws 1879, chap. 107, § 142.) These chapters are the general tax laws of Kansas, passed respectively in 1868 and in 1876.
This court has already held, in the case of Smith v. Smith, 15 Kas. 290, 294, et seq., that where a person was in possession of real estate under a tax deed, executed in 1864 upon a tax-sale certificate issued in 1862 to the county, and assigned in 1864 to such person by the county treasurer, who had no authority at the time to assign the same, and the original owner commenced an action of ejectment against such person and ousted him from the premises — such person was entitled to the benefit of said §117 of the tax law then in force, and. might recover the taxes paid by him from the original owner. And said §117 is identical with said §142 of the present tax law, so far as the present question is concerned.
This court has also held, in the cases of Fairbanks v. Williams, 24 Kas. 16; Arn v. Hoppin, 25 id. 707; and Russell v. Hudson, 28 id. 99, that said § 142 of the present tax law applies to actions of ejectment where the holder of the tax deed is not in the possession of the property, and where the action is brought by the holder of the tax deed to obtain the possession, as well as to actions of ejectment brought against the holder of the tax deed, who is in possession. In the last case cited it was held that the court, after deciding the case against the holder of the tax deed, might declare the taxes which he had paid a lien upon the land, and might order that the land be sold to satisfy the same. And it would seem that in all cases of void tax deeds, whatever may be the grounds upon which the deeds are held to be void, the holder of the tax deed, when defeated in an action of ejectment, whether he is the plaintiff or the defendant, may recover the taxes which he has paid. (Smith v. Smith, 15 Kas. 290, 295; Fairbanks v. Williams, 24 id. 16; Coe v. Farwell, 24 id. 566; Estes v. Stebbins, 25 id. 315, 321; Arn v. Hoppin, 25 id. 707; Russell v. Hudson, 28 id. 99.) The foregoing would also seem to be the rule in many cases where the holder of the tax title is defeated in an action to quiet title. (Knox v. Dunn, 22 Kas. 683; Corbin v. Young, 24 id. 198, 202; Shaw v. Kirkwood, 24 id. 476; Cartwright v. McFadden, 24 id. 662; McKeen v. Haxtun, 25 id. 698.) And for similar rulings in still other cases, Hoffmire v. Rice, 22 Kas. 749; Millbank v. Ostertag, 24 id. 462, 471, et seq.; Wilder v. Cockshutt, 25 id. 504, 509, et seq. We think the foregoing cases conclusively settle the present case. Upon the foregoing decisions we think the court below should adjudge that the taxes paid by the plaintiff are a lien upon the property in controversy, and that in default of their payment by the defendant the property be sold to pay the same. Of course the taxes paid by the defendant for the year 1875 constitute a prior lien to that of the taxes of previous years; and if the property in controversy must be sold to pay the taxes, the taxes of 1875 should be paid prior to the taxes of any previous year.
The judgment of the court below will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a damage action for personal injuries arising from an automobile collision at an open, uncontrolled city intersection.
The trial court sustained a motion to dismiss and/or a motion for a directed verdict, before the plaintiff had presented all of his evidence on his case in chief, on the ground that the plaintiff by his admissions had convicted himself of contributory negligence which was a proximate cause of the collision.
The controlling question on appeal is whether the trial court erred in terminating the plaintiff’s case by declaring “the plaintiff’s evidence rested.”
The case involves a collision of two automobiles at an open city intersection which has no traffic control signs or signals. The litigants are the two drivers. Oscar R. Hodges (plaintiff-appellant) filed his petition against Dennis D. Lister, a minor, through his next friend and natural guardian, Elbert Lister (defendant-appellee), seeking damages for personal injury and property damages. At the pretrial conference the issues of fact to be determined resolved into the usual issue of negligence and contributory negligence which may have been the proximate cause of the collision and the damages and injuries sustained by the plaintiff.
When the case was called for trial, a jury was impaneled and the plaintiff commenced the presentation of his evidence. The plaintiff took the stand on his own behalf and testified under oath that on June 3, 1968, he was involved in an accident with Dennis Lister at the intersection of 22nd and Park Place in Wichita, Kansas. The plaintiff immediately prior to the accident was traveling west on 22nd Street at approximately 20 m. p. h., but as he approached the intersection of 22nd and Park Place he reduced his speed to around 15 m. p. h. When approximately 14 feet east of the intersection he looked to the north and south and observed no traffic approaching the intersection. Just as he entered the intersection the plaintiff again looked to the north and to the south and could see no oncoming traffic. When he looked the first time the plaintiff could see approximately one-fourth of a block to the north, and the second time he looked he could see approximately one-half of a block to the north.
A building at the northeast corner of the intersection located next to the sidewalk obstructed the view on the plaintiff’s approach to the intersection. There also was a tree in front of the obstructing building on Park Place between the sidewalk and the curb.
The plaintiff further testified he was three quarters of the way through the intersection when his car was struck on the right side by an automobile driven by Dennis Lister. When the plaintiff concluded his testimony and was excused, the trial court asked:
“Does the plaintiff have other evidence concerning liability except that which will be proffered?”
Thereupon an affirmative response from the plaintiff’s attorney was met with a direction by the trial judge that he “Call the witness concerning liability first.”
Bobby Watson, an officer of the Wichita police department, was called and testified under oath that he was a traffic investigator. After giving testimony concerning his qualifications, Watson said he arrived at the scene of the accident on June 3, 1968, shortly after it occurred. At that time the Renault driven by the plaintiff was across the center fine of Park Place and south of the intersection of 22nd Street. The other car, an Oldsmobile, driven by the defendant, was situated over the southwest curbline at the intersection. The plaintiff was found lying 40 feet south of the south curbline of Park Place. He was unconscious at the time, and the officer did not know whether the plaintiff would live because of the extensive injuries inflicted to his head. The officer established the point of impact 8 feet south of the north curbline of 22nd Street and 11 feet east of the west curbline of Park Place. From this point the defendant’s car was deflected to the south, southwest, jumped the curb, which is 6 or 8 inches tall, and struck a retaining wall 13 or 14 inches high around a residence, and came to rest pointing in a southwesterly direction. The plaintiff’s car came to rest with the left rear of the car 12 feet south of the curbline of 22nd Street. It was knocked in a curving manner covering 36 feet from the point of impact. The plaintiff’s car appeared to have been airborne from the point of impact to its resting place. It ended up facing east, with the plaintiff lying a little less than 30 feet from his automobile.
The measurements taken by the officer disclose the skid marks left by the defendant’s automobile. The right front wheel skidded 52 feet before impact and another 30 feet after impact. The right rear wheel skidded 36 feet to the point of impact and 28 feet after impact. The left front wheel skidded 28 feet to the point of impact, became airborne 14 feet and then skidded 10 more feet. No skid marks for the left rear wheel could be detected.
Counsel for the plaintiff proceeded to qualify the officer to testify concerning traffic accident reconstructions as determined from the physical facts available, but the trial court interrupted excusing the jury from the courtroom. The record then discloses:
“The Court: May we inquire, please, Mr. Pinkerton whether this witness— the remainder of this witness’ testimony is intended to reflect on the negligence of the defendant?
“Mr. Pinkerton: Yes, it is.
“The Court: And will the witness produce any evidence concerning a defense to possible contributory negligence on the part of the defendant?
“Mr. Pinkerton: Yes.
“The Court: And what will that be?
“Mr. Pinkerton: It will show the speed of the defendant’s vehicle.
“The Court: And what will the Officer’s estimation of the speed be? Can you tell us officer?
“Officer Watson: Yes, about forty miles an hour.
“The Court: Mr. Lister’s car — the defendant?
“Officer Watson: Yes.
“The Court: Then, does the plaintiff have other evidence concerning liability in the case?
“Mr. Pinkerton: This is the end of the liability evidence. This will be the last witness.
“The Court: Then, the plaintiff would rest on the liability question except for the proffer which has been discussed in Chambers, is that correct?
“Mr. Pinkerton: Yes.
“The Court: Would you make that proffer now?”
Counsel for the plaintiff then proffered the further testimony of Officer Watson and Jack Clark, the clerk of the traffic court of the city of Wichita. The proffer was summary in nature disclosing that Watson would testify the defendant’s car was speeding 40 to 50 m. p. h. at the time of the accident; that judging from the speed of the defendant’s automobile it was a minimum of 208 feet from the intersection, when the defendant first began to stop; and that the location of the defendant’s car at the time the plaintiff entered the intersection was back a sufficient distance to the north so as not to constitute a hazard had the defendant been obeying the speed limit. The proffer of Clark’s testimony was that he had control of the records of the traffic court of the city of Wichita, which would show a signed statement wherein the defendant admitted he failed to reduce his speed to avoid an accident.
The trial court interrupted and the record discloses the following:
“The Court: Well, since this proffered evidence pertains only to the possible negligence of the defendant we will take the objection under advisement. Now, that the plaintiff has rested on the question of liability . . .
“Mr. Pinkerton: I have not. I have Officer Watson’s testimony to give yet.
“The Court: The question that was asked at first is whether the plaintiff has any other evidence to offer concerning the question of defense on possible contributory negligence.
“Mr. Pinkerton: We will show that, too, your Honor.”
Counsel for the plaintiff then further attempted to show what Officer Watson’s testimony would be relative to the probable distance of the defendant’s vehicle from the intersection at the time the plaintiff entered the intersection.
Further presentation of the plaintiff’s evidence was terminated by the trial court in the following manner:
“The Court: The court declares the plaintiff’s evidence closed on the point of contributory negligence, and considering what the Officer would testify to and may testify to when the jury returns. The question of liability should now be argued as a matter of law.
“Mr. Pinkerton: I don’t understand your first ruling.
“The Court: Well, the record has been made on it. Would the defendant proceed with the motion concerning the question of law to be considered?
“Mr. Pinkerton: I do have the right to understand what you said. I would like to have what you said. I didn’t hear it.
“The Court: Would you read it back.
“(The Court Reporter read the Court’s statement back)
“Mr. Pinkerton: I object to your Honor’s ruling and let the record so show.
“The Court: We will ask again, Mr. Pinkerton — maybe this procedure is unusual from your experience but what other evidence would the plaintiff present in this case and will the plaintiff present in this case to reflect upon the defense of contributory negligence; what evidence to rebut the charge of contributory negligence that has been made against the plaintiff? What other evidence besides that which has been proffered will the plaintiff produce?
“Mr. Pinkerton: Like I say — the fact he was back a distance and die speed he was going — the fact my client undoubtedly entered the intersection first; the fact the law is such that states he can assume others will obey the law. We feel it is a question for the jury to determine whether or not my client was contributorily negligent.
“The Court: Well, the statement made by the Court was ‘this then places the case in such a posture that the defendant’s motion concerning contributory negligence can be argued now as a matter of law.’
“Mr. Pinkerton: I have heard no motion.
“The Court: The Court is entertaining such motion. Would you proceed, please
“Mr. Hiebsch: May it please the court. On the ruling of the Court that the effect of the proffered evidence here would not be received as being proper and competent evidence, or -whatever the court’s ruling here concludes as a matter of offering evidence on the question of liability, (emphasis supplied) and in effect constitutes the conclusion of the plaintiff’s case on the question of liability, then comes now the defendant and moves the court to dismiss the action and/or motion for a directed verdict on the basis that the evidence conclusively shows by the admission of the plaintiff himself, the plaintiff’s evidence, that the plaintiff was guilty of contributory negligence as a matter of law.
“The Court: I think we should say to Mr. Pinkerton this motion is now being argued assuming the evidence which has been proffered would be offered and would be competent; that is, the evidence of the other witness— the Clerk of the Police Court who is not here, plus the remaining evidence of the officer.
“The Court: Well, I think it should have been said that the Court believes from, having examined the depositions and having heard the case so far, (emphasis supplied) it is likely a directed verdict of negligence on the part of the defendant might be or might have been entered, and I think that could have been assumed and was assumed during the argument. Although, we of course, realize all the defendant’s case — in fact none of the defendant’s case has been presented. Mr. Gass, I would ask that where the Court said earlier ‘plaintiff’s case’ — ‘when the plaintiff’s evidence is closed’, what the Court should have said and intended to have said was that the Court declares the plaintiff’s evidence rested instead of closed. I don’t want to give the idea the statement was precluding other evidence.”
The jurors were then returned to the courtroom and the trial court gave them an explanation for terminating the case.
Judgment was entered for the defendant on the ground the plaintiff was guilty of contributory negligence as a matter of law. The reason given by the trial court was that the plaintiff failed to see a vehicle approaching on Park Place from the north which was there to be seen. He declared the defendant’s vehicle aproaching from the north was a hazard and should have been seen by any careful driver.
The trial judge concluded:
“. . . The costs of the case must be charged to the plaintiff. And in addition, the court will assess the tangible costs that can be computed — jury fees, lunch money, the mileage paid to the jury panel called to the courthouse today to try this case — those costs will be computed and added to the costs paid by the plaintiff. (Emphasis supplied.)
“The jury is now discharged from this case and from further service on the summons. The record may be closed.”
The foregoing clearly demonstrates arbitrary action on the part of the trial court, which has prejudicially affected the right of the plaintiff to fully present his evidence in the trial of the case. The trial court required the plaintiff to present a portion of his case in chief by proffered testimony, which at best was summarily stated. It also suggested interposition of the appropriate motion by counsel for the defendant. The trial court took into consideration depositions which had never been offered into evidence by either party, and whose admissibility was never determined. Furthermore, the trial court assessed court costs contrary to the provisions of K. S. A. 60-2003.
Jury fees, lunch money, and the mileage paid to the jury panel called to the courthouse for the trial of the case are not among the items of cost assessable to a party litigant by the foregoing section of the statute. These jury fees and costs are payable by the county from the county treasury. (K. S. A. 1970 Supp. 28-122; and K. S. A. 28-150.)
The trial court in directing tíre payment of these costs by the plaintiff disregarded the clear statutory directive.
The taxation of costs is purely a creature of statute and a court has no inherent power to award costs beyond statutory authorization. The point has been reviewed many times by this court regarding the taxation of attorneys’ fees as costs. (Walker v. Davis Van & Storage Co., 198 Kan. 452, 424 P. 2d 473; and McGuire v. McGuire, 190 Kan. 524, 376 P. 2d 908.)
The appellee on appeal relies on the proposition that admissions made by a party in an action are the strongest land of evidence (Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305) and upon the rules stated in Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765, where this court said:
“The vigor of the rule heretofore stated in testing the sufficiency of the evidence on demurrer yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions, frequently spoken of as informal admissions, are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross examination of the party. Direct application of the foregoing rule was made in Bell v. Johnson, 142 Kan. 360, 46 P. 2d 886. Syllabus ¶ 2 reads:
“ ‘Where the plaintiff, who is the only witness in his behalf, testifies to a state of facts which precludes his recovery, the effect cannot be avoided, and he is bound thereby.’
“. . . Though stated in various ways, the rule is applied when the plaintiff’s own testimony convicts him of contributory negligence. . . .” (pp. 441, 442.)
A case to the same effect is Folkerts v. Kansas Power & Light Co., 190 Kan. 159, 372 P. 2d 997.
Cases upon which the appellee relies for the proposition that the appellant has by his admissions established his contributory negligence as a matter of law are Mies v. Twietmeyer, 193 Kan. 97, 392 P. 2d 118; Smithson, Executor v. Dunham, 201 Kan. 455, 441 P. 2d 823; and Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783.
Whether the appellant is guilty of contributory negligence as a matter of law when he is involved in an intersection collision, where he testifies he did not see the other automobile with which he collided at the intersection, is a highly controversial matter in this jurisdiction. Sullivan v. Johnston, 164 Kan. 386, 190 P. 2d 417, and the authorities reviewed and cited therein are indicative. Fine points of distinction are made in the cases, and the proffer here required of the plaintiff in presenting his evidence was wholly unwarranted.
We do not, however, rest our decision on the controversial nature of the legal proposition just mentioned. Instead, we bottom our decision on the proposition that the plaintiff in the trial of a negligence action to a jury is entitled to present all of his evidence bearing on the material issues on his case in chief in open court before a motion for a directed verdict may properly be entertained. The plaintiff is not required, as the trial court directed here, to proffer a portion of his evidence. It is a prerequisite to a motion for a directed verdict lodged by the defendant that all of the plaintiff’s evidence on the material issues be presented before the jury in open court where the rules of evidence prevail. (See K. S. A. 60-250.) Under all of the facts and circumstances here presented the trial court has no authority to terminate the plaintiff’s case by arbitrarily declaring “the plaintiff’s evidence rested.”
The rules to be applied in reviewing the propriety of an order by the trial court sustaining a motion for a directed verdict are set forth in Toole v. Johnson, 195 Kan. 88, 402 P. 2d 823.
The provisions of K. S. A. 60-241 (b) authorize the defendant in an action tried to the court without a jury to move for involuntary dismissal of the action at the close of the plaintiff’s case, where, upon the facts and the law, the plaintiff has shown no right to relief. (Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847.) Clearly, that is not the situation here, where the case was being tried to a jury. Here the defendant’s motion to dismiss, stated as an alternative to the motion for a directed verdict, had no office to perform.
The judgment of the lower court is reversed with directions to grant a new trial. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a conviction of robbery in the first degree. (K. S. A. 21-527.)
During the nighttime on August 31, 1969, $104 was taken from an employee of the Salsman Oil Company in Caney, Kansas, by three men acting together. After striking the employee on the head and taking the money, the appellant and the two others fled to Oklahoma on U. S. 75 Highway, where their car was stopped near Copan. While the driver was being shaken down outside the car by the city marshal of Copan, the appellant slid behind the wheel and sped away. The marshal was about fifteen feet from the appellant, the dome light of the car in which appellant was riding was on, the headlights of the police car were on high beam and the beacon rotating.
The appellant abandoned the car a short distance down the highway. The next day he ran from Oklahoma police officers as they attempted to arrest him, but was later arrested some miles from the point at which he abandoned the car.
The first alleged error of which the appellant complains was the endorsement of additional names on the information by the state on the day of the trial. One of the names endorsed was that of Rex Mills, whose name was on the information, but which was the last name on the first page of the information and only partially on the copies. Another, Lloyd Schell, was also endorsed on the information, but his was misspelled, and appeared as Shell.
The names of the other witnesses sought to be endorsed were Oklahoma law enforcement officers who testified as to the facts surrounding the apprehension and arrest of the appellant.
At the commencement of the trial appellant’s counsel objected to the state’s motion to endorse additional witnesses on the information. The state’s motion was granted, with the provision that appellant’s counsel be given an opportunity to discuss and visit with the witnesses prior to any attempt to introduce their testimony. When appellant’s counsel was asked if he wished to visit with the witnesses prior to voir dire of the jury, he answered, “I would have no objection to doing it prior to the time of introduction of evidence.”
The appellant was given an opportunity to interview the proposed witnesses in advance of their testimony. There is nothing in the record to indicate that counsel for appellant did not exercise his prerogative to discuss in advance with the witnesses their proposed testimony. He advised the court he had no objection to the procedure; he did not request a continuance, or assert he was surprised by the testimony of the witnesses permitted to be endorsed on the information. In fact, he announced he was ready for trial.
The district court in its sound discretion may permit or deny the endorsement of additional witnesses on the information at any time subsequent to the filing of the information, including during the trial, and its discretion will not be disturbed on appeal unless it is clearly shown it abused its discretion, and the abuse resulted in material prejudice to the defendant. (Peterson v. State, 203 Kan. 959, 457 P. 2d 6; State v. Law, 203 Kan. 89, 452 P. 2d 862; State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63.) See also, State v. Jones, 202 Kan. 31, 41, 446 P. 2d 851; State v. Foster, 202 Kan. 259, 260, 447 P. 2d 405.
The purpose of the rule is to prevent surprise to a defendant at the time of the trial. (State v. Poulos, supra.) In the present case, the appellant had time to interview the witnesses endorsed on the information and made no request for a continuance. There is nothing in the record which in the slightest degree tends to show material prejudice to the appellant, and the point is without merit.
The appellant’s final contention is that the district court erred in failing to grant a new trial on the basis of newly discovered evidence.
In support of the motion, the appellant presented evidence in the form of his own testimony and the testimony of two other jail mates. The appellant also produced notes which were passed to him from his co-defendants, James and Marshall Norman, who were involved in the robbery. The evidence related mainly to a conversation within the confines of the jail, between one who had been convicted by a jury, and another who was awaiting trial. There was no new evidence or evidence that would materially or even partially change the evidence the jury heard at the trial. The notes presented a request that the appellant deny the Normans were involved in the robbery, and contained nothing with respect to his guilt or innocence.
A new trial should not be granted on the ground of newly discovered evidence unless the district court is satisfied the evidence would probably produce a different verdict, and the credibility of the evidence offered in support of the motion is for the district court’s consideration. Our appellate review of the order denying a new trial is limited to whether the district court abused its discretion. (State v. Law, supra.)
There is nothing in the record which would materially change the evidence the jury heard at the trial of the case, and there was no abuse of discretion on the part of the district court in denying the appellant’s motion for a new trial.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Harman, C.:
This was an action for damages for personal injury arising out of an automobile collision. By answers to special questions a jury found both litigants negligent in the operation of their vehicles and it returned a general verdict for defendant George R. Miller. Plaintiff Lola I. Howard has appealed from the judgment subsequently rendered against her.
We briefly summarize the evidence received at trial.
The locale of the collision was the intersection of Twenty-fourth and Mascot streets in Wichita, which was approximately three-fourths of a block south of plaintiff’s home. Mascot street, a north and south street, dips just prior to intersecting Twenty-fourth street from the north. A large church was located in the area northeast of the intersection, seventy-four feet north of the street line. On the date of the collision, June 9, 1966, high weeds were growing near the northeast corner of the intersection. The weed patch was fifteen to twenty-five feet in width and extended 135 feet east from the intersection along the north side of Twenty-fourth street. Mascot street south of the intersection was all concrete; the concrete extended east and west of the intersection for a distance of ten feet and north of the intersection for a distance of fifteen feet. North of the intersection Mascot street was a dirt road. Twenty-fourth street east of the intersection was graveled.
At about 8:10 a. m. on the day in question plaintiff left her home, driving southward in her Volkswagen. She testified she looked to her right as she approached the intersection (this view was open and unobstructed). As she passed the church she looked to the left and could see down Twenty-fourth about 150 feet. Defendant’s car was not in her view at that time and she saw no other movement. She looked back again to the right and was either still looking to the right or proceeding to look back when she was struck by defendant’s Buick, which she had not previously seen. After passing the church she had not again looked to the left. The weeds could have partially obstructed her view to the left but the view between the church and the weeds was clear. After the collision defendant came over to plaintiff’s automobile and said he had not seen her and evidently she had not seen him.
An investigating officer placed the point of impact somewhat south of the center of the intersection in its southwest quadrant. Both streets were thirty feet wide. Defendant told the officer he had seen plaintiff’s car from a distance of fifty feet. The officer found no evidence of speed in excess of thirty miles per hour. He observed skidmarks twenty-nine feet in length on the concrete which were made by defendant’s automobile up to the point of impact. The skidmarks extended further eastward into the graveled part of Twenty-fourth street but were not identifiable because other vehicles had obscured them after the collision. The right front of the Buick struck the left front fender and left side of the Volkswagen.
On behalf of plaintiff a police officer who qualified as an expert in accident reconstruction testified as to certain conclusions respecting the collision. He believed the speed of the Volkswagen at the point of impact to have been nineteen miles per hour. He was not permitted to testify as to other matters which will be noticed later.
The defendant testified he had not previously crossed the intersection where the collision occurred and was not familiar with it. As he drove west on Twenty-fourth he was traveling fifteen or twenty miles per hour. He started to cross the intersection and didn’t see anything. Then all of a sudden through the weeds he saw plaintiff’s car. He could see plaintiff wasn’t looking at him. He tried to avoid the collision by swerving to the left and putting on his brakes. He was probably forty or fifty feet from her car when he first saw her. He believed her vehicle entered the intersection first although only slightly ahead of his. He was given a citation for failure to yield the right-of-way and was convicted in court.
The jury in its answers to special questions found the defendant guilty of negligence causing the collision, which negligence consisted of failure to maintain proper lookout, excessive speed, failure to yield right-of-way and failure to maintain proper control; the jury also found plaintiff guilty of contributory negligence in failing to maintain proper lookout and, as indicated, returned a general verdict for defendant.
In our view the most serious matter raised on appeal concerns unrecorded communication between the trial court and the jury which occurred in other than open court and without notice to the parties. Counsel for plaintiff did not learn of the communication until after the jury had returned its verdicts, and then only through conversation with the jury foreman. The matter was called to the trial court’s attention by way of plaintiff’s motion for new trial. The facts concerning it were stipulated to by the parties, which stipulation was incorporated into the court’s order overruling defendant’s motion for new trial, as follows:
“(A) That during the course of the deliberations of the jury herein on April 17, 1968, a question arose amongst the jurors relative to the instructions and/or to fire special interrogatories which were submitted to the jury;
“(B) That to resolve this question the jury composed and sent to the Court a question written out on a piece of paper and handed to the bailiff, which question was delivered to the Court;
“(C) That the exact form and content of this question is not now ascertainable, but that it apparently pertained to a question as to whether or not an error in judgment was negligence;
“(D) That the Court composed an answer in response to this question and had it delivered by the bailiff to the jury, the precise terms and nature of this answer being unknown at this time, but which answer probably informed the jury that it was their duty to decide whether or not an error in judgment was negligence;
“(E) That the Court did not advise counsel for the plaintiff nor counsel for the defendant that this question had been received from the jury by the Court at any time prior to making a response to this question and that counsel for the plaintiff only discovered this occurrence by reason of conversations with the jury foreman after the jury had returned its verdict; and,
“(F) That this stipulation is being entered into for and on behalf of both parties by reason of the fact that no record was made at the time of the argument of this Motion and by reason of the fact that it is the desire of both parties to enable an accurate record to be made of this above described occurrence at the least possible expense to said parties.”
Plaintiff asks for new trial because of disregard of statutes governing communication with a jury.
K. S. A. 60-248 provides:
“Jury trial procedure. . . .
“(e) Jury may request information after retiring. After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of, or after notice to, the parties or their counsel.”
K. S. A. 60-251 provides:
“Instructions to Jury. . . .
“(b) When waived. No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
Since territorial days we have continuously had statutes providing that communication between court and jury as to the law in the case shall take place in the presence of, or after notice to, the parties or their counsel. Despite this plain injunction against private communication between judge and jury, our reports reflect many instances of its disregard, which practice has always been held to be erroneous. See, e. g., Joseph v. National Bank, 17 Kan. 256, 262, (1876).
Our cases on the subject appear to fall in two categories. First, in instances in which the facts were fully disclosed and all that was communicated by the judge to the jury was set forth in the record, and it affirmatively appeared no prejudice resulted from the communication, the irregularity was held not to be reversible error. A recent example of this situation, although slightly different factually in that the trial judge there hand-carried answers to jury questions into the jury room, is Davis v. Best Cabs, Inc., 203 Kan. 930, 457 P. 2d 516, in which this court stated:
“It is not uncommon for a jury to request information after it has retired to deliberate. Our procedural code recognizes this and provides a method for dealing with it in open court (K. S. A. 60-248 [e]). Compliance with the code would obviate being plagued as here. Appellants cite cases where judgments based on jury verdicts have been reversed because the trial judge entered the jury room and talked to the jury, reversal being based upon appearance of evil rather than any specific showing of evil. We do not think that line of cases applicable under the facts here. However, we cannot put the stamp of approval upon the practice of a trial judge carrying information to the jury room. Wherever possible the trial judge should avoid casting himself in a role where he must be a testimonial witness to the fact the secrecy and sanctity of the jury deliberations have been preserved. Despite the appeal of measures which may appear expedient to the busy trial judge, strict adherence to statutory provisions cannot be too strongly emphasized. We should state this record makes it clear nothing prejudicial to the rights of any litigant occurred and the trial judge’s action was prompted only by conscientious anxiety that the jury be properly informed.” (pp. 935-936.)
See, also Canfield v. Oberzan, 196 Kan. 107, 410 P. 2d 339; Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P. 2d 1192, and State v. Scholl, 118 Kan. 629, 236 Pac. 816, in which latter case this court declared: “. . . all [the trial judge’s] communications with the jury ought to be in open court.” (p. 635.)
The second category of cases is comprised of those in which it was impossible to know whether prejudice resulted from the error and a new trial was therefore ordered. Illustrative of this line are Tawzer v. McAdam, 134 Kan. 596, 7 P. 2d 516, and Eikmeier v. Bennett, 143 Kan. 888, 57 P. 2d 87.
In Tawzer the trial judge entered the jury room during its deliberation at its request and discussed certain aspects of the case. In holding the incident prejudicially erroneous this court, after quoting R. S. 60-2911 and 60-2913 which for present purposes are identical with K. S. A. 60-248 (c) and 60-248 (e), stated:
“The statute [60-2911] which provides for the seclusion of the jury from all communication with any person other than their own membership is quite strict and specific.'
“The only pertinent exception to the foregoing statutory rule deals with the jury’s possible desire to be further informed on the law or the evidence, in which case the jury should be brought into court and counsel for the litigants notified and given an opportunity to attend, [p. 599]
“In view of these statutory provisions it was altogether irregular for the presiding judge to go to the jury room and hold conversation with members of that body while they were deliberating on their verdict. It was highly improper to do so touching any aspect of the case under consideration in the absence of counsel for the litigants. The law books are laden with decisions holding that such departure from correct practice constitutes reversible error, [p. 600.]
“. . . the jurors could hardly fail to be influenced by the judge’s conversation with them on that point in the jury room. This court therefore feels bound to hold that the incident complained of was prejudicially erroneous.” (p. 601.)
In Eikmeier this court reversed because the trial court gave the jury a coercive instruction in the absence of counsel for either party. Although the instruction was recorded this court noted that the manner in which it was given could not be separated from its nature and further stated:
“We are not inclined to hold that in every case it would be error to give the jury additional instructions without notice to or presence of parties or their counsel, although the practice is subject to much criticism. The difficulty in showing a prejudicial result is almost insurmountable, and the trial courts should avoid putting tire losing party in such a predicament.” (p. 891.)
See also Stager v. Harrington, 27 Kan. 414, 421.
A case closely akin factually to that at bar confronted the Massachusetts Supreme Court in 1915 in Lewis v. Lewis, 220 Mass. 364, 107 N. E. 970. There, after the jury had retired to deliberate, the trial judge responded to a request by it for information. The court never advised the parties or their counsel of this occurrence. The jury thereafter returned a verdict. The nature of the question and the judge’s response were not disclosed on the record and the complaining party never learned the nature of the communication. Upon a hearing for motion for new trial the judge noted that in his opinion the question was immaterial and he had so advised the jury. After reviewing numerous authorities the court stated:
“In all these cases where it has been held that the irregularity was not fatal, the facts were disclosed fully and all that was communicated by the judge to the jury was plainly set forth on the record. In the case at bar, the excepting party did not know at the time and does not know now the substance or nature of the communication from the jury to the judge, nor of his reply. The statement filed by the judge throws no light upon the subject, and we are as ignorant as the excepting party.” (p. 369.)
The Massachusetts court then considered a statute prohibiting the granting of a new trial unless it appeared the substantial rights of the complaining party had been affected. The court concluded whatever the question was that had been asked it must have related to information about the law and the statute in question was not applicable to the giving of a secret instruction to the jury. In reversing the lower court exclusively on this issue the court said:
“Correct instructions upon matters of law are of the very substance of jury trial at common law. . . . Secret instructions or clandestine communications, no matter if given with the best of intentions, contravene this fundamental and essential conception of common law trial by jury.” (p. 370.)
For other like decisions see anno. 41 A. L. R. 2d § 10, p. 305.
Defendant here urges affirmance of the judgment because the question which was communicated to the trial court was answered correctly, and hence there was no prejudice. The difficulty is the record fails to support this contention factually. The most the record tells us is the answer probably was correct and probably there was no prejudice. We do not believe a litigant in a court of record should be required to accept this kind of clouded disposition of his cause.
Here the question of contributory negligence was crucial to plaintiff. The private instruction may or may not have borne on this issue and its giving may or may not have affected the result. We do not know and because we are unable, from examination of the entire record, to declare the error harmless we must hold it to be reversible error and ground for a new trial.
Plaintiff complains of other matters which should be briefly noticed since new trial must be ordered.
Plaintiff’s accident reconstruction expert was not permitted to give his opinion as to speed of defendant’s automobile when it struck plaintiff’s vehicle and as to the relative times each had entered the intersection. Plaintiff urges error in the exclusion. The trial court’s action was evidently based on the fact the witness had examined defendant’s Buick only from photographs and had used repair estimates on it furnished by others and because the length of its skidmarks was not wholly ascertainable. Under K. S. A. 60-456 (a) a trial court is vested with wide discretion in receiving opinion evidence (Osborn v. Lesser, 201 Kan. 45, Syl. ¶ 2, 439 P. 2d 395). We have reviewed the proffer of the excluded testimony and are unable to declare abuse of discretion in the exclusion.
Plaintiff contends there was no evidence of contributory negligence and therefore that issue should not have been submitted to the jury. It is only when different minds can reasonably arrive at but one result that fact issues become questions' of law justifying a court in substituting its judgment for that of a jury (Osborn v. Lesser, supra). The evidence here is not of that character. The nature of the view at the intersection and plaintiff’s actions in ap proaching and entering it, as already set forth, sufficiently indicate why submission to the jury of the issue of contributory negligence was proper.
Somewhat allied with this is plaintiff’s complaint against an instruction given and the refusal to give another requested. The court’s instruction No. 12 stated:
“The driver of a motor vehicle upon a public street, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street will comply with the obligation imposed upon them, is not absolved from the consequence of his own independent negligent acts.”
The instruction correctly stated the law (Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783; Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272) and taken as it mxzst be in connection with all the other instructions did not unfairly emphasize defendant’s theory of the case. Nor do we believe the failure to give the requested instruction compounded that emphasis. Its substance so far as appropriate was contained in other instructions given and we are satisfied no prejudice resulted from the refusal.
For the reason given the judgment is reversed with directions to sustain plaintiff’s motion for new trial.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Brewer, J.:
A motion is made to dismiss this case, on the ground that the petition in error was not filed in this court within one year after the rendition of the judgment complained of. The petition in error was filed December 10, 1883. The trial, verdict and judgment were on August 24, 1881. There was however no journal entry made of these proceedings at that time, but on December 19, 1882, upon motion and notice, the court made an order directing a nunc pro tunc journal entry of the proceedings, including the judgment as of the date August 24,1881. The motion which was filed for this journal entry stated that on the judge’s docket these facts of trial, verdict and judgment were all minuted. The evidence which was offered in support of this motion is not preserved; no exceptions were taken to the order of the court, so that its correctness cannot be questioned. The case, therefore, stands before us upon the simple facts of dates as above stated. The statute provides, Laws 1881, p. 229, § 2, that “ no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment, or making of the final orders complained of.” Under this statute the plaintiff in error is too late. The petition in error must be filed within one year after the rendition of the judgment, not within one year after the time a journal entry thereof is in fact made. Now the judgment was rendered in August, 1881. That, according to the record, must be accepted as unquestioned. But the petition in error was not filed until December, 1883.
The motion to dismiss must be sustained.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Richard Armstrong, was charged in separate informations with two unconnected armed robberies, the first occurring at the Shopeze Market on November 9, 1968, and the second on November 14, 1968, at the Star Market. The charges were consolidated for trial and the defendant was convicted of both offenses. Motions for new trial were overruled and Mr. Armstrong was sentenced to terms of not less than ten nor more than twenty-one years on each charge, the sentences to run consecutively. This appeal followed.
A number of points are raised and will be discussed in order. Since no claim is made that the evidence was insufficient to support the verdicts, no attempt will be made at this time to summarize the testimony, although reference will later be made to such parts of the evidence as appear pertinent.
Much of the evidence against the defendant came from eyewitnesses, two of whom had attended two pretrial lineups, and the defendant’s first claim of error is directed against the in-court identification of these witnesses. The claim is based primarily on the recent cases of United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.
The gist of those decisions is simply this: A pretrial lineup is a critical point in the accusatory process, and a stage at which an accused is entitled to be represented by counsel, absent an intelligent and voluntary waiver; where counsel was not present, and his presence was not waived, evidence of an out-of-court identification made at a lineup is not admissible to bolster a later in-court identification, nor is the in-court identification itself admissible unless it be shown to have had an independent source or origin. (See Pearson v. United States, 389 F. 2d 684.)
While this court has recognized the rule espoused by the Wade-Gilbert twins, we have not heretofore been confronted with the precise factual situation obtaining here.
Two lineups were held in this case, the first on November 15, the day after the second robbery, and the second lineup four days later, on November 19. The two eye witnesses, Mr. Stone, manager of the Star Market, and Mr. Rhoten, operator of Shopeze, identified the defendant at the second lineup. The defendant objected to the identification testimony of both witnesses and requested out-of-court hearings thereon for the asserted reason that the lineups were illegal, in the absence of counsel. The objections were peremptorily overruled without argument, and both men identified Mr. Armstrong as being one of the robbers.
When the motion for new trial was heard, the defendant renewed his objections to the lineups, whereupon the state announced that counsel had been waived and a written waiver, signed by Armstrong, was thereupon introduced for the first time. The waiver contained no reference to the defendant having been advised concerning appointment of counsel should he be unable to provide his own, and the testimony of detective Shackelford, who secured the waiver, was ambiguous at best as to whether he was advised in such regard.
At the conclusion of Shackelford’s testimony supporting the waiver, defense counsel advised the court that he wished to present his client’s testimony to the effect he was not offered appointed counsel to assist him in the lineup but, to the contrary, was told he could not have counsel appointed. The trial court ruled that such testimony would be inadmissible, and rejected the defendant’s offer of proof.
In our view, the proffered testimony was relevant on the issue of waiver. The instrument signed by Mr. Armstrong contained no mention of any right to appointed counsel at the lineup, a stage in the criminal process which both Wade and Gilbert declared to be critical. Moreover, an impartial appraisal of detective Shackelford’s testimony tends to confirm the defendant’s assertion that he was not advised in regard to appointment of counsel.
Under circumstances such as these, the defendant should have been permitted to testify. The issue before the court was whether Armstrong had waived his right to appointed counsel. This, in turn, depended on whether the written waiver had been intelligently and understandingly given. (Lloyd v. State, 197 Kan. 389, 416 P. 2d 766; Robertson v. State, 206 Kan. 320, 478 P. 2d 196.) In Berryhill v. Page, 349 F. 2d 984, the Circuit Court of Appeals, 10th Circuit, said:
“. . . In order to effectuate a waiver of the right to counsel, the record must plainly show that the accused was offered the assistance of counsel but intelligently and understandingly rejected the offer. . . .” (p. 987.)
Where a legal right has not been made known to an accused, it can hardly be said that he has knowingly and understandingly waived the right. The federal Supreme Court, in Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, put the rule in these words:
"... A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. . . .” (p. 464.)
(See, also, Brookhart v. Janis, 384 U. S. 1, 16 L. Ed. 2d 314, 86 S. Ct. 1245.)
Thus, whether the defendant was advised of the right to appointed counsel at the lineup had a direct bearing on the voluntary character of his waiver. On this point the defendant himself was entitled to be heard and the trial court’s refusal to permit him to testify taints its ruling with error.
Had the trial court held a full hearing on the issue of waiver, and had it then entered a finding, supported by evidence, that the waiver was intelligently, knowingly and voluntarily made, that would have ended the matter. Since the court, inexplicably, chose not to hear the defendant, we have this question: Should the case be remanded with directions to hear defendant’s testimony as to the voluntary nature of his waiver? As we view this case, a remand for such purpose is not required.
The Wade opinion contains this language:
“On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error . . .” (p. 242.) (Emphasis supplied.)
Similar language is found in Gilbert v. California, supra, where the court said:
. . However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. . . .” (p. 272.)
There is recent federal authority, stemming largely from Clemons v. United States, 408 F. 2d 1230, — and intimated in Wade and Gilbert — that a reviewing court on appeal may itself make a determination as to independent source where the record is sufficient for that purpose. In Hawkins v. United States, 420 F. 2d 1306, the United States Circuit Court of Appeals, District of Columbia, held that it was “at liberty to decide” for itself, in view of an adequate record, whether the in-court identification stemmed from an independent source.
In a subsequent case the same appellate court said in Cunningham v. United States, 409 F. 2d 168:
“We have considered carefully the question of whether we may, as in Clemons, find in the record before us an independent source for the in-court identification, thereby dispensing with the need for a remand. . . .” (p. 169.)
The court thereupon proceeded to consider the circumstances surrounding the in-court identification of the accused hy his victim and concluded there was no “very substantial likelihood of irreparable misidentification”, a phrase which was used by the Supreme Court in Simmons v. United States, 390 U. S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967.
This court has spoken in similar vein in State v. Sanders, 202 Kan. 551, 451 P. 2d 148:
“Assuming the pre-trial identification of defendant was a critical stage of the proceedings at which counsel should have been present, the record before us clearly establishes the in-court identification of the accused had an independent source established by the cross-examination testimony of the witnesses appearing in the record of the trial. Therefore the determination required in Wade and Gilbert has been made and no further proceedings appear necessary to establish the independent source required of the in-court identifications. The absence of counsel at the pre-trial identification was harmless error. (K. S. A. 60-261.)” (p. 554.)
We have reviewed the entire record of trial, including the transcript, and consider that the evidence on the whole establishes an independent source of the in-court identifications of both Messrs. Stone and Rhoten. Each man was positive in his in-court identifica tion of Armstrong and neither of them referred on direct examination to a prior identification. It was only on cross-examination by defense counsel that the subject of pretrial lineups was brought into the case.
Both men had ample time and opportunity to observe Armstrong under well-lighted conditions as he participated in the respective robberies. In each of the holdups, two men first entered the store, one of them being short and brandishing a shotgun, (the No. 1 man) the other tall, and carrying a pistol (the No. 2 man). The second man was identified in each instance as Mr. Armstrong. Mr. Stone, who operated the Star Market as a neighborhood store, with a clientele drawn almost exclusively from the surrounding black community, had seen the same two men enter his store two days before the robbery and recognized them as being strangers. One of them bought an ice cream bar, the other a candy bar. The shorter man was carrying a case which looked like a case for a folding pool cue. The two men left when three or four customers walked into the store.
Both Stone and Rhoten showed a sense of discernment and discrimination in their identifications. Armstrong did not appear in the first lineup, but Mr. Stone recognized another individual appearing therein — and thought by the police to be a suspect — as having the same physical characteristics of the No. 2 man, Armstrong, because he stood tall and square shouldered with his head back. He declined to identify that suspect, however, but four days later at the second lineup he saw and identified Armstrong, whom he had previously described to the police as being tall and square shouldered with his neck held kind of stiff.
Mr. Rhoten showed similar restraint in identifying the defendant. He, too, had attended the first lineup and could not identify the No. 2 man. He had also provided the police with a detailed description fitting the defendant. Of the two robbers he had the most opportunity to observe the No. 2 man, or Armstrong.
During the robbery of Rhoten’s store, four customers arrived at the market and were herded into the store and made to lie down by one of the two robbers. Three of these unfortunate customers identified the defendant as being that culprit, although none of them attended the lineup in which Armstrong had appeared.
The defendant was also placed at the scene of both robberies, and named as a participant therein, by a co-defendant, the No. 1 man, George Brown, who had been the first to enter both stores. Brown testified as a state’s witness.
We are persuaded by the record that the in-court identifications did not have their source in the second lineup but that they stemmed from observation of the defendant at the scenes of the crimes.
Defendant’s second claim of error pertains to certain testimony of Ramora McClain. A recitation of certain facts is essential to an understanding of this point.
Immediately after the holdup of the Star Market, which occurred in the morning, the four men who participated in the second robbery fled in a Cadillac car to the vicinity of a local garage operated by Willie Stevens. Here they disembarked and scattered. At that particular point in time, Ramora just happened to be sitting with Joyce Tuggle and her children in a car parked nearby. The occupants of. the Cadillac were observed by Ramora, and one of their number, a Johnny Bell, got into the car with Joyce and herself— and Joyce’s children — and they all left together for other parts.
Ramora appeared as a witness for the state and on direct examination she identified the four characters leaving the Cadillac as Brown, Jones, Bell and the defendant. However, on cross-examination she recanted her testimony, identifying Brown, Jones and Bell but stating she did not know who the fourth man was. After this reversal of form, the state asked the witness if she had been threatened with respect to her testifying in the trials, and she answered that she had received threatening calls from Johnny Bell’s wife.
It is contended that this constituted prejudicial error. We do not agree. The state was entitled to go into matters affecting Ramora’s credibility. K. S. A. 60-420 provides:
“Subject to sections 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling him may examine him and introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issues of credibility.”
The Advisory Committee Notes to the Code of Civil Procedure are set out in Gard, Kansas Code of Civil Procedure, Annotated, pp. 389,390:
“This rule permits a party to impeach his own witness and is more liberal than the present Kansas practice. It follows the modern concept of justice by making the witness the agent of the court by which it is to arrive at the truth. It enables a party to defend himself against surprise or a double-crossing witness.”
In his Commentary on this section, Judge Gard has said:
. . The right to impeach one’s own witness, in the interest of the ends of justice and adequate inquiry into the facts, is now stated as tire rule rather than the exception, subject to the discretionary control of the trial court as provided in section 60-445. Here, as in a number of other instances in this article, the doubts are resolved in favor of rather than against admissibility of information which would go to the real weight of the witness’ testimony. The witness is truly made the witness of the court rather than a mouthpiece to be charged to the account of the party producing him.” (p. 390.)
A similar summation by Judge Gard of the meaning and effect of K. S. A. 60-420 may be found in 12 Kansas Law Review, at pages 1243 and 1244.
We find no abuse of discretion on the trial court’s part in permitting the state to impeach Ramora. It would appear obvious that the prosecution was taken by surprise when she retracted her testimony on which the state doubtless had relied. The elicitation of evidence concerning threats received by the witness clearly related to her credibility and helped to explain her change of heart.
The next claim of error relates to the examination of Fred William (Willie) Stevens, a witness produced by the state. It was near his garage that the quartet decamped from the Cadillac. Stevens identified Brown and Jones by name, and Bell by sight. He did not, however, identify Armstrong, but said he did not know the fourth man and would not know him if he saw him again.
Counsel for the state thereafter asked Mr. Stevens if he had been convicted of felonies. This inquiry brought forth the candid admission that Stevens had five, or possibly six, prior felony convictions. This testimony was admitted over the defendant’s objection. On cross-examination, Mr. Stevens denied any previous conviction of perjury.
We believe the court erred in overruling the defendant’s objection to the broad question put by the state and in refusing to strike Mr. Stevens’ answer. K. S. A. 60-421 reads in pertinent part:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. . . .”
This section limits the extent to which a witness may be examined with respect to prior convictions. (State v. Jackson, 201 Kan. 795, 443 P. 2d 279; Tucker v. Lower, 200 Kan. 1, 434 P. 2d 320.) Only those convictions for crimes which involve dishonesty or false statement may be shown as affecting credibility.
The question asked of Stevens was not limited to those crimes of inherent dishonesty which might stamp a witness as a potential perjurer. It was broader in scope than the statute permits and the objection should have been sustained.
However, we do not believe the error warrants reversal. The testimony of Mr. Stevens did not implicate Mr. Armstrong in any wrongdoing. Stevens testified he did not even know the man — a statement which the state did not attempt to refute — and he never identified Armstrong as one of the group which descended on the neighborhood where his garage was located.
We have already indicated that a co-defendant, George Brown, testified against Armstrong. Brown was the first man into the two stores — the man with the sawed-off shotgun. The substance of his direct testimony was that Armstrong was present at both robberies and entered the two grocery stores with him. Cross-examination brought out the fact that Brown had made a “deal” with the state in which a less severe sentence would be recommended in return for his testimony. At one place in his cross-examination Brown acknowledged he would commit perjury if thereby he could win complete acquittal.
The defendant contends that Brown showed himself so unworthy of belief that his testimony should have been stricken. Conceding that he may not appear as the most reliable and trustworthy of witnesses, this fact alone does not render his evidence inadmissible. Whether his testimony was worthy of belief was a matter for the jury to determine, not the trial court. (See 5 Hatcher's Kansas Digest [Rev. Ed.] Trial, § 115.) Nor may we, on appeal, make such a determination. (State v. Scott, 199 Kan. 203, 428 P. 2d 458.)
Finally, complaint is lodged against the trial court’s action in striking certain testimony given by the defendant himself. It came about in this way: On cross-examination, detective Shackelford stated he did not remember having seen Armstrong prior to this case and denied that on one occasion he had given him a card which Armstrong tore up and threw at the detective’s feet.
At a later time the defendant took the stand, testifying on direct only as to an alibi with respect to the Shopeze robbery and two alleged encounters with detective Shackelford. Concerning the latter, he testified that about a month after his arrival, the Wichita officer questioned him as to his education and whether he had been in previous trouble; that a month or so before he was arrested, Mr. Shackelford asked him about providing information, saying he would help Armstrong if Armstrong would help him; that Shackelford gave him a card which he, Armstrong, threw at the detective’s feet and that Shackelford then said he would get the defendant for something; he didn’t know what, but that he would “put a rap” on him.
At the close of the defendant’s cross-examination the trial judge gratuitously, and of his own accord, struck the foregoing testimony as immaterial, and instructed the jury to disregard it. We believe this was error. Mr. Shackelford testified on behalf of the state, and the stricken testimony was relevant on the issue of his credibility.
Although the court erred in striking this evidence, without motion by the state, we think the error did not rise to the height of prejudice. Even when added to the error respecting Stevens’ testimony, we are not prepared to say that prejudicial error has been established.
It must be admitted that the trial of this case was not free from blemish. Rut perfect trials, if such there be, are rare indeed. Nor is perfection the measuring rod by which a trial is to be gauged. The purpose of the law is to insure a fair trial — a trial which is free of prejudicial error. (State v. Wright, 203 Kan. 54, 453 P. 2d 1.) Our cases hold that it is only where trial error adversely affects some substantial right of a litigant that it may be said to constitute prejudicial error. (State v. Earsery, 199 Kan. 208, 428 P. 2d 794; State v. Cruitt, 200 Kan. 372, 436 P. 2d 870.)
The provisions of K. S. A. 60-261 enjoin the courts to disregard those errors which do not affect the substantial rights of the parties. We believe the errors committed in this case fall within that category.
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The opinion of the court was delivered by
Fontron, J.:
On September 14, 1964, Lawrence Young, the appellee herein, was convicted of robbery in the first degree and was sentenced to a term of from ten to twenty-one years. On appeal, that conviction was set aside by this court in State v. Young, 196 Kan. 63, 410 P. 2d 256.
Young was re-tried on the same charge of robbery and was convicted a second time. Prior to the imposition of sentence upon the second conviction the state, for the first time, introduced evidence of one prior conviction, notice of which had previously been given to Mr. Young. On the basis of this evidence the trial court imposed a sentence of not less than twenty nor more than forty-two years, pursuant to the provisions of the Habitual Criminal Act. (K. S. A. 21-107a, now K. S. A. 1970 Supp. 21-4504.)
Mr. Young again appealed to this court. This time, however, his conviction was upheld. (State v. Young, 200 Kan. 20, 434 P. 2d 820.) Among the points raised on the second appeal was a contention that the enhanced sentence pronounced on reconviction transgressed the provisions of the Equal Protection Clause of the Fourteenth Amendment as imposing an impermissible risk of harsher punishment upon a defendant who successfully challenges his conviction on appeal.
In rejecting that argument, this court pointed out that under the Kansas statute then applicable (K. S. A. 62-1602), whenever a new trial was granted, the parties were placed in the same position as if no previous trial had been held. Our opinion cited numerous decisions upholding the statute and construing its provisions. We also observed in the second Young appeal that Young had completely failed to establish that the county attorney, by invoking the Habitual Criminal Act upon resentence, had abused his discretion or had acted willfully or arbitrarily.
More than a year after we filed our opinion in the second Young appeal, the Supreme Court of the United States handed down its decision in North Carolina v. Pearce, 395 U. S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072. That case holds, in effect, that while neither the double jeopardy provision nor the Equal Protection Clause of the United States Constitution imposes an absolute bar to a greater sentence upon reconviction, the Due Process Clause of the Fourteenth Amendment forbids infliction of a harsher penalty upon retrial, in the absence of evidence justifying the pronouncement of a more severe sentence. Moreover, said the august federal court, whenever a sentencing court does impose an increased penalty upon a defendant after a new trial, its reasons for so doing must appear affirmatively and must be based on conduct occurring after the original sentence was pronounced, and the factual data upon which the increased sentence is based must be made part of the record in order that the “constitutional legitimacy” of the greater sentence may be reviewed fully on appeal.
Following the Pearce decision, Mr. Young filed a petition pursuant to K. S. A. 60-1507 in which he challenged the legality of the enhanced sentence pronounced against him after he was convicted the second time. In this collateral attack, Young alleged that the greater penalty was assessed in violation of principles underlying due process as delineated in Pearce.
An evidentiary hearing on Young’s 1507 petition was held by the same judge who had imposed both the original sentence and the later, or second sentence. When the hearing was finished the court resentenced Young to not less than ten nor more than twenty-one years on the basis of Pearce, thus, in effect, reinstating the original sentence. In reducing the increased sentence pronounced on retrial, the judge stated he had enhanced the punishment under the provisions of the Habitual Criminal Act only because he felt he had to — that he had no alternative.
The state has now appealed from the judgment reducing the sentence, and points out that the precise issue raised in this action, i. e., that the increased penalty violated the essential requisites of due process, was expressly determined in Mr. Young’s direct appeal from his conviction on retrial. (State v. Young, 200 Kan. 20, 434 P. 2d 820.) The state further calls attention to Supreme Court Rule No. 121 (c) (2), 205 Kan. xlv, which provides that a proceeding under K. S. A. 60-1507 cannot ordinarily be used as a substitute for a second appeal. (See King v. State, 200 Kan. 461, 436 P. 2d 855 and cases cited therein.)
The position taken by the state is correct. This court has expressly held the increased sentence to be valid — and that it does not contravene the requirements of constitutional due process. Our former decision to such effect was based on substantial precedents and there is no need to reexamine the subject at this time. Accordingly, this case must be reversed.
In arriving at our decision the members of this court, as we have noted before, are fully aware of North Carolina v. Pearce, supra, (see State v. Smith, 206 Kan. 744, 481 P. 2d 995), and are mindful, also, of its impact upon the courts of this country. As of this date, however, we find no authoritative edict that the Pearce decision is to be applied retrospectively, although several cases raising the specific issue of retroactivity appear to be knocking at the door of the federal high court.
Appellate courts in a number of our sister states, as well as several of the federal circuit courts, have directed their attention to the retrospective aspects of North Carolina v. Pearce, supra. Not surprisingly, complete unanimity of opinion is found to be lacking among the tribunals in which the issue has arisen, and their responses have been varied.
We believe no good purpose would be served at this juncture by discussing the various conflicting decisions already placed in the law books. In view of our own precedents, and in the absence of a contrary ruling by the United States Supreme Court, we decline to rule that Pearce be given retroactive application in this case. Our holding in this regard is without prejudice, however, to Young’s right to reapply for the relief sought in the present action should the Supreme Court hereafter give retrospective effect to the standards set out in the Pearce decision. (See Wayne v. State, 8 Md. App. 5, 257 A. 2d 455; Shedrick v. State, 235 So. 2d 57 [Fla. App.].)
The judgment of the court below is reversed and this case is remanded with directions that the sentence of not less than ten nor more than twenty-one years imposed on June 5, 1970, be vacated and set aside and that the sentence of not less than twenty nor more than forty-two years pronounced on April 20, 1966, be reinstated.
It is so ordered. | [
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The opinion of the court was delivered by
McFarland, J.:
Petitions seeking to have each of the minor siblings, D.D.P., Jr., T.P., and B.J.P., determined to be a child in need of care were filed by the Shawnee County District Attorney’s office on information supplied by the Department of Social and Rehabilitation Services (SRS). Two appeals were filed herein: (1) The State appeals from the court’s determination that the court-appointed special advocate (CASA) is an interested party under K.S.A. 1990 Supp. 38-1502(e); and (2) the children’s maternal grandfather appeals from a provision in the reintegration plan adopted by the court which provides that he and an adult daughter residing with him (the children’s aunt) must undergo psychological testing if the children and their mother are to reside with them.
The facts giving rise to the filing of the petitions and the evidence on which the court determined the children -to be in need of care are not before us in these appeals. Physical abuse of the children perpetrated by an individual other than, the maternal grandfather and the aunt who resides with him was the cause of the proceedings being filed herein. Other facts will be stated as necessary for the determination of the particular issues raised.
We shall first consider the issues arising in the State’s appeal.
On June 25, 1990, the court held that K.S.A. 38-1505a and Supreme Court Rule 110 (1990 Kan. Ct. R. Annot. 98) grant interested party status to a CASA under K.S.A. 1990 Sfipp. 38-1502(e), although a CASA is not within the purview of K.S.A. 38-1541. The State contends this was an erroneous interpretation of our rule and the statutes.
In order to put this issue in context, it is helpful to review the procedural framework of child in need of care cases.
Investigation of alleged child abuse or neglect is the responsibility of SRS and law enforcement officers. K.S.A. 38-1521, K.S.A. 1990 Supp. 38-1522, K.S.A. 1990 Supp. 38-1523. The next stage is covered by K.S.A. 38-1529, which provides:
“(a) Whenever the state department of social and rehabilitation services or any other person refers a case to the county or district attorney for the purpose of filing a petition alleging that a child is a child in need of care, the county or district attorney shall review the facts and recommendations of the department and any other evidence available and make a determination whether or not the circumstances warrant the filing of the petition.
“(b) Any individual may file a petition alleging a child is a child in need of care and the individual may be represented by the individual’s own attorney in the presentation of the case.”
The contents of the petition are to be in conformity with K.S.A. 38-1531.
The child is represented by a guardian ad litem whose appointment is controlled by K.S.A. 38-1505(a), (d), and (e), which provide:
“(a) Appointment of guardian ad litem; duties. Upon the filing of a petition the court shall appoint a person who is an attorney to serve as guardian ad litem for a child who is the subject of proceedings under this code. The guardian ad litem shall make an independent investigation of the facts upon which the petition is based and shall appear for and represent the child.
“(d) Continuation of representation. A guardian ad litem appointed for a child or an attorney appointed for a parent or custodian shall continue to represent the client at all subsequent hearings in proceedings under this code, including any appellate proceedings, unless relieved by the court upon a showing of good cause or upon transfer of venue.
“(e) Fees for counsel. A guardian ad litem or attorney appointed for parties to proceedings under, this section shall be allowed a reasonable fee for their services, which may be assessed as an expense in the proceedings as provided in K.S.A. 38-1511 and amendments thereto.”
Sections (b) and (c) deal with appointment of counsel for a parent or custodian. Appointment of counsel is mandatory for a parent who is a minor, a mentally ill person, or a disabled person, and for an indigent parent who requests an attorney.
K.S.A. 38-1532 through -1536 set forth the service of process requirements.
Who are the parties to the proceedings? K.S.A. 1990 Supp. 38-1502(e) provides:
“(e) ‘Interested party’ means the state, the petitioner, the child, any parent and any person found to be an interested party pursuant to K.S.A. 38-1541 and amendments thereto.
Those specifically listed in the statute are mandatory parties with a statutory right to participate. In addition, the court may find anyone within the provisions of K.S.A. 38-1541 is an interested party. These are optional “interested parties” without a right to participate unless so designated by the court under K.S.A. 38-1541, which provides:
“Upon motion of any person with whom the child has been residing or who is within the fourth degree of relationship to the child and who desires to have standing to participate in the proceedings regarding the child, the court may order that the person may participate in the proceedings. Upon the filing of the motion, the court may send to the department of social and rehabilitation services a copy of the motion. Upon its receipt, the department shall make an investigation of the advisability of the matter and report its findings and recommendations to the court. In determining whether to enter the order, the court shall take into consideration the length of time the child has resided with the person, the nature of the custody, the relationship between the child and the person and the degree to which the person has been standing in the place of or assumed the obligations of the child’s parent. The status as an interested party granted pursuant to this section may be terminated at any time by order of the court.”
Note that “interested party” status under K.S.A. 38-1541 is also subject to withdrawal by the court. Note, also, that á' guardian ad litem is not an interested party in his or her own right— rather, he or she represents the child who is a mandatory interested party.
Let us examine the possible participants in such proceedings. We have the nonprofessionals — the child, the parents, the petitioner (if an individual rather than the State), and individuals designated by the court under K.S.A. 38-1541. By the express language of the statute, the optional interested party pool is limited to close relatives and individuals with whom the child has been residing. The child aside, each member of the nonprofessional participants has his or her own personal interests at stake. Their contact with the child antedates the court proceedings, and their interests may be quite different from those of the child. Any or all may turn out to be part of the problem giving rise to the filing of the petition.
Let us look at the professionals involved. In this group, we have the guardian ad litem appointed to represent the child, the State (commonly county or district attorney), attorneys for parents or other “interested parties,” and the trial judge. Additionally, although not parties, SRS case workers will be participating. The professionals are typically involved with many cases.
The nonprofessionals frequently have their own axes to grind, and the professionals are stretched thin in the time they can devote to any particular case. Further, attorneys for individuals are representing their clients only. It is not surprising that horror stories began to surface of children being lost in the system and spending their childhood being shunted from foster home to foster home when a prompt concerted effort could have resulted in their return to a parent or parents. Even if return to a parents’ home is not a realistic possibility and some other arrangement is necessary, prompt action in achieving a true permanent home for the child is highly desirable. This is not to criticize the many dedicated professionals working in this area, but it is simply the old story of too many cases and too little time to devote to any particular case.
In one form or another, local programs began to surface which involved a new element being brought into the picture. This new element was a trained volunteer nonprofessional who entered the case to áid the child and the court. This fresh face had no previous contact with the child or his or her relatives and, hence, no preconceived personal position to defend and had the time and concern to work closely with the professionals and nonprofessionals involved in finding the best disposition for the child.
The 1985 legislature enacted K.S.A. 38-1505a, which provides:
“Appointment of special advocate, (a) In addition to the guardian ad litem appointed pursuant to K.S.A. 38-1505 and amendments thereto, the court at any state of a proceeding pursuant to this code may appoint a volunteer special advocate for the child who shall serve until discharged by the court and whose primary duties shall be to advocate the best interests of the child and assist the child in obtaining a permanent, safe and homelike placement. The court-appointed special advocate shall have such qualifications and perform such specific duties and responsibilities as prescribed by rule of the supreme court.
“(b) Any person participating in a judicial proceeding as a court-appointed special advocate shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any civil liability that otherwise might be incurred or imposed.
“(c) On or before January 1, 1986, the supreme court shall promulgate rules governing court-appointed special advocate programs in the district courts.
“(d) This section shall be a part of and supplemental to the Kansas code for care of children.”
K.S.A. 1985 Supp. 38-1502 was amended in 1986 to add the following definition:
"(q) ‘Court-appointed special advocate’ means a responsible adult other than an attorney guardian ad litem, who is appointed by the court to represent the best interests of a child, as provided in K.S.A. 38-1505a and amendments thereto, in a proceeding pursuant to this code.” L. 1986, ch. 158, § 2.
The 1985 legislature thus authorized the development of a CASA program but turned the matter of how the program would operate to the Kansas Supreme Court. This court, after full review of the matter, adopted Supreme Court Rule 110 (1990 Kan. Ct. R. Annot. 98 [effective January 1, 1986]), which provides:
“CASA VOLUNTEER PROGRAMS
“Court-appointed special advocate (CASA) volunteer programs shall embrace the following:
(a) It shall be the primary duty of a court-appointed special advocate to personally investigate and become acquainted with the facts, conditions, and circumstances affecting the welfare of the child for whom appointed, to advocate the best interests of the child and'assist the court in obtaining for the child the most permanent, safe, and homelike placement possible. A CASA volunteer, additionally, should:
(1) Visit the child as often as necessary to monitor the child’s safety and observe whether the child’s essential needs are being met;
(2) Attend court hearings pertaining to the child or, if not excused by the judge, arrange for attendance of a qualified substitute approved by the judge;
(3) Participate in staffings and, to the extent possible, other, meetings pertaining to the child’s welfare;
(4) Participate in the development of the written plan for reintegration and/or modification of a plan already in place;
(5) Submit a written report to the court prior to each regularly scheduled court hearing involving the child; and
(6) Do all such other things on behalf of the child as are directed by the program director and the standards relating to CASA volunteer programs.
(b) A CASA volunteer shall:
(1) Be at least 18 years of age;
(2) Submit a completed written application to the local program; and
(3) Successfully complete screening procedures and a review by local program staff.
(c) Standards relating to CASA volunteer programs shall be promulgated by the Judicial Administrator and followed by CASA volunteer programs. The standards shall include requirements pertaining to certification of local CASA volunteer programs by the Judicial Administrator and certification and training of CASA volunteers by the local program.
(d) District courts utilizing privately administered CASA programs shall have a written agreement with the person or group sponsoring the program. The written agreement shall be in force for not longer than two years from the effective date of the agreement. The agreement shall govern operation of the privately administered CASA program and shall:
(1) Require the program to meet the standards relating to CASA volunteer programs promulgated by the Judicial Administrator;
(2) Set forth the responsibilities of the court to the CASA program and of the CASA program to the court including a requirement that CASA volunteers be certified by the local program;
(3) Specify the procedures for assignment of the program to cases and for the removal of the program from cases;
(4) Establish procedures for resolution of grievances and conflicts for both CASA programs and individual CASA volunteers; and
(5) Set forth the requirements the program must meet to be eligible for renewal of the agreement upon expiration.
(e) District courts shall promulgate local court rules governing operation of CASA programs which are administered by the court. The rules shall include the items specified in (1) through (4) of the preceding paragraph.
(f) A CASA volunteer shall be given notice of all court hearings involving the child and shall have access to any district court records within the state pertaining to the child for whom appointed.
(g) The district court or the privately administered CASA program, as applicable, shall provide such statistical and other information about its CASA program as the Judicial Administrator may require.”
At the present time, approximately one-third of Kansas counties have CASA programs.
With this background in mind, we turn to the particular issues involved in the State’s appeal. The trial court found that the optional interested party statute, K.S.A. 38-1541, was not broad enough to include a CASA. With this determination, we agree. However, the district court further concluded that the enactment of the CASA statute (K.S.A. 38-1505a) and our adoption of Rule 110 granted interested party status to a CASA under K.S.A. 1990 Supp. 38-1502(e). This determination turns the advocate into a litigant who may be represented by counsel, file motions, and appeal the trial court’s orders. K.S.A. 38-1591(a) provides:
“An appeal may be taken by any interested party from any adjudication, disposition, termination of parental rights or order of temporary custody in any proceedings pursuant to this code.”
We believe that the trial court’s interpretation would basically alter the role of a CASA as envisioned by the 1985 legislature and by this court when it adopted Rule 110.
CASA argues that legislative intent that a CASA participate in court hearings is shown by K.S.A. 38-1505a(b), iterated for convenience as follows:
“(b) Any person participating in a judicial proceeding as a court-appointed special advocate shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any civil liability that otherwise might be incurred or imposed.”
To interpret “participating in a judicial proceeding” in that statute to refer specifically to court appearances would remove a CASA’s protection from those areas of involvement having the greatest potential liability — his or her direct contacts with the child and his or her. family, and others involved with the family. We find nothing in K.S.A. 38-1505a evincing a legislatiye intent that a CASA be an interested party under K.S.A. 1990 Supp. 38-1502(e).
The issue then comes down to whether or not the district court was correct in holding that our adoption of Rule 110 afforded interested party status to a CASA under K.S.A. 1990 Supp. 38-1502(e). Inasmuch as our rule makes no reference to interested party status, such determination becomes a matter of interpretation and intent. We are frequently called upon to interpret statutes and determine the legislative intent in enacting same. Likewise, we frequently interpret agency rules and determine the agency’s intent when adopting same. The rule that an administrative body’s interpretation of its own rules, orders, and regulations, in case of ambiguity, is entitled to great weight, under some circumstances to controlling weight, is universally recognized. Mellies v. Mellies, 249 Kan. 28, Syl. ¶ 1, 815 P.2d 114 (1991).
In the matter now before us, we are in an interesting situation involving the interpretation of one of our own rules.
The district court held that by requiring attendance of the CASA at all court hearings, the court has made the CASA an interested party (subsection [a][2] of Rule 110). We do not so interpret that subsection. Looking at (a)(3) and (4) we note participation is required at stafííngs and preparation of the reintegration report. Only attendance is required at court hearings. If the CASA is to participate as a party at court hearings, then there is no need for the requirement in (a)(5) that the CASA send a written report to the court in advance of each court hearing. The attendance and written report requirements are much more consistent with the concept the CASA is to be present to observe the proceedings and to answer any questions arising from the written report. Likewise, the CASA’s views could be sought on any proposals made during, or material arising from, the hearing.
From the role of advocate for the child, and advisor to the court, the CASA would become a litigant in what is basically an adversarial system. It would be rather ridiculous for a CASA attorney to file a motion to remove a guardian ad litem and file a brief in support thereof, while his client, the CASA, is preparing the required written report to be filed prior to the hearing on the CASA’s motion. Presumably, the CASA’s report would be prepared by or at least approved by the CASA counsel and would be Exhibit A filed in support of the motion. The whole concept of filing a written report with the judge prior to a hearing is inconsistent with, and alien to, party litigant status. If one is a party litigant, there is no reason for written reports relative to what has transpired among the various parties and agencies since the last hearing. Litigants file memorandums and briefs — they do not file ex parte reports with the judge on how other litigants and involved agency personnel have been performing their respective roles. The value of the written report is that of an aid to the court in evaluating what has transpired, keeping the case moving, and in arriving at a proper disposition or modifying a prior order. Additionally, if the CASA has counsel, then his or her relationship with the child and family members, SRS, the State, and the guardian ad litem would be governed and influenced by advice of his or her counsel, and the basic concept of the one-on-one volunteer nonprofessional assisting the court and advocating the child’s best interests would be substantially altered.
The guardian ad litem is the child’s legal representative in the proceeding. The CASA is not intended to be another cook in the kitchen. The guardian ad litem is an attorney legally qualified and licensed to represent another person in court. The CASA is an advocate for the child but is not legally qualified or licensed to represent another person in court. If the CASA cannot represent anyone in court, then he or she must have independent standing to represent himself or herself and any attorney he or she retains is representing the CASA. Such attorney cannot slide through his or her client and claim to be representing the child vicariously.
This brings us to the odd position of determining our own intent in adopting the rule in question. Did we intend for a CASA to be an interested party as defined by K.S.A. 1990 Supp. 38-1502(e)? The answer is “no.”
Under our concept of the CASA program, the CASA role is that of serving as an aide to the court in making an appropriate resolution of the proceedings. He or she has access to the files and parties, meets with same, has input into the development of reintegration plans and temporary placements, and advises the court on his or her views as to what is best for the child. The inherent nature of child in need of care proceedings involves family situations, where needs and problems may change from day to day or week to week. The written reports keep the court advised as to what has been or has not been happening among the various litigants. The CASA is informed and available to the court when additional information or his or her views are sought.
We believe that interested party status would substantially alter the role we intend the CASA to play in the proceedings.
There are also financial problems inherent in making a CASA an interested party. Legal counsel may be desired by a CASA at the district court level and necessary in an appeal. There is no statutory authority for appointment of, or payment of, a CASA attorney by court order. In addition to liability for payment of his or her own attorney, a CASA, if an interested party, has potential liability for payment of the guardian ad litem fees and expenses as well as fees and attorney fees for any other attorneys appointed in the case to represent parents. K.S.A. 38-1511 authorizes guardian ad litem fees and expenses as well as those of other appointed counsel to be ordered paid by “an interested party” (except the State). K.S.A. 38-1593 provides that fees and expenses of a guardian ad litem and attorneys appointed to represent parents incurred in an appeal may be assessed against an interested party (except the State). Having interested party status could prove to be very expensive for a CASA who has volunteered his or her services to aid a child. This court did not intend to subject a CASA to such a possibility in enacting Rule 110, nor do we believe the legislature so intended in enacting K.S.A. 38-1505a. Yet, if a CASA is an “interested party,” he or she is an interested party for all purposes.
It is apparent that there were many personality clashes and problems among the cast in this case. The present CASA is the second one assigned to this case, and the present guardian ad litem is the third attorney so assigned. The grandfather filed a motion to have the present CASA removed, and the State, the guardian ad litem, and the grandfather joined in a motion to have the trial judge removed. These are all indications that there were a lot of “troubles in River City” although we do not have any particulars in that regard. The CASA was being actively represented by counsel throughout much of the time the case was being litigated at the trial court level.
The precipitating factor leading to the district court’s determination that the CASA had interested party status was the submission to it by SRS of a reintegration plan in whose preparation the CASA had not participated (contrary to Supreme Court Rule 110[a][4].) The trial court properly refused to consider the plan and sent it back to SRS for development of a plan with CASA participation. This is as far as it needed to go to be presented with a plan with CASA participation. If the trial court was unhappy with the legal representation being afforded the child by the guardian ad litem, the solution was to replace the guardian ad litem — not to create a sort of dual legal representation for the child, the second one being a non-attorney who was represented by counsel.
We conclude that under the present CASA program for which we have promulgated rules, a CASA does not have interested party status under K.S.A. 1990 Supp. 38-1502(e). If the legislature determines such status is to be afforded a CASA, it must confer such status by appropriate legislative enactment. Therefore, the district court erred in determining that the CASA had interested party status.
We turn to the issue raised in the appeal of the maternal grandfather herein. The State challenges the grandfather’s standing to bring the appeal, and these points shall be considered first.
The State’s first challenge to standing is the claim that the grandfather has failed to exhaust his administrative remedies. SRS developed the plan that has the complained-of conditional provision requiring psychological testing of the grandfather and the aunt. The district court ordered the preparation of the plan under authority of K.S.A. 1990 Supp. 38-1565, which provides:
“(a) If a child is placed outside the child’s home and no plan is made a part of the record of the dispositional hearing, a written plan shall be prepared which provides for reintegration of the child into the child’s family or, if reintegration is not a viable alternative, for other placement of the child. If the goal is reintegration into the family, the plan shall include measurable objectives and time schedules for reintegration. The plan shall be submitted to the court not later than 60 days after the dispositional order is entered. If the child is placed in the custody of the secretary, the plan shall be prepared and submitted by the secretary. If the child is placed in the custody of a facility or person other than the secretary, the plan shall be prepared and submitted by a court services officer.
“(b) A court services officer or, if the child is in the secretary’s custody, the secretary shall submit to the court, at least every six months, a written report of the progress being made toward the goals of the plan submitted pursuant to subsection (a). If the child is placed in foster care, the foster parent or parents shall submit to the court, at- least every six months, a report in regard to the child’s adjustment, progress and condition. The department of social and rehabilitation services shall notify the foster parent or parents of the foster parent’s or parent’s duty to submit such report, on a form provided by the department of social and rehabilitation services, at least two weeks prior to the date when the report is due, and the name of the judge and the address of the court to which the report is to be submitted. Such report shall be confidential and shall only be reviewed by the court and the child’s guardian ad litem. The court shall review the progress being made toward the goals of the plan and the foster parent report and, if the court determines that progress is inadequate or that the goals áre no longer viable, the court shall hold a hearing pursuant to subsection (c). If the secretary has custody of the child, such hearing shall be held no more than 18 months after the child is placed outside the child’s home and at least every 12 months thereafter. If the goal of the plan submitted pursuant to subsection (a) is reintegration into the family and the court determines after 18 months from the time such plan is first submitted that progress is inadequate, the court shall hold a hearing pursuant to subsection (c) to determine whether proceedings shall be commenced pursuant to this code to terminate the parental rights of either or both parents. Nothing'in this subsection shall be interpreted to . prohibit termination of parental rights prior to the expiration of 18 months.
“(c) Whenever a hearing is required under subsection (b), the court shall notify all interested parties and hold a hearing regarding the adequacy of the plan submitted pursuant to subsection (a), progress toward the goals of such plan and the viability of such goals. If, after hearing, the court determines that the child’s needs are not adequately being met, the plan is inadequate or the goals are not viable, the court may rescind any of its prior dispositional orders and enter any dispositional order authorized by this code, may order commencement of proceedings pursuant to this code to terminate the parental rights of either or both parents or may order that a new plan for the reintegration, or an alternative plan for the child’s placement, be prepared and submitted to the court.”
The State contends that inasmuch as SRS prepared the plan, any challenge thereto must initially be by the administrative appeal process available for SRS decisions. This contention totally ignores the fact that while the plan is prepared by SRS, it is prepared for submission to the court which has control thereover. If approved, the plan becomes the court’s plan and order. The court is not required to accept it or, having áccepted it, is not required to continue with it. Therefore, any challenge to, or appeals arising from, the plan must lie in the district court and the appellate courts.
The balance of the State’s arguments on the grandfather’s standing are that the grandfather is attempting to raise certain specific issues for the first time on appeal. Whether the grandfather has standing to raise these issues will be discussed in connection with each issue.
There is, however, one troublesome area which this court feels it must raise sua sponte. The grandfather was represented by counsel throughout most of the proceedings in the district court. He and his counsel actively participated in the proceedings. Absent from the record before us, however, is any order designating the grandfather an “interested party” under K.S.A. 38-1541. If the grandfather has standing to appeal under K.S.A. 38-1591, then he must have been designated an “interested party.”
This area was discussed in some depth in the prior issue. The same attorney for the State prepared the appellant’s brief in its appeal and an appellee’s brief in the grandfather’s appeal. It is inconceivable that had no such order been entered, the State’s attorney would have ignored this powerful challenge to the grandfather’s standing and pushed the weak argument of failure to exhaust administrative remedies. The various journal entries filed in the case indicate that the grandfather was accepted and operated as though he had been afforded interested party status. Under the circumstances herein, we will assume the grandfather had been designated by the district court an interested party pursuant to K.S.A. 38-1541.
At this point, we need to discuss the plan involved herein. The reintegration plan was prepared by SRS. The format is that of an agreement between the SRS workers and the children’s natural mother. The portion of the agreement under challenge herein is paragraph 6 of the mother’s responsibilities thereunder, which are as follows:
“INDIVIDUAL RESPONSIBILITIES:
“I [Mother], will:
1. Work in a cooperative manner with SRS, as well as respective workers, such as the Court Appointed Special Advocate and foster families, involved in the case. This will include proper notification to SRS if unable to keep appointments. Notification, except for emergencies shall be 24 hours prior to appointment.
2. Continue to receive individual therapy on a weekly basis to deal with problems arising with the children and the reported pregnancy.
3. Agree to have family therapy with [B.J.] and [D.] with the children’s therapist at least twice a month. I agree to arrange therapy and will pay for it to show that I am financially responsible to care for my children. If necessary, I will apply for a medical card.
4. Agree to have a parenting assessment at the end of six months with written results to SRS prior to 3/1/91. The results need to be favorable, demonstrating I can parent.
5., Agree to have my home viewed by SRS and/or CASA. This will be done by home visits, scheduled and unscheduled.
6. Agree to have psychological testing done on anyone living in the home with me. The results must show that the persons I live with will not harm my children emotionally or physically and will show that they are stable enough to have children living with them. If the parties in the home refuse to have psychological testing done, I will seek separate housing and will give SRS verification of how I will maintain a home that is safe and stable.
7. Not have contact with known child abusers or people who have brought harm to my children in the past. This will be monitored by SRS visits and reports from respective parties involved in the case.
8. Obey all court orders, such as being present for the visits, notifying SRS of changes of address or employment, and getting the court’s permission to take the children out of state or county.
9. Meet with the family support worker once a week to help monitor my abilities to budget and prepare menus, for my children. The support worker will check out menus of meals I prepare to see if they are balanced, and will monitor who is in residence there, as well as discussing and working on any problems with the children for extra support.
‘TO. Agree to visitation as follows: A) I will be present at visits. This will be for me to provide supervision. The children, if left with a babysitter, will not be left with anyone under the age of 18 to ensure safety and also due to the special needs of these children. B) For monitoring purposes and due to the stress factors of a new baby, agree to visits every other weekend from 7am Friday to 4pm Sunday. I will pick the children up since I am presently unemployed. C) Return the children clean from their visits as the foster parents report the children are dirty when returned from visits.. D) Agree to random monitoring of visits by SRS.
“11. Agree to start showing financial responsibility by providing the children with clothes for school, thus alleviating my dependency upon the system.
“12. Abide by St. Joseph’s home and their rules. This will entail keeping phone contact and abiding by the recommendátions of the home.”
Space is provided at the end of the plan for the grandfather and the aunt to agree to submit to psychological testing. The plan was accepted by the trial court over the objections of the grandfather. Neither the plan nor the district court require or order the appellant grandfather to submit to psychological testing. The mother is agreeing that the testing will be done on anyone with whom she and the children reside. Thus, if the grandfather or the aunt refuse to be tested, the mother and children are precluded from residing in a home with such persons. The children were in foster care at the time of the preparation and entry of the plan. The plan was a proposal for reuniting the children with their mother.
It is the grandfather’s position that it is unreasonable to have the provision that the mother and the children cannot accept residence in his home without himself and the aunt having submitted to and “passed” psychological testing when neither had any role in the prior abuse of the children.
On appeal, the grandfather couches his objection in terms of an attack on K.S.A. 1990 Supp. 38-1565. He contends the statute is constitutionally impermissible as:
1. being vague and overbroad;
2. an invasion of his right to privacy;
3. a denial of his right to equal protection; and
4. a denial of his right to due process.
The State counters that:
1. The grandfather is precluded from raising any of these issues because each is asserted for the first time on appeal;
2. the grandfather makes factual allegations not contained in the record; and
3. there is no merit to any of these contentions.
The CASA has filed a brief herein which argues that each of the grandfather’s issues lacks merit. Inasmuch as we have previously held that the CASA is not an interested party, she lacks standing as a party to file an appellee’s brief in the grandfáther’s appeal. However, under the circumstances, the brief will be considered as one filed by an amicus curiae.
An immediate problem arises in considering the grandfather’s contentions. His format is structurally flawed. He attempts to gain relief from the complained-of plan’s paragraph 6 by attacking K.S.A. 1990 Supp. 38-1565 on constitutional grounds. Yet, the statute just governs the preparation, submission, and review of the operation of the plan. It does not even purport to set forth what may be included in the plan. The reason for the omission is obvious. The plan is intended to meet the needs of an abused or neglected child. No laundry list of conditions and requirements could be devised that would cover every situation in every case. The conditions and terms must be tailor made to fit the particular circumstances involved.
The grandfather’s arguments in district court are reflected in his objection to and motion to modify, which states the following as the grounds for his dissatisfaction with the plan:
“1. SRS has not viewed the [grandfather’s] home or met with [the grandfather] or the extended family.
“2. It is per se unreasonable to request psychiatric evaluations of the extended family and [the grandfather],
“3. That [the grandfather] has undergone a home study in 1986 and was found fit. See attached Exhibit 1.
“4. That the concern and care that the [mother’s family] and [the mother have] shown should preclude a psychiatric evaluation.
“5. That the evaluation is unwarranted.
“WHEREFORE, the natural mother and grandfather requests this motion be sustained in its entirety, or other such relief as the court deems just, equitable and proper.”
After the plan was approved, the grandfather filed a motion to reconsider, grounded as follows:
“1. The testing is unduly burdensome.
“2. No party has suggested the need for such tests.
“3. No prior allegation of mental illness have been made against [the grandfather] or [the aunt].”
We find no place in the record where the grandfather ever contended in the district court that K.S.A. 1990 Supp. 38-1565 was constitutionally defective or ’that the district court lacked authority to approve the provision in question 6. The thrust of his contentions before the district court were simply that it was unnecessary and unreasonable to have the psychological testing provision under the facts of this case.
We have long held that where constitutional grounds for reversal are raised for the first time on appeal, they are not properly before the appellate court for review. In re Residency Application of Bybee, 236 Kan. 443, 449, 691 P.2d 37 (1984); Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976); Missionary Baptist Convention v. Wimberly Chapel Baptist Church, 170 Kan. 684, 688, 228 P.2d 540 (1951); Lamb v. Butler County, 108 Kan. 739, 740-41, 196 Pac. 1059 (1921).
We must conclude none of the constitutional issues raised by the grandfather are properly before us.
Although we have found that couching the appeal herein in terms of a constitutional attack on K.S.A. 1990 Supp. 38-1565 was improper, we believe that abuse of trial court discretion in approving the plan has been adequately alleged on appeal, and, therefore, that issue will be considered.
We have discussed abuse of judicial discretion issues on many occasions.
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. All judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). See Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 248, 736 P.2d 882 (1987); In re Marriage of Wessling, 12 Kan. App. 2d 428, 432, 747 P.2d 187 (1987).
The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). See State v. Massey, 242 Kan. 252, 264, 747 P.2d 802.(1987); DeWerff v. Schartz, 12 Kan. App. 2d 553, 557, 751 P.2d 1047 (1988).
One who asserts an abuse of discretion bears the burden of showing such abuse. DeWerff v. Schartz, 12 Kan. App. 2d at 557. See Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 695, 715 P.2d 2 (1986); Hoover Equipment Co. v. Smith, 198 Kan. 127, 134, 422 P.2d 914 (1967); Byington v. Comm'rs of Saline Co., 37 Kan. 654, 657, 16 Pac. 105 (1887).
The grandfather’s principal argument may be summarized as follows: He is a responsible, stable, reputable, and caring adult with a sincere interest in the well-being of his grandchildren. Further, there is nothing in the record that indicates either he or the children’s aunt ever did any harm to the children or have, in any way, demonstrated they suffer from psychological prob lems. Under these circumstances, the grandfather argues the psychological testing provision is unreasonable.
From the grandfather’s arguments in this regard, it appears that he considers, as many other people would under like circumstances, the idea of being psychologically tested a personal affront and an indication that he is suspected of having psychological problems. Although the grandfather’s position is understandable, it is not persuasive.
The plan was developed and approved to reintegrate these children with their mother into a workable and satisfactory family unit. From the sketchy record before us, it would appear the children were physically abused by one or more of the adults with whom they had previously resided. We have nothing before us on the children’s mental health, or needs, or what their mother has to offer them or herself. The totality of the situation was known by the participants in the preparation of the plan and by the trial court. The requirement for psychological testing may have arisen from a proper abundance of caution and concern that these children be in the type of home environment that would prevent further psychological or physical harm and repair existing psychological scars. There is no requirement that psychological problems in the grandfather or the aunt be proven before testing can be required as a condition for permitting the children to reside in the same home with them. Had such problems been established or even suspected, presumably, the plan would not have included such a proposed living arrangement.
We conclude that the grandfather has failed to establish any abuse of trial court discretion in approving the challenged paragraph 6 of the plan.
The judgment of the district court is affirmed in part and reversed in part.
Lockett, J., not participating. | [
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Per Curiam:
This original proceeding in discipline filed by the office of the disciplinary administrator against J. William Staple-ton, of Overland Park, Kansas, charged the respondent with various violations of the Model Rules of Professional Conduct (MRPC), Supreme Court Rule 226 (1990 Kan. Ct. R. Annot. 210). In a second count the respondent was charged with failure to cooperate with the disciplinary administrator’s office in violation of Supreme Court Rule 207 (1990 Kan. Ct. R. Annot. 141).
The original complainant, Ronald McLemore, and his present wife, Jill McLemore, retained Mr. Stapleton to represent Mr. McLemore in various post-trial divorce motions he desired to file in an action involving a former spouse. The complainant, being dissatisfied with the representation provided by the respondent, filed a complaint with the disciplinary administrator. During the ensuing investigation, the respondent failed to cooperate with or respond to inquiries and requests from the disciplinary administrator’s office and subsequently stipulated that he had violated Rule 207.
Following a hearing before a panel of the Kansas Board for Discipline of Attorneys, at which respondent appeared with counsel, the panel found that respondent had violated three provisions of the MRPC in addition to his violation of Rule 207. The panel unanimously recommended that respondent be suspended from the practice of law. The respondent filed exceptions to the report and, after briefing and oral argument, the matter is now before this court for final determination.
Respondent, in his brief, raised three issues: (1) whether the panel’s findings of fact are supported by clear and convincing evidence; (2) whether respondent’s representation of complainant was within the permissible range of competency required of an attorney; and (3) whether the discipline recommended by the panel is appropriate or necessary.
The panel in its report summarized the complaint and evidence as follows:
“The complaining witness, Ronald McLemore, thought his present wife phoned the respondent probably in about May of 1989 for the purpose of having the respondent represent him for reduction of child support and to obtain specific visitation rights in a post-divorce situation with McLemore’s former wife. The respondent took this employment and asked for a retainer of $250 which was mailed to respondent in June of 1989. That thereafter the respondent would not answer communications from the complaining witness, but finally on July 20, 1989, the respondent did tell McLemore that the respondent had filed a motion with the court concerning these post trial motions. The record shows that this motion was filed on that same date of July 20, 1989, but McLemore never received a copy of this motion. That McLemore or his present wife on several occasions called the respondent with information concerning McLemore’s former wife in relation to the post trial motions. This information was to the effect that the former wife was moving to Florida with the children and further that McLemore and his former wife had worked out an agreement concerning custody of their children.
“The evidence then shows that the respondent agreed to file a motion for joint custody of the children and to draft an agreement concerning the custody of the children between McLemore and his former wife. That time was of the essence because of the pending move of the former wife to Florida with the children and by reason thereof she was expressing cooperation with an agreement.
“The respondent did not file such a motion for joint custody and did not draft an agreement between McLemore and his former wife concerning the children. The complaining witness tried to communicate with the respondent by telephone on numerous occasions concerning these legal matters and the respondent did not return the phone calls. McLemore called the Clerk of the District Court to ascertain the status of this case and found that no motions regarding joint custody had ever been filed by respondent.
“The respondent’s version of the facts was somewhat different than McLemore and his present wife, and the respondent’s version of the situation, in substance, was that the respondent was just retained for the purpose of filing a motion for reduction of child support. Respondent testified that he had talked to McLemore and his present wife about filing a change of custody of McLemore’s children, but that McLemore did not want to go ahead with this matter.
“Respondent further introduced as evidence copies of two letters which he had sent to complaining witness, but the testimony was that they had never received the same.
“That at the conclusion of the hearing the panel, at respondent’s request, gave him thirty days to submit any additional evidence ... of mitigating circumstances he desired to present to the panel.
“It should be noted that no additional evidence has been submitted to the panel by the respondent other than that that was received at the hearing.”
The record, which we have carefully examined, contains numerous documents and a 211-page transcript of the proceedings before the panel. The complainant, his present wife, and the respondent all testified at length before the panel. The foregoing factual background in the panel report is a highly summarized version of the evidence in the record. Rased upon the documentary evidence and the testimony before it, the panel found:
“The panel finds that the following matters are established by clear and convincing evidence:
“1. J. William Stapleton is an attorney at law holding registration number 08063 with his last registered office being located at 4550 West 109th Street, Suite 230, Overland Park, Kansas 66211.
"2. That the respondent accepted employment on behalf of respondent McLemore regarding post-divorce motions which were originally, in substance, to modify child support and to obtain specific child visitation rights and that Ronald McLemore paid a retainer to respondent in the sum of $250 in June of 1989.
“3. That McLemore or his present wife tried to communicate with respondent on several occasions concerning this employment and could not communicate with respondent. Further that McLemore never received any copies of any motions or pleadings filed on his behalf.
“4. That on July 20, 1989, the present wife of McLemore was able to talk to the respondent by telephone and respondent at that time told her that he had filed these post divorce motions. That thereafter this witness then determined through the Clerk of the District Court that a motion to decrease child support only had been filed on the same date of July 20, 1989.
“5. That McLemore received information that his former wife was moving to Florida with the children of this marriage and [for] this reason the former wife was willing to enter into an agreement for custody of the children. That this information was furnished to the respondent. to draft such an agreement and further to file a motion for joint custody of the children. That time was- of the essence by reason of this pending move to Florida by the former wife. That respondent failed to file such a motion or to file an agreement between McLemore and his former wife. 15-
“6. The parties have stipulated that' respondent violated SC Rule 207 in that he failed to cooperate with the Disciplinary Administrator’s office or its investigator.”
The panel then concluded there was clear and convincing evidence that the respondent had violated MRPC 1.1 (1990 Kan. Ct. R. Annot. 216) in failing to provide competent representation to his client; MRPC 1.3 (1990 Kan. Ct. R. Annot. 219) in failing to act with reasonable diligence and promptness; and MRPC 1.4 (1990 Kan. Ct. R. Annot. 220) in failing to keep his client reasonably informed about the status of the case and in failing to comply with reasonable requests for information from the client. After a careful review of the entire record, we conclude that the findings of the panel that the respondent violated MRPC 1.1, MRPC 1.3, and MRPC 1.4 are supported by clear and convincing evidence.
The hearing panel of the Kansas Board for Discipline of Attorneys, after considering the respondent’s prior disciplinary record, recommended that he be suspended from the practice of law. The respondent was informally admonished by the disciplinary administrator in 1985 and received public censure from this court in 1988. In re Stapleton, 243 Kan. 146, 753 P.2d 1278 (1988). In both of those disciplinary matters it was determined, inter alia, that Mr. Stapleton had neglected legal matters entrusted to him and had failed on at least one prior occasion to cooperate with the disciplinary administrator’s office. In reaching its recommendation for suspension in this case, the panel stated:
“The Panel, in response to its request for aggravating or mitigating evidence regarding this respondent has had submitted to the panel the following:" ;
“That there have been prior violation complaints filed against the respondent,* which are as follows:
“[In] In the Matter of J. William Stapleton, 243 Kan. 146, it is reported a prior complaint was filed against this respondent and the Supreme Court of Kansas-ordered that the respondent be disciplined by public censure. Also, a prior complaint has been filed against this respondent under Case W-3724, <®which resulted in an informal admonition.
“The Panel observes that the facts as reported under Case W3724 were very similar to the present case. In that case the respondent had also represented a party in a marital dispute and had failed to communicate with his client. Also, in that particular case the respondent claimed he had mailed letters to the complaining witness, but once again the complaining witness testified she did not receive the same, which is the same situation in our present complaint.
“Therefore, having carefully considered the charges of misconduct and the evidence presented at the hearing and receiving information on prior complaints that have been filed against the respondent and further receiving letters of recommendation for the respondent, the Panel concludes and recommends that J. William Stapleton be suspended from the practice of law.
“The Panel recognizes that the facts involved in the present complaint without any prior history would probably have resulted in a less serious recomendation, but the Panel feels that by reason of the respondent’s failure to cooperate with the office of the disciplinary administrator on this and at least one other occasion, and by reason of the prior findings of misconduct against the respondent, the respondent should be suspended from the practice of law.”
We agree with the findings and conclusions of the panel and impose discipline upon J. William Stapleton of one year’s suspension from the practice of law in Kansas.
It is therefore ordered that J. William Stapleton be and he is hereby suspended from the practice of law in the State of Kansas for one year.
It IS further ORDERED that this opinion and order be published in the official Kansas Reports, that Respondent comply with Rule 218 (1990 Kan. Ct. R. Annot. 155), and that the costs herein be assessed to the respondent.
Effective this 25th day of October, 1991. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by Adam Mellies against his father, Arthur Mellies, seeking recovery of social security benefits received as a result of the death of Marsha Mellies, mother of Adam and wife of Arthur. A counterclaim was filed by Arthur seeking damages from a 1986 incident wherein Adam shot his stepmother, stepbrother, and father — the stepbrother having died from his injuries. The district court denied thé counterclaim and entered summary judgment for $25,847.80 plus $15,922.22 prejudgment interest against Arthur, who appeals therefrom.-
The facts were stipulated to and there is no contention the case was not ripe for summary judgment, both parties having filed summary judgment motions. The stipulated facts are as follows:
“a. Following the death of plaintiffs mother, defendant (plaintiffs father) applied for Social Security childrens benefits for plaintiff and at that time agreed to serve as representative payee for plaintiff. Plaintiff was 4 years old at the time of the- first, benefit payment.
“b. Plaintiffs Social Security benefits during the time defendant was his representative payee were as follows:
9/73 to 2/74 $ 93.90* per month = $ 563(40
3/74 to 5/74 $100.50 $ 301.50
6/74 to 5/75 $104.20 $1,250.40
6/75 to 5/76 $112.60 $1,351.20
6/76 to 5/77 $119.90 $1,438.80
6/77 to 5/78 $127.00 $1,524.00
6/78 to 5/79 $135.30 $1,623.60
6/79 to 5/80 $148.40 $1,780.80
6/80 to 5/81 $170.10 $2,041.20
6/81 to 5/82 $189.10 . $2,269.20
6/82 to 11/83 $203.00 $3,654.00
12/83 to 11/84 $210.00 . $2,520.00
12/84 to 11/85 $217.40 $2,608.80
12/85 to 11/86 $224.10 $2,689.20
12/86 (December only) $226.90 $ 226.90
p The amounts set out in ‘b’ above total $25,847.80.
p-The benefits, or monies derived from the benefits, were deposited in Denison State Bank, beginning 8/11/80 and American Savings Association (now Columbia Savings) beginning at least as early as April, 1979.
Defendant withdrew monies from the joint accounts as follows:
8/17/79 $ 1,500.00
5/19/81 $ 3,000.00
4/ 2/82 $12,196.40
6/21/83 $ 3,429.99
3/ 7/86 . $ 448.00
4/21/86 $ 220.00
6/11/86 $ 400.00
9/ 2/86 $ 7,994.88
12/12/86 $ 500.00
1/27/87 $ 200.00
2/20/87 . $ 330.52
9/ 2/86 $ 400.00
Defendant does not know what he did with any money withdrawn prior to June, 1979. Further, he does not know what he did with the withdrawals of 8/17/79, 5/19/81, 3/7/86, 4/21/86, 6/11/86, 9/2/86 ($400.00), and 12/12/86. He states the withdrawals of 4/2/82 and 6/21/83 were transferred to another account. He states the withdrawal of $7,994.88 on 9/2/86 was to pay funeral expenses of Danny Mellies and the withdrawal of $3,429.99 on 6/21/82 was used to pay living expenses.
As plaintiffs father, defendant had a duty to support his minor child pursuant to common law.
“h. Defendant was financially capable to properly support and maintain plaintiff during the years plaintiff^ljved with him without using plaintiffs Social Security benefits.
“i. The Social Security payments payable to the representative payee (defendant) were the property of and belonged to the child (plaintiff). The purpose , of these children’s benefits is to provide at least some measure of income and security to those, who have lost a wage earner on whom they depended.”
Uncontroverted exhibits included, inter alia, the application for social security benefits filed by Arthur on behalf of Adam, and documents pertaining to the social security proceedings initiated by Adam to investigate Arthur’s expenditures of the social security benefits.
Arthur raises the following issues herein:
1. whether the court abused its discretion in attaching to defendant greater duties than those imposed under the social security regulations and Kansas case law;
2. whether the district court abused its discretion in refusing to bar plaintiffs claims on equitable grounds;
3. whether the district court erred in dismissing defendant’s counterclaim; and
4. whether the district court abused its discretion in awarding prejudgment interest to plaintiff.
We believe that the resolution of the first issue is determinative of the entire appeal. The district court’s rationale proceeded upon the following lines. Arthur had the obligation to support his son Adam. Adam’s social security benefits were not “needed” by Adam unless Arthur’s personal funds were insufficient to support Adam. Inasmuch as Arthur stipulated he was financially able at all pertinent times to support Adam, then he had a fiduciary duty to hold and invest all of the social security benefits for Adam. Inherent in the rationale is that the specific dollars received from social security are to be tracked through to the expenditures. Arthur contends that this is an improper interpretation. He had an obligation to support Adam, yes, but there is no requirement that Arthur’s private funds must be exhausted before Adam’s benefits can be utilized for his support. Further, specific dollars are not to be tracked, but rather total expenditures in meeting Adam’s needs are to be considered. If proper expenditures for Adam’s needs exceed the benefits received, there is no money to be conserved. There is no claim herein that Adam’s benefits exceeded expenditures for his support. Indeed, such a position would be extremely difficult to, maintain.
Arthur’s contentions find support in the Social Security Administration’s resolution of Adam’s complaint against Arthur. In 1988, a social security claims representative and a claims “'authorizer approved the following report:
“ISSUE: Did Adam É Mellies receive the fulljuse of his benefits from 9/73 - 11/86?
“FACTS: Adam E Mellies received Social Security benefits on his mother’s record. He lived continuously with his father, Arthur E Mellies, until 11/86. Adam received a minimum Social Security benefit. In 11/86 when Arthur Mellies stopped receiving benefits for Adam, his Social Security amount was only $224.00. This is the highest amount that Mr. Mellies ever received. Adam lived continuously with his father. Mr. Mellies fed him, clothed him, put a roof over his head, and paid the utility bills. He also paid medical bills. Arthur Mellies stated he used all the Social Security benefits he received for Adam on Adam’s current needs.
“DETERMINATION: It is determined that all of Adam E Mellies Social Security benefits were used for his needs. The money that Arthur E Mellies had saved was indeed, his money, not Social Security benefits for Adam. Arthur Mellies received such a small amount of money from Social Security there is no way that there could have been conserved funds saved. All money would have been spent on current needs. “It is determined that all Social Security benefits received by Arthur E Mellies for Adam E Mellies was used. There are no conserved funds.
“AUTHORITY: Section 205(j)(I) of the Social Security Act, Regs. 404.202, 410.582, and 416.625.”
On March 23, 1988, the following letter was sent to Adam by John J. McDonald, Director, Mid-America Program Service Center for the Social Security Administration:
“We have reviewed the use of your benefits. We find that those benefits were used for your needs. All benefits received by your former payee were spent.
“If you have any questions, you should call, write or visit any Social Security office. If you visit an office, please bring this letter. It will help us answer your questions.”
During the period Adam was receiving benefits, 20 C.F.R. § 404.2045 (1986) applied, reproduced in pertinent part as follows: ,
“(a) General. If payments are not needed for the beneficiary’s current maintenance or reasonably foreseeable needs or the support of legal dependents, they shall be conserved or invested on behalf of the beneficiary. Conserved iunds should be invested in accordance with the rules followed by trustees)' Any investment must show clearly that the payee holds the property in trust for the beneficiary.”
In 1989, the regulation was amended as follows:
“(a) General. After the representative payee has used benefit payments consistent with the guidelines in this subpart (see § 404.2040 regarding use of benefits), any remaining amount shall be conserved or invested on behalf of the beneficiary. Conserved funds should be invested in accordance with the rules followed by trustees. Any investment must show clearly that the payee holds the property in trust for the beneficiary.” 20 C.F.R. § 404.2045 (1991).
20 C.F.R. § 404.2040 (1991) provides in pertinent part:
“(a) Current maintenance. (1) We will consider that payments we certify to a representative payee have been used for the use and benefit of the beneficiary if they are used for the beneficiary’s current maintenance. Current maintenance includes cost incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.”
In Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, Syl. ¶ 2, 271 P.2d 773 (1954), we said:
“The rule that an administrative body’s interpretation of its own rules, orders and regulations, in case of ambiguity, is entitled to great weight, under some circumstances to controlling weight, is universally recognized.”
Obviously, the trial court’s determination that Arthur was required to exhaust his private funds before expending any of Adam’s social security benefits for the child’s needs is alien to and inconsistent with the interpretation of the Social Security Administration’s regulations expressed in the previously cited Social Security Administration’s determination of Adam’s complaints herein. The Social Security Administration’s interpretation of its own regulations is entitled to great weight and, probably, controlling weight.
To hold as the trial court did would place an intolerable burden on a surviving parent. Every expenditure for the family’s food, shelter, transportation needs, etc., would require complex mathematical calculations as to the share thereof attributable to the benefit-receiving child and how much thereof the surviving parent’s income could provide. Presumably, adequate records would have to be maiiltained to withstand any investigation therein 10 or 15 years later.
We have no hesitancy in concluding that the district court’s judgment herein was predicated upon a misinterpretation of Arthur’s duty of parental support in relation to his role as representative payee of Adam’s social security benefits. Arthur had no obligation to exhaust his personal finances in providing for Adam’s support before spending any of Adam’s social security benefits on the child’s maintenance. So long as appropriate expenditures for the child’s support exceeded the social security benefits received, there were no funds to be conserved for Adam. There is no claim herein that benefits received exceeded necessary expenditures on Adam’s behalf. It is undisputed that Adam lived under Arthur’s roof at all pertinent times and that Arthur met all of Adam’s financial needs. That ends the controversy. Individual dollars received in benefits need not be tracked through to their expenditure.
By virtue of the result we have reached on the first issue, the other issues raised need not be determined.
The judgment entered herein is reversed and the case is remanded for entry of judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Martin, C. J.
: Many questions respecting rights as well as remedies have been presented, and very ably argued orally and in the voluminous briefs of counsel, but we have found it necessary to decide only one of them. The underlying question is whether, under the laws of Illinois or of Kansas, the several gifts and advancements made by Daniel Small to his children are to be treated as fraudulent and void as to his widow. Most of these gifts and advancements were made without the knowledge of Rebecca Small, and Daniel Small appears to have enjoined upon his children that the subject should not be mentioned to her, nor in her presence. Secrecy is often called a badge of fraud, -but it is not fraud itself. If a man’s disposition of his property is fair and lawful, the concealment of the transaction cannot render it fraudulent. Tf the rights of the children were dependent only iqion the trust agreement of March 19, 1878, it is doubtful if they could stand tlie test of law and equity, for, notwithstanding the trust appeared upon its face to be a valid disposition of the property and securities therein mentioned, such as would be binding upon Daniel Small, yet the trusteeship of Darius Small seems to have been only nominal, and Daniel Small virtually controlled the property, and did as he pleased respecting it, just as he had done before ; his son, Eli D. Small, the nominal attorney in fact of the trustee, merely assisting in the transaction of the business of collecting and reinvesting. If Daniel Small had .died while the securities were in this condition and the Kansas lands in the name of Darius Small as tru'stee, probably it should be said that all belonged in equity to Daniel Small and formed part of his estate upon his death ; but a considerable portion of the so-called trust fund was invested in the Kansas lands and improvements thereon, and both Daniel Small and the trustee, through his attorney in fact, conveyed the lands to the sons and the daughter absolutely in 1886. The advancements were made in 1882, and prior thereto, and we suppose they formed part of said trust fund and its accumulations, and 19 days before the death of Daniel Small he made the final gift, exceeding $100,000. On April 1, 1888, two weeks before his death, Daniel Small had no control in law or equity of the money advancements, the Kansas lands, nor the notes, securities, etc., which were the subject of the gift of March 26, 1888. All were valid dispositions as to him, and lie could not have recovered a dollar thereof from his children. Upon his death they therefore formed no part of his estate, unless upon some established principle of law or equity his widow had a light to so consider them. And this brings us to the main question in the case, namely, under the laws of Illinois and of this state may a married man during coverture, as against any post-mortem claim of the widow, give away to his children the bulk of his property when the known effect of so doing is to diminish the share which she would have been otherwise entitled to upon his death? In this state there are some limitations upon the right of disposition of real property by a husband where the wife is a resident of this state ; but section 8 of our act concerning descents and distributions (Gen. tftat. 1889, ¶ 2599), which allows to the widow one-half in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, not sold at judicial sale, and not necessary for the payment of debts, and to which the wife has made no conveyance, provides further, that the wife shall not be entitled to any interest under said section in any lands to which the husband has made a conveyance, when the wife at the time of tire conveyance is not, and never has been, a resident of this state ; and in Buffington v. Grosvenor, 46 Kan. 730, it was held that this proviso is constitutional. Under this decision Rebecca Small is cut off from any claim of right, title or interest in the Kansas lands, and the court below was correct in so holding.
The advancements of money and the gifts of notes and securities of March 26, 1888, were made in Illinois, and, if lawful there, we should probably so consider them here, even though invalid if made in this state ; and this leads us to a consideration of the laws of Illinois applicable to this subject. The controversy constituting the subject-matter of the cases of Padfield v. Padfield in its several aspects was three times before the supreme court of Illinois, and received very full consideration. (68 Ill. 210; 72 id. 322; and 78 id. 16.) It was finally held in the last suit, which was brought by the widow, that any disposition of personal property and credits by a husband in good faith, where no right or interest is reserved to him either present or ultimate, though made to defeat the rights of his wife, will be good against her; and that there is nothing in the statute respecting the estates of deceased persons that in the slightest degree prevents the husband from disposing of his personal property free from any claim of his wife, whether by sale, gift to his children, or otherwise, in his lifetime. The court quotes approvingly from a note in Kerr on Frauds and Mistakes, 220, as follows :
"There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence and exonerated from the claim of his wife, provided the transaction is not merely colorable, and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her.”
And the court refers to Dunnock v. Dunnock, 3 Md. Ch. 140 ; Cameron v. Cameron, 10 Smedes & Mar. 394; Lightfoot v. Colgin, 5 Munf. 42 ; Stewart v. Stewart, 5 Conn. 317; and Holmes v. Holmes, 3 Paige, 363, as fully supporting the doctrine. The court further says :
"Again, the act of 1861, known as the ‘Married Woman’s Law,’ confers upon femes covert the power of disposing of their separate property, absolutely and as they may choose, free from the control of their husbands. It was manifestly the intention of the general assembly to confer on married women the same and no greater rights, in regard to their property, as were possessed by their husbands. It would be singular, and we cannot suppose that the legislature could have intended to confer other or greater power on the wife than upon the husband. To hold that a feme covert has a vested interest in her husband's personal estate, that he is unable to divest in his lifetime, would be disastrous in the extreme to trade and commerce. Owing to commercial necessities, personalty must be left free for exchange, and, to be so, some one must be vested with full power to sell and transfer it free from latent and contingent claims.”
It is contended by counsel for Rebecca Small that section 4 of the Illinois statute of frauds was amended in 1874, after the rights in the Padfield cases had vested, so that gifts made with intent to defraud ‘‘ creditors or other persons' ’ (the last three words having been added) were declared void, and that a widow comes within the designation of “other persons,” and therefore the doctrine in the last Padfield case is changed by statute, and that this is recognized in Tyler v. Tyler, 126 Ill. 525. In that case it appears that William A. Tyler, in anticipation of proceedings by his wife against him for separate maintenance in Broome county, New York, ■went to Conneaut, Ohio, and assigned and delivered to his son, John B. Tyler, a large amount of notes, bonds, and mortgages, and also indirectly transferred to him certain lands. The suit was brought by the wife soon after the transfer. Afterward, William A. Tyler commenced an action in Illinois against his son to compel a reassignment of said notes, bonds, and mortgages, and a reconveyance of the lands ; but it was held by the supreme court of Illinois that the action could not be maintained, said William A. Tyler having transferred the property with intent to defraud the wife, and to render any judgment for separate maintenance ineffectual, the wife coming within the designation of “other persons” in said section 4 of the statute of frauds as amended. The Padfield cases are not overruled, distinguished, nor otherwise referred to, but the case follows Draper v. Draper, 68 Ill. 17, where it was held that a conveyance, after bill filed for divorce and alimony, with intent to deprive the wife of alimony, was fraudulent, and should be set aside. The phrase “ other persons’ ’ probably would not include a widow seeking to enforce her rights under the'statute of descents and distributions. When general words follow particular and specific words, the former must be confined to things of the samekind. ( Suth. Stat. Const. §§ 268, 278,277 ; Guptil v. McFee, 9 Kan. 30, 37; White v. Ivey, 34 Ga. 186, 199; The State v. McGarry, 21 Wis. 496, 498.) The word ‘ ‘ creditors ’ ’ serves to limit and control the generality of the following words “ other persons ” so as to include only those of like or similar kind and nature to creditors.
There seems to be a distinction between the rights of a widow and those of a wife driven by the aggressions of her husband to a suit for alimony or separate maintenance. In the latter case the wife is seeking to establish an unliquidated claim against her husband for money or property, and her relation to him is that of a quasi creditor. This dissimilarity is pointed out by Agnew, J., in Bouslough, v. Bouslough, 68 Pa. St. 495, 499, as follows :
“So the rule that forbids the wife to avoid the voluntary assignment or gift of her husband, must change when her relation to him changes. There is no reason why a wife whose husband has deserted her, and refused to perform the duty of maintenance, or who, by cruel treatment, has compelled her to leave his house, and commence proceedings for divorce and maintenance, should not be viewed as a quasi creditor in. relation to the alimony which the law awards to her. So long as she is receiving maintenance, and is under his wing, as it were, she is bound by his acts as to his personal estate; but when she is compelled to become a suitor for her rights, her relation becomes adverse, and that of a creditor in fact, and she is not to be balked of her dues by his fraud.”
Recognizing this distinction, it would seem that Rebecca Small, while residing with her husband in the most amicable relations, could not have maintained an action to set aside or annul the advancements and gifts to the children, nor to compel either her husband or the children to account to her for the same; and, as these advancements and gifts were valid as to her and valid as to Daniel Small when made, they formed no part of the estate at his death. But we need not go so far in this case.
The reasoning in Padfield v. Padfield, supra, as to the ‘‘ Married Woman’s Law” in Illinois is of much force here. In some states property acquired during coverture is known as “community property,” and partakes to some extent of the nature of partnership property between husband and wife ; but our legislation is in the opposite direction, manifesting a purpose to maintain, as far as practicable, the separate rights of husband and wife as well to accumulations during as before the existence of the marriage relation, and each is entitled to dispose of his or her own goods and chattels, with a slight modification as to mortgaging the same. Some of our former decisions have accorded in spirit with the doctrine established in Illinois. (Butler v. Butler, 21 Kan. 521, 525, 526; Munger v. Baldridge, 41 id. 241-244.) The cases of Busenbark v. Busenbark, 33 Kan. 572, and Green v. Green, 34 id. 740, both relate to protection of the husband and wife, respectively, during coverture from fraudulent alienation of real estate by the other, and are only remotely analogous to the case now under consideration.
In Williams v. Williams, in tlie circuit court of the United States for the district of Kansas, (40 Fed. Rep. 521,) Foster, J., delivering the opinion of the court, said :
“The main question, in its broadest sense, is simply this : Can a married man give away his property, during coverture, for the purpose of preventing his wife from acquiring an interest therein after his death? The law seems to be that, if such gift is bona fi.de and accompanied by delivery, the widow cannot reach the property after the donor’s death. . . . Neither the wife nor children have any tangible interest in the property of the husband or father during his lifetime, except so far as he is liable for their support; and hence he can sell it or give it away without let or hindrance from them. Of course the sale or gift must be absolute and bona fide, and not colorable only. And if the sale or gift would bind the grantor, it would bind his heirs.”
We ,are aware that the authorities are not all in harmony upon this subject, but the cases asserting a contrary doctrine are generally under statutes or customs different from those of Illinois and Kansas ; and we think the weight of authority in states having statutes upon this subject of the same general nature as our own establishes the doctrine herein announced. We cite some authorities in addition to those hereinbefore given, viz. : Pringle v. Pringle, 59 Pa. St. 281 ; Lines v. Lines, 142 id. 149; Richards v. Richards, 11 Humph. 429 ; Sanborn v. Goodhue, 8 Foster, 48 ; Ford v. Ford, 4 Ala. (N. S.) 142, 146 ; Smith v. Hines, 10 Fla. 258, 285; Stewart, Husb. & Wife, §301; Thornt. Gifts & Adv. § 488.
We are of opinion that the rights of Rebecca Small are controlled by the will and the contract of May 9, 1888. If there was any real estate or personal property in Illinois or elsewhere not disposed of by the will nor included in the contract, of course she is entitled to her proper share of the same.
The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.
: This is an appeal by Amos Brubaker from a conviction for grand larceny. He was charged with stealing five hogs, the property of Alonzo Beal, of the value of $27.50, and upon testimony that was largely circumstantial he was found to be guilty of the charge. The punishment adjudged was imprison ment at hard labor for a term of two years, and from the sentence and judgment he prosecutes this appeal.
The principal complaint is that the testimony upon which the conviction rests is insufficient, but an examination of the same fails to satisfy us that the judgment should be disturbed. It is true that there is a sharp conflict in the testimony relating to the identity of the hogs alleged to have been stolen, and it is earnestly insisted by counsel for appellant that there is a clear preponderance in his favor. If even the preponderance of the evidence was against the verdict, it could not be set aside if that part of the evidence tending to support the verdict is legally sufficient to establish all the essential facts necessary to constitute the crime of which the appellant was found guilty. (City of Cherokee v. Fox, 34 Kan. 16; The State v. Smith, 35 id. 618; The State v. Blakesley, 43 id. 250; The State v. McLain, 43 id. 439 ; The State v. Hunter, 50 id. 306.)
It appears that the appellant sold and delivered five hogs at the packing-house in Topeka. Shortly afterward Beal arrived at the packing-house, and upon learning that the appellant had sold the hogs proceeded to the stock-yards, where those purchased had been placed with about 25 others, and at once identified the five which had been purchased as his own. Several other persons who had had charge of the hogs belonging to Beal also identified them as his property. That Beal lost the hogs is not questioned, and that those found in the stock-yards and identified by Beal as his own were brought there and sold by appellant is conceded. The evidence in regard to the identity of the hogs is not very satisfactory, but that offered by the state, although contradicted, was of a positive character and certainly sufficient of itself to uphold the verdict. The jury, to whom the case was fairly submitted, chose to believe the witnesses for the state, and the district judge after hearing the disputed testimony and reconsidering the same on a motion for a new trial has approved the verdict. A determination of facts so made is final in this court.
Objection is made to the charge given by the court in regard to circumstantial evidence, upon the ground that the testimony was almost entirely positive and direct, and that therefore the instruction was misleading. It appears to be a succinct and correct statement of the law upon that subject, and the testimony being largely circumstantial it was entirely proper that such an instruction should be given.
Exceptions were taken to several of the rulings upon the testimony, but we find nothing substantial in them, or in any of the objections that are made. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Early in the year of 1888, Cydon Lodge No. 5, Knights of Pythias, of Salina, Kan., determined to erect a building upon real estate which it owned in Salina. To accomplish its purpose it was necessary to procure a loan upon the property. During the month of June, 1888, it applied to the Kansas Loan and Trust Company, of Topeka, for a loan of $20,000. While the application was pending, and before any loan was secured, the lodge procured plans and specifications for the building. During the month of August, 1888, the Kansas Loan and Trust Company notified the lodge that it had a customer who would make a loan of $20,000 to the lodge for the purpose of erecting the building. Immediately after this information was received the lodge advertised for bids for the construction of the building, and on August 27, 1888, the contract was let to Rutledge Bros., who entered into an agreement to furnish the material and construct the building for $28,800. On September 28, 1888, the contract was slightly modified as to the> time when payments were to be made, so as to correspond with the advanced payments to be made to the lodge under the $20,000 loan by Nixon, which appears to have been closed up and completed about that time. The papers pertaining to the loan were prepared some time in advance of the completion of the same. It appears that the Nixon mortgage, as well as the commission mortgage of the Kansas Loan and Trust Company, were filed for record in Saline county on September 14, 1888. Accompanying the mortgage was a written guaranty, signed by a number of individuals who were interested in the enterprise, including Rutledge Bros., promising prompt payment of the principal and interest of the loan, as well as the taxes and insurance upon the property. At the same time the lodge also executed an instrument designated as a guaranty against liens, in consideration that the loan negotiated for should be accepted. It guaranteed the party making the loan against any expense, cost, or loss by reason of any mechanics' liens which might be filed on the premises, and it also stipulated that the loan should be paid in certain installments as the work upon the building advanced. These papers, including the mortgages, appear to have been dated September 1,1888, while as a matter of fact they were not executed until later, and the loan was not finally completed and closed up until September 28, 1888. At the last-mentioned date several material changes were made in respect to the times of payment, and all the papers connected with the loan were forwarded to Nixon, who lived near Philadelphia, Pa., and on 1 October 4, 1888, he deposited -with the Kansas Loan and Trust Company the sum of $20,000, to be paid to the lodge in installments as had been agreed upon. Rutledge Bros, began work upon the building, as the court has found, on August 31, 1888, and they sublet various parts of their contract to others. The work proceeded, and from time to time Nixon advanced various installments upon the loan until they amounted to the sum of $11,600. The lodge became insolvent, and was unable to complete the building or to pay the contractors, and no more than $11,600 was ever advanced by Nixon upon the loan. A proceeding was begun by Nixon to foreclose his mortgage, in which a receiver was appointed, and on October 23, 1889, the receiver notified the contractors that they must do no more work upon the building, and the last work done thereon was upon that day. Soon afterward the contractors, subcontractors and others filed verified statements with a view of enforcing liens against the property, and they have been made defendants in the foreclosure proceedings. The trial court determined that the mortgage incumbrances were second and subordinate to the liens of the claimants, and to review this ruling complaint is made.
The questions which divided the parties are whether the claims of those who furnished labor and materials for the building are valid liens against the property, and if so whether they are prior and superior to the incumbrances of the mortgages. If the mechanics’ liens of the claimants are valid, they relate back to the commencement of the building. It is contended that, as the negotiations for the mortgage had been made before the building was commenced, the lien of the mortgage is paramount to those claimed for the labor and materials. It will be observed that the building was not to be erected from the loan merely, as*the contract price of the same greatly exceeded the amount of the loan. The mere negotiation for the loan did not create a lien, and certainly there was no incumbrance upon the property until the mortgage had been executed. As we have seen, the contract was entered into on August 27, 1888, and work was commenced on August 31, 1888, while the papers representing the loan were not executed until September 14, 1888, and appear not to have been delivered or accepted until September 28, 1888. Some controversy has arisen as to when the building was commenced. The first labor done upon the ground under the contract was the removal of an old building, and the clearing of the ground for the excavation. This formed a part of the work under the contract, and was necessary for the construction of the building. Whether this was sufficient to constitute a commencement under the statute we need not determine, for it is conceded that the excavation was begun between the 5th and 10th of September, and that was prior to the time when the incumbrance of the mortgage attached to the property.
It is contended that the statement for a lien filed by Rutledge Bros, is fatally defective because it is not itemized as the law required. It is as follows :
“ Items :
“To contract price as per agreement........ $28,800 00
“ Value and amount of material furnished and labor performed up to the abandonment of contract and building by the owner....... $23,523 60
“ By cash paid.......................?..... 12,423 17
“ Balance.............................. $11,100 43”
As will be seen, this is no more than a lumping of the items included in the whole contract price, another including the estimated value and amount of material furnished and labor performed, and another giving a credit for the amount which had been paid. It can hardly be regarded as a compliance with the statute, which requires that the statement shall include the items of the amount claimed as nearly as practicable. If the building had been completed according to contract and within the contract price, the items might not have been so important; but, as has been seen, the building was incomplete, and no one can tell what proportion of the work has been done, or the amount or value of labor and material necessary to its completion. That it was not itemized as nearly as practicable is readily seen, since they do not separate the labor from the materials, they do not give the amount of the subcontracts, nor do they separate the amounts expended for excavation, for stone, for brick, for iron, for terra-cotta, and for wood, and the labor upon each, as might have been done. From the record, it appears that the work was largely divided up and sublet to others, and a detailed statement to that extent was practicable and might have been readily made. The filing of a statement is the initial, and one of the most important, steps in establishing a mechanic’s lien. A substantial compliance with this provision has always been regarded as essential, and an observance of the same is necessary for the protection of owners, purchasers, and other lien creditors. From the record, it appears that it was practicable to itemize the claim of Rutledge Bros., and it was absolutely necessary for the protection of others. They have in fact filed no itemized statement, and under the rule which obtains in this state they are not entitled to a lien upon the property. (Martin v. Burns, 54 Kan. 641, and cases cited.)
The same objection is made against the statement filed by August Nelson & Co. Their work was done under a contract, and was substantially completed before work upon the building was suspended. The materials which they furnished and the work which they did came within the contract price, and there was no necessity for them to separate and state the different elements which entered into their claim.
Ulrich Bros, entered into a,contract with one of the subcontractors to furnish certain stone to be used in the erection of the building, and they have filed a statement and are attempting to enforce their lien for the unpaid balance due upon the contract. Do the provisions of the law extend to persons so remote as subcontractors of subcontractors, or are they limited to those who furnish material or perform labor under a subcontract with the original contractor? It is urged that under the rule of liberal construction subcontractors in the second or successive degree may be included. As mechanics’ liens are purely statutory, their operation and extent must be found within the terms of the statute creating and defining them. As the statutes confer special privileges upon one class of persons over others, it must clearly appear that those claiming the benefits of the statute are within its provisions. The law is entitled to a liberal interpretation in its application to all persons or classes who are within the protection of the statute, but this rule cannot be invoked to confer the special privileges and preferences of the law upon those not definitely included by the statute. ■ From a reference to the statute, it will readily appear that the person intended to be described by the term "subcontractor” is the one who directly contracts with the original contractor. So much of the provision as is pertinent to this question is as follows :
"Any person who shall furnish any such material or perform such, labor under a subcontract with the contractor, or 'as an artisan or day laborer in the employ of such contractor, may obtain a lien upon such land,” etc. (Civil Code, §632.)
The legislature having expressly limited the lien of a subcontractor to those who contract with the original contractor, we cannot by arbitrary interpretation extend it so as to include subcontractors of the second, third or fourth degree. If it may be extended beyond those who contract with the contractor, it would seem that it might be extended indefinitely to successive subcontractors. This rule would be hazardous to the owner, oppressive to the contractor, and.impracticable in its operation. Such an interpretation should not be adopted except where the statute plainly and positively requires it. No such provision is found in our statute, and, however equitably it-might operate in some cases, we cannot by judicial interpretation en-graft such a feature upon it. (Kirby v. McGarry, 16 Wis. 70 ; Harbeck v. Southwell, 18 id. 439 ; Rothgerber v. Dupuy, 64 Ill. 454; Bridge Co. v. Railway Co., 72 id. 506 ; Schaar v. Ice Co., 37 N. E. Rep. 54; Trust Co. v. Railroad Co., 54 Fed. Rep. 723 ; Stone Co. v. Board of Publication, 91 Tenn. 200; Lowenstein v. Reynolds, 22 S. W. Rep. 210 ; Monroe v. Hannon, 3 L. R. A. 549 ; Phil. Mech. Liens, §49.)
It is contended that the claims of some of the subcontractors must fail because they did not serve a copy of their lien statements upon the owner. That was a requirement of the old law, but the later enactment provides that the service of a notice in writing of the filing of such lien upon the owner of the land is sufficient. (Gen. Stat. 1889, ¶ 4735.) The vesting of the lien is one thing and the manner of its enforce ment is another. “The right to a mechanic’s lien must be determined by the law in force at . _ _ _ the tame the right becomes vested, but the lien must be established, or preserved and enforced, by the law in force at the time the necessary proceedings are had for that purpose.” (Groesbeck v. Barger, 1 Kan. App. 61, 63, 41 Pac. Rep. 204.) In the cited case, Garver, J., points out clearly that the proceedings for enforcing the lien are mere remedies which may be changed by statute, and are governed by the law in force when the proceedings are had. So, here, the right to the liens is governed by the law of 1872, and relates back to the commencement of the building, while the notices and other steps taken to preserve the liens are governed by the act of 1889.
It is contended that by guaranteeing the payment of the mortgage debt and by their knowledge that a loan had been negotiated, Rutledge Bros, have waived their right to claim the lien. In view of the fact that their lien was not properly preserved this is no longer a matter of consequence to them. The claim is made, however, that it will operate to defeat the liens of the subcontractors. It is doubtful whether anything done or known by Rutledge Bros, would have estopped them from claiming a lien prior and superior to that of the mortgage, but in no event could it have operated to the prejudice of the subcontractors. Their right rests upon the statute rather than upon any privity between them and the owner. They are given a direct lien, and the only limit is that they cannot obtain liens in excess of the amount contracted to be paid for the work. The contract of Rutledge Bros, did not require them to construct and deliver the building to the owner free from liens, and no subsequent contract or action of the original contractors can affect the rights of the subcontractors. They were bound to take notice of the original contract, and could not secure ° liens in excess of the sum which the owner agreed to pay; but those who have in good faith furnished labor and material upon the faith of the original contract will not be affected by any subsequent agreement or act of waiver.
For the reasons mentioned, the judgment must be modified so far as it awards liens to Rutledge Bros, and to Ulrich Bros. ; but we find no prejudicial error in any other respect. When the judgment is so modified, it will stand affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.
: C. M. Hosack brought an action against O. E. Walker to recover $2,033.79 upon an account for articles and money furnished and services performed. In Walker’s answer he asked for judgment against Hosack in the sum of $2,083.80 upon an alleged indebtedness embracing numerous accounts, running for a period of about four years. With the consent of the parties the case was referred to a referee, with directions to make findings of fact and of law upon the issues joined. A trial was had before the referee, after which he made a report, finding that Walker was indebted to Hosack upon the charges against him in the sum of $1,977.93, and, further, that Hosack was indebted to Walker upon the charges made against him in the sum of $607.51; and he further found that Hosack was entitled to recover the difference between these two sums, to wit, $1,370.42. A motion was made by Walker to refer the report back to the referee for specific findings of fact on the several items or charges in issue between the parties, which was denied. The motion should have been sustained. The findings were too indefinite and general to admit of an intelligent review of the same in either the district or supreme court. Although there were quite a number of important matters in controversy, the referee failed to indicate how he determined any of them, and, instead, made a lump finding of the balance due upon all the charges made by each. It was impossible, therefore, to take exceptions on the ground that there was a want of testimony to sustain the findings of the referee, or to have a review of the controlling facts in the case. In such a case it has been held “that either party has the absolute legal right to have such a presentation of the controverted questions, where there are several of them, that errors can be assigned with reference to each one of them.” (McMullen v. Schermerhorn, 48 Kan. 739.)
The ruling of the cited case controls the disposition of the present case. The judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.
: The record discloses that Me Alpine obtained only an option for the purchase of the Reich - eneker land, of which Helen C. Reieheneker, the widow of Nelson A. Reieheneker, deceased, owned a interest, while the remaining interests were bwned by the minor children. When the agreement was made, in April, 1887, no authority to sell the land had been procured from the probate court by Mrs. Reieheneker, but the following month an order was made by the probate court conferring upon her the right to sell the land. It was found by the^ court that the personal property belonging to the estate was insufficient for the payment of the debts thereof; that, a division of the property could not be made without injury to that remaining, and that it would be most beneficial to the estate that the whole tract should be sold. It was therefore ordered that it should he all sold at private sale, one-third of the price to be paid in cash, one-third to be paid in one year thereafter, and the remaining one-third in two years from the date of sale, the deferred payments to bear interest at the rate of 8 per cent, per annum; and it was ordered that the purchaser should give a mortgage upon the land to secure the deferred payments. Provision was made that it should be appraised as the law requires, and that it should not be sold for less than three-fourths of its appraised value. Under the contract with McAlpine, she agreed to give him the exclusive right to purchase the tract of land, estimated to contain 50 acres, for a limited time, at $2,000 per acre. One-third of the price was to be paid on or before six months, and the remaining two-thirds in two equal annual payments, drawing interest at the rate of 7 per cent, per annum, to be secured by a mortgage upon the property. For the option he made a cash payment of $1,500, was to pay $1,500 more, within four months, and if the first one-third of the purchase-money was paid within the specified time, the $3,000 advanced for the option was to be credited to the plaintiff as a part of the purchase-money, but it was to be forfeited to the defendant unless the first oné-third payment was made. The arrival of the time when the first payment was to be made found him unprepared to meet it, and the defendant then, for a consideration of $1,000, gave him additional time within which to meet the payment. From his own testimony it appears that he was unwilling and unprepared to perform his obligation withip the extended time. He was negotiating the purchase of a large tract of other and adjoining land, and he did not desire to take the Reicheneker land unless he could also obtain the adjoining-land. Although he utterly failed to perform his part of the agreement, he seeks to recover the money which it was stipulated should be forfeited in the event of such a failure. It is now insisted that as Mrs. Reicheneker failed to tender an abstract of title within the- specified time, did not produce to plaintiff's attorney the authority to convey the land, and did not- procure the' measurement of the same, she was first in default,' and therefore the plaintiff was entitled to have the money advanced refunded. While the agreement required her to furnish an abstract of title within 30 days, it is clear that this condition of the contract was waived by the plaintiff. He made two payments to her, and procured an extension of time to make other payments several months after the time when the abstract was to be furnished. He says that he was well acquainted with the title to the land, and his conduct shows that he deemed the provision relative to an abstract to be immaterial, and both of the parties treated the contract as still in force until after the lapse of the extended time. The performance with reference to abstract Was effectually waived by the plaintiff, This was the only' condition precedent incumbent upon the defendant to perform. It is true plaintiff insists that the failure of the defendant to tender a deed placed her in default, and required her to refund the money advanced; but no deed was required until the first one-third payment was made by the plaintiff. The case is argued by him as if the defendant had instituted an action to compel the payment of the- first installment, and that it devolved on her to put him in default. He is the moving party, and cannot put her in default except by a performance or offer to perform on his part, (Morrison v. Terrell, 27 Kan. 326 ; Soper v. Gabe, 55 id. 646 ; 41 Pac. Rep. 969.)
He further contends, however, that she was unable to convey a title, there being no order of the probate court at the time the agreement was made authorizing the sale, and because the order- subsequently made did not conform to the contract made between the parties. He argues that for want of power the contract was invalid, and the money paid should therefore be refunded. The contract cannot be treated as wholly void. The defendant-owned a interest in the land in her own right, and she obtained from the probate court authority to make a sale and to convey the entire title to the land. She did not obtain direct authority from the court to sell the land to the defendant at a stipulated price, regardless of statutory requirements, but of this the plaintiff has no cause to complain. He knew the condition of the title, and knew that a sale could only be made with the permission and authority of the probate court, and therefore he is held to know that it could only have been made in the manner prescribed by the statute. Both of the parties appear to have been somewhat mistaken as to the legal procedure, but manifestly both contemplated that a title was to be obtained through legal proceedings in the probate court. The order made by the probate court prescribes conditions substantially in accord with those of the contract) and evidently was obtained with a view of carrying out, so far as the statutes permitted, the agreements of the parties. They knew or must be held to have known that an appraisement was required, and that the land could not be sold for less than three-fourths of its appraised value, and also that other steps prescribed by the statute could not be dispensed with.
The interest rate named in the order differed slightly from that specified in the contract, but that might have been modified, and if not, the defendant could have made provision for that out of her own interest. There was no misrepresentation by her respecting the state of the title nor in regard to her right to convey. There is nothing to show that she could not have been placed in a position to convey the land to the plaintiff on December 31, 1887, or even at an earlier date. An appraisement of the land might have been procured under which such a sale could have been made as the statute allows, and such as both of the parties contemplated. She was always ready and even anxious to sell and convey the land to plaintiff up to the termination of the contract, and for months afterward. No objection to the sale was made by the heirs or by anyone interested in the transfer, and an opder for the sale and conveyance was granted by the court. The sale was not defeated on account of any obstacle thrown in the way by the owners of the land or by the probate court. It failed because the defendant was unwilling and unprepared to perform on his part, and this is fairly disclosed by his own testimony. He never complained that an abstract of title had not been tendered, nor of any failure on her part, until long after he had made default and the contract had been terminated. Payment of the first one-third of the purchase-price, which amounted to about $30,000, was never tendered by him, and it is evident that he was never in a condition to make a tender. Instead of requesting performance on her part, he was seeking for delay, and' he even went so far as to pay an addi tional $1,000 to obtain a further delay or extension of a little more than two months. He was clearly in default on the last day of December, 1887, and the monev which he had advanced had been forfeited by reason of his own delay and fault. For a period of more than two years he seems to have treated the money as forfeited, because no steps were taken by him looking to a recovery of the same until the latter part of April, 1890. In this action he has failed to show any right of recovery, and the court committed no error in directing a verdict in favor of the defendant.
Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.
: On January 8, 1890, when David Wilson was passing along one of the principal streets near the business center of the city of Erie, a heavy wooden awning, which projected over the sidewalk and was supported only by brackets, fell upon Mm, causing serious and permanent injury. There was a partial dislocation of the spinal column, the lower portions of the vertebree were pulled apart, and the muscles and tendons of the back were badly ruptured and bruised. The city having refused, upon demand, to compensate him for the injury, he brought an action against the city, alleging that the awning as originally constructed was dangerous and defective, that the city was negligent in permitting it to remain without proper and sufficient support, and that its dangerous condition was known to the city, its officers and agents, for a long time before the occurrence of the accident. He claimed judgment against the city in the sum of $7,750. Summons was served on the mayor of the city, and on the answer day the city made a general appearance, and moved the court to require the plaintiff to make his petition more definite and certain in several particulars. The motion was overruled, after which, upon leave obtained, an answer was filed admitting that the plaintiff was injured, but denying that the defendant .was guilty of any negligence in the premises, and further alleging that the injury was caused by the fault of the plaintiff himself. A third defense was in the nature of a general denial, and it was verified by the mayor. A trial was had before a jury, which awarded Wilson damages in the sum of $5,000. He has since died, and this proceeding was revived in the name of the administrator.
The first assignment of error is the., refusal of the court to compel the plaintiff to make his petition more definite by stating who erected the wooden awning the fall of which caused the injuries to Wilson. The objection is not good. The petition definitely stated the point where the injury occurred, and the building to which the defective awning was attached. It was fully described and its dangerous character alleged, together with the fact that the city had ample 'notice of its condition.
The second assignment of error is the overruling of a demurrer to the plaintiff's evidence. It is argued that the verified general denial put in issue the existence of the corporation, and that, before the plaintiff could recover, he must show that Erie was an organized city of the third class. Such proof became unnecessary by reason of the action taken by the city. It is true that in the petition there was an averment that Erie was an organized city, and that the general denial of the answer was verified. Before the answer was filed, however, the city made a general appearance in the case, and, without challenging its municipal character as described in the petition, it asked for affirmative relief. The action was begun against the city of Erie, and it was so entitled. In the body of the petition the defendant was described as a ‘ ‘ municipal corporation,” and a "city of the third class, created and existing as such corporation and city under the laws of Kansas.” It was summoned into court as an organized city, and its chief officer responded to the summons, and appeared generally for the city, as it had been characterized in the petition and summons. By the general appearance the city acknowledged its corporate existence, and its application for affirmative relief was based upon the assumption that it was a municipal corporation. Having thus appeared and solemnly admitted its existence, it had no right thereafter to deny its corporate existence, or to raise an issue which would require proof of the organization of the city. (Gulf Rld. Co. v. Shirley, 20 Kan. 660 ; Burdette v. Corgan, 26 id. 104; Meixell v. Kirkpatrick, 29 id. 679; Packing Co. v. Casing Co., 34 id. 340; Eubank v. City of Edina, 88 Mo. 654.) In fact there never was a direct challenge by the city of its corporate character, but it sought to raise the question by a verification of a general denial. Aside from the admission which has been mentioned, the city applied for a change of venue, and the ground for the change was that the judge was a taxpayer of the city of Erie. Many other admissions, statements and documents appear in the record produced by both of the parties which show the corporate character of the city, and there is nothing meritorious in the claim which is now made. The admission of the city, however, made at the outset, eliminated from the case any controversy or issue as to its corporate existence.
An objection is made to the charge of the court because it instructed the jury that notice to the city marshal of the defective and dangerous condition of the projecting awning is notice to the city. The duties of the marshal, as defined by the statute, do not include the inspection or repair of the streets or sidewalks, and ordinarily a notice to him of a defect would not be regarded as notice to. the city. In the present case, however, it appears that the person who was acting as marshal at and before the occurrence of the accident was also the street commissioner. Aside from this fact, the mayor stated, in response to an inquiry as to what care he took with reference to such awnings, that he had notified the marshal to look after such things and to keep them in good shape. Under these circumstances the instruction cannot be regarded as prejudicial error. It appears that the awning was defectively constructed, and was not supported in the manner required by- the ordinances of the city. The fact that it had become loosened from the building, and was in a dangerous condition, was brought to the attention of the mayor about two months before it fell. It is true that he called the owner’s attention to the defect, and that an attempt was made to repair it, but the repair was manifestly inadequate, and the mechanic who tried to make the repair stated that he could not insure a job like that. There is much in the testimony which shows that the officers of the city had notice of the dangerous condition of the awning, and certainly its condition existed a sufficient length of time that, if they had exercised a reasonable supervision of the street, they would have discovered the defect in ample time to have prevented the injury.
The objections to the testimony are not material, and the proof appears to be sufficient to sustain the verdict.
Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mastín, G. J.
: At February term, 1884, the plaintiff in error obtained a decree of divorce, for the custody of children, and for alimony, against the defendant in error. This court affirmed the judgment as to the divorce and the custody of children, but reversed it as to alimony, and remanded the case for a new trial on the question of alimony alone. (34 Kan. 53.) At an adjournment of February term, 1886, and on April 2 of that year, the case was again tried, and certain lands were set apart to the plaintiff as and for alimony. Nothing further appears to have been done in court until January 29, 1891, when the plaintiff appeared by counsel, and filed a motion for the correction of the journal entry of the judgment as to alimony, on the ground that said entry did not conform to the actual judgment rendered, but that certain of the lands decreed to her as alimony were omitted from the journal entry, and that certain other lands not decreed to her were included therein, the motion particularly describing all the tracts and lots of ground. On May 27, 1891, at May term, said motion was presented for hearing, and the plaintiff in support thereof offered to introduce evidence, to which the defendant objected, and the objec-. tion was sustained and the motion dismissed at the plaintiff’s costs. The particular grounds of objection and for the dismissal do not appear in the record, but on the argument of the case here upon a proceeding in error it seems to be conceded that the court held the motion came too late. (See §§ 568, 569 and 575 of the Code of Civil Procedure.)- The plaintiff in error contends that these sections are only applicable when a reversal or modification of a judgment or order is sought, citing in support thereof Tobie v. Comm’rs of Brown Co., 20 Kan. 14, 17, while in this proceeding it was only asked that the journal entry of the judgment be made to conform to that which was actually rendered, and that the power to grant such relief is inherent and continuing in the court, and this position is ably presented by counsel. But the defendant in error filed a motion to dismiss on several grounds, one of them being that the judge did not certify that the case belonged to one of the excepted' classes, as provided by section 542a of the code of civil procedure. The record does not anywhere disclose the value of the property to be $100 or more, nor is-such fact otherwise shown, and there is no certificate that the case comes within any of the excepted classes. (Coal Co. v. Barber, 47 Kan. 29, 33 ; Loomis v. Bass, 48 id. 26 ; Skoin, v. Limerick, 50 id. 465.)
The case must therefore be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Abbott, J.:
The plaintiff, Phillip W. Stanfield, appeals from the trial court’s granting summary judgment against him and in favor of the defendants, Osborne Industries, Inc., Stanley M. Thibault, and Ronald Thibault, based on the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata).
In the early 1970s, the plaintiff invented several products, including an electrically heated farrowing pad for use in the hog industry. The plaintiff consulted local businessmen in Osborne, Kansas, about his product ideas. In 1973, the businessmen formed and incorporated defendant Osborne Industries, Inc. (Oil) to manufacture die heating pads and other products. Oil hired defendant Stanley Thibault as president of the company. Oil also hired the plaintiff about this same time. The plaintiff and Oil entered into a written agreement, permitting Oil to manufacture the plaintiff’s farrowing pad in exchange for a royalty of the sales (1973 technology agreement).
In die early 1970s, Oil manufactured farrowing pads for another company, Moorman Manufacturing Company, and labeled the pads with Moorman’s name. However, Oil also manufactured and sold on its own account, with the plaintiff’s acquiescence, some farrowing pads labeled with the name “Stanfield.”
In April 1974, Oil hired defendant Ronald Thibault, Stanley’s brother, to work for the company part-time. Ronald designed a full line of farrowing pads, using a different type of material than the plaintiff’s pads. In April 1975, Oil hired Ronald full-time as vice president of the company. Ronald believed that Oil was too dependent on Moorman, so Ronald developed a plan for Oil to create its own separate markets, reputation, and identity. Ronald also concluded that, as a part of Oil’s move toward independence, it needed to develop and use its own trademark. Plaintiff threatened to cause a walkout of Oil employees if the company adopted a trademark that did not use the word “Stanfield.” In July 1975, plaintiff and Oil executed a second written agreement that gave Oil the right to use the word “Stanfield” on its products, even those that were not invented by the plaintiff (1975 trademark agreement). Oil designed two trademarks, with at least one of them utilizing the word “Stanfield,” and began using them.
In September 1975, the plaintiff quit his employment with Oil due to illness and dissatisfaction with the way things were being run. Since 1975, the plaintiff’s only relationship with Oil has involved the lawsuits he has filed against the company.
In February 1976, the plaintiff’s application for a patent on the farrowing pad was initially rejected, and the patent application rejection became final on March 31, 1978. In December 1976, after paying over $45,000 in royalties under the 1973 technology agreement, Oil stopped paying the plaintiff royalties on the sale of the farrowing pads. In 1977, plaintiff filed suit against Oil in Osborne County District Court to recover his unpaid and future royalties. Oil claimed that it had substantially changed the design of the pad which it marketed to such an extent that no further royalties were due. The jury rejected Oil’s defense and rendered a verdict in favor of the plaintiff. The jury decided that Oil’s newly designed pad was not substantially different from the original pad designed by the plaintiff. The Court of Appeals affirmed the jury verdict. Stanfield v. Osborne Industries, Inc., 7 Kan. App. 2d 416, 643 P.2d 1115 (1982). This court agreed with the jury’s determination that Oil had not substantially changed the design of the farrowing pad. Nevertheless, this court reversed the judgment in favor of plaintiff for a different reason. This court held that the plaintiff was not entitled to collect royalties under the 1973 technology agreement once the plaintiff’s patent application for his farrowing pad had been denied. Thus, this court only allowed the plaintiff to collect royalties for the period prior to the “ultimate rejection” of his patent application on March 31,1978. Stanfield v. Osborne Industries, Inc., 232 Kan. 197, 198, 203, 654 P.2d 917 (1982).
In March 1977, Oil applied to register the “Stanfield” mark it had designed as a trademark, pursuant to the 1975 trademark agreement. In Oil’s application, Stanley Thibault stated that to the best of his knowledge no one else had the right to use the mark in commerce. The mark was registered with the United States Patent and Trademark Office in 1978. The trademark included the plaintiff’s personal name. In 1983, after Oil had used the “Stan-field” trademark for 5 years and expended approximately $400,000 on advertising and travel expenses to promote the “Stanfield” trademark, Oil filed a declaration under the Lanham Act in an attempt to gain “incontestable” trademark status. See 15 U.S.C. § 1065 (1994). Oil asserts that the plaintiff knew Oil had registered the “Stanfield” trademark and claimed sole ownership of it. According to Oil, the plaintiff became aware of these facts in 1979 or 1980 when they were revealed during the discoveiy proceedings of the plaintiff’s first lawsuit against OIL
In 1990, the plaintiff asked Oil to terminate the unlicensed use of the “Stanfield” trademark. According to the plaintiff, he owned common-law trademark rights in the surname “Stanfield,” and the 1975 trademark agreement was a limited license agreement which only granted Oil die right to use the “Stanfield” mark for 15 years. When the 15 years expired in 1990, the plaintiff asked Oil to stop using the mark, but Oil refused. Consequendy, in early 1992, the plaintiff filed an action in the federal district court of Kansas to terminate the unauthorized use of his name and trademark rights. Filed under federal question jurisdiction, the petition alleged two federal T.anham Act claims and a state law claim utilizing supplemental jurisdiction. Specifically, the plaintiff’s federal action in- eluded the following three counts: Count I, a claim under the Lanham Act for false description and false association or sponsorship because Oil continued to use the “Stanfield” trademark on its products after expiration of the trademark license (see 15 U.S.C. § 1125[a] [1994]); Count II, a claim under the Lanham Act for fraudulent registration of the “Stanfield” trademark by the defendants (see 15 U.S.C. § 1120 [1994]); and Count III, a claim for slander, disparagement, and misappropriation of the plaintiff’s personal name due to the defendants’ continued use of the Stan-field name upon expiration of the trademark license.
In response, the defendants filed a motion for summary judgment on the two federal claims and on the state law claim of misappropriation. In the motion for summary judgment, the defendants asserted three grounds: (1) that their prior registration of the mark incorporating the name Stanfield was incontestable; (2) that plaintiff’s claims were time barred; and (3) that res judicata barred plaintiff’s claims. In their supporting memorandum, the defendants based the defense of res judicata on the fact that the “plaintiff could have and should have raised such claims in the prior Osborne County [state] action.” The defendants also added additional grounds for their summary judgment motion in the supporting memorandum, including an assertion that the plaintiff had no federal trademark rights in the “Stanfield” mark because the 1975 trademark agreement constituted a naked license in which the plaintiff abandoned any right he might have had in the trademark.
The federal district court agreed with the defendants’ abandonment argument, stating: “Even assuming that the plaintiff did have some rights in the “Stanfield” trademark or tradename and that he did enter into a license agreement with Oil in July 1975, the court finds that the license agreement was a naked license that worked as an abandonment of any rights plaintiff had.” Stanfield v. Osborne Industries, Inc., 839 F. Supp. 1499, 1504 (D. Kan. 1993). The federal court found that the 1975 agreement was a naked license, in which the plaintiff abandoned his rights in the “Stan-field” trademark, because the plaintiff failed to exercise quality control over the products which carried the trademark. The 1975 agreement did not contain a quality control provision, and the plaintiff did not exercise actual control over the defendants’ operation to ensure quality products. Further, the federal court found that the plaintiff’s reliance on the defendants’ quality control efforts did not fulfill the plaintiff’s duty to exercise quality control over the trademark. As the federal district court stated:
“In sum, the July 1975 agreement, if construed as a license agreement, is a textbook example of a naked license. As such, it constituted an abandonment of whatever trademark rights plaintiff might then have held. The abandonment of plaintiff’s alleged trademark rights disposes of his prior use claim [Count I] and his fraudulent procurement claim [Count II].” 839 F. Supp. at 1507.
The federal district court also held that the plaintiff’s claims were barred by laches because of (1) the plaintiff’s inexcusable delay in instituting the suit, and (2) the prejudice to the defendants resulting from such delay. The district court found the plaintiff inexcusably delayed in bringing the federal lawsuit because the plaintiff knew in 1980 that the defendants had registered the “Stan-field” trademark; however, the plaintiff did not bring the suit until 1992. Prejudice resulted to the defendants during the delay because Oil expended money to promote and develop the goodwill of the trademark. According to the district court, Oil “would have saved several hundred thousand dollars if plaintiff had timely pursued his claim of ownership to the ‘Stanfield’ trademark or tradename.” 839 F. Supp. at 1507.
In the federal court, the plaintiff argued that he did not have damages and that his claims did not accrue until July 5,1990, when the 1975 trademark agreement “expired.” The federal district court found this argument meritless, stating: “The actions taken by Oil in registering the ‘Stanfield’ marks are so inherently inconsistent with the plaintiff’s licensor rights that plaintiff must act immediately to pursue claims on his trademarks.” 839 F. Supp. at 1508. The federal district court found that the plaintiff should not have delayed filing his suit until the alleged expiration of the license, but should have pursued an action once he obtained knowledge of the trademark registration.
The federal district court granted summary judgment in favor of the defendants on Counts I and II of the federal lawsuit, the counts based on federal statutory law. As to Count III, the count based on state common law, the federal district court expressly refused to exercise supplemental jurisdiction over the count. 839 F. Supp. at 1508.
The plaintiff appealed to the 10th Circuit. The 10th Circuit held that the plaintiff abandoned his rights in the “Stanfield” trademark when he signed the 1975 agreement. According to the 10th Circuit, the 1975 agreement was a naked license, as opposed to a limited license which would have permitted Oil to use the “Stanfield” mark for only 15 years. Stanfield v. Osborne Industries, Inc., 52 F.3d 867 (10th Cir.), cert. denied 516 U.S. 920 (1995).
Next, the 10th Circuit held that the plaintiff did not have standing to bring a claim .under 15 U.S.C. § 1125(a) as he alleged in Count I of the federal lawsuit. The plaintiff argued that he had standing to bring this claim because he had a commercial interest in the “Stanfield” mark misused by OIL However, the 10th Circuit held that the plaintiff “abandoned any rights he may have had in the trademark under the 1975 Agreement.” 52 F.3d at 873. As such, the 10th Circuit ruled that the plaintiff lacked standing to prove a § 1125 claim and that summary judgment was properly granted on this count.
Finally, the 10th Circuit held the plaintiff’s second count, fraudulent registration under 15 U.S.C. § 1120, failed because the plaintiff could not produce any evidence to prove one element of the claim — that the defendants, specifically Stanley Thibault, knew the falsity of the trademark registration oath when he signed it. In this trademark registration oath, Stanley Thibault declared that no other person, to the best of his knowledge, had the right to use the “Stanfield” trademark in commerce. The plaintiff alleged that the 1975 trademark agreement was evidence that Stanley Thibault knew the oath was false. However, the 10th Circuit pointed out that Stanley Thibault could have reasonably believed that the plaintiff waived all his rights to the “Stanfield” trademark in that 1975 trademark agreement. As such, the trademark registration oath signed by Stanley Thibault would not have been false and there was no evidence to show that it was. Since the plaintiff failed to establish the existence of this element, which is necessary for a § 1120 claim, the 10th Circuit found summary judgment was proper as to Count II. The 10th Circuit affirmed the district court’s grant of summary judgment to the defendants on Counts I and II of the federal complaint. 52 F.3d at 874. The plaintiff sought review of the 10th Circuit’s ruling in the United States Supreme Court. The United States Supreme Court denied certiorari.
Since the federal court declined to exercise supplemental jurisdiction over the state law claim raised in the federal lawsuit (Count III), the plaintiff filed that claim, alleging misappropriation of his name and false light, in Osborne County District Court. This appeal arises from that action.
The defendants filed a motion for summary judgment in the state court action. In their motion and supporting briefs, the defendants relied solely on the doctrine of issue preclusion (collateral estoppel) as a basis for summary judgment. After oral argument, the trial court granted defendants’ motion for summary judgment. In so ruling, the trial court relied on both the doctrine of issue preclusion (collateral estoppel) and the doctrine of claim preclusion (res judicata). The journal entry provided:
“1. Defendants’ motion for summary judgment is based on the doctrine of res judicata or judicial estoppel arising out of prior litigation between the same parties. This is the third case between them, and decisions in prior cases have been cited by both parties in their briefs.
“2. The issue presented to the court is solely an issue of law which may be decided on the basis of opinions in Stanfield v. Osborne Industries, Inc., et al., 839 F. Supp. 1499 (D. Kan. 1993), 52 F.3d 867 (10th Cir.), cert. denied 116 S. Ct. 314 (1995) and the allegations of the Petition in this action.
“3. The court finds that plaintiff has had his day in court and that the doctrine of judicial estoppel and issue preclusion applies here so that this action cannot be maintained. Summary judgment should be entered for defendant.”
The plaintiff timely filed a notice of appeal to the Court of Appeals. This court transferred the case to the Supreme Court pursuant to K.S.A. 20-3018(c).
“The burden on the party seeking summary judgment is a strict one. 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.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995). “Summary judgment is proper where the only question or questions presented are ques tions of law. [Citation omitted.]” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993).
Whether the doctrine of issue preclusion or claim preclusion applies in a certain situation is a question of law. An appellate court may analyze the question using unlimited de novo review. See City of Manhattan v. Huncovsky, 22 Kan. App. 2d 189, 190-91, 913 P.2d 227, rev. denied 260 Kan. 928 (1996) (citing Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690-92, 751 P.2d 122 [1988]).
All parties agree that “[s]tate courts are bound to apply federal rules in determining the preclusive effect of federal-court decisions on issues of federal law.” Heck v. Humphrey, 512 U.S. 477, 488 n.9, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994); see Restatement (Second) of Judgments § 87 (1980). Thus, while Kansas law does not appear to differ significantly from the federal law regarding the preclusion doctrines, the controlling authority in this case is federal law. See Restatement (Second) of Judgments § 87, Comment a , p. 315 (“[T]here [is] little difference in the doctrine of res judicata as expounded in state and federal courts ... so that it is usually a moot question whether the effect of a federal judgment is determined by federal law or state law.”).
The United States Supreme Court has discussed the general principles of issue and claim preclusion in Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980):
“The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel. Under res judicata [or claim preclusion], a final judgment on the merits of an action precludes the parties or their privies from reliügating issues [or claims] that were or could have been raised in that action. Cromwell v. County of Sac, 94 U.S. 351, 352. Under collateral estoppel [or issue preclusion], once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Montana v. United States, 440 U.S. 147, 153.” 449 U.S. at 94.
"The general principle announced in numerous cases [regarding issue preclusion] is that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue, and actually determined by them.” Southern Pacific Railr’d v. United States, 168 U.S. 1, 48-49, 42 L. Ed. 355, 18 S. Ct. 18 (1897).
The doctrine of issue preclusion prevents the plaintiff from re-litigating in the present lawsuit any fact or legal issue actually resolved against him in the previous federal lawsuit and necessary to the final judgment in that lawsuit. See Restatement (Second) of Judgments § 27 (1980) (“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”).
“The general rule of res judicata [or claim preclusion] applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ [Citation omitted.]” Commissioner v. Sunnen, 333 U.S. 591, 597, 92 L. Ed. 898, 68 St. Ct. 715 (1948).
The doctrine of res judicata (or claim preclusion) prohibits a party from asserting in a second lawsuit any matter that might have been asserted in the first lawsuit. Prospero Associates v. Burroughs Corp., 714 F.2d 1022, 1025 (10th Cir. 1983). In order for the doctrine of claim preclusion to apply, three factors must be present: “ ‘(1) the first suit must have proceeded to final judgments on the merits; (2) the parties must be identical or in privity; and (3) the suits must be based on the same cause of action [or claim].’ ” Clark v. Haas Group, Inc., 953 F.2d 1235, 1236 (10th Cir.), cert. denied 506 U.S. 832 (1992). This case can be decided under the doctrine of claim preclusion using these three factors.
According to the plaintiff, claim preclusion has no applicability to this case because the claims he raises in this state court action are not the same claims which the federal court previously resolved. Instead, the plaintiff argues, the federal court resolved federal trademark claims based on the Lanham Act, while this state court action involves state common-law claims of misappropriation and false light, based on the Restatement (Second) of Torts. The plaintiff asserts that these state law privacy claims, based on Restatement (Second) of Torts §§ 652C and 652E (1976), are very different claims than the federal trademark claims decided under the Lanham Act.
In support of this contention, the plaintiff cites to the sources upon which each claim is based, pointing out the distinctions in the claims raised. For instance, in federal court the plaintiff brought two trademark claims based on the Lanham Act. One claim was premised on a violation of 15 U.S.C. § 1125, which provides:
“(a) Civil action
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . . shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”
The plaintiff’s second trademark claim, which was resolved against him in federal court, was premised on a violation of 15 U.S.C. § 1120, which provides:
“Any person who shall procure registration in the Patent and Trademark Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, shall be hable in a civil action by any person injured thereby for any damages sustained in consequence thereof.”
In this state court action, the plaintiff brings two invasion of privacy claims based on Restatement (Second) of Torts. The first claim, misappropriation of one’s name or likeness, is premised on the elements set out in Restatement (Second) of Torts § 652C, which provides: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”
The second claim the plaintiff brings in state court, publicity placing a person in false light, is premised on the elements set out in Restatement (Second) of Torts § 652E, which provides:
“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
“(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
“(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
In support of his position, the plaintiff cites to several federal cases which have recognized the distinction between federal trademark claims and state privacy claims. For instance, in U. of Notre Dame Du Lac v. J.C. Gourmet Food, 703 F.2d 1372, 1376 (Fed. Cir. 1983), the court stated:
“Our review of case law discloses that the elements of a claim of invasion of one’s privacy have emerged as distinctly different from those of trademark or trade name infringement. There may be no likelihood of such confusion as to the source of goods even under a theory of ‘sponsorship’ or ‘endorsement,’ and, nevertheless, one’s right of privacy, or the related right of publicity, may be violated.”
Further, in Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996), the court separately discussed a Lanham Act claim and a state invasion of privacy claim, citing different elements of proof for each claim. As the plaintiff points out, not a single element of proof for the Lanham Act claim corresponded to a single element of proof for the California state common-law and statutory misappropriation claim. In Abdul-Jabbar, the plaintiff was permitted to pursue both types of claims. Moreover, other courts have permitted a plaintiff who lost a Lanham Act claim, based on a violation of 15 U.S.C. § 1125, to continue to pursue a state misappropriation claim. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983) (court affirmed dismissal of the § 1125 claim but found Johnny Carson’s identity had been misappropriated). Based on these cases, the plaintiff argues that the privacy claims he seeks to litigate in this state court action are different than the Lanham Act claims which were resolved against him in federal court. As such, the plaintiff asserts that the doctrine of claim preclusion does not apply herein and should not prevent the litigation of his state claims in this state court action.
Under the doctrine of claim preclusion, if a court of competent jurisdiction has entered into a final judgment on a claim, then the parties are bound to every matter determined by the judge, and to any other admissible matter which might have been offered for that purpose. Sunnen, 333 U.S. at 597. As previously stated, in order for the doctrine of claim preclusion to apply, three factors must be present: ‘“(l) the first suit must have proceeded to final judgments on the merits; (2) the parties must be identical or in privity; and (3) the suits must be based on the same cause of action [or claim].’ ” Clark, 953 F.2d at 1236. Each of these factors is applied to this case below.
Under the first factor, the plaintiff’s federal suit did proceed to a final judgment on the merits because the federal court granted summary judgment to the defendants. Federal courts treat a summaiy judgment as a judgment on the merits. 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4444 (1981) (“Both claim preclusion and issue preclusion [can] result from summary judgments that rest on the lack of any genuine issue of material fact going to the merits of [the] claim or defense.”). Under the second factor, the parties in the federal suit — Phillip Stanfield, Oil, Stanley Thibault, and Ronald Thibault — are identical to the parties in this state court action. Finally, under the third factor, the question is whether this state lawsuit is based on the same cause of action or claim addressed in the federal lawsuit. The analysis of this factor is more difficult than the analysis required for the first and second factors.
The purpose behind claim preclusion is judicial economy. Sunnen, 333 U.S. at 597. Thus, to fulfill this purpose, claim preclusion prohibits a plaintiff, who has several different legal theories or “claims” under which to sue, from bringing successive suits based on each individual theoiy or “claim.” Since claim preclusion only prohibits the relitigation of the same “claim,” it is necessary to redefine the term “claim” so as to include separate legal theories based on the same facts that could have been brought in the same action.
The current meaning of the term “claim,” within the context of claim preclusion, is defined in factual terms so that the same factual “transactions” or “series of connected transactions” is one claim, regardless of the number of substantive legal theories that may be available to the plaintiff based on those facts. The Comments to Restatement (Second) of Judgments §§ 24 and 25 (1980) elaborate further on what constitutes a “claim” or “transaction”:
“In general, [claim] connotes a natural grouping or common nucleus of operative facts. Among the factors relevant to a determination whether the facts are so woven together as to constitute a single claim are their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes. Though no single factor is determinative, the relevance of trial convenience makes it appropriate to ask how far the witnesses or proofs in the second action would tend to overlap the witnesses or proofs relevant to the first. If there is a substantial overlap, the second action should ordinarily be held precluded.” Restatement (Second) of Judgments § 24, Comment b, p. 199.
“In the more complicated case where one act causes a number of harms to, or invades a number of different interests of the same person, there is still but one transaction; a judgment based on the act usually prevents the person from maintaining another action for any of the harms not sued for in the first action.” Restatement (Second) of Judgments § 24, Comment c.
“Having been defeated on the merits in one action, a plaintiff sometimes attempts another action seeking the same or approximately the same relief but adducing a different substantive law premise or ground. This does not constitute the presentation of a new claim when the new premise or ground is related to the same transaction or series of transactions, and accordingly the second action should be held barred.” Restatement (Second) of Judgments § 25, Comment d.
See Clark v. Haas Group, Inc., 953 F.2d 1235, 1236-37 (10th Cir.), cert. denied 506 U.S. 832 (1992); see also Lowell Staats Min. Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989) (“We have adopted the transactional approach of the Restatement [Second] of Judgments ... to determine what is a single ‘cause of action.’ ”).
Using this definition, the question under the third factor of claim preclusion is whether the plaintiff’s current lawsuit in state court for misappropriation and false light arises out of the same “transaction” as his lawsuit in federal court for Lanham Act violations. Here, both actions arise out of a common nucleus of operative fact — the defendants’ labeling of certain products with the term “Stanfield” after 1990. The facts needed to prove all of the legal theories raised by the plaintiff are related in. time — after 1990— and in origin — they are all acts of the defendants. The witnesses and proof required in this state action would tend to overlap the witnesses and proof which would have been utilized in the federal action, had the federal court not granted summary judgment to the defendants. In fact, each allegation stated in the state court petition is almost identical to each allegation stated in the federal court complaint. Thus, the facts alleged in the federal court action are so interwoven with the facts alleged in this state court action that the facts constitute a single transaction or “claim.” Even though the defendants’ alleged acts invaded several of the plaintiff’s interests under several different legal theories, there is still but one transaction or “claim.”
A judgment has previously been determined on this “claim” in federal court against the plaintiff. Having been defeated on the merits in federal court, the plaintiff attempts to bring another action in state court utilizing a different legal theory. Despite the differences in legal theories, this state lawsuit does not raise a new “claim.” Thus, this second action in state court is based on a “claim” which has been previously litigated in a competent federal court adverse to the plaintiff. As such, all three factors of claim preclusion are satisfied, and this state court action is barred by that doctrine. The next questions is whether there are any exceptions to prevent this preclusion.
Since the federal court and state court actions address the same “claim” or “factual transaction,” the federal court’s determination of the claim against the plaintiff precludes the plaintiff from relitigating the same claim in this state court action. However, the plaintiff argues that an exception to claim preclusion applies in this case because the federal court did not have the power to rule on his state law legal theories at issue, even though he pled them in the federal action as part of a single claim. The plaintiff points out that the federal court refused to decide the state law legal theories (Count III of the federal complaint) because the federal court granted summary judgment against the plaintiff on his two counts of Lanham Act violations. Since the federal court no longer had any federal issues to determine, it refused to exercise supplemental jurisdiction over the remaining state law legal theories or rule on them. These state law legal theories, based on misappropriation and false light, are the theories which the plaintiff now raises in this state court action. Since the federal court did not decide these state law legal theories, the plaintiff asserts that the federal court’s determination of the single “claim,” based on other legal theories, should not preclude the plaintiff from relitigating the same “claim,” under different legal theories, in state court.
In Mattson v. City of Costa Mesa, 106 Cal. App. 3d 441, 164 Cal. Rptr. 913 (1980), the plaintiff brought an action in federal court based on a federal law theory — violation of the plaintiff’s civil rights — and based on a state law theory — negligence. The federal court declined to take pendent jurisdiction over the state law theory. After trial, the federal court determined the federal law theory adverse to the plaintiff. The plaintiff then filed a second lawsuit, in state court, alleging the state law theory of negligence. The plaintiff argued that claim preclusion did not apply, even though the legal theory in the second lawsuit arose out of the same “claim” determined in the first lawsuit, because he attempted to have the federal court exercise pendent jurisdiction over the state law legal fheoiy, but it refused to do so. Thus, the plaintiff argued that his state law legal theory, raised in the state court action, was not barred by the federal court’s previous judgment on the same “claim.” The Mattson court rejected this argument, finding that the plaintiff’s second action in state court, involving different legal theories but based on the same “claim” as the prior federal action, was barred by claim preclusion. In so holding, the Mattson court stated:
“A contrary rule would invite manipulation. It would permit a plaintiff halfheartedly to request the federal court to exercise pendent jurisdiction, offer little resistance to any argument by the defendant against its exercise, and hope that the federal court would decline to exercise pendent jurisdiction and therefore reserve the plaintiff a second chance to prevail in a state court action .... Judicious utilization of judicial and litigant resources become ever more essential in the wake of the law explosion. The efficient administration of justice would not be advanced by a rule resulting in or encouraging multiple litigation of a single cause of action.” 106 Cal. App. 3d at 455.
We agree with the Mattson court. Claim preclusion prohibits a party from asserting in a second lawsuit any matter that might have been asserted in the first lawsuit. Prospero, 714 F. 2d at 1025. Thus, a legal theory does not even need to be raised in the first action, more or less considered by the court, in order for it to be precluded in a later action under the claim preclusion doctrine, if it arose out of the same claim or factual transaction which the first action determined. See Restatement (Second) of Judgments §§ 17, 27 (1980). The fact that the federal court did not consider the plaintiff’s state law theories does not prevent claim preclusion from applying to the theories, since the theories arose out of the same claim or factual transaction which the federal court did determine. We hold that the federal case gives the defendants the right to use the “Stanfield” trademark and that claim preclusion prevents the plaintiff from proceeding with this state case. This makes the remaining issues moot. We have examined the plaintiff’s other arguments and find them to be without merit. The trial court properly granted summary judgment against the plaintiff.
Affirmed.
Lockett, J., not participating.
Richard W. Wahl, Senior Judge, assigned. | [
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The opinion of the court was delivered by
Hokton, C. J.:
The contention is, that neither,the president nor the cashier of a bank organized under the laws of the state has the power, virtute offieii, to sell the safe for a debt of the bank, and therefore that the bill of sale executed October 11th, 1878, by the president and cashier of the Exchange bank of Lawrence, did not transfer the safe of the bank, or any right, title, or interest therein, to the plaintiff below. This position is well taken. Sec. 129, ch. 23, Comp. Laws of 1879, reads:
“The affairs and business of any such association [bank] shall be managed and controlled by a board of directors, not less than five nor more than nine in number, from whom there shall be designated by themselves a president and a secretary, who shall hold their offices for one year, and until their successors are elected and duly qualified. Said board of directors shall designate who shall act as cashier, and said board of directors may appoint and remove such cashier.”
This court, in the case of National Bank v. Drake, 29 Kas. 325, said:
“The directors constitute the governing body of the bank; the bank itself being an incorporeal entity, without power to see or know. The directory constitutes the visible representative, the thinking, knowing head of the bank.”
Morse on Banks and Banking, 107, thus states the rule:
“The general control and government of all the affairs and transactions of the bank rest with the board of directors. For such purposes the board constitutes the corporation, and uniform usage imposes upon them the general superintendence and active management of the corporate concerns.”
Of course what the president and cashier do, by the action of the directors, is binding upon the bank. In the usual division of duties, to the president it belongs to represent the bank in its collateral business relations. The cashier is the executive of the financial department of the bank, and whatever is to be done, either to receive or pass away the funds of the bank for banking purposes, is done by him or under his direction; he therefore directs and represents the bank in the reception and emission of money for banking objects. (United States v. Bank, 21 How. 356; Merchants’ Bank v. State Bank, 10 Wall. 604; Com. Bank v. Norton, 1 Hill, 501.) But neither the president nor the cashier can impose by his own action, on the bank, any liability not already imposed by law or usage; nor can they bind the bank, in the absence of authority from the directors, by any agreements or contracts outside of the range of their duties. (Bank v. Dunn, 6 Pet. 51.)
We suppose that any contract formally executed by the president and cashier of the bank, under the corporate seal of the bank, bears upon its face the presumption that it was executed by authority of the directors, who are in law the governing body of the bank; but this presumption may be repelled by evidence, and the contract avoided by proof that the president and cashier had never been authorized or directed by the board of directors of the bank to consent to the contract, or execute it.
In this case the finding of the court is, that the president and cashier made and executed the bill of sale without any authority or direction from the directors. The mere fact that they had conducted the business of the bank gave them no authority to make the sale. As these officers had no power to execute the bill of sale, and as it is not claimed that the directors ever ratified their act, the plaintiff below was not the owner of the safe at the commencement of her action. (Bank v. Dunn, 6 Pet., supra; Bank of Metropolis v. Jones, 8 Pet. 16, 17; Adriance v. Roome, 52 Barb. 399; Walworth County Bank v. Farmers’ Loan & Trust Co., 14 Wis. 325; Chicago & N. W. Rld. v. James, 22 id. 194; Blood v. Marcuse, 38 Cal. 590; Angell & Ames on Corp., § 298, pp. 322 and 323.)
The judgment of the district court must be reversed, and the cause remanded with direction to enter judgment upon the findings of fact for the plaintiffs in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Sometime prior to September 15,1882, E. W. Ober and D. H. Hageman, partners as Ober & Hageman, held and owned a certain promissory note, which they deposited for collection with the First National Bank of Salina, Kansas, and said bank immediately transmitted the same for collection, to the Bank of Lindsborg, Kansas, and the Bank of Lindsborg, on September 15,16,17, or 18, 1882, delivered the same to John McPhail, a notary public, of Lindsborg, for him to make demand and protest, and to give proper notice. At the time when this promissory note was received by the Bank of Lindsborg, and at the time when it was delivered to McPhail, it, with its indorsements, read as follows:
“$175.
Lindsborg, Kas., Feb. 25,1882.
“On or before the fifteenth day of September, 1882, we promise to pay to J. B. Curtis, or order, one hundred.and seventy-five dollars, for value received, negotiable and payable at the Bank of Lindsborg, in Lindsborg, Kansas, without defalcation or discount, with ten per cent, interest per annum from date; the interest, if not paid annually, to become a part of the principal, and bear the same rate of interest.
H. W. Maltby.
F.. A. Maltby.
“No. — . Witness:-. Postoffice:-.”
Indorsements:
“J. B. Curtis, J. Gr. Mohler.”
“Pay to the order of the First National Bank, for collection. — Ober & Hageman.”
“For collection and returns on account of the First National Bank of Salina, Kas. — M. D. Teague, Cashier.”
It is alleged that McPhail failed to make any proper demand, or to give any proper notice, and therefore that the indorsers were absolutely discharged from all liability on the note. Immediately afterward, Ober & Hageman commenced an action in the district court of Saline county against the First National Bank of Salina, the Bank of Lindsborg, and John McPhail, to recover' the amount of the note. Each of the defendants demurred to the plaintiffs’ petition, on the ground that it did not state facts sufficient to constitute a cause of action; and the court below sustained the demurrers as to the First National Bank of Salina and John McPhail, and overruled the demurrer as to the Bank of Lindsborg. The Bank of Lindsborg then answered to the plaintiffs’ petition by filing a general denial. A trial was then had between Ober & Hageman on the one side and the Bank of Lindsborg on the other, before the court without a jury, and the court made certain special findings of fact and of law, and upon such findings rendered judgment in favor of the plaintiffs, Ober & Hageman, and against the Bank of Lindsborg, for $201.25, and costs of suit; and the Bank of Lindsborg, as plaintiff in error, now brings the ease to this court, and asks that such judgment shall be reversed.
The first point to be considered in the case is with regard to the sufficiency of the plaintiff’s petition as against the Bank of Lindsborg. Now whether the petition was technically sufficient or not at the commencement of the action, or even when the trial was commenced, we think is wholly immaterial now; for during the trial the plaintiffs asked leave of the court to amend their petition so as to make it correspond with the facts proved, and the court at that time stated that it wished to hear and determine the case upon its merits, and if it was necessary to allow the amendment for that purpose, the petition might be so amended. Afterward, when the court made its special findings and rendered judgment thereon, it granted leave to the plaintiffs to make such amendment; but it does not appear that the amendment was ever in fact made. Now, as the amendment, if any was necessary, was slight and not very material, we think it may be considered as having been made, and we shall therefore proceed to consider the case upon its merits; and, upon the merits, which of the parties should recover in this action ? Or, in other words, was and is the Bank of Linsborg liable to Ober & Hageman for the amount of said note, or for any amount thereon, because of the said failure of McPhail, the notary public, to make proper demand and to give proper notice? Upon questions of a kindred character there seems to be a great variety of opinion among the very able courts that have had such questions under consideration, and there even seems to be some irreconcilable conflict between the decisions of such courts, though probably if all the cases were carefully studied, and all the various circumstances upon which each case has been decided were carefully considered, it would be found that the conflict is not as great as at first it seems to be. Whether the First National Bank of Salina or John McPhail is liable, or not, are questions not necessary to be determined in this case, as the case is now presented to this court. The only question necessary to be determined by this court is whether the Bank of Lindsborg is liable, or not. The court below found, among other things, as follows :
“ 1. That the note sued on was executed, delivered and indorsed as set up in the petition. Some time prior to its maturity it was by the firm plaintiffs residing and doing business in Salina, Kansas, delivered to the defendant First National Bank of Salina for collection, with the understanding that it would by them be forwarded to the defendant Bank of Lindsborg (at which place it was made payable) for collection, or protest and notice if necessary.”
From this finding it would appear that the note was deposited with the First National Bank of Salina, with the understanding that the note would be forwarded by such bank to the Bank of Lindsborg for collection, and we think there was sufficient evidence to sustain this finding. The note was payable at the Bank of Lindsborg, which was situated at the town of Lindsborg, in McPherson county, Kansas, several miles distant from the city of Salina, where the plaintiffs resided and where the First National Bank of Salina was situated. The plaintiffs had previously had notes payable at that bank and other banks collected in the same manner. They knew that it was the custom of the First National Bank of Salina, and of other banks, to collect notes in that manner. And therefore it may fairly be presumed that when they delivered the note to the First National Bank of Salina, they simply intended to make the First National Bank of Salina their agent to transmit the note to the Bank of Lindsborg for collection, and intended to make the Bank of Lindsborg their agent, or sub-agent, for the collection of such note; and in such a case we think the great weight of authority would make the Bank of Lindsborg liable to the owners of the note for any negligence of its own whereby the owners of the note might suffer loss. (Guelich v. National State Bank of Burlington, 56 Iowa, 434, 436, and cases there cited; Fabens v. Mercantile Bank, 40 Mass. [23 Pick.] 330; Dorchester &c. Bank v. N. E. Bank, 55 Mass. [1 Cush.] 177; Lawrence v. Stonington Bank, 6 Conn. 521; Bank of Louisville v. Bank of Nashville, 8 Baxt. [Tenn.] 101; Daly v. Butchers’ &c. Bank, 56 Mo. 94; Bank of Washington v. Triplett, 26 U. S. [1 Pet.] 25; Ætna Ins. Co. v. Alton City Bank, 25 Ill. 243; Stacy v. Dane Co. Bank, 12 Wis. 629. See also Allen v. Merchants’ Bank, 22 Wend. 215; Ayrault v. Pacific Bank, 47 N. Y. 570; Kent v. Dawson Bank; 13 Blatch. C. C. 237.)
Generally, in those cases where it is held that the second bank to which the note is sent for collection is not liable, it is so held upon the theory that the owners of the note simply employed the first bank to collect the same, and intended that the first bank should use its own agencies and its own means for collection, and should collect the note in its own way, and that the second bank should not be in any manner either an agent or sub-agent of the owners of the note, but should simply be an agent of the first bank.
It is true that in the present case nothing was said when Ober & Hageman delivered the note to the First National Bank of Salina as to how it should be collected, or in what manner it should be collected. But as before stated, the circumstances under which it was delivered; the fact that the First National Bank of Salina as well as other banks had a custom of collecting notes payable at a distant place by sending them to some bank at such place; that the plaintiffs knew of such custom; that they had previously had dealings with the Salina bank and had previously had notes collected in that manner by such bank; and had previously had notes payable at the Bank of Lindsborg collected in that manner — that is, by the Salina bank .sending them to the Lindsborg bank for collection; and that this note was payable at the Bank of Lindsborg — taking all these facts together, we think they were sufficient from which the court might reasonably find that the note was delivered to the First National Bank of Salina with the understanding that it would be forwarded to the Bank of Lindsborg for collec-tion. And from this finding we would think it would follow that the Bank of Lindsborg became and was the agent or sub-agent of the plaintiffs for the collection of the note. But even if it was not, even if it was merely the agent of the First National Bank of Salina, there would still seem to be some good reason for allowing the plaintiffs to recover from the Bank of Lindsborg, provided the Bank of Lindsborg is liable at all to any person.
There is great reason for allowing a party who is injured to pass over intermediate agencies, if he chooses, to the final and ultimate agent which through its wrongful acts or negligence has caused the injuries complained of, and to permit such party to recover from such ultimate agent, although some one or more of the intermediate agencies might also be liable. It saves a circuity of action, and avoids a multiplicity of suits. If the Bank of Lindsborg is liable at all, it would seem better to permit the plaintiffs to recover directly from it, than to require them to sue and recover from the First National Bank of Salina, and then for the First National Bank of Salina to sue and recover from the Bank of Lindsborg.
But counsel for the Bank of Lindsborg claim that if the plaintiffs may pass over the First National Bank of Salina and sue the Bank of Lindsborg, then they must also necessarily pass over the Bank of Lindsborg and sue John McPhail, the notary public. We do not think that this necessarily follows. It does not appear that there was any agreement or understanding between the plaintiffs or the First National Bank of Salina, on the one side, and the Bank of Lindsborg, on the other side, that the note should be delivered to John McPhail, or to any other particular person, for demand, protest, and notice; but it would seem that the note was sent to the Bank of Lindsborg to be collected by it, leaving it to adopt its own agencies and its own means to collect the same. Besides, it would seem from the findings of the court that it selected a person who had been in its employ as an attorney at law, but who was incompetent for the purposes for which he was employed in the present ease. The finding of the court with regard to this matter, is as follows:
“5. The said John McPhail, notary, is an attorney at law; and was afc the time of protest and prior the attorney of the Bank of Lindsborg. He, however, had never done any protesting of commercial paper for the bank, nor for anyone before, save for the bank one draft at or about this same time. He did not know how to protest, tried to borrow blanks, could not, and then borrowed a form book and copied from that. There were several other notaries in the place — whether with more experience, or not, is not shown.”
But even if McPhail had been perfectly competent for the business for which he was employed, still there is much reason and much authority for holding the Bank of Lindsborg liable to the owners of the note for McPhail’s failure to perform the duties intrusted to him. (Davey v. Jones, 42 N. J. L. 29; Titus v. Mechanics’ National Bank, 35 id. 588; Reeves v. State Bank, 8 Ohio St. 465; Allen v. Merchants’ Bank, 22 Wend. 215; Ayrault v. Pacific Bank, 47 N. Y. 570; Kent v. Dawson Bank, 13 Blatch. C. C. 237; Hoover v. Wise, 91 U. S. 308; Tyson v. State Bank, 6 Blackf. 225; 1 Daniel on Negotiable Instruments, §342.)
McPhail not only failed to make proper demand, but he also failed to give proper notice. He made the demand and gave the notice at least one day too soon. This was so found by the court below, and was so found upon evidence sufficient to sustain the finding. And there were some other irregularities in the notices, not necessary to be stated. It is true that in this state a notary public is a public officer who is required to take an oath of office and give bond, and as such public officer he is authorized “ to demand acceptance or payment of foreign and inland bills of exchange and of promissory notes, and protest the same for non-acceptance or non-payment, as the case may require, and to exercise such other powers and duties as by the law of nations and commercial usage may be performed by notaries public.” (Comp. Laws of 1879, ch. 71, § 6.)
But there was no necessity in the present case for the demand, protest or notice, to have been made or given through a notary public, and there was no necessity for any protest at all. The demand and notice was all that was necessary, all that was required, and these might have been made and given by any person duly authorized by the Lindsborg bank. Besides, a notary public cannot, as a notary public, or as a public officer, give notice of the non-payment of a promissory note. (Swayze v. Britton, 17 Kas. 625; Couch v. Sherill, 17 id. 624; Seaton v. Scovill, 18 id. 433, 436, et seq.) If he gives any such notice he does so merely as the agent of the holder of the note, or as the agent of the person employing him to give such notice. In the case of Couch v. Sherrill, ante, it is said that “there is no presumption in favor of the action of the notary, as official action, because it is no part of his duty as notary to serve notices. If he serves any notice it is as agent of the holder, and not as notary.” The notice may in fact be served by any person authorized by the holder, or by any agent or sub-agent of his. There is no necessity, as before stated, to employ a notary public to serve the notice; and as it is no part of the duty of a notary public to serve such notice, his sureties on his official bond are not liable for any failure on his part to properly serve the same. In the present case, it was the duty of the Bank of Lindsborg to serve the notice, and it had the right to serve the same through the agency of any person whom it might choose. The bank selected a person to serve the notice who was not competent, and the notice was not properly served; and hence we think, under such circumstances, the bank itself must be held to be liable.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
"Valentine, J.:
This was a criminal prosecution under §§ 1, 7 and 9, of the prohibitory liquor law of 1881, for sell ing intoxicating liquors for other than medical, scientific or mechanical purposes. The information upon which the defendant was prosecuted, charges that the defendant did “ sell, barter, and give away spirituous, vinous, malt, fermented, and other intoxicating liquors, for other than medicinal, scientific, or mechanical purposes, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.” This is the only offense set forth in the information. The case was tried before the court and a jury, and the evidence showed, among other things, that the defendant was a druggist; that he had a druggists’ permit to sell intoxicating liquors; and that he sold intoxicating liquors at the time and place charged in the information. These facts are undisputed. The only question, therefore, involved in the case, and upon which the parties could have differed in the court below, was, whether the defendant sold the said intoxicating liquors for other than medical, scientific or mechanical purposes. The defendant, however, claims that the case was prosecuted in the court below upon a different theory. He claims that it was prosecuted upon the erroneous theory that if he sold intoxicating liquors for medical, scientific or mechanical purposes, in any different manner, or upon any other evidence, than that prescribed by the statute, that he was liable to be convicted upon the information filed in this case, notwithstanding the fact that he never sold a drop of any kind of intoxicating liquor except for medical, scientific and mechanical purposes. The defendant was found guilty, and sentenced to pay a fine of $100, and adjudged to pay the costs, and he now appeals to this court. He claims that the court below erred especially in giving instructions numbered 8,11 and 12 to the jury. These instructions read as follows:
“8. If, however, there was some collusion or understanding between him and the physician whose prescriptions he filled that the prescriptions were to be made, or were being made, without regard to sickness of the person for whom made; or if there was any collusion or understanding between him and the persons who obtained liquors upon affi davit that the affidavit should be made for form’s sake only, and for the purpose of enabling the applicant to obtain liquor for other than scientific or mechanical purposes, and sales were made by defendant in either of such cases, he is guilty. If, too, prescriptions were filled by him that were written and signed by physicians who had not made and filed the affidavit to which your attention has been called, or if written for the purpose of enabling the person to obtain intoxicating liquors for other than medicinal purposes; and if the defendant knew or believed, or had good reason to believe, that these prescriptions were given or affidavits made for such purpose, or for the purpose of evading the law and giving to the buyer the use of intoxicating liquors for other than medicinal, scientific or mechanical purposes, he is equally guilty.”
“11. Some evidence has been introduced tending to show that the defendant had informed parties who were signing printed affidavits for the purpose of obtaining intoxicating liquors from him, that they need not swear to them, and that the signing thereof before some magistrate was sufficient, if the magistrate also signed his name to the certificate, showing that the proper affidavit was made.
“12. You are instructed in this regard, that if the defendant made such statements knowing them to be incorrect, he cannot, if selling under such pretended affidavits, avoid the penalty of the law, and should be found guilty. If he was so ignorant that he made such statements with the full belief that he was correct therein, and if he had no intention to misstate or do wrong, then that matter should not be held against him. As said before, the defendant must be proven guilty beyond a reasonable doubt as to every essential ingredient, by the state, before he can be convicted.”
The defendant claims that there was no evidence introduced in the court below showing or tending to show that the defendant ever sold any intoxicating liquors except for medical, scientific or mechanical purposes. Now while the defendant may possibly be mistaken with regard to this matter, yet the evidence was such that no court could say as a matter of law that the defendant ever did sell any intoxicating liquors except for such purposes. The question was at least a doubtful one, and was one of fact for the jury to determine. The evidence also tended to show that the defend ant sold intoxicating liquors for medical purposes upon affidavits authorizing sales to be made for mechanical purposes only, and that the defendant was perfectly cognizant of the nature of these affidavits, and the purposes for which the liquors were procured, when he made these sales. Of course the defendant was guilty of an offense, under § 9 of the prohibitory liquor law of 1881, for selling intoxicating liquors in this manner; but the present prosecution is not a prosecution for any such offense. The present prosecution, as before stated, is for selling intoxicating liquors for other than medical, scientific or mechanical purposes, and is not a prosecution for merely selling such liquors for proper purposes in an irregular manner. It would therefore seem that the foregoing instructions are erroneous. Instruction No. 8 contains these words: “If there was any collusion or understanding between him [the defendant] and the person who obtained liquors upon affidavit that the affidavit should be made for form’s sake only, and for the purpose of enabling the applicant to obtain liquor for other than scientific or mechanical purposes, and sales were made by defendant in either of such cases, he is guilty.” In other words, the instruction is, in substance, that if by collusion the defendant permitted the purchaser to file an affidavit authorizing a sale of intoxicating liquors for scientific or mechanical purposes, and the purchaser then procured the liquor for medical purposes, and did not procure the same for either scientific or mechanical purposes, the defendant is guilty. Of course in such a case the defendant would be guilty of an offense, but he would not be guilty of the offense charged in the present case. The instruction is open to some other criticisms, but this will suffice.
Instructions numbered 11 and 12 are in substance, that if the affidavits were fraudulent, and were merely signed but not sworn to, that the defendant should be found guilty, although he may have sold the liquor for medical, scientific or mechanical purposes, and not for any other purpose.
As before stated, we think the foregoing instructions are erroneous, and that the defendant was prosecuted upon a wrong theory; and therefore, for these errors, the judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
It would seem from the brief of counsel for defendant in error that he was not aware of what the record in this case contains, for his brief is wholly devoted to matters which are not disclosed by the record. What the record discloses is this: After a decree in a foreclosure case, an order of sale was issued, and upon that a sale made to Elmira Cowdin, the present plaintiff in error. She was no party to the action in which the decree was rendered. The sheriff returned the order of sale with his return of a sale to Elmira Cowdin duly indorsed thereon, and signed. Thereafter this journal entry appears:
“This cause coming on now to be heard upon the motion to confirm the sale of the real estate heretofore, to wit, on the 2d day of May, 1883, and the court having examined the proceedings therein and being fully advised in the premises, does refuse to confirm the said sale, and does order that the same may be and is hereby set aside, for the reason that no sufficient sale of the premises has been made by the said sheriff; and it is further by the court ordered that an alias order of sale issue in said cause.
(Day’s proceedings signed)
H. W. Talcott, Judge.”
This is all there is in the record subsequent to the sheriff’s return. The transcript is certified as follows:
“I, W. E. Hogueland, clerk district court in and for said county and state, do certify that the above and foregoing is a true and correct transcript of the proceedings in the case of August Todman v. J. P. Cowdin, et al., in and about the sale of the real estate involved in said action to Elmira Cowdin, and the setting aside of said sale by the court, as they appear of record and on file ixi my office.”
No defect is pointed out by counsel in the sheriff’s return of the order of sale, and no question is made as to the validity of the decree. Now upon this record we remark that a party purchasing at a sheriff’s sale acquires such an interest and becomes so far a party to the case that he is entitled to file a motion for the confirmation of the sale, or to institute proceedings in error in this court to reverse an order setting aside the sale. (Collins v. Ritchie, ante, p. 371; Harrison v. Andrews, 18 Kas. 535.)
We remark further, that when the decree, the order of sale and the sheriff’s return are all regular in form and sufficient, and no extrinsic matters are shown, it is the duty of the court to confirm the sale, and error to set it aside. (N. E. M. S. Co. v. Smith, 25 Kas. 622.) So that upon the record as it stands the court erred in refusing to confirm the sale, and in setting it aside, and this is an error of which the plaintiff in error can take advantage. As against these facts, counsel for defendant in error insists as a matter of fact that the plaintiff in error failed to pay the money she had bid. If this was a fact, the sheriff should have obtained leave to correct his return so as to make it recite the fact of the bid, the failure to pay, and therefore no completed sale.
Again, he insists that she, by her agent, consented to the setting aside of the sale. If this were so, the record should show such consent.
Again, he says that she was not the party who made the motion to confirm the sale. The record fails to show who was in fact the moving party; but that we think is immaterial. Her rights are not affected by the fact that some other was the moving party.
Again, he says that a subsequent sale was had, at which she by her agents was present and making no objection; but nothing of this kind appears.
Finally, he insists that at such subsequent sale, another party became the purchaser; that he is therefore a party interested in the question, and no decision can be made without his presence in this court. But as the record shows nothing subsequent to the setting aside of the sale, this objection cannot be considered by us. Obviously we think counsel is not aware of what the record in this court contains. If it be defective, a diminution should have been suggested. As it is, the order of the district court must be reversed, and the case remanded for further proceedings.
As it seems likely that other facts existed which are not apparent in the record, the district court will not be ordered to confirm the sale; but will be directed to take such further proceedings as shall be right and proper upon the facts, in accordance with the views above expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On September 8, 1882, F. Beyle commenced this action in the district court of Labette county against C. A. Beid, alleging in his petition, among other things, the following: About N°vetnber 1, 1881, Beyle employed Beid to work for him in purchasing a stock of furniture, and in conducting and carrying on a mercantile furniture business in the city of Oswego, Labette county, Kansas, for one year beginning November 15,1881, and ending November 15, 1882. The business, though belonging wholly and exclusively to Beyle, and Beid being merely a clerk or agent of Beyle, was, nevertheless, to be carried on in the name of' Beid, and Beid was to keep accurate books of account relating to the business. The business was in fact carried on by Beid,. as agreed by the parties, up to about August 20,1882, (in fact August 12, 1882,) and Beid “did keep books of account and do all things necessary in and about the carrying on of such business in his own name;” and he did “sell large amounts- of goods from such^Stoek, of the value of the sum of $2,000, and did receive that amount therefor in cash; that in addition thereto said defendant has during said time sold large amounts of goods from said stock upon a credit, and has taken promissory notes therefor, payable to himself or order, and in others charged the same in his books of accounts;” and he, Reid, refused to account to the plaintiff or deliver to the plaintiff the proceeds of such sales, or to turn over to the plaintiff the books, papers, etc.,belonging to the business; and the plaintiff prayed for a judgment for the sum of $2,000 and interest, and that Reid should be ordered to deliver to him the books, notes, accounts, etc., belonging to the business, and for costs.
The defendant answered, admitting the employment, and alleging, among other things, that he had properly performed all things on his part which he was required to perform; that the plaintiff was to pay him a salary of $1,000 for the year’s employment; that he had expended large sums of money of his own in carrying on said business; that he and the plaintiff had a settlement on July 1, 1882, with respect to all these matters; that the plaintiff wrongfully discharged the defendant from his employment on August 20, 1882; and that the defendant has been unable to procure employment since; and prayed, among other things, for an accounting, and that he should have judgment against the plaintiff for any balance found due him, and for costs. The plaintiff replied to this answer by filing a general denial.
The case was referred to a single referee, who tried the case and made special findings of fact and law, upon which findings the court rendered judgment in favor of the defendant and against the plaintiff for the sum of $291.66 and costs, and ordered that all books, notes, accounts, etc., belonging to the business, (and which were then in the hands of a receiver,) be delivered to the plaintiff. The plaintiff, not being satisfied with this judgment, brings the ease to this court and asks for a reversal thereof.
Before proceeding to the consideration of the question raised by counsel, it would perhaps be well to state some additional facts. The contract relating to the employment of the defendant by the plaintiff was in writing; but all the arrangements made between the plaintiff and the defendant with reference to the defendant’s conducting the furniture business for the plaintiff rested merely in parol. In other words, the plaintiff’s cause of action for the defendant’s mismanagement of the furniture business and his refusal to account, etc., as set forth in the plaintiff’s petition, was a cause of action founded solely upon a parol contract, while the defendant’s cause of action for the wrongful discharge of the defendant and the plaintiff’s refusal to pay the full, amount of the defendant’s salary, as set forth in the defendant’s answer, was founded upon a written contract. The written contract reads as follows :
“C. A. Reid agrees to serve F. Beyle as a clerk in the store or stores of F. Beyle, in the town of Oswego, Kansas, for the period of one year, commencing on the 15th day of November, 1881, and ending on the 15th day of November, 1882, and during said time diligently and faithfully to apply himself and to perform the duties of clerk, to look after and seek the interest of the said F. Beyle.
“And F. Beyle agrees to pay the said C. A. Reid the sum of one thousand dollars ($1,000) per year, in monthly payments.
“This contract expires if F. Beyle should sell out before twelve months.
“Done at Carthage and Oswego, this 9th day of November, 1881.
C. A. Reid. (Seal.)
F. Beyle. (Seal.)
“Witness: H. Gr. Miller.”
On the trial the plaintiff was a witness in his own behalf, and the record shows that his counsel asked him the following questions. That the following objections were made thereto; and that the referee sustained each of the objections. The said questions, objections and rulings are as follows:
1. “Q. What, if anything, was the arrangement with Reid as to money? — Objected to by defendant as incompetent and not the best evidence; sustained, and plaintiff excepts.
2. “Q,. How much money did he [Reid] pay out for the first purchase? — Objected to by defendant, because the books are the best evidence; sustained, and excepted to by plaintiff.”
I. We think the referee erred with reference to both these questions. No objection was raised with regard to the form of the questions; but the objections were merely that the evidence to be elici.ted by the first question was “incompetent and not the best evidence;” and the evidence to be elicited by the second question was not competent because “ the books are th e best evidence.” Now it was certainly proper for the plaintiff to prove the entire arrangement between himself and the defendant with respect to the furniture business which the defendant was to carry on for the plaintiff in the defendant’s name; and, as the entire arrangement rested in parol, it could be proved only by parol evidence. We think the evidence was competent, and that no better evidence could have been produced.
II. As to the second question, we would think the books were not the best evidence, although they may have been competent evidence. The fact of paying the purchase-money for the first purchase of goods must have existed before any record of the same could have been made on the books; and direct evidence of such payment by a person who saw the same would be original evidence, and not secondary evidence. Entries made in books, whether true or false, could not be better evidence of the amount of the money paid than the evidence of the person who had actual knowledge of the payment. It is not necessary to decide in this case whether the refusal to permit this evidence to be introduced was a material error, or not.
III. The record also shows that the defendant turned over the books belonging to the furniture business to a receiver, and that all these books, including a book called the “invoice-book,” were introduced in evidence by the plaintiff. The plaintiff, while testifying as a witness, stated among other things that some of the original invoices were written with an indelible pencil, and that they appeared to have been re placed in this invoice-book by invoices written with ink. The record then shows as follows:
“Defendant moves the court to strike out the invoice-book from the evidence, because plaintiff proves it not the genuine original invoice-book. Motion sustained; plaintiff excepts.”
This ruling of the referee we think was also erroneous, for whether the book was the genuine original invoice-book, or not, it was a book that the defendant had previously turned over to the receiver as an invoice-book, or at least as one of the books belonging to the furniture business; and even if it was a “mere blotter,” as counsel for the defendant in this court calls it, still it would be competent evidence against the defendant who kept it, and who admitted that it was one of the books pertaining to the furniture business.
IV. The record further shows as follows:
“Plaintiff offered to justify his discharge of the defendant by evidence, which was objected to on the ground that the same was inconsistent with the allegations of the petition and not permitted under the reply of the plaintiff.
“This objection was sustained. Plaintiff excepts. Thereupon plaintiff asks leave to amend his reply, which motion was overruled by the referee, on the ground that it was not within his power to permit an amendment; which ruling of the referee plaintiff duly excepted to and excepts.”
We think the referee erred in refusing to permit the plaintiff to justify his discharge of the defendant. The defendant, for a cause of action against the plaintiff, alleged in his answer, among other things, that the plaintiff wrongfully discharged him (the defendant) on August 20,1882, about three months prior to the expiration of his term of service. The plaintiff in his reply denied this; that is, he denied that he wrongfully discharged the defendant, and he certainly had the right to prove that the discharge was not wrongful, by proving that the discharge was justifiable. It devolved upon the defendant to prove that the discharge was wrongful, and the plaintiff had a right to rebut this proof by showing that the discharge was rightful; but the referee refused to permit the plaintiff to show this, and afterward made findings that the plaintiff did wrongfully discharge the defendant, and judgment was rendered in favor of the defendant and against the plaintiff for that portion of the defendant’s salary claimed to be due for that period of time elapsing from August 20,1882, up to the end of the contract year, which expired November 15, 1882, notwithstanding the fact that the defendant was not in the employ of the plaintiff during that period of time. We think the ruling of the referee upon this question was materially erroneous. The written contract by which the plaintiff hired the defendant to enter into his employment for the term of one year, which is the contract upon which the defendant founds his cause of action for the wrongful discharge, has no necessary connection with the operation of the furniture business which was operated by the defendant for the plaintiff in the defendant’s name. By this written contract, .as will be seen by an inspection of it, the defendant was hired ■simply to serve the plaintiff as a clerk in the store or stores of the'plaintiff-for the period of one year, commencing on November 15, 1881, and ending on November 15, 1882. Now the plaintiff had two furniture stores which he operated in the city of Oswego; one he operated in his own name, and the other he operated in the name of the defendant; and he may have had still other stores in that place ; and all that the defendant had a right to ask of the plaintiff under his •said written contract was employment as a clerk in one of these stores. When the plaintiff closed up the store which the defendant operated in his own name, the plaintiff might rightfully have put the defendant into the other store as a clerk. Possibly, however, the defendant objected to this; and possibly that was the reason why the defendant was discharged. However, whatever may have been the reason for the discharge, the plaintiff had a right to show that it was not wrongful; and the refusal on the part of the referee to permit it to be done, we think was a material error.
V. There are several other questions presented for consideration in this case; but with the view that we have taken of the questions already considered, we do not think that it is necessary to enter into any discussion with regard to them.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
March 25,1876, the plaintiff, Thomas R. Baker, recovered in the district court of Atchison county a judgment against the defendants, John P. Hummer and Matilda W. Hummer, for the sum of $956, and costs. April 23, 1876, an execution was issued on the judgment, and $435.50 collected thereon. In the fall of 1876, the defendants removed from the state of Kansas to the state of Illinois, and have been continuously absent from this state ever since. October 24, 1882, this action was commenced on the judgment rendered March 25,1876, to recover another judgment for the remainder remaining unpaid. March 16, 1883, the defendants acknowledged service of summons. August 7, 1883, a trial was had, and the court rendered judgment against the plaintiff for costs.
The single question is, Can this action be maintained ? The court decided not. This is the ruling complained of. At the time this action was commenced, the judgment of March 25,1876, could have been revived by motion and notice without the consent of the defendants, within the authority of Angell v. Martin, 24 Kas. 334.
The contention on the part of the defendants is, that no action will lie for the purpose of reviving a dormant judgment and having a second judgment rendered thereon, as the statute specifically provides that it shall be done by motion and notice. Sections 428 and 534 of the code are referred to, and the case of Gruble v. Wood, 27 Kas. 535, is cited as decisive as to what notice must be served. It was held in Burnesv. Simpson, 9 Kas. 658, that an action can be maintained on a domestic judgment in this state. The provision in the statute giving the right to revive a dormant judgment by motion and notice made within one year after it becomes dormant, is only cumulative or additional to the remedy of the common law. A judgment creditor can either sue on a dormant judgment within a year after it becomes dormant, or have the original judgment revived by motion and notice as prescribed by the code. (Burnes v. Simpson, supra; Kothman v. Skaggs, 29 Kas. 5. See also cases cited in briefs.)
The decision of Gruble v. Wood, supra, is not in conflict with this conclusion. In that case no action was brought upon the dormant judgment. The judgment creditor attempted, however, to revive the judgment under the provisions of the code, and instead of giving the statutory notice, he issued a summons. We held in that case that the order of revivor was wholly void, as the summons in no way complied with the statute. If an action had been brought for the purpose of reviving the dormant judgment in that case and a summons had issued, the judgment creditor might have recovered a valid judgment.
The judgment of the district court must be reversed, and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are as follows: Plaintiff in error is a corporation created under the laws of the state of Nebraska, and having its principal office in the city of Omaha, in that state.- It has leased and is operating a line of railroad running from Lincoln, Nebraska, to Atchison, Kansas, some thirty-seven miles of which are within the limits of this state. In the operation of this road it em ploys a station agent at the city of Atchison'. One Jackson was in the month of November, 1881, a brakeman in the employ of said corporation, and employed on its trains running from Lincoln to Atchison. He was a married man, residing with his wife at Lincoln, Nebraska. On November 9, 1881, defendant in error commenced an action before a justice of the peace in the city of Atchison, against said Jackson, and caused garnishee process to be served on plaintiff in error. At that time plaintiff in error was indebted to said Jackson for wages already earned during the month of November, in the sum of $13.50. He continued in its employ until the 19th of the month, when the wages for the month then due him, $26.25, were paid to him by the corporation. It also appears that by the laws of Nebraska the wages for laborers for sixty days are exempt from seizure on legal process; so that we have these facts upon which to determine the rights of the parties: The employer is a corporation created by and existing under the laws of Nebraska, with its principal office and center of business in that state. Its employé, engaged in manual labor, also resides in that state. By the laws of Nebraska, where both employer and employé reside, his wages are exempt. The employer leases property and transacts business in this state. A creditor of the employé comes into the courts of this state and garnishes the employer for wages due the employé, claiming that though such wages are exempt under the laws of the state of Nebraska, they are not under the laws of the state of Kansas. Can such an action be maintained ?
We think these propositions are sound: The laws of a state have no extra-territorial force. This as a general proposition is unquestioned, and includes within its scope exemption as well as other laws. So, although the laws of Nebraska, where employer and employé reside, exempt laborers’ wages absolutely, it does not follow that the courts of another state will, in controversies pending before them, enforce the same exemption. On the contrary, the matter of exemption being one affecting the remedy, at least within certain limitations, is one controlled by the lex fori, and not by the lex loci contractus. Therefore, although both creditor ánd debtor reside within the limits of the state, the exemption laws of that state do not control garnishee proceedings in another. (Helfenstein v. Cave, 3 Iowa, 287; Newell v. Hayden, 8 id. 140; Moore v. C. R. I. & P. Rld. Co., 43 id. 385, 388; Conley v. Chilcote, 25 Ohio St. 320; B. & O. Rld. Co. v. May, 25 id. 347; Pierce v. C. & N. W. Rly. Co., 36 Wis. 283; Morgan v. Neville, 74 Pa. St. 52; Lock v. Johnson, 36 Me. 464; C. & A. Rld. Co. v. Bagland, 84 Ill. 375.)
It may be conceded that in the courts of a state any citizen of that state may be enjoined from resorting to the courts of any other state for the purpose of evading the exemption laws of his own state. (Snook v. Snetzer, 25 Ohio St. 516.) But no such doctrine or implication therefrom applies in the case at bar, for while the debtor and the garnishee were citizens of Nebraska, the residence of the plaintiff, the creditor, is not disclosed. It does not appear that he was a citizen of Nebraska seeking through proceedings in a court of a sister-state to avoid the exemption laws of his own. For aught that appears he is a citizen of Kansas, appealing only to the-laws and the courts of this state for the collection of his debt, and simply denying that the laws of another state shall prevent the collection of his debt according to the laws and procedure of his own state.
Again, no question arises here as to the effect of a judgment against the garnishee in the courts of this state as-against proceedings to collect the debt in the state of Nebraska, where the debt was created. As to that question, the-cases of Pierce v. Rld. Co., 36 Wis. 283, and Moore v. Rld. Co., 43 Iowa, 385, seem to be divergent. As to which states-the law correctly, we need not now inquire. The questiom in this case is not what is the effect of a judgment against a. garnishee, but what ought to be such judgment. Of course-no debtor should be required to pay his debt twice, but at. the same time if he goes into a state outside the state of his residence and transacts business therein, he must expect, as to all matters of procedure and remedy, to abide by the laws of that state. He may not claim the privileges and the protection of the laws of the state into which he enters and transacts business,without submitting to the burdens and obligations of such laws. Coming into this state to transact business, he must abide by the exemption laws of this state; and when a party who for aught that appears, is a citizen of this state, invokes the process of our courts and the rules of our statutes to secure the payment of a just debt, a garnishee may not reply that by the laws of the state where he resides and where his employé also resides, his debt to such employé is exempt from all garnishee process. It cannot be doubted that the courts of the state where he resides will respect a judgment rendered against him in this state, provided he has made a perfect and full disclosure and a reasonable defense against the claim presented. The case in 36 Wis. 283, supra, contains nothing contradicting this proposition. We think, therefore, that it may be laid down as a legitimate conclusion from the authorities, that as the laws of a state have no extra-territorial force, and as the plaintiff in this action does not appear to have been a resident of Nebraska or under any obligation, legal or moral, to respect the laws of that state, his proceedings to compel the payment of a just debt from the defendant as garnishee cannot be defeated by the fact that the laws- of the state where both debtor and garnishee reside exempt the debt from seizure under such process.
Again, so far as any question arises under the laws of this state defining exemption liability, it is enough to say that while the testimony disclosed is not perfectly satisfactory, it does not appear that all the testimony bearing upon that question is preserved in the record. Hence wé cannot affirm that there was any error in the ruling of the trial court in this respect. As to the liability of defendant to garnishee proceedings like this, it must be sustained. Whatever doubts may have existed in some states, it seems to us clear that a corporation'or individual coming into this state, leasing property and transacting business here, becomes liable to garnishee proceedings. A mere debt is transitory, and may be enforced wherever the debtor or his property can be found, and if the creditor can enforce the collection of his debt in the courts of this state, a creditor of such creditor should have equal facilities. (Brauser v. Ins. Co., 21 Wis. 506; Fithian v. Rld. Co., 31 Pa. St. 114; Bank v. Rld. Co., 45 Wis. 172; Hannibal & St. J. Rld. Co. v. Crane, Supreme Court of Illinois, reported in 16 Western Jurist, 360.)
For a further discussion of the questions in this case, we refer with approval to the two carefully-prepared opinions of the learned judge who tried this case in the district court, and which are presented in the brief of counsel for defendant in error. We cannot add to the arguments so clearly and ably stated therein by Judge Martin.
A cross-petition in error has been presented. So far as the attempt to attach a new case-made, or further portions of the record, is concerned, it is unauthorized, and all such, matter must be stricken out. Upon the case-made itself, counsel present this question: At the time of service of garnishee process the railroad company was indebted to Jackson in the amount for which it was adjudged liable. He continued in the company’s employ till the latter part of the month, under the same contract of employment. Now did the garnishee process bind only the amount earned by defendant and due from the garnishee at the time of service of process, or does it reach to all earned under the existing contract up to the answer day? This is the third case stated in the opinion in Phelps v. Rld. Co., 28 Kas. 165, and left undecided at that time. Presented now, we are compelled to pass upon it. The ruling of the district court is correct. Garnishee proceedings mean this: the creditor takes the place of the debtor. “Only this and nothing more.” The former takes only that which the latter could enforce., That which the garnishee owes, whether due or not, is appropriated; but the process has no future effect. It does not touch that which may thereafter be earned, but which will be earned only by the debtor’s subsequent labor. This is in accord with the principles underlying garnishee proceedings as stated by the test writers, and is just and reasonable.
There being no other question, the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in ejectment and for partition, brought November 3,1881, by William Martindale against William M. Smith and Sarah Ann Smith. The plaintiff claimed to own the undivided half of the real estate for the recovery of which this action was brought, and admitted that the defendant owned the other undivided half. At the time of bringing the action, Sarah Ann Smith was dead, and the action was therefore proceeded with merely as an action between Martindale and William M. Smith. Smith answered, setting up: First a general denial; and second, that he (Smith) was the sole and exclusive owner of the property in controversy. A trial was had before the court without a jury, and the court made the following findings and conclusions, to wit:
“findings of fact.
“1. W. C. Waybright died on the 27th day of January, 1872, in the county of Greenwood and state of Kansas, and occupied at the time of his death the premises in question, situated in said county, to wit: the south half of the southeast quarter of section two, and the north half of the northeast quarter of section eleven, all in township twenty-seven, range eleven, together with his family, consisting of his wife, Sarah A. Waybright, and no other person, as a homestead.
“2. That said W. C. Waybright left surviving him as heirs-at-law, one child by a former marriage, George Way-bright, who resided in the state of Indiana, and who was at the time of his father’s death about nineteen years of age, and Sarah A. Waybright, the wife of the deceased.
“3. That said W. C. Waybright died testate, leaving a will, by the terms of which all of the estate of said W. C. Waybright was devised and bequeathed, both real and personal, to his wife, except five dollars was bequeathed to said son, George Waybright.
“4. That afterward, and on the 17th day of February, said last will of W. C. Waybright, deceased, was duly proved and admitted to probate and record in the probate court of said Greenwood county, and is still in full force and effect; and said Sarah A. Waybright duly elected to take under the will.
“5. That said Sarah A. Waybright alone continued to occupy said real estate from the death of her husband, W. C. Waybright, until the 18th day of May, 1875, at which time she intermarried with defendant William M. Smith, and she and her husband, William M. Smith, continued to occupy the premises in question as their homestead until the spring of 1878, at which time she and her husband went to Colorado for a temporary purpose to benefit her health, she being afflicted with pulmonary consumption. There was one child born to said William M. Smith and Sarah A. Smith, which died in childhood, before its mother. The said William M. Smith and wife never returned from Colorado, she having died of consumption on the 20th day of June, 1881, in said state, leaving the said William M. Smith her only heir.
“6. Sometime in the latter part of the year 1875, said George Waybright conveyed all the interest and title he possessed in and to the lands in question to the plaintiff, for a good and valuable consideration.”
“conclusion op law.
“That said plaintiff has no interest in said real estate or any part thereof, and is not entitled to recover in this suit.”
Judgment was rendered in accordance with these findings and conclusions in favor of the defendant Smith, and against the plaintiff Martindale, who brings the'case to this court, and asks for a reversal of such judgment.
We think the only question involved in this case is, whether the will made by Waybright to his wife is valid, or not. If it is valid, Smith is entitled to the entire property; but if it is void, Martindale is entitled to one-half thereof. The plaintiff claims that the will is void for the reason that a husband cannot devise his homestead, or any part thereof, by will to his wife. Under the law relating to descents and distributions a wife would unquestionably take one-half of the homestead, whether any will was made, or not; hence the real question involved in this case is, whether a husband can devise to his wife by will the other half-interest in his homestead. We think he can. At the death of the owner of real estate the title must go somewhere, and we know of no law which prevents the owner from saying by will where it shall go. Indeed, the statutes recognize the right of the owner to designate where the title shall go, and even authorize the same. Section 1 of the act relating to wills reads as follows:
“Section 1. Any person of full age and sound mind and memory, having an interest in real or personal property of any description whatever, may give and devise the same to any person by last will and testament lawfully executed, subject, nevertheless, to the rights of creditors, and to the provisions of this act.” (Comp. Laws of 1879, ch. 117, §1.)
We think the devise would also be subject to the homestead interests of any person who might have a homestead interest in the property; but with reference to who might have a homestead interest in the property, we do not think it is necessary in this case to express any opinion, further than to say that we do not think that George Way bright, the person under whom the plaintiff claims, ever had any homestead interest in the property. He did not reside upon the property, nor even in Kansas, but resided in the state of Indiana.
The question as to how homestead property shall descend, is discussed to some extent in the cases of Vandiver v. Vandiver, 20 Kas. 501, and Dayton v. Donart, 22 id. 256. The nature of a will is to some extent discussed in the case of Comstoch v. Adams, 23 Kas. 514, 524. When death occurs, the title to the property of the person dying must be transferred to some person. It cannot remain in the deceased; and the will simply designates where the title shall go. The title may go to one or more of the persons occupying the property as a homestead, or it may go to some other person. In the present case, the will provided that the title should go to the only surviving person who occupied the property at the time as a homestead. The plaintiff says this is in contravention of the homestead-exemption laws, and says that the title should go to the son of the deceased, who did not occupy the property as a homestead, and who resided in another state. We are now speaking of the title to one undivided half only of the property; for it is conceded by all the parties that the title to the other undivided half went to the wife of the deceased. We think the will is valid.
The plaintiff also claims that the will can have no operation until the debts are all paid; and this he claims for the reason that the testator in devising the property stated in his will, among other things, as follows:
“I give and bequeath unto my beloved wife, Sarah Ann Waybright, all of the remainder of my estate, both real and personal, after paying all of my legal indebtedness.”
The remainder of his estate included the property in controversy. We think differently from the plaintiff on this subject. As against George Waybright, the heir and his grantees, we think the will took effect immediately after the death of the testator and the probate of the will, and such death and will immediately transferred the title to the property to the testator’s wife, subject possibly to the payment of the debts of the deceased, and subject possibly to his wife’s homestead interests.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was a proceeding instituted originally in the probate court of Doniphan county, Kansas, by .the St. Joseph & Western railroad company, to procure the revocation of the letters of administration granted by said court, on December 27, 1881, to DeWitt C. Wheeler on the estate of Frank Wheeler, deceased. On the final hearing of the case in the probate court that court overruled the application of the railroad company, and the railroad company then appealed to the district court of Doniphan county. In the district court the case was tried before the court and a jury, upon the evidence introduced and submitted by the respective parties, and upon such evidence special findings were made as hereafter stated. By the consent of parties, no instructions were given to the jury and no general verdict was found, but the jury simply gave answers to certain special questions of fact submitted to them by the court and the parties. The special questions of fact, with the answers given, are as follows:
“ Ques. 1: Did Frank Wheeler have any money in his own possession at the time of his death? Ans.: No.
“ Q,. 2. If question 1 is answered in the affirmative, how and from whom did he obtain the money? A. -.
“Q. 3. Did said Frank Wheeler have on deposit with his mother any money at the time of his death? If so, how much? A. Yes; $3.50.
“ Q,. 4. If question 3 is answered in the affirmative, how and from whom did Frank Wheeler obtain said money ? A. For work for his father at Mrs. Aberlies’, $2.50; and for working for Hazenbaugh, $1.
“ Q,. 5. Aside from the foregoing, did any person owe said Frank Wheeler anything at the time of his death? A. Yes.
“ Q. 6. If question 5 is answered in the affirmative, who was indebted to said Frank Wheeler, and what was the indebtedness for? A. Moore and Hazenbaugh, for weeding onions and hanging paper.
“Q. 7. Had said Frank Wheeler at the time of his death any wearing apparel that he had paid for himself? A. Yes.
“Q,, 8. If question 7 is answered in the affirmative, what was the value of such clothing? A. $5.
“Q,. 9. If question 7 is answered in the affirmative, how and from whom did said Frank Wheeler obtain the money that he paid for such clothing? A. For playing in the band.
“ Q,. 10. Did said Frank Wheeler at the time of his death have any wearing apparel other than that heretofore mentioned? A. Yes.
“Q,. 11. If question 10 is answered in the affirmative, what was the value of such clothing? A. Don’t know.
“ Q. 12. If question 10 is answered in the affirmative, how and from whom did he obtain such clothing, or the money to pay for the same? A. Don’t know.
“Q,. 13. Had said Frank Wheeler at the timé of his death an interest in the Troy band? A. Yes.
“Q,. 14, If question 13 is answered in the affirmative, how and from whom did said Frank Wheeler obtain said interest? A. From his father and Frank Berry.
“ Q,. 15. If question 13 is answered in the affirmative, what was the cash value of said interest? A. $50.
“Q,. 16. If question 13 is answered in the affirmative, did said Frank Wheeler have an exclusive interest in any particular instrument, or an interest in common with several others in all the instruments and the business of the band?
A. Interest in common.
“Q. 17. Did said Frank Wheeler at the time of his death have any other property, interests, or money, or credits, than heretofore mentioned? A. No.
“Q. 18. If question 17 is answered in the affirmative, what were said interests, or money, or credits? A. -.
“Q. 19. If question 17 is answered in the affirmative, how and from whom were such interests, or money, or credits, obtained? A. -.
“ Q,. 20. Did the father of said Frank Wheeler ever release his time, or relinquish his rights to the timé and service of said Frank Wheeler while a minor? A. Yes.
“ Q,. 21. If question 20 is answered in the affirmative, state when and how? A. When weeding onions.”
No exception was taken to any of these findings of the jury, and no motion was made for a new trial, but both parties moved for judgment upon the findings, and the court overruled the motion of Wheeler and sustained the motion of the railroad company, and rendered judgment in favor of the railroad company and against Wheeler, revoking Wheeler’s letters of administration; and Wheeler, as plaintiff in error, now brings the case to this court, and asks for a reversal of said judgment.
If we pass over the questions whether this case was rightfully and regularly brought in the probate court, and was rightfully and regularly appealed to the district court, then the only other question involved in the case is, whether the facts as found by the jury will authorize a judgment in favor of the railroad company and against the plaintiff in error, DeWitt C. Wheeler, revoking his letters of administration.. No facts were admitted by the pleadings, no agreed statement of facts was made or filed, no-exception was taken to any of the findings made by the jury, no request was made for other or additional findings, and no motion was made for a new trial; hence we cannot take into consideration any facts other than those found by the jury, nor can we review the evidence. Really, however, the evidence supports the findings of the jury. Presumptively, the letters of administration were properly issued; presumptively, they were valid in their inception; and presumptively, they are valid still, unless the facts found by the jury clearly and affirmatively show the contrary; and they cannot be revoked, unless the facts found by the jury clearly and affirmatively show that they ought to. be revoked, and that they ought to be revoked at the instance of the railroad company. Now under the facts of the case as found by the jury, what authority has the railroad company to ask that Wheeler’s letters of administration should be revoked? We suppose that Wheeler, as administrator, was about to sue the railroad company for wrongfully causing the death of his son, Frank Wheeler, the intestate; but the record does not show any such thing. But even if this were shown by the record, there would still be a question whether the railroad company had any right to interfere, or not. Possibly it would.
But, passing over this question, do the facts of the case as found by the jury show that the letters of administration ought to be revoked at the instance of any person or corporation? Now, taking the facts of the case as they were found by the jury, there is no ground upon which to revoke the letters of administration, unless it be upon the ground that the deceased, Frank Wheeler, did not at his death leave any estate upon which letters of administration could be granted. Everything else necessary for the purpose of issu ing the letters of administration existed as a fact; and nothing has transpired since that would authorize their revocation. It is true, as a fact, that Frank Wheeler at the time of his death was a minor thirteen years and five months old, residing with his father, the present plaintiff in error, in Doniphan county, Kansas; but these facts of themselves do not prevent the issuance of letters of administration, nor render their issuance void, nor authorize their revocation if issued. Letters of administration may be granted upon the estate of a minor as well as upon the estate of any other person. But it is claimed in this case that Frank Wheeler left no estate, and that the estate supposed to have been left by him really belonged to his father; but the jury found otherwise; and, under the circumstances of the case, we cannot say that the findings of the jury are erroneous. As a matter of law, a minor may own property, the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages. It is probably true that where a minor child lives with his father, and is supported by him, all things given to the child in- the way of support, such as clothing, for instance, would still belong to the father, and not to the child. But things given by the father to the child, not in the way of support, but with the understanding that they should become the property of the child, would undoubtedly become the property of the child. (Hillebrandt v. Brewer, 5 Tex. 45; Grangiac v. Arden, 10 Johns. 293.) Also, while the child’s clothing, furnished by the father, generally belongs to the father, yet if the child should purchase clothing with his own money, the clothing would evidently belong to the child. (Dickinson v. Winchester, 58 Mass. 114, 118, 119.)
We cannot say from the facts as found by the jury that the letters of administration issued to the plaintiff in error, Wheeler, ought to be revoked. On the contrary, it would seem to us from such facts that Frank Wheeler at his death" left a sufficient estate to legally uphold such letters of administration. The judgment of the district court will therefore be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On June 29, 1883, a cow belonging to the defendant in error, plaintiff below, was injured in the county of Leavenworth by an engine operated on what is commonly known as the Leavenworth, Topeka & Southwestern railway. On August 9, 1883, plaintiff below brought his action before a justice of the peace of Leavenworth county to recover damages for the injury to his cow and for attorney’s fees, against the Atchison, Topeka & Santa Fé railroad company, under the stock law of 1874. After judgment was rendered by the justice of the peace, the railroad company appealed to the district court. Trial was had in that court, and judgment rendered against the company for $55 damages, and $30 as attorney’s fees.
The railroad company contested the case upon the ground, among others, that the Leavenworth, Topeka & Southwestern railway was not owned, leased or assigned by or to the Atchison, Topeka & Santa Fé railroad company, and that said company did not operate the line in Leavenworth county. As tending to show that the Atchison, Topeka & Santa Fé railroad company was the lessee of the Leavenworth, Topeka & Southwestern railway, and that one A. B. Tanner was the general agent of the Atchison, Topeka & Santa Fé railroad company at Leavenworth, W. W. Black was produced as a witness on the part of the plaintiff below, and testified that the circular and map which he presented was obtained by him at the office of the Leavenworth, Topeka & Southwestern railway company; that this circular, with a number of others like it, he found at the office; that they appeared to be there for public distribution, as he frequently saw circulars like it at the same place.
Thereupon this circular and map was received in evidence, over the objection of the railroad company. This circular and map purported to be put out by the Atchison, Topeka & Santa Fé railroad company as an advertisement of its route, and contained what purported to be a map of the Atchison, Topeka & Santa Fé railroad, leased lines and connections. It also purported to contain a list of the agents of the company, and among others the name of A. P. Tanner as general agent at Leavenworth. Under the topic of “Old Mexico,” it contained the statement: “To reach Guay mas, take the Atchison, Topeka & Santa Fé railroad at Kansas City, Leavenworth, or Atchison,” etc. The circular also stated: “Having its eastern terminus at Atchison and Leavenworth, Kansas,” etc.
This circular or folder was not obtained in any office of the Atchison, Topeka & Santa Fé railroad company;' and as it was not proved that the company either issued it or distributed it, its admission as evidence was erroneous. The company objected to its introduction, upon the ground that it was incompetent, irrelevant and immaterial, and on the further ground that it was not shown to have been put out by it. The objections should have been sustained.
Counsel for plaintiff below suggest that even if there was error in the admission of the circular or folder, there was evidence afterward admitted which cured the error; and even without the folder, that there was plenty of evidence to sustain the verdict. In view of the testimony of A. A. Robinson, assistant superintendent and chief engineer off the Atchison, Topeka & Santa Fé railroad company, that at the time of the injury complained of the latter company had not been the owner, assignee or lessee of any railroad in the county of Leavenworth, and had not been the owner, assignee or lessee of the Leavenworth, Topeka & Southwestern railway; and in the absence from the record of any evidence showing that the circular or folder was brought home in any manner to the railroad company or its agents, we cannot say that the error was either cured or immaterial. Really we cannot say what effect this evidence may have had on the minds of the jury. For aught we know, it may have been controlling with them in the rendition of the verdict.
The judgment of the district court must therefore be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by a host driver defendant from a judgment recovered by a guest passenger plaintiff. The judgment was rendered on a jury finding of gross and wanton negligence. The principal contention is that the evidence is insufficient to warrant a finding of gross and wanton negligence.
The automobile accident, which gave rise to this litigation, occurred about 2:15 a. m. on February 2, 1968, on a north-south road known as South Clifton Street, in the eastern part of Wichita.
Plaintiff and defendant were roommates in the barracks at the McConnell Air Force Base where both were stationed while on duty in the United States Air Force.
The events of the evening preceding the accident were established by the testimony of plaintiff, the only eyewitness, who testified at the trial. Defendant had acquired his automobile about three weeks prior to the date of the accident. On the evening in question plaintiff and defendant left the Air Base about 7 p. m. in defendant’s automobile to go “shoot pool.” They went first to the Kellogg Lounge where they “shot pool” and “drank beer”; then to the Clown Lounge where they continued to “shoot pool” and “drank beer” From the Clown Lounge they proceeded to the Star dust Club. They left the Stardust Club about 2 a. m. the following morning. They were undecided about where to go next. The King’s-X and Ramada Inn were mentioned. Defendant was normal —nothing to indicate he was intoxicated. Defendant drove east on 47th Street until he came to South Clifton Street.
Plaintiff did not remember ever being on South Clifton before and did not know that defendant had ever driven on the street. Plaintiff testified on direct examination as follows:
“When we turned onto South Clifton we were going North. As we traveled north on South Clifton the radio was on. It wasn’t too loud, just so you could hear it; and we talked a little bit, but not too much — just now and then— I think, about shooting pool. I don’t know of anything of any significance. It was not a steady conversation. As Mr. Wemer (the defendant) turned north on South Clifton, he was driving normal — nothing wrong with his driving.
“Q. At the time, did you have any occasion to view the speedometer?
“A. No, I didn’t pay any attention to it.
“Q. Do you have any idea how fast he was driving?
“A. I’d estimate the speed at 45 or 50, but it would just be a guess. I didn’t look at the speedometer.
“The houses are all along the road as far as the road goes. We were going north and we came to that comer — I wasn’t watching the road — I didn’t see it. The ‘corner’ I refer to is the turn in Clifton.
“Clifton goes up here (indicating) and then makes a turn and intersects with K-15.
“We went off the road just at the start of the turn, just as close as I know. He (the defendant) didn’t negotiate the turn; — and then he went — as far as I know, he went — just at the start of the turn he went straight on. I first noticed any danger just a second before it happened. I didn’t see it until it was there. Just prior thereto I was not paying any attention to the road. I must have been looking at something in the car or paying attention to something in the car— maybe the radio or something like that — I’m not sure. I have no clear recollection of what happened as we went off the road. I just seen the turn in the road just as we were right there.
“I don’t know exactly where we went off the road and the curve. After the crash the next thing I remember was waking up in the hospital at McConnell Air Base sometime the next day. I had a cut on my forehead. . . .”
On cross-examination plaintiff admitted that he had previously made a statement that “He [defendant] drove as I would have driven”; that he [plaintiff] had no reason whatsoever to warn defendant about his driving prior to the accident.
Plaintiff testified that:
“I don’t think that I would have went off the road, but I can’t say so.
“From where we turned onto Clifton to the curve (where the accident oc curred) it is almost a mile — maybe not quite a mile. I estimated the speed of our car at 45 or 50 miles per hour. At this time, that is my best opinion as to the speed.”
Several officers on the staff of the Sedgwick County Sheriff’s Department described the scene of die accident. Their testimony, as it appears in the light most favorable to plaintiff, may be summarized as follows:
When proceeding north on South Clifton toward the scene of the accident there are ten or eleven luminous reflector face signs on each side of the road, or a total of twenty or twenty-two, indicating a curve ahead. The testimony disclosed that a substantial change had been made in road markers subsequent to the accident in question.
Officer Davison, of the Sedgwick County Sheriff’s staff, testified that there was a sign which said “Slow, Dangerous Curve” that did not have a “curve arrow” on it; that there were probably ten reflector signs on each side of the road, a total between twenty-five and thirty, which “are 6 inches wide and maybe 18 to 24 inches long, black and white, and when light shines on them, they shine.” The reflector signs did not continue around the perimeter of the curve.
Davison further testified that a barricade sign south of the curve, which appeared in the photograph offered in evidence, was not there at the time of the accident; and that the “Dangerous Curve Ahead” signs have always been there but were more clearly marked at the time of the trial than they were at the time of the accident. The photograph referred to was later stricken by the trial court. Davison also testified that after the automobile left the embankment at the curve, it went through the air about 98 feet and hit the ground again; and that the point where the automobile came to rest is about twenty feet below the embankment where it left the roadway, tie further testified that there have been six or eight other accidents at the same place in the past three or four years. They all happened the same way — going off the embankment.
Officers Greenfeather and Schooler, as they were proceeding to the scene of the accident, found defendant running across the road. They stopped defendant and questioned him. Defendant first denied that he had been in an accident and stated that he had been robbed and was en route back to the Air Force Rase for help. Defendant later admitted the accident and stated that he had been injured in the neck. The officers took defendant to the scene of the accident in their patrol car.
Officer Schooler testified that defendant had obviously been injured and that when they arrived at the scene of the accident “He [defendant] appeared to have suffered some type of seizure and he fell out of the patrol car. I put him on the stretcher.”
The officers made out an official accident report which was received in evidence when offered by plaintiff. In the report, the accident was described in these terms:
“Vehicle was headed north on Clifton Ave. Failed to reduce speed for curve, went over embankment.”
Speed was estimated at sixty-five miles per hour and drinking was indicated as an accident factor in the report.
It may be said at this point that plaintiff, by his own testimony, as well as by the statement of defendant, established that defendant’s driving was not affected by beer consumed. No contention in this regard is made by plaintiff. Therefore, the question of intoxication is not material in considering the evidence on appeal.
Doyle Lacy, who lived nearby, was awakened by the noise of the accident; he looked out his bedroom window and saw that a car had missed the curve. Lacy said he saw defendant pulling plaintiff from the passenger s side of the front seat; that defendant was “pretty well covered with blood,” and said an ambulance was not needed. Nevertheless, Lacy walked back up the enbankment and told his wife to call an ambulance. When Lacy returned to the automobile defendant was gone. Lacy did not see defendant again until he returned with the officers.
Lacy further testified that he had observed other vehicles driving down that embankment, mostly young boys driving down the embankment to get to a vacant lot beyond.
At the close of his evidence, plaintiff offered a statement made by defendant which reads:
“. . . I was beaded north on Clifton after turning left from 47th Street going to K-15. I had just put out my cigarette, glanced at my speedometer, which read 50 miles m. p. h., and looked up and the road curved to the right. I hadn’t seen any speed signs or sign of a curve and started to take the curve, but seeing a telephone pole and deep ditch, I swerved back hoping to ride out whatever was ahead which looked fairly good. Here follows the explanation: I bounced once, maybe twice, then the door flew open, the car slammed to a stop. My seat belt gave way. I started to go out, but kept ahold of the steering wheel which then gave way, and I rolled out and away from the car. . . ."
As medical evidence, plaintiff submitted the testimony of Dr. Rex Lee, who examined plaintiff on October 7, 1968. Dr. Lee’s examination disclosed a compression fracture of the fourth lumbar vertebra in plaintiff’s lower back. Dr. Lee testified that plaintiff may need “a surgical procedure” which might improve plaintiff’s condition, and that probably a fusion was the procedure indicated.
Defendant called only one witness, Dr. Antonio Ramirez, who was the senior surgeon at the Air Force Base Hospital. Dr. Ramirez examined plaintiff and treated him following the accident. Plaintiff was hospitalized for five days at the Base Hospital and was then released to active duty. Dr. Ramirez reexamined plaintiff on March 26, 1968, and found a compression fracture of the low back area. Plaintiff was given diathermy and exercises to strengthen the muscles around that part of his spine.
Plaintiff was discharged from the Air Force in July 1968.
Apparently, defendant was discharged from the Air Force and left Kansas prior to the filing of this lawsuit in July 1968. Defendant’s counsel states that he has never been able to contact defendant, although diligent effort was made. Counsel states that he is defending the action at the request of defendant’s insurance carrier, who is defending the action under a reservation of rights.
The case proceeded to trial before a jury on March 10, 1969. At the conclusion of plaintiff’s evidence, defendant’s motion for judgment was overruled. Defendant renewed his motion at the conclusion of all the evidence and it was again overruled.
The jury answered special questions and returned a general verdict for plaintiff.
Defendant’s posttrial motions were overruled and this appeal followed.
It is conceded that plaintiff was a guest of defendant within the purview of the provisions of our so-called guest statute K. S. A. 8-122b. Hence, the crucial question framed by defendant’s contentions on appeal is whether the evidence, together with all inferences which might be fairly drawn therefrom, viewed in the light most favorable to plaintiff, tends to establish gross and wanton negligence to the extent that warranted submission of the issue to the jury.
The meaning of gross and wanton negligence, within the context of our guest statute, has been considered by this court in many cases. The most recent being Reynolds v. Estate of Stanosheck, 206 Kan. 714, 482 P. 2d 440. In Reynolds the issue on appeal was presented in a frame of reference so analogous to that in which the issue is presented here, that we believe our decision in Reynolds controls the disposition of the instant appeal.
In Reynolds the host driver, defendant Stanosheck, who was killed in the accident, drove his automobile squarely in front of a slowly moving train, when the whistle was blowing and the bell was ringing, and there was nothing to obstruct his view. However, there was no direct evidence that Stanosheck either heard or saw the train before the crash. None of the surviving passengers in the car saw or heard the train. There was no evidence that any of his passengers had complained about Stanosheck’s driving prior to the accident. We had this to say concerning the conduct of Stanosheck:
“. . . In short, there is no evidence in the record to indicate he realized the imminence of danger, or upon which a reasonable inference could be based that he possessed an attitude of reckless disregard and complete indifference for the well-being of his close friends. The most that can be said from the evidence in the record is that he failed to keep a proper lookout. He had a duty to look before proceeding over the crossing (Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P. 2d 748), and he will be conclusively presumed to have seen what he could and should have seen. (Mies v. Twietmeyer, 193 Kan. 97, 99, 392 P. 2d 118.) At most, Stanosheck’s failure to keep a proper lookout constituted lack of due care, which is ordinary negligence, and less than gross and wanton conduct.”
In Reynolds we quoted this court’s definitions of gross and wanton negligence within the meaning of our guest statute, as stated in leading cases dealing with the subject. The cases cited are applicable here and specific references will not be reiterated at this early date.
It will suffice to say that since Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, this court has consistently held that under the provisions of the statute a plaintiff guest must show conduct on the part of defendant driver indicating that he was willing to injure the passengers in the automobile, or that with a realization of imminent danger he was so indifferent to the consequences as to amount to a willingness to injure.
In the instant case plaintiff and defendant were the only eyewitnesses. Plaintiff testified he had no reason to complain about defendant’s driving, that defendant drove as plaintiff would have driven; defendant’s driving was normal, nothing wrong with it. Plaintiff did not see any warning sign nor did he see the curve until they were right there. Likewise, according to defendant’s statement put into evidence by plaintiff, defendant saw no speed or curve signs until he was in the curve when he saw “a telephone pole and deep ditch” and “swerved back hoping to ride out whatever was ahead.”
In several respects, the evidence here is weaker in support of gross and wanton negligence than that adduced in Reynolds.
In Reynolds there was evidence that Stanosheck had visited Marysville on numerous occasions and was aware of the railroad crossing. There was also testimony by a Marysville Policeman that in the twenty-one years he had been a policeman there had never been a previous train-car collision at the crossing. In the instant case the evidence discloses that defendant was not a native of Wichita; that he had only had his automobile for three weeks; and there was no evidence that defendant had ever been on South Clifton Street before the accident. There was testimony here that on the issue in question there had been six or eight accidents, which happened in the same way during the past three or four years.
In the instant case there is nothing whatsoever in the testimony of plaintiff, or in the statement of defendant — the two eyewitnesses, to the effect that defendant had knowledge of the actual danger and displayed such indifference to the possible consequences, as would constitute a willful and wanton disregard of plaintiff’s rights and feelings. As in the case of the driver in Reynolds, the most that can be said from the evidence in the record here is that defendant’s failure to keep a proper lookout amounted to lack of due care which is ordinary negligence and less than gross and wanton conduct.
Plaintiff relies heavily on our decision in the recent case of Pickens v. Maxwell, 203 Kan. 559, 456 P. 2d 4, wherein we held plaintiff’s evidence had established a submissible case of gross and wanton negligence. In Pickens defendant drove through a stop sign onto a State Highway which had a speed limit of “70 miles per hour.” There were no eyewitnesses to the accident. The rationale of our decision is expressed in these words:
“Under the facts and circumstances of the present case, it would appear that the appellee (1) had a realization of imminent danger and (2) it could be inferred that he proceeded with reckless disregard, indifference and unconcern for probable consequences.
“The evidence is not disputed that Maxwell had lived in the Tonganoxie area all his life. He was familiar with the intersection of Highway K-32 and Eudora Road and traveled over it frequently. He was aware that a stop sign controlled southbound traffic at that intersection. He was aware that a person could not see eastbound traffic on Highway K-32 until that person was within a few feet of the stop sign north of the intersection. He knew the speed limit was 70 miles per hour on Highway K-32.
“With this knowledge of imminent danger, the appellee approached the intersection, passed the stop sign and entered the intersection at a speed in excess of 20 miles per hour. He exposed his passengers to injury by any automobile approaching the intersection from the west. There was one.” (p. 564.)
The components of evidence enumerated in Pickens which were said to establish, on the part of defendant driver, a realization of the imminence of danger, and to form a basis for the drawing of an inference of reckless disregard for probable consequences, are totally lacking in the instant case.
Plaintiff argues the conduct of defendant after the accident in leaving the scene, in initially denying the accident to the officers, and in asking Lacy not to call an ambulance, is such that the jury might infer a mental attitude sufficient to establish wantonness. Plaintiff cites Muhn v. Schell, 196 Kan. 713, 413 P. 2d 997, wherein it was held that the mental attitude of the wrongdoers may tend to establish wantonness. In the Muhn case there was evidence the driver Schell was irritated because of the seating arrangement, which put his girl friend in the back seat next to a competing suitor. There was testimony that Schell drove in a reckless manner and ignored remonstrations from his girl friend “to slow down and quit goofing off.” The mental attitude indicated by the testimony in the Muhn case cannot be inferred from the evidence of the after the fact conduct in the instant case. The evidence here is that plaintiff and defendant were friends, had spent a congenial evening together, and that plaintiff had no reason to, nor did he at any time, complain about defendant’s driving. Plaintiff’s testimony that defendant drove “as I would have driven” negátes any inference of active or purposeful intent on the part of defendant, or that defendant was conscious that his conduct would likely result in injury to himself or his guest.
At the conclusion of the trial in the instant case two special questions were submitted to the jury. The jury answered question No. 1 by finding the defendant guilty of gross and wanton negligence. Question No. 2 and the jury’s answer thereto read as follows:
“If you have answered Interrogatory No. 1 in the affirmative, then please state and name the specific act or acts of the defendant, Jack Werner, which you find do constitute such gross and wanton negligence.
“Answer: The statement of the defendant was rejected in that he saw no warning signs of danger ahead. It is our belief that the defendant, Jack Werner, saw and ignored the warning of the numerous caution signs and the accident was the direct result of this wanton neglect.”
Plaintiff claims there is substantial evidence to support the jury’s answer to question No. 2 and that it in turn supports the verdict for plaintiff.
We have already demonstrated that the evidence adduced fails to establish gross and wanton negligence. This conclusion effectively disposes of this appeal. Nevertheless, we would make this further observation concerning the jury’s answer to question No. 2
The statement of defendant, referred to by the jury, was not offered in the form of testimony by defendant, but was a pretrial statement of defendant, secured by plaintiff and offered into evidence by plaintiff as an integral part of his case. The only evidence bearing on the question whether defendant saw warning signs was his statement that he did not, and testimony by plaintiff that he did not believe defendant saw the curve or signs.
Under the circumstances attendant here, we believe the rejection of defendant’s statement in the answer to question No. 2 was beyond the prerogative of the jury. It is fundamental, of course, that ordinarily the trier of the fact is not required to believe the testimony of any witness merely because there is no direct testimony to controvert it. Here, however, defendant’s statement was relied upon by plaintiffs as an integral part of his evidence, and read into the record as a part of his case in chief. The possibility that defendant’s statement was untrue is not suggested by any evidence in the record. In fact, the probability of the truth thereof is supported by the evidence of six to eight similar accidents on the same curve. The applicable rule is found in Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498, wherein it was held:
“Ordinarily the trier of the fact is not required to believe the testimony of any witness merely because there is no direct testimony to controvert it, but where plaintiff produces two witnesses who testify on every, material element of plaintiff’s cause of action, and such testimony is not inherently improbable or uncandid, and the cross-examination does not develop any conflict, and the defendant produces no testimony in opposition, the trier of the fact is not justified in arbitrarily or capriciously disregarding such testimony.” (Syl. ¶ 2.)
See, also, Irvin v. Irvin, 182 Kan. 563, 322 P. 2d 794; and Reeves v. Child, 165 Kan. 341, 194 P. 2d 919.
In the light of the record here, the rejection of defendant’s statement cannot be justified.
In view of our disposition of the appeal, it is unnecessary to discuss other points raised by defendant.
The judgment is reversed with directions to enter judgment for defendant. | [
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|
The opinion of the court was delivered by
Valentine, J.:
The Atchison, Topeka & Santa Eé railroad company has filed a petition in error in this court to reverse a judgment of the district court of Marion county, rendered against the railroad company and in favor of James D. Riggs, and Riggs has filed a cross-petition in error to reverse a judgment rendered by the same court in the same case in favor of the railroad company and against Riggs. Riggs was the plaintiff in the court below, and in his petition below set forth two causes of action: First, A cause of action for causing the death of his cow by the railroad company’s failing to fence its road, as required by chapter 94 of the Laws of 1874, whereby the cow strayed upon the railroad track, where she was killed through the negligence of the railroad company in operating its road; and second, a cause of action for negligently permitting fire to escape from one of the company’s engines, whereby forty tons of hay belonging to the plaintiff were destroyed. The defense was, first, a general denial; second, that the cow was killed at a time when she was running at large, in violation of the county “herd law” of 1872, which was then in force in Marion county, where the cow was killed; and third, that the cow was killed on the railroad track where it crosses a public highway. A trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant on both causes of action, and also made certain special findings of fact; and upon this verdict and these special findings of fact, the court below rendered judgment in favor of the plaintiff on the first cause of action, and in favor of the defendant on the second cause of action; and the defendant, as plaintiff in error, now complains of the judgment rendered on the first cause of action, and the plaintiff below, defendant in error, complains of the judgment rendered on the second cause of action.
As to the first cause of action, it appears from the evidence that during all the tinffe while the various transactions were occurring out of which the plaintiff’s cause of action is supposed to have arisen, the defendant’s railroad was located upon and passed through the plaintiff’s land, a portion of which road was fenced, and a portion was not fenced, though all of it could have been fenced; the plaintiff’s cattle were kept and pastured on his own land, from which they strayed, through a place where the railroad was not fenced, upon the company’s premises, where, immediately afterward, the plaintiff’s cow was killed by a passing train. It was also admitted that the county “herd law” of 1872, (Laws of 1872, eh. 193,) as well as the railroad stock law of 1874, (Laws of 1874, ch. 94,) was in force in Marion county, Kansas, where the cow was killed. These are not all the - facts of the case, but these we think are all that are necessary to be stated for the purposes of the question which we now propose to discuss. Under these facts, is the railroad company liable? That the railroad company was bound to fence its road, and for its failure to do so is liable for the killing of the plaintiff’s cow, there can certainly be no doubt, unless the plaintiff, by his own wrong or negligence, contributed to the injury. (See “Railroad Stock Law” of 1874, and the numerous decisions of this court made under such stock law.) But the railroad company claims that the plaintiff did commit wrong and was guilty of negligence in permitting his cattle to “run at large” in his own field adjoining the railroad, and in violation of the “herd law” of 1872, which precludes, as the company claims, all right on the part of the plaintiff to recover from the railroad company for the killing of his cow. Now it is not claimed that the plaintiff is precluded from his right to recover merely because his cattle were technically trespassing upon the company’s premises, or upon the land from which they strayed when they entered upon the company’s premises; for this court has repeatedly decided that the owner of cattle, not running at large in violation of some positive statute, but rightfully running at large under the statutes, and merely straying from land in which the owner of the cattle had no interest, and upon which the cattle were technically trespassers, to and upon the unfenced premises of a railroad company, in which the owner of the cattle had no interest, and upon which the cattle were technically trespassers, may recover from the railroad company for any injuries done by the company to the plaintiff’s cattle in the operation of its road. See the numerous decisions made by this court upon this subject. There are also decisions of other courts, going even beyond this: Railway Co. v. Howard, decided by the supreme court of Ohio, April 24, 1883, 11 Am. & Eng. Rld. Cases, 488; Toledo &c. Rly. Co. v. Cary, 37 Ind. 172; Keliher v. Conn. River Rld. Co., 107 Mass. 411; McCall v. Chamberlain, 13 Wis. 637; Dunkirk &c. Rld. Co. v. Mead, 90 Pa. St. 454; same case, 1 Am. & Eng. Rld. Cases, 166. Besides, in the present case the cattle were not trespassers in any sense upon the land of the plaintiff, from which they strayed upon the premises of the railroad company, and they could hardly be called trespassers upon the premises of the railroad company, for the fee of such premises was in the plaintiff, and not in the railroad company, and he had.a right to use such premises under all circumstances and in any manner he chose, provided his use of the same would not interfere with the rightful and proper use of the same by the railroad company. He .would have a right to drive his cattle across the railroad track, from one portion of his land to the other, or even to pasture his cattle upon the railroad track, provided he did not interfere with the rightful use of the premises by the railroad company.
The railroad company claims that the adoption of the “herd law” of 1872, in Marion county, where the plaintiff’s cow was killed, virtually put the coipmon law in force; and that under the common law the owner of the cattle must take care of the same, and not permit them to run at large or to trespass upon the property of others. Now conceding that this is true, and we think it is, we do not think that it will prevent the plaintiff from recovering in the present case. The plaintiff’s cow was rightfully upon the plaintiff’s own land, and was not trespassing upon the property of any person, and she passed directly from the plaintiff’s own land upon the premises occupied by the railroad company — premises to which the plaintiff held the fee-simple title, and in which the railroad company held nothing but an easement — and she was enabled to pass upon such railroad premises wholly from the fault of the railroad company itself in not inclosing .its road with a good and sufficient fence, and not from any fault of the plaintiff.
Under such circumstances, we think there is no decision in the United States holding that the plaintiff is not entitled to recover; while there are numerous decisions in several of the states, made under similar circumstances, holding that the plaintiff may recover. (Shepard v. Buffalo &c. Rld. Co., 35 N. Y. 641; Rly. Co. v. Howard, decided by the supreme court of Ohio, April 24, 1883, 11 Am. & Eng. Rld. Cases, 488; Mead v. Burlington &c. Rld. Co., 52 Vt. 278; same case, 7 Am. & Eng. Rld. Cases, 550; Wilder v. M. C. Rld. Co., 65 Me. 332; Cleveland &c. Rly. Co. v. Crossley, 36 Ind. 370; Toledo &c. Rld. Co. v. Cary, 37 Ind. 172; Cincinnati &c. Rld. Co. v. Ridge, 54 Ind. 39; Cincinnati &c. Rld. Co. v. Hildreth, 77 Ind. 504; Rodgers v. Newburyport Rld. Co., 83 Mass. [1 Allen] 16; Keliher v. Conn. River Rld. Co., 107 Mass. 411; Corry v. G. W. Rly. Co., 6 Q. B. L. R. 237; same case, 7 Q. B. L. R. 322; same case, 2 Am. & Eng. Rld. Cases, 612; McCoy v. Cal. Rld. Co., 40 Cal. 532; McCall v. Chamberlain, 13 Wis. 637; Dunnigan v. C. & N. W. Rly. Co., 18 Wis. 33; Brown v. M. &c. Rly. Co., 21 Wis. 39; Curry v. C. & N. W. Rly. Co., 43 Wis. 665; Veerhusen v. C. & N. W. Rly. Co., 53 Wis. 689; same case, 6 Am. & Eng. Rld. Cases, 583; Dunkirk &c. Rld. Co. v. Mead, 90 Pa. St. 454; same case, 1 Am. & Eng. Rld. Cases, 166; Hinman v. Chicago &c. Rld. Co., 28 Iowa, 491; Horn v. A. & St. L. Rld. Co., 35 N. H. 169; White v. Concord Rld. Co., 30 N. H. [10 Foster] 188; Keech v. B. & W. Rly. Co., 17 Md. 32.)
These eases were decided in states where the common law is in force, except as modified by statutory or constitutional provisions; and in several of such states the common law with reference to fences, and stock running at large, is in force, except as modified by the particular statutory provision requiring railroad companies to fence their roads. Hence it would seem that these decisions necessarily have close application to the present case. The railroad company also cites a long list of authorities where it was held that-the plaintiff was not entitled to recover under circumstances which the railroad company claims are similar to the circumstances in the present case. The principal of such authorities are the following: Jackson v. R. & B. Rld. Co., 25 Vt. 150; Bemis v. Conn. &c. Rld. Co., 42 Vt. 375; Chapin v. Sullivan Rld. Co., 39 N. H. 53; Giles v. B. & M. Rld. Co., 55 N. H. 552; Perkins v. The Eastern &c. Rld. Co., 29 Me. 307; Eames v. S. & L. Rld. Co., 98 Mass. 560; McDonnell v. P. & N. A. Rld. Co., 115 Mass. 564; Darling v. Boston & Albany Rld. Co., 121 Mass. 118; Marsh v. N. Y. &c. Rld. Co., 14 Barb. 364; Nance v. Cayuga &c. Rld. Co., 26 N. Y. 428; Bennett v. Chicago &c. Rly. Co., 19 Wis. 159; Walsh v. V. & T. Rld. Co., 8 Nev. 110; Pittsburg &c. Rly. Co. v. Methven, 21 Ohio St. 586; Peoria &c. Rld. Co. v. Champ, 75 Ill. 578; Ricketts v. E. W. &c. Rld. Co., 12 C. B. (Eng.) 160.
It will be seen by an inspection of the foregoing cases that they are not applicable to the present case. The plaintiffs’ animals, in such cases, were not only trespassers upon the property of the railroad company, but they were also trespassers upon the property from which they passed when they entered upon the property of the railroad company. In such cases the various animals mentioned were wholly and entirely trespassers, while in the present case they were not trespassers at all, which renders those cases very materially different from the present case. In many of the cases above cited, not only those cited on the part of the plaintiff, but also those cited on the part of the defendant, the courts have held that the statutes which require railroad companies to fence their roads do so solely for the benefit of the adjoining proprietors, and not for the benefit of others; and therefore such courts hold that, when animals are rightfully on the premises of adjoining proprietors, and escape therefrom upon the premises of a railroad company because of a want or insufficiency of fences which the railroad company is required by law to build, the railroad company will be held to be liable to the owner of the animals for any injury done by the railroad company to the animals in the operation of its road, although the railroad company may not be guilty of any wrong or negligence except the wrong or negligence of failing to build and maintain a good and sufficient fence. But where the animals are not rightfully on the land of the adjoining proprietors, but are trespassing thereon, and they pass directly from such land upon the property of the railroad company because of a want or insufficiency of fences which the railroad company is required to build, and the animals become trespassers upon the premises of the railroad company also, such owner cannot recover for any injury done to the animals in the ordinary operation of the railroad; and this for the reason that the plaintiff is as much of a wrong-doer as the defendant.
There are other authorities, however, that hold that a railroad company, is required to fence its road, not only for the benefit of adjoining proprietors, but also for the benefit of the traveling public; for, as they hold, if the railroad company fences its road so that animals cannot enter upon its property, it thereby makes travel and transportation much safer upon its road than the same otherwise would or could be; and therefore, in some of such cases it is held that the railroad company must pay all damages for any animal injured because of a want of a good and sufficient fence, which the rail road company is required to build, although the owner of the animal may be equally as guilty of wrong-dóing as the railroad company, and although the animal may have been a trespasser not only upon the property of the railroad company, but also upon the property from which it passed when it entered upon the property of the railroad company. (Toledo &c. Rly. Co. v. Cary, 37 Ind. 172; McCall v. Chamberlain, 13 Wis. 637.)
These authorities probably go a little too far. 'We suppose that the statutes of Kansas requiring railroad companies to fence their roads were enacted for the benefit of all persons who may possibly be benefited by them, including the adjoining proprietors and all persons who may legally allow their stock to run at large, and also the traveling public.
Counsel for the railroad company also cite the following decisions of this court as tending to show that in “herd-law” counties cattle are wrongfully “running at large” even where they are kept on the owner’s own land, unless they are so confined that they cannot pass from the owner’s land upon the right-of-way of the railroad company, and that in all cases where the owner’s cattle escape from his own land because of a want of sufficient fences, he cannot recover: C. B. Rld. Co. v. Lea, 20 Kas. 353; K. P. Rly. Co. v. Landis, 24 id. 406; U. P. Rly. Co. v. Dyche, 28 id. 200; St. L. & S. F. Rly. Co. v. Mossman, 30 id. 336.
Now we do not think that these decisions control the present case, whatever may have been said in any one of the opinions therein delivered.
In the first case, the animal was running at large in the night-time, in violation of the night herd law of 1868, as well as in violation of the county herd law of 1872; and the animal did not pass directly from its owner’s premises upon the premises of the railroad company, but was a trespasser before it passed upon the railroad company’s premises, as well as afterward. And the language of these two herd laws is different. In the night herd law of 1868, the owner of domestic animals is required to “keep them confined,” while under the provisions of the county herd law of 1872 the animals are not allowed to “run at large.”
In the second and third cases, the animals were running at large in violation of the night herd law of 1868, and not in violation of the county herd law of 1872.
In the fourth case, the question as to the force or effect of any herd law was really not decided. In the fourth case, the only question really decided was that the signatures to a petition for a county herd law presented to and acted upon favorably by the board of county commissioners will afterward be presumed to be the genuine signatures of legal voters of the county. This was really the only question presented to the court by counsel, or decided by the court; although other questions may have been in the case.
We think we may consider the question presented to us in the present case as being really a new question, and presented to us for the first time in this case; and being thus presented to us for the first time in this case, we decide the question as above indicated. Any other decision would work great hardship to the owners of land in herd-law counties. The railroad companies might with impunity refuse to fence their roads as required by law; for, whenever sued for stock killed by them, they would say to the plaintiff: “You were equally guilty of wrong-doing, and therefore you cannot recover.” And they would thereby defeat the plaintiff’s action. Under such circumstances, the owners of land in herd-law cou nties would be obliged to build all partition fences between themselves and the right-of-way occupied by railroad companies, or be deprived of the use of their lands for keeping or pasturing stock thereon. In the present case, the plaintiff was at the time of the injury pasturing his cattle on corn stalks in his own field; which, if the railroad company’s theory of the law is correct, he could not have done with any degree of safety without first building a fence between that portion of his land occupied by himself and that portion thereof occupied by the railroad company as a right-of-way. If the theory of the railroad company is correct, the owner of lands in a herd-law county would have to abandon the use of his stalk-fields, his stubble-fields, his grass-lands, his woods, and all other lands which he wished to use merely for the purposes of pasture, unless he first built at his own expense sufficient fences between the land occupied by himself and that occupied by the railroad company to prevent his stock from passing upon the right-of-way of the railroad company. This would be a great hardship to all such persons, and might result in great loss.
We think the plaintiff is entitled to recover in this action. His cattle were confined and not permitted to run at large as to all persons except the railroad company; and if the railroad company had done its duty, they would have been confined and not been permitted to run at large as to any person, not even as to the railroad company. And can the railroad company be permitted to plead its own failures, and take advantage of its own wrong, by setting up as a defense that the plaintiff’s cattle were running at large in his own field, without any sufficient fence between the plaintiff’s premises and the land occupied by the railroad company? If the plaintiff’s cattle were running at large at all, they were doing so merely because of the fault of the railroad company in not building a fence. We do not think they were running at large within the meaning of the herd law; and as the railroad company was the only party in fault, it certainly has no right to claim that they were running at large at all. We think the plaintiff may recover.
Of course, where a railroad company incloses its road with a good and sufficient fence, and afterward some breachy animal breaks through or over such fence and enters upon the company’s premises, the company will not be liable for any accidental injury done to the animal, although the animal may have passed directly from its owner’s premises upon the railroad company’s premises. (Hance v. Cayuga &c. Rly. Co., 26 N. Y. 428; Fisher v. Farmers’ Loan & Trust Co., 21 Wis. 73.) And also, if the owner of an animal should negligently permit the same to enter upon the railroad company’s track at or about the time when a train was passing, and the animal should thereby be injured, the owner could not recover. And although the owner of live stock may permit the same to pasture on his own land in the vicinity of a railroad track, and although the railroad company may be in fault in not building a fence, yet the owner must use reasonable and ordinary care and diligence for the safety and protection of his stock, or he cannot recover. This leads us to the question whether the plaintiff was guilty of any culpable negligence or not, independent of the herd law. It seems from the evidence that at the time the cow was killed, the plaintiff’s cattle were kept and pastured on his own land, in charge of a son of the plaintiff and a hired man, who were chopping wood about forty rods distant. When the son and hired man heard the train coming, they started to find the cattle, but before they reached the place where the cattle were then situated, the train had passed, and the cow was killed. At this time there was a very severe snow storm, and the cattle in order to find shelter had passed from the plaintiff’s premises upon the railroad track; and the storm was so severe, and the window of the engineer’s cab was so covered with ice and snow, that he could not see ahead of the train . more than about four hundred feet, and he did not see the cattle until he was so near to them that he could not stop the train, and thereby avoid the injury. Under the evidence, we would think that neither the plaintiff nor the defendant was guilty of any culpable negligence independent of the herd law and stock law. Evidently, under the verdict and findings of the jury, the plaintiff was not guilty of any culpable contributory negligence. There was also some evidence tending to show that the plaintiff had waived the building of a fence at the place where the cattle passed from the plaintiff’s premises upon the railroad track; but whether the plaintiff did waive the building of such fence or not we think was fairly submitted to the jury, and the jury found in favor of the plaintiff, and against the defendant; and we think the verdict and findings of the jury upon this question are also correct.
This we think disposes of the first cause of action, and we shall now proceed to consider the second cause of action.
The second cause of action, as before stated, was for negligently permitting fire to escape from one of the company’s engines, whereby forty tons of hay belonging to the plaintiff were destroyed. Now while the jury found a general verdict in favor of the plaintiff and against the defendant, yet the jury also found that the engine from which the fire escaped was “ of the most approved invention and construction, so far as the appliances for preventing the escape of fire were concerned;” and also found that the engine was “in good condition, so far as all the appliances for preventing the escape of fire were concerned;” and also found that the engineer who managed the engine from which the fire is claimed to have escaped was “a competent, skillful and careful engineer.” There was no evidence introduced tending to show that the engineer mismanaged the engine, or that he was negligent in any respect with regard to its management; and the jury did not find that there was any mismanagement or negligence on the part of the engineer; but in answer to the following question put to the jury, to wit, “How did he so mismanage his engine as to set out the fire?” the jury answered, “We cannot tell.” And in answer to the further question put to the jury, to wit, “In what does the negligence of the railroad company in permitting the fire to escape from its engine or train consist?” the jury answered, “We cannot tell.”
Under the findings of the jury and the evidence, we must therefore consider that the engine was complete and perfect in every respect, so far as the appliances for preventing the escape of fire were concerned, and that the engineer was a competent, skillful and careful engineer, and that there was nothing in the case tending to show that he was negligent in the management of his engine; and we cannot imagine where there could be any other room for negligence on the part of the railroad company in permitting the fire to escape which is supposed to have caused the injury. And hence we think the court below did not err in rendering judgment in favor of the railroad company and against the plaintiff on the special findings of the jury; or at least as all presumptions are in favor of the correctness of the decision of the court below, we cannot say, merely because the jury found a general verdict in favor of the plaintiff and against the defendant, that the court below erred in .rendering the judgment which it did render.
As frequently decided in this court, railroad companies are are not insurers against fire, but are liable only for negligence; and if they are guilty of no negligence, then no action can be maintained against them for any accidental fire caused by the escape of fire from their engines. In the present case, under the evidence and the special findings of the jury, it must be held that the fire which destroyed the plaintiff’s hay was purely an accidental fire, and was not caused by the negligence of any person.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is as to the constitutionality of the registration act. (Laws 1879, ch. 80.) It is objected, first, that it conflicts with section 17, article 2, of the constitution — the section which requires that all laws of a general nature shall have a uniform operation throughout the state. The act in terms only applies to cities of the first and second class. The objection is not well taken. ■ It is true that the constitution directs the legislature to enact suitable registration laws; (art. 5, §4.) It may be that this implies the registration of all voters; but the manner of registration is not prescribed. This is left to the discretion of the legislature. “Such laws as.may be necessary,” is the language. Who besides the legislature, the law-making body, can decide this question of necessity? It may deem one provision adequate for country precincts, while the conditions of city life require other and more stringent rules. Obviously the conditions and dangers are different; and if it may prescribe one rule for cities and one rule for rural districts, then a Separate law for either is good, and the validity of neither will depend on the terms or even the existence of the other. There is no difference between this and other subjects of legislation ; and if the law applies to all matters and things of the same nature and in the same condition, the courts may not interfere because it does not reach to matters of a different nature or in a different condition. Such is the general import of our decisions, as well as of those of other states.
The second objection is, that it places an additional qualification on the right of suffrage. Who are electors, and who may vote, is defined by the constitution. Every one having the qualifications prescribed is entitled to vote; and to say that he must also be registered is to prescribe an additional qualification. This is the only substantial question in the case. Upon it, courts have differed. It is well in the first place to see what the provisions of the registry law are.
The city clerk is made the registering officer, and a poll-book is required to be kept in his office at all times; (sections 2 and 3.) All citizens must be registered annually, and registration is prima faeie evidence of the right to vote at any election during the year of the registry; (section 4.) The clerk is required to give ten days’ notice in some newspaper immediately on receipt of the poll-book, that it is open for registry; (section 5.) The poll-books are to be opened at all times during the year for registration, except during the ten days prior to any election; and of the closing of the books prior to such election the clerk is to give at least five days’ notice, by publication for three days in some newspaper; (section 6.) The registration book is to contain the date of registering, the name of the person registered, his age, occupation, and residence; (section 7.) No person is to be registered unless he personally appears before the city clerk at the city clerk’s office and gives his name, age, etc., as required to be entered in the registration book; (section 8.) No person is allowed to vote unless registered; but the registry is not conclusive evidence of his right, and he may be challenged on election-day at the polls; (section 9.) The clerk will give to each person registered a certificate thereof; (section 10.) The city clerk is authorized to administer all necessary oaths, to examine the applicant for registering, or any witness he may offer in his behalf, in order to ascertain his right to be registered. If he will be entitled to vote at the next ensuing election, he shall be registered; otherwise not; (section 11.) On change of residence during the year, the change is to be noticed on the registry; (section 12.) The city clerk immediately upon the close of the poll-books preceding any election shall make a true, correct and certified copy thereof, and deliver the copy for each ward at the voting precincts of such ward to one of the judges of election; (section 13.) And at every election, as each person registered votes, one of the judges shall enter on such copy in the check-line opposite the name of such person the word, “Voted.” This copy, after the election, is to be returned to the city clerk, and by him preserved; (section 14.) Other provisions prescribe penalties for violations of this statute.
It is evident that a proper enforcement of this statute, in securing ten days before every election a full registry of all persons entitled to vote, furnishes a very efficient check against fraudulent voting. At any election in which much interest is felt, and where the opposing parties are supposed to be nearly equal in numbers, most careful scrutiny will be made of these registry lists, every voter’s name and residence taken, and his right to vote verified by examination. The matter will not be left to the pressure and excitement of election-day, ■ but will all be ascertained and determined prior thereto. The value of such a registry for the preservation of the purity of the ballot-box cannot be too highly estimated.
The specific objections made to the validity of the statute are, that the registry is to be completed ten days before any election, and that one who is hot thus registered cannot vote, notwithstanding he possesses all the qualifications of an elector prescribed by the constitution; and also, that the city clerk is given the power to determine who is and who is not entitled to registry, and therefore practically determines who may and who may not vote. The first of these, as heretofore stated, is really the serious objection. Cooley, in his work on Constitutional Limitations, page 601, makes these observations upon this question:
“In some of the states it is regarded as important that lists of voters should be prepared before the day of election, in which should be registered the name of every person qualified to vote. By this arrangement the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election-day of the various and sometimes difficult questions -concerning the right of individuals to exercise this important franchise. Electors also, by means of this registry, are-notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whether the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has been sometimes claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconstitutional and void, as adding another test to the qualifications of electors which the constitution has prescribed, and as having the effect, where electors are not registered, to' exclude from voting persons who have an absolute right to that franchise by the fundamental law. This position, however, has not been accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised.”
In support of the conclusions expressed by him, may be cited the following cases: Capen v. Foster, 12 Pick. 485, where the question is fully and exhaustively considered by Chief Justice Shaw; Hyde v. Brush, 34 Conn. 454; People v. Kopplekom, 16 Mich. 342; Edmunds v. Banbury, 28 Iowa, 267; People v. Laine, 33 Cal. 55; Webster v. Byrnes, 34 Cal. 273; Byler v. Asher, 47 Ill. 101; People v. Wilson, 62 N. Y. 186; Davis v. School District, 44 N. H. 398; Patterson v. Barlow, 60 Pa. St. 54; Auld v. Walton, 12 La. An. 129; Harris v. Whitcomb, 4 Gray, 433. And against these conclusions, Page v. Allen, 58 Pa. St. 338; Dells v. Kennedy, 49 Wis. 555.
It is true that in some of the states from which those decisions are cited, the statute provided that a person not registered might, on producing certain affidavits on the day of election, and furnishing certain reasons for failure to register, be allowed to vote. So that all those decisions do not meet the precise objection raised here. But it is also true, that the decisions against the conclusions of Justice Cooley were all of them by divided courts; so that-we think the weight of authority is with that author. We think too the decision is right on principle. Our constitution, art. 5, sec. 4, requires that “ the legislature shall pass such laws as may be necessary for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established.” It seems to us that this manifestly contemplates a registration prior to the day of election. It will be borne in mind that at the time this constitution was adopted, the uniform practice as to elections was to keep a list of those who voted. It was also the privilege of every citizen to challenge the vote of any one offering to vote whose right to vote he suspected, and the party challenged was called upon to prove by his own oath or otherwise his possession of the qualifications of an elector. So that when the framers of the constitution introduced this section into it, something more was intended than the mere preservation of a poll-list on the day of election, and the ascertaining of the qualification of the voters by challenges on that day. Obviously, what was contemplated was the ascertaining beforehand, by proper proof, of the persons who should on the day of election be entitled to vote; and any reasonable provision for making such ascertainment must be upheld. Requiring a party to be registered, is not in any true sense imposing an additional qualification, any more than requiring a voter to go to a specific place for the purpose of voting, or requiring him to prove by his own oath or the oaths of other parties his right to vote, when challenged, or than requiring a naturalized foreigner to present his naturalization papers. Each and all of these are simply matters of proof, steps to be taken in order to ascertain who and who are not entitled to vote. Doubtless under the pretense of registration, and under the pretext of securing evidence of voters’ qualifications, laws might be framed which would cast so much burden as really to be imposing additional qualifications. As for instance, suppose the law required all voters in the state to be registered on personal attendance at the state capítol, on the first day of the year, for every election taking place during the year. The legislature cannot by in form legislating concerning rules of evidence, in fact overthrow constitutional provisions. (County Seat of Linn County, 15 Kas. 500.) But where ample facilities for registering are furnished, and the opportunities for registering are continued down to within a reasonable time of the election-day, then it cannot be said that mere rules of evidence are abused. Neither is there any magic in the mere day of election. It seems to be conceded that proof can be required, provided only it is required on the day of election. But it is easy to conceive of many requirements in force only on the day of election, which would really be more burdensome, and more, in fact, like to additional qualifications, than anything contained in the statute in question. Suppose the law required every voter in the county to present himself on the day of election at the office of the county clerk, and obtain from him upon proper proofs a certificate of qualification; or suppose the law required him to remain in attendance at the polls from sunrise to sunset in order to give any one who desired an opportunity to challenge; or even supposing every voter was required to produce a dozen affidavits in writing from as many different persons, showing age and residence, such as are among the qualifications of an elector: all of these contemplate action on the day of election, and onAhat day alone; and they all bear upon the question of having the right to vote; and yet they would be clearly an abuse of rules of evidence. They would be more in the nature of additional qualifications than the simple matter of registry. It is true isolated instances may occur where a party through absence or sickness is unable to register, and so loses his vote, but the same result may follow where any failure to produce the required evidence occurs. A naturalized foreigner may lose his naturalization .papers, and the court where he was naturalized may be at the very extreme of the land, and so, for the lack of the legal evidence of his naturalization, he may lose his vote; but still in both cases, the matter is simply one of a lack of evidence. It is a mistake to suppose that there is any special virtue in the mere day of election. If the legisla ture has the right to require proof of a man’s qualification, it has a right to say when such proof shall be furnished, and before what tribunal; and unless this power is abused the courts may not interfere. It cannot be held that when the poll-books are open throughout the entire year, up to within ten days of the election, and in a public office in the city, there is any abuse as to either the time or manner of obtaining a list of legal voters. Several of the states have constitutional provisions concerning registration of voters, viz., Alabama, Arkansas, Colorado, Florida, Missouri, Nevada, North Carolina, Rhode Island, Virginia, and West Virginia. Some of these are worthy of notice. That of Missouri, (Const. 1875, art. 8, §5,) provides that the general assembly shall provide by law for the registration of all voters in cities and counties having a population of more than one hundred thousand inhabitants, and may provide for such registration in cities having a population exceeding twenty-five thousand inhabitants and not exceeding one hundred thousand, but not otherwise. This very plainly recognizes the distinction between the necessity of registration in crowded settlements and that where the population is limited and scattered. That of West Virginia, (1872, art. 6, § 43,) prohibits the legislature from ever authorizing or establishing any board or court of registration of voters. Obviously the conviction was, that in the absence of such prohibition the power of the legislature in this respect was ample.
In conclusion, we think it may be affirmed that under the requirements of our constitution, it'is the duty of the legislature to provide for a registration of voters; that it may provide that such registration be completed prior to the day of election, providing that ample facilities and time for registering are prescribed; and that it may also provide that one not registered shall not be allowed to vote. So far as the suggestion that the city clerk may refuse registering to a voter who is entitled thereto is concerned, it is enough to say that the courts are always open to correct any wrong of that nature, whether done by the city clerk or the judges at election. We think the ruling of the district court was wrong. The judgment must be reversed, and the case remanded with instructions to overrule the motion to quash the information.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a case which has embarrassed us not a little. The facts are these: Gray, on March 3, 1882, commenced his action in the district court to enforce the specific performance of a contract to convey thirty-three acres of land. The contract was signed by H. C. Long, one of the defendants. The petition alleged that since the contract, Long and wife had conveyed thirty-one and one-tenth acres of the tract to Elizabeth I. Crockett, their co-defendant; but that she bought with full knowledge of the prior contract. The defendants answered, admitting the contract and the conveyance to Mrs. Crockett, but denying knowledge on the part of the latter; alleged that H. C. Long and wife occupied the land as a homestead, and that therefore the contract signed by H. C. Long alone was void. On the trial before the court without a jury certain facts were admitted, some parol testimony offered, special findings of fact and conclusions of law made, and judgment entered for the defendants. Gray brought the case to this court, and the judgment was reversed. (30 Kas. 138.) By the admissions and in the findings, it appeared that Long and wife had a homestead on the land. If the tract was outside the limits of the city of Wyandotte, the entire tract was unquestionably exempt as a homestead; but if within the limits of the city, only one acre was so exempt. A special act had been passed by the legislature of 1879, reducing the territorial limits of the city so as to exclude this tract from such limits; and when the' case was submitted to us, the single question presented and discussed by counsel on either side, was as to the constitutionality of that act. We held the act unconstitutional, and that therefore the land still remained within the city limits, and reversed the ruling of the district court. In the opinion and mandate, we directed a reversal of the judgment, and that the case be remanded for further proceedings. There was no-express order for a new trial, or on the other hand, that judgment be entered for the plaintiff. On the presentation of the mandate, plaintiff moved for judgment in his favor on the findings, and the defendants Long and wife for leave to file amended answers. The latter motion was overruled, and the former sustained. Defendants now bring this judgment here for review.
The first proposition of counsel is, that the court erred in rendering a judgment upon the old findings, and without a new trial. We think this is correct. The practice in this court is to state specifically in the opinion and mandate the judgment or order which is to be entered by the trial court, whenever it is thought a final disposition ought to be made upon the record as it stands; and when simply a reversal is ordered, a new hearing in the trial court is intended. (Laithe v. McDonald, 7 Kas. 266.) At least this is the general rule, though, perhaps, owing to inadvertence at the time, some exceptions to it may be found in the cases.
Counsel for defendant in error cite several authorities, to wit: 28 Iowa, 355; 2 Mont. 405; 3 id. 189; 5 Mo. App. 579; 7 Wis. 100; 13 Ark. 253; 1 Ohio St. 463; 61 Ga. 528; 77 Ind. 474, to the effect that, where the findings of fact are undisturbed, and only the trial court’s conclusions of law are set aside, and the judgment is reversed and the case remanded for further proceedings, the plaintiff in error is entitled to a judgment upon the findings in accord with the views expressed by the appellate court, and without a new trial. While this is not in harmony with the practice which has generally obtained in this court, yet, conceding for the purposes of this case that such a proposition is ordinarily correct, still we think the court erred. Such a rule can obtain only when upon the facts as found and under the issues presented by the pleadings the case is ready for a judgment which will be fully in accord with the views expressed by the appellate court. But this case was in no such condition. The trial court found that Long had a homestead on the land, and that it being all outside the city limits, this homestead included the entire tract. Hence, the conclusion was that the contract was wholly void. We held that the land was wholly within the city limits; that the homestead included only one acre, and therefore that the contract was not wholly void. We did not hold that the contract was good for all the land; that a husband alone could make a valid contract for the sale of his homestead by simply including other lands therein. The constitution protects the homestead from the husband’s separate contract; and whether he puts simply the homestead or a larger tract including the homestead into his separate contract, is immaterial. In either case, so far as the homestead is concerned, the contract is a nullity.
We do not think that there should be any limitation placed upon the rule heretofore laid down in this court, and founded upon the clear letter of the constitution, affirming the inviolability of the homestead as against the separate conveyance or contract of the husband. The rule is a beneficent one, and should be sacredly enforced. The case was therefore in no condition for final judgment. Nothing in the findings indicated the homestead acre. Until that was disclosed the court could not determine to what portion of the land described the contract could apply. It could not be assumed, without inquiring, that there was no possibility of locating it. For aught that appeared there might have been such a distinctive occupancy and use of a single acre surrounding the dwelling house as would clearly locate the homestead. Because the defendants improperly claimed all as a homestead, it does not follow that they could not and ought not to be permitted to prove and designate the one acre which they in fact occupied as such homestead.
Take this illustration, which, though weaker than the case at bar, is in point: Suppose in an ejectment action, defendant relied upon a title by continuous and adverse possession, and the testimony should show and the court find that he had held such possession of a part of the land over fifteen years and of the rest for only fourteen years, and the boundaries of the parts thus held should not be specifically identified either in the testimony or findings; and thereupon the court should hold as conclusion of law that fourteen years’ possession was sufficient, and render judgment in his favor. If we reversed such conclusion and adjudged that there must be fifteen years’ possession, would it be right to enter judgment in favor of the plaintiff for the entire tract? Ought not the defendant to be permitted to show on a new trial the exact boundaries of the part he had held possession of for fifteen years? Could it be said that the case was fairly ready for judgment when the fact of fifteen years’ possession of part was proved and found?
In short, before the rule invoked by counsel obtains, every fact put in issue by the pleadings and necessary to be determined before the rights of both the parties can be precisely adjudged in accordance with the views expressed by the appellate court, must have been fully and definitely found. This disposes of the case, and compels a reversal. We might close the opinion here; but some questions exist and have been discussed by counsel, the determination of which may guide in the further progress of the case.
I. Certain facts were admitted for “the purposes of that trial.” Such admission was good for that trial alone, and does not conclude either party in any future trial. (Rld. Co. v. Shoup, 28 Kas. 394.)
II. It is insisted that defendants are entitled to judgment, even though the homestead included only one acre, for the contract was for the entire tract at a price in gross and not so much per acre; and as the homestead acre was inalienable by the husband alone, and was in no manner identified in the contract, or its price determined, there is no way of apportioning the price of the thirty-two acres which the husband could sell. The cases of Richards v. Chase, 2 Gray, 383; Phillips v. Stauch, 20 Mich. 369; and Donner v. Redenbaugh, S. C. Iowa, June 12, 1883, reported in 16 N. W. Rep. 127, are cited in support of this claim. Viewed as an original question, we think there is force in this claim, but the defendants are too late in presenting it. It was a question necessarily involved in the case as it came to us before. If, whether the homestead included one acre, or the entire tract, the contract was void, then the judgment of the district court was right, and no reversal should have been ordered. Counsel failed to present it then, and it is too late now. A case cannot be tried by piecemeal. Every defense that exists must be presented, and when a case is reversed, the defeated party will not be heard to say that there were other reasons for affirmance which he might have presented. A decision once made becomes the law of the case, and this rule embraces not merely all questions presented, but also all questions necessarily involved in the decision. (Headley v. Challiss, 15 Kas. 602; Rld. Co. v. Shoup, 28 id. 394.)
Counsel, not questioning the general rule, claim that it is not an inflexible one, but must yield when justice and equity imperatively require it. But even with this limitation, we think the rule must control in the present case; for there is no equity in releasing a party from a fair and reasonable contract into which he freely entered. And that both husband and wife were willing to sell, is evident from the fact that they did shortly thereafter sell at a slight advance. This slight advance offered by Mrs. Crockett is evidently all that stood in the way of the Longs complying with the contract. It is equitable that the contract be enforced so far as is possible, and not that the contracting party be permitted to avoid his contract obligations.
III. Plaintiffs in error contend that they should have been permitted to file the amended answers, and that the trial court refused them leave, under the impression that it hftd no power to do so. In view of this, it may be right to observe that the trial court unquestionably has the power and should permit amended answers to be filed if in furtherance of justice. We are not convinced, from anything at present before us, that it would be in furtherance of justice; and yet that is a matter committed to the discretion of the trial court, and so we do not decide that it would not be. Besides, we may not anticipate what further showing may be made. The matter can safely be remanded to the consideration of the able judge of the trial court.
IY. If the homestead acre can be identified by testimony, as to the manner of occupation, and the inclosures, of course there will be no trouble. If, however, the occupancy of the entire tract was such that no specific acre can be identified as the homestead, then we think the court sitting as a court of equity has power to appoint a commission to lay off .an acre in a_compact form surrounding the family dwelling house, and in such a manner as to include the well, stables, outbuildings, etc., and adjudge that the homestead. .
Y. We think the contract price must be apportioned. It is true the contract does not provide for an apportionment. But under the circumstances, and in the condition into which this case has come, equity requires that it should be done. The consideration which plaintiff should be required to pay if finally awarded a decree for thirty-two acres, the tract less the homestead, should not be $8,000, the contract price, but that sum should be reduced in the proportion of the value of the homestead acre to that of the entire tract.
We see nothing else requiring notice. The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
JBebwee, J.:
In October, 1880, the city council of Atchison by ordinance gave to J. H. Beeson & Co. their successors and assigns, the right to construct a street railway upon certain streets in the city of Atchison. In November, 1880, plaintiff in error was incorporated as a street railway company, and in the same month, by ordinance plaintiff was accepted as the successor of Beeson & Co., and as such given all the rights theretofore granted to said Beeson & Co. Among the streets named was Fifth street, and the right given was to lay a track and operate cars upon, but lengthwise, upon said Fifth street. In pursuance of this authority, the plaintiff constructed its track and operated its cars on said street. Subsequently the defendant was given the right to cross said street with its track. On June 7,1883, defendant was about to cut the rails forming plaintiff’s track and lay down common steam railroad rails, so that in the operation of plaintiff’s cars they would necessarily drop into the space where its rails were cut and then rise over the rails about to be laid by defendant, and drop again on the opposite side. Defendant was about to put in three such tracks, so that each pair of wheels under each of plaintiff’s cars would drop and rise again six times while crossing such space, within much less than the length of one lot. Thereupon the plaintiff sought to enjoin the defendant from so cutting its rails and obstructing the same. A restraining order was granted by the probate judge of Atchison county. Afterward, and on due notice, the parties respectively appeared in the district court, and plaintiff’s application for a temporary injunction was heard and denied. Plaintiff made and served a ease-made for the supreme court, which contains the conclusions of fact and of law stated by the court, and also a part of the evidence offered on the trial.
Upon these facts several questions of importance and difficulty have been discussed by counsel. Plaintiff states three, which it claims are involved, as follows:
“(1.) Could the legislature confer upon the mayor and council of the city of Atchison the authority to pass the ordinances under which plaintiff laid its tracks? (2.) Was the right to lay down tracks and operate cars thereon, as given by such ordinance, the granting of a special privilege within the meaning of §2 of bill of rights? (3.) Had the legislature, before the passage of such ordinances, authorized the mayor and council to pass ordinances authorizing the laying down of tracks and the operating of street cars thereon?”
The first two questions may be considered together, and they present a matter of great moment. If the claim of defendant is sustained, it establishes a wide departure from the recognized method of procedure in other states; and it abridges largely the control over the streets and other internal affairs of the city, which elsewhere it has been settled the legislature may grant to municipal corporations. The inhibition of such legislation is based upon § 2, bill of rights, which is as follows:
“All political power is inherent in the people, and all free governments are founded upon their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
It is claimed by defendant that the inhibition is contained in the last clause, and the argument is that the right granted by the ordinances was a special privilege; that it was granted by the mayor and council of Atchison, which was another tribunal or agency than the legislature, which alone could exercise that power under said § 2.
We have been unable to find a provision like this in the constitution or bill of rights of any other state. The nearest approach thereto is in the second section of the bill of rights of the constitution of 1851 of the state of Ohio, which reads as follows:
“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the general assembly.”
It will be remembered that the framers of our constitution expressly selected that constitution as a model. (Proceedings of Wyandotte Constitutional Convention, pp. 16 to 20.) And our bill of rights- is in many respects an exact copy of the one in that constitution. In this particular section some expressions, as will be seen, are copied verbatim; but an important and significant change is made by the addition of the last clause of the last sentence, and upon this clause hinges the present question. One contention of counsel for plaintiff is, that the bill of rights is not to be considered as containing precise limitations upon power, but rather only comprehensive statements of general truths; that it is more in the nature of a guide to the legislature, than a test for the courts. We quote from his brief:
“‘Bills of Rights/ as is said in Sedgwick on Statutory and Constitutional Law, (pp. 179,180,) ‘must be regarded rather as guides for the political conscience of the legislature than as texts of judicial duty;' and further: ‘The landmarks of the legislative and,, judicial authority are rather to be found in the division of power, contained in the constitution., among the three great branches of the government, and the specific limitation imposed by the instrument on the lawmaking branch, than in these general declarations of political truths.' Again, Judge Cooley has said of bills of rights: ‘They are declared rather as guides to legislative judgment, than as marking an absolute limitation of power.' (Cooley’s Const. Lim., p. 176.) ‘A formal and public declar atiera of popular rights and liberties.’ (Bouvier’s Law Diet.) ‘And so little importance was given to the bill of rights in the convention which framed the federal constitution, that the original constitution contained none, and it was afterward adopted asan amendment; though the question was presented on September 12, 1787, and on the motion of Mr. Gerry for a committee to prepare a bill of rights, which motion did not prevail.’ (Madison Papers, pp. 1565-6.) The supreme court of the state of Michigan, upon this subject, has said: ‘ Declarations of rights, or bills of rights, are the enumeration of certain great political truths essential to the existence of free government.’ (30 Mich. 201.)”
In short, counsel seems to look upon it as but little more than a compilation of glittering generalities. From this, as broadly as it is stated, we dissent. Many of its sections are clear, precise and definite limitations upon the powers of the legislature, and every other officer and agency of the people. Section 5 reads: “The right of trial by jury shall be inviolate.” Section 16: “No person shall be imprisoned for debt except in eases of fraud.” The meaning and extent of these are clear. They limit the power of the legislature, and no act of that body can be sustained which conflicts with them. Indeed, all of them may be considered, generally speaking, as conditions and limitations upon legislative action ; and no law can be sustained which trenches upon the rights guaranteed by them, or which conflicts with any limitation expressed in them. It is true many of them are largely mere affirmations of political truths; and yet as to those, it may safely be asserted that the political truths affirmed cannot be ignored in any valid enactment. See upon the general scope and effect of bills of rights, Story on the Const., ch. 44; 2 Kent’s Com., Leet. 24.
What then is the precise scope and meaning of § 2 of the bill of rights? It may be remarked certainly as to all the other sections, that each refers to one particular subject; some, it is true, containing several provisions, but all bearing upon the one subject. This fact is important in determining the scope of this section. Erom the uniformity in respect to the other sections, it may be justly concluded that the same rule obtains in this: that one general subject-matter is treated of, and that all its language is to be interpreted as having reference to that single subject. So the question really is, not how broad and comprehensive might be the meaning of the last sentence, standing in a separate section, but what is its true intent and meaning when joined with the first sentence in a single section ? Tested in this way, we think the words “no special privileges or immunities” refer to privileges or immunities of a political nature. The section obviously treats of political powers, privileges, and immunities. It commences: “All political power is inherent in the people.” It thus affirms the sovereignty of the people, that all political power proceeds from them, and upon the exercise of that power they placed the limitations and restrictions contained in the other part of the section; so that the last sentence really means that no political privilege, no immunity from any political duty, any duty from the individual to the public, can be granted by the legislature which may not be altered or revoked by that body; and that no other tribunal or agency in the state shall have power to grant any such political privilege or freedom from political duty. These are such duties as those of serving in the militia, as jurors, filling offices, etc. A franchise involving solely matters of pecuniary interest or a privilege in respect to property, can in no just sense be called a political privilege. It touches no. duty which the citizen as such owes to the state. Beyond the argument derived from the unity of subject manifest in the several sections of the bill of rights, and the joining of the two sentences in the one section, are these considerations tending to support the construction we have given: In the body of the constitution are found certain limitations on the action of the legislature in respect to property privileges and franchises, (art. 12, § 1; art. 13, §§ 1, 9,) the former treating of corporations, and the latter of banks. In each of these eases the right to amend or repeal is expressly reserved. This would be unnecessary if this section of the bill of rights has the extended application claimed.
Again, if the framers of our constitution had supposed or intended that this section should have the operation claimed for it in respect to property rights and interests, it would seem that it would have been the subject of much discussion and its language criticised and carefully weighed. But while some of the sections in the bill of rights provoked much discussion, this seems to have passed almost unnoticed. Why the addition of this clause was ° made to the section, as it stood in the Ohio model, nothing in the proceedings of the convention advises; no reason was given by the committee which had the matter in charge, and no questions were asked. Obviously it attracted little attention.
And again, the state has existed under this constitution for nearly a quarter of a century; many questions and controversies have arisen as to the powers of a city council, a board of county commissioners, and other subordinate tribunals, and the sources as well as the limitations of such powers; but this is the first time within our knowledge that any such scope and operation has been claimed for this section, or its provisions. The silence of the profession in this direction is entitled to consideration. Surely the scope of this section, as now claimed, has not been obvious to the members of the bar.
We think therefore that, notwithstanding said § 2, the legislature has power to authorize municipal corporations to permit street railway companies to occupy the streets with their railroad tracks.
This brings us to the third question presented by counsel: Had the legislature given to the city of Atchison this power ? It is conceded that no special grant of power in this direction had ever been made; but the contention is, that the general control of the streets vested in the corporation was sufficient to validate its action in granting permission to plaintiff to occupy the streets with its railway. This proposition we think must be sustained. The act in force was chapter 19, Comp. Laws of 1879. By it, (§§32 and 54,) the council was given power to open and improve the streets, avenues and alleys, and by § 55 it was given power to prevent en croachments, to remove obstructions, regulate the planting and protection of shade trees, the building of doorways, awnings, hitching posts and rails, “and all other structures projecting upon or over and adjoining, and all other excavations through and under the sidewalks, or along any streets of the city.” Besides this, §31 of said chapter vested the care, management and control of the city in the mayor and council, with power—
“To enact, ordain, modify or repeal any and all ordinances not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect.”
Now under this we think the council had power to permit a street railway company to construct and operate a railway upon the streets. Judge Dillon, in his work on Municipal Corporations, (§ 575,) thus sums up his conclusions derived from an examination of all the reported cases upon the subject of railways and streets:
“As respects ordinary railways operated by steam, and street railways operated by horses, legislative authority is necessary to warrant them to be placed in the streets or highways. The legislature may delegate to municipal or local bodies the right to grant or refuse such authority. The usual powers of a general nature in municipal corporations over streets are not sufficient to confer upon them the right to authorize the appropriation of streets by ordinary railroads, whose tracks are constructed in the usual manner and whose trains are propelled by steam. But it is otherwise as respects horse railways, and the ordinary powers of municipal corporations are usually ample enough, in the absence of express legislation on the subject, to authorize them to permit or refuse to permit the use of streets within their limits for such purposes.”
See the long list of authorities cited by the author in a note to § 570.
Ill this direction we think the language of the supreme court of Louisiana, in Brown v. Duplessis, 14 La. An. 842, is of great weight:
“No citizen has a legal right to complain that the streets are used by other citizens in a peculiar manner, even if it cause him a little inconvenience, so long as he himself is allowed the free use of the streets in his peculiar mode. The streets are destined for public use, but not for a particular mode of public use. If the city of New Orleans wished to expend the money necessary for the laying of rails throughout the city for the purpose of permitting all who wished to run their own cars thereupon, drawn by horses or mules, no one could complain, so long as it did not prevent other modes of traversing the streets; for traveling in ears on rails is one mode of using public streets, and there is no reason in the nature of things why it should be lawful to travel in a carriage or gig upon the streets, and not lawful to travel in a car upon rails fixed in the streets, but not so laid as to prevent the use of the streets by other modes of conveyance. If it does not suit the public coffers or the public convenience that the city should lay rails for the free use of the public, it follows from the premises that the city has the prerogative of selling the right-of-way, for a specified time, to one or more persons, who shall lay rails and have the privilege of running cars, drawn by horses or mules, according to a tariff fixed by the common council. This does not impede the ordinary mode of use; promotes trade; unites distant parts of the city; benefits the health of citizens by enabling them to live beyon d the crowded thoroughfares; and is not an alienation or appropriation of a portion of the public streets to private uses.”
It is unnecessary in this case to decide more than that the plaintiff was rightfully occupying the streets with its track. We need not affirm the validity of the ordinance in all respects. It is enough that it gave express permission to the plaintiff to occupy the street with its railway. Whether the council could, under the powers which it then possessed, grant an exclusive right to the plaintiff, whether it could give to the plaintiff a vested right for a series of years, whether it could bind the city by the attempted provision in respect to the purchase of the railway after the expiration of twenty years, are matters which are unnecessary for us to determine, and concerning which we therefore express no opinion.
All we decide is, that the city had the power and did give the plaintiff permission to occupy the streets with its railway track; that such railway track was therefore not an obstruction, and could not be disturbed wantonly by a stranger. The consent given to the defendant to lay its track through the streets of the city was not a revocation of the permit given to plaintiff; nor did it authorize the defendant to interfere unnecessarily with the existing track, or its use by the plaintiff.
We think, therefore, that the court erred in its conclusions, and that the right of defendant was not paramount to that of plaintiff. We do not think that it follows from this, however, that the order of the district court should be reversed. The order was made on an application for a preliminary injunction, and while it appears that the plaintiff offered evidence tending to prove and establish as a fact that by the use of a mechanical contrivance of moderate expense the crossing of the two tracks might be made without serious inconvenience to either, yet there was no finding of fact made by the court in respect to this matter; and perhaps the full testimony, which it is not' pretended is preserved in the record, may have overthrown plaintiff’s évidence in this respect. We think, therefore, that the case should stand for final hearing, and that at such hearing the court should make such order in regard to the crossing as will preserve to each party its right. We may not anticipate what the testimony will show. We think it may safely be affirmed that the defendant had a right to construct its track across that of plaintiff. In determining the manner of crossing, and the means that should be used to secure the most of safety with the least inconvenience to either party, the court will act upon full consideration of the testimony. Doubtless, the larger size, the greater weight, and the motive power of the ears drawn by steam will require more careful protection than is needed by the lighter horse cars, and a slight inconvenience in crossing must yield to the larger demands of safety. As to the expense of making such crossing, as it is for the benefit of de fendant, it should be obviously borne mainly, if not wholly, by it. As to how it should be made, we leave, as before said, to the determination of the trial court on the final hearing.
Another matter presented by counsel for defendant requires brief notice. It is claimed that the plaintiff was not a valid incorporation. Its charter is not set out in full, but obviously it was prepared under §6, chapter 23, Comp. Laws of 1879, and contains all the matters required by such section. The only question thereon that can be raised is under the third subdivision, which requires the charter to state the place or places where the business of the corporation is to be transacted. The charter names the streets in the city of Atchison, and adds these words:
“And also in such other places near to and adjoining said city of Atchison, and connected with such street railway in said city, as may be authorized or permitted in said county of Atchison, and across the bridge near the Missouri river, at said city of Atchison, and also in the county of Buchanan.”
Whatever- of indefiniteness there may be in these words, and whether the plaintiff would have authority to construct its railway outside the limits of the city of Atchison, need not be determined. The only question is, whether it was incorporated with power to construct and operate a railway in the city of Atchison. A corporation may be legally incorporated and yet not have all the powers which its projectors intend it should acquire and possess. We do not think that §7, ch. 23, Comp. Laws of 1879, applies to the incorporation of companies for the construction of street railways in the streets of a single city. It seems rather to refer to steam railroad companies, turnpike and plank-road companies — roads which are intended to connect cities and towns — for it provides that the charter shall state the places from and to which the road is intended to be run, the counties through which it is intended to be run, and the estimated length of the road.
We think, therefore, that for the purposes of this case the corporation must be considered as legally created. These are all the matters requiring notice; and for the reasons heretofore stated, the order will be affirmed.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Harman, C.:
This is an appeal by the state from an order granting defendant’s motion for new trial filed after he was sentenced upon his conviction by a jury of the offense of first degree robbery.
We first recite chronologically the pertinent facts.
On September 20, 1964, two men held up a Farha Red Bud supermarket in Wichita. Later, a complaint was filed charging appellee Lawrence Hemminger and his nephew, Harold M. Hemminger, with commission of this offense. After their arrest in Arizona upon other charges Lawrence and Harold were identified by two employee victims of the robbery from pictures and they were again identified by the two victims while incarcerated in Springfield, Missouri. (Harold was tried and convicted in March, 1968, for this offense, which conviction was upheld in State v. Hemminger, 203 Kan. 868, 457 P. 2d 141, cert. den. 396 U. S. 1045, 24 L. ed. 2d 689, 90 S. Ct. 696.)
February 10, 1970, appellee was convicted by a jury of the Red Bud robbery. February 13, 1970, he filed his motion for new trial. On March 12, 1970, this motion was heard and overruled. On March 17, 1970, the trial court sentenced appellee under the habitual criminal act to a term of not less than twenty nor more than forty-two years and appellee was thereafter committed to the state penitentiary pursuant to that sentence. At the time sentence was pronounced appellee stated he desired to appeal to this court and present counsel was appointed by the trial court to represent him. A journal entry formalizing the sentence was filed in the office of the clerk of the trial court on April 8, 1970. On April 9, 1970, appellee’s notice of appeal was filed in this court and docketed as case No. 46,067.
On April 14, 1970, appellee filed in the trial court an instrument denominated “Motion For Reconsideration For a New Trial” in which he asked for a new trial on the ground:
“That newly discovered evidence has been located in one Terry L. Houser, an employee at the Red Bud Farha Store on September 20, 1964, and attached hereto is his sworn affidavit stating that this defendant Lawrence Hemminger is not the man who perpetrated and committed the armed robbery.”
On April 28, 1970, the trial court conducted a further hearing at which it received the testimony of Terry Lee Houser, one of three employees who were held up at gunpoint in the Red Bud robbery. Appellee was not present at this hearing. The testimony of Houser was to the effect that, based upon his viewing of a photograph of appellee taken in 1967, appellee was not one of the robbers. The trial court continued hearing of the motion to June 22, 1970.
On May 22, 1970, appellee filed his motion in this court for an order remanding his appeal in case No. 46,067 to the trial court to hear a motion for new trial based on newly discovered evidence. On May 27, 1970, this court granted the motion.
On June 22, 1970, appellee having been ordered by the trial court returned from the penitentiary and being present, that court granted the motion for new trial. By way of questions reserved, the state appeals from that order (K. S. A. 62-1703, third). Meanwhile, upon application of the state, this court stayed the trial courts order granting a new trial pending disposition of the appeal upon its merits.
The questions reserved present for review the jurisdiction of the trial court to grant a new trial after having sentenced appellee, whether the Houser testimony was newly discovered evidence and whether due diligence had previously been used to obtain it.
We first consider the jurisdictional question. At the time the trial court heard testimony on the second motion for new trial the following colloquy in connection with fixing the date for further hearing as June 22, 1970, occurred:
“The Court: Now, we figured out calendarwise that I’m well within my 120 days, didn’t we?
“Mr. Hodge: Yes, Your Honor.
“The Court: Wasn’t it April 8 or something like that when the journal entry was filed?
“Mr. Hodge: Yes, sir.
“The Court: So, we have plenty of time.
“(Thereupon, the Court places a telephone call.)
“The Court: The 22nd of June at 9:30. Draw a motion and order setting it for trial — for hearing at that time and have Hemminger back. I think he has to be here when I make my order.
“Mr. Hodge: Yes, sir.”
In its comments the court may have had in mind the provisions of K. S. A. 1968 Supp. 62-2239 (essentially now K. S. A. 1970 Supp. 21-4603) authorizing a trial court to modify a sentence within one hundred twenty days after its imposition. However, appellee makes no attempt here to justify the court’s action under this statute, nor do we believe it applicable. The statute merely permits modification of a sentence — it does not authorize its vacation or the granting of a new trial.
K. S. A. 62-1603, in effect at the time appellee was convicted, authorized the granting of a new trial in criminal cases upon the ground of newly discovered evidence. For reversal the state relies on K. S. A. 62-1604, also in effect when appellee was convicted and sentenced, which provided:
“The application for a new trial must be made before judgment.”
The state simply contends the trial court lost jurisdiction to grant a new Rial once sentence had been pronounced and the defendant had commenced serving that sentence. We have so held in similar circumstances. In State v. Looney, 181 Kan. 402, 312 P. 2d 212, the appellant had been convicted of robbery by a verdict returned April 5, 1956. Thereafter he filed a motion for new Rial which was overruled April 12, 1956, and he was sentenced to the state penitentiary and duly committed to that institution. On May 29, 1956, he filed a second motion for new trial based upon newly discovered evidence, the alleged new evidence being the confession of a fellow inmate at the penitentiary that he had committed the robbery for which appellant had been convicted. The trial court determined it had no jurisdicüon to order a new Rial. This court’s ruling upholding the Rial court was summarized thus:
“1. An appeal in a criminal case from an order overruling a motion for a new trial on the basis of newly discovered evidence and a motion to set aside a verdict examined, and held:
“(a) The court had no jurisdiction after the defendant had partially executed his sentence to set a valid verdict and sentence aside.
“(h) The court neither retained nor had jurisdiction to order a new trial because the motion for new trial had been filed after judgment.
“2. The rule is well settled in this state that when a valid judgment and sentence has been rendered in a criminal case the court has no jurisdiction after the sentence has been executed, in whole or in part, to set it aside and impose a new sentence, even though the sentence be reduced and the court acts within the term, following Parks v. Armine, 154 Kan. 168, 117 P. 2d 586; State v. Carte, 157 Kan. 139, 138 P. 2d 429; State v. Nichols, 167 Kan. 565, 207 P. 2d 469.
“3. Following the Carte and Nichols cases, a defendant in a criminal case has the right under G. S. 1949, 62-1414 and 62-1603 to apply for a new trial on the grounds as provided by statute, but G. S. 1949, 62-1604 provides the application for new trial must be made before judgment.” (Syl.)
Appellee would avoid the impact of Looney by reliance on certain provisos in our code of civil procedure. First he points out that K. S. A. 1969 Supp. 60-259 (a), Fifth, authorizes the granting of a new trial for newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Next, he states that paragraph (b) of the same statute authorizes such a motion to be filed not later than ten days after the entry of judgment. Thus borrowing from the civil code appellee argues that because he filed his motion for new trial within ten days from the time the journal entry of his judgment and sentence was filed the motion was timely and tire trial court could entertain it. Appellee further cites K. S. A. 62-1414, in effect when he filed the motion in question, which provided:
“Verdicts may be set aside and new trials awarded on the application of the defendant; and continuances may be granted to either party in criminal cases for like causes and under the like circumstances as in civil cases.”
It is true, as contended by appellee, this court has held in particular instances that, by reason of 62-1414, the provisions of 60-259 are made applicable to criminal cases. For example, in State v. Collins, 204 Kan. 55, 460 P. 2d 573, we recently held that by reason of 62-1414 the provisions of 60-259 (g) relating to production of evidence upon the hearing of a motion for new trial were applicable to criminal cases. Noteworthy in considering the scope of this ruling is the fact the criminal code then contained no provision governing production of evidence upon hearing of a motion for new trial. The broad general rule contended for by appellee is not without limitation. Obviously, in a criminal proceeding a provision of the code of civil procedure may not prevail in the face of a contrary or inconsistent provision of the criminal code nor may it replace a specific provision in the criminal code. This was the rationale of the holding in State v. Appleton, 73 Kan. 160, 84 Pac. 753, as follows:
“Under section 210 of the criminal code (Gen. Stat. 1901, § 5652) [later denominated K. S. A. 62-1414] new trials may be awarded in criminal cases, . . . if such procedure is not inconsistent with other provisions of the criminal code.” (Syl. ¶ 1.) (Our emphasis.)
As already indicated, we had at the time in question a specific statute authorizing the granting of a new trial in a criminal case on the ground of newly discovered evidence (62-1603). But instead of the ten day time limitation for the filing of such a motion as found in the civil code (60-259 [b]) the criminal code specifically mandated that such motion be filed before judgment (62-1604). Looney construed this latter requirement to be jurisdictional and we see no reason why this construction should not control here. Under our former code of criminal procedure this court always held that a sentence became effective and a term of imprisonment commenced when sentence had been pronounced and the defendant had been delivered to the sheriff for execution of the sentence (State v. Nichols, 167 Kan. 565, 207 P. 2d 469).
Appellee further urges the trial court had jurisdiction by reason of certain provisions in our new code of criminal procedure which became effective July 1, 1970 (Laws, 1970, Chap. 129). He cites K. S. A. 1970 Supp 22-4602 which provides:
“Effect on pending actions. (1) The trial of any prosecution commenced prior to the effective date of this chapter, and proceedings incidental thereto, shall be governed by this chapter unless the defendant elects to be proceeded against under the law in force at the time the prosecution was commenced. Such election shall be made by the defendant in open court or in writing at or prior to the time of commencement of trial.
“(2) Appeals commenced prior to the effective date of this chapter shall be governed by the provisions of this chapter from and after its effective date.”
Appellee states he did not elect to be proceeded against under the old procedural code. He further directs attention to K. S. A. 1970 Supp. 22-3501 which authorizes the filing of a motion for new trial based on the ground of newly discovered evidence in criminal cases within two years after final judgment. He argues he is entitled to the benefit of the new procedural code which also repealed the old K. S. A. 62-1604. The argument overlooks the essential of jurisdiction — the power of a court to act at all on a particular question at a particular time. A court must have jurisdiction of the question which its judgment assumes to decide. (State v. Minor, 197 Kan. 296, 416 P. 2d 724). The new procedural criminal code does not retroactively supply jurisdiction previously wanting. More specifically, the provisions of K. S. A. 1970 Supp. 22-3501 authorizing within two years after final judgment the filing of a motion for new trial on the ground of newly discovered evidence have no application to criminal cases in which judgment was rendered prior to July 1, 1970. Hence the trial court on June 22, 1970, had no jurisdiction to entertain and grant a motion for new trial and we so hold. Having reached this conclusion it becomes unnecessary to consider whether the Houser testimony was newly discovered evidence or whether due diligence had been used to obtain it.
The trial court’s order setting aside appellee’s sentence and granting a new trial is reversed. The case is remanded with directions to vacate that order and to reinstate the sentence previously adjudged.
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The opinion o£ the court was delivered by
Schroeder, J.:
This is an appeal by the State Highway Commission in an eminent domain proceeding wherein it acquired a right-of-way for highway purposes on two tracts of land owned by the appellees at Manhattan, Kansas.
The points asserted on appeal are confined to rulings of the trial court on the admission and exclusion of evidence in proof of damages in an eminent domain proceeding.
On the 24th day of April, 1968, the State Highway Commission of Kansas (appellant) filed a petition in the district court of Riley County, Kansas, to acquire certain parcels of land in an area northwest of the city of Manhattan for highway right-of-way purposes in order to construct a cloverleaf interchange at the intersection of existing K-113 highway and Kimball Avenue. Included in the parcels taken were parts of two separate tracts owned by H. Alan Lee and his brother, Robert V. Lee, and their respective wives (appellees). One tract, hereafter called the “east tract,” was located in the southeast quadrant of the above intersection and contained 10.10 acres before the taking. The other tract, hereafter called the “west tract,” was located in the southwest quadrant of the same intersection and contained 16.80 acres before the taking. In the condemnation 4.67 acres were taken from the east tract, leaving a remainder of 5.43 acres, and 4.32 acres were taken from the west tract, leaving a remainder of 12.48 acres.
The court-appointed appraisers awarded $31,000 compensation for the taking in the east tract and $19,575 compensation for the taking in the west tract, making a total of $50,575.
The landowners appealed from the awards on both tracts. Thereafter, the court consolidated the appeals on the two tracts for trial, and the parties stipulated the tracts would be treated as separate units for valuation purposes, but the awards would be added to obtain the total award. Trial to a jury on March 19 and 20, 1969, resulted in a verdict for the landowners of $85,750.
At the pretrial conference the parties stipulated the date of the talcing was June 20, 1968.
Direct access was denied to K-113 highway both before and after the talcing. Various exhibits, consisting of maps of the city and the northwest part, including subdivision plats of the two tracts, were admitted in evidence without objection. These exhibits disclosed the two tracts to be irregular in shape, with even more irregularity caused by the talcing of the parcels condemned.
At the time of the taking both tracts were zoned residential but had not been annexed to the city. The city limits bordered on three sides of the tracts, all except the north. On the date of the taking there was no recorded plat on either tract, and there were no improvements on either tract, merely grass and trees. All expert witnesses agreed the tracts were ideal for residential construction, and this was the highest and best use for the property.
An odd-shaped unimproved tract adjacent to the north part of the east side of the east tract was owned by the First Christian Church. The west tract is bounded on the west by Wreath Avenue which runs in a north-south direction. Just west of Wreath Avenue is Ci-Co (meaning City-County) Park. South of the west tract and adjacent thereto is a 12-acre undeveloped tract owned by the Lundin brothers who are developers in this area. South of the Lundin tract is a new area vocational technical school.
The east tract is bounded on the east by a residential area which was platted and developed by the Lee brothers, appellees herein. It consists of eight additions which had already been platted in the Howenstine Addition. All additions conformed to the master plan developed by the Lees in 1959. Schwab and Eaton, consulting engineers, prepared the master plan. On January 28, 1968, approximately five months before the taking herein, the Lees went before the county planning commission with Howenstine Addition No. 9, the east tract here in question, and were denied permission to plat the tract which conformed to the 1959 master plan. Platting was denied solely because the state was planning to take more land for a cloverleaf at the intersection here in question. Never had the landowners been refused, nor had they had any trouble of any type in having their previous plats accepted. At the time of taking the Lees were building in Howenstine Addition No. 7. It was the practice of the appellees to build houses and sell the house and lot in a package deal. They seldom sold unimproved lots.
The Lees purchased the two tracts here in question in January, 1966, for $3,600 per acre, and since that time have made no significant changes in the property. The 1959 master plan showed 49 potential lots in the west tract and 30 potential lots in the east tract before the taking. After the taking the Lees platted the remainder of the east tract as Howenstine Addition No. 9, containing 10 residential lots and streets. They officially filed this plat about a week before the trial. Also platted after the talcing was Howenstine Addition No. 10, which adjoins the southeast corner of the east tract. No plat had been officially filed for the west tract at the time of taking or trial.
The landowners and the State Highway Commission in the trial of the case each called three expert witnesses. H. Alan Lee, one of the landowners, also testified as a valuation witness. In his opinion the total compensation for the taking should be $117,500. The other expert witnesses for the landowners gave valuation testimony ranging from $105,000 to $108,000 total compensation for the taking of the two parcels. The State Highway Commissions expert witnesses gave valuation testimony ranging from $37,950 to $51,595 total compensation for the taking of the two parcels.
There was testimony the development of the tracts of land in question was imminent not only because of the desirability of the lots, but because of the growth of Kansas State University, the establishment of the Grain Marketing Research Laboratory, employing 200 to 300 people, and the new McCall Pattern Plant, employing 300 to 400 people, all of which would significantly increase the demand for housing in Manhattan and in the rapidly developing residential area in the northwestern part of the city.
While the appellant specifies ten points of error on appeal, they resolve into two basic issues: First, did the trial court err in excluding evidence of the purchase price paid for the subject land by the appellees; and second, did the trial court err in admitting evidence on the value of an undivided tract of land by the income approach method. The appellant states the second question in the following language:
“Is it proper to value an unsubdivided acreage tract as though it were subdivided into lots?”
The foregoing two basic issues were raised by the parties at the pretrial stage of the proceeding. At the first pretrial conference the trial court tentatively indicated what its rulings would be on these questions, but it gave the parties an opportunity to submit briefs. Thereafter a second pretrial conference was conducted, and the court finalized its pretrial order.
The trial court ruled that the purchase price of the two tracts of land in question, purchased by the appellees in January, 1966, for $3,600 per acre, approximately two years and five months prior to the taking, would not be admissible in evidence as a comparable sale.
In so ruling the trial court assigned two basic reasons. It said:
"... I think the court can take judicial knowledge of the localized conditions, I think which are of general notoriety in the community and that is the northwest part of town has been a rapidly developing area in the last two or three years and that I would say within the past year that a road was constructed from the old U. S. Highway 40 north up toward the dam. [Tuttle Creek Dam and Reservoir.] So I don’t feel that what the landowner paid for the land in question in this case is relevant to what the actual market value of that land is. . . .”
The other reason was stated by the trial court in overruling the appellant’s motion for a new trial:
. . But the court felt this, and has always felt that the purchase price of property paid by a landowner, whose property is being condemned by a public authority, that purchase price should not be admitted into evidence for the reason that it raises a collateral issue of how much profit should be awarded this landowner, or did he make a good bargain. . . .”
At the trial the appellant was precluded from cross-examining the appellee, H. Alan Lee, concerning what he paid for the two tracts of land in question. The appellant also offered to prove that both tracts were purchased in January, 1966, for $3,600 an acre, but the court adhered to its prior ruling and refused to admit this evidence.
In its motion for a new trial the appellant alleged abuse of discretion on the part of the trial court in refusing to admit evidence of the purchase price paid for the two tracts in question.
We have been cited to no Kansas cases on the point and our research has not been fruitful.
An extended annotation in 55 A. L. R. 2d 791 discloses other jurisdictions generally hold that evidence of the price paid for condemned real property on a sale prior to the proceedings in which condemnation is sought is generally admissible in such proceed ings, where the prior sale is bona fide, voluntary, not too remote in point of time, and if conditions of the property and surroundings are sufficiently similar to those on the date of the taking. Yoder v. City of Hutchinson, 171 Kan. 1, 10, 228 P. 2d 918, tends to support this rule.
Basically, the admissibility of such evidence is determined by the same rules as are applied to determine the admissibility of evidence pertaining to the purchase price of specific tracts of neighboring land in an effort to establish the fair market value of the tract of land condemned.
Prior to the new code of civil procedure an expert witness was not permitted in a condemnation action to testify on direct examination concerning the purchase price of a specific tract of neighboring land. This was not a proper method to prove the market value of the land subject to condemnation. The rule then was that in condemnation proceedings opinions as to the value of property should be confined to the property in question, unless on cross-examination, for the purpose of testing the knowledge and competency of the expert witness, the value of neighboring land was inquired into. (Luecke v. State Highway Commission, 186 Kan. 584, 352 P. 2d 454, and cases cited therein.)
The new procedural act in eminent domain proceedings also became effective January 1, 1964, when the new code of civil procedure became effective. Under the provisions of K. S. A. 1970 Supp. 26-508, an appeal taken from an award in a condemnation action “shall be docketed as a civil action [in the district court] and tried as any other civil action.” (The 1968 amendment by the legislature did not change this provision. See K. S. A. 26-508.)
The new code of civil procedure incorporated Article 4, which is the uniform code of evidence, and it is thereby made applicable to the trial of condemnation actions.
Now, under the rules of evidence, K. S. A. 60-401, et seq., an expert witness, on direct examination, may testify as to the purchase price of specific tracts of neighboring land in a condemnation proceeding, provided the evidence is relevant. This was established in City of Wichita v. Jennings, 199 Kan. 621, 433 P. 2d 351.
Under K. S. A. 60-407 all evidence is admissible if it is relevant to the issue being investigated. This provision is said to have abolished the exclusionary rules of evidence existing prior to die passage of the new code of civil procedure. In Jennings the court said:
“As all exclusionary rules were wiped out and none were reinstated as to the use of the purchase price of a specific tract of neighboring land to prove value, we are forced to conclude that the legislature intended to do away with the exclusion.
“It must be understood, however, that such evidence must present the purchase price of a sale of comparable land which was not so remote as to time and distance as to be irrelevant. The determination of this fact is to be left to the sound discretion of the trial court. Most of such factors go more to the weight to be given the testimony than its admissibility.” (p. 625.)
The Jennings case clearly suggests that condemnation cases in which exclusionary rules of evidence were applied prior to the passage of the new code of civil procedure are no longer reliable. Therefore, a review of condemnation cases decided prior to January 1, 1964, applying exclusionary rules of evidence on points here asserted, will not be undertaken.
Upon the foregoing authorities the rule to be applied, on the point here under discussion, is that evidence of the price paid for condemned real property on a sale prior to the proceedings in which the condemnation is sought is generally admissible in such proceedings, where the sale is bona fide, voluntary, not too remote in time, and if the conditions of the property and surroundings are sufficiently similar to those on the date of the talcing. Whether such evidence is relevant depends upon a determination of the foregoing factors which lie within the trial court’s discretionary powers.
Thus, whether the purchase price paid for the condemned property in the instant case was so remote in time as to be irrelevant because of changed economic conditions and surroundings is a matter resting within the sound discretion of the trial court. Absent an abuse of the exercise of such power of discretion, the determination made by the trial court will not be set aside. (Yoder v. City of Hutchinson, supra.)
In United States v. 69.67 Acres of Land, Etc. (E. D. N. Y. 1957) 152 F. Supp. 441, the court in rejecting the purchase price paid only two years prior to the appropriation stated:
“Nor does it seem that reliance should be had upon the purchase price paid for the latter in 1952 of $750 per acre. During the two year interval that elapsed until the talcing over, there was opportunity for a considerable increase in value and it is the belief of this Court that such indeed took place. . . .” (p. 444.)
In Knollman v. United States (6th Cir. 1954) 214 F. 2d 106, the court stated that it was the trial judge who knows the community, knows the areas of development, and is able to take judicial notice of expanding city limits.
The appellant contends the property here in question was outside the city limits on the date of the purchase and on the date of the taking, and that it had not been officially platted. Whatever relevance these facts may have in other cases, they have little, if any, relevance to the facts in this case. The landowners, in their natural development of the Howenstine Addition, were ready to begin development of the condemned tract. On January 28, 1968, five months before the taking, they requested the Riley County Planning Commission to accept the plat of the condemned east tract. The plat submitted was identical to the preliminary master plan of the Howenstine Addition that was developed in 1959, just as eight previous plats conformed to the master plan. Only by administrative fiat of the County Planning Commission were the landowners denied platting because the state might want a cloverleaf at the particular intersection in question to handle the traffic from the Kansas State University’s new football stadium that was conceived. The new stadium was completed and ready for use in 1968.
The appellant also contends the condemned tracts were unimproved land and located in an area of residential development. It is gleaned from the record that the court took judicial notice of changed conditions concerning which the expert witnesses in the case later testified. All but 5 of the 69 lots in the Keen Addition had been sold by June 20, 1968. All of the 24 lots in the Blue Hills Addition had been sold by June 20, 1968. The 52 lots in Randolph Hills Addition, immediately south of Howenstine Addition, were sold in two and one-half years beginning in September, 1966, through Februaiy, 1969. The Westloop Shopping Center located immediately south of the Gaslight Addition consisted of a Dillon grocery store and T G& Y variety store in January, 1966. In June, 1968, there was a large Tempo store, drug store and many small shops which made Westloop a large regional shopping center. There had also been three major apartment complexes constructed creating over 350 living unts. Ci-Co Park, and the K. S. U. football stadium had been constructed. All of the land north and west of the condemned tract had been purchased by land development companies. No property was available to the north of Manhattan for several miles because it was all owned by Kansas State University and used for various purposes, including agricultural experiment station purposes.
The mere fact that the two tracts of land in question were not developed by the Lees prior to the date of the taking does not mean that the character of the land had not changed substantially in value.
In view of the foregoing facts and circumstances, concerning which the trial court was entitled to take judicial notice, we cannot say the trial court abused the exercise of its power of discretion by excluding from evidence the purchase price paid by the landowners for the tracts in question almost two and one-half years prior to the date of the taking.
The collateral issue which gave the trial court some concern— that admitting the purchase price changes the issue from one of just compensation to how much profit the landowner should receive— received recognition in Department of Pub. Wks. & Bldgs. v. Gieseking 108 Ill. App. 2d 105, 246 N. E. 2d 707.
Even assuming the purchase price paid by the Lees was admissible in evidence, an additional fact discloses the appellant herein was not prejudiced by the exclusion of the purchase price paid for the tracts in question. The purchase price of a 12-acre tract purchased by Vincent Lundin in March, 1966, for $3,600 an acre was the same price that the landowners paid the Howenstines in January, 1966, and was placed in evidence by the landowners. The 12-acre Lundin tract was immediately adjacent to and on the south of the west tract herein and in all other respects concerning terrain, location and condition of the property similar to the tracts here in question. The jury had an opportunity to consider a good comparison and determine whether the price of real estate had increased in value from $3,600 an acre over the intervening period of two years and three months.
Did the trial corut err in admitting evidence of value on tracts of land, which had not officially been subdivided, on a lot basis as well as on an acreage basis?
The statement of the foregoing question by the parties is at best confusing. Fundamentally, it pertains to the use of the income approach, also known as the development approach, used by the expert real estate witnesses to arrive at their opinion concerning the value of a tract of land.
On this point the trial court by instruction No. 10 instructed the jury as follows:
“Some questions were asked of witnesses relative to sales and purchases of property, including prices paid therefor. Prices paid or the consideration for the sale or transfer of the same or similar and comparable property or interest in property reasonably near in time to the date of taking on the open market are evidence of fair market value. Market values are not, however, determined by exceptional sales or noncomparable sales.
“In this case the landowner owns 26.90 acres and at the time of the taking it was not platted and developed into lots. The State Highway Commission condemned 8.99 acres of this unit, leaving a remainder of 17.91 acres. Evidence of lot sales was permitted in this case for the limited purpose only of assisting you in determining what the fair and reasonable market value of the landowner’s unit was before the taking and the value of the remainder after the taking, and such potential development of this acreage into lots may be considered by you in determining the amount of your award.”
While the appellant makes no objection to instruction No. 10, it contends the instruction did not go far enough. As a result it submitted a requested instruction which reads:
“Certain testimony has been given in this case relative to the average price at which platted lots have been selling in different subdivisions in Manhattan. Lot sales may not be considered as comparable sales in the determination of market value of unplatted acreage but may be considered only as evidence of the expected income from sales of lots.”
The trial court denied the requested instruction, and in our opinion the appellant was not prejudiced by such ruling in view of the evidence developed at the trial and the instructions given.
The income, or development, approach used by the expert real estate witnesses in the trial of this case was the subject of two extended pretrial conferences. The trial court in stating the permissible approach to counsel for the respective parties recognized the development approach used by real estate appraisers to determine real estate values on developmental property such as the two tracts in question. In this connection the trial court indicated it would permit testimony of comparable lot sales. At the second pretrial conference the following colloquy between court and counsel occurred:
“The Court: . . . now if he wants to test the knowledge of the appraiser and ask him about any specific, I think you can do that, not going into detail, I don’t think you need to go into more than several specifics, but I think the idea is to see that he has examined the lot sales and in this particular subdivision and ascertain knowledge as to what the general average price of the lots are and show that this subdivision is somewhere in the proximity and comparable to this acreage which has been purchased and to be subdivided. So that would be my ruling as to the manner in which it’s presented. We’ll have to wait until it’s actually presented in court to make any specific rulings, but I think we have a general understanding as to how it should be presented do we not?
“Mr. Green: Yes, sir.
“Mr. Dodderidge: Yes Your Honor and I think our appraiser does go primaiily to the point whereas often seems to happen in these cases where an appraiser wants to take what one lot will sell for and multiply by the total number of lots that you could develop a tract into and say well that’s the market value and if presented in that manner we would object.
“The Court: If he gave an opinion like that, if that was all that was asked of him and he was going to give an opinion, I imagine the court could consider an objection. As I say he’s got in addition to examination of sale prices, I think an appraiser would have some detailed knowledge of development costs to be properly qualified.” (Emphasis added.)
The supplemental pretrial order entered by the trial court made the reporter’s notes of the proceedings in the pretrial conference and a transcript thereof a part of its supplemental pretrial order.
On instructions counsel for the appellant at the pretrial conference said:
“. . . we would request that the jury be instructed that the lot sales can only be considered for the purpose of showing what lots would sell for in this area and not as evidence of market value of raw acreage. In other words we think the lot sales go to show the gross income that could be obtained from the sales of these lots, this would have to be discounted.”
Therefore, as we view the pretrial order counsel for the respective parties agreed that it was proper to submit the case to the jury and examine their expert witnesses on the income or development approach.
All three of the landowners’ expert real estate witnesses were examined and used the development approach to justify their opinions concerning the valuation of the tracts condemned, and the appellant’s counsel cross-examined them on such theory.
Two of the expert real estate witnesses called by the appellant were first examined on the market data approach in arriving at their valuation tetstimony. They were then examined on direct examination by their own counsel on the development approach to show the similarity of the results obtained by using the two methods of valuation.
The concern expressed by counsel for the appellant at the pretrial conference was that an expert real estate appraiser, after ascertaining the average selling price of the lots in a comparable tract of land, would multiply the total number of lots by such average price per lot and submit the result as the market value of the tract.
An objection made by counsel for the appellant at the trial to the testimony of H. Alan Lee, one of the landowners, was in the form of a motion to strike his testimony. The challenge was based upon the ground that the witness had taken the objectionable approach, basing his valuation strictly on the average of lot sales and multiplying this figure by the number of lots taken.
The trial court sustained the motion but thereafter permitted counsel for the appellees to rehabilitate the witness and changed its ruling.
On direct examination Mr. Lee testified as to his experience and went into the expenses in developing other subdivisions in the Howenstine Additions. He specifically covered the costs of engineering, recording, the time delay, and immediate cash outlay of bringing utilities and water and sewer lines to the site. He then gave his opinion as to value as of the date of the taking. On the east tract the value before the taking was given at $87,000 and the value after the taking at $20,000; and on the west tract the value before was given at $165,000 and the value after at $114,500. The total difference was $117,500. He summarized his costs at approximately $100 per lot to develop the acreage into lots, including survey and abstract costs. He used a value figure of $3,000 per lot on the east tract and deducted $100 per lot costs, leaving a balance of $2,900 per lot for a total of 30 lots before the taking.
Through this witness exhibits of the tracts platted were introduced into evidence, showing the original number of lots in the tracts and the number lost by the taking.
He valued the lots on the west tract at $3,500 and multiplied that figure by the number of lots lost to arrive at the approximate damages he experienced.
On cross-examination he testified:
“Q. Talking about the east tract, now, the land on the east side here, first of all I will ask you this, upon arriving at your before and after figures in this particular matter did you arrive at these figures by determining the — by considering what this land would sell for in acreage form, raw acreage?
“A. Absolutely not. I had no idea, when I purchased it of ever selling it for acreage, for development as acreage. Whenever you develop, it develops out into lots.
“Q. And you based your testimony strictly on lot sales?
“A. I certainly did, it’s an orderly procession of our development.” (Emphasis added.)
At this point counsel for the appellant moved to strike the testimony of Mr. Lee as to the values and the trial court sustained the motion on the ground that counsel failed to develop the valuation in the way that it should have been developed. The trial court, after giving counsel for the appellees an opportunity to rehabilitate the witness, heard considerable argument out of the presence of the jury and ultimately stated:
“. . . In other words, we don’t want to try it on a lot basis, it’s on the unit. You can rehabilitate your witness if you want to, if he testifies in establishing the value on a unit he takes into consideration how many lots it would have developed into-, and establishing the value of the remainder he takes into consideration how many lots he could develop on the remainder that would be all right.”
After further argument the court ultimately stated:
“. . . To tell you the truth, it’s simply a matter of semantics but there’s been an objection here and I think we have to proceed in establishing the value that one of the factors to be considered in setting the value on the unit is how many lots can be developed and how many left in the remainder.”
In concluding the court stated:
“I believe he would have to testify as to the fair and reasonable market value of what the land would be worth not fe> him, but between a willing buyer and willing seller. I think you ought to recall your witness and rehabilitate him in the lines the court suggested.”
On further examination Mr. Lee then stated he understood that on the date of the taking it was simply raw acreage and unplatted land the State Highway Commission was taking, and in arriving at his damages he took into consideration the figures he had testified to.
Further cross-examination of Mr. Lee by counsel for the appellees went into the costs that would be encountered in the development of these tracts into lots.
It has been held that a landowner is a competent witness to testify as to the value of his property. (Urban Renewal Agency v. Tate, 196 Kan. 654, 414 P. 2d 28.) The experience of H. Alan Lee, one of the landowners herein, as a real estate developer in the city of Manhattan was sufficient to qualify him as an expert in the valuation of developmental city real estate. Carl V. Lundin was qualified as an expert valuation witness in the trial of this case on the same basis, as a developer of real estate in the city of Manhattan, Kansas. (See Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539.)
Recently this court has held in City of Bonner Springs v. Coleman, 206 Kan. 689, 481 P. 2d 950, that once a witness has qualified as an expert, a court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters can only be challenged by cross-examination testing the witness’ credibility. This rule was reasserted and affirmed in Morgan v. City of Overland Park, 207 Kan. 188, 483 P. 2d 1079, with the qualification that:
“The responsibility of defining the extent of compensable rights is in the courts and if it is established that value testimony was based on noncompensable items or the credibility of the testimony is otherwise destroyed the testimony should be stricken in response to a proper motion.” (Syl. ¶ 3.)
In view of the foregoing authorities and evidence submitted by the expert witnesses of the appellant, which we shall presently disclose, we cannot say the trial court erred in permitting the testimony of Mr. Lee to stand. Taking Mr. Lee’s testimony as a whole, it follows the income approach in valuing the tracts in question.
The appellant subtly attempts to shift its position on appeal by attacking the income approach in the valuation of the landowners’ property — a position inconsistent with the theory upon which the case was tried. Here the appellant is bound by the theory upon which the case was submitted to the trial court with its acquiescence. (See Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132, and authorities cited therein.)
The appellant argues on the date of the taking the tracts of land in question consisted of idle acreage awaiting future development. The substance of the appellant’s attack upon the income approach in valuing the property is based on speculation. In many of the cases cited by the appellant development of the land was not imminent, and the use of the development approach in valuing the property was denied as speculative because development of the condemned land was uncertain. K. C. & T. Rly. Co., v. Splitlog, 45 Kan. 68, 25 Pac. 202, falls in this category and involves other factors which make it distinguishable.
The appellant also relies on cases from other jurisdictions holding that the expert real estate appraisal witness may not testify as to speculative value of the land based upon the aggregate value of all possible lots into which it can be subdivided less costs of development, since the expenses connected therewith make it too uncertain and conjectural. (Northern Ind. Pub. Serv. Co. v. McCoy et ux., 239 Ind. 301, 157 N. E. 2d 181; and Barnes v. Highway Commission, 250 N. C. 378, 109 S. E. 2d 219.) Cases cited by the appellant which seem to completely reject the income approach in appraising real estate taken on condemnation where the property is suitable for development are: Board of County Com'rs v. Vail Associates, Ltd.,_Colo._, 468 P. 2d 842; and State Highway Commission v. Reeves, 8 N. C. App. 47, 173 S. E. 2d 494.
It must be conceded if it is established from all the facts and circumstances in a given case that future development of the condemned tract is speculative, valuation of such tract based upon the development approach may be erroneous. If develoment, however, is not speculative but imminent, as here, then the development approach for valuing the property is a fair and reasonable approach.
The importance of our decision herein lies in the application of the income approach used in the valuation of condemned property which is imminently ready for development.
The expert real estate appraisal witnesses who testified in this case, and particularly those called by the appellant, recognized the three generally accepted approaches used by appraisers in valuing real property: (1) The market data approach which is based upon what comparable properties had sold for; (2) the depreciated replacement cost or cost approach which is based upon what it would cost to acquire the land and to build equivalent improvements less depreciation; and (3) the income approach or capitalization of income which is based upon what the property is producing or is capable of producing in income.
The cost approach was said to be inapplicable on the facts in the present case because there were no improvements on the tracts of land taken in the condemnation proceeding.
The income approach was recognized by this court more than a decade ago in Eisenring v. Kansas Turnpike Authority, supra, and has subsequently been followed. The special circumstances under which Eisenring was applicable were recognized to exist by some of the expert witnesses in this case — that the income approach is the best method of determining value when it is a known factor and there are no other comparable real estate sales available. On the facts in this case the most recent sales of developmental tracts of real property on an acreage basis similarly situated to the land here condemned occurred more than two years prior to the taking herein. These properties consisted of the Lundin tract which sold for $3,600 per acre in March, 1966, and the Viking Investment Company sale a couple of years earlier for $4,000 per acre. Under the facts and circumstances heretofore discussed, these sales were rather remote in time and of questionable probative value.
Here the expert real estate witnesses for the landowners and the condemner were in general agreement that 20 potential lots were taken from the tract on the west side of the highway and 15 were taken from the tract on the east side. Further, there was no dispute but what the land being acquired was located in the most valuable developing area in the Manhattan community. It was agreed by all the experts that the land being taken was as valuable or more valuable than any other in the area for subdivision purposes. Two of the expert witnesses for the condemner indicated that the value of the lots in the tracts here in controversy would be between $2,750 to $3,500 per lot. They further agreed that approximately three lots could be secured from each acre after due consideration was given to the fact that part of the land would have to be adapted for streets, alleys and other such uses. Generally the expert appraisal witnesses agreed that lot values were in the neighborhood of $3,000 per lot. They further agreed that utilities were available to the site and in applying the development approach, no cost need be considered for extension of utilities to the site. They were in agreement that there was a substantial demand for residential lots in the Manhattan area, and the demand was increasing due to the expansion of Kansas State University, and because of other commercial and industrial activity in the community.
While the appellant strenuously objects to the use of the development approach, the appellant produced two witnesses who readily acknowledged the existence of the development approach and demonstrated graphically how it applied to the circumstances of this case. The record clearly establishes that expert land appraisers acknowledge the existence of, and employ, the development approach in valuing subdivision land. It is a well established approach employed by appraisers.
The appellees had been financing internal improvements such as streets, sanitary sewers and water lines by the use of special benefit districts. This is a technique commonly employed by subdivision developers. K. S. A. 12-6a01, et seq., provides statutory authority for the formation of these special benefit districts. This permits the assessment of the costs of these internal improvements against the lot holders. It was agreed by all expert appraisal witnesses that the appellees, and other developers in the area, have been using this technique. There was no expense to be considered in the develop ment approach for either off-site improvements or internal improvements.
A graphic demonstration of the development approach by Richard Kessler, one of the appellant’s expert land valuation witnesses, is as follows:
“DEVELOPMENT APPROACH ‘BEFORE’
80 lots at $2,900.00 each................................. $232,000.00
Development Costs
Brokers & selling fee 10% ................... $23,200.00
Engineering & Abstract fee $100/lot.......... 8,000.00
Clearing & surplus hauling $85/lot............ 6,800.00
Taxes for 80 lots at $90 ea................... 7,200.00
Interest on investment in land at 6%........... 5,649.00
Profit 15% ................................. 34,800.00
Total expenses ..................................... -85,650.00
Adjusted gross from sale of lots......................... $146,350.00
Processing of Gross Income
Development period 7 yrs. (approx. 12 per year)
Interest rate 8%
Discount factor 5.206
14th of income per year is $20,907.00
Present value = $20,907.00 X 5.206 = .................. $108,840.00
DEVELOPMENT APPROACH ‘AFTER’
The same method used to obtain the “before’ value was also used to obtain the ‘after’ value pursuant to the new values shown below which reflect the reduced size of the property in the after condition and the shortening of the development period.
Approx. 40 lots left after taking
30 lots at $2,900.00 each
10 lots at $2,500.00 each
Development period 4 years (approx. 11 per year) resulting in changed discount factor.
Present value........................................... $57,330.00
Summary: (Development approach) (Market data approach)
Indicated ‘Before’ value ...... $108,840.00' ‘Before’.... $106,760.00
Indicated ‘After’ value ........ 57,330.00 ‘After’ .... 55,165.00
$51,510.00 $51,595.00”
Kessler used the market data approach and the income approach. The cost approach was said not to be applicable because there were no improvements on the property. In applying the market data approach Kessler considered the Lundin property and the Viking Investment Company sale. Using this approach he arrived at a difference of $51,595 for the total loss in market value for the taking of the two tracts in question.
On direct examination by the appellant Kessler then testified concerning the development approach, the starting point of which he said was the selling price of lots. He referred to the development approach as the income approach and testified that the purpose of using it was:
“Well, it has a two-fold purpose, particularly where you have a lack of a good market approach and it should be the approach, I would say, that a developer should use before he buys the property, because the end result of this indicates what he could afford to pay for — what he could afford to pay for a piece of ground in order to develop it in its raw state and by backing into it through a development approach, it’s the only way you can determine what you can afford to pay for the property. Now, in any case you can have an inflated market and cost and value are not the same thing and consequently the two should be used in conjunction with one another, and you would only place reliance on the development approach if you didn’t have a good market approach.”
He based his development approach on 80 lots or approximately 3 lots per acre in the “before” valuation. He used 40 lots in the “after” valuation. His reason for using 40 lots for the “after” value was given as follows:
“Because of the shape and nature of the taking on both sides it would create — first we have a loss in acreage and we have created more of an irregular shape than what we had in the original piece of property. As you reduce the size of the tract, your ability to create entrances where you want them, the ability to lay the lots out in an efficient manner become less and in each case I felt like we lost from eight to ten lots over here because of the narrow strip on the north and irregular shape, we narrowed it down at the bottom and we have something similar to this on the other side where we created more comers than they had before and they created some difficulty and we lost several lots in there that we probably wouldn’t have if the lot had been left in a larger size or rectangular shape.”
He explained how he valued the entire acreage before the taking by the following answer:
“Well, I used basically three lots per acre on the total acreage. We would have a total of eighty lots. Now this could be at the discretion of the engineer that lays the thing out or the developer. He has some control over this, he could have a few more than eighty lots, he could have a few less lots, depending on the type of market that he was selling to and the type of houses that he was building and I used two thousand nine hundred dollars a lot. Now we have in addition to the south we have quite a few lots that were sold to builders and individuals at two thousand seven hundred fifty dollars per lot and Mr. Lee is selling lots in the neighborhood of three thousand dollars to people who he is building homes for, and without question, I think, considering the value of the homes, which will run any place from twenty-five, twenty-six thousand and with maybe some in the neighborhood of close to forty thousand in that area, the majority of them will run in the neighborhood of around thirty thousand, and a ten percent land to building ratio would be considered a reasonable balance, so I think there’s no argument with the value in the range of three thousand dollars. Now, we are moving across from an area developed into a bare land area and I think in my case I downgraded these one hundred dollars per lot for no other purpose than the location is not as good and you don’t have the intimacy that you gain by having other houses around you. The other lots over in the Howenstine One through Eight would be a little more desirable than coming across the property line into this area, so I downgraded this one hundred dollars an acre and used two thousand, nine hundred dollars in the estimate value of lots. If you take that times two thousand, nine hundred dollars per lot, if you sold all of the lots, you would have two hundred thirty-two thousand dollars, that would be our expected income off the entire sale of the entire property.” (Emphasis added.)
He then explained the development costs that must be deducted, which were heretofore illustrated. He went through his computation step by step and explained the discount figure in his computation by testifying:
“. . . Now, we have the problem of what we call processing the income from this and this is done by using a discount rate or establishing the development period and applying a discount rate from standard tables that bankers have. . . .”
Another expert witness on land valuation testifying for the appellant was David W. Craig. He testified the best method for appraising vacant land was the market data approach if you can find sales of similar properties. He used the market data approach and checked it with a development approach. In this connection he testified:
“Well, I think the price that you can get for lots, if discounted, is going to indicate the maximum that you can pay for raw acreage to use for single family purposes. I think it is one of the approaches to the valuing a vacant tract, the development approach, and to do that you have got to estimate what lots would sell for.”
He was asked on direct examination whether in appraising raw land it was an accepted appraisal practice to multiply the number of lots by the dollars per lot. He gave a negative answer and explained it by stating:
‘WeE, the only way that that would be a true indication of value would be to assume that you could seE however many lots that you had at a price on that day with no expenses. I mean if that were true, why then it would be an accepted method.”
He then testified concerning the expenses that were encountered including expense connected with selling lots, engineering, abstracting and taxes, and he said:
“. . . in a true subdivision you have got a profit for the developer or subdivider to take into consideration.
“Q. And in addition to that would you have to apply — in addition to deducting these expenses, would you have to apply some sort of a discount factor to reflect the fact that your money or capital is tied up in this property?
“A. Yes, you will have to discount the money you are going to receive, different times, year by year, to present value because you are valuing the land today.”
On cross-examination he testified:
“I think $2,500 to $3,000 is the range of lot prices in Manhattan. The east and west tract together should be able to produce very close to 79 lots. My investigation revealed that utilities would be available up to the two tracts at no cost to the developer. In my opinion you must consider a 10% real estate commission whether Mr. Lee sells the lots himself or not. It will take about six years to complete the Lee Development area consisting of seventy-nine lots. My development computations would take a different color if the six years is not correct.
“In my opinion it would be no problem to plat the land. The fact the land is unplatted really isn’t a factor in my evaluation of it. Supposing that the land were subdivided, the utilities were laid up, lots were selling from $2,750 to $3,500, and considering all activities in the Northwest part of town, I think it is unrealistic to assume that someone might offer to buy all of the lots today and pay full price for them without any discount.” (Emphasis added.)
The landowners’ evidence disclosed that the Lee brothers have been building and selling houses without benefit of realtors, and that there would be no occasion for them to pay any real estate commissions. Costs of procuring an abstract, surveying costs and the costs of preparing a plat were said to be minimal. Processing a plat before the appropriate regulatory bodies was revealed to be a simple and uncomplicated procedure, and the filing of a plat required no particular skill or experience. In the development of the Howenstine Additions Nos. 1 through 8, the Lees constructed from 130 to 140 houses in these eight subdivisions.
Carl V. Lundin, an expert witness for the landowners, who owned the Lundin property to the south of the west tract here in question, was engaged in the home building business with his brother for the past twenty-four years. In establishing the fair market value he viewed the tract as a whole area, but he said in buying any land the first thing you think about is the number of lots you can get out of it. In his opinion the tracts in question as of the date of taking could have been developed within four or five months. This would be the time it would take to get the streets, sewers, etc., in that were needed. His estimation of the approximate cost to the developer of getting a plat from a tract of ground to a subdivided plat per lot would not be over $100 per lot. In his opinion the tracts in question were not worth any less because they had not been platted than if they had been platted as of June 20, 1968, the date of the taking. The reason he assigned for this was:
“Well because it’s just one of the best areas up there and it’s — you can’t buy better lots anywhere in any direction of Manhattan with less expenses to develop it. All building is going that way and well that’s — I don’t know if that’s answered the question.”
Mr. Lundin testified he paid $3,600 per acre for his tract approximately two years and three months prior to June 20, 1968. He said the lots on his land were worth $3,000 at the time of the taking. He said his land had increased that much in value in just two and one-half years because there was no more land for sale in that area, a factor which he described as having a significant impact on the value of the land. In the opinion of Mr. Lundin the value of the Lees’ east tract before the taking was $90,000 and after the taking $25,000, leaving a difference of $65,000. The value of the west tract before the taking was $147,000 and after the taking $105,000, leaving a difference of $42,000, for a total of $107,000 damages.
Basically, the difference in value arrived at by the expert real estate witnesses who testified for both the landowners and die condemner using the development approach, was in the expense factors to be deducted in the development and sale of the property. While the appellant’s witnesses contended it would take six to seven years to develop these tracts and complete the sale of the lots, it was the opinion of the expert witnesses testifying for the landowners that the time element in disposing of all the lots would be relatively short if the lots were placed on the open market.
In the opinion of the landowners’ expert witnesses development of the tracts in question was imminent and costs to the landowners in development of the tracts would not be more than $100 per lot.
This court in City of Wichita v. Jennings, 199 Kan. 621, 433 P. 2d 351, has recently held that photographs and drawings are admissible in a condemnation action to show a possible scheme of development of land for its best and most profitable use, quoting 5 Nichols on Eminent Domain (3rd Ed.), § 18.11 [2], at p. 157, as follows:
“ ‘. . . Thus, evidence of the market value of the property for the best and most profitable use to which it may be devoted in the reasonably near future is admissible.
“ ‘As bearing upon these issues the owner may offer a plan showing a possible scheme of development for the purpose for which it is most available, provided it appears that the likelihood of demand for the property for that purpose is such as to affect market value. . . .’ ” (p. 626.)
On facts similar to those here presented several cases support use of the development theory. In Commonwealth v. McCready (Ky. 1963) 371 S. W. 2d 485, the court said:
“Appellant’s second contention that appellees’ witnesses were allowed to put a developed subdivision lot value on an undeveloped tract is equally without merit. This concerns the 11.4 acres. The witnesses testified to the value of the land for subdivision purposes and then made appropriate allowances for developing it. One witness, in describing how he arrived at a value, said that he took into account the number of lots that could be produced, comparable sales in similar subdivisions, allowance of a reasonable time in which to sell the lots, and cost of development of the subdivision, including installation of utilities and paved streets. The procedure used by appellees’ witnesses was similar to the procedure used by appellant’s witnesses, who treated the land as subdivision lots instead of as farm land. The witnesses testified to varying values. The jury was thus left to fix a value based on the testimony heard. There being no showing of bias or prejudice, the verdict should stand. . . .” (p. 487.)
The Court of Appeals of Maryland in State Roads Comm. v. Halle, 228 Md. 24, 178 A. 2d 319, indicated it was appropriate to employ the development approach, saying:
“We are unable to agree. We have seen above, from appellant’s witnesses as well as those of the appellees, that development costs can be estimated with considerable accuracy, and they are an important, if indeed not a vital, factor in determining the price that a prospective purchaser will pay for an undeveloped property. Evidence of comparable sales in eminent domain proceedings is admissible either as primary evidence bearing upon the market value of the Subject property, or to support and bolster the opinion of an expert upon such market value, or both. . . .” (p. 32.)
On the facts in State v. Barrilleaux (La. 1962) 139 So. 2d 242, the development approach was held proper in a case where previously subdivided lots were taken. Other cases recognizing the development theory are State, Department of Highways v. Cobb (La. 1964) 169 So. 2d 419; Cuomo v. State of New York, 21 A. D. 2d 724, 250 N. Y. S. 2d 149; and Buena Park School Dist. v. Metrim Corp., 176 C. A. 2d 255, 1 Cal. Rptr. 250.
The appellant’s argument that the appellees in the trial of this case disregarded tract sales and merely aggregated the estimated values of fully subdivided lots which might be obtained, and passed this off to the jury as being equivalent to market value of the tracts, is not supported by the record. Both at the pretrial conference and at the trial the appellant acquiesced in the appellees’ method of valuation. Under the circumstances, it was the appellant’s obligation on cross-examination of the appellees’ expert witnesses to test the knowledge and competency of such witnesses to value the property by the development approach. (Morgan v. City of Overland Park, 207 Kan. 188, 483 P. 2d 1079.)
From all the evidence presented by the record it was abundantly apparent to the jury that development of the land taken by condemnation into homesites was imminent. Evidence on valuation of the land by the income approach was of sufficient certainty to permit the jury to ascertain the damages sustained by the landowners. On the facts in this case resort to the market data approach in valuing the property would have been more speculative and conjectural.
Here a developer contemplating purchase of the tracts in question would have used the development approach. Under these circumstances, where market data on recent sales of comparable property was not available, a potential purchaser would have applied the development approach in endeavoring to determine the fair market value of the land taken, and the law must recognize that fact.
It is apparent the jury awarded compensation substantially below the valuation testimony of the landowners’ witnesses but well within the range of the evidence. (Kansas State Highway Commission v. Roepke, 200 Kan. 660, 438 P. 2d 122.) The verdict reflects the jury gave due consideration to the cost and discount factors involved in the development approach pursuant to which the case was tried and the jury instructed.
The judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Fromme, J.:
This appeal is from orders denying two separate motions for post-conviction relief. (K. S. A. 60-1507.)
In 1965 petitioner was tried and sentenced on three counts of robbery He is now serving three concurrent terms of not less than 10 nor more than 21 years.
Since his incarceration he has carried on constant litigation in an effort to find some basis of error in his trial. His direct appeal to this court is reported in State v. Hacker, 197 Kan. 712, 421 P. 2d 40. Petition for writ of certiorari was denied by the Supreme Court of the United States. (Hacker v. Kansas, 386 U. S. 967, 18 L. Ed. 2d 119, 87 S. Ct. 1050.)
Petitioner has since filed two successive motions for post-con viction relief in the state trial court. Both motions were on the form prescribed by our rules. (Rules of the Supreme Court, Rule 121, 205 Kan. xlvi.) The first was filed on April 18, 1968, and denied on summary hearing. No timely appeal was taken from that order. The second motion was filed April 23, 1969, and it too was denied. By stipulation of the parties both orders of denial appear here in this appeal in an effort to bring further litigation to an end in one appeal.
In addition to the proceedings in state courts the petitioner has listed the cases filed in the federal courts. Cases No. H. C. 4033, No. L-101 and No. L783 were considered and relief denied by the United States District Court for the district of Kansas. Case No. 9564 was considered and relief denied by the Tenth Circuit Court of Appeals. The Supreme Court of the United States denied certiorari on the denial of relief by the Tenth Circuit Court of Appeals. (Hacker v. Crouse, 390 U. S. 1006, 20 L. Ed. 2d 106, 88 S. Ct. 1251.)
The two points relied on by petitioner in the present appeal relate to the admissibility of evidence during the original trial. His claims relate to trial errors. They are not listed as grounds for post-conviction relief in either of his successive motions.
A proceeding instituted under the provisions of K. S. A. 60-1507 which collaterally attacks a judgment of conviction should not be used as a substitute for a second appeal. (Lee v. State, 204 Kan. 361, 461 P. 2d 743.)
It has been further held that when a 1507 motion is filed setting out grounds for relief, the petitioner is presumed to have listed all of the grounds on which he desires to rely, and a second motion, in which additional grounds for relief are alleged, may properly be denied in the absence of some showing of unusual circumstances or intervening changes in the law. (Smith v. State, 195 Kan. 745, 408 P. 2d 647; Thomas v. State, 199 Kan. 459, 430 P. 2d 268.)
In addition the motions filed by petitioner contain mere conclusionary contentions without the nomination of witnesses.
Mere conclusionary contentions of a petitioner in such a proceeding under K. S. A. 60-1507, for which no evidentiary basis is stated or appears and no witnesses named, are not suffiicient basis for relief from the conviction. (Wolfe v. State, 201 Kan. 790, 433 P. 2d 260; Bundy v. State, 201 Kan. 793, 443 P. 2d 259.)
The orders of the district court denying relief on these motions are supported by the record and are proper.
However, this court is concerned with the seemingly endless piecemeal litigation which petitioner has carried on as an indigent defendant. We have examined the record and find no unusual circumstances or intervening changes in the law which prevented petitioner from being aware of and raising all of his alleged trial errors in the direct appeal of his case to this court. Some degree of finality in the criminal appeal process must be achieved to prevent endless piecemeal litigation in both the state and federal courts. The time consumed and wasted prevents the timely dispatch of business in the courts. Under the facts and circumstances appearing in this record the filing of the second successive motion constitutes an abuse of the remedy provided in K. S. A. 60-1507, and the district court would have been justified in dismissing the successive motion for abuse of the remedy as authorized in K. S. A. 60-1507 (c) and the rules of this court, Rule No. 121 (d), 205 Kan. xlv. The authority for dismissing successive motions on the ground their use constitutes an abuse of remedy was established in Cox v. State, 200 Kan. 198, 200, 201, 434 P. 2d 843 and may be found more recently in Lee v. State, (No. 46,181) 207 Kan. 185, 485 P. 2d 482. (See also Salinger v. Loisel, 265 U. S. 224, 68 L. Ed. 989, 44 S. Ct. 519, and Wong Doo v. United States, 265 U. S. 239, 68 L. Ed. 999, 44 S. Ct. 524.)
The orders appealed from are affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal from a judgment of the district court denying an award previously entered by the Kansas workmen’s compensation director.
The examiner who heard the evidence denied the claim on the ground that claimant failed to show by substantial competent evidence he suffered personal injury by accident arising out of his employment.
The director on review found claimant had suffered personal injury by accident arising out of his employment and entered a substantial award in claimant’s favor.
The respondents, appellees herein, appealed from this award to the district court, and the district court in reversing the director entered judgment against the claimant.
The claimant appeals.
Since the decision in this case is based purely on a procedural matter the facts concerning the merits of the claim are of little importance. Suffice it to say Mr. Willie G. Collins claims his back was injured in a fall on October 27, 1967, while working for the Kansas Milling Company.
Here claimant asserts he was denied the opportunity to be heard in the district court, in that he was not given an opportunity to have his cause argued by counsel before a decision was rendered reversing the director’s award. We are inclined to agree.
The workmen’s compensation act requires the district court to hear a workmen’s compensation appeal when the procedural requirements for such an appeal are complied with.
K. S. A. 1968 Supp. 44-556, in effect when the case was heard by the district court, provided:
“Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the director to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the director. Such appeal shall have precedence over all other hearings except those of like character, and shall be heard not later than the first term of said court after the appeal has been perfected.” (Emphasis added.)
We will first review the facts and circumstances leading up to the decision denying the award without benefit of argument.
The appeal was to the district court of Sedgwick County. Respondents’ attorneys were from Wichita. Although claimant had retained local counsel in Wichita, his counsel who was handling the case was from Topeka. The case was originally set for hearing in Wichita on October 10, 1969, and claimant’s Topeka counsel was notified. Then on October 6, 1969, claimant’s counsel was notified by telephone that respondents’ counsel had a conflict and he would arrange for a continuance of the matter. Notice of the new hearing date was to be given later. Claimant’s Topeka counsel consented to the continuance and wrote respondents’ attorneys in Wichita suggesting other dates for argument. A copy of the letter was mailed to the assignment judge. Claimant’s Topeka counsel heard nothing further until 1:30 p. m. on October 24, 1969, when he received a phone call from local counsel in Wichita. The matter had been set for hearing at 2:00 p. m. that same day. Local counsel was not prepared to attend and had no previous notice of the setting.
At 2:00 p. m. respondents’ Wichita counsel appeared before the judge in Wichita and made oral request for a continuance. The request was denied. The matter was then submitted to the court without argument and taken under advisement.
Shortly thereafter Topeka counsel called the judge to which the case was assigned and advised him that he had no notice of the setting, that he wanted to argue the matter before the court and that he requested the matter be reset for argument. No decision on this request was made or communicated over the phone.
On November 4, claimant’s Topeka counsel talked to the judge who was handling the case and the judge indicated no decision on the matter had been reached.
On November 13, 1969, claimant’s Topeka counsel received the following letter from the court:
“District Court Eighteenth Judicial District Division Number Six Wichita, Kansas
November 13, 1969
“Re: Collins v. Kansas Milling Co., el al C-17467
“Gentlemen:
“This is to advise you that I have conferred with Judge Howard C. Kline in regard to the last setting on the above-reference case, and he informed me that the parties were notified of the trial date. I am sorry if there was some confusion in regard to the time the case was set as I know it was not intentional on the part of anyone. As a result of the fact that the case was set it is necessary to proceed with a decision in regard to the same based upon the transcripts without oral argument of counsel. In order to make the record perfectly clear, Mr. Brainerd suggested that the matter be continued, but due to our crowded docket the case has to be disposed of without oral argument.
“After examining the transcripts and the file in this matter, I am adopting the findings of Lee R. Meador as the findings of this court. Based upon said findings it is the order of the Court that the Claimant did not show by a preponderance of the evidence that he suffered personal injury as alleged, and there is no liability on the part of the Respondent or Insurance Carrier to provide compensation or medical expense.”
The question presented to this court is whether the claimant should be afforded the opportunity to be heard and defend the award entered by the director.
The essential elements of due process of law in any judicial hearing are notice and an opportunity to be heard and defend in an orderly proceeding adapted to the nature of the case. (Rydd v. State Board of Health, 202 Kan. 721, Syl. ¶ 3, 451 P. 2d 239.)
In Richa v. Wichita Precision Tool Co., 190 Kan. 138, 373 P. 2d 201, we said:
“. . . We adhere to the theory that substantial justice is not done unless a litigant is given an opportunity to be heard. Unless counsel on timely request is given the right to analyze the facts and present his theory as to the application of the law, the litigant has not been heard. The right to be heard is a matter of both private and public consequence. Argument by counsel has always been considered, by the courts of this state, and should continue to be considered as an effective aid in rendering justice.” (p. 145.)
This court has stated many times that each party has the absolute right to have his cause argued by counsel before a decision is rendered, whether the matter is tried to the court or a jury. However, in order to predicate error upon the refusal to allow argument it must appear that counsel has not waived the right by silence or acquiescence. (Richa v. Wichita Precision Tool Co., supra; Farmers Union Central Cooperative Exchange v. Tomson, 192 Kan. 274, 387 P. 2d 202; Callan v. Biermann, 194 Kan. 219, Syl. ¶ 1, 398 P. 2d 355.) One further requirement should be noted. It has been held that a judgment entered in the absence of counsel may be binding where circumstances indicate counsel was notified of the hearing date in proper time but failed to appear because of inexcusable neglect. (Buchanan v. Insurance Co., 94 Kan. 132, 146 Pac. 411; White v. Southern Kansas Stage Lines Co., 136 Kan. 51, 12 P. 2d 713; Brenneisen v. Phillips, 142 Kan. 98, 45 P. 2d 867.)
In the present case there are no circumstances to indicate waiver of the right to argue because of silence, acquiescence or inexcusable neglect. Notice of the time of the hearing was received by claimant’s counsel only thirty minutes before the case was to be heard. The distance from Topeka to Wichita precluded counsel from attending the hearing on such short notice. Local counsel in Wichita had not handled the case and could not adequately prepare to argue the case on such short notice, even though he may have been physically able to attend. We hold each party in a workmen’s compensation hearing has an absolute right to have his cause argued by counsel before a decision is rendered by the district court; however, in order to predicate error upon the refusal to allow argument it must appear that counsel did not waive the right by silence, acquiescence or inexcusable neglect. In tbe present case the district court failed to afford counsel for claimant the opportunity to be present and argue claimant’s cause. This right was not waived.
In fairness to the district court we might say its delay, hesitation and final refusal to hear oral arguments may be explained by its awareness of the law declared in Gray v. Hercules Powder Co., 160 Kan. 767, 165 P. 2d 447; Bushman Construction Co. v. Schumacher, 187 Kan. 359, 356 P. 2d 869, and Norcross v. Pickrell Drilling Co., 202 Kan. 524, 449 P. 2d 569. In those cases we pointed out the absence of provisions for post-judgment motions in the workmen’s compensation act, and we held the district court has no authority to vacate or modify an award once it is made and entered.
However, this limitation does not apply on remand from this court. The reason for the limitation and the difference and distinction on remand was explained and justified in Fisher v. Rhoades Construction Co., 190 Kan. 448, 375 P. 2d 711. There we said:
“When the district court on remand of a compensation case has modified its findings or made them more specific as directed by the Supreme Court, it necessarily follows that the district court has authority to carry out the mandate. In such situation the rights of the parties are completely safeguarded. If they are dissatisfied they may again appeal to this court. To hold otherwise would thwart substantial justice, and preclude the district court from correcting manifest error in a previous decision. Such is the inherent power of our courts so that they may do substantial justice and not become objects of disrepute.
“The authority of the Supreme Court to remand a cause to the district court to make specific findings or to correct an award in a compensation case is not without precedent. [Citations omitted.]” (p. 451.)
The judgment is reversed with directions to vacate the order denying the award and to reset the matter for hearing so as to permit oral arguments in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal was heard at the March 1971 Session, and on March 11, due to the pressing public questions presented, the court announced its decision affirming in part and reversing in part the judgement of the district court. (Moore v. Shanahan, 207 Kan. 1, 486 P. 2d 506.)
At the 1970 Session of the Legislature, three propositions for the amendment of the Kansas Constitution were adopted by two-thirds of the members of the House of Representatives and the Senate, to be submitted to the qualified electors of the state for their approval or rejection at the general election on November 3,1970.
On October 19, 1970, the plaintiff, Earl C. Moore, a member of the Bar of Kansas, a taxpayer and qualified elector, and residing in Wichita, commenced this action against Elwill M. Shanahan, Secretary of State for the state of Kansas, to enjoin her from submitting each of the said proposed amendments to the electors of the state. The petition alleged the plaintiff filed the action on his behalf and on behalf of all the electors of the state of Kansas similarly situated, upon the ground the three proposed amendments were ineffective as amendments to the Constitution of Kansas, and would be inoperative if approved by the people; that, as a taxpayer and elector, he was entitled to relief against the unconstitutional submission of said amendments, and the improper expenditure of public funds. The plaintiff specifically alleged that each proposed amendment was in violation of that part of Section 1, Article 14, which reads:
“When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately; and not more than three propositions to amend shall be submitted at the same election.”
Proposition 1 was proposed by Senate Concurrent Resolution No. 8 (L. 1970, Ch. 189), to amend Section 10, Article 15, by removing the provision forever prohibiting the “open saloon” in Kansas. In view of what is stated hereafter, no further reference to this amendment need be made.
Proposition 2 was proposed by Senate Concurrent Resolution No. 1033 (L. 1970, Ch. 411), to amend Sections 1 and 2, Article 14, relating to constitutional amendment and revision.
Proposition 3 was proposed by House Concurrent Resolution No. 1026 (L. 1970, Ch. 347), to amend Article 1, relating to the executive branch of the state government, and to repeal Article 8, relating to the militia of the state.
The secretary of state having caused the proposed amendments to be published as required by Section 1, Article 14, and also having prepared and distributed to the various county clerks and election commissioners, the form of the ballot for the submission of said proposed amendments to the electors for their approval or rejection, the district court, in accordance with the principle of general application that courts will not enjoin the holding of an election, refrained from issuing a temporary injunction, or the restraining order prayed for. (Dunn v. Morton County Comm'rs, 162 Kan. 449, 177 P. 2d 207, Syl. ¶ 3.)
At the general election on November 3, 1970, a majority of the qualified electors voting on proposition 1 rejected it, and a majority of those electors voting on propositions 2 and 3 adopted each proposed amendment, although in so doing, they cast some 120,000 less votes on propositions 2 and 3 than they cast on proposition 1.
On November 6, 1970, the attorney general of Kansas, acting for and on behalf of the secretary of state, filed an answer to the plaintiff’s petition. The answer alleged the defendant had no knowledge of plaintiff’s residence in Wichita, but “admits that plaintiff is qualified to bring this action.” The answer made allegations of the electors’ rejection of proposition 1, and that the plaintiff’s claim concerning the same was moot. It denied the plaintiff was entitled to any relief requested, and alleged the remaining two proposed amendments, 2 and 3, were constitutional. The prayer was that judgment be entered in favor of the defendant on propositions 2 and 3, and that they be declared to be constitutionally submitted and adopted.
Thereafter, and on November 9, 1970, the plaintiff filed an amended petition in which he incorporated many of the allegations of his original petition, including his right to bring the action, and alleged that proposition 2 contained at least six separate amendments, specifically alleging each separate amendment, upon which an elector had the right to vote on each amendment separately; that the six proposed amendments completely revising Article 14, constituted more than one amendment, and denied the plaintiff and other electors similarly situated the right to vote “yes” or “no” on each amendment separately, and also violated the constitutional prohibition that not more than three propositions to amend shall be submitted at the same election.
The amended petition further alleged that proposed amendment 3 contained at least twelve separate amendments to Article 1, and repealing Article 8, specifically alleging each separate amendment, upon which an elector had the right to vote on each amendment separately; that the twelve proposed amendments completely revising Article 1, and repealing Article 8, constituted more than one amendment, and denied the plaintiff and all other electors similarly situated, the right to vote “yes,” or “no,” on each amendment separately, and also violated the constitutional prohibition that not more than three amendments be submitted together.
The amended petition contained allegations concerning the State Board of Canvassers and its duty to canvass the election abstracts, and that the defendant and the members of such Board should be restrained from certifying the abstracts of election on amendments 2 and 3 until the court had opportunity to pass upon their constitutionality. Further reference to those allegations and the restraining order issued thereon, is deemed unnecessary.
On December 3, 1970, the district court heard the case on its merits, and on January 27, 1971, it entered judgment dismissing the plaintiff’s action, “because (1) he has no legal standing to bring the action, and (2) plaintiff is not entitled to the relief he seeks since propositions 2 and 3 submitted to the electors on November 3, 1970, are constitutional.”
The plaintiff timely perfected this appeal, and this court advanced the case for hearing to the March 1971 Session. The case was heard on its merits March 5, and on March 11, this court made public announcement of its decision. (Moore v. Shanahan, supra.)
At the outset, we are met with the plaintiff’s contention the district court erred in holding he had no legal standing or capacity to bring the action. The point is well taken. The verified petition alleged the plaintiff was a qualified elector of Wichita and brought the action on his behalf and all other electors of the state of Kansas similarly situated. The defendant’s answer made no denial of that allegation, and specifically admitted the plaintiff was qualified to bring the suit. The question was neither raised nor briefed by the parties in the district court, but the court, on its own initiative, injected the issue into the case. Courts have jurisdiction to decide only such issues as are raised by the pleading or defined in the pretrial order, or new issues raised by evidence to which no objection is made. (Shriver v. Board of County Commissioners, 189 Kan. 548, 552, 370 P. 2d 124, and cases cited; McAdam v. Fireman's Fund Insurance Co., 203 Kan. 123, 452 P. 2d 851.)
Under K. S. A. 60-209 (a), an objection to the legal capacity of the plaintiff to sue may be taken by answer, and the defendant is required to do so by a specific negative avermant, or it will be waived. (Augusta Oil Co., inc. v. Watson, 204 Kan. 495, 464 P. 2d 227.) See, also, 1 Vernon’s Kansas Statutes Annotated [Fowks, Harvey, Thomas], Code of Civil Procedure, § 60-209 (a), p. 31. Moreover, the rule that this court must, on its own motion, dismiss the appeal if it appears the district court was without jurisdiction, is not applicable to the situation here presented. In the case at bar, the district court confessedly had jurisdiction of the subject matter of injunction and of the parties. The petition presented the question to be determined as an issue, and contained sufficient facts to challenge the court’s attention as to its merits. The district court’s conclusion did not go to its jurisdiction, but to the legal standing or capacity of the plaintiff to seek relief.
The right to vote in any election is a personal and individual right, to be exercised in a free and unimpaired manner, in accordance with our Constitution and laws. The right is pervasive of other basic civil and political rights, and is the bed-rock of our free political system. Likewise, it is the right of every elector to vote on amendments to our Constitution in accordance with its provisions. This right is a right, not of force, but of sovereignty. It is every elector’s portion of sovereign power to vote on questions submitted. Since the right of suffrage is a fundamental matter, any alleged restriction or infringement of that right strikes at the heart of orderly constitutional government, and must be carefully and meticulously scrutinized. In Harris v. Shanahan, 192 Kan. 183, 387 P. 2d 771, it was held:
“Under the republican form of government prescribed in the Constitution of Kansas, every citizen and qualified elector is entitled to a vote . . (Syl. ¶ 11.)
and in the.opinion it was said:
“. . . Every citizen and qualified elector in Kansas has an undoubted right to [vote] . . . and has a further right to invoke the power of the courts to protect such constitutional right . . .” (l. c. 207.)
The holding was cited and approved in Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772, and in Harris v. Anderson, 194 Kan. 302, 400 P. 2d 25, cert. den. 382 U. S. 894, 15 L. Ed. 2d 150, 86 S. Ct. 185. See, also, Coleman v. Miller, 146 Kan. 390, 71 P. 2d 518, affirmed 307 U. S. 433, 83 L. Ed. 1385, 59 S. Ct. 972, where it was held that individual members of the Senate had the right to maintain an action in this court to enforce an alleged impairment of their constitutional rights, where the lieutenant governor cast the deciding vote when the Senate was equally divided, on a concurrent resolution to ratify the so-called child labor amendment to the Constitution of the United States.
We have examined the cases cited by counsel, and have also .examined many others, and find that no court has denied the right of an individual elector to bring an action on his behalf of all other electors of the state similarly situated, attacking a proposed amendment to a state Constitution upon the ground it was submitted in violation of the amendment Article. Under the record presented, we hold the plaintiff had legal standing and capacity to maintain this action, and any matter affecting the validity of the submission of the proposed constitutional amendments to the electors may be investigated and determined.
With respect to the conclusion just announced, we again note this action was commenced prior to the holding of the general elections on November 3, 1970, and that this court announced its decision on the merits of the appeal on March 11, 1971, before any rights had accrued to any citizen, or elections held pursuant to proposition 2, or before reorganization orders were issued by the governor or elections held pursuant to proposition 3, and before any state officer or department of this state had in any way recognized the validity of the amendments under consideration. See Prohibitory Amendment Cases, 24 Kan. * 711, 718, 719, 720.
It should here be noted that, notwithstanding the court’s approval of proposition 2 amending Sections 1 and 2 of Article 14, as hereafter noted, this case is required to be decided in accordance with the provisions of Article 14 as they existed when the 1970 Legislature submitted propositions 2 and 3 to the electors for their approval or rejection on November 3, 1970. With this admonition, we turn to the legal questions that the House Concurrent Resolutions submitting those propositions violated Section 1 of Article 14, and refer to the rule that whether the constitutional method has been pursued, is purely a judicial question, and no authority is vested in any officer, department of state, or tribunal, other than the courts, to consider and determine that matter. In Harris v. Shanahan, 192 Kan. 183, 387 P. 2d 771, it was said:
“. . . when legislative action exceeds the boundaries of authority limited by our Constitution, and transgresses a sacred right guaranteed or reserved to a citizen, final decision as to invalidity of such action must rest exclusively with the courts. In the final analysis, this court is the sole arbiter of the question whether an act of the legislature is invalid under the Constitution of Kansas. (Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P. 2d 731.) However delicate that duty may be, we are not at liberty to surrender, or to ignore, or to waive it ... It is axiomatic that an . . . act of the legislature, is subject to the limitations contained in the Constitution, and where such act exceeds the bounds of authority vested in the legislature and violates the limitations of the Constitution, it is null and void and it is the duty of courts to so declare . . .” (l. c 207.)
We also refer to the rule that the constitutionality of a statute or concurrent resolution is presumed, and that all doubts must be resolved in favor of their validity, and before they may be stricken down, it must appear the infringement of the Constitution is clear beyond substantial doubt. It is the court’s duty to uphold the concurrent resolutions, rather than defeat them, and if there is any reasonable way to construe them as constitutionally valid, that should be done. (State, ex rel., v. Fadely, 180 Kan. 652, 659, 308 P. 2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P. 2d 266.)
The Kansas Constitution was adopted in 1859, and is the supreme and paramount law, receiving its force from the express will of the people. It established three separate departments of government and placed upon each of them limitations which experience has shown to be essential to a progressive government. It has worked well in practice, and is a monument of the wisdom and patriotism of its framers. But no product of the human mind is perfect, so the framers prescribed the manner by which the Constitution could be amended or revised, which is clearly defined. Those wise men saw that, in a state where the people were admitted to a direct participation in the government, party passions and interests might likely lead to too much tampering with the Constitution, if effectual checks were not imposed, and, what may be thought otherwise, restriction with respect to amendment and revision was the policy of the constitutions of the states that were selected as models from which to fashion the new Kansas Constitution. (Proceedings and Debates, Wyandotte Constitutional Convention, 1859.)
In any event, it was settled that the only manner in which the Constitutition could be amended or revised, was in accordance with Article 14 which prescribed two methods by which changes may be effected. One, called the legislative method, by which the people adopt propositions for specific amendments that have previously been submitted by two-thirds of the members of each house of the Legislature (Sec. 1), and the other, called the convention method, by which delegates are chosen by the people for the express purpose to “revise, amend or change” one or more articles, or the entire instrument itself (Sec. 2) — followed by a ratification by the people. See, Staples v. Gilmer, 183 Va. 613, 33 S. E. 2d 49, 158 A. L. R. 495. The idea of the Kansas people thus restricting themselves was a part of the American system of written constitutions, and was con vincing evidence that amongst them liberty and freedom meant, not the giving of rein to passion or to thoughtless impulse, but the considered exercise of power by the people for the general good, and, therefore, always under the restraint of law. Hence, the framers of our Constitution avoided the dangers attending a too frequent change in our fundametntal law, and likewise obviated the danger —to be equally shunned — of making amendments too difficult. No government can expect to be permanent unless it guarantees progress as well as order; nor can it continue to secure order unless it promotes progress. Thus, the Kansas Constitution reconciled the requisites for progress with the requisites for safety and order. (Prohibitory Amendment Cases, supra, p. 507; Jameson, Constitutional Conventions, § 528, p. 549.)
Under the legislative method, the power of the Legislature to initiate any change in the Constitution is of greatly less extent than that of calling a constitutional convention, and, being a delegated power, is to be strictly construed under the limitations by which it is conferred. In submitting propositions for specific amendments to the Constitution, the Legislature does not act in the exercise of its ordinary legislative power (Sec. 1, Art. 2), but it possesses and acts in the character and capacity of a convention pursuant to the power delegated to it in Section 1, Article 14, and is quoad hoc, a convention expressing the supreme will of the people; it is limited in its power of proposing amendments to the Constitution by the provisions of that section and article, except with respect to such powers as may be, or have been previously delegated by the people to the Constitution of the United States. On this point, in State, ex rel., v. Sessions 87 Kan. 497, 124 Pac. 403, this court quoted from Kadderly v. Portland, 44 Ore. 118, 74 Pac. 710, 75 Pac. 222, as follows:
" ‘. . . A legislature, in proposing and agreeing to amendments and submitting them to the people, is acting under a limited authority, and its powers must be strictly construed. It may propose and submit amendments in the manner provided by the constitution, and in no other way. In doing so, it does not exercise ordinary legislative powers, but rather acts as the agent of the people in the discharge of a ministerial duty, deriving its authority alone from the provisions of the constitution regulating its own amendment . . . It is but right and proper . . . that the procedure provided for so important a matter as its own amendment shall be regarded as madatory, and a limitation upon the exercise of the power . . (l. c. 502, 503.)
In Prohibitory Amendment Cases, supra, Mr. Justice Brewer, speaking for this court on the part the Legislature plays when the constitutional requirements have not been obeyed, said:
. . It lacks the sanction of law, is a disregard of constitutional methods and limitations, and should he taken as a request for a change, rather than as a change itself. But, notwithstanding this, legislative action is simply a determination to submit the question to popular decision. It is in no sense final. No number of legislatures, and no amount of legislative action, can change the fundamental law. This was made by the people, who alone can change it. The action of the legislature in respect to constitutional changes is something like the action of a committee of the legislature in respect to the legislative disposition of a bill. It presents, it recommends, but it does not decide . . .” (* 711, 712.)
It was evidently thought by the framers of the Constitution that the legislative method would be well adapted to changes which are few, simple, independent, and of comparatively small importance. It seems very clear from the provisions of Section 1 authorizing amendments pursuant to the legislative method, as compared with Section 2 authorizing a call of a convention, that the purpose of the former is different from the latter — in other words, the thing authorized to be done by the first section is a different thing entirely from that authorized to be done by the second section. Thus, the purpose of the legislative method is to bring about amendments which are few, simple, and independent; and on the other hand, the convention method is to revise the entire Constitution, with a view to propose either a new one, or, as the greater includes the less, to amend or change one or more articles. The phraseology used in Section 1 is to propose “amendments” to the Constitution, whereas the phraseology used in Section 2 is to call a convention “whenever . . . the members elected to . . . the legislature shall think it necessary ... to revise, amend, or change” the Constitution. (Emphasis supplied.) In not a single instance is the word “revise” or any of its derivatives employed with respect to the legislative method — only the word “amendment” is used. It appears evident, therefore, that the legislative method is in sharp contrast with the convention method, which is employed for “revision.” To say that the purpose of the two methods is the same, is to say that a part is equal to, or the same as, the whole.
Historical facts of amending the Constitution, and the experience and tradition of the Legislature in submitting amendments to the electors for their approval or rejection, show that nearly 1000 resolutions seeking constitutional changes have been introduced in the Legislature since our admission to the Union. (Your Government, Bulletin of the Governmental Research Center, University of Kansas, Cape, Volume XXIV, No. 2, October 15, 1968.) From 1861 to and including 1970, the Legislature has submitted 85 propositions to amend the Constitution. Of the 85 submitted, 55 were adopted by the people, and 30 rejected. In almost every instance, each proposition or amendment has been directed to a single, independent, and specific change in one or more sections of an article. A study of each amendment confirms this fact. Several new sections have been added, but all related to a single subject. Being specific and independent and relating directly to the subject sought to be changed, those amendments produced no controversy. This is the principal reason why this court has not previously been called upon to decide the question here presented.
It was not until 1959 that it was ever suggested that an entire article of the Constitution might be submitted as one amendment. This suggestion came about in a report of a commission on constitutional revision. In 1957 the governor appointed a “Governors Commission on Constitutional Revision,” which was later joined by the Legislative Council’s Special Committee. In a progress report dated January 30, 1959, the Commission stated, “. . . that, to date, the Commission has not committed itself to a constitutional convention,” and concluded that, “. . . an entire article (of the Constitution) can be replaced with another under the present amending process by means of a single amendment . . .” (Your Government, op. cit., supra.) No reference was made to any source for the statement, and the Commission cited no law or constitutional authority to support it. The Commission made its final report to tire governor in January, 1961. In the same month, the governor appointed a Second Commission on Revision of the Kansas Constitution, and its report was published January, 1963. (Your Government, op. cit., supra, No. 9, May 15, 1969.) In January, 1968, the governor, in his annual message to the Legislature, stated there was a need to revise and modernize the Constitution, and that “. . . this legislature should take necessary steps to call a constitutional convention.” (Your Government, op. cit., supra, No. 2, October 15, 1968.) Instead, the Legislature established the Citizens’ Committee on Constitutional Revision (Ch. 265, L. 1968), which made a comprehensive report to the governor and Legislature in February, 1969. The report recommended extensive changes in all of the existing fifteen articles of the Constitution, or their repeal, except Article 11 which was unchanged. Propositions 2 and 3, hereafter referred to, were included in the report.
How may the Constitution be legally amended under the legislative method? An examination of Section 1, Article 14, discloses that it does not provide specifically for the manner in which amendments to the Constitution may be proposed, except that the same shall be printed in full on the ballot (State , ex rel., v. Shanahan, 183 Kan. 464, 327 P. 2d 1042), and,
“. . . [w]hen more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately; and not more than three propositions to amend shall be submitted at the same election.”
This portion of Section 1 has not previously been interpreted by this court, except in State, ex rel., v. Sessions, supra, the last clause of the section was considered, and it was said:
“. . . The constitution provides that ‘not more than three propositions to amend shall be submitted at the same election.’ (Art. 14, § 1.) This restriction is unquestionably imperative. Its reasons are obvious. The framers of the constitution evidently believed that the submission of a larger number of amendments would unduly tend to confusion, and to embarrass an accurate indication of public opinion upon each. Under no circumstances may more than three proposals for constitutional amendments be submitted together . . .” (l. c. 500.)
The present meaning of Section 1, Article 14, is the meaning it bore in 1859 (Prohibitory Amendment Cases, supra), and is to be construed in the light of the exigencies and conditions which it was intended to meet and deal with. The word “amendment” implies a specific change or alteration of subject matter within the original lines of the Constitution as will effect an improvement, or better carry out the purpose for which it was framed. (Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L. R. A. 312; Kelly v. Laing, 259 Mich. 212, 219, 242 N. W. 891.)
The foregoing quoted provision of Section 1 is mandatory, and requires a submission of proposed amendments in such manner that the electors may vote upon each amendment separately. The provision is a wise one, and is intended to prevent several separate and unrelated subjects from being submitted to the electors in the same amendment, thus forcing them to approve or reject the amendment as a whole. Likewise, it is intended to prevent burdening a meritorious proposition with a vicious one, and also to prevent a vicious proposition from having the support of the meritorious one, thus giving to the elector the right to have each separate proposition submitted to him in order that he may express his will for or against each separately, without being compelled to accept a proposition to which he is opposed, in order to have adopted a proposition which meets his favor. (McBee v. Brady, 15 Idaho 761, 100 Pac. 97.)
Just what is meant by “more than one amendment” which shall be so submitted to enable electors to vote on “each amendment separately,” as used in Section 1, is not an easy matter to determine. It was evidently the intention of this provision to require that amendments which are incongruous, or which do not relate to the same subject matter or have the same object and purpose, should be considered as separate amendments. The question of duplicity of an amendment was decided by the Wisconsin Supreme Court in the early case of The State ex rel. Hudd vs. Timme, Secretary of State, 54 Wis. 318, 11 N. W. 785, which has been followed by a vast majority of the courts of the country as stating a sound rule. The Wisconsin court held that a proposal to amend separate sections of the legislative article, involving the subject of a change of legislative sessions from annual to biennial sessions, was properly submitted as a single amendment, even though there were provisions therein for increasing compensation, and for necessary changes of tenure and of the time and method of election of the senators and representatives for such biennial sessions. In the opinion it was said:
“We think amendments to the constitution, which the section above quoted requires shall be submitted separately, must be construed to mean amendments which have different objects and purposes in view. In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. Tested by this rule, the propositions submitted to the electors contained but one amendment . . .” (l. c. 336.) (Emphasis supplied.)
See, also, Livermore v. Waite, supra, and McFadden v. Jordan, 32 Cal. 2d 330, 196 P. 2d 787.
In Kerby v. Luhrs, 44 Ariz. 208, 36 P. 2d 549, 94 A. L. R. 1502, the supreme court of Arizona cited many authorities, and approved and clarified the test laid down in Timme, supra. There, one amendment was submitted which related to the subject of taxation, and provided the method in which copper mines should be taxed; it also provided the manner in which public utility corporations should be assessed and taxed, and further provided that the State Tax Commission which was previously created by legislative enactment, was created and declared to be a constitutional commission. In the opinion it was said:
“If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition. Nor does the rule as stated unduly hamper the adoption of legitimate amendments to the Constitution. Such a document was presumably adopted deliberately, after careful preparation, as a harmonious and complete system of government. Changes suggested thereto should represent the free and mature judgment of the electors, so submitted that they cannot be constrained to adopt measures of which in reality they disapprove, in order to secure the enactment of others they earnestly desire.” (l. c. 221.)
It was further said:
“. . . It is evident that there are at least three distinct propositions contained therein, no two of which are necessarily required for a proper operation of the third. On their face they have no direct relation to each other. Their only connection is that they are all embraced in a broader general subject, to wit, that of taxation. It is clear that the provision in regard, to the method in which copper mines should be taxed is in no way necessary to or concerned with the method of taxation of public utility corporations, and it is equally clear that both of those propositions could be inserted in the Constitution without the slightest need of adopting the one establishing the tax commission as a constitutional body which in effect would be independent of the regular executive and legislative branches of the state government in many particulars, and perhaps even of the judicial.” (l. c. 221, 222.)
See, also, 94 A. L. R. 1510 Anno: Proposed Constitutional Amendment.
This court adopts the test of duplicity in a constitutional amendment as set forth in Timme and as adopted and clarified in Kerby. The pertinent rules having been stated, were there in reality two or more amendments submitted to the electors in each proposition? We shall discuss the propositions in their reverse order, and first turn to proposition 3.
As indicated, proposition 3 was submitted to the Legislature by the Citizens’ Committee on Constitutional Revision in its comprehensive report to the Legislature and the governor shortly after the 1969 session convened. (Report of the Citizens’ Committee on Constitutional Revision, 1969, pp. 2-10.) The Committee was composed of twelve citizens of the state who were appointed as provided in the Act. It was directed “to thoroughly examine and evaluate the constitution of the state of Kansas and to determine the provisions thereof which need revision,” and was further directed to meet as often as necessary prior to the 1969 session, to fulfill its duties, and “report its findings and recommendations to the governor and said session of the legislature.”
Except for a few minor changes, the Legislature submitted proposition 3 as proposed by the Citizens’ Committee on Constitutional Revision. The title to House Concurrent Resolution No. 1026, submitting the proposition reads:
“A Proposition to amend article 1 of the constitution of the state of Kansas, relating to the executive branch of state government, and repealing article 8 of the constitution of the state of Kansas.”
In passing, it is noted the title of the resolution dealt with two articles of the Constitution — Article 1, relating to the executive department and Article 8, relating to the militia of the state. On its face the title indicates that two unrelated subjects are dealt with.
It is unnecessary to set forth proposition 3 in its entirety. It is sufficient to say the amendment contained eleven sections and repealed all but one of the existing sixteen sections of Article 1. Parts of those sections were transferred to new sections and new material was added to some of the eleven sections contained in the amendment, which were not renumbered. Likewise, the existing four sections of the militia article were repealed, and some parts of those sections were transferred to a new section of proposed Article 1. The following is a summation of the amendment’s eleven sections.
Section 1 provided the tenure for the offices of the executive department, and limited its composition to the governor, lieutenant governor, secretary of state, and attorney general. The section eliminated the offices of auditor and treasurer from that department, which were provided for in existing Section 1, Article 1. (The office of superintendent of public instruction had been eliminated by the amendment of Article 6 — education—in 1966.) The tenure of office of governor, lieutenant governor, secretary of state, and attorney general was extended from two years to four years, and commencing in the year 1974, and every four years thereafter, elections for those offices are to be held in off-presidential years. Commencing in the year 1974, and thereafter, the candidates for governor and lieutenant governor will be nominated and elected jointly as a “team,” so to speak, so that a single vote would be cast for a candidate for governor and for lieutenant governor running together. It was further provided that after 1974, no person may be elected to more than two successive terms as governor and lieutenant governor.
Section 2, providing for a Board of Election Canvassers, was repealed.
Sections 3, 4 and 5, as proposed by the Committee and submitted by the Legislature, incorporated and transferred with minor changes existing provisions of the Constitution which vested in the governor, as executive power, the responsibility to see that the laws are faithfully executed (Section 3), and the power to require in writing reports from officers of the executive department and of all public state institutions, which shall be transmitted by the governor to the Legislature. The latter clause was transferred from Section 16, which was repealed. The sections further empowered the governor to convene the Legislature in special session by proclamation, and a new clause was added authorizing the Legislature to convene into special session upon petition signed by at least two-thirds of the members elected to each house. The power to adjourn the Legislature in case of disagreement between the two houses as to time of adjournment, was transferred from Section 6.
Section 6, consisting of four subsections of new material, as proposed by the Committee, and submitted by the Legislature, authorized the governor to submit one or more executive reorganization orders to both houses of the Legislature within the first 30 calendar days of any regular session, to transfer, abolish or consolidate the whole or any part of any state agency within the executive branch, except constitutionally established departments. Executive reorganization orders as are so transmitted shall take effect, and have the force and effect of general law on July 1, following transmittal, unless within 60 days and before adjournment, either house of the Legislature adopts a resolution disapproving such orders. Any one of such reorganization orders which becomes effective, may be amended or repealed as statutes are amended or repealed.
Section 7 as proposed by the Committee, and submitted by the Legislature, was the only section not changed. It vests the pardoning power in the governor under regulations and restrictions prescribed by law.
Section 8 as proposed by the Committee, and submitted by the Legislature, repealed existing Section 8 and transferred its provisions to Section 9. Sections 1, 2, 3 and 4 of Article 8, relating to the militia, were repealed, and parts of those sections were transferred to this section as new material. The section continued the power of the governor as Commander in Chief of the militia; to call out the militia to execute the law, to suppress insurrection or rebellion, and to repel invasion or to service in natural or other emergencies. A new clause was added authorizing the governor to proclaim martial law when public safety required it, but not for a period exceeding 20 days, except with the consent of the Legislature. The section removed the right of all citizens of any religious denomination whatever, who from scruples of conscience may be adverse to bearing arms, to be exempt from militia service.
Section 9 as proposed by the Committee, and submitted by the Legislature, incorporated the provisions of old Section 8, and continued in effect its former provisions with respect to the issuance of all commissions.
Section 10 prohibiting federal officers from being governor, was repealed.
Section 11 as proposed by the Committee, and submitted by the Legislature, contained a similar subject to that contained in existing Sections 11, 13 and 14. Section 11 provided that the lieutenant governor shall succeed the governor, but provided that succession of the lieutenant governor shall be as prescribed by law, rather than constitutional succession as prescribed in existing Section 13 which was repealed. Section 14 was likewise repealed, and its provisions concerning the appointment by the governor of members of the state executive department who become incapable of performing their duties, were transferred to Section 11.
Section 12 as proposed by the Committee, and submitted by the Legislature, repealed the provisions of existing Section 12 which provided that the lieutenant governor shall be president of the Senate and empowered to vote when the Senate is equally divided, and that the Senate shall choose a president pro tern to preside over that body in the lieutenant governor’s absence, or when he succeeds to the office of governor. Section 12 as proposed provided that the lieutenant governor shall assist the governor and exercise the powers and duties prescribed by law.
Section 15, relating to compensation of members of the executive department was amended in certain respects.
The court has no difficulty in ascertaining there are at least three specific changes of subject matter contained in proposition 3, neither of which is related to, dependent upon, or required for the operation of the other. There may be other changes of subject matter contained in the proposition, but the three hereafter detailed determine its violation of Section 1, Article 14, that when more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately. In view of this conclusion, it is unnecessary to further explore the proposition and discuss other possible changes of subject matter.
Section 1 deals with tenure of office; composition of the executive department; provides that the governor and lieutenant governor shall run as a team, and prohibits those officers from holding office for more than two consecutive terms. With respect to that section, the court is of the opinion there are at least two distinct changes of subject matter proposed. The only connection between the two is that both are embraced in a broader general subject — the executive department— which was established by Article 1 in a single section. Commencing in 1974, the term of office of members of the executive department is extended from two years to four years. The extension of term of office relates to one subject, namely, tenure of office. That constitutes one specific change within the original lines of the Constitution. (Keenan v. Price, 68 Idaho 423, 195 P. 2d 662.) Moreover, the object and purpose of prohibiting any person to be elected to more than two successive terms as governor and lieutenant governor, likewise relates to tenure of those offices, since it is an express limitation on the right to exercise the constitutional and statutory powers conferred for not more than two successive terms.
The question was decided by the Idaho Supreme Court in Keenan, supra. A proposed constitutional amendment extended the term of office of members of the executive department of that state from two years to four years, and placed a limitation upon the governor succeeding himself. It was held the amendment embraced but one subject, and did not contain unrelated matters which must be submitted to the electors separately. In the opinion it was said:
The amendment . . . is on the same plan with modifications of certain parts of the original set-up. The main or controlling change or question is the four year term for executive state officials. The proviso that the governor shall not succeed himself, except for being eligible to hold the office after a lapse of one full term, is directly, properly and reasonably related to the matter of terms and tenure of such officials, and is incidental and subordinate to the main or controlling question . . .” (l. c. 453, 454.)
It was held that since only one section of the executive article was amended containing matters relating to one subject only, there was no violation of the Constitution in the submission of the amendment. The court distinguished its holding from McBee v. Brady, 15 Idaho 761, 100 Pac. 97, upon the ground the proposed amendment in McBee sought to amend four different sections of one article, one section of another article, and repeal two sections of a third article.
The amendment involved in Keenan, supra, made no change in the composition of officers of the executive department, but that is not the case here. Section 1 eliminates the treasurer and auditor as officers of the executive department. We are of the opinion the composition of the executive department, although not directly contradicting, is a subject wholly unrelated to, and in no manner dependent upon, or connected with, the subject of tenure, and has a different object and purpose. Tenure of executive officers is in no manner related to what officers shall comprise the executive department. Thus, there is no relation between the elimination of the treasurer and auditor from the executive department, and a four-year term for governor. Each of those matters constitutes a separate subject and can stand alone without dependence on the other. When the test of duplicity of amendments is applied to Section 1, it may not be said that the change of one subject is so closely related or dependent upon the other that if one would fall, the other would necessarily fall also. On the contrary, one could be adopted without the other, leaving the constitutional scheme symmetrical, harmonious and independent. To deny an elector his right to vote on each of the changes of subject matter separately is a denial of his constitutional right to vote on each amendment separately. Had an elector been given an opportunity, he might have expressed his will in favor of extending the term of executive officers to four years and prohibiting the governor from succeeding himself. On the other hand, he might have opposed the extension of tenure and approved the elimination of the auditor and treasurer as executive officers. In like manner, he might have approved one of those two subjects and disapproved all other changes in proposition 3, or vice versa. No matter how desirable one change might be, an elector was forced to vote for that which he may not favor in order to get the one change he might think right, or else deny the whole lump.
In addition to the foregoing, the court is of the opinion that the repeal of Article 8, relating to the militia, and transferring some of its powers to Section 8, Article 1 — the executive department — involved at least one change of subject matter which was required to be submitted to the electors as a separate amendment. When the Constitution was adopted, the people considered those two obligations of government to be coordinate departments, but purposely made provision for their separate establishment. The manner in which the people shall exercise their right of bearing arms for the defense and security of the state was placed in Article 8 which authorized the organizing, equipping and discipline of the militia, to be composed of “all able-bodied male citizens between the ages of twenty-one and forty-five years.” The purpose of Article 8 has been stated by this court in Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619. The militia is essentially the people’s army and persons who from scruples of conscience may be adverse to bearing arms, were exempt from the militia. The clause relating to conscientious objection was omitted when those powers were transferred to Section 8, Article 1. Moreover, that section contains new material which limits the governor in proclaiming martial law for longer than twenty days without the approval of majority of the members of the Legislature in joint session.
It is clear to us that the changes proposed by transferring the powers relating to the militia to Section 8, Article 1, and repealing Article 8, is a subject separate and distinct, and wholly unrelated to, or dependent upon, the question whether the officers of the executive department shall have a four-year term, or whether the governor has the power to issue executive reorganization orders to abolish, alter or transfer any state department. There is no similarity of subject matter, and one change is not dependent upon the other. Each subject may stand alone, and the electors might be justly for one and against the other.
Looking at proposition 3 as reasonable men, we are of the opinion the proposed amendment is a most glaring violation of the constitutional provision involved, in that it submits at least three separate propositions upon which the electors might, and many doubtless would, have widely differing opinions, and in such a manner that they are compelled either to reject all three on account of one which may be considered vicious, or else accept two propositions they disapprove, to secure the adoption of one which meets their favor. (Kerby v. Luhrs, supra; Lee v. State, 13 Utah 2d 15, 367 P. 2d 861.) The proposed amendment violates both the spirit and the letter of Section 1, Article 14, of the Constitution.
Turning to proposition 2, the title to House Concurrent Resolution No. 1033 submitting the proposition, reads:
“A Proposition to amend article 14 of the constitution of the state of Kansas, relating to constitutional amendment and revision.”
It is unnecessary to set forth proposition 2 in its entirety. The proposition amended Sections 1 and 2 of Article 14. Section 1 relates to amending the Constitution by the legislative method, and Section 2 relates to changes made in revising or amending the Constitution by the convention method.
The plaintiff contends the following changes made in Section 1, i. e,, submitting five amendments at the same election instead of three propositions as provided in original Section 1; changing the publication notice of amendments from three months to five weeks; submitting amendments by title generally descriptive of the content thereof; voting on amendments at a special election called for the purpose of submitting constitutional amendments; revising an entire article of the Constitution by one amendment, except the article on general provisions, and in revising any article, the article may be renumbered and all or parts of other articles may be amended, or amended and transferred to the article being revised, constitute separate propositions which must be submitted to the electors as separate amendments.
The plaintiff further contends that Section 2, which relates to calling a constitutional convention to "revise, amend or change” the Constitution, is a change of subject matter and must be submitted separately to the electors. In support of his contention, he argues that what the Legislature submitted in proposition 3 is exactly what the electors were asked to approve in Sections 1 and 2 of proposition 2, and that if proposition 2 is approved by this court, there would never be need to call a constitutional convention since the Legislature would have the right to submit five separate amendments at the same time to revise or change five entire articles of the Constitution. He further argues that the approval of proposition 2 by this court gives the Legislature the right to do by amendment what it is now required to do by constitutional convention, and the subject of constitutional convention is a separate and distinct change not related to, or dependent upon, any other change contained in proposition 2.
The plaintiff’s contentions are not well taken. It is clear the whole scope and purpose of the matter submitted to the electors in proposition 2 was a change in the manner of'amending and revising the Constitution. That was the main or controlling change submitted. While, as previously indicated, there is a difference between the legislative method and the convention method of amending and revising the Constitution, there is nothing incongruous or essentially unrelated in submitting those matters in one amendment, since the general subject involved relates to the manner of changing the Constitution. We do not state that the Legislature, had it seen fit, might not have submitted, as separate amendments, the question of the manner of amending the Constitution and of calling a constitutional convention, but we think that under the Constitution and within the limits stated in Timme, supra, as clarified and adopted in Kerby, supra, the question submitted was a single amendment and that separate propositions were unnecessary to accomplish a single purpose. Conceding the fact that both sections of the amendment consisted of considerable detail, certainly no good could result from a separate submission, which would be equally as well and better accomplished by submitting the matter together as one amendment. The question submitted in proposition 2 covered matters necessary to be dealt with in some manner to insure that the Constitution, as amended, would constitute a consistent and workable whole on the general topic embraced in Article 14 which was amended, and, logically speaking, the methods of amending and revising the Constitution should stand or fall as a whole.
The plaintiff lastly points out that three propositions to amend the Constitution were submitted by the Legislature to the electors at the general election in November, 1970. He contends that if either proposition 2 or 3 is found to contain two or more amendments, then four or more amendments were submitted to the electors, when the Constitution and this court has said that “under no circumstances may more than three proposals for constitutional amendments be submitted together (State, ex rel., v. Sessions, supra), and argues that all amendments submitted by the 1970 Legislature, are in violation of Section 1, Article 14, are invalid, and must be stricken down. The point is not well taken. The mandatory prohibition is directed at “propositions to amend” of which not more than three may be submitted together. The court is of the opinion that Section 1, Article 14, makes a distinction between the word “amendment” and the word “proposition,” that is, the constitutional prohibition is against submitting more than three proposals to amend the Constitution at the same time, however, if one of such propositions is found to contain more than one amendment, the other proposals to amend do not violate the constitutional prohibition. Even though the court has concluded that proposition 3 contains at least three amendments which should have been submitted to the electors separately, there were not more than three propositions submitted to the electors at the general election in 1970. The fact that proposition 3 has been determined to be invalid does not affect the validity of the submission of proposition 2.
For the reasons heretofore set forth, the judgment of the district court is affirmed in part and reversed in part, and it is directed to enter judgment in accordance with the views expressed in this opinion.
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|
The opinion of the court was delivered bv
Fromme, J.:
This is an appeal by plaintiff from a limited judgment entered by the trial court against the defendants for poultry feed and supplies purchased from the plaintiff.
Plaintiff, a feed and grain merchandising company, sued to recover a balance of $7875.21 due on purchases made by defendants between August 25, 1961 and January 27, 1967.
The judgment entered in the amount of $1844.45 plus interest limited plaintiff’s recovery to purchases made by defendants within the three years next preceding the filing of the petition. This limitation was based upon K. S. A. 60-512.
K. S. A. 60-512 in pertinent part reads:
“The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing. . . .”
The trial court held that the feed purchases were separate individual transactions each with its own separate liability and cause of action.
The plaintiff-appellant contends the action was on one open, mutual, running account between the parties, and that its cause of action was properly brought to recover the entire balance due on the account.
Items of a mutual, open, running account which are within the period of the statute of limitation draw after them items beyond that period. In such cases the statute of limitation does not run against each item separately, but only against the balance due. It commences to run from the time the last item is rightfully credited to the party against whom the balance is due. (Waffle v. Short, 25 Kan. 503; Sacher v. Paige, 149 Kan. 662, 88 P. 2d 1013; Shepard v. Klein, 172 Kan. 250, 239 P. 2d 930.) In such case the last item so credited to the party against whom the balance is due is not payment of any particular item against him, but is in a sense treated as part payment of every item rightfully charged against him in the entire account.
In limiting the judgment the trial court made four findings of fact:
“1. This account by reason of the treatment and practices of the parties consisted of a series of individual transactions each with its own cause of action and termination date under K. S. A. 60-512.
“2. The defendants never made any payment not directed to, and received and recorded by plaintiff as, payment of a specific item or items of charge.
“3. The defendants did not acknowledge any account other than the specific items paid.
“4. The defendants did receive all merchandise they are alleged to have received.”
The first three findings are challenged on appeal as not being supported by substantial competent evidence. The evidence upon which these findings must rest is undisputed. Therefore, the question of its sufficiency to support the findings is one of law which an appellate court may determine. This court’s function is confined to a determination of whether or not there is substantial competent evidence to support the trial court’s findings. (Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988. See also Hatcher’s Kansas Digest, Permanent Supplement Vols. 1-3, Appeal and Error § 502.)
The evidence establishes that plaintiff is a partnership doing business as a feed and grain merchant. The defendants are engaged in the business of feeding and raising poultry. During the period from 1961 to 1967 defendants placed 337 separate orders with plaintiff for poultry feed and supplies. The feed and supplies were delivered to defendants’ farm by plaintiff’s employees along with sales tickets showing the items purchased and the sales price. During this same period defendants mailed or delivered 175 separate checks to plaintiff in payment. Some payments were made within a week and others as long as six months after the feed was delivered to the defendants. All of these checks contained a notation at the bottom indicating the amount paid was for a designated number of tickets identified by the date or dates the purchases were made. During this same period plaintiff purchased feed sacks from the defendants. The sacks were paid for by entering a credit on plaintiff’s books at the time the sacks were delivered by defendants to plaintiff’s employees. There were 36 separate credits to defendants entered in plaintiff’s books for feed sacks. When the credits were entered on the books of plaintiff a credit ticket was issued and mailed or delivered to defendants. These credit tickets showed the amount of the current credit and the running balance due from the defendants on all unpaid purchases.
It was agreed and the court found that the defendants received all the merchandise listed and charged to them on the books of the plaintiff. These separate purchases of merchandise varied in amounts from a low of $6.70 for “Malathion” received July 18, 1962, to a high of $362.96 for “corn” received April 2, 1963. Purchases were made three or four times each month throughout the period. Payments were made throughout the period with no more than two months between any two payments. The first sale of sacks for credit was on May 16, 1962 and credits for sacks were made during each year thereafter. The final sale of sacks was on January 27, 1967, and credit to the account balance of $7880.21 was given in the amount of $5.00 thereby reducing the balance to $7875.21 as of that date. The petition was filed and service obtained on April 26, 1967.
The plaintiff’s bookkeeper used a double entry system of bookkeeping. Each purchase was listed under defendants’ account by ticket number, date, item and price. The price on each purchase ticket was added to the balance remaining due on all previous purchases and carried forward. When a payment was received an entry was made “Paid on a/c”. The date of payment was listed along with the ticket number and amount. The balance forward was reduced by the amount of the payment. The same practice was followed when credit was given for sacks except the entry made was “Cr: Sacks”, and the number of sacks received and the credit given was entered.
The practice of defendants with regard to their purchases was to keep the charge tickets in a box and when defendants desired to make a payment they picked out one or more of the tickets to be paid and wrote their check for the combined amount. A notation was made on the check as to the number of tickets and the dates of purchase. Defendants also kept the credit tickets which they had previously received for sacks sold to plaintiff. In making a payment they sometimes added the purchase tickets then subtracted any credit ticket they may have received before arriving at the amount of the check they were about to issue to plaintiff. When a check was received by plaintiff’s bookkeeper, after entering the amount paid on account and adjusting the balance to be carried forward, she went back in the account record and placed a check mark in the books opposite the purchase ticket designated by the date on defendants’ check. The bookkeeper testified she did this as a double check since the defendants always put the ticket numbers on their checks and this was for their reference. She further testified the tickets were not paid in chronological order, some were old tickets. At the times defendants made payments the bookkeeper mailed credit tickets which listed the balance remaining due on the account. She did not credit any payments to any particular tickets but credited them to the account.
The defendant, Edna Schuetz, testified she did not agree to the balances remaining due as shown on the credit tickets issued by plaintiff. She testified as follows:
“A. It was at different times over the telephone when I would tell him that wasn’t right that he had on those tickets.
“Q. Tell him what wasn’t right?
“A. What he had at the top of those tickets, the balance on the tickets.”
There is no testimony in the record'as to any agreement between the parties when their business dealings began. The copy of the account shown in the record indicates that defendants had purchased poultry feed from plaintiff prior to August 5, 1961, but on that date the entire balance of the account was paid. Thereafter defendants ordered and received the merchandise listed in the account, made payments and sold the sacks to the plaintiff. There was never an understanding as to when payment or payments had to be made.
Now with this background let us examine the courts findings of fact.
The court found that each of these purchases, whether Malathion at $6.70 or corn at $362.96, was an individual transaction each with its own cause of action and termination date. In support thereof the defendants quote from the case of Spencer v. Sowers, 118 Kan. 259, 234 Pac. 972 as follows:
“. . . A mutual, open, current account may be defined as an account usually and properly kept in writing, wherein are set down, by express or implied agreement of the parties concerned, a connected series of debit and credit entries of reciprocal charges and allowances, and where the parties intend that the individual items of the account shall not be considered independently but as a continuation of a related series, and that the account shall be kept open and subject to a shifting balance, as additional related entries of debits or credits are made thereto, until it shall suit the convenience of either party to settle and close the account; and where, pursuant to the original, express or implied intention, there is to be but one single and individual liability arising from such series of related and reciprocal debits and credits, which liability is to be fixed on the one party or the other as the balance shall indicate at the time of settlement or following the last pertinent entry of the account. . . .” (pp. 261, 262.)
“There seems to be a general agreement among the authorities that where the items of an account are all on one side, the account does not have the character of an open, running, mutual account so far as the statute of limitations is concerned. . . .” (p. 262.)
Defendants contend that the account of plaintiff does not have the character of an open, running, mutual account and that the present case is governed by Spencer v. Sowers, supra. The law quoted from that case is the law in Kansas. However, the case is not controlling here. In Spencer an individual sued another individual for money loaned by him which was to be repaid in one year. The money was allegedly loaned to defendant on three separate occasions, $100 on August 30, 1919, $725 on September 5, 1919, and $11.50 on August 17, 1921. The court found the three loans were separate, independent and wholly unrelated transactions. No payments had been made on any of them. The court correctly held this did not create an open, running mutual account.
Generally, a mutual, open, running account, which within the period of limitations draws all items beyond that period into the balance currently owing and due, may arise when a merchant sells merchandise to a customer and extends credit on the sales. Matters such as openness, currently, homogeneity and mutuality should be considered and given weight by the courts in identifying such an account. (39 A. L. R. Anno. p. 369-373.) Openness may be indicated when further dealings between the parties are contemplated and when some term or terms of the sale or sales is left open and undetermined. Currency is indicated when the continuity of the account has not been broken by payment, by the statute of limitation or by change of ownership. Homogeneity generally refers to the nature of the items which make up the account, and mutuality refers to the mutuality of dealings between the parties which may give rise to offsetting liabilities. (See also 54 C. J. S. Limitations of Actions, § 165; 1 Am. Jur. 2d, Accounts and Accounting § 16, § 18; 57 A. L. R. Anno. p. 201.)
Examining the present account in the light of the evidence it appears to have all the elements which make up a mutual, open, running account. The plaintiff, a merchant, sold many items of merchandise to defendants, as regular customers, and extended credit on the sales over a six year period. There was an openness of the account indicated because further dealings between the parties were contemplated at all times prior to January 27, 1967, and at least two matters were left open and undetermined — the due date and the correctness of the balance brought forward. The account continued current throughout the six year period. It was never paid in full, items debited and credited were relatively continuous, and there was no change in the parties. The general nature of the items which made up the account was the same (poultry feed and supplies) and there were mutual dealings between the parties which gave rise to offsetting liabilities.
In support of the second finding of fact made by the trial court the defendants rely on Neal v. Gideon, 157 Kan. 1, 138 P. 2d 419 and Edelblute v. Waddell & Reed, Inc., 171 Kan. 508, 233 P. 2d 757, and contend that when a debtor designates which item a payment is to be applied on such a payment cannot be considered a general payment on the account which extends the statute of limitations.
Neal v. Gideon, supra involved an “account stated” between a doctor and patient. The patient requested a bill for professional services. The bill was forwarded to the patient and the patient without objection made a payment thereon. The rules of law applied in Neal apply to an “account stated” and are not in point here.
Edelblute v. Waddell & Reed, Inc., supra was an action to recover upon four separate and distinct sales of corporation stock. Payments by the debtor were made to the stockbroker without any direction on which particular transaction they were to be applied. It was held in the absence of directions the broker had the right to apply the payments on all four separate sales.
None of the cases relied on by defendants to support this contention relate to payments made on mutual, open, running accounts. When an account is a mutual, open, running account the debtor cannot unilaterally destroy the nature of that account or shorten the period of limitation by making payment of specific items previously included and debited in the account. (Pride v. King, 133 Me. 378, 380, 178 A. 716. See also 54 C. J. S. Limitations of Actions § 165 p. 117.)
Clearly the defendants’ method of keeping the purchase and credit tickets as well as their practice of indicating the dates of the tickets covered by their checks was only a matter for the convenience of the defendants. The parties did not consider or treat these 337 purchases as separate individual transactions. The manner of making payments was a matter of convenience to the defendants and did not destroy the nature of this account.
The court’s finding number three is not supported by substantial competent evidence. Throughout the six year period the defendants were kept advised of the balance brought forward on the account and their only quarrel was as to the correctness of the balance. During the trial the defendant, Edna Schuetz, testified that she told the plaintiff the balance on the tickets was not right. In addition the defendants delivered sacks to the plaintiff thirty- six different times and received payment by credit being applied to reduce the balance due. Once these sacks were delivered and the account credited it was not within defendants’ power to change the effect of those credits. The final sale of sacks to plaintiff was made on January 27, 1967, and the account was credited with $5.00, the usual price paid for 100 sacks.
There is no substantial competent evidence in this record to support the trial court’s finding that the account consisted of a series of individual transactions each with its own cause of action and termination date.
The judgment limiting plaintiff’s recovery to those items purchased within three years next preceding the filing of the petition is reversed. The case is remanded to the trial court with directions to enter judgment in favor of the plaintiff in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a products liability case wherein the plaintiffs in the trial court won a verdict in the total sum of $118,401.54 for death and injuries caused by the operation of a 40-ton “Euclid” earth mover manufactured by General Motors Corporation.
The issue tried in the lower court, material to the appeal, is whether General Motors was guilty of negligence in designing the braking and steering systems on the “Euclid” earth mover.
The question on appeal is whether there is any substantial competent evidence to support the jury’s finding that General Motors was negligent in designing the braking and steering systems on the “Euclid” earth mover.
The law upon which the foregoing issue was tried in the lower court is given in instruction No. 8 as follows:
“A manufacturer has the duty to use reasonable care in the design of his products so that they will be reasonably safe for their intended use, including any emergencies of use which can reasonably be anticipated.
“A manufacturer is not, however, required to design products so that they are foolproof or incapable of producing injury. Neither is he required to incorporate only features representing the ultimate in safety in his design.
“It is for the jury to determine from all the evidence in a case, whether or not a manufacturer used reasonable care under the circumstances then existing to design its product in such a way that it did not create an unreasonable risk of injury to the user or others, when used in a reasonably anticipated manner.”
General Motors’ challenge to this instruction in its motion for a new trial was overruled by the trial court, but the law stated in the first two paragraphs of the instruction is not challenged on appeal. The first two paragraphs of instruction No. 8, therefore, become the law of the case.
Negligent design was considered by this court in Winn v. Sampson Construction Co., 194 Kan. 136, 398 P. 2d 272.
The facts material to our review are not in dispute.
The vehicle involved in the accident is an earth-moving scraper, referred to also as the TS-24, or as the General Motors Euclid scraper, shown in the photograph.
The vehicle is of enormous proportions, being at the outer limits of size presently designed for earth-moving equipment. It measures 44 feet 3% inches long, is 11 feet 10 inches wide, is 11 feet 3K inches tall, and weighs approximately 40 tons empty. When filled to capacity with earth, it weighs approximately 80 tons. This vehicle will be referred to as the scraper.
The Cook Construction Company was engaged in the performance of the earth-moving contract at the Glen Elder Dam in the Missouri River Basin near Beloit, Kansas. Work on the project had started in December, 1964. By the time of the accident, May 17, 1965, excavation for the dam, referred to as the “core trench,” had been carried 40 feet below the ground level. Excavation was to go still farther down to firm shale to form the bottom or foundation of the dam. The excavation was already well below the ground water table, and as a consequence, the core trench, through which the scraper was required to travel in carrying on the excavation work, was a slurry of mud and water. On the day of the accident the mud was so deep that the scraper, traveling through it, would sink down to its front bumper. This was approximately 4 feet deep. Although the scraper was powered by two motors, one for the tractor unit and one for the trailer unit, at times the scraper would have to be pulled through the trench for loading.
To alleviate the water problem the Cofferdam Unwatering Com pany, a subcontractor, undertook the job of “unwatering” the excavation. It did this by laying pipe in the excavation to permit the water to be pumped out. Three employees of the Cofferdam Unwatering Company were involved in the accident here in question.
Baskins, an employee of the Cook Construction Company, was operating the scraper at the time of the accident.
Two berm roads were constructed and used on the sloping edge of the project to remove earth taken from the excavation.
On the day of the accident a crane was located at the outer edge of the first berm roadway up from the bottom of the excavation. This crane was used by the Cofferdam Unwatering Company to lower pipe into the excavation.
At 1:45 p. m. on May 17, 1965, the three employees of the Cofferdam Unwatering Company were going south from the crane on the berm road toward a pipe trailer which was 65 feet south of the crane. They were going to the trailer to get more pipe and were walking in single file, Jerry Hancock leading the way, John Roy Benton behind him, and Guy Garst, the employee who died of his injuries, bringing up the rear.
Baskins, operating the scraper, was going in the same direction on the berm road. He had taken a load of earth out of the excavation and was returning for a fresh load.
The three employees had been working on the berm road where the accident occurred since 10 o’clock that morning. They knew the scraper was using the same roadway. In that period Baskins, before the accident, had made eight or ten trips on the same roadway.
The berm road was not of sufficient width to permit Baskins to pass the crane with the scraper without turning out partially up the the slope and going around. As he approached the crane he turned his scraper, as he had before, slightly to his right to pass the crane. As Baskins passed the crane he turned to look back “to check the clearance” and then “cut it back to the left to get back to the haul road.” When Baskins next looked forward he, for the first time, saw the three workmen walking to the pipe trailer.
Baskins was moving 10 or 12 m. p. h. in third gear, of the four at his disposal. He immediately turned the steering wheel of the scraper to the right, applied the brakes, dropped the bowl or pan of the scraper to provide additional braking action, down-shifted from third to second gear, and from second to first. (The order in which these actions were taken is not clear from the evidence.) Measurements showed the pan dragged from the point where it was dropped “a distance of six feet” to the point where the machine stopped.
In spite of these efforts the scraper did not stop in time to avoid running into and injuring the three workmen. (The verdict in the lower court was also against Baskins for his negligence, but his appeal has been dismissed.)
The brakes, inspected after the accident, proved to be filled with the mud of the core trench. Baskins said: “It had been several days since I made any effort to clean the brakes or brake drums.” He knew the brakes “were open” and knew “water and mud and foreign materials would collect in the inside of the brakes.”
Baskins thought that when he “turned the wheel to the — back to the right” that “the machine failed to turn.”
Tests after the accident disclosed the steering on the scraper functioned both before and after the accident as it was designed to function. The government safety officer inspecting the accident said: “The angle at which the scraper was sitting indicated that the operator was in the process of making a right turn at the time that the machine came to a stop.”
The scraper was 44 feet 3/2 inches long, leaving, after it cleared the crane, less than 21 feet between it and the pipe trailer. Before the scraper had covered that distance it hft the workmen who were within 6 or 7 feet of the pipe trailer at the time they were struck. When Baskins first saw the three workmen he had less than 15 feet in which to bring the scraper to a stop.
It is conceded by the parties to this appeal that both the steering system and the braking system on the scraper functioned as they were designed to function at the time the accident occurred. No claim is made that any part of the scraper broke or was fabricated of materials of inadequate strength or functioned otherwise than in exact accordance with its design. The claim against General Motors is based solely on asserted negligence in design, in the following particulars:
(1) Designing the braking system on the Euclid TS-24 scraper so that it was not enclosed in such a manner to prevent mud or other foreign material from getting on the brake linings.
(2) Designing the Euclid TS-24 scraper in such a manner so that the hydraulic system fails to deliver adequate steering power at low engine speed.
The brakes on the scraper are air operated. Each of the four wheels has a brake drum which is attached to, and rotates with, the wheel, and a set of four brake shoes which do not rotate with the wheel. The contact between the moving drums and the stationary shoes provides the braking action.
The brakes are of “open” construction, with drums and shoes exposed on the inner side of each wheel. Since the scraper was operating in slurry, mud of course could and did collect in the brakes. Once mud got into the brakes it would have to be washed out. However, the brakes had not been washed since May 12 — five days before the accident. During that time the scraper had been working in the excavation day and night.
After the accident when the brakes were checked they were found to be full of mud. When the mud was removed the adjustment of the brakes was checked and they were found to need no adjusting.
Tests made of the brakes about one hour after the accident, when they were in the same condition as at the time of the accident, disclosed that the scraper traveling 10 m. p. h. could be stopped in 40 feet by applying the brakes — in less distance than the length of the scraper.
When the brakes were washed out and the same test was run over again, the scraper stopped in approximately 20 feet when traveling 15 m. p. h.
The steering system of the scraper is hydraulically operated. A pump directly geared to the engine circulates hydraulic fluid. When the steering wheel is turned, a valve opens and the fluid, directed against cylinders, pivots the tractor unit of the scraper about the king pin assembly connecting it to the trailer unit.
The tractor can be turned 90° in either direction — the full maximum 180° arc being referred to as “lock to lock” or “stop to stop” steering. The steering wheel can be turned 85° in either direction from a neutral point. If the steering wheel is turned a short distance, the steering valve is only partially opened and the flow of hydraulic fluid is limited accordingly. If the steering wheel is turned the full 85°, the steering valve is completely open and maximum steering speed is obtained. The tractor unit continues to turn as long as the steering valve is partially or fully open, until it hits the lock after a full 90° turn.
Since the hydraulic pump is geared to engine speed, it turns faster at high engine speeds and slower at low engine speeds.
The engine speed varies from a low, at idle, of 500 to 600 rpm, to a governed high of 2100 rpm. At minimum idle of 500 rpm, the tractor unit will turn, even when at a standstill, through the full 180° arc in 31 seconds (or, make a complete right or left turn of 90° in 15/2 seconds); at maximum 2100 rpm it will make the full 180° turn in 6 seconds (or, make a complete right or left turn of 90° in 3 seconds). The steering is facilitated when the scraper is in operation by the fact that the scraper can be shifted into four forward gears and operated at engine speeds from idle to full throttle in each gear.
The pan or bowl of the scraper is lowered when the scraper is in the loading process, and it loads by digging into the earth as the scraper is propelled forward. Peter Cadou, one of General Motors’ engineering experts on earth-moving equipment, testified the pan was commonly used as a brake on the scraper to bring it to a stop sooner — that “The scraper is equipped with a pan for use as a brake.”
Leroy Stephen, night operator of the scraper for the Cook Construction Company, testified: “I got into the habit of carrying the pan or bowl of the scraper real low to the ground and using that instead of brakes. I just didn’t pay much attention to the brakes.”
The pan or bowl on the scraper is operated by a push lever from the operator’s seat. It is necessary to use the right hand and hold the lever over to lower the bowl to keep it moving downward. As long as the lever is held over by the hand the hydraulic power will keep forcing the pan or bowl down.
Approximately two hundred pages of testimony are presented in the record on the issue as to whether the 40-ton scraper manufactured by General Motors was unreasonably dangerous for the purpose for which it was intended. The appellees contend General Motors consciously and intentionally designed the machine in such a way that in some circumstances it can neither be stopped quickly nor turned suddenly. The appellees argue:
“. . . It was designed that way because General Motors did not think safety was a major concern on a construction site, because its machine performed as well as its competitors’ machines did, because most of the time these deficiencies would not matter, and because designing it to operate in a safe manner is difficult. Such philosophy and excuses are culpable.”
The appellant, on the other hand, contends the plaintiffs’ case fails as a matter of law because their proof shows no defect in design, but, at most, merely that something better might have been designed, and that the manufacturer owes no such duty.
If there is presented in the record any evidence of deficiency in design, it must be found in the testimony of John B. Sevart, the expert witness offered by the appellees. General Motors offered four expert witnesses, all of whom found both the brakes and the steering well and correctly designed for the purpose intended:
Ralph Super, for twenty years, until his retirement, was chief engineer of the brake division of Rockwell Standard, the world’s largest manufacturer of heavy duty brakes. The brakes in question were a product of Rockwell Standard.
Peter Cadou, staff engineer with the General Motors earth-moving division, had six years’ experience in testing steering and braking systems of scrapers.
Edward R. Fryer was engaged in the business for nearly a quarter century, the inventor of many patents relating to scrapers, and is now product manager of General Motors Euclid scrapers.
Harold Schindler is design engineer of hydraulic controls for General Motors Euclid scrapers, with nearly a quarter century of experience.
The appellees’ expert witness, John B. Sevart, is an assistant professor of mechanical engineering at Wichita State University, at the time studying for his doctorate. His specialty is in systems and design. Basically, he is involved in the study of the interrelationships of various components in regard to the ability to accomplish a specific task. In addition to graduate work in this area, he has also taught courses in systems, machine design and engines, power plants, transportation vehicles, mechanical control systems and dynamics of machinery. At the time of trial he had had some fifteen years of technical and engineering experience in numerous fields. This began with the study of electronics in the military. Thereafter, he tested airplane systems for Cessna Aircraft Corporation, performed numerous jobs for Boeing, including interpretation of drawings and test procedures, devised procedures for repair and salvage of parts, developed hydraulic systems for controls of the B-52 airplane, did research on flight control systems for aerial refueling and low level operation of the B-52 airplane, developed proposals and flight simulators for the Boeing version of the TFX, perfected autopilot systems, and general consultation work.
He has performed independent consultation work including the development and analysis of a new type of oil field pump, development of a hydraulically powered version of that pump, and development of arming devices for artillery shells.
During the months immediately prior to this trial he had been working on the development of a mine-sweeper system for Card-well Company under contract with the United States Navy. His specific responsibility was as a supervisor of the systems group and the stress group. This involved designing two hydraulically operated cranes mounted on shipboard, together with four separate electronic control systems for each crane, a braking system and hydraulic gear box drive.
Sevart had a limited amount of experience on hydraulic systems. On cross-examination he testified he was not a member of the Society of Automotive Engineers (SAE), and was not familiar with its standards relating to earth-moving equipment. He was not familiar with the portion of that society known as the Construction and Industrial Machines Technical Committee, or any of the standards that the committee has promulgated relating to heavy equipment. But he did know it had such standards.
Sevart was first employed by appellees’ attorneys in regard to these cases in March, 1968. On March 19, 1968, he first testified by deposition concerning his opinions, and at that time he had never examined a scraper or comparable heavy equipment. He testified again by deposition on July 31, 1968. Ry that time he had had an opportunity to spend approximately one hour on the assembly line at the General Motors Euclid plant. He testified:
“Q. Now, when you first testified in this case on March 19th, 1968, you stated very frankly that you didn’t consider yourself to be a qualified design engineer in heavy construction equipment, isn’t that correct?
“A. Yes, I made the statement.
“Q. And at that time you’d spent about 20 hours working on this case reviewing the facts and so forth?
“A. Mostly reviewing the maintenance manual and working with all the data that was available to us at that time.”
On the 31st day of July, 1968, after spending “about 60 to 70 hours” in study of braking and steering, Sevart thought he was qualified in the design of systems — the steering system and the braking system.
Approximately two weeks prior to the trial he had an opportunity to examine Michigan and Hancock equipment in Lubbock, Texas, and talked about three hours with the chief engineer and examined equipment. At the trial he further testified:
“I have never seen a scraper in actual operating conditions at close range. I have seen some movies of this equipment in operation. I don’t pretend to be an expert on the operation of the equipment. I don’t consider myself to be an expert on structural design. . . .”
At the trial General Motors objected to the qualifications of Sevart to testify as an expert on the design of the scraper here in question, but was overruled. On appeal we do not reach this question. (But see 3B Averbach, Handling Accident Cases, Products Liability, § 39, pp. 127-129 [Rev. Ed. 1971]; K. S. A. 60-456; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 354-357, 437 P. 2d 219; Swanson v. Chatterton [1968] 281 Minn. 129, 160 N. W. 2d 662, 31 A. L. R. 3d 1152; and Wojciuk v. United States Rubber Co. [1963] 19 Wis. 2d 224, 120 N. W. 2d 47.) The foregoing, however, does have a bearing on Sevart’s testimony regarding the design defects of the TS-24 scraper.
Sevart considered the braking system of the scraper here in question reasonably designed and entirely adequate for use under dry conditions. Under those circumstances, he considered it a very standard design and had no complaints about the strength of the drums or the shoes. His challenge to the braking system related only to the open-type construction that allows mud to freely get in the system.
He knew of no other manufacturer, mentioning seven, that had other than “open” brakes on its similar equipment. He recognized there were some considerations which favored open brakes.
Sevart’s theory was that “there should be a shield or a guard on the braking system as standard equipment.” He proposed a flexible seal over the brake. The substance of his testimony was that such structure would not keep water out, nor would it keep mud or other foreign materials out. It would merely reduce the build-up time so that maintenance would not be required every day or every half a day, but probably on a weekly or biweekly basis. The build-up “would be over a longer period of time.” He did, however, recognize that there would be a build-up of mud and foreign matter in the brakes over a given period of time.
Sevart knew of no flexible material that could be used to provide the seal over the brake which his theory postulated.
When cross-examined concerning several materials available which he mentioned could be used, it was disclosed that these materials would break down at temperatures of 250° Fahrenheit, and therefore, could not withstand either the brake temperatures of 500 to 800° Fahrenheit developed almost constantly when the scraper was in use, or the cherry-red temperatures of 1300° Fahrenheit to which the brakes heat under severe operating conditions in mountainous terrain. The flexible materials he mentioned would be subject to abrasion.
The substance of Sevart’s testimony relative to sealing the braking units was that he could not specify a definite material that should have been used in the flexible seal at the time the TS-24 was designed between 1955 and 1962. He explained he was not a “materials expert.”
The record discloses that no manufacturer had solved the problem. General Motors supplied an optional brake guard purchased by 25 to 30% of the customers. This guard, however, would serve only to keep out stones and like large pieces which could jam or destroy the brakes altogether, as, for example, in work in rock quarries. Nothing, however — not even Sevart’s seal — it was agreed, would keep out mud and water.
General Motors in the 1950’s, starting well before the scraper here in question was designed in 1955-1956, and first produced in 1957, had tried to fabricate a sealed brake system for scrapers. However, such system proved to be unreliable. In addition, North American Rockwell had worked on a sealed brake system for use in equipment operating in rice fields. Their expert testified: “We put on such a seal and our experience was that it was quite unsatisfactory.”
General Motors’ expert, Ralph Super, testified that in putting a shield on brakes the closer or more precisely the fit is made or the more you try to seal the brake, the more you create a heat problem; that a brake in its very essence is a unit that converts the energy of motion into heat and then dissipates the heat; that heat is part of the concept of braking. He said:
“. . . If you have brakes going down a grade and at the bottom you go into water or slurry, which is high enough to get in your brake, then the minute that this brake hits the water or slurry which has a cooling effect a vacuum is created inside the brake cavity and this tends to suck in the water and slurry. This is what brings it in in spite of the closeness of the fit of the shield. That is the reason that sealing has become a very difficult problem.”
On cross-examination Super, who retired January 31, 1968, from the Rockwell Standard Brake Division of the North American Rockwell Company, testified that his company had not developed sealed brakes for commercial vehicles. He distinguished commercial vehicles from military vehicles, particularly the amphibious type which are designed to operate as a truck on land, where a sophisticated sealed braking system was installed. These were tactical vehicles and were much smaller than the earth-moving equipment here under consideration. The technology in the development of braking systems, according to Super, has not developed to the point where such braking system can be used in the design of a scraper such as the TS-24. Super said:
“. . . In our company, we have not gone beyond the military because of the necessity for proper development and experience on it before it can be introduced into the commercial field.
“General Motors is one of our largest customers. They have never offered to finance any research project in this area.”
Sevart also testified regarding the steering system of the TS-24 scraper. He made no claim, nor did anyone else, that any part broke, was fabricated of any defective materials, or operated otherwise than as designed. To the contrary, he said: “My theory is that the steering system is reasonably well designed.” His only complaint was that “it steers too slow at low engine rpm. The way the machine is now designed, the speed of the steering depends upon engine speed.” Sevart thought he could improve the steering system on the TS-24 scraper. He made three proposals which he claimed would have improved the steering. He had never constructed the steering systems he envisioned in his theory. He said: “I have not had the opportunity to put together a working model of the systems that I have talked about and try them out,” and confessed that in testing a given system, “you frequently find that your first thoughts are not actually correct on the design and you have to back up and rethink the proposition and kind of start out again.”
The changes in steering that Sevart thought would make the turn more rapid were, first, to double the pump size and add a bypass. He said:
“. . . One way would have been to install a larger motor or larger pump. This would have had the effect of providing more flow of hydraulic fluid at lower engine speed. In connection with the larger pump, I would install an additional by-pass valve. This valve would route hydraulic fluid back to the reservoir. The effect of this arrangement would be to provide more flow of hydraulic fluid to the turning cylinders at low engine speeds.”
Sevart thought this system was in use on the Michigan scraper, but it turned out he had misunderstood and, on rebuttal, admitted: “I do not know of an example of this double size pump and the bypass valve on a scraper or heavy construction equipment.”
Edward R. Fryer, General Motors’ product manager for Euclid scrapers, pointed out, of the 432 horsepower developed by the front engine, 82 horsepower are already utilized in operating the pump employed in the steering system. He said it would be detrimental to the operation of the scraper to waste an additional 82 horsepower that would be used in circulating this fluid from the tank back to the tank, instead of using that power in doing the work of excavating which the scraper is designed to do. Apart from such diversion of power, Fryer pointed to added problems that would be created:
“The horsepower that is being wasted with a double size pump becomes heat which has to be cooled. So there is an additional problem in that you have to dissipate heat that is generated as a result of this bypass. That would be by either an oil cooler or something that would allow the air or radiation to take the heat away from the system. Our present system generates a small amount of heat as it passes the hydraulic fluid. I do not know the limit of heat that can be tolerated within the hydraulic system in terms of horsepower but I know that we can get into a situation where we start getting quite warm in this tank. We are about as close as we feel we want to be to the limit that can be tolerated in this connection. . .
In view of the work to be done by the scraper, Fryer did not approve utilizing up to 38% of the front engine for steering.
Sevart did not think the heat problem would be so serious but he did agree “the heat might go up, oh, 40, 50 percent.” To solve the heat problem Sevart said he would increase “the size of the reservoir.” Sevart agreed the “power bleed” was a problem, but he considered it would not prove “an insurmountable problem.”
These problems, according to Sevart, would be avoided by his second alternative — a two-speed drive. He said this system would leave the pump the same size and add a variable-speed drive. He said:
“. . . The simplest way would be to have only two speeds. This would allow the pump to rotate faster than engine speed at the low rpm and to rotate at or less than engine speed at the upper rpm level. . . .”
Sevart admitted: “I don’t know of any application of this type of arrangement on a scraper or any comparable heavy equipment.”
To avoid the criticized sudden shift at some point from one gear to the other, thereby creating a safety hazard in steering, Sevart proposed a third alternative — that of a variable-speed cone drive. This alternative proposed by Sevart to improve the steering “would have been to put some form of continuous gear ratio between the pump and the engine. . . . One such example is the cone drive. The cone drive would provide a continuously variable gear ratio.”
Although Sevart said, “Several of these are on the market now and have been available for numerous years before 1950,” General Motors’ Fryer pointed out that no application of the cone drive uses “as much horsepower as in the steering system of the TS-24.” He said, “I know of no heavy equipment manufacturer who uses anything such as the cone gear in the steering system.” General Motors’ Schindler, similarly, knew of no application of the cone drive “in situations where as much as 82 horsepower is involved.” He added: “No such drive devices were available during the period 1955 to 1962 and to the best of my knowledge are not available now.” Sevart, with respect to the cone drive method admitted: “I don’t know of any application of this type of arrangement on a scraper or any comparable heavy equipment.”
The theoretical nature of Sevart’s suggestion is revealed by his further statement: “To my knowledge, nobody has ever tried to use this arrangement on a scraper.” Sevart added:
“The application of this type [cone drive] device that I’m familiar with involves approximately 15 horsepower. I do not know of any application of the continuous gear ratio arrangement where there is 80 or more horsepower involved. If the two gears somehow became disengaged, you would lose your steering power. I think it might be reasonable to test an arrangement like this before moving it up from a 15 horsepower environment to an 80 horsepower system.”
With respect to the steering system utilized by the General Motors scraper, the record discloses no better solution was known to the industry. The steering system utilized by General Motors on the scraper in question is the standard type equipment in the heavy construction field. It is used by all manufacturers of like equipment except only Westinghouse-LeToumeau which in some models had electric steering. The evidence discloses the electric steering was slower than the hydraulic steering even at low engine rpm. Sevart admitted the steering system is, except for his complaint that it is not as fast as he would have made it, “reasonably well designed.”
General Motors’ Fryer described the search for a better system, which so far has eluded the industry. He said:
. . Our company has done research on this. We have investigated variable speed pumps. I believe that the variable speed pump offers a possible solution for better steering at low rpm. In this regard, we have gone to the extent of both design and hardware prototype and have conducted proving ground testing. However, the reliability of the system has not been satisfactory. We don’t know all the things required to make it reliable or we would have the system now. The state of the art as it existed at the time the TS-24 scraper was being manufactured, that is, 1964 and before, would not permit the incorporation of any such type of steering system.”
In 1957 Mr. Cadou, a General Motors expert witness, as test engineer, performed a comprehensive series of tests on the steering system of the S-18 scraper, which was the immediate predecessor of the TS-24 scraper. Although the TS-24 was larger and had materially increased load capacity to the S-18, the steering and braking systems of the S-18 were adapted to the TS-24 and were essentially the same. In 1964 when the TS-24 scraper involved in this accident was produced, the steering was sufficiently similar to be indicative of the response in the previous model of the S-18. Following his work in 1957 Mr. Cadou directed a written report to Mr. Schindler, then in charge of hydraulic systems, concerning his advice relative to the steering. Mr. Cadou testified:
“Q. Then, you continue in your report to say: ‘The two most generally repeated comments concerning the S-18 steering are that — 1. The steering effort or torque is not great enough in some situations, and — 2. The steering system response is erratic.’
“A. Yes, sir.
“Q. And you told him that back in 1957, is that right?
“A. That is correct.
“Q. Didn’t you go on to tell him: ‘Much of the criticism, insofar as turning torque is concerned, comes as a result of low pump pressure due to either low engine speed or worn out, inefficient pumps.’?
“A. Yes, sir.
“Q. That was perfectly obvious to you back in 1957, wasn’t it?
“A. Yes, it was.
“Q. And you told your superior that, didn’t you?
“A. That is right.
“Q. And the purpose of this report was to enable him to design a better hydraulic system, wasn’t it?
“A. In part.
“Q. Make it a safer system?
“A. In part.
“Q. And you gave him this report, and it came from his flies?
“A. Yes, sir.
“Q. Now, you even made formal conclusions, did you not?
“A. Yes, I did.
“Q. Now, in a loud voice, would you read to the jury what those were?
“A. ‘Conclusions: The S-18 compares favorably with comparable machines tested insofar as turning torque and turning time are concerned; however, it is felt that some consideration could be given the refinement and improvement of the steering control system to provide better response characteristics.’ ”
The appellees place considerable reliance upon the foregoing testimony of Mr. Cadou to support their proposition that the 40-ton scraper here in question manufactured by General Motors was unreasonably dangerous for the purpose for which it was intended.
The record discloses that with the type of earth-moving equipment here under consideration, design is a continuing thing. Fryer, employed as a mechanical engineer by General Motors, testified as an expert as follows:
“The availability of hardware and material is a very big factor in the engineering and design effort that goes into the initial design of something like a scraper. This is particularly true in our industry where we are at the outer limits of size, the availability of higher horsepower, the transmissions with which to change the speed and torque output of this horsepower, the axles, the rubber tires themselves. Everyone of those things takes a major development effort and requires that you have some allied industry people working along with you at the same time in order to come up with these large capacity products.
“The initial TS-24 was produced in 1957. In the TS-24, we had one of the more major improvements of the scraper product in terms of horsepower, reliance, durability and so forth. There was a major change in the TS-24 that was introduced around 1962. We had a substantial increase in the horsepower and the related power train that it took to handle this higher horsepower. Design is a continuing thing.
“Other scrapers manufactured by our company had a bearing on the initial design of the TS-24. The first overall tractor scrapers that we produced were the S-18 and TS-18. The braking and steering systems of the S-18 and TS-18 were similar to those which we employed on the TS-24. The design of the then TS-24 brakes and steering evolved from the S-18 and TS-18. It is my opinion that the brakes on the Euclid TS-24 are reasonably designed for the intended use and that they are reliable.
“Q. What is the importance of reliability in equipment such as the TS-24?
“A. The importance of reliability is predictability, safety. You need reliability to have the safe feeling. You do not have confidence if your brakes don’t work; you are going to feel very unsafe in anything you do.
“Q. All right, sir. Now did you hear Mr. Cadou this morning when he described a different approach being taken by General Motors people and an attempt to develop a seal disc type brake which would keep all these detriments out of brakes?
“A. Yes. I did.
“Q. Did you have an opinion as to whether that’s a reasonable approach to the matter of improving the brakes?
“A. I think it’s a very interesting, desirable approach.
“Q. Do you think it’s reached the point where it’s a reliable system?
“A. It is not with us.
“I heard the suggestion made by Mr. Sevart for improving this brake system. I heard his reference to the flexible seal to be placed on the brake guard. In my opinion that would not be a reliable way of improving the brakes. I have not heard of a seal device which would withstand the environment that these scrapers are expected to withstand.
“Some of the primary design considerations at the time the steering system of the TS-24 was designed were performance, reliability, durability and safety. The type of job is extremely variable from slow, hard pulling to the other extreme of approximately 30 miles per hour operations for hauling. The primary function of the TS-24 is to haul earth. In performance of that function, it is necessary to have the extreme steering capability to maneuver the tractor. This is when you are working the engine hard with the engine rpm high. When you are working out or scraping out earth and picking it up and later unloading it, the engine is generally running 1800 to 2100 rpms. On the haul roads, the scraper will generally be up to 1800 to 2100 rpms. If you have performance, reliability and durability, you automatically have safety. These were some of the considerations that we had in mind when we undertook design of the steering system of the TS-24. We selected the system which has been shown to the court where hydraulic cylinders react to get relative motion between the tractor and scraper units.”
He further testified:
“Our company has manufactured between 3600 and 3700 TS-24, S-18 and TS-18 scrapers using the braking system identical to that we have been talking about.”
The attempt of General Motors to show by evidence that no claim or complaint of accident or injury had been blamed on the steering system or defective design of the steering system of the scraper in question was met by objection, which the trial court sustained. This point we do not reach in our decision. (See 71 Yale L. J. 816, at pp. 830-833, “Manufacturer’s Negligence of Design or Directions for Use of a Product.”)
The case at bar does not involve an “implied warranty of design,” but it does involve negligence in design. On this point the manufacturer has a duty to use reasonable care in the design of its product so it will be reasonably safe for its intended use, including any emergencies of use which can be reasonably anticipated. (See Instruction No. 8, supra.) Whether the record presents sufficient evidence of a breach of that duty by the manufacturer to require submission of the question to the jury is conceded by the parties to be a matter of law.
The appellees contend that even though the product was operating exactly as it was designed to operate it was still defective, if it created an unreasonable risk of injury. They argue General Motors not only violated but simply ignored the principle, having assumed that if operators did not complain, performance is adequate; that General Motors only designed its machine to perform as well as its competitors; and having decided that most normal operating conditions did not require rapid turning of engines, General Motors simply ignored that problem. They further argue that General Motors, having assumed that safety is not a significant factor on a construction site, paid no special attention to it; and since emergencies on construction sites are not important, the ability to respond to them was not considered.
The courts are nearly unanimous in saying the product-design duty of a manufacturer is that of reasonable care, but it is not an insurer that its product, from a design standpoint, be accident-proof or incapable of producing injury. (Evangelist v. Bellern Research Corporation, 199 Kan. 638, 648, 433 P. 2d 380.)
In the instant case it is not enough to say that the scraper did not stop or turn quickly enough. In 42 Wash. L. Rev. 601, “Manufacturer’s Liability for Defective Automobile Design,” it was said:
“To prove defective design, it is insufficient merely to assert that a different design would have alleviated or averted the plaintiff’s injuries, since it may be assumed that any particular accident involving man and machine might have been avoided through a variation in the design of the machine. However, such a variation might greatly magnify the chances of other sorts of mishaps taking place, or else render the machine incapable of reasonably efficient performance of its function. . . .” (p. 608.)
The need to show that there was a defect of some kind in design and not merely that a better design might have been conceived, is illustrated in Winn v. Sampson Construction Co., 194 Kan. 136, 398 P. 2d 272. There the court held the contractor liable “for alleged negligence in designing and constructing a grain storage elevator which resulted in a partial collapse of the structure.” (p. 137.) But this was affirmed only upon a meticulous analysis of the evidence demonstrating the deficiencies in design that brought about the collapse.
All courts agree that as a matter of law, a manufacturer is not obligated to adopt only those features which represent the ultimate in safety or design. (Stevens v. Durbin-Durco, Inc. [Mo. 1964] 377 S. W. 2d 343, 348; Bartkewich v. Billinger et al., Aplnts. [1968] 432 Pa. 351, 247 A. 2d 603; Kerber v. American Machine & Foundry Company [8th Cir. 1969] 411 F. 2d 419; and Mitchell v. Machinery Center, Inc. [10th Cir. 1961] 297 F. 2d 883.)
In Dean v. General Motors Corporation (E. D. La. 1969) 301 F. Supp. 187, the court said:
“Negligence is not proved merely because someone later demonstrates that there would have been a better way. Reasonable care does not require prescience nor is it measured with the benefit of hindsight. Tort law does not expect Saturday manufacturers to have the insight available to Monday morning quarterbacks.” (p. 192.)
In the determination of whether or not a manufacturer has in fact exercised the care and skill of an expert, several matters are to be considered. One of the most significant factors is whether others in the field are using the same design, or a safer design. Other factors to be considered are whether a safer design not yet in use is known to be feasible, and whether in the case of a new product there has been adequate testing. (Watts v. Bacon & Van Buskirk [1959] 18 Ill. 2d 226, 163 N. E. 2d 425; and Amason v. Ford Motor Co. [5th Cir. 1935] 80 F. 2d 265.)
While cases indicate that use by others of the same design tends to negative an allegation of negligence, this evidence is not always conclusive, as stated by Justice Holmes in Texas & Pacific Ry. Co. v. Behymer (1903) 189 U. S. 468, 47 L. Ed. 905, 23 S. Ct. 622: “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” (p. 470.)
This principle has been applied in the field of products-design in Northwest Airlines v. Glenn L. Martin Company (6th Cir. 1955) 224 F. 2d 120, where the court said:
“. . . the fact that Northwest conformed to the practice of other airlines in failing to equip No. 44 with radar did not establish its exercise of ordinary care as a matter of law. Customary practice is not ordinary care; it is but evidence of ordinary care. . . .” (p. 129.)
The alternatives suggested by the appellees’ expert witness were neither available nor feasible. In Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P. 2d 723, the court said:
“. . . at the time of the sale, or at the time of the accident, no device had been contrived or invented to serve as a shield around the middle universal joint so as to protect persons working about the outfit from coming in contact with it.” (pp. 642, 643.)
In reversing the lower court with instructions to enter, judgment for the defendant the court observed:
. . Not many years ago, the automobile was started by a hand crank which often evinced a temperamental habit of “kicking’ which resulted in a broken wrist of the operator. In time a safe device for starting automobiles was invented, but it could hardly be said that the early auto-manufacturer was culpably negligent in equipping his vehicles with hand cranks. . . .” (p. 644.)
The appellees attack the position of General Motors to retain a competitive position in the manufacture of earth-moving equipment and their interest in economy. In our free enterprise system the ability of a manufacturer to remain competitive is a prerequisite to any manufacturer at all, and rules of law cannot be fashioned without giving due consideration to the economic factors involved. For example, General Motors in the manufacture of earth-moving equipment is not required to expend exorbitant sums of money in research to devise a sophisticated braking system which would price its product completely out of the market. The TS-24 scraper here in question is shown to have cost approximately $90,000.
The mammoth TS-24 scraper here under consideration was designed primarily to haul earth. It had the capacity to haul 40 tons of earth in one load. The type of job it was required to do was extremely variable, from slow, hard pulling in the loading process to the extreme of maneuvering at approximately 30 m. p. h. in hauling. In the performance of such work the scraper was designed for use in variable environmental conditions, from level to mountainous terrain, in rock and soil, and from dry to wet and muddy conditions in excavations where deep slurry is encountered. In the performance of its function the scraper was designed to have extreme steering capability to maneuver.
When the purpose for which the TS-24 scraper was intended and the environment in which it was to be used are considered, we cannot say the evidence upon which the appellees rely discloses the scraper to be unreasonably dangerous. The air brakes were sufficient, even with the accumulation of mud in them, to stop the scraper in a shorter distance than its length at a speed of 10 m. p. h., the speed at which it was traveling when the accident occurred. It could be stopped in a much shorter distance by using the pan or bowl as a brake. No sealing device for enclosing the brakes to keep out mud was shown by the evidence which would withstand the environment to which these scrapers are subjected.
The performance of the steering system was reliable and durable. It was the standard steering system used in the heavy construction industry and no better turning device available was disclosed by the evidence.
An attempt has been made in this opinion to fairly analyze the evidence in a highly technical record to give perspective to our decision.
In our opinion the evidence upon which the appellees rely to prove negligence in the design of the braking and steering systems of the TS-24 scraper was not of sufficient dignity to warrant its submission to the jury for consideration. In other words, there was no substantial competent evidence, as a matter of law, upon which the jury could find the appellant negligent in designing the braking and steering systems of the TS-24 scraper. Accordingly, the trial court should have sustained the appellant’s attack upon the evidence made at various points throughout the proceedings.
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|
The opinion of the court was delivered by
Foth, C.:
The basic issue presented in this appeal is whether an insurance carrier which has issued a policy containing an uninsured motorist clause may, by timely motion, intervene as of right as a party defendant in an action brought by its insured against an uninsured motorist. There are other issues the parties seek to have determined, but for reasons to be discussed we do not deem them ripe for decision on this record.
The details of the automobile collision out of which this action arose are not important to the decision in this case. Suffice it to say that on February 19, 1969, the plaintiffs-appellees, Josephine M. Rawlins and her two minor children, were passengers in a car driven by Mrs. Rawlins’ husband, Edward G. Rawlins, on Reynolds Ave nue in Kansas City, Kansas, when the Rawlins car was involved in a collision with a car driven by the seventeen-year-old defendant below, Charles W. Stanley.
Although the record is not clear, apparently Mary Stanley, mother of Charles W. Stanley, thereafter brought an action in the magistrate court of Wyandotte County against Edward G. Rawlins for damage to the Stanley car. The intervenor-appellant, Farmers Underwriters Association (hereinafter “Fanners”) apparently defended that action pursuant to its liability policy issued to Rawlins. The nature of the defense is not clear from the record, but apparently it was successful.
On May 2,1969, counsel for plaintiffs addressed a letter to a claim agent for Farmers advising him in substance that the Rawlins’ intended to bring an action against Charles Stanley for the plaintiffs’ personal injuries; that he was informed that Stanley was uninsured; and that Rawlins intended to make a claim against Farmers under its uninsured motorist policy.
A copy of this letter was sent to counsel who had defended the prior magistrate court action, together with a request that he furnish plaintiffs’ counsel with any available information concerning the accident.
So far as the record reveals, there was no further communication among any of these persons until plaintiffs’ counsel received a letter from the trial court dated September 16, 1969, advising that the case was set for trial at 1:30 p. m. on September 30, 1969, whereupon, on September 17, 1969, plaintiffs’ attorney wrote Farmers’ claim agent advising him of the trial setting.
There is no indication in the record that Farmers was ever notified that the petition in this case had actually been filed on May 5, 1969, or that the defendant had, through counsel, filed an answer consisting of a general denial on May 27,1969.
On September 24, 1969, Farmers filed a motion to intervene as a party defendant, and for a continuance of the trial in order to permit it to investigate plaintiffs’ claims and prepare for trial. Attached to the motion was Farmers’ proposed answer setting out that it had issued a policy to Rawlins with an uninsured motorist clause under which it might be liable to plaintiffs under certain circumstances if Stanley was uninsured; that plaintiffs had failed to comply with one of the terms of the policy requiring the insured to forward to Farmers a copy of the summons and petition in any action by the insured against a third party; that its policy provided that it would not be bound as to liability or amount of damages by any judgment obtained by the insured against an uninsured motorist; and that it generally contravened the plaintiffs’ allegations of negligence and injuiy.
The motion to intervene was heard by the trial court on September 30, 1969, before the trial was to commence. Plaintiffs strongly resisted the motion before the trial court, as they do here, on the ground that it was not timely. Although the proceedings on the motion do not appear in the record, each party includes a transcript of the court’s findings from the bench as an appendix to its brief. The court’s pertinent remarks were:
“All right. Apparently, it’s an open question in Kansas how these matters should be handled. I’m on the side of making these two separate proceedings— one where the plaintiff proceeds against the alleged tort-feasor, and then if he prevails, he can proceed against his insurance company on the uninsured motorist clause. I think this is a lot better way to handle it. I’m not going to go on the basis of the delay in coming in, but I’m going to put it straight out that I think this is the way it ought to be handled — by separate proceedings. I doubt that anything I would say on whether the company is ultimately bound by a judgment which the plaintiff might get would be dicta only because as has been pointed out, the insurance company isn’t in the case. It would be my guess that the insurance company would not be bound by the amount as determined by the Court in this proceeding; in view of the terms of the policy, but I don’t think I am going to make a ruling one way or the other on that.”
Intervention was accordingly denied, and this appeal followed. The motion was made pursuant to that portion of K. S. A. 60-224 (a) which, prior to its amendment, read:
“(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; . . .”
By subsequent amendment by this court, part (2) of what now appears as K. S. A. 1970 Supp. 60-224 (a) now reads:
“Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
The effect of the amendment is to broaden the right of intervention. The showing now required is whether “as a practical matter” the disposition of the case will “substantially impair or impede” the would-be intervenor’s ability to protect his interests. He no longer must show that he is or may be “bound” by the judgment.
Under either version of the statute it appears that the right to intervene depends on the concurrence of three factors: (1) timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor’s interests.
In this case there is no question raised by either party as to the third element. Indeed, an examination of the trial proceedings shows the defense of the uninsured motorist Stanley to have been nominal at best. Plaintiffs’ only two witnesses, Mr. and Mrs. Rawlins, were not cross examined either as to liability or injuries, and no medical evidence was adduced. The defense consisted of a brief narration by the minor defendant as to the circumstances of the collision. On this meager evidence the court awarded judgment to the plaintiffs in the amount of $4,850 to Mrs. Rawlins and $525 to each of the two children.
As to the other two statutory elements, the parties’ arguments pass each other as ships in the night. Farmers, faced with the trial court’s declaration as to its view that intervention is never proper, devotes almost its entire argument to the proposition that it at least “may be” bound by the judgment, and asks us to determine whether it would be. Plaintiffs-appellees, on the other hand, not wishing to concede that Farmers would not be bound, argue exclusively that the attempted intervention was not timely. Although the court below expressly declined to rule on that issue, they would have us affirm on the well known principle that a correct result will be upheld on appeal even if the wrong reason is given. See, e. g., Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 4, 434 P. 2d 858. They conclude by asking us to say that if intervention is proper so is joinder of the insurance company as a party defendant, even though they did not elect to follow that course.
The difficulty with both, so far as this court is concerned, is the state of the record. We do not have before us the policy itself, on which Farmers’ contentions would appear to turn. It was issued, presumably, under the mandatory provisions of what is now K. S. A. 1970 Supp. 40-284 et seq. We assume it obligates Farmers in the statutory language to pay to its insured, the Rawlins’, the amount they “shall be legally entitled to recover as damages from the uninsured owner or operator of the motor vehicle.” If the policy contained the statutory alternative “providing for such payment irrespective of legal liability of the insured or any other person or organization,” Farmers’ proposed defense would have been quite different. In addition we have before us only the two isolated excerpts from the policy contained in Farmers’ proposed answer noted above, the first requiring notice to the company of the filing of an action and a copy of the process and pleadings, and the second providing that Farmers would not be bound by any judgment obtained in an action against an uninsured motorist.
What we do not know is whether the policy contains an arbitration clause, a “no action” clause forbidding suit by insured without consent of Farmers, or whether in the total context of the policy the clauses Farmers chose to excerpt in its proposed answer, or either of them, are so inextricably interwoven with such other clauses as to invalidate them. This was the holding in the recent case of Heisner v. Jones, 184 Neb. 602, 169 N. W. 2d 606. There the insured, after fruitless negotiations with her insurance carrier, brought suit against the uninsured motorist and secured a default judgment. She thereafter brought garnishment proceedings against the insurance carrier, which defended on the arbitration clause in its policy and its lack of consent to be bound by the results of the primary suit. The Nebraska court struck down both policy provisions, the arbitration clause as against public policy and the consent provision because “. . . although separately printed and stated in the policy, the consent to be bound provision and the arbitration clause are mutually complementary and mutuahy reciprocal, and inducive to each other, and therefore must be stricken as a part of an arbitration scheme which is void as against public policy.” (184 Neb. 602, 609.) The insurance carrier’s remedy, it was held, was to intervene in the original action by its insured.
While Kansas does not take exactly the same attitude as Nebraska toward agreements to arbitrate future disputes, such agreements are revocable at will by either party. See Thompson v. Phillips Pipe Line Co., 200 Kan. 669, 438 P. 2d 146. We do not know, however, whether in any future litigation between the Rawlins’ and Farmers the company’s defense might be based on an arbitration clause, a “no action” clause, insufficiency of notice of this action, or its stipulation not to be bound. Neither do we know whether any of such defenses would be legally tenable, when the entire policy is considered.
We note that in some states the statutes requiring uninsured motorist coverage also require the insured to serve process and pleadings on his carrier in any suit against an uninsured motorist. In this situation, it has been held that the insurance carrier has an absolute right to intervene. See State Farm Mutual &c. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S. E. 2d 852; State Farm &c. Ins. Co. v. Brown, 114 Ga. App. 650, 152 S. E. 2d 641. The same result has been reached under policy provisions containing similar requirements as to service. State v. Craig, 364 S. W. 2d 343, 95 A. L. R. 2d 1321 (Mo. App. 1963). And, see Anno., 95 A. L. R. 2d 1330.
In Boughton v. Farmers Insurance Exchange, 354 P. 2d 1085, 79 A. L. R. 2d 1245 (Okla. 1960), the insurance carrier was denied the right to relitigate with its insured either the question of liability or damages where it had notice of the pendency of the action, including copies of process and pleadings, and chose to rely on its arbitration and no action clauses rather than intervene. The Oklahoma court, like the Nebraska court in Heisner v. Jones, supra, invalidated both these clauses. It held, without mention of either statutory or policy provisions requiring notice, that the company should have protected its interests in the first suit and was in effect “bound” by the judgment its insured obtained against the uninsured motorist. A similar result was reached in Indiana Insurance Company v. Noble, 265 N. E. 2d 419 (Ind. App. 1970), where the authorities are reviewed at length in an extensive opinion. Many, it will be noted, hold intervention proper on purely policy grounds, to avoid multiplicity of suits.
We cite these cases not for the proposition that Farmers would be bound by the judgment in the instant case. That issue could only arise in direct action on the policy by the Rawlins’ against Farmers. We do cite them, and could cite others, to show that by failing to intervene after receiving notice of the pendency of such an action a carrier in Farmers position subjects itself to a distinct and real hazard that it might be so bound. Under our intervention statute quoted above that possibility was enough to give Farmers standing to intervene as a matter of right, if its application to do so was timely. The court below therefore erred in concluding that any dispute between tbe Rawlins’ and their carrier Farmers must be resolved in a separate action.
There remains the question of the timeliness of Farmers’ motion to intervene. Appellees would have us find it untimely as a matter of law. This we cannot do on the record before us. Only two notices to Farmers appear in the record: one, a letter from plaintiffs’ counsel stating that he intended to file an action, and the second a letter stating the matter was set for trial some twelve days later. This, so far as we know, was the first notice it received of the actual pendency of the action, and it acted with due dispatch upon its receipt. We cannot find that the first letter required Farmers to intervene in an action not yet filed and which might never be filed. Neither do we find that courthouse hall conversations supposedly occurring between plaintiffs’ counsel and Farmers’ counsel in prior litigation constituted notice to Farmers. We are not inclined to construe the notice provision of the policy in the abstract, without the benefit of the rest of the policy, but we do hold that Farmers’ duty to act could not arise until it had actual knowledge of the pendency of the action. The propriety of joining Farmers as a party defendant is clearly not before us where no attempt was made to do so.
The court below should therefore reconsider Farmers’ motion to intervene. If additional evidence is introduced of actual knowledge by Farmers of the pendency of the action at a point in time indicating the company slept on its rights, it may wish to adhere to its ruling denying intervention. If not, the judgment below should be vacated and Farmers’ motion to intervene should be sustained.
The judgment is reversed and the case remanded for further proceedings in accordance with the views expressed herein.
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The opinion of the court was delivered by
Harman, C.:
The action in district court was one to compel specific performance of two leases of billboard space on each side of a business building or, in the alternative, for damages for failure to perform.
Trial was to the court. At the conclusion of plaintiff’s evidence the court sustained defendants’ motion for involuntary dismissal. Plaintiff appeals from that order.
The matters at issue can best be understood by reciting the findings made by the trial court:
“2. ’Gill Mortuary’, the name by which the plaintiff is designated in this action, is the business name employed by Millie E. Gill in the operation of a mortuary located at 243 North Emporia Avenue, Wichita, Kansas. Hugh W. Gill, Jr. is employed as the manager of said mortuary, and is the agent for its owner.
“3. Clinton A. Park was president of R. W. Park & Sons, Inc., a corporation, which for many years owned and operated an establishment for the sale of grave stones and monuments in a store building located at 1707 East Douglas Avenue, owned by said R. W. Park & Sons, Inc. and legally described as follows, to-wit: [description].
“4. Prior to 1962, R. W. Park & Sons, Inc. leased space atop said building to the Coca Cola Bottling Company for its billboards. On December 21, 1962, R. W. Park & Sons, Inc. entered into two lease agreements with Hugh Gill, Jr., in the name of Gill Mortuary, as lessee.
“5. Under one of said leases (Plaintiff’s Exhibit #2), Gill Mortuary was granted the right and permission to occupy space described in said lease as the ‘West side of roof at 1707 East Douglas’ for a term of sixty (60) months, unless sooner terminated as provided in said lease, commencing on January 1, 1963. Under the other said lease (Plaintiff’s Exhibit #3), Gill Mortuary was granted the right and permission to occupy space described in said lease as the ‘East side of roof at 1707 East Douglas’ for a term of sixty (60) months unless sooner terminated as provided in said lease, commencing on February 3, 1963.
“6. Although not expressly stated in said leases, the Court finds that it was the intent of the parties thereto for Gill Mortuary to be granted the right and permission to erect ‘electrical displays’, i. e. illuminated billboards, on the west and east sides of the roof of said buildings where there had been Coca Cola signs previously, for a monthly rental stipulated in said leases. Large, illuminated billboards advertising the Gill Montuary were erected under said leases, on the east and west sides of the roof of said building at 1707 East Douglas Avenue in Wichita, Kansas.
“7. In each of said leases, Gill Mortuary was granted an option to renew the agreement for a period of sixty (60) months, provided ‘said option to be exercised in writing at least ninety (90) days prior to expiration of this lease’.
“8. It was further provided in each lease that in the event R. W. Park & Sons, Inc. might sell, lease or rent tire property at 1707 East Douglas, after the lease, or extension thereof, had been in effect thirty-six (36) months, said lessor could terminate the lease by giving lessee ninety (90) days notice. The Court finds that it was the intent of the parties to said leases that the same could be terminated at any time after said leases had been in effect for thirty-six (36) months, in the event the property was sold, leased or rented, whether or not the leases were still within the basic sixty-month term or had been extended.
“9. On or about June 22, 1966, R. W. Park & Sons, Inc. listed the property for sale with Bill Earnest, a realtor associated with the B. J. Watkins Realty Company. This realtor negotiated with Sutoris, Inc., defendant herein, for the purchase of the property owned by R. W. Park & Sons, Inc. At about the same time, Sutoris, Inc. completed the purchase of all the separate properties on the south side of the 1700 block of East Douglas, adjoining the R. W. Park & Sons, Inc. property on both sides.
“10. Said Bill Earnest informed Paul E. Sutoris, president of Sutoris, Inc., of the provisions for termination contained in said leases.
“11. On December 6, 1966, Clinton A. Park, on behalf of R. W. Park & Sons, Inc., and Paul E. Sutoris, on behalf of Sutoris, Inc., executed a real estate contract (Plaintiff’s Exhibit #1), which included, among other things, a provision that the buyer would honor ‘an existing lease on a sign which has approximately two (2) years duration left; all income from said sign to go to the sellers who agree to remove and relocate said sign, at seller’s expense, so as not to deter or distract from the buyer’s proposed use of the property.’
“12. Clinton A. Park promptly informed Hugh Gill, Jr., of the sale of the premises, and Hugh Gill, Jr., agreed to have the signs removed. Hugh Gill had knowledge that the building would be demolished by Sutoris, Inc.
“13. Thereafter, Clinton A. Park, on behalf of R. W. Park & Sons, Inc., executed a General Warranty Deed, dated March 16, 1967, conveying the property to Sutoris, Inc., without reservation or exception. The deed was recorded the same date.
“14. Following delivery of the deed to said property to Sutoris, Inc., and more than ninety days after notice was given to him by Clinton A. Park of the sale of said property, Hugh Gill had the billboards removed, at the expense of Gill Mortuary. Rental for the space occupied by said signs was paid each month until said billboards were removed, and Gill Mortuary was not in default in the payment of the rent under said leases at the time the billboards were removed.
“15. Thereafter, the building at 1707 East Douglas and the other buildings on the south side of the 1700 block on Douglas Avenue were demolished and the entire tract of land cleared. Sutoris, Inc., then commenced construction of a large, substantial and attractive brick building of special design and decor for the purpose of operating a car wash enterprise. Said building, completed at die time of this trial, occupies most of the south side of the 1700 block on East Douglas Avenue, without distinction as to previous boundaries. The present use of the land, and the improvements constructed thereon, are wholly and distinctly different from the prior uses and structures thereon, and are not identifiable therewith.
“16. From the evidence, the Court finds that no person informed Sutoris, Inc., or its officers, employees or agents, of any intention by the plaintiff to re-establish the Gill Mortuary billboards on the premises purchased by Sutoris, Inc., from R. W. Park & Sons, Inc., or claimed any continuing leasehold estate in the premises, until February 8, 1968, at which time the building constructed by Sutoris, Inc., was substantially completed.
“17. From the evidence, the Court finds there was no mutual understanding or agreement, written or oral, between or among any of the parties involved, for any modification or suspension of the terms of the Gill Mortuary leases, so as to have extended said leases or prevented their expiration on December 31, 1967 and February 2, 1968, respectively, by their own terms.
“18. On February 8, 1968, and more than sixty months from the commencement of said leases, Hugh Gill, Jr. advised Sutoris, Inc. that Gill Mor tuary was electing to exercise the option to extend the leases, and that Gill Mortuary’s sign company had been instructed to proceed with erection of said signs. (Plaintiff’s Exhibit #4.)
“19. On February 19, 1968, Sutoris, Inc., through its attorney, notified Hugh Gill, Jr. that if it was assumed the leases had not theretofore expired or been terminated, it was giving notice of termination of said leases at that time.”
Recapitulating the more significant events chronologically, the five year term leases between appellant Millie E. Gill and the initial lessor or building owner by their terms became effective January 1, 1963, and February 3, 1963; the lessor entered into a contract of sale for the building with appellees on December 6, 1966, and conveyed title to the building to the latter by warranty deed March 16, 1967; appellant removed her signs from the building either in March or April, 1967, and appellees thereafter constructed the carwash enterprise on the entire block in question; on February 8, 1968, appellant exercised its claimed option to renew the leases, and on February 19, 1968, appellees declared the leases terminated.
Rased on its findings the trial court made the following conclusions :
“1. Paul E. Sutoris, defendant herein, is not the owner of any property involved in this lawsuit, and any act on his part was done in his capacity as president of Sutoris, Inc., defendant corporation, and not by him individually. Wherefore, the Court concludes that said Paul E. Sutoris is not a proper party defendant in this action.
“2. The right and permission to Gill Mortuary to occupy space on the roof of the building formerly located at 1707 East Douglas, terminated when Hugh Gill removed the plaintiff’s billboards after notice of sale of the premises, at the expense of Gill Mortuary and in compliance with said lessee’s obligations under said lease in the event of termination, when said Hugh Gill knew the building was to be demolished, without making known to any party to the transaction any intent, claim or belief that he did not agree to, or acquiesce in the termination of said leases and tire destruction of said leasehold estates.
“3. In addition to the foregoing, said leases expired by their own terms on December 31, 1967 and February 2, 1968, respectively, and any purported attempt by the plaintiff to extend said leases beyond those dates was ineffective.
“4. In addition to the foregoing, if said leases were not terminated and did not otherwise expire, as stated herein, the said leases were terminated by Sutoris, Inc. on February 19, 1968.
“5. The plaintiff’s evidence is insufficient to establish any right, in equity, to compel the defendants Sutoris, Inc. or Paul E. Sutoris to specifically perform said lease agreements.
“6. Said leases, relied upon by the plaintiff, are impossible of performance.
“7. The plaintiff is not entitled to damages or specific performance, on account of the plaintiff’s laches, acquiescence, waiver, estoppel and unexcusable delay in presenting any right or claim of a leasehold on the premises which Sutoris, Inc. purchased from R. W. Park & Sons, Inc. free and clear of all encumbrances.
“8. The plaintiff has not established the amount of any ascertainable damages as a result of the removal of the billboards in controversy; and the amount of loss or damage, if any, sustained by the plaintiff is wholly speculative and incapable of measurement by this Court, based upon the plaintiff’s evidence.”
The court thereupon entered judgment against appellant.
In urging reversal appellant treats the trial court’s action as though it amounted to entry of summary judgment rather than an order sustaining a motion for involuntary dismissal. She argues the court erroneously failed to construe the evidence strictly against appellees and liberally in favor of appellant. No such rule prevails where trial is to the court. In the oft-cited case of Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847, we held;
“Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiff’s case pursuant to the provisions of K. S. A. 60-241 (b), based on the ground that upon the facts and the law the plaintiff has shown no right to relief, the trial judge has the power to weigh and evaluate the evidence in the same manner as if the were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case, overruling Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575.” (Syl. ¶ 7.)
Actually appellant does not in any of her contentions question the existence of substantial evidence in the record to support the trial court’s findings. Hence if those findings justify any of the several conclusions of law adverse to appellant, and the judgment rendered thereon, appellant cannot prevail.
Among other matters, the trial court concluded the two leases had by their own terms expired prior to any attempt by appellant to exercise the renewal option and therefore the attempt was ineffective (Concl. No. 3).
Each lease contained a provision it could be renewed for an additional period of five years at the option of the lessee, such option to be exercised in writing at least ninety days prior to the expiration of the lease. Appellant argues she did in fact timely exercise the option to renew. She bases this argument on her contention the leases were suspended for a period of time while the old building was being razed and the new structure was being built, and that the leases did not expire until July 1, 1969. Upon what legal premise the leases remained viable until that date is not made clear. Appellant has conceded throughout that the terms of the leases are clear and unambiguous. In finding No. 17 the trial court specifically found there was no mutual understanding or agreement, written or oral, between the parties for any modification or suspension of the terms of the leases so as to have extended them or prevented their expiration on December 31,1967, and February 2, 1968. Mutuality is required in order to amend the terms of a contract and one party cannot unilaterally change its terms (Guy Pine, Inc. v. Chrysler Motors Corp., 201 Kan. 371, 376, 440 P. 2d 595; Fast v. Kahan, 206 Kan. 682, 481 P. 2d 958). Hence the purported exercise of the options to renew made on February 8, 1968, came too late.
Appellant complains the trial court actually made an oral finding from the bench at the conclusion of her evidence to the effect the leases were still in their base period. These comments were made in connection with the court’s discussion of the February 19, 1968, termination by appellees to indicate that in any event following a sale of the building after the leases had been in operation for a period of thirty-six months (which situation existed) the appellees could rightfully terminate. Beyond this, however, where inconsistency exists, express written findings of fact formally made and entered as the judgment of the court must prevail over informal oral remarks previously made from the bench (see cases cited in 2B Barron and Holtzoff, Federal Practice and Procedure, rules ed., 1970 Pocket Part, § 1128, note 93, p. 199).
Appellant stresses the fact that appellees in their contract for the purchase of the building acknowledged the existence of and agreed to honor the signboard leases. This fact, however, does not advance appellant’s cause inasmuch as appellees have done nothing in violation of the leases. Even their final termination of the leases, assuming they were still in effect, was specifically authorized by a clause in the leases and would be operative despite any extension or renewal clause in them (see Batchelors Building Maintenance Service, Inc. v. Douglas Avenue Corp. Inc., 205 Kan. 149, 468 P. 2d 189, in which a termination by notice clause in a contract for janitorial service for a building was held to take precedence over a clause providing that one year’s contract rights would be guaranteed in event the building owner sold the building).
Appellant’s argument essentially is that appellees cannot avoid their contractual duty simply because they do not wish to have the billboard displays re-erected, which, as indicated, disregards plain provisions in the leases as to termination dates and the right to cancel upon sale after thirty-six months’ operation.
We have considered other matters raised by appellant, including the exclusion of an exhibit offered by her to show removal and relocation costs of the signs, but find nothing to warrant disturbing the judgment and it is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from a judgment upholding a state board of tax appeals order denying refund of state income taxes paid by a railroad company for the years 1962 through 1965.
The issues on appeal are whether certain statutes providing for the method of income tax computation are constitutionally invalid as an unlawful delegation of legislative power or because they are discriminatory and deny equal protection of the law.
Facts in the proceeding were stipulated in the trial court. We summarize them:
Appellant Missouri Pacific Railroad Company was in 1937 and at all times since, and is now, subject to the jurisdiction and regulation of the Interstate Commerce Commission which is authorized by federal law to require appellant to make annual, periodical or special reports to it and to prescribe a uniform system of accounts applicable to any class of carrier subject to its jurisdiction and, pursuant thereto, the commission has promulgated regulations prescribing a uniform or standard system of accounts to be kept by all Class I carriers, to which class appellant belongs. In 1937 the ICC had prescribed a standard classification of accounting for rate-making and other regulatory purposes and appellant was required to and did keep its records according to such classification. The ICC has the authority to amend or change its standard classification of accounts and it has done so from time to time since 1937; such amendments or changes have been published by the ICC but the appellee director of revenue of the state of Kansas has not been consulted or notified with respect thereto prior to their issuance or publication; the standard classification of accounts and subsequent changes and amendments have not at any time been set out and incorporated in any statute enacted by the Kansas legislature; upon the making of such amendments and changes from time to time in the standard classification of accounts and as a result thereof, the net taxable income of railroads determined under the applicable Kansas statutes was altered; such amendments and changes in the ICC’s standard classification of accounts have been recognized and enforced by the state director of revenue and his predecessors in determining appellant’s net income taxable in Kansas since 1937, the effect of which is that depreciation is taken into account on the straight-line method and appellant is not permitted to use any of the forms of accelerated depreciation or the guidelines issued by the federal internal revenue service which it uses in its federal income tax returns and is permitted to use in many other states and' which many other corporations doing business in Kansas are permitted to use in determining net income taxable in this state. The ICC made no change in the standard classification of accounting during the tax years in question.
Appellant timely filed its state income returns with appellee director for the year 1962 under the provisions of G. S. 1961 Supp. 79-3218 and for the years 1963, 1964 and 1965 under K. S. A. 79-3290 (both statutes being identical for present purposes) and paid the amount of tax due thereunder, totaling $129,012.30. Appellant-used the same method in computing its net taxable income in Kansas for the years 1937 through 1961.
Prior to the expiration of four years from the date of filing each of the returns for the years 1962 through 1965 appellant filed with appellee its amended returns for those years, with its net taxable income computed in accordance with the provisions of K. S. A. 79-3279 (and its predecessor statute), incorporating the general three-factor method provided thereby; such amended returns showed no tax liability for the years in question, and at the same time of their filing appellant filed an application for refund in the amount of $129,012.30, pursuant to K. S. A. 79-3230. The parties concede the mathematical correctness of both. sets • of tax returns filed by appellant, and that the amount of tax to be paid depends on the constitutionality of the statutes challenged herein., At no time during the period from 1937 to 1965 did appellant petition appellee for a change in the method of allocation of appellant’s income under the provisions of either G. S. 1949, 79-3219 or its successor statute K. S. A. 79-3291.
Appellant’s application for refund was heard and denied by appellee and then in turn, upon appeal, by both the state board of tax appeals and the district court of Shawnee county. This appeal ensued.
Appellant’s principal contention is that K. S. A. 79-3290 under which it paid its 1963, 1964 and 1965 taxes, and that portion of G. S. 1961 Supp. 79-3218 containing the same provisions as K. S. A. 79-3290, under which it paid its 1962 taxes, are unconstitutional as an unlawful delegation of legislative power in violation of article 2, section 1, of the Kansas constitution. This latter proviso states:
“The legislative power of this state shall be vested in a house of representatives and senate.”
Our income tax law was first enacted in 1933. In 1937 it was amended to include a new section which contained with respect to corporations doing business in Kansas both (a) a general method of determining corporate net income taxable in Kansas which was applicable to corporations not classified as public utilities and (b) a separate method of ascertaining such net income of corporations engaged in operating a railroad, telephone or telegraph business, or other forms of public service, when such corporations were required by the Interstate Commerce Commission to keep records according to its standard classification of accounting. These provisions were at various times reenacted and eventually that which is described as (a) above became K. S. A. 79-3279, and (b) became K. S. A. 79-3290.
K. S. A. 79-3279 provides as follows:
“All business income shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three."
The provision has come to be known as the three-factor method and is the one appellant contends should be applicable to it.
K. S. A. 79-3290, identical in effect to the latter part of G. S. 1961 Supp. 79-3218, and under both of which appellant paid the taxes in question here, provides in pertinent part:
“The basis of ascertaining the net income of every corporation or business entity as defined by subsection (f) of section 1 [public utilities], when such business entity is required by the interstate commerce commission or federal power commission to keep records according to its standard classification of accounting, shall be the ‘net revenue from operations’ of such corporation as shown by the records, kept in accordance with that classification of accounts, when their business is wholly within this state, and when their business is part within and in part without the state, their net income within this state shall be ascertained by taking their gross ‘operating revenues’ within this state, including in their gross ‘operating revenues’ within this state the equal mileage proportion within this state of their interstate business and deducting from their gross ‘operating revenues’ the proportion average of ‘operating expenses’ or ‘operating ratio’ for their whole business as shown by the records kept in. accordance with the standard classification of accounts: . . .”
This lawsuit presents the first constitutional challenge to 79-3290 and its predecessors since their enactment.
Essentially, appellant contends K. S. A. 79-3290 delegates to the Interstate Commerce Commission legislative power to provide from time to time, at its discretion and pleasure for rate-making- and other regulatory purposes, the formula for use by appellee director of revenue in determining the net income of railroads as a basis for ascertaining the amount of state income taxes. It argues the statute adopts as a formula for tax purposes an accounting system evolved by an outside agency for an entirely different purpose, which, system that agency can change at will, and in effect has resulted in the prospective adoption of federal regulations for state taxation purposes. (Noteworthy at this point is the fact this .litigation does not involve consideration of the amendment in 1966 of article 11, section 11, of the Kansas constitution authorizing adoption, prospectively, of federal income tax laws).
The question raised is not free from difficulty. Appellant relies heavily on the frequently cited State v. Crawford, 104 Kan. 141, 177 Pac. 360, and other familiar cases of like import. In Crawford, a criminal prosecution, this court considered a fire-prevention statute which provided that all wiring should be in accordance with the “national electrical code”, which code consisted of electrical installation rules made by an unofficial organization of private persons. The rules were revised every two years. This court held the statute invalid as an unlawful delegation of legislative power, saying:
“In our commonwealth the power to make, amend, alter and repeal the laws is vested in the legislature. That body may not abdicate its functions nor delegate its powers to any other body, however learned, wise and farsighted the latter may be. This principle of our constitution and of our public policy is fundamental.” (p. 143.)
A prime consideration in our cases in determining if the power delegated by specific legislation is proper is whether the power given is actually legislative or merely administrative. In State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865, a case involving legislation conferring upon school reorganization committees the power to establish school districts, it was stated:
“If the powers sought to be delegated are legislative in character, as distinguished from administrative, ordinarily they cannot be delegated unless their delegation is authorized by some express provision of the constitution or the authorization arises by reason of clear implication therefrom. Such a result follows from the doctrine of separation of the powers of government. The functions of the legislature must be exercised by it alone and cannot be delegated unless there is constitutional sanction therefor.” (pp. 302-303.)
The court further held that even when the authority granted may be considered administrative it is not valid unless reasonably clear standards are fixed for the exercise of such authority (Syl. ¶ 4) and went on to say:
“Standards are difficult to define because of the variable nature thereof. They have been referred to as conditions, restrictions, limitations, yardsticks, guides, rules, broad outlines and similar synonymous expressions hereinafter set forth. It has been held that in the creation of administrative tribunals the power given them must be ‘canalized’ so that the exercise of the delegated power must be restrained by banks in a definitely defined channel. Ordinarily the standards must be sufficiently fixed and determined so that in considering whether a section of a statute is complete or incomplete the test is whether the provision is sufficiently definite and certain to enable one reading it to know his rights, obligations and limitations thereunder. For present purposes it may be said that a standard is a definite plan or pattern into which the essential facts must be found to fit before specified action is authorized. We can be certain of one test — a legislative fiat which provides that an administrative agency shall consider the elements which might affect legislation and then act as it sees fit' — does not fix a standard.” (p. 309.)
The subject was more recently elaborated in Sutherland v. Fergu son, 194 Kan. 35, 397 P. 2d 335, in which the Basic Science Act and the Healing Arts Act were held not to constitute an unlawful delegation of legislative power. This court stated:
“Plaintiffs concede that in this day and age, with governmental functions becoming more and more complex, more and more powers are of necessity being delegated to administrative officials, and that the advisability of vesting more power in boards and agencies is solely a question for legislative decision. . . . As was said in State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 440, 296 P. 2d 656, the legislature may enact general provisions but leave to those who are to act certain discretion in ‘filling in the details’ so to speak, provided, of course, it fixes reasonable and definite standards which govern the exercise of such authority. On the same subject see State, ex rel., v. Fadely, 180 Kan. 652, (Syl. 7), 308 P. 2d 537.” (pp. 37-38.)
The import of this line of decisions is that legislative power is not unlawfully delegated by giving discretionary functions and authority to the agency which is to carry a statute into effect so long as the statute lays down basic standards and reasonably definite policy for its administration.
In Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1, a railroad based its first return under the then newly-enacted state income tax law on its accounts kept upon a mileage basis in accordance with the regulations of the ICC. In the ensuing .litigation the principal question was the proper method of allocating income of the taxpayer. This court held:
“The determination of proper methods of allocating income of such a corporation and of the amount of tax due from the corporation is an administrative duty cast upon the state tax commission and is to be performed by it.” (Syl. ¶ 3.)
In prescribing a particular system of accounting to be used in determining net income, as the legislature did subsequent to the effort of the Union Pacific Railroad to employ that same system in the foregoing case, we do not believe the legislature unconstitutionally delegated its authority in choosing the standard which it did in its enactment of K. S. A. 79-3290 and its predecessors. It has long been recognized that accounting for railroads necessarily differs in important respects from that of general commercial accounting (Lasser, Handbook of Accounting Methods, 1943, pp. 1040-1056). The problem is compounded by the interchange of equipment between railroads, the interstate character of the operation and the difficulty of relating revenue to mileage within a state, and is one where uniformity is highly desirable. The legislature chose the standard classification of accounts used by the ICC as the basic system of accounting to be used in income tax reporting. It might have designated some other method but the need and wisdom of its action is strictly a matter for legislative concern. A standard classification of accounting prescribed by the federal agency having nationwide regulatory and rate-making control over railroads is a well recognized and established system of accounting. Although not an immutable thing, neither is it something subject to whimsy or arbitrary change. The fact appears to be that, despite some alteration, the major accounting principles of the standard classification of accounts are substantially the same today as they were in 1937. They are in accord with accepted accounting practice. As we understand it the prescribed classification of accounts provides generally for the showing of income, operating expenses and investment in road and equipment, peculiarly adapted to the nature of the operation. There is no contention that use of the system does not reflect reasonably accurate results of the business. The obvious burr under the saddle is that another federal agency, the internal revenue service, has since recognized a more favorable method of depreciation for tax purposes for a taxpayer in appellant’s position than that employed by the ICC. But this adventitious development scarcely operates to transform K. S. A. 79-3290 into an abdication of legislative function.
Threaded throughout appellant’s argument is the statement that the ICC’s system of accounting is designed for rate-making purposes, not for the determination of net income, and therefore should not be used. Be that as it may, rate-making is an integral part of the process wherein net income is ultimately derived and we see no impediment to the use of the challenged system upon that score. In any event such an argument should be addressed to the legislature. Actually all the legislature has done is to say that a taxpayer which keeps its records according to the standard classification of accounting prescribed by the ICC shall use those same records in determining its net operating revenue.
Moreover, the entire legislative scheme for determining taxable net income of those regulated by the ICC places considerable discretion in the director of revenue, whose duty it is, under K. S. A. 79-3233, to administer the income tax act. For example, K. S. A. 79-3291, as did its predecessor G. S. 1949, 79-3219, provides that, with exceptions not here material, if the allocation and apportionment provisions of 79-3290 do not fairly represent the extent of the taxpayer s business activity in this state, the taxpayer may petition for or the director of revenue may require in respect to all or any part of taxpayer’s business activity, if reasonable, the employment of any other method to effectuate an equitable allocation and apportionment of taxpayer’s income. Likewise, a portion of K. S. A. 79-3290 which we have not quoted provides if the director shall find, with respect to any particular company doing an interstate transportation business, that its accounting records are not kept so as to reflect with exact accuracy the division of revenue by state lines as to each transaction involving interstate revenue, the director may adopt such regulations, based upon averages, as will approximate with reasonable accuracy the proportion of interstate revenue actually earned upon lines in this state. - And K. S. A. 1965 Supp. 79-3209(A), in effect when appellant filed it's amended returns but since repealed, provided that net income should be computed upon the basis of the taxpayer’s annual accounting period in accordance with the method of accounting regularly employed by the taxpayer but if the method employed did not clearly reflect the income, the computation should be made in accordance with such method as in the opinion of the director clearly reflected the income. K. S. A. 79-3290 is surrounded with safeguards. Not only is review by the board of tax appeals and judicial review available, potential situations of hardship are recognized with provision made for redress therein by the director upon complaint.
We conclude, and so hold, that K. S. A. 79-3290 provides sufficient basic standards and reasonably definite policy for its administration and is not an unconstitutional delegation of legislative power. We are not unaware of a contrary conclusion reached in like litigation in a neighboring jurisdiction (Cheney v. St. Louis Southwestern Railway Co., 239 Ark. 870, 394 S. W. 2d 731), but, with all due deference, this court has the responsibility finally of construing the Kansas constitution.
Appellant further contends the statutes in question are discriminatory and deny it equal protection of the law in violation of section 2 of the bill of rights and article 11, section 2, of the state constitution and section 1 of the fourteenth amendment to the federal constitution. Use of the standard classification of accounts wherein the straight-line method of depreciation is followed rather than newer forms of accelerated depreciation available to businesses other than those in appellant’s position is again the basis of the charge of discrimination. Again appellant emphasizes the ICG’s accounting system is for rate-making and other regulatory purposes foreign to a determination of net income but the legislature’s action in prescribing that system can scarcely be termed arbitrary. Appellant makes no complaint its income is singled out from those of other railroads for discriminatory treatment. The asserted grievance is common to the whole class and may be quickly disposed of. Nothing in either the state or federal constitutions requires that the same methods be used for valuing all types of property or businesses. Nothing forbids valuation of different classes of property by different methods where there is a reasonable basis for differentiation (see Atlantic Coast Line v. Daughton, 262 U. S. 413, 67 L. ed. 1051, 43 S. Ct. 620; Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, 84 L. ed. 1254, 60 S. Ct. 968). We have already commented on the unique character of railroad accounting due to the particular nature of the business in view of which we find nothing in the challenged statutes or their operation discriminatory toward appellant or which denies it equal protection of the law.
The judgment is affirmed.
approved by the court.
Fatzer, Schroeder, and O’Connor, JJ., dissent. | [
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The opinion of the court was delivered by
Fontron, J.:
Our opinion in this case was filed May 15, 1971, and is reported in In re Estate of Showers, 207 Kan. 268, 485 P. 2d 299.
The appellant, Ralph C. Bethell, has filed a motion for rehearing. Upon consideration of the motion the opinion is modified by deleting therefrom the following paragraph appearing on page 271 which reads:
“Mr. Bethell’s other displeasure flows from apprehension that under the provisions of K. S. A. 1970 Supp. 16-204 the judgment may bear 8% interest. This is a matter regulated by statute and can hardly be said to affect the court’s jurisdiction to enter the judgment. We may also add that no great inequity would seem to result from the payment of interest in view of Bethell’s having been given possession.”
As so modified the opinion is affirmed and the motion for rehearing is denied. | [
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|
The opinion of the court was delivered by
Fontron, J.:
The defendant, Bert Robert Hill, was convicted of burglarizing the Miller-Ewing Implement Company in Coffeyville, Kansas, and stealing two used chain saws. He was sentenced to terms of five to ten years for second-degree burglary and one to five years for larceny, the terms to run concurrently. The present appeal followed.
Two principal points are raised in the defendant’s brief. The first relates to the trial court permitting the state to endorse the names of witnesses on the information and refusing to grant a continuance. The question arises in this way: The trial commenced on Monday. On the preceding Saturday, about 1:30 p. m. the prosecuting attorney advised defense counsel that he planned to ask leave to endorse the names of two additional witnesses on the information. One of the witnesses, Wendell Williams, was a photographer who had taken some pictures shortly after the burglary was discovered, while the other, William W. Tucker, was a laboratory technician with the K. B. I. who had examined a plaster cast of a footprint found at the scene and compared it with a shoe worn by defendant when he was arrested.
Defense counsel had no opportunity to interview either of these gentlemen over the intervening weekend, since Mr. Williams was ill and Mr. Tucker remained in Topeka. Accordingly, when Monday morning dawned and the state filed its motion to endorse their names on the information, the defendant voiced an objection. His objection was overruled. He thereupon moved for a continuance to enable counsel to interview the two prospective witnesses. A continuance was denied — and this is assigned as error.
We have frequently held that permission to endorse the names of additional witnesses upon an information is a matter which lies within the judicial discretion of the trial court. (See 2 Hatcher’s Kansas Digest [Rev. Ed.] Criminal Law, § 77.) Likewise, we have consistently said that the granting or refusal of a continuance in a criminal action lies largely within the trial court’s sound discretion, and that its ruling therein will not be disturbed on appeal absent an affirmative showing of abuse resulting in prejudice to the substantial rights of the defendant. (State v. Dickson, 198 Kan. 219, 424 P. 2d 274.)
Circumstances similar to those which are presently before the court were considered in State v. Mullins, 95 Kan. 280, 147 Pac. 828, and it was held:
“Rule followed that a continuance is not ordinarily demandable as a matter of right because the names of witnesses are endorsed on the information at the commencement of a trial.” (Syl. ¶ 5.)
See, also, State v. Jones, 2 K. A. 1, 42 Pac. 392; State v. Bisagno, 121 Kan. 186, 246 Pac. 1001; State v. Hanks, 179 Kan. 145, 292 P. 2d 1096.
No clear showing of prejudice has been made to appear in this case. Apparently the defendant’s counsel felt there was no need to interview the photographer prior to the time he testified, for the record reveals no request for that purpose. Moreover, Mr. Williams’ testimony was confined merely to the formal identification of pictures he had taken at the scene of the crime, and he was capably cross-examined on that score.
As to the K. B. I. agent, Mr. Tucker, the situation is somewhat different. At the time he was called to the witness stand, defense counsel requested a chance to confer with him privately. This request was granted and while the record is silent as to the length of counsel’s interview with the witness, we were advised at the time of oral argument that the court imposed no time limitation thereon. We are persuaded, after having read the record, that defendant’s counsel conducted such a skillful and vigorous cross-examination of Mr. Tucker that no prejudice can be said to have flowed from the late endorsement of the latter’s name.
The defendant calls attention to K. S. A. 62-802 (now K. S. A. 1970 Supp. 22-3201 [6]) providing that the prosecuting attorney shall endorse on the information the names of all witnesses known to him at the time of filing, and he infers the state knew all along that both Tucker and Williams would be used as witnesses. The statute serves a proper purpose and its provisions should be observed by a prosecutor in all good conscience. However, we are not prepared to say that judicial discretion was abused to the point of prejudice in this case in permitting the endorsements and in refusing a continuance.
A second ground of error is predicated on the trial court’s failure to instruct the jury on attempted larceny. In ruling on the defendant’s request for such an instruction, the court stated that in its opinion the offense of larceny was in fact completed and, if the defendant was guilty, he was guilty of larceny.
We believe the court was correct in its appraisal of the evidence. The second-hand chain saws were in the implement company’s place of business when it was closed and locked on Saturday night (which, apparently, was August 30). Early on the morning of September 2 (the morning after Labor Day) the building was found to have been broken into and the used saws were discovered outside the building but on the company’s lot. At about the same time two new chain saws missing from the same store were discovered on premises across the street, which were leased by the implement company. A chain of circumstances linked defendant to the removal of the saws from the building and justified an inference that he had been prevented from loading the purloined prop erty into the car of his companion because of the latter’s untimely detection and arrest.
This evidence, in our opinion, satisfies the element of asportation. The pertinent rule in this regard is stated in 50 Am. Jur. 2d, Larceny, § 19, p. 170:
“Asportation sufficient to support a larceny charge does not require that the goods be removed from the owner’s premises. To remove them with the requisite felonious intent from one part of the premises to another, or from the spot or house where they were found, or even from one place to another in the same room, is a sufficient asportation. . . .”
A third point, briefly mentioned by the defendant, has not been overlooked. It arises over a misunderstanding between counsel, and does not approach reversible error.
We conclude that the judgment of the court must be affirmed, and it is so ordered. | [
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|
The opinion of the court was delivered by
O’Connor, J.:
A minor child, by its mother and next friend, instituted this action seeking to have defendant adjudged the father of said child and ordered to make regular payments for its support and maintenance. At the close of plaintiff’s evidence, the district court sustained defendant’s motion to dismiss, and plaintiff has appealed.
The grounds upon which the trial court based its order of dismissal were (1) the action was not brought by the real party in interest, (2) plaintiff violated a local court rule by filing the action on a poverty affidavit in lieu of a cost deposit, and (3) plaintiff failed to establish a prima facie case of paternity against defendant.
At the outset, we note that the propriety of the district court’s order in dismissing the case on the merits is not seriously challenged. An involuntary dismissal at the close of plaintiff’s evidence is authorized by K. S. A. 60-241 (b) when, upon the facts and the law, the plaintiff has shown no right to relief. The trial judge has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on its merits and making findings of fact at the conclusion of the entire case. Upon review, the findings made by the lower court must be accepted unless clearly erroneous. (Aspelin v. Mounkes, 206 Kan. 132, 476 P. 2d 620; Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847.) Here, the trial judge found that because of the mother’s admitted sexual promiscuity, it was impossible for the court to determine defendant was the father of the child. No useful purpose would be served by reciting the evidence relating to the mother’s conduct with other men at or about the time the minor child would have been conceived. It suffices to say the trial court’s finding was supported by ample evidence and dismissal of the case on the merits must be upheld.
Ordinarily, what has been said would adequately dispose of this appeal. The district court, however, as part of its judgment, entered orders in the nature of injunctions against the state and county Departments of Social Welfare. Thus, we are compelled to consider the questions of real party in interest and plaintiff’s use of a poverty affidavit in filing the action.
In the journal entry of judgment, the district court found that the action was brought at the instance and request of the Department of Social Welfare to recover monies paid by the department for the benefit of the minor child under appropriate statutes and regulations requiring such payment, and that the mother did not initiate the action of her own volition, but did so only after being advised of the possible loss of aid for her children. The court concluded that plaintiff was not the real party in interest and enjoined the Department of Social Welfare from filing future actions in violation of K. S. A. 60-217. The Sedgwick County Department of Social Welfare was also enjoined from promoting or encouraging the filing of actions for determination of parternity and recovery of support money through duress or threat of the loss of financial aid.
The evidence discloses the minor child involved in this case was born February 16, 1967. The mother of said child receives ADC assistance in the amount of $237 per month for her three illegitimate children. She testified she was told by a representative of the Sedgwick County Welfare Department, “if I didn’t give him the father’s name, I would lose my check.” After this conversation, she went to the welfare attorney’s office and filed three paternity actions against three different putative fathers. When questioned by the court as to why she had brought the actions, the mother testified, “I just decided it was time they helped to take care of their children, too.”
K. S. A. 60-217 (a) provides that every action shall be prosecuted in the name of the real party in interest. Subsection (a) of the statute is patterned after Rule 17 of the Federal Rules of Civil Procedure. The purpose of the statute is to require that the action be brought by the person who, according to the governing substantive law, possesses the right sought to be enforced and not necessarily the person who ultimately benefits from the recovery. (2 Vernon Kansas Statutes Anno. § 60-217, 217.1; 6 Wright and Miller, Federal Practice and Procedure, Civil: § 1543, P. 645.)
Many years ago this court held that the legislature, in enacting the bastardy act (See, K. S. A. 62-2301 et seq), authorizing a mother of an illegitimate child to maintain an action for the mother’s benefit in the name of the state against the putative father, did not intend the act to be the exclusive remedy of enforcing the father’s liability for support of his child. (Doughty v. Engler, 112 Kan. 583, 211 Pac. 619; 30 A. L. R. 1065.) As a result, it has become firmly established as part of our substantive law that the father of an illegitimate child, too young to care for itself, is under a non-statutory obligation to support the child, and the obligation may be enforced in an action brought by the child by its next friend. (Addington v. Addington, 192 Kan. 118, 386 P. 2d 219; Grayson v. Grayson, 182 Kan. 285, 320 P. 2d 803; Wahl v. Walsh, 180 Kan. 313, 304 P. 2d 525.) Tire right of the child to support from its father is a chose in action which belongs to the child. The child’s right cannot be bargained away or defeated by a purported settlement between the father and the mother (Myers v. Anderson, 145 Kan. 775, 67 P. 2d 542), nor can the father relieve himself of his obligation to support his child by entering into an agreement with a third person to assume that responsibility. (Grimes v. Grimes, 179 Kan. 340, 295 P. 2d 646.)
The purpose of statutes requiring every action to be prosecuted in the name of the real party in interest is to protect the defendant from being repeatedly harrassed by a multiplicity of suits for the same cause of action. Where the final judgment, when and if obtained, is a full, final, and conclusive adjudication of the rights in controversy and may be pleaded in bar to any other suit instituted by a different party, defendant may not object on the ground that plaintiff is not the real party in interest. (First National Bank of Topeka v. United Telephone Ass’n, 187 Kan. 29, 353 P. 2d 963.) In similar vein, the basis for Federal Rule 17 (a) was stated by the Advisory Committee as follows:
“‘[T]he modem function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata.’” (6 Wright and Miller, Federal Practice and Procedure, § 1543, P. 644.)
There can be no question that the defendant in a paternity action instituted by the minor child is fully protected by any adjudication that may be made. If, as here, defendant is adjudged not to be the father of the child, the judgment may be pleaded in bar to an action instituted by a different party seeking to assert the same claim. On the other hand, if defendant is adjudged to be the father, such an adjudication is final and conclusive. In either event, the defendant may avail himself of any defenses he may have on the paternity issue. Once the parent-child relationship is established, however, the court is always open to make appropriate support orders in the future to meet the best interests and welfare of the child. (Addington v. Addington, supra; Goodman v. Goodman, 188 Kan. 41, 360 P. 2d 877.)
The fact that some financial benefit (in the form of reduced welfare payments) may ultimately accrue to the Department of Social Welfare from the successful prosecution of such an action does not deprive the child of its status as the real party in interest. The right sought to be enforced belongs to the child. Whether the Department of Social Welfare, under any circumstances, would have the right to maintain an action for recovery of support money against a putative father is not before us. Our holding here is simply that the minor child qualifies as the real party in interest to maintain an action by its next friend to enforce the father s non-statutory obligation of support.
In dismissing the case, the district court also found that “plaintiff possessed income at the time the action was filed” and use of a poverty affidavit in lieu of a cost deposit was in violation of tire local court rule 6.01 (d). As part of its final judgment, the court enjoined the Department of Social Welfare from filing future actions which would violate the rule.
Rule 6.01 of the district court of Sedgwick county is entitled “Ex Parte Orders in Divorce and Separate Maintenance Cases.” Subsection (d) thereof reads as follows:
“No ex parte order will be issued and no domestic relation case will be filed on a poverty affidavit in lieu of cost deposit by any plaintiff possessing income, or funds of any kind; and any case so filed shall be subject to dismissal by the court.”
It would appear that the rule was intended to apply only to divorce and separate maintenance actions. Since this was an action by a minor to determine paternity and recover support money, the district court erroneously concluded the rule had application.
For the reasons discussed, the injunction orders against the state and county Departments of Social Welfare must be vacated, set aside, and held for naught. To that extent, the judgment is reversed. The judgment dismissing the action on its merits is affirmed. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment of the district court denying exempt status in an action to enjoin the levy and collection of taxes upon certain real property of the appellant, The Evangelical Village and Bible Conference, Inc., and to have the property declared exempt from taxation by virtue of constitutional and statutory provisions exempting from taxation property used exclusively for benevolent and charitable purposes.
The Evangelical Village and Bible Conference, Inc., is a Kansas corporation organized not for profit and without authority to issue capital stock. It was formed in 1962, as a result of efforts by a group of area ministers for the purpose of building a home for elderly persons in Johnson County. The incorporators, who also served as the first board of directors, were drawn from this group. Of the five ministers who served as incorporators, three were from the Shawnee Mission area of Johnson County, one was from Kansas City, Kansas and one from Kansas City, Missouri. The overall group was known as the Evangelical Ministers Fellowship.
The principal purpose for which the corporation was formed, as expressed in its Articles of Incorporation, reads:
“To provide elderly persons on a nonprofit basis with housing facilities and seivices, specially designed to meet the physical, social and psychological needs of the aged, and contribute to their health, security, happiness and usefulness in longer living.”
Upon dissolution of the corporation, none of the net assets was to go to any director, officer or other persons connected with the corporation. The assets were to be devoted exclusively for the benefit of religious, charitable, philanthropic, welfare, relief, educa-; tional, scientific and similar activities. Persons connected with the corporation and private individuals were prohibited from receiving any earnings or profit from its operations.
Under the articles of incorporation the board of directors elects the members of the corporation and these members are required, in turn, to be members of an evangelical church and to subscribe to a basic statement of religious faith. No more than two members may be from one church denomination. Upon election these members become members of the board of directors. In 1968, seven of the nine board members were area ministers. A twenty-one member advisory council, appointed to advise on religious and welfare matters affecting residents, has a membership drawn from nineteen area churches representing six different religious denominations. The by-laws of the corporation provide for a letter of intent whereby area church congregations may adopt the home as a project. Some nineteen area congregations had adopted the home as a project by 1968. These churches agree that it will be their “moral responsibility ... to ensure that the Home is maintained and fulfills the purpose for which it is being established.” They also agree to take at least one special offering per year for the home in the event of need.
In December, 1964, the corporation completed the construction of a three wing, five story home on a tract of land located at 9100 Park in Lenexa.
Construction financing was furnished by an FHA insured loan of $2,631,979.21 from the Morgan Guaranty Trust Company of New York and an additional $212,962.88 borrowed from local banks on the strength of guarantees by eight local individuals interested in the building of the home.
Approximately 80% of the accommodations at the home are single room apartments with a bath and, in some instances, a kitchen. For these rooms Lakeview Village collects an entrance fee (called a founder’s fee) of $6,900.00 to $10,200.00 and a monthly subsistence charge of $155.00 to $175.00, depending on the size of the accommodations and whether cooking facilities are available. The monthly subsistence charge includes room and board, laundry and ordinary care with fourteen days infirmary care per year. The remaining accommodations are two room apartments with bath and kitchen. The founder’s fee for these is $11,500.00 to $13,200.00 and the monthly subsistence charge is $215.00 to $225.00 for one person.
Of the one hundred ninety-nine persons in residence at Lakeview Village in May, 1968, thirty-seven were paying less than the requested monthly charges; five residents had paid no entrance fee; four residents had paid less than the requested entrance fee, and three persons had paid less than the requested entrance fee and also were paying less than the requested monthly charge.
The monthly subsistence rate paid by the Johnson County Welfare Department for clients in the Johnson County Home for the Aged is $240.00. The rate in the remaining homes in the county is $230.00. The Welfare Department also pays to each person an additional sum of $17.00 per month for incidental expenses. Lake-view Village has made offers to the Johnson County Welfare Department to take welfare patients and in 1968 had one welfare client in residence.
Residents of Lakeview Village have an occupancy agreement which provides in essence that they shall have the privilege of occupying their quarters throughout their lifetime. This is subject only to certain special conditions such as contagious disease, permanent disability or mental condition detrimental to the other residences, in which case transfer to an appropriate facility is made with Lakeview Village sharing the cost of outside care at a rate of 50% of the usual monthly charge and, if the transfer becomes per manent, the entrance fee is also applied for use until exhausted. No resident has ever been removed from the home for non-payment of charges and where persons have been unable to pay, the charges either have been reduced to what the person can pay or else entirely waived.
The minimum age for entrance to the home is 62 years and the maximum age is 78 years. In 1968, the average age of the residents was approximately 78. Over one-half of the residents were between 75 and 84 years of age. At the time of entrance, residents must be ambulatory and able to dress and feed themselves.
The board of directors of the corporation receives no salary for its services. One of the original directors was paid a commission for securing residents for the home during its initial stages.
On May, 1968, Lakeview Village had received $5,212.00 in cash donations for the home. Over three thousand hours had been donated by religious workers, nurses and teachers and other items such as an organ and piano for the chapel area had been given to the home.
After hearing the evidence, the trial court made extended findings of fact and concluded:
“And now on this 7th day of July, 1969, the court, having considered the evidence, the suggested findings of fact and conclusions of law and the various briefs submitted by the parties hereto and the briefs submitted by the amicus curiae and being otherwise well and duly advised in the premises, announces and files its memorandum decision with the clerk of this court setting forth its findings of fact, conclusions of law, rationale and decision and order for judgment, which memorandum decision, less formal parts, is hereby incorporated herein by reference as though the same were set out herein in full, the court finding and concluding that plaintiff’s real property is not being used exclusively for religious, benevolent or charitable purposes as provided in Article 11, Section 1, of the Kansas Constitution and K. S. A. 79-201 and that plaintiff is not exempt from Kansas real property taxation for the years 1965, 1966 and subsequent years. The court further finds that the costs hereof should be taxed against the plaintiff.”
On appeal to this court, appellant listed its main statement of points relied upon as—
“The evidence does not support, but contradicts the Court’s finding and conclusion that plaintiff’s real property is not being used exclusively for religious, benevolent or charitable purposes, as provided in Article 11, Section 1, of the Kansas Constitution and K. S. A. 79-201.”
It then detailed seven secondary points challenging the court’s findings and conclusions on the evidence submitted.
In its brief before this court, appellant argues two points — (1) “On the facts, this case is essentially identical with Topeka Presbyterian Manor v. Board of County Commissioners; that decision granting tax exemption should control here” and (2) “the trial court erroneously distinguished this case from prior Kansas decisions for reasons which are either insubstantial or immaterial.”
The appellees now contend that the “Appellant has no right to be heard on this appeal for the reason that it has abandoned its statement of points.”
Our attention is called to Rule No. 6 (d) of this court which provides:
“Each appellant shall serve and file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal. The points shall be without duplication, and each point shall state a particular and ultimate issue with reference to which reversible error is claimed to have been committed, but only such detail is required as will (1) enable opposing parties to judge the sufficiency of the designated record on appeal, and (2) inform the supreme court of the specific issues to be considered.”
The rule further provides that no issue other than an issue going to the jurisdiction of the court over the subject matter may be considered unless it is included in the statement of points. In Schreppel v. Campbell Sixty-six Express, Inc., 201 Kan. 448, 441 P. 2d 881, we stated at page 454:
“The reasons for this rule are two-fold: first, it enables the opposing party to judge tire sufficiency of the record which has been designated on appeal and second, it informs the members of this court of the specific issues to be considered on appeal. The rule thus serves a legitimate and important purpose. . . .” (See, also, Board of County Commissioners v. Brookover, 198 Kan. 70, 74, 422 P. 2d 906.)
The rule serves an important and valid purpose and we do not care to relax in its application. However, it appears to us in the present case that none of the points have been abandoned or new ones added. The appellant has simply rearranged his classification of points to avoid repetition and simplify the presentation of the issues. No new issues are raised which would in anyway require additions to or subtractions from the record. We find no objection to the simplified classification of the points.
The chief issue for our determination is, did the evidence presented bring the appellant within the provisions of Article 11, Section 1, of the Kansas Constitution which provides in part:
“. . . All property used exclusively for . . . religious, benevolent and charitable purposes, . . . shall be exempt from taxation.”
and K. S. A. 79-201 which contains a similar provision?
The facts are not in serious dispute. Neither are the trial court’s findings. The basic dispute is over the legal conclusions which the trial court drew from the findings made.
The appellant contends that the facts in this case are essentially identical with Topeka Presbyterian Manor v. Board of County Commissioners, 195 Kan. 90, 402 P. 2d 802, and that decision granting tax exemption should control the decision in the case now before us.
We are forced to agree. In Topeka Presbyterian Manor we considered at length the meaning of the terms charitable and benevolent and stated:
“First of all let us look at what is meant by the terms charitable and benevolent. It has been said the word ‘charity,’ like many others, has both a lay and a legal meaning, and that in legal parlance the term has a much more extended significance than in common speech. (See 15 Am. Jur., 2d Charities, §§ 2 & 3, pp. 7-8.)
“In Black’s Law Dictionary, 4th ed., we find this discussion of charity:
“ ‘It may mean or apply to:
“ ‘Accomplishment of some social interest, In re Tollinger’s Estate, 349 Pa. 393, 37 A. 2d 500, 501, 502 . . . Amelioration of persons in unfortunate circumstances, Second Nat. Bank v. Second Nat. Bank, 171 Md. 547, 190 A. 215, 111 A. L. R. 711 . . . Any purpose in which the public has an interest, Collins v. Yyon, Inc., 181 Va. 230, 24 S. E. 2d 572, 580 . . . Assistance to the needy . . . Improvement of spiritual, mental, social and physical conditions. Andrews v. Young Men’s Christian Ass’n of Des Moines, 226 Iowa 374, 284 N. W. 186, 192 . . . Whatever proceeds from sense of moral duty or feeling of kindness and humanity for relief or comfort of another. Doyle v. Railroad Co., 118 Mass. 195, 198, 19 Am. Rep. 431.’ (pp. 296, 297.)
“The same work defines benevolent as follows:
“ ‘Philanthropic; humane; having a desire or purpose to do good to men; intended for the conferring of benefits, rather than for gain or profit; loving others and actively desirous of their well being.’ (p. 201.)
“In Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005, it was stated:
“Charity” is a gift to promote the welfare of others in need, and “charitable,” as used in such constitutional and statutory provisions, means intended for charity, and “benevolent” is, as used therein, entirely synonymous with “charitable.” ’ ” (Syl. ¶ 2.)
“In In re Estate of Carlson, 187 Kan. 543, 358 P. 2d 669, we find this:
“ ‘A charity is broadly defined as a gift for general public use . . . Gifts for the purpose of establishing or maintaining hospitals, or like institutions for the benefit of the sick, injured, aged, infirm, or other persons in unfortunate circumstances are for a purpose recognized by the courts as charitable.’ (p. 546.)
“Thus it may be seen that the term ‘charity’ in a legal sense is rather a matter of description than of precise definition, and therefore each case involving a determination of that which is charitable must be decided upon its own particular facts or circumstances.” (p. 94.)
We also stated at page 95 of the opinion the effect of an entrance fee on tax exempt status of a claimed charitable institution—
“Appellants first argue that the fact an entrance fee of $2,000.00 and the sum of $200.00 per month is sought, and received in about eighty-five percent of the cases, takes it out of the domain of charity. In the case of Nuns of St. Dominic v. Younkin, 118 Kan. 554, 235 Pac. 869, this court considered a similar contention and stated:
“ ‘The fact that it charges and receives pay for patients able to pay, does not detract from the charitable nature of the service rendered. In Hospital Association v. Baker, [40 S. D. 226] ... 95 percent of the patients were pay patients. In City of San Antonio v. Santa Rosa Infirmary, [sic] [259 S. W. 926] . . . 87% percent were pay patients. In St. Elizabeth Hospital v. Lancaster County, [109 Neb. 104] . . . only a small percent did not pay.
“ ‘If these incomes from pay patients and donations are used for the purpose of caring for or relieving the sick or disabled and increasing the facility of the institution for that purpose, and are not used for the purpose of declaring dividends or the financial profit (other than the paying of necessary operating expenses) of those connected with or having charge of the institution, such use is simply an extended use for charitable purposes.’ (pp. 559, 560.)”
The definitions appear to cover the field. It would serve no useful purpose to attempt to extend them with quotations from other authorities. We held that the Topeka Presbyterian Manor was exempt from taxation under the definitions given the terms charitable and benevolent. It remains to be determined whether or not the operations of the Evangelical Village and Bible Conference, Inc., are essentially identical with the operations of the Topeka Presbyterian Manor.
Each of the institutions was a home for the elderly; each was a nonprofit Kansas corporation with no capital stock; in each, upon dissolution, the assets would be used for tax exempt purposes and not for the benefit of any private individual; in each the purpose was to provide elderly persons with homes on a nonprofit basis; each requested residents to pay a resident fee and monthly charge differing only in amount; in each the admissions were not restricted to a single religious denomination; each had regular weekly religious services and infirmary care with registered nurses and nursing facilities; each made services available to persons of limited means; in the operation of each no profit inures to anyone and only reasonable compensation is paid employees.
The average age of residents in the Topeka Presbyterian Manor is 82 while that of the appellant is 78. As in most other instances the difference is only in degree.
The trial court listed five propositions which it considered the rationale of its decision. These we shall discuss.
The trial court states that, “the different amounts and nature of the founder fees and monthly subsistence payments negate a charitable or benevolent purpose.”
Here again we have only a matter of degree. The difference in the fees is not based so much on service as the accommodations furnished. The different amounts are based on the size of the accommodations, the number of rooms and the presence of Idtchen facilities.
The trial court concluded:
“. . . Plaintiff relies on Manor, supra, as the basis of its alleged exemption. The Court feels the facts in this case clearly are distinguishable. In Manor the home was directly connected with a church or particular theology, whereas here the home has no specific non-profit organization backing it; . . .”
The facts here show that a number of area church denominations are supporting Lakeview Village and, upon dissolution, its assets, if any, would go for charitable or other tax exempt purposes.
The trial court emphasized the fact that—
“In Manor almost one-third of the construction cost of $400,000.00 was donated and the Manor had to have gifts to operate, the evidence being that in the first seven months it received $59,000.00. Here the entire cost of construction was financed. The only cash contribution being the sum of $5,212.00. . . ."
It might be suggested that an additional $212,962.88 was borrowed from local banks on the signatures of eight local individuals interested in the building of the home. Also, over three thousand hours had been donated by religious workers, nurses and teachers and various items such as an organ and piano for the chapel area had been given to the home.
The trial court states that—
“Plaintiff here operates a retirement home and not a home for the aged. . . .”
It is our understanding that people are retired because of age. Also, we are of the opinion that people averaging 78 years of age must be classified as elderly.
The trial court found that the occupancy agreement negates a charitable and benevolent purpose. The occupancy agreement for appellant provides for certain special conditions under which occupancy may be terminated, including permanent physical or mental disability. Lakeview Village is not a nursing home. It has made provision for cases where residents come under permanent disability and need care beyond that which can be provided within the home. The occupancy agreement provides for an adjustment in such cases. This provision is consistent with care and concern for residents and bespeaks an interest in providing them with proper care as required by circumstances.
Appellees make the contention:
“In addition to the issues in this case which were common to those in the Manor case and those additional issues heretofore mentioned, there exists in this case certain factors which draw -into serious question the credibility, or at least the capability, of appellant to be entrusted with a tax exemption:”
The appellees are referring to the payments made to Dr. Berg. On this issue the trial court found:
“Dr. Berg acted as a promoter and was instrumental in getting the corporation started. He used the title of coordinator and performed services as locating the site for the proposed home, arranging for the necessary financing, securing the services of an architect and contractor, making arrangements for an FHA loan and conducting a campaign to publicize the location and purpose of the home and to secure residents to move into same when completed. He further set up an Iowa corporation of his own, Christian Services, Inc., in connection with the program of locating prospective occupants and was working with other groups at the same time.”
We are not placing our approval on the payments made to Dr. Berg. We can only state that the record is lacking sufficient evidence of the value of his services to permit a specific finding that he was overpaid.
We are unable to find any logical basis for making a distinction between the Topeka Presbyterian Manor and the appellant in this case for tax exemption purposes.
There is another issue which should perhaps receive attention. At the close of the appellants argument, counsel left with this court charts showing certain figures and their application. There was also left with this court certain pamphlets consisting of adver tising used by appellant. Appellees have filed written objections to the use of such material by this court.
It is made to appear that the figures in the plats are in dispute. The plats and pamphlets were not a matter of record and were not before the trial court, hence they will therefore not be considered by this court.
The judgment is reversed with instructions to the trial court to declare the appellant’s real property pertaining to the home for the retired exempt from taxes for the years 1965, 1966, and subsequent years.
approved by the court.
Price, C. J., dissents. | [
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|
The opinion of the court was delivered hy
Hatcher, C.:
This is an appeal from a Judgment in an action to foreclose a mortgage made by a lessee under a subordination agreement executed by the owners of the fee title.
The facts may be summarized.
The appellants, Glen and Evelyn Hinderliter, were fee owners of the Ranch Inn property in Johnson County. The entire tract consists of approximately three acres. The tract in question is the unimproved north 160 feet. The Ranch Inn Restaurant is on the south portion of the tract.
On June 1, 1964, the Hinderliters, as lessors, executed a lease to Jesse W. Burge on the 160 foot tract for a term of 21 years with option to renew for two 7 year terms. The purpose of the lease was for the construction of a motel upon the tract.
The lease contained a subordination agreement which read:
“The landlord covenants that it is the present owner of the leased premises and hereby subordinates the fee title to the above described leased property to any mortgage to be entered into by the tenant for purposes of financing the improvements to be placed upon said property, and the landlord agrees to execute necessary instruments to accomplish subordination of the fee title. Further, this lease is subject and subordinate to any such mortgage. Provided, however, that any such mortgage shall not exceed $560,000.00 in principal amount, and the same together with interest shall be paid out by the end of the eighteenth year from the beginning of the term of this lease.”
On June 10, 1964, Burge assigned the lease to the Mid-West Land Development, Inc., a Colorado corporation.
Although the lease was not filed of record, on June 29, 1964, a memorandum of the lease was filed with the register of deeds, which stated in part:
“According to the terms of the lease above-described, the landlord does hereby subordinate the fee title to the above-described leased property to any mortgage to be entered into by the tenant for the purpose of financing the improvements to be placed upon said property, said mortgage, however, not to exceed $560,000.00 in principal amount and the same together with interest shall be paid out by the end of the 18th year from the beginning of the term of this lease.”
On July 10, 1964, Mid-West Land Development, Inc., obtained a loan from the Suburban Bank and Trust Company in Kansas City, Missouri, in the amount of $20,000.00 and executed a mortgage upon the leased tract to secure the same.
Mid-West Land Development, Inc., secured a second loan from the Suburban Bank and Trust Company on October 10, 1964, in the amount of $10,000.00 and executed a mortgage on the leased premises to secure the same.
On April 5, 1966, judgment was entered cancelling the lease for non-payment of rent.
On April 8, 1966, the two mortgages mentioned above were assigned by the Suburban Bank and Trust Company to the G. Credit Company. The assignment was recorded January 31, 1968. On February 2, 1968, G. Credit Company brought an action to foreclose both mortgages.
The defendants answered stating in part:
“These defendants further state that they have knowledge of the instruments (Exhibits B and C of plaintiff’s petition), however gained knowledge of the same sometime after the instruments were placed of record as purported liens against the real property described therein.
“These defendants did not execute the notes which the mortgages purport to secure, and no consideration passed to these defendants by reason of the execution of said notes and mortgages. Further, these defendants are not indebted to the plaintiff or their assignor.
“The maker of the purported mortgage had no right or authority to mortgage the defendants’ property.”
The trial court found that the proceeds from the two notes totaling $30,000.00 were disbursed as follows:
“Congress International, Inc. for motel franchise...............$10,000.00
Hains Engineering Corporation for engineering service.......... 2,765.00
J. W. Burge ............................................. 250.00
J. W. Burge ............................................. 5,750.00
Missouri Realty & Investment Co............................ 183.05
H. R. Smith Investment Company........................... 600.00
Investors Title Company, Inc............................... 51.95
Glenn E. Hinderliter and Evelyn Hinderliter.................. 8,400.00
Hains Engineering Corporation ............................. 1,500.00
Sam McCaffree, Agent .................................... 55.45
Retained by Suburban Bank as a loan fee.................... 400.00”
The trial court made findings of fact in substance the same as those heretofore presented and concluded in part:
“The court concludes that the assignee of the lessee of the subordinated lease had the right to negotiate for loans for the purpose of financing improvements upon said ground in the total amount of not to exceed $560,000.00, and to be payable within a certain time.
“The court finds that the assigned lessee executed two notes and mortgages on the property for the sum of $30,000.00 for the purpose of financing the motel to be constructed on the subordinated fee title.
“However, the court finds that the mortgagee did see to it that the said sums were used primarily for incidental preliminary expenses to the actual construction of a motel.
“The court is of the opinion that the clear intent of the subordination as stated in the memorandum, to-wit: ‘For the purpose of financing the improvements to be placed upon said property’ does include the cost of incidental and preliminary expenses prior to actual construction.
“Plaintiff is the holder of valid mortgages upon the fee title to the land described in the plaintiff’s petition. Plaintiff is entitled to judgment in rem against the property described in the plaintiff’s petition for the sum of $20,-000.00 with interest at Q% per annum from July 10, 1964 until July 10, 1965, and interest at 8% thereafter, and is entitled to judgment in rem for $10,000.00 with interest at 8% from October 10, 1964. That the mortgages should be foreclosed and redemption is fixed at six months from the date of sale.”
The landowners have appealed.
The appellants take issue with the trial court’s conclusions that (1) the clear intent of the language in the subordination agreement and the memorandum filed, to-wit: “for the purpose of financing the improvements to be placed upon said property” includes the cost of incidental and preliminary expenses prior to actual construction, and (2) the proceeds of the mortgages were used primarily for incidental preliminary expenses prior to the actual construction of a motel. Appellants also contend that the lessors, the fee owners, must also sign the mortgage instrument if it is to be subordinated as to them.
We start with the proposition that appellants, by the execution of the lease, voluntarily surrendered certain rights which theretofore were theirs alone. What that surrender encompassed is to be divined by determining the intent of the parties as manifested in their contract of lease. In construing contracts, intention is controlling and will be given effect if consistent with legal principles. (Hays v. Underwood, Administrator, 196 Kan. 265, 411 P. 2d 717; Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 415 P. 2d 236.) Reasonable interpretations of all pertinent provisions of a contract, and not critical considerations of single isolated provisions, are required by the law. (Zelinkoff v. Johnson, 185 Kan. 489, 345 P. 2d 665. Also, a lease is to be construed as an entirety. State v. Downey, 198 Kan. 564, 426 P. 2d 55.)
With these rules in mind we will consider first appellants’ contention that the lease contract anticipated that the fee owners would also sign the mortgage contract in order to give the lender priority. We see no merit in the contention.
The memorandum of the lease recorded in the register of deeds office, which was the instrument giving a lender notice of the terms of the lease, made no reference to any condition that the fee owners had to sign the mortgage instrument. Ry the terms of the lease the landlord merely agreed to execute necessary instruments to accomplish subordination of the fee title, if asked to do so by the lender. Their signature was not made an express condition to giving the lender priority, nor of the lessee’s right to mortgage.
True, “the landlord agrees to execute necessary instruments to accomplish subordination of the fee title” if asked to do so but there was no necessity for the execution of a mortgage if it fell within the provisions of the subordination agreement. If the landlords intended that all subordinated mortgages be executed by them they could have said so in much simpler language.
We now reach the question — does the phrase “for purposes of financing the improvements to be placed upon said property” include the cost of incidental and preliminary expenses prior to actual construction?
We are advised by the language in the lease that the improvement contemplated was the construction of a motel. We may, therefore, simplify the issue somewhat by presenting the question— does the financing of a motel include the cost of incidental and preliminary expense prior to the actual construction?
We are inclined to think that it does. Anyone proceeding with the construction of a motel would know that there would be necessary expense incidental and preliminary to actual construction and that such expenses must be financed. Anyone financing the construction of a motel would know that there would be preliminary expenses which would not show on the land such as fees for engineering and architectural plans and specifications, lease rental and interest during construction, etc.
Appellants rely on Cambridge Ac. Corp. v. American Natl. Mot. Inns, Inc., 96 N. J. Super. 183, 232 A. 2d 692. Although the basic facts are similar, the case is not persuasive here because the court found that proof of the use of the money derived from the mortgage was meager and unconvincing. Also on appeal, the Superior Court of New Jersey, appellate division, disapproved much of what was said in the first opinion in Cambridge Acceptance Corp. v. Hockstein, 102 N. J. Super. 435, 246 A. 2d 138.
In the case before us, the trial court found that “the mortgagee did see to it that the said sums were used primarily for incidental preliminary expenses to the actual construction of a motel.” There is nothing in the record that would justify us reaching a different conclusion.
The money derived from the mortgage having been used primarily for necessary preliminary expenses incidental to the actual construction of a motel and the lease having subordinated the landlords’ fee title to such a mortgage, we find no basis for disturbing the judgment of the trial court.
What has been said eliminates the necessity of discussing the propriety of the conclusions of the trial court raised by appellant but not here presented by us. Neither need we consider other issues raised by the parties in their briefs.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an original proceeding in mandamus wherein plaintiffs ask us to issue a peremptory writ directing the defendant to rescind an order made at a pretrial conference directing plaintiffs to disclose the policy limits of their liability insurance.
The issue is identical in all three of the above entitled cases and the parties have stipulated that the decision in No. 46,295 will be controlling.
Plaintiffs herein are defendants in an action pending in the District Court of Russell County. The action was brought to recover damages for injuries suffered in an automobile accident.
Plaintiffs claim the order referred to amounted to an abuse of discretion by defendant and a wrongful invasion of their rights in that it was in direct conflict with this court’s holding in Muck, Administratrix v. Claflin, 197 Kan. 594, 419 P. 2d 1017. As grounds for resort to the extraordinary remedy of mandamus against a district judge, plaintiffs claim they have no remedy in district court or by way of appeal.
At this point, we should pause to reiterate that ordinarily the exercise of a trial court’s discretion cannot be controlled by mandamus. (See Muck, Administratrix v. Claflin, Syl. ¶ 1, supra.). This court does not propose to undertake the task of monitoring trial courts at the pretrial or discovery stage of litigation or of rendering advisory opinions whenever the propriety of pretrial inquiry arises. We held in Muck that mandamus will be invoked only when an order of the trial court denies a litigant a right or privilege which exists as a matter of law and there is no remedy by appeal.
As we have indicated, the main thrust of plaintiffs’ contention is that the issue here is controlled by our decision in Muck.
Defendant, on the other hand, contends that our decision in Muck dealt specifically and solely with the scope of discovery under K. S. A. 60-226 (b) as applied to interrogatories under K. S. A. 60-233. Defendant says that since the issue here was framed at a pretrial conference pursuant to K. S. A. 60-216 it is that statute which is determinative rather than 60-226 (b). Defendant points out that the pretrial conference procedure indicated in 60-216 is obviously much broader than the discovery procedure contemplated in 60-226 (b).
Following the filing of this action, and after several conferences with counsel for both parties, this court by order dated March 17, 1971, narrowed the issue to this question:
“Does a district court, at a pretrial conference pursuant to K. S. A. 60-216, have the power to order that the defendant make disclosure of his liability insurance policy limits?”
We shall first direct our attention to plaintiffs’ contention that the Muck decision controls the question presented here.
In Muck we simply held that the plain language of 60-226 (b), viewed in the light of K. S. A. 60-454 (inadmissibility of liability insurance to prove negligence or other wrongdoing), compelled our conclusion that dollar limits of a policy of liability insurance did not constitute direct evidence for use at the trial, nor could the disclosure thereof be reasonably calculated to lead to the discovery of admissible evidence. (See Muck, Administratrix v. Claflin, Syl. ¶ 3, supra.)
K. S. A. 60-226 (b), which is substantially the same as Federal Rule 26 (b) (1) (28 U. S. C. A.), reads as follows:
“(b) Scope of examination. Unless otherwise ordered by the court as provided by section 60-230 (b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. A party shall not require a deponent to produce, or submit for inspection any writing prepared by, or under the supervision of, an attorney in preparation for trial.”
K. S. A. 60-454 reads:
“Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.”
Since evidence of liability insurance is specifically declared to be inadmissible — as tending to prove negligence — it logically follows that discovery of policy limits could not possibly be calculated to lead to the discovery of admissible evidence. This premise compelled our holding in Much
However, our holding in Muck was expressly limited to the issue framed by the trial court’s rulings pertaining to interrogatories under K. S. A. 60-233, the scope of which is controlled by 60-226 (b). On this point we stated in the opinion:
“It will be understood that our decision is based on the facts before us. We should not be understood as stating that discovery through the contents of a liability insurance policy is never proper under K. S. A. 60-233 and 60-226 (b). Such interrogatories would be proper if they were reasonably calculated to lead to the discovery of admissible evidence. It should also be noted that what is said here is limited to the single issue of discovery of policy limits under K. S. A. 60-233 and 60-226 (b).” (p. 601.)
In view of the express limitation of our holding in Muck and because 60-216, by its own terms, appears to be much broader than the precise statutory limitations present in the discovery statutes, the majority of this court conclude that our holding in Muck is not determinative of the issue presented here.
A pretrial conference in this jurisdiction is authorized by K. S. A. 60-216 which sets forth the scope and purposes thereof. In pertinent part it reads as follows:
“In any action, the court shall on the request of either party, or may in its discretion without such request, direct the attorneys for the parties to appear before it for a conference to consider:
“(1) The simplification of the issues;
“(2) The trial of issues of law the determination of which may eliminate or affect the trial of issues of fact;
“(3) The necessity or desirability of amendments to the pleadings;
“(4) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
“(5) The limitation of number of expert witnesses;
“(6) The advisability of a preliminary reference of issues to a master;
"(7) Such other matters as may aid in the disposition of the action.” (Emphasis supplied.)
K. S. A. 60-216 is substantially the same as parallel Rule 16 of the Federal Rules of Civil Procedure (28 U. S. C. A.). There is one significant difference, i. e., the holding of a pretrial conference is made mandatory on request of either party under 60-216, whereas it is permissive under the Federal Rule.
The issue squarely presented here is whether the disclosure of policy limits falls within the scope of item (7) of 60-216. The question stated immediately gives rise to the included query whether settlement proposals or negotiations constitute “such other matters as may aid in the disposition of the action.” Granted, the encouragement of settlement is not one of the primary purposes of a pretrial conference, but if it is a valid secondary objective then it must be conceded that ignorance of policy limits is not only unrealistic but undesirable. As a practical matter no meaningful consideration of settlement could be accomplished.
Liberal construction of our new code of civil procedure is mandated by the provisions of K. S. A. 60-102. It reads:
“The provisions of this act shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding.”
In contrast to the restrictions of the precise language of 60-226 (b) and 60-454, which confronted us in Muck, our frame of reference for consideration of the proposition here is the literal mandate to consider “such other matters as may aid in the disposition of the action.” We believe the liberal construction directed by 60-102 compels the conclusion that the language used in 60-216 (7) contemplates the encouragement of settlement, in proper perspective, as a matter which may aid in the disposition of the action.
Without de-emphasizing the primary objectives of a pretrial conference in simplifying the issues, facilitating proof and disposing of various preliminary matters, we believe the encouragement of settlements plays a valid secondary role. The view which we have adopted in this regard is in accord with expressions on the subject by many text and treatise writers. (Spencer A. Gard, “Survey of Kansas Law: Civil Procedure,” 17 Kansas Law Review [1969], p. 739; 2 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, pp. 128-129; Nims, Pretrial, pp. 62-68; 1A Barron and Holtzoff, Federal Practice and Procedure, p. 833; and Joseph P. Jenkins, “Discovery of Automobile Liability Insurance Limits: Quillets of the Law,” 14 Kansas Law Review [1965], p. 59.)
Early in point of time with respect to discussions of the subject, Professor Edson R. Sunderland, in 1944, at the instance of the Committee on Pretrial Procedure of the Judicial Conference of Senior Circuit Judges, prepared a comprehensive treatise entitled “Procedure for Pretrial Conferences in Federal Courts.” With respect to the encouragement of settlement and the proper place thereof in pretrial conferences. Professor Sunderland wrote:
“One of the major purposes served by the pretrial conference is to afford a convenient occasion for discussing the possibilities of a settlement. It is always embarrassing for one party to suggest settlement to the other, because such a suggestion may be thought to carry the implication that the party lacks confidence in his case. When, however, the discussion of settlement comes up in the regular course of procedure, as a normal part of the pretrial conference and at the instance of the presiding judges, this cause of embarrassment disappears.” (Vol. 28 Journal of the American Judicature Society, p. 49.)
In further elaborating on the subject, Professor Sunderland directs attention to the position and degree of importance to be assigned the consideration of settlement at a pretrial conference. He warns against the overreaching of judges in making consideration of settlements, the chief purpose of the proceeding and dealing with other features of the conference as more or less incidental to the fundamental aim.
Judge Alfred P. Murrah, former Chief Judge of the Tenth Circuit Court of Appeals, when serving as Chairman of the Pre-Trial Committee of the Judicial Conference of the United States, wrote:
“The settlement of cases is not a primary objective of pre-trial conferences, but, when properly presented, it is an important by-product and often the logical result of pre-trial. If the judge has the technique and personality for it, if he is understanding and does not coerce settlement but constantly reminds the lawyers that they are entitled to their day in court, the proper atmosphere will be created to encourage compromise and settlement. . . .” (14 F. R. D. pp. 417, 420.)
Many federal and state courts have relied on settlement as a factor in rationale supporting discovery under Federal Rule 16 and parallel state rules of civil procedure. For example, see Lucas v. District Court, 140 Colo. 510, 345 P. 2d 1064; Johanek v. Aberle, 27 F. R. D. 272 (1961); cases collected in 13 A. L. R. 3d, Anno., p. 822; 41 A. R. L. 2d, Anno. p. 968; 8 Wright & Miller, Federal Practice and Procedure: Civil § 2010, p. 91, Note 72. While the arguments in the cases mentioned do not support discoverability under our construction of K. S. A. 60-226 (b) they are persuasive with respect to a pretrial conference under 60-216, where settlement is a proper matter for consideration.
In Muck we noted the irreconcilable conflict in the decisions of federal district courts and of the various state appellate courts concerning the disclosure of policy limits in discovery proceedings. Counsel for defendant and amicus curiae point out that since our decision in Muck, the nationwide conflict in federal district courts has been settled by a change in Federal Rules of Civil Procedure and, therefore, counsel suggest that we reexamine our construction of 60-226 (b). The conflict in federal courts was not resolved by stretching the scope of Federal Rule 26 by appellate decision, but by the promulgation of an entirely new rule expressly declaring insurance agreements to be discoverable. (See Federal Rule 26 [b] [2], effective July 1, 1970, [28 U. S. C. A., Cumulative Pocket Part, p. 219.])
In the instant case the record shows that defendant conducted a pretrial conference after all discovery proceedings were completed. This is generally recognized as the most acceptable procedure. We are informed that the same practice is followed by most trial courts in this jurisdiction. At this juncture in the course of litigation, pleadings are generally completed, there has been a full disclosure, the contentions and claims of the parties are stated, available evidence concerning both liability and damages has been indicated, court and counsel are in a position to narrow the issues and are in the best possible position to evaluate the case for settlement purposes. The court is in control of the situation. The possibility of exaggerated or padded claims, stemming from disclosure (an argument frequently advanced by opponents of discovery), may be forestalled by the discretionary denial of amendments to pleadings. Conversely, fraudulent settlements such as described in Toppass v. Perkins' Administratrix, 268 Ky. 186, 104 S. W. 2d 423, will be avoided.
We believe the encouragement of settlement to be a valid subject for consideration as a matter that may aid in the disposition of an action and thus clearly falls within the contemplation of K. S. A. 60-216. As a consequence, common sense and realistic treatment dictate that the fact of liability insurance and disclosure of the policy limits thereof are essential to a purposeful settlement discussion.
In order to confine the subject of settlement within its proper perspective at a pretrial conference, we issue this caveat — that efforts by the court should never work to coerce or compel a litigant to make a settlement. Settlements are to be wrought by the litigants, not by the court.
The peremptory writ is denied.
Price, C. J., dissenting from the second sentence of paragraph 3 of the syllabus and the corresponding portion of the opinion.
Schroeder and Fontron, JJ., dissenting. | [
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|
The opinion of the court was delivered by
Foth, C.:
Appellant was convicted by a jury of first degree murder and sentenced to life imprisonment in accordance with the jury’s verdict. He appeals from the judgment of conviction and sentence, and from the court’s order overruling his motion for a new trial, both entered March 11, 1970.
One of appellant’s contentions here, as in the trial court, goes to the weight of the evidence. He claims that the state’s evidence was insufficient to go to the jury, and his motion for discharge at the close of the state’s case should therefore have been sustained. As a corollary, he urges that the verdict was contrary to the evidence.
This contention requires that we review briefly the state’s case. In so doing, we bear in mind the well established propositions that it is the function of the jury, not of an appellate court, to weigh the evidence and pass upon the credibility of witnesses; and a verdict based on substantial competent evidence will not be disturbed on appellate review. State v. Lyon, 203 Kan. 78, 452 P. 2d 838; State v. Wade, 203 Kan. 811, 457 P. 2d 158, and cases cited therein.
Testimony adduced by the state indicates that on the fatal night, October 3, 1969, at about 8:30 p. m. the deceased, Gladys Freeman, arrived in the company of two female friends at an establishment known as the Thirteenth Street Tavern, located on the southeast corner of Thirteenth and Monroe streets in Topeka.
There are conflicts in the testimony concerning the many turbulent events of the evening, all of which need not be detailed here. The two friends who had accompanied the deceased to the tavern and her daughter who arrived later variously testified that on more than one occasion the appellant quarreled violently with the deceased; that he accused her of having $150 belonging to him; that he threatened to kill her if she didn’t pay him the money forthwith; that he slapped her about the head and shoulders; that he waved a pistol in front of the tavern in a threatening manner; that he called her “bitch” and repeated his threats to kill her on several occasions, the last time shortly before the fatal shot was fired.
Two bystanders, Mr. and Mrs. Roland Gray, arrived on the scene around 10:45 to 11:15 p. m., shortly before the shooting. They parked their car at the northeast corner of Thirteenth and Monroe, just north of the tavern. They each testified to an encounter between appellant and the deceased in front of the tavern in which appellant shook her and said something about $150; that she went back into the tavern and he shortly thereafter followed her; that they came out together and he told her to get into his car, a 1963 Cadillac which was parked in front of the tavern; that she did so, sitting in the passenger’s seat; that appellant went back into the tavern for a few minutes and then returned to the driver’s side of the car; that he shortly thereafter took something out of his pocket, extended his arm into the car, and a shot was fired.
Shortly before the shot there appeared on the scene one Billy Stevenson, also known as William McKinley Miller, Jr. He was observed by the Grays talking to the deceased while she was sitting in the car and appellant was in the tavern. Immediately after the shot he and appellant entered the car and drove away. The Grays followed to the hospital.
Stevenson, testifying for the state, said he was present at the time the shot was fired but did not see it fired or see appellant with a gun; he had been talking to deceased while she was sitting in the car but turned and started to walk away when appellant approached; and that he heard the shot. He denied having a pistol in his possession at any time during the evening. More will be said of this aspect of his testimony later.
The deputy coroner testified that deceased died as a result of a bullet wound to the head. The bullet entered half way between the root of the nose and the left eye and traveled toward the right side of the head in an upward and backward direction. (We note that this is consistent with relative positions of appellant and the deceased at the time of the shot, as related by the Grays.) From his examination he concluded the gun had been fired at fairly close range. The bullet was identified by a police expert as being from a .22 caliber gun.
From the foregoing abbreviated version of the state’s evidence it is clear that there was ample testimony which, if believed by the jury, would warrant its verdict. The court below therefore did not err in overruling appellant’s motion for discharge or in finding on his motion for new trial that the evidence was sufficient.
Prior to the voir dire appellant challenged the array of jurors and alleges that the trial court erred in overruling his challenge. The basis of his attack is that the panel was selected by the judges of the district court from the Shawnee County voter registration lists, and not from the assessment rolls as he contends they should have been under K. S. A. 43-102. The answer to this contention requires a review of the legislative history of the methods of selecting jurors in this state.
G. S. 1868, ch. 54, § 1, assigned the duty of selecting prospective jurors in every county to the county commissioners, who under § 2 were to employ the assessment roll of the previous year. This duty was transferred to the township trustees and the mayors of most incorporated cities by Laws 1876, ch. 104, § 1. The 1876 amendment has come, down to us unchanged and now appears as K. S. A. 43-101. The 1868 direction that those officers use the assessment rolls of the preceding year as their source is now incorporated in K. S. A. 43-102.
However, in 1907 the legislature introduced a wholly new statutory method of selecting prospective jurors in counties having a population of over 100,000 (Laws 1907, ch. 232). This act now appears basically as K. S. A. 43-135 (as amended) through 43-147. The applicability of this act was amended to cover counties over 90,000 by Laws 1921, ch. 167, § 1, and again to those over 80,000 by Laws of 1953, ch. 242, § 1. (Certain additional counties between 40,000 and 80,000 were brought under the act by Laws 1967, ch. 278, § 1, but they do not concern us here.)
The salient feature of the 1907 act applicable to the larger counties appeared in § 2, and now appears as K. S. A. 43-136:
“In every county in this state to which this act may apply, the judges of the district court and such other courts of general jurisdiction if any in said county, as soon as practicable after the passage of this act, shall meet and cause to be made under their supervision a complete list as near as they can, alphabetically arranged, of all the qualified jurors in the county and their residences; said lists shall be revised by said judges at least once each year, and as much oftener as said judges shall deem necessary, and all names of qualified jurors in said county, as far as can be ascertained by said judges, shall be added thereto, and the names of those persons who have died, removed from the county or otherwise become disqualified shall be stricken therefrom. The names so stricken therefrom, when drawn from the wheel or box as hereinafter provided, shall not be certified to the clerk of the court requiring the jury, but another name in lieu thereof shall be drawn and the card bearing said name shall be destroyed. In compiling and revising said lists, said judges and their clerks and assistants may have access to the books of the county clerk, county treasurer, and such other records of the county as they may desire.” (Emphasis supplied.)
It will be noted that this section speaks only of “qualified jurors,” with no limitation on the sources from which their names must be derived. Were that source to be only the assessment roll, access to the books of the county clerk and treasurer would be sufficient, and access to “such other records of the county as they may desire” would be superfluous. In Shawnee County voter registration lists are maintained by the county election commissioner, and are “records of the county.”
The distinction between the methods of selecting juries in the smaller as opposed to the larger counties was recognized in State v. Millhaubt, 144 Kan. 574, 61 P. 2d 1356. Although that case involved a challenge to a grand jury rather than a petit jury, the court had occasion to observe:
“Sedgwick comity has over 100,000 population, hence is governed by R. S. 43-135 to R. S. 43-150, inclusive, the provisions of which refer solely to petit jurors. Under the last-mentioned statutes, a different method of making up the jury list obtains (compare R. S. 43-101 to 43-106, inclusive, with R. S. 43-136), . . (p. 577)
To round out our discussion we also note that the same session which lowered the applicability of 43-135 through 43-147 to 80,000 also created a whole new method of selecting prospective jurors in counties over 225,000 (Laws 1953, ch. 241). The assessment rolls were reintroduced, and this feature was retained when that act was replaced by Laws 1955, ch. 249, now appearing as K. S. A. 43-154.
We thus have three separate and distinct methods of selecting prospective jurors: one, applicable to most counties under 80,000, governed by K. S. A. 43-101 through 43-134; the second, applicable to counties from 80,000 to 225,000 and certain counties from 40,000 to 80,000, governed by 43-135 through 43-147; and the third, applicable to counties over 225,000 governed by 43-154. Under the first and third methods the statutes specifically provide that the basic source of names is to be the tax assessment rolls. Under the second, applicable here, the judges of the district court may use such sources “as they may desire.”
Further, we have held as a general principle that a jury panel is not to be quashed on any ground which does not involve corruption, serious misconduct or palpable disregard of the law. (State v. Stanphill, 206 Kan. 612, Syl. ¶ 3, 481 P. 2d 998, and cases cited therein.) None of those elements is present here, and there is no showing that any juror who sat was not qualified. The trial court therefore did not err in overruling appellant’s challenge to the array.
Appellant next urges as error the trial court’s ruling sustaining a challenge for cause of one prospective juror, Donald J. Green, and its general conduct with respect to him. His contention is grounded on Witherspoon v. Illinois, 391 U. S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, which held that the death penalty could not constitutionally be imposed by a jury from which all persons with conscientious scruples against capital punishment had been excluded.
The case offers no support for appellant’s position for two reasons. First, the death penalty was not imposed here. In Witherspoon it was only the death penalty that was stricken down; the finding of guilty by what the court called a “hanging jury” was allowed to stand. Second, the scruples of the prospective juror in question here went far beyond a reluctance to impose the death penalty; he testified that they would affect his ability to render an impartial Verdict on the issue of guilt. This brought him squarely within the ambit of former K. S. A. 62-1404, which provided:
“If the offense charged be punishable with death, any person entertaining such conscientious opinions as would preclude his finding the defendant guilty shall not serve as a juror.”
We believe this standard wholly consonant with the constitutional principle announced in Witherspoon.
Because appellant complains that the trial court led the prospective juror into his disqualifying testimony we deem it appropriate to excerpt the pertinent portion of the trial court’s inquiry made after the juror’s opposition to capital punishment was elicited:
“The Court: Well, I think the Court will ask the juror several questions. First of all, the question is not whether you have scruples against the death penalty — a sizeable percentage of our population has such scruples, and there’s nothing wrong with having those scruples. I want you to understand that. However, jurors should follow the Court’s instructions as to the law. Those instructions will state in sum and substance among other things that in the event, and only in the event, the defendant were determined to be guilty, the jury should then exercise its prerogative and its discretion to determine what the penalty should be. Now, if the Court instructs you that this is the law and that this is your duty to enter into this determination, will you do that and will you subject any scruples that you may have to at least the Court’s instructions and follow the instructions so that you could exercise this discretion?
“Donald J. Green: I would try.
“The Court: You would try? Well, I think that is all we can ask any juror to do. You understand that you have the duty, under the Court’s instructions, to follow the law. Now, the Court does not tell the jury how to make the decision, that is, what the decision should be. The Court tells the jury how tire jury should exercise its function as the trier of the fact, and the Court instructs the jury on the elements of the offense and all the other pertinent matters which the jury should know about so that they are fully instructed in undertaking the function of reaching a verdict. I think you have indicated that you would try to follow the Court’s instructions honestly and conscientiously, is that correct? You understand I am not asking you to say that you don’t have any scruples; I am simply asking whether you could follow the Court’s instructions.
“Donald J. Green: Sir, I am against taking a man’s life. That’s all there is to it, and I don’t feel that I am a worthy one to be here feeling this way.
“The Court: Would that affect your ability to determine his guilt?
“Donald J. Green: Yes, sir.
“The Court: You don’t believe that you could fairly determine his guilt?
“Donald J. Green: Yes, sir.
“The Court: All right, I will sustain the challenge for cause under Kansas Statutes Annotated 62-1404.”
In pursuing this line of questioning we think the trial court was not only acting within the bounds of its discretion but of its duty. Once the issue was raised, we believe it to have been the court’s duty to determine whether, despite his scruples, the juror could render an impartial verdict. This, we believe, is inherent in Wither-spoon and our statute. Read as a whole the trial court’s comments and questions indicate a readiness to retain the juror to the very point where he repeatedly stated that his scruples were such that despite the court’s instructions he could not fairly determine the issue of guilt. We find no error in the trial court’s conduct with respect to this juror.
Appellant had employed a private detective to investigate the case, interview witnesses and make reports to his attorney. Prior to trial appellant moved the court to exclude from the courtroom all witnesses until they should be called to testify, and his motion was sustained. Appellant then asked that an exception be made for his investigator. Upon informed that the investigator would be a witness, the court refused to make such an exception, and appellant claims this was error.
Generally speaking, the question of whether to exclude witnesses or not, and what exceptions may be made, is discretionary with the trial court in the absence of a showing of prejudice. See State v. Guffey, 205 Kan. 9, 15-16, 468 P. 2d 254 and authorities cited therein. Appellant points to no prejudice resulting from the court’s ruling, and none appears from the record. We cannot, therefore, find an abuse of the court’s discretion.
Appellant further contends that the court had no jurisdiction over his person because he was arrested on a warrant unlawfully issued by the magistrate court. The unlawfulness, he alleges, stems from the fact that the complaint upon which the warrant was issued was not formally sworn to nor was testimony received by the magistrate.
The chief difficulty with this contention is that it was never made by appellant until he filed his motion for a new trial. In the meantime he had participated with counsel in a full preliminary hearing, been bound over for trial, pleaded to the information filed against him, announced himself ready for trial, participated fully in the trial, and had been found guilty by a jury. At this point it is much too late to complain about any irregularity in the issuance of the original warrant. See State v. Addington, 205 Kan. 640, 643, 472 P. 2d 225. Further, unlawfulness of an arrest does not alone vitiate a subsequent conviction or deprive a court of jurisdiction to try an accused. State v. Addington, supra, and authorities cited therein; Hatchers Kansas Digest, Perm. Supp. Vols. 1-3, Criminal Law §22.
Appellant’s reliance on Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245, is wholly misplaced. There evidence seized as an incident to the arrest was admitted at trial. When the warrant on which the accused was arrested fell under a Fourth Amendment attack, the evidence and the conviction based thereon fell with it. Here, no evidence was seized at the time of appellant’s arrest, and no other prejudice of any kind is shown. Giordenello is simply not in point.
Finally, appellant urges that he should have a new trial because one of the state’s witnesses confessed to perjuring himself on the witness stand. This witness was Billy Stevenson, also known as William McKinley Miller, Jr., whose trial testimony referred to was basically that he did not see but only heard the fatal shot, and that he did not have a pistol in his possession on the fatal night. He had previously given statements to the same effect to the county attorney and to appellant’s investigator.
His repudiation of this testimony must be viewed in the light of the testimony given at the trial by appellant, who had taken the stand in his own behalf. Appellant’s version of the shooting was that while he was standing near the car in which the deceased was sitting Stevenson approached him with a pistol in his hand. Stevenson, according to appellant, was interested in buying the gun but it had some sort of malfunction. Appellant testified that he asked the deceased to hand him a screwdriver from the glove compartment, which she did; that he inserted it behind the trigger of the pistol, which then discharged accidentally; that he paid no attention to where it was pointed; that he then handed the gun back to Stevenson and went into the tavern to get a beer for the deceased; and that it was only when he came out of the tavern three or four minutes later that appellant first observed that the deceased had been shot. The jury obviously disbelieved this story, as was their right.
The day following the verdict Stevenson, at this time residing in the county jail, became suddenly conscience-stricken. He called the undersheriff and confessed that he had lied at the trial; that he had in fact brought a pistol to appellant to examine and repair; and that it discharged accidentally as appellant had said it had. He apparently then made a similar statement to appellant’s investigator.
At the hearing on appellant’s motion for a new trial he gave substantially the same recanting testimony. In findings of fact filed the next day the trial court expressly found that Stevenson’s new testimony “. . . is untrustworthy and unreliable and is, therefore, entitled to no weight or credit.” The same finding was made as to Steven’s post-trial statements as to the undersheriff and appellant’s investigator.
The trial court, in a memorandum opinion, elaborated on these findings:
“There are many reasons why the Court found that Stevenson’s latest testimony was unreliable and entitled to no weight or credit. First, his demeanor and appearance at the post trial hearing was such as to cause the Court to discredit his testimony. Second, it seems improbable that Stevenson’s original statement given to the County Attorney would be any less accurate than Stevenson’s version of the facts after the jury found the defendant guilty. Such statement was much earlier in time and there was no logical reason for Stevenson to he about knowledge of the facts at that early stage. Stevenson was unconvincing when he stated that he was afraid that if he told the truth he would somehow become implicated in a crime. Just how this could have happened is unclear to the Court. The fact that Stevenson gave defendant’s investigator a statement similar to that given to Mr. dander and to Stevenson’s testimony at the trial is difficult to square with Stevenson’s post trial explanation of his change in story. There seems to be no compelling reason for not telling said investigator the truth before trial. Furthermore, since the statement given to the County Attorney was not under oath, Stevenson could not have been guilty of perjury in making said statement. Thus, it would have been most illogical for Stevenson to have concluded that he had to testify at the trial in a manner consistent with the unsworn statements given before trial. Quite the contrary, Stevenson would have committed perjury by testifying in accordance with said unsworn statements, if in fact they were untrue.
“Another consideration is that it seems implausible that when called to testify in a first degree murder case Stevenson did not realize the gravity of the situation and the importance of telling the truth until after the jury returned its verdict of guilty. As soon as the verdict was in, Stevenson just happened to start thinking and only then decided to tell the ‘truth’. And, of course, the ‘truth’ just happened to correspond to defendant’s own version of the facts. Such a state of affairs can hardly be expected to enhance Stevenson’s credibility.
“An additional consideration is that Stevenson and the defendant were inmates of the Shawnee County Jail, both before and after the trial. Furthermore, it is reasonable to assume from the evidence of the trial that they have been acquainted for some time and are not on unfriendly terms.
“For all of the foregoing reasons the Court as the trier of the facts with respect to the evidence presented by defendant in support of his motion for new trial, totally discounted Stevenson’s testimony.”
We believe the trial court was fully justified in its findings and in disregarding this ground for the motion for a new trial. In State v. Buton, 124 Kan. 509, 260 Pac. 634, the trial court had refused a new trial despite a recanting affidavit of a material prosecution witness, refuted by other affidavits offered by the state. The court said:
"In this situation appellant contends that it is the function of the jury to weigh the testimony, and that there was nothing for the court to do but to grant a new trial. This contention cannot be sustained. The court, not the jury, passes on the motion for a new trial, and any evidence offered in support of it. Obviously, a court is not compelled to give credence to false testimony offered in support of a motion for a new trial. One who recants his sworn testimony in court necessarily raises a serious question as to his own veracity. In 16 C. J. 1188, the rule is thus stated:
“ ‘But recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.’” (pp. 509-510.)
See also State v. Birzer, 126 Kan. 414, 268 Pac. 842; State v. Smith, 126 Kan. 670, 271 Pac. 289.
We find no error and the judgment is affirmed.
APPROVED BY THE COURT. | [
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Parks, J.:
This is a habeas corpus proceeding in which the petitioner Louis O’Riordan challenges the lawfulness of his restraint under a governor’s extradition warrant.
On December 18,1980, a governor’s warrant was issued for the arrest of O’Riordan, who was arrested and released on his own recognizance on December 24, 1980. O’Riordan filed a petition for writ of habeas corpus on January 2,1981, alleging that he was unlawfully deprived of his liberty by James H. Fountain, sheriff of Reno County, Kansas.
At the hearing on January 6,1981, Judge Porter K. Brown found that the extradition documents on their face were not in order because there was no notation that the magistrate issuing the warrant for the arrest of the petitioner made a finding of probable cause. The court recessed the hearing to February 6, 1981, to allow the State of Arkansas time to show that the warrant was issued upon the proper finding. On February 6, Judge Brown, after examining an order of the Circuit Court of Polk County, Arkansas dated January 13, found he still could not determine the question left open on January 6 and recessed the hearing until March 6, at which time he considered an order nunc pro tunc filed by the circuit judge of Polk County. He then found that all requirements for extradition of the petitioner were satisfied. Accordingly, Judge Brown dissolved the writ of habeas corpus and dismissed the action with costs assessed to the petitioner O’Riordan. This appeal followed.
Petitioner contends that because the extradition procedure entails a restraint of liberty, the Fourth and Fifth Amendment rights are invoked and probable cause must be found before extradition may be permitted.
Concerning the issue of probable cause, we are reminded that an asylum state in an extradition proceeding may not conduct its own investigation into the sufficiency of the facts supporting a finding of probable cause but must accept the conclusion of the demanding state if the documents reveal that a probable cause determination was made. Michigan v. Doran, 439 U.S. 282, 289, 58 L.Ed.2d 521, 99 S.Ct. 530 (1978). Doran also determined that the scope of review of an extradition request in a habeas corpus proceeding is limited to determining (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. Doran, 439 U.S. at 289; Gladney v. Sheriff of Leavenworth County, 3 Kan. App. 2d 568, 570, 598 P.2d 559 (1979).
The original extradition documents included an arrest warrant and information couched entirely in the language of the statute. The certificates did not state that the judge who issued the bench warrant heard evidence prior to its issuance and at that time found that probable cause existed. However, the nunc pro tunc order considered at the March 6 hearing reflects proceedings by the Arkansas court on January 13, 1981, and a contemporaneous finding of probable cause based on examination of the victim and the charging documents. The order also states that this probable cause had existed since February 14, 1980, and ordered the court files amended to reflect that probable cause did exist at the time the information was filed.
In Zambito v. Blair, 610 F.2d 1192, 1196 (4th Cir. 1979), the court concluded as follows:
“[6] In such circumstances, we conclude that the fourth amendment, as applied to the states by the fourteenth amendment, requires only that, prior to an extradition, there in fact have been a finding of probable cause by a neutral judicial officer, not that the demanding papers, additionally, must say so. Where such a finding has actually been made in the demanding state before extradition, and where the person executing the governor’s warrant has no substantial basis for doubting that it has been made, execution of that warrant is not constitutionally invalid merely because the documents which were presented to the governor of the asylum state did not, at the time of their presentation, specify that the finding had been made.”
In view of the holding in Zambito, we conclude that when, as here, the demanding papers presented do not specify that a finding of probable cause had been made prior to issuance of the warrant but such a finding is made prior to extradition, the requirements for extradition are met.
Petitioner also complains that the documents should have revealed sufficient facts to notify him of the crime charged. He relies in part on Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), and In re Simpson, 2 Kan. App. 2d 713, 586 P.2d 1389 (1978), which preceded the holding of Doran and its restrictions on the review of extradition requests. Because of the limited review permitted by Doran, it makes little difference whether the defendant is notified of the facts behind the warrant if he is the subject of a proper extradition and probable cause has been found in the demanding state. Since the asylum state cannot inquire into the facts behind the warrant, defendant’s remedy would be to request a bill of particulars once extradited.
Finally, petitioner complains that when the district court found the extradition documents insufficient, it should have ordered his release rather than continuing the proceedings for a total of sixty days. In Wilbanks the court held that a demanding state should be given a reasonable time of thirty days to provide the necessary showing needed to rehabilitate defective extradition papers. Wilbanks, 224 Kan. at 81. A thirty-day continuance was also approved in Zambito, 610 F.2d at 1196. Here, the court initially continued the proceedings for thirty days to permit Arkansas time to establish the necessary probable cause showing but then granted another thirty-day extension when the documents supplied by Arkansas were still found insufficient. The specific insufficiency was that it was not stated that probable cause existed when the warrant was issued; however, a magistrate had examined the complainant and found that there was probable cause sufficient to support issuance of a bench warrant. Although the court may not have been willing to proceed with the extradition, we conclude that under these facts the petitioner’s restraint after the first thirty days and until receipt of the nunc pro tunc order was based upon a probable cause finding and was not unreasonable.
Affirmed. | [
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Parks, J.;
Plaintiff Richard Lynn brought this action for actual and punitive damages arising out of his purchase of a termite-damaged residence. The seller, J. Scott Taylor, and realtor, L. G. Langston, were sued for fraud while Thriftway, Inc., which performed one of the termite inspections, was charged with negligence.
In early October of 1977, Lynn contacted an acquaintance, Buel Kent, who was a real estate broker associated with defendant Langston’s business, Langston Realty Company. Mr. Lynn decided to purchase the residential property owned by Taylor and entered into a contract on October 5, 1977.
Lynn expressed his desire to have the property inspected for termites and Kent advised Lynn that if he had no preference he would see to the matter and have the inspection done. Thereafter, Kent contacted Bob Burton of Midwest Pest Control, Inc. and requested that he inspect the premises. Burton did so and found evidence of prior termite infestation in the crawl space under the house and minor termite damage toward the front of the house underneath the front door. Burton then called Langston Realty and left a message that he could not clear the property and that he recommended treatment. Langston received the message and called Taylor to advise him of the results of the inspection. Taylor indicated that he had received certification that the house was termite-free when he purchased the property and wanted a second opinion. Taylor then contacted Thriftway, Inc. to obtain another inspection. When Thriftway submitted its Wood Infestation Report, dated November 23, 1977, clearing the property, Taylor delivered a copy to the financing institution and the transaction was subsequently closed.
It is undisputed that no one, prior to the closing, advised Lynn that the first inspection was made or that the property did not pass inspection. It was not until Mr. Homer Doll was doing some remodeling in the residence that the termite damage was brought to the attention of Lynn. Subsequently, Lynn called Taylor who made reference to at least one prior inspection and indicated that “Bob didn’t clear the house.” When Lynn later checked with Kent, he was advised that he didn’t know of any “Bob” who had inspected the house.
The trial court held that Thriftway was liable to Lynn for negligence and that Taylor and Langston were liable for fraudulently concealing the inspection conducted by Midwest Pest Control. The trial court also held that all three defendants were jointly and severally liable for the actual damages of $13,246 and, in addition, awarded punitive damages against both Langston ($20,000) and Taylor ($10,000). Langston and Taylor appeal. Lynn cross-appeals the amount of the actual damages awarded.
We first consider whether the trial court erred in finding fraudulent concealment by Langston and Taylor.
When one party to a contract or transaction has superior knowledge, or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud, especially when the other party relies upon him to communicate to him the true state of facts to enable him to judge the expediency of the bargain. Sippy v. Cristich, 4 Kan. App. 2d 511, Syl. ¶ 2, 609 P.2d 204 (1980). Furthermore, actual knowledge of the defect must be shown to support a claim of fraudulent concealment, Miles v. Love, 1 Kan. App. 2d 630, 632, 573 P.2d 622, rev. denied 223 Kan. clxxi (1977), and the matter concealed must be material to the transaction. Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P.2d 198 (1973).
There is no question but that Taylor and Langston had information concerning the house which Lynn did not and could not have had and that this information could have influenced the buyer’s decision. However, because there was evidence that no live termites existed when Burton inspected the house, that all damage pre-existed 1970 and that none of the damage was readily visible, the focus of our inquiry must be whether the information which was concealed was material.
The report from Bob Burton indicated that he could not certify the house and that treatment was necessary. The trial court held that this information would be a “red flag” to a buyer and that Lynn testified that he would not have purchased the property had he known of the inspection. Nevertheless, Taylor contends that all the report indicates is that Burton mistakenly believed that treatment was necessary for live termites. Since treatment of the house would not have repaired the existing damage or revealed the extent of that damage, Taylor contends that Burton’s report was not material.
A matter is material if it is one to which a reasonable person would attach importance in determining his choice of action in the transaction in question. Sippy, 4 Kan. App. 2d at 516. Burton testified that he observed termite damage to the floor joists in the crawl space under the house while the Thriftway report simply stated that there was evidence of earlier treatment. Lynn had indicated to his realtor that he planned to remodel the house and his request for a termite inspection evidenced his concern that the house be structurally sound. Thus, evidence of earlier treatment would certainly not have the same import as evidence of previous damage. Therefore, if Lynn had the opportunity to speak to Burton or hear his report of the inspection, it may well have influenced his decision to buy the house. We hold that the trial court’s conclusion that this information was material is supported by the evidence.
We conclude that the trial court was correct in finding that Langston and Taylor committed fraud when they failed to communicate to Lynn the fact that there was another inspection and that the property did not pass the inspection. Clearly, they had knowledge which was not within the fair and reasonable reach of Lynn.
Both Langston and Taylor maintain that the trial court went outside of the issues presented by the parties in reaching its decision. It is true that the pretrial order states that “the mixed issues of law and fact are framed by the pleadings.” However, it is clear from other portions of the pretrial order that Lynn claimed Langston and Taylor had willfully concealed the fact that a previous inspection had been done and the results of that previous inspection. Defendants could not have been surprised or prejudiced by the theory adopted by the court; thus, we find no merit to this argument.
Langston next claims that the trial court erred when it entered judgment against all defendants (Thriftway, Langston and Taylor) jointly and severally. His contention is based on the holding that the enactment of the comparative negligence statute abolished the concept of joint and several liability. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). Since Thriftway was only liable for negligence, the substance of Langston’s claim is that in order to secure it the benefits of comparative negligence and liability limited to fault, the court should have calculated a percentage of causal fault attributable to Thriftway and assessed the balance of the fault jointly to Langston and Taylor.
In Kennedy v. City of Sawyer, 228 Kan. 439, 449, 618 P.2d 788 (1980), the Court concluded that the doctrine of comparative fault is applicable to cases involving multiple claims against a number of defendants for negligence, breach of implied warranty and strict liability. The Court reasoned that in order to preserve the right of a defendant charged with negligence to only be liable for his proportionate fault, the fault of the various defendants must be compared even though some of the claims involved acts other than negligence. There is, however, no authority for including an intentional tort such as fraud within the ambit of comparative fault principles. In Sandifer Motors, Inc. v. City of Roeland Park, 6 Kan. App. 2d 308, 317-18, 628 P.2d 239, rev. denied 230 Kan. 819 (1981), this Court, in discussing the differences between negligent and intentional nuisance, indicated that comparative negligence could not apply to intentional torts. Langston does not argue to the contrary but contends that the court should have attributed a percentage of fault to Thriftway and diminished the damages against Langston and Taylor by that percentage. This argument ignores the fact that above all, comparative negligence is a comparison of fault. See Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 373, 634 P.2d 1127 (1981). Langston does not contend that the plaintiff was contributorily negligent; therefore, unless fraud has a fault basis with which negligence can compare, it is difficult to envision how the court should have divined a particular portion of fault as traceable to Thriftway.
The abolition of joint and several liability effected by Brown was limited to comparative negligence actions and did not eliminate such liability in all actions in which a negligence claim is established. We see no reason to extend that holding to this case simply because one defendant was negligent. Accordingly, it was proper for the trial judge to assess the actual damages against all defendants, jointly and severally.
Finally, Langston and Taylor both contend that the assessment of punitive damages was inappropriate and alternatively, that the amount was excessive.
A verdict of actual damages is essential to a recovery of punitive damages. Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 316, 607 P.2d 1339 (1980). Here the trial court found that both Langston and Taylor were guilty of fraudulent concealment and we, by this opinion, concur in that finding. Therefore, punitive damages were properly assessed in this case.
It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs. The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Henderson v. Hassur, 225 Kan. 678, 694, 594 P.2d 650 (1979); and cases cited therein.
With these principles in mind, we consider some of the evidence that was before the trial court. Although it was the buyer who requested the termite inspection, Langston called the seller concerning the results of the first inspection and then permitted the closing to take place without any notation that he had received the message from Burton. Taylor not only concealed the information but, in addition, obtained a “second opinion” and proffered it to Lynn as an affirmative representation of what the condition was when in fact he had reason to believe that the report was false. Both Taylor and Langston were experienced real estate brokers and the trial court was apparently concerned with the danger of sellers and agents “shopping around” for a favorable termite inspection. In light of all the circumstances, we cannot say that the amount of punitive damages awarded in this case is such as to shock the conscience of this court. Accordingly, we hold the judgment is not excessive.
Turning now to the issue raised on cross-appeal, Lynn seeks additional actual damages for the cost of removing and replacing dry wall in the family room and garage. Lynn argued for the assessment of these damages before the trial court and was denied relief. Unless there was arbitrary disregard of undisputed evidence, this negative finding should not be disturbed. Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, Syl. ¶ 4, 621 P.2d 448 (1980). Clearly the evidence regarding damages was not undisputed in this case. For these reasons, the case is affirmed as to the cross-appeal.
Judgment affirmed. | [
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Foth, C.J.:
This is a dispute between the Workmen’s Compensation Fund and an employer and its insurance carrier over who should pay benefits to a worker with a conceded job-related disability. The Fund appeals from the assessment of 90% of the claimant’s benefits to it on a finding by the trial court that claimant had “knowingly misrepresented” herself as not having a handicap.
Aside from the critical “knowing misrepresentation” finding, the facts are largely undisputed. The claimant, 5'4~, 120-pound Norma C. Collins, first went to work for the respondent Cherry Manor Convalescent Center in Lawrence in the summer of 1977. Six months later she quit to move to Topeka with her husband. At that time her superior noted: “I was pleased with her work. I would rehire.” In August, 1978, she was reemployed at Cherry Manor as a dietary aide. On October 31, 1978, she injured her back while lifting a 50-pound milk container at work. Benefits for the resulting disability were agreed upon, with the Fund and the employer reserving the question of who should pay them.
Before her first employment at Cherry Manor, claimant had had several back injuries. During the winter of 1974, claimant was injured while lifting a frozen garage door. She saw a physician and was well in three or four days after treatment with hot packs. At Christmas time in 1975, Mrs. Collins bent over while cleaning her house. She coughed and sneezed at the same time and felt a sharp pain in her back and could not stand up. Dr. Wertzberger, an orthopedic surgeon, diagnosed a disc herniation and hospitalized her. He proposed surgery, but when she objected he discharged her from the hospital and prescribed conservative treatment. Mrs. Collins testified that her back began getting better after an episode in January, 1976, where she tripped on steps and landed in an upright position against a partition. On November 29,1976, the claimant was again hospitalized after she slipped on icy water while washing clothes. Dr. Wertzberger’s prescription at that time was conservative treatment, including physical therapy. He made no mention of the herniated disc, and she was released after four days. It is this history which forms the basis for the trial court’s disputed finding of “knowing misrepresentation.”
The statutory scheme for imposing liability on the fund is well established. Under K.S.A. (then 1977 Supp.) 44-567 an employer who knowingly employs or retains a “handicapped” employee may be partially or totally relieved of liability for benefits otherwise due the employee. Here, the relief would be to the extent the current disability was attributable to the claimant’s preexisting physical impairment, found by the trial court to be 90%.
Under K.S.A. 44-567(c) (then 1977 Supp. 44-567[b]) knowledge of the preexisting impairment or handicap is conclusively imputed to the employer “if the employee, in connection with an application for employment or an employment medical examination or otherwise in connection with obtaining or retaining employment with the employer, knowingly: (1) Misrepresents him self or herself as not having such an impairment or handicap; . . . (5) misrepresents himself or herself as not having any mental, emotional or physical impairment, disability, condition, disease or infirmity . . . Emphasis added.
The significance of the statutory requirement that the employee’s misrepresentation be made “knowingly” was most recently discussed by this court in Krauzer v. Farmland Industries, Inc., 6 Kan. App. 2d 107, 626 P.2d 1223, rev. denied 229 Kan. 670 (1981). The court, although disapproving reference to a statutory definition in the criminal code, did approve a definition of “knowingly” as being “purposefully and intentionally and not accidentally.” It summarized:
“An employee who misrepresents the condition of his health to his employer solely by reason of accident or mistake without any awareness that he has done so cannot be said to have knowingly made the misrepresentation contemplated by K.S.A. 1980 Supp. 44-567(h).” Syl. ¶ 5.
The court there upheld a finding that the claimant’s misrepresentation was not “knowingly” made even though, with a long history of treatment for back pain due to arthritis and degenerative changes, he had given negative answers to questions specifically asking for arthritis or back injuries. Reliance was placed on claimant’s limited education (eighth grade), the lack of severity of his condition, his lack of symptoms when filling out the application, and his testimony that he was trying to complete the forms honestly. The key to the finding by both the trial court and this court on appeal was the mental state of claimant when he answered the employer’s questions.
Here, Cherry Manor’s employment application form contained just three questions relating to an applicant’s physical condition. One was the date of the applicant’s last physical examination, another the name of the family physician. The only relevant question simply provided a space for “Physical Disabilities” or “Chronic Illnesses.” Claimant on her first application wrote “none”; when rehired a year later she left the space blank.
The Examiner, faced only with the present controversy between the Fund and the employer, found:
“Although claimant had been told previously in 1976 that she had had a herniated disc, she believed that this healed itself. There is no evidence to suggest that claimant knew that once having had a herniated disc there was a proclivity for further recurrences of the same problem, if indeed such was the case.
"The evidence fails to justify a finding that claimant was, in fact, a handicapped person, as defined by K.S.A. 44-566(6) or that if she was she possessed knowledge of that fact, which would make withholding of such information actionable under K.S.A. 44-567(6).”
Accordingly the award was assessed in full against the employer.
After the award was entered and before review by the Director the present parties filed a stipulation that claimant was in fact a “handicapped” person. The Director found this did not affect the ultimate result, agreeing with the Examiner that any misrepresentation by claimant was not “knowingly” made. The Director observed “that claimant had somewhat of an imperfect picture as to what a handicapped individual was.”
Both the Examiner and Director thus based their findings on a consideration of the subjective “knowledge” of the claimant. Finding her statement that she had no “physical disabilities” to have been made in good faith and presumably within her reasonable understanding of the question asked, they both concluded that she had not “knowingly” misrepresented her condition.
In the district court, on the other hand, the focus was shifted from claimant’s subjective knowledge to a more objective evaluation of her representations. The trial court’s memorandum decision recites:
“The Director looked into the mind of the claimant: Was she knowledgeable? Did she really feel she had any physical disabilities? Had she really had leg pains for several years? That is not the focus of the Act. Employees come in assorted varieties of mental ability. Compound that with the fact that in this case the doctors had much trouble with subjective evaluations of malingering or psychogenic overlay, vis-a-vis actual pain and injury, and the difficulty of following that path becomes readily apparent. It is more productive to look to: (1) the facts that existed, (2) the information actually conveyed, and (3) the result upon the mind of the employer. This is where I believe the focus of the Act lies.
“On July 5, 1977, when claimant answered “NONE” to the first application on file she did not accurately characterize the facts as shown in Dr. Wertzberger’s deposition. She did not have to understand the medical terminology. A single statement of back trouble would have sufficed. On August 30,1978, when she left the box blank on the second application she did not fairly apprise the employer of her medical history. Failing to state that which she knew previously existed amounts to misrepresentation. Leaving the box blank was tantamount to saying “none” or “n/a.” Some people might just draw a line.
“If there is an actual misrepresentation of existing, known medical facts that results in the hiring of a handicapped employee, the employer should get the benefit of his act and be relieved of his liability under the Workmen’s Compen sation Act as if he had actual knowledge of the pre-existing impairment. Here Dr. Wertzberger told claimant what her problem was in 1976. For whatever reason, she failed to convey that to her employer — not once, but twice. To find that the employee knew what she should have known from such clear medical facts is far better than to try to guage her mens rea, as it were, and I find there was a knowing misrepresentation of her stipulated handicap.”
Under this view, whether the question sufficiently called for revelation of the past problem, claimant’s capacity to understand the question asked of her, her actual understanding, and her bona fides in answering, are all irrelevant. As the trial court saw it, claimant knew she had had a ruptured disc and did not reveal it; that was enough to make her answer a “knowing misrepresentation.”
We believe this is the wrong analysis under Krauzer. Under that case “knowing” refers to the state of mind of the claimant. That state of mind may, of course, be proved by circumstantial evidence. All the factors listed above are relevant to the question, and there are doubtless others, each of which must be weighed. For example, there is no doubt claimant knew she had once had a diagnosis of a ruptured disc. However, the question asked, unlike that in Krauzer, did not call for a past history of back trouble. Instead it called for any present condition coming under the category of “physical disabilities.” It seems to us even a highly educated person with claimant’s medical history might not have thought of herself as being physically disabled. While there was some evidence of recurring pain, she had engaged in strenuous activities as a housewife and had also done the work in question for Cherry Manor for some six months with no apparent difficulty.
We are not, however, required to resolve the factual questions surrounding claimant’s state of mind; our jurisdiction is limited to questions of law. K.S.A. 44-556(c). It is enough for us to find that in resolving the critical question of fact in this case the trial court employed an erroneous legal standard. It is entitled to redetermine that fact in the light of Krauzer and what is said in this opinion.
The judgment is vacated and the case is remanded for new findings and conclusions in harmony with this opinion. | [
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|
Spencer, J.:
Plaintiffs have appealed from judgment which denied their challenge to the validity of a conditional use permit issued by the Board of County Commissioners of Jefferson County to N.R. Hamm Quarry, Inc. (Hamm), for the operation of a sanitary landfill in that county. Plaintiffs are the owners of real property adjacent to or in the near vicinity of the proposed landfill.
On July 24, 1975, the Jefferson County regional planning commission denied Hamm’s application for a conditional use permit to operate the landfill. On September 5, 1975, the Board unanimously reversed the decision of the planning commission and issued the permit sought by Hamm. Plaintiffs chose not to appeal the decision of the Board, but instead, on September 4, 1980, commenced this action claiming the conditional use permit issued to Hamm was “ultra vires and without force or effect in law . . . The basis for this averment is the contention that the Board had delegated final authority for the issuance of conditional use permits to the planning commission. On the other hand, defendants assert the Board holds ultimate authority on all zoning matters, and on cross-appeal argue that plaintiffs’ action is barred and should have been dismissed by reason of their failure to appeal within the thirty days prescribed by both K.S.A. 19-223 and 19-2926. We believe this issue to be dispositive of this appeal.
In the pretrial order, plaintiffs admit they were aware of the action of the Board in issuing the conditional use permit to Hamm on September 5, 1975, in contravention of the decision of the planning commission, and that no appeal had been taken from that order.
We are satisfied that the issuance of a conditional use permit, within the guidelines of the zoning regulations adopted by Jefferson County, is an administrative as distinguished from legislative act which may be delegated by the governing body to an administrative body, in this instance the planning commission. 82 Am. Jur. 2d, Zoning and Planning §§ 62, 64.
As was held in Houston v. Board of City Commissioners, 218 Kan. 323, 543 P.2d 1010 (1975), the function of a planning commission is advisory only. The final authority in zoning matters rests with the governing body possessing legislative power. See also City of DeSoto v. Centurion Homes, Inc., 1 Kan. App. 2d 634, 573 P.2d 1081, rev. denied 225 Kan. 843 (1977). However, it is also to be noted that as a general rule an administrative agency may not violate or ignore its own regulations and where it fails to follow the rules which it has promulgated, its orders are unlawful. Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398, 511 P.2d 253, cert. denied 414 U.S. 1066 (1973). A governing body is estopped to deny the validity of its own zoning ordinances. Benson v. City of DeSoto, 212 Kan. 415, 510 P.2d 1281 (1973).
In reviewing the zoning regulations of Jefferson County, and specifically that section pertaining to the issuance of conditional use permits as found in Article 80, we note that 80.4 provides in pertinent part:
“H. Land Rehabilitation
“3. All sanitary landfill sites and method of filling shall be subject to approval by the County Health Department, the Planning Commission and the Governing Body.”
We conclude that it was within the lawful authority of the Board to issue a conditional use permit for the operation of a sanitary landfill, but only if it did so in conformity with its own regulations. Those regulations clearly required the approval of the planning commission, which the Board did not have at the time it issued the permit. It therefore might well be that the act of the Board in issuing the permit to Hamm was an act which, upon timely and proper judicial review, would have been found unlawful. However, it does not necessarily follow that the issuance of the permit was without force and effect in law when the only move against it was a collateral attack made almost five years after the issuance.
The contention before us is that plaintiffs’ action is barred by their failure to take an appeal under K.S.A. 19-223 or 19-2926. We must agree.
In Bolser v. Zoning Board for Aubry Township, 228 Kan. 6, 612 P.2d 563 (1980), the Supreme Court, in reviewing a decision of this court pertaining to jurisdiction under K.S.A. 19-2913, also relating to zoning regulations, held the time limitation for seeking judicial review pursuant to that statute is the 30-day limitation fixed by 19-223. In so doing, the court stated:
“K.S.A. 19-2913 speaks of ‘acts and regulations’; whereas, K.S.A. 19-223 speaks of ‘decision.’ The two statutes must be considered in pari materia. We conclude that the purpose of K.S.A. 19-2913 (and comparable provisions of other previously referred-to zoning acts) was to assure the availability of judicial review for reasonableness of all zoning actions taken by a board of county commissioners, whether decisions, acts, or regulations. The inclusion of such provisions was intended to assuage citizen concerns by the assurance that unreasonable zoning could be judicially reviewed and corrected. K.S.A. 19-2913 is a reaffirmation of the pre-existing right to judicial review by appeal, contained in K.S.A. 19-223 and expanded to include all zoning acts and regulations, with reasonableness being specifically set forth as the test to be applied. K.S.A. 19-2913, accordingly, does not create an independent cause of action. The time limitation for seeking judicial review pursuant to K.S.A. 19-2913 is the 30-day limitation fixed by K.S.A. 19-223. Such result is consistent with the procedures generally afforded in Kansas for judicial review of administrative decisions.
“This result is further buttressed by recognition of the practical need for a short period of time in which to seek judicial review from adverse zoning decisions and acts. If challenges to zoning could be made anytime within a five-year period, the development and sale of property would be stymied. Frequently, contracts for sale of real estate are conditioned on the present owner obtaining a zoning change. If such zoning changes were secured, but subject to challenge for five years, chaos would result. Construction of apartments, shopping centers, warehouses, etc., could not be expected to await the running of the five-year period. A lengthy statute of limitations is particularly a problem in zoning matters where one’s ‘adversary’ could be any one of several landowners whose opposition may or may not have surfaced prior to the commencement of the action.
“Further, a judicial determination as to the reasonableness of the act or decision of a governing body or administrative agency presupposes that such determination will be reasonably contemporaneous with the complained-of act or decision. This is particularly true of zoning matters where the facts to be considered are not fixed in time, but involve ever-changing factors such as surrounding land usage, community resources, streets, traffic patterns, sewers, police and fire protection, schools, population, etc.” 228 Kan. at 14-15; emphasis added.
K.S.A. 19-2926 also speaks of “acts and regulations” and limits the time in which to bring an action against the county commissioners to test the reasonableness of any such act or regulation to a period of thirty days after the decision has been made. Plaintiffs having failed to commence their action within that period of time are barred from doing so. The trial judge, in a well-reasoned opinion, entered judgment on the merits in favor of defendants. Inasmuch as we do not now consider this cause on the merits, we cannot affirm that decision, but must direct that the judgment of the district court be vacated and this cause remanded with directions to dismiss plaintiffs’ action with costs taxed to the plaintiffs.
Vacated and remanded with directions. | [
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|
Spencer, J.:
This appeal is from a declaratory judgment that the fire inspection records of the City of Topeka, together with other memoranda contained within the City’s fire inspection files, all relating to premises which are open to the public, are “official public records” subject to public inspection under the provisions of K.S.A. 45-201 et seq. (Ensley).
In the course of preparing a news story concerning fire safety, fire records and other matters relative to the high-rise motels in downtown Topeka, reporters for defendant Stauffer Communications, Inc., requested of the assistant fire chief for the City of Topeka access to fire inspection records relating to those buildings. This request was refused. Thereafter, defendant through its legal counsel made a written request of the City that defendant be granted immediate access to the records, specifically those of October, 1977, and all of 1980 pertaining to the downtown Ramada Inn. This request was also refused by the City, which then commenced this action for a declaratory judgment.
At the outset, we are confronted with defendant’s assertion of plaintiff’s acquiescence in the judgment of the trial court, and that therefore this appeal should be dismissed.
The court’s memorandum opinion was entered under date of January 6, 1981. The following day plaintiff filed a motion requesting clarification as to whether the judgment was intended to include certain interdepartmental memoranda and correspondence contained within the fire inspection files.
On January 9,1981, the court considered that motion and ruled that “[a]ll other records contained within these files, including correspondence, reports, memoranda and the like . . . ,” are public records under the law and therefore accessible to public inspection. In doing so, however, the court noted that where appropriate, plaintiff might assert its privilege of lawyer-client relationship for those communications between the office of city attorney and the fire department which might appear in the file, but noted also that the propriety of any such privilege would be the subject of other proceedings at another time. Immediately following the hearing of January 9th, plaintiff delivered to defendant the entire file which had previously been requested. Plaintiff openly admits having done so, and it is on the basis of these facts that defendant urges dismissal on grounds of acquiescence.
As a general rule, anything which savors of acquiescence in a judgment cuts off the right of appellate review. Reeves v. Board of Johnson County Comm’rs, 226 Kan. 397, 405, 602 P.2d 93 (1979); Brown v. Combined Ins. Co. of America, 226 Kan. 223, 230, 597 P.2d 1080 (1979); Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 652, 567 P.2d 856 (1977). As expressed in Brown, the basis for this rule is that one who has acquiesced in the judgment cannot thereafter assume an inconsistent position by being heard to complain on appeal that the judgment is erroneous. However, it was there also held:
“Where a judgment or decree involves distinct and severable matters, demands or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands or issues.” 226 Kan. 223, Syl. ¶ 7.
It is to be noted that the gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment. Haberer v. Newman, 219 Kan. 562, 566, 549 P.2d 975 (1976).
Defendant argues that if plaintiff questioned the propriety of the judgment, it should have employed proper legal procedures to stay its effectiveness, and although there were well-known legal remedies available, plaintiff failed to employ any of them. Plaintiff contends that since new documents are commingled each day with the inspection reports, the judgment continues to adversely affect the City and the delivery of any one file should not be considered acquiescence in the real issues involved.
Although the opinion of the trial court does refer to “the records in question” and “the fire inspection reports which are the subject of controversy in this action . . . ,” there can be little doubt that such references were to the fire inspection records of the City of Topeka in general and not to any specific file within that category. The judgment declares the fire inspection records of the City relating to places open to the public are “public records” which by law are required to be kept and maintained pursuant to K.S.A. 45-201. No other specific relief was requested or granted by the judgment as it was entered. We hold the mere delivery of one particular fire inspection file which had previously been requested by defendant was not acquiescence in the judgment so as to deny plaintiff the right to appeal.
K.S.A. 45-201(a) provides:
“All official public records of the state, counties, municipalities, townships, school districts, commissions, agencies and legislative bodies, which records by law are required to be kept and maintained, except those of the district court concerning proceedings pursuant to the juvenile code which shall be open unless specifically closed by the judge or by law, adoption records, records of the birth of illegitimate children, and records specifically closed by law or by directive authorized by law, shall at all times be open for a personal inspection by any citizen, and those in charge of such records shall not refuse this privilege to any citizen.” Emphasis added.
Relevant portions of the Uniform Fire Code (1979 ed.), as adopted by the City of Topeka, are:
“Inspections and Unsafe Buildings
“Sec. 2.201. (a) The fire prevention bureau shall inspect, as often as may be necessary, all buildings and premises, including such other hazards or appliances as the chief may designate for the purpose of ascertaining and causing to be corrected any conditions which would reasonably tend to cause fire or contribute to its spread, or any violation of the purpose or provisions of this code and of any other law or standard affecting firesafety.”
“Investigations
“Sec. 2.202. (a) The fire department shall investigate promptly the cause, origin and circumstances of each and every fire occurring in the jurisdiction involving loss of life or injury to person or destruction or damage to property and, if it appears to the bureau of investigation that such fire is of suspicious origin, they shall then take immediate charge of all physical evidence relating to the cause of the fire and shall pursue the investigation to its conclusion. The fire prevention engineer shall make a report in writing to the chief of all facts and findings relative to each investigation and, should it appear during any investigation that a fire is of suspicious origin, he shall notify the chief forthwith.”
“Records and Reports
“Sec. 2.203. (a) The fire department shall keep a record of all fires occurring within its jurisdiction and of all facts concerning the same, including statistics as to the extent of such fires and the damage caused thereby, together with such other information as may be required by the chief.
“(b) The fire prevention bureau shall retain for not less than three years a record of each inspection and investigation made showing the cause, the findings and disposition of each such inspection or investigation.” Emphasis added.
Plaintiff contends these provisions require only that records be maintained regarding actual fires. We find this contention to be without merit for, clearly, the fire prevention bureau is required to retain for not less than three years a record of each inspection conducted pursuant to 2.201 (a) and of each investigation of fire pursuant to 2.202 (a). Accordingly, the fire inspection reports are official public records open to public inspection.
We are next urged to find error in the trial court’s clarification of its judgment to include “all other records” which are contained within the files of routine inspection reports.
The precise nature of the other records is not clearly defined and none of them have been made a part of the record on appeal. It may be assumed, however, that such would include interdepartmental memoranda and reports, correspondence with building owners, and communications with citizens who, as plaintiff suggests, may have been promised anonymity.
Plaintiff argues, and perhaps correctly so, that the fire code adopted by the City does not specifically mandate such records be kept and maintained. However, as hereinbefore noted, section 2.203 (b) requires retention for not less than three years of a record of each inspection and investigation made, showing the cause, the findings and disposition of each such inspection or investigation.
“[PJublic records include not only papers specifically required to be kept by a public officer but all written memorials made by a public officer within his authority where such writings constitute a convenient, appropriate, or customary method of discharging the duties of the office.” International Union v. Gooding, 251 Wis. 362, 371, 29 N.W.2d 730 (1947).
In MacEwan v. Holm et al, 226 Or. 27, 41, 359 P.2d 413 (1961), we find:
“According to the better view, where the issue is the availability of a writing for inspection, the writing need only constitute a ‘convenient, appropriate, or customary method of discharging the duties of the office’ by the public officials. A writing need not be a document that is required by law to be kept as a memorial of official action in order to come within the definition of a ‘public record.’ ”
See also 76 C.J.S., Records § 1.
It is difficult to imagine records properly contained within the files of routine fire inspection or investigation reports which would not relate in some manner to the discharge of the duties of the fire prevention bureau, or which would not be relevant to the showing of cause, the findings, and disposition of inspections or investigations made pursuant to the fire code. Again we note the “other records” here in contention are not before us. However, assuming they are relevant to the cause, the findings, or the disposition of routine inspections or fire investigations conducted by the public authorities, we believe they are official public records properly to be kept and maintained for at least the period required by section 2.203 (b), and we so hold.
Plaintiff speaks of communications with citizens who may have been promised anonymity, the “chilling effect” the judgment of the trial court might have on the free interchange of thoughts within government, and suggests some documents might be in the nature of investigatory records to which K.S.A. 45-201 is not applicable under the authority of Atchison, T. & S.F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 529 P.2d 666 (1974).
Our Supreme Court recently addressed similar issues in the case of State ex rel. Stephan v. Harder, 230 Kan. 573, 641 P.2d 366 (1982):
“The Kansas public records inspection act, K.S.A. 45-201 et seq., provides that all official public records which by law are required to be kept and maintained shall be open for public inspection.” Syl. ¶ 1.
“The Kansas public records inspection act, K.S.A. 45-201 et seq., impliedly imposes a duty upon public agencies to delete confidential information from an otherwise disclosable public record in response to a request for disclosure of nonconfidential information contained in that public record.” Syl. ¶ 3.
“The custodian of nonconfidential official public records has no discretion under K.S.A. 45-201 et seq. to withhold those records from public inspection.” Syl. ¶ 5.
In light of what has been said, the burden of preventing disclosure of public records clearly rests with the party attempting to prevent disclosure. There is nothing in the record now before us persuasive of the fact that the records found by the trial court to be public records under law are not official public records which by law are required to be kept and maintained, and open for public inspection pursuant to K.S.A. 45-201 et seq.
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Foth, C.J.:
Defendants appeal from the trial court’s refusal to set aside a default judgment foreclosing two mortgages on several lots owned by them in the city of Concordia.
The chronology is as follows:
January 9, 1981, petition filed together with affidavit for service by publication.
February 2,1981, service complete, answer date fixed as February 26, 1981.
February 26, 1981, motion for default judgment.
May 3 or 4, 1981, defendants have actual notice of the suit, although never served personally or by mail. Defendant Gene Haynes visits Concordia, examines the property and the court file.
June 2, 1981, present plaintiff, having bought the two mortgages, is substituted as a party.
June 5, 1981, defendant Gene Haynes writes a letter, described below, to the trial judge.
June 22, 1981, letter from Haynes, together with the judge’s response, filed with clerk of the district court.
July 8,1981, motion for default judgment, sustained the same day by journal entry of foreclosure reciting that defendants “are and remain wholly in default.”
July 17, 1981, defendants’ application to open default judgment, motion for leave to file answer and counterclaim.
August 12, 1981, order filed denying defendants all relief.
It is from this final order that defendants appeal. They urged three grounds below and reassert them here.
Two may be disposed of together. Under K.S.A. 60-260(¿)(l) and (6) defendants claimed “excusable neglect” and “any other” grounds for relief; under 60-309(a) they claimed a right to reopen because service was by publication and they had no actual notice “in time to appear in court and make a defense.” The trial court, we were told at argument, made oral findings on these issues but those findings were either not transcribed or, if they were, were not included in the record. We therefore must assume the findings were adequate to support the judgment. Cf. Burch v. Dodge, 4 Kan. App. 2d 503, Syl. ¶ 2, 608 P.2d 1032 (1980). Defendants in any event concede actual knowledge of the suit for more than two months before the default judgment was entered, yet did not seek to file any pleading. That fact alone could justify rejection of both these claims. Two months could be regarded as time to appear and defend under 60-309(a). Cadwallader v. Lehman, 202 Kan. 738, 451 P.2d 163 (1969). It could also, in the discretion of the trial court, be deemed to represent inexcusable neglect under 60-260(b). See Jenkins v. Arnold, 223 Kan. 298, 573 P.2d 1013 (1978); Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P.2d 351 (1974).
The more serious question arises because no notice of the default judgment was given, as is required by K.S.A. 60-255(a) if the defaulting party has “appeared” in the action. The question is whether defendant’s letter of June 5, 1981, officially filed more than two weeks before the default judgment, constitutes an “appearance.”
The letter began:
“May I beg on the mercy of the court an audiance [sic] in the above matter; that I would like to be notified of any more activity on this case at the above address, in suficiant [sic] time to be present, if so deemed beneficial. Also that you would consider the setting aside of these mortgages at the hearing. These requests are made for the following reasons . . . .”
The letter goes on to recite an agreement to cancel one of the mortgages on a condition which defendant says he met, and an agreement that the other mortgagee would forbear — both matters which might be construed as defenses. It also sets up several complaints best categorized as counterclaims for conversion, fraud, and trespass. No copy was sent to plaintiff’s counsel.
The trial court replied to Mr. Haynes in a short letter dated June 22,1981, declining to give legal advice and urging Mr. Haynes to procure an attorney. Again, no copy was sent to plaintiff’s counsel. (We were advised at oral argument that the original district court file was checked out to plaintiff’s counsel at the time, so the physical filing was in a temporary file; plaintiff’s counsel did not become aware of the correspondence until after judgment.)
Numerous cases discuss what constitutes an appearance, and two annotations deal with the subject: Annot., Appearance - Notice of Default Judgment, 73 A.L.R.3d 1250; Annot., Default Judgment - Appearance, 27 A.L.R. Fed. 620. The acts claimed to be appearances fall into several different categories:
1. The filing of some pleading or motion with the court in response to plaintiff’s suit.
2. The defendant’s physical presence in the court.
3. Informal communications between the parties or between the defendant and the court.
4. Negotiations for settlement between the parties.
In their analysis under any of these situations, but particularly when considering informal communications such as we have here, courts have given heavy weight to whether the party has indicated an “intent to defend.” 6 Moores’ Federal Practice and Procedure ¶ 55.05(3), p. 55-55, points out “a party may be deemed to have filed an appearance when there have been contacts between the plaintiff and the defaulting party that indicate the defaulting party intends to defend the suit.” Moore cites the landmark case, H. F. Livermore Corp. v. Atkiengesellschaft, Gebruder L., 432 F.2d 689 (D.C. Cir. 1970), for the proposition that an intention to defend the suit controls the decision. (There the parties entered into settlement negotiations in hopes of avoiding a contested suit.)
The two major cases in Kansas construing the word “appearance” employ a similar analysis. In Sharp v. Sharp, 196 Kan. 38, 40, 409 P.2d 1019 (1966), the court held a written request for a bill of particulars in an action for separate maintenance constituted an appearance, using these considerations:
“Broadly speaking, an appearance may be defined as an overt act by which a party comes into court and submits himself to its jurisdiction and is his first act therein (6 C.J.S., Appearances, § 1; 5 Am. Jur. 2d, Appearance, § 1). Although the traditional distinctions between a general and a special appearance have now largely lost their significance under our present code (see Small v. Small, 195 Kan. 531, 407 P.2d 491), most of our cases on the subject have dealt primarily with the problem of determining which kind of appearance resulted from a given action. Illustrative is Meyer v. Schmidt, 184 Kan. 21, 334 P.2d 345, in which no service was obtained on a named nonresident defendant. Later an attorney filed a motion for additional time to plead on behalf of this defendant. More than two years thereafter, the attorney having previously withdrawn for want of a fee, judgment was rendered against the defendant. This court held that the filing of the motion for additional time to plead constituted an appearance in the case for the purpose of conferring upon the court personal jurisdiction over such defendant.”
The court thus refused to confine the definition of “appeared in the action” to the filing of a responsive pleading on the merits and went on to hold that the failure to give notice required reversal. 196 Kan. at 41-2.
Closer to our case, Jones v. Main, 196 Kan. 91, 410 P.2d 303 (1966), found an “appearance” when a garnishee simply filed with the court his copy of a garnishment summons and noted upon it he did not owe the original defendant any money. The court once again pointed to the difference between an “answer” and an “appearance” and cited with approval Gard’s statement that a party obtains the right to three days’ notice by appearing “in any fashion.” See Gard’s Kansas C. of Civ. Proc. 2d Annot. § 60-255, p. 316. The court also recognized that it should look at the substance of defendant’s acts and conduct, and not just the form of the action taken, in determining whether the defendant intended to defend:
“[W]e think it cannot be gainsaid that the underlying purpose of our statute, as is true of notice statutes generally, is to afford every litigant the opportunity to be heard in opposition to a claim made against him once he has apprised his opponent, through court, of his denial of or resistance to the latter’s claim. In our opinion, Perfecto Torrez had given notice of his opposition to the plaintiffs’ contention prior to the time judgment was entered against him. The written instrument which Perfecto filed with the clerk of the court, and which the clerk recorded in the case, was effectively designed to impart to the plaintiffs his claim that he was not indebted to the judgment debtor. Not only is it clear that the instrument was intended by Perfecto to communicate such information, but plaintiffs’ own counsel concedes that he had actual knowledge of the document and its contents at the very time he orally moved for judgment.
“Clearly, this garnishee defendant never intended for one moment to permit the inference that he owed Main so much as a farthing. That he may have been so unversed in the intricacies of the law as to omit from his answer certain formalities required by statute detracts not one whit from the authenticity of his intentions nor, for that matter, from the clear import of the language he actually employed. We believe the inference may safely be drawn that Perfecto, in his untutored way, did what he believed was necessary to make plain to the plaintiffs, through the processes of court, that he owed Main nothing. We believe further that what Perfecto did to convey that intelligence to the Joneses fairly constituted an appearance within the contemplation of the statute.” 196 Kan. at 94. Emphasis added.
The appellee attempts to distinguish these cases by arguing that in each the defendant did some act contemplated by the statutes, as opposed to Mr. Haynes who manifested his opposition to the plaintiff’s suit only through a letter to the judge. Many cases from other jurisdictions, however, find an “appearance” on the basis of far less indication of an intention to defend than that found in Haynes’ letter to the trial judge.
Federal authorities generally use the “intention to defend” test in examining informal communications between the parties. E.g., Charlton L. Davis & Co. P. C. v. Fedder Data Center, 556 F.2d 308 (5th Cir. 1977) (defendant’s attorney called and wrote plaintiff’s attorney out of time, indicating his intent to defend and asking for extension of time; the letter and phone call constituted an appearance); United States v. One 1966 Chevrolet Pickup Truck, 56 F.R.D. 459 (E.D. Tex. 1972) (filing of claim and cost bond by attorney for owner in an IRS forfeiture proceeding, along with telephone calls, constituted an appearance and indicated a clear purpose to defend the suit). Compare with Wilson v. Moore & Associates, Inc., 564 F.2d 366 (9th Cir. 1977) (informal communications can be sufficient but not when defendant had actual notice a delay would result in a default).
State decisions also recognize informal communications as an appearance. In McClintock v. Serv-Us Bakers, 103 Ariz. 72, 436 P.2d 891 (1968), the plaintiff issued writs of garnishment against the employer of the defendant. Within the answer period, the employer’s sales manager filed letters with the justice of the peace denying any indebtedness to the employee (original defendant). The plaintiff took default judgment but on appeal the Supreme Court of Arizona, looking to substance and not form, held the letters constituted a sufficient appearance under Rule 55. Compare Austin v. State, 10 Ariz. App. 474, 459 P.2d 753 (1969), where the nonresident defendant in a condemnation case, by letter to the presiding judge stated she would not be able to attend the hearing and in another stated she would have no objection to the state taking immediate possession of the property. Under those circumstances the court found no intent to make an “appearance.”
In Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (Ala. 1977), the defendant sent a document to the court saying defendant’s attorney would take action soon. This was held to be an “appearance” entitling defendant to notice under a similar rule even though defendant’s attorney did nothing until judgment was taken six weeks later. The same reasoning was applied in Carl’s Constr. Inc. v. Gigliotti, 40 Colo. App. 535, 577 P.2d 1107 (1978):
“Defendant, Joe Gigliotti, appeals the trial court’s denial of his motion to set aside a default judgment. We reverse.
“On November 8, 1976, defendant was served with summons and complaint in Webb County, Texas. His answer was therefore due on December 8, 1976. C.R.C.P. 12(a). Sometime in mid-December, defendant, acting without counsel, mailed, to the court a letter which purported to be an answer and which set out a number of meritorious defenses. Though the trial court received the letter on December 28, 1976, it was never filed since defendant did not tender a docket fee. Without further notice to defendant, the court granted plaintiff’s motion for a default judgment on January 11, 1977.
“The first question we address is whether the letter is a sufficient ‘appearance’ under C.R.C.P. 55(b)(2) to entitle defendant to three days notice and a hearing. We hold that it is. As the Supreme Court said in R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977):
“ ‘We note that we are not dealing with technical concepts of appearance as the word is used in analysis of jurisdiction over the person. . . . Rather, we are concerned with a provision of the Rules of Civil Procedure which seeks to insure fairness by providing notice to a party who has expressed interest in defending a lawsuit brought against him.’
“Here, the letter clearly indicated an intention on Gigliotti’s part to defend, and the three-day notice requirement of C.R.C.P. 55(b)(2) was therefore triggered. See Bankers Union Life Insurance Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975).” 40 Colo. App. at 536. Emphasis added.
Franklin v. Bartas Realty, Inc., 95 Nev. 559, 598 P.2d 1147 (1979) reached a similar result in a real estate broker’s suit for his commission. When the defendants, husband and wife, received the summons, the husband wrote the following letter to the plaintiff’s attorney:
“Dear Sir:
I fail to recognize any obligation to you or your client, because I had no contractual relationship with your client.
Yours Trully [sic],
J. T. Franklin”
The court was never informed of this letter and default judgment was later taken. On appeal from the denial of a preliminary injunction to prevent execution on the judgment, the Nevada court reversed because defendants lacked knowledge of an impending default judgment, considered themselves “actively participating” in the case, and did not realize the legal insufficiency of their response.
See also Hankins v. Cooper, 551 S.W.2d 584, (Ky. App. 1977) (an unsigned document filed with the clerk denying the complaint and setting forth a type of counterclaim constituted an appearance “since it indicates the general intention of the Appellant to dispute the complaint”); Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806 (1975) (a letter from the defendant’s registered service agent to the clerk of the court denying he still was the defendant’s registered service agent constituted an appearance); Petty v. Weyerhauser Co., 272 S.C. 282, 251 S.E.2d 735 (1979) (defendant’s attorney called and acknowledged receipt of summons and complaint and by letter asked to consider the letter an informal notice of appearance— held a sufficient appearance). Compare with Hansher v. Kaishian, 79 Wis.2d 374, 255 N.W.2d 564 (1977) (letter not an appearance where it requested no action on part of the plaintiff or the court, did not reflect that the defendant considered himself a participant in the case; and did not acknowledge the lawsuit’s existence). Even a telephone conversation has been held to be an appearance. Compare Perdue v. Sherman, 246 N.W.2d 491 (N.D. 1976), with Booth v. Magee Carpet Co., 548 P.2d 1252 (Wyo. 1976).
Under these authorities we can only conclude that Haynes’ letter of June 5, 1981, constituted an “appearance.” In it he clearly recognized that he was “in court” and subject to the court’s jurisdiction, and just as clearly indicated his defenses to the plaintiff’s claims. Further, he specifically requested notice of further proceedings. We believe he was entitled to such notice under the mandate of K.S.A. 60-255.
The result is the judgment must be reversed and the case remanded with directions to rehear the motion for default judgment after statutory notice to defendants. Assuming the trial court adheres to its previous ruling prohibiting defendants from filing a responsive pleading out of time, defendants’ role in such a hearing will be severly limited. See 10 Wright and Miller, Federal Practice and Procedure: Civil § 2688 (1973); Annot., 15 A.L.R.3d 586, § 5. They are nevertheless entitled to their day in court.
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Meyer, J.:
This is a declaratory judgment action brought to determine certain procedural rules applicable to hearings before a sheriff’s civil service board, pursuant to the provisions of K.S.A. 19-4327.
On September 9, 1980, the sheriff of Sedgwick County, Kansas, dismissed Robert J. Ratley (appellee) from employment with said sheriff’s office. Appellee timely filed a request pursuant to K.S.A. 19-4327 for a hearing before the Sheriff’s Civil Service Board of Sedgwick County, Kansas (appellant or Board). Appellee waived, in writing, his right to a hearing within fifteen days and agreed to a hearing date of November 25, 1980. On that date, the hearing began with substantial preliminary discussion as to whether the sheriff or the employee would bear the burden of proof, and whether the hearing should be open or closed to the public.
After considering the arguments of counsel, the Board determined that the employee had the initial burden to prove that the act of termination from employment was unreasonable, and that the proceedings should be held in closed session. Following said ruling, appellee’s counsel requested that the meeting be adjourned so that appellee could prosecute an appeal to the district court for declaratory judgment.
On February 6, 1981, appellee filed the present action in the district court for the Eighteenth Judicial District of the State of Kansas. The purpose of the action was a determination of the proper burden of proof to be applied by the Board in a hearing held pursuant to K.S.A. 19-4327. The district court conducted a hearing, and subsequently, on April 6, 1981, entered its journal entry of judgment, granting to appellee the relief prayed for. The effect of this judgment was to reverse the earlier decision by the Board, and to cast upon the sheriff the initial burden of presenting evidence to establish a prima facie case that the termination was reasonable. The judgment also declared that the proceedings should be open to the public. Appellant has appealed only that portion of the judgment relating to burden of proof.
The first issue presented for our determination is whether declaratory judgment relief was proper under the circumstances of this case.
The rules pertinent to declaratory judgment are set out at K.S.A. 60-1701 et seq. Summarized, they include the following: (a) the case must involve an actual controversy; (b) the court has the power to make a binding adjudication of rights; and (c) declaratory relief may be granted even though no consequential relief is, or at that time could be, prayed for.
K.S.A. 60-257 also pertains to declaratory judgments. That statute provides:
“The procedure for obtaining a declaratory judgment pursuant to article 17 of this chapter, shall be in accordance with this article, and the right to trial by jury may be demanded under the circumstances and in the manner provided in K.S.A. 60-238 and 60-239. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.”
The issue then is whether, in the words of the statute, declaratory relief was “appropriate” under the facts of the instant case.
Declaratory judgment has, historically, not been deemed an appropriate avenue for relitigation of a legal issue already decided by a tribunal in which an actual controversy is still pending and from which an orderly appeal process may be pursued. See 26 C.J.S., Declaratory Judgments § 40, pp. 122 et seq., for an excellent discussion of this rule. See also Macht v. Hecht Co., 191 Md. 98, 59 A.2d 754 (1948); and Whitelaw v. Burke, Tax Com’r, 290 Ky. 372, 161 S.W.2d 595 (1942).
A leading Kansas case on this subject has held in conformity with the general rule. In Pugh v. City of Topeka, 151 Kan. 327, 99 P.2d 862 (1940), the court said:
“The relief contemplated by the declaratory judgment act (G.S. 1935,60-3127 to 60-3132) does not, in the absence of unusual circumstances or emergency features, include its use in pending actions to secure declarations on questions of law involved and in process of determination therein, nor as a substitute for ordinary actions which afford reasonably adequate remedies.” Syl. ¶ 3.
“An examination of many cases in other jurisdictions, under similar statutes, shows an overwhelming weight of authority in support of the proposition that declaratory relief is conditioned upon the absence of any other adequate or practicable remedy and that it is not to be used merely as a substitute for ordinary actions, either at law or in equity. Particularly is its use not sanctioned in another action where the same issues are actually being determined. The rule is thus stated in 16 Am. Jur. 295:
“ ‘The courts will ordinarily refuse to entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties. A declaratory judgment is not a proper mode of determining the sufficiency of legal defenses to a pending action. A disputed question of law or procedure raised in a pending suit is not such an actual controversy as comes within the letter, reason, or spirit of the declaratory judgments act.’ ” 151 Kan. at 331.
Appellee points out that K.S.A. 60-257 has been enacted in the interim since Pugh was decided. He argues that this statute liberalized the restrictions on and requirements for declaratory relief, and that the rule of law stated in Pugh should no longer control. We are cognizant of the chronology here involved and we acknowledge appellee’s general statements of policy. Nevertheless, we conclude that, whatever other effects its enactment might have had, K.S.A. 60-257 was not intended to alter the long-standing rule of law exemplified by Pugh.
In Kansas, appeals from certain administrative tribunals are governed by K.S.A. 1981 Supp. 60-2101. That statute, at subsection (d), provides:
“A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal.” (Emphasis added.)
In Thompson v. Amis, 208 Kan. 658, Syl. ¶¶ 5, 6, 7, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972), the court, in considering K.S.A. 60-2101, said:
“Where a district court has appellate jurisdiction to review the decisions of a quasi-judicial body, it has no jurisdiction in an independent equitable action to review alleged errors.”
“The term ‘quasi-judicial’ is applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a judicial nature.”
“The Civil Service Board of Kansas exercises quasi-judicial functions and if a party is aggrieved by its order, the remedy is by appeal pursuant to K.S.A. 60-2101(a), which remedy is exclusive.”
When conducting a hearing pursuant to K.S.A. 19-4327, a sheriff’s civil service board is exercising quasi-judicial functions. Therefore, any appeal from a decision or ruling by such a board must be taken exclusively under K.S.A. 1981 Supp. 60-2101(d), and not by an independent action, such as one for declaratory relief.
This result finds additional support in the holding of an even more recent opinion by the Kansas Supreme Court. In Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 528 P.2d 1232 (1974), a case quite analogous to the instant appeal, the court held thus:
“In an appeal from an order of the district court granting a declaratory judgment and an injunction against the Kansas Commission on Civil Rights from continuing or persisting in its efforts to require the respondent to pay moneys to complainant either in a conciliation conference or at a public hearing, the record is examined and it is held: The judgment and injunction should be set aside on the ground the administrative remedies provided by the Kansas Act Against Discrimination have not been exhausted.” 215 Kan. 902, Syl.
Jarvis, concerned the employee’s failure to request a mandatory rehearing at the agency level before seeking review in the district court. While not precisely in point with the instant case, the philosophy underlying the exhaustion of remedies doctrine of administrative law has equal application to the situation now before this court, the failure to pursue available avenues of direct judicial appeal from agency decisions prior to filing an independent and collateral action in the district court. K.S.A. 1981 Supp. 60-2101(<i) provides an adequate remedy for persons aggrieved by agency action. Resort to declaratory relief is not necessary, and therefore such relief is not “appropriate” in cases such as this one.
We conclude that the above statutes and case authority are dispositive herein and that declaratory relief was not appropriate in this case. Therefore, the trial court was incorrect in assuming jurisdiction over appellee’s declaratory action.
We note appellee’s argument by which he attempts to distinguish this case from Pugh, Thompson, and Jarvis. He points to the following language from Hill v. City of Lawrence, 2 Kan. App. 2d 457, Syl. ¶¶ 5, 6, 582 P.2d 1155, rev. denied 225 Kan. 844 (1978):
“Declaratory relief is ordinarily not available where the same issue can be determined in an ordinary action, and particularly where such an action is already pending.
“The rule of paragraph 5 does not apply, however, where the issue involved in the declaratory judgment action is distinct from that involved in the pending action relied on to deny declaratory relief.”
Appellee argues that the issue before the Board (reasonableness of termination) differs from that presented to the district court (proper allocation of burden of proof). What appellee is overlooking is that while the ultimate issue before the Board was not the same as the ultimate issue before the district court, the issue before the district court had already been decided as a corollary or sub-issue to the ultimate issue before the Board. In the Hill v. City of Lawrence case, on the other hand, the pending mandamus and declaratory judgment actions raised wholly different and separate issues; there was no overlap in the questions presented, and no attempt was made to relitigate a legal issue previously decided. The instant case does not fall within the limited exception carved out in Hill.
We conclude that the trial court erred in accepting this declaratory judgment action. It follows that this case must be reversed and remanded to that court with instructions to vacate said judgment and to dismiss appellee’s declaratory judgment action for lack of jurisdiction.
Reversed and remanded to the district court with directions to dismiss for lack of jurisdiction. | [
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Holmes, J.:
Harry and Mary Ware, husband and wife, plaintiffs below, appeal from an order entered by the district court granting the defendants’ motion for summary judgment.
In March of 1968, appellants contracted with appellee, Mel Christenberry, a general building contractor, for the construction of a house. During the summer of 1968 excavation was done, the foundation laid and the house built at 2226 DeSousa Court, Topeka, Kansas. The filling and excavation work was performed by a subcontractor, appellee Herrman’s Excavating, Inc. Upon completion of the house and for over six years thereafter all went well. In the late summer of 1974 a crack developed in the living room wall and ceiling; however, the crack did not immediately alarm the Wares as they assumed it was attributable to normal settling of the house.
The Wares, in the late summer of 1974, hired a professional mudjacker, Roy V. Uhl and Company, Inc., to raise the footings of the house in an attempt to remedy the settling. The initial mud-jacking failed to alleviate the problem and cracks continued to develop, damaging more walls and ceilings, the brick sidewalk and steps, as well as the front entry tile.
Finally, in September of 1976, Mr. Uhl raised the entire foundation and did extensive excavation around the foundation to ascertain the cause of the problem. It was then discovered that appellees had poured the foundation over cavernous ground and that boulders had been backfilled against the footings during construction. This situation apparently could only be remedied by repeated mudjacking.
On March 23, 1977, appellants filed this action against Christenberry, the general contractor, and his subcontractor, Herr-man’s Excavating, Inc., alleging in Count I that the damage sustained to the property was the direct and proximate result of the failure of the appellees to perforin their contractual responsibilities in a workmanlike manner, and in Count II alleged that the negligence of each of the appellees was the proximate cause of the damage sustained to the appellants’ property. Both counts were framed on the theory of breach of implied warranty. The Wares sought to recover the cost of the repeated mudjacking and repairs to the house necessitated by the extraordinary settling of the foundation and footings.
The appellees filed a motion for summary judgment averring that the contract action was barred by the statute of limitations; that appellants’ petition, failed to state a cause of action in tort; and that even if the appellants had a tort claim, it was also barred by the applicable statute of limitations. The district court ruled that appellants had no tort claim and that their contract claim was barred by K.S.A. 60-512. This appeal followed.
The first point on appeal is that the district court erred in holding appellants did not have a cause of action in tort and that the petition failed to state a claim based upon negligence. The issue of whether a cause of action based upon breach of an implied warranty sounds in contract or tort, or both, has been before the courts numerous times. The distinction may become important for several reasons including a determination of which statute of limitations applies, the measure of damages which may be recovered and whether the cause of action may be brought against the estate of a deceased person. The crucial point in the case now before the court is the application of the appropriate statute of limitations.
K.S.A. 60-512 provides, in part:
“The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing.”
K.S.A. 60-513(a)(4) and (b) provide:
“(a) The following actions shall be brought within two (2) years:
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
(b) 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 ascer tainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the timé of the act giving rise to the cause of action.”
An action sounding in contract for breach of an implied warranty is governed by K.S.A. 60-512 and the time begins to run with the breach of the contract regardless of whether the injured party is aware of the breach. Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 192, 519 P.2d 661 (1974); Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, Syl. ¶ 2, 457 P.2d 1 (1969); Crabb v. Swindler, Administratrix, 184 Kan. 501, 507, 337 P.2d 986 (1959). On the other hand, an action in tort for negligence in the breach of an implied warranty is governed by K.S.A. 60-513 and the time does not begin to run against the cause of action until substantial damage has first occurred, or the fact of injury becomes reasonably ascertainable to the injured party. Chavez, Executrix v. Saums, 1 Kan. App. 2d 564, 571 P.2d 62, rev. denied 225 Kan. 843 (1977).
In holding that plaintiffs’ petition stated only a cause of action in contract, the district court dealt with the negligence claim as follows:
“The petition goes on to allege negligence by Defendants. The tortious acts alleged by the Plaintiffs, however, are merely allegations of the manner in which Defendants breached the implied warranty of performance in a workmanlike manner. The duty breached, if at all, was that ifnplied warranty duty, not an independent duty owed Plaintiff absent the contract. Therefore, because the petition does not state a cause of action in tort, this Court need not rule upon the running of the statute of limitation contained in K.S.A. 60-513.”
Since implied warranty has traditionally created a cause of action in either tort or contract depending on the nature of the interests protected, the trial judge’s statement that the petition does not state a cause of action in tort would appear to be in error.
The dilemma created when it becomes necessary to determine whether a catise of action for breach of implied warranty sounds in contract or tort, or both, has been before the courts for years. The decision to favor one over the other has been adversely commented upon by Dean William L. Prosser.
“Once the plaintiff has brought his action, and his complaint has been filed, two questions arise which are sometimes very difficult to determine. The first is whether he has in fact brought his suit in contract or in tort, which is a matter tó be determined very largely from the language of his pleading. The second is whether, when inconsistent rules of law apply to the two actions, he will be permitted to make his own election as to the theory of his suit to take advantage of the more favorable rule, or whether the court must itself decide that on the particular facts pleaded or proved the ‘gist’ or ‘gravamen’ of the action is one or the other.
“[W]hen questions of the applicable rule of law arise, there are hundreds of cases in which the court has construed the plaintiff’s complaint, and on the basis of the presence or absence of some particular allegation, or the emphasis found to have been given to it, have held that contract or tort is pleaded. There is probably no more barren and unrewarding group of decisions to be found in the law. They turn almost entirely upon the details of language, which of course vary from case to case; and almost the only clue to be found in them is that the prayer for relief will be looked to, and the amount of damages claimed will indicate whether the party is seeking the benefits of the contract or merely a recovery for his loss. It has been said indiscriminately that in doubtful cases contract or tort will be favored by way of construction. . . . There is little to be said for this forest of flat, stale and unprofitable cases, except that the court will nearly always try to find a theory which will sustain some cause of action. . . .” Prosser, Selected Topics on the Law of Torts, The Borderland of Tort and Contract, pp. 429-433 (1954).
We do not intend to dwell upon the history and development of the contract versus tort conflict but for those interested there is a multitude of reading available. See generally, Note, The Effect of Statutes of Limitation on Implied Warranty Actions, 5 Washburn L.J. 62 (1965); Morgan, The Negligent Contract-Breaker, 58 The Canadian Bar Review 299 (1980); Sullivan, Innovation in the Law of Warranty: The Burden of Reform, 32 Hastings L.J. 341 (1980); Note, The Implied Warranty of Habitability - Contract or Tort?, 31 Baylor L.Rev. 207 (1979).
Whatever may have been the law in the past, it now appears settled that in Kansas a person suffering damage from breach of an implied warranty may proceed upon either a contract or tort theory, or both, in initially framing his cause of action. In Beams v. Werth, 200 Kan. 532, Syl. ¶ 9, 438 P.2d 957 (1968), the Supreme Court held:
“Under K.S.A. 60-208(e)(2) a party may state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both.”
In Thompson v. Phillips Pipe Line Co., 200 Kan. 669, 672, 438 P.2d 146 (1968), the Supreme Court stated:
“Pursuant to K.S.A. 60-208(a), the plaintiff’s petition must set forth ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ and a ‘demand for judgment for the relief to which he deems himself entitled.’ Relief in the alternative, or of several different types may be demanded. The pleader may allege or make contradictory or alternative statements until he finds out which theory, if any, the facts support, and is permitted to shift the theory as the facts develop. ” (Emphasis added.)
Griffith v. Stout Remodeling, Inc., 219 Kan. 408, 548 P.2d 1238 (1976), involved an action for damages for breach of a contract to repair a roof. The plaintiff alleged both negligence and breach of warranty for the claimed defective installation of the roof. In Griffith the Supreme Court, in discussing the application of the doctrine of election of remedies under K.S.A. 60-208 and 60-218, stated:
“Under these rules consistency of claims is not important at the pleading stage, the practical effect of which is to diminish the doctrine of election of remedies as it was applied under our former procedural code. . . . The spirit of the new rules would appear to permit the pleader to shift the theory of his case as the facts develop so long as he has fairly informed his opponent of the transaction or “aggregate of operative facts” involved in the litigation’ (1 Vernon’s K.S.A. Code of Civ. Proc. 60-208.2, p. 492). Our most recent pronouncement on the subject is found in Weaver v. Frazee, 219 Kan. 42, 547 P.2d 1005, decided March 6, 1976, as follows:
‘Under K.S.A. 60-208(e)(2) a plaintiff may combine more than one cause of action, pleading in the alternative, regardless of consistency. He may allege or make contradictory or alternative statements until he finds out which theory, if any, the facts support, and is permitted to shift the theory as the facts develop. ’ (Syl. ¶ 5.)” pp. '412-413. (Emphasis added.)
Thus it appears that in an action for breach of an implied warranty a party may plead and proceed upon the theories of both contract and tort until the facts have been developed and the case is ready to be submitted to the trier of the facts. We garner from the recent cases and the authorities that one seeking to recover for breach of an implied warranty must eventually elect a definite theory before final submission to the trier of the facts. To submit a given factual situation to a jury based upon both theories with possible different statutes of limitation, different measures of damages, different elements and burdens of proof, and other possible conflicting choices would not only be totally confusing to the jury but also unfair to the party against whom the damages are sought. Compounding the confusion created by submitting both theories to the trier of the facts would be the requirement that the negligence or tort theory is subject to K.S.A. 60-258a and the principles of comparative fault. See Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980).
We conclude that the district court was in error in granting summary judgment to the defendants upon the theory that plaintiffs’ cause of action could not sound in tort.
Next, the appellees contend that even if plaintiffs had a cause of action in negligence it was still barred because the action was not commenced within two years as required by K.S.A. 60-513. The house in question was initially constructed in 1968. Appellants contend they first had knowledge of damage sufficient to start the running of the statute of limitations in 1976 when Mr. Uhl actually did the extensive excavation and verified the cause of the damage. Appellees, on the other hand, contend the appellants were first placed on notice when the first cracks appeared in 1974 and as this action was not filed until 1977, it would be barred. Where there is conflicting evidence as to when a cause of action is deemed to have accrued, the matter is an issue for determination by the trier of the facts. George v. W-G Fertilizer, Inc., 205 Kan. 360, Syl. ¶ 4, 469 P.2d 459 (1970).
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|
Swinehart, J.:
This is an appeal arising out of a breach of contract action filed by plaintiff Phillip W. Stanfield to recover royalties from defendant Osborne Industries, Inc., under a patent license agreement. Both Stanfield and Industries appeal from rulings on matters of law by the trial court and the jury verdict which established the breach of contract.
Defendant Osborne Industries raises the following issues: (1) Whether the trial court erred in finding that a license agreement, which required plaintiff to apply for a patent on a licensed product, required payment of royalties by Industries even though the product was not patented; (2) whether the trial court erred in finding that it was irrelevant whether plaintiff had a trade secret embodied in the product, and that plaintiff could recover royalties from Industries when he had neither a trade secret nor patent rights in the licensed product; (3) whether the trial court erred in refusing to admit evidence which would show the state of the prior art or otherwise show whether plaintiff’s alleged invention embodied a trade secret, and, if so, precisely what aspect of the invention constituted the secret; (4) whether the trial court erred in refusing to allow Industries’ expert witness to testify at trial; (5) whether the trial court erred in permitting improper cross-examination of Industries’ witness, Ron Thibault, thereby eliciting inadmissible and prejudicial evidence; and (6) whether the trial court erred in sustaining a verdict contrary to the evidence and without substantial support in the evidence.
Plaintiff Stanfield raises the following issues: (1) Whether managing and controlling shareholders of a corporation are privileged to willfully and maliciously make false representations concerning the use of licensed inventions for the purposes of inducing a breach of confidential and contractual relations for their own personal gain; (2) whether the royalties paid should be based upon “net wholesale price” or on an amount determined by multiplying the units sold times the “distributor’s price”; and (3) whether Industries’ obligation to pay royalties should terminate according to the royalty agreement or after seventeen years from March 31, 1978, as ordered by the trial court.
In the early 1970’s plaintiff Stanfield was living in the Osborne area. Although he had only a grade school education, Stanfield was known as something of a jack-of-all-trades. Stanfield was also an inventor and had built several things in a backyard shop, including a heating pad for farrowing baby pigs (hereinafter referred to as a “pork pad”). Stanfield presented his inventions to some leading citizens of Osborne, who subsequently called a meeting in February of 1973 under the auspices of the Chamber of Commerce to seek investors for a company to manufacture Stanfield’s products in Osborne. The citizens were concerned about the area’s declining population and lack of job opportunities. Willing investors were found and steps were taken to organize Osborne Industries, Inc., as a Kansas corporation.
Later in the spring of 1973, Stan Thibault was contacted about becoming involved in the corporation. He was a native of Osborne and was living in Kansas City at the time. He had a college business degree and sales experience with the Mobil Oil Corporation, but had no manufacturing experience. Stan Thibault moved back to Osborne in September of 1973 to become president of Industries. One of his first acts as president of the new company was to sign the October 3, 1973 license agreement that had been previously prepared by attorneys for Stanfield and Industries and which is the primary subject of this case. This contract provided that Stanfield was the inventor of certain listed products and would make application for patents on those products. Stanfield granted Industries an exclusive license to manufacture the products if it so desired. In consideration for the license, Industries agreed to pay a royalty on its sales to Stanfield. It was also contemplated that Stanfield would come to work for Industries as its plant foreman, which he did, and it was hoped that he would develop other valuable products, which he did not.
Of the products listed in the license agreement, only the pork pad proved to be commercially acceptable and only royalties on the pork pads are in issue on appeal.
Stanfield built his first pork pad in November of 1972. Industries manufactured pork pads and paid royalties to Stanfield totaling $45,671.07 for the period of 1974 through November of 1976. This constituted full payment, of royalties on the original gray-colored pork pad. Phillip Stanfield left the employ of Osborne Industries in 1975, and later left the State of Kansas altogether.
In 1976, an orange-colored pork pad, which allegedly was developed by Ron Thibault (Stanley Thibault’s brother) and Dr. Louis Perky, was introduced by Industries. Ron Thibault had previously obtained stock in Industries and was employed by Industries in April of 1974. Industries took the position that the new orange pork pad was a new and substantially different product from the original gray pork pad, and consequently, no royalties pursuant to the license agreement were paid to Stanfield for sales of the orange pork pad. At this time Industries also noted that there were competitive products on the market, and the protection of the proposed patent monopoly was not forthcoming.
Stanfield initially applied for a patent on the pork pad in November of 1973. The patent application filed by Stanfield had been rejected in March of 1974 and then abandoned, but on February 27, 1975, Stanfield refiled it as a continuation application. On February 5, 1976, the patent examiner rejected the application. An amendment to the application was filed in response to the rejection in June, 1976, but a final rejection was issued by the examiner in January of 1977. Stanfield’s appeal of the decision was finally denied by the Board of Patent Appeals on March 31, 1978. This action, however, had already been commenced on February 27, 1977.
Plaintiff alleged in his petition that (1) defendant Industries had breached the contract to pay royalties; (2) that defendants Ronald and Stanley Thibault were individually liable for actual and punitive damages for breach of fiduciary duty for inducing the defendant corporation to breach the contract and thereby tortiously interfering with the contract; (3) that defendant Industries breached the contract by failing to exploit the other products licensed; (4) that defendant Industries is being unjustly enriched by continuing to use the “Stanfield” name on the products marketed from which it claims no royalties are due; and (5) that Industries is being unjustly enriched by appropriating trade secrets allegedly embodied in the pork pad.
After discovery, all parties moved for summary judgment on the ground that the contract was not ambiguous and each was entitled to judgment. The trial court, accepting the stipulation of the parties that the contract was not ambiguous, stated the following, quoted verbatim:
“The parties have reached a stipulation concerning the events arising about the scrivener to the Contract marked Exhibit A. . . . The parties stipulate and agree the final preparer of the contract was plaintiff’s counsel. The question arises in this case over the construction of Paragraph 6 of the final contract and how it applies in respect to the entire contract in whole. Paragraph 6 of the contract sets out as follows:
‘6. Industries hereby accepts the license hereinabove granted, subject to all the conditions expressed elsewhere in this agreement, [and in] consideration thereof agrees to pay to Stanfield a royalty of FIVE (5) per cent of the net wholesale price of the above-named products to which Stanfield holds patents or copyrights, or [h]as patents or copyrights pending, and on those items although not patentable which Stanfield has introduced and developed for Industries.’
“The first part of the contract under Section A it specifies the Stanfield Heating Pad for farrowing pigs, therefore, the heating pad being one of the above-named products, that heating pad which is still produced by Osborne Industries and which is the subject of controversy before the Court.
“It is not disputed by the parties that Mr. Stanfield did prosecute and make application for patents for the Stanfield Heating Pad, but was subsequently denied and that denial was not appealed on the Appellate Court level. He was, however, given a patent for a barrel warmer which was not produced except for a short time by the defendants herein, is not subject to any controversy before this Court.
“In viewing the contract in its entirety, it is apparent that the parties were originally contracting for the listed items, and further they made an additional contract because Mr. Stanfield was to go to work with the defendant Osborne Industries. That he also would be provided the royalties for those items that were not patentable which he introduced to them during his work with them. The Court reading the contract in its entirety finds that the section of Paragraph 6 which includes ‘and those items are not patentable which Stanfield has introduced and developed for Industries’, does not apply to the Stanfield Heating Pad, the Stanfield Heating Pad having been previously listed and being one of the above-named products in Paragraph A. Then there was a duty to obtain a patent upon those items listed in Paragraph A by plaintiff, Phillip W. Stanfield. That this was contemplated by the parties in viewing the contract as a whole.
“The defendant herein moves the Court for a judgment finding that upon the rejection of the patent, that his obligation under the contract was terminated to the plaintiff, and that it was expressly agreed within the contract that the patent be issued and the failure to issue such is a clear breach of the contract entitling the defendant to nullify same. The Court in viewing the contract in its entirety is not convinced that that is the proper interpretation. The Court, in viewing it in its entirety, would note that as long as Osborne Industries continued to produce the Stanfield Heating Pad as originally introduced by the plaintiff herein, would be liable royalties on the same, therefore, the defendant’s Motion for Summary Judgment upon the first cause of action herein would be denied.”
The trial court also found that the conduct of the individual defendants, Stanley and Ronald Thibault, was privileged and was within the interests of the corporation, and therefore sustained their motion for summary judgment on plaintiff’s second cause of action concerning their tortious interference with plaintiff’s contractual rights.
The trial court also sustained defendant Industries’ motion for summary judgment on Stanfield’s third cause of action concerning a breach of contract by failure to exploit the exclusive license. The court similarly dealt with plaintiff’s cause of action predicated upon Industries’ misappropriation of plaintiff’s trade secret. The trial court stated:
“The Court would find that in this case that the confidential misappropriation of trade secrets, and the unjust enrichment from there [sic] would have no bearing and would be encompassed within the issues which will be presented before the Court. . . .
“In this case the rights of the parties were established by a contract dated October 3rd, 1973. The question which the jury must determine is whether or not the current pad being produced is substantially different from the pad which was developed by Phillip Stanfield. If the pad is substantially the same, then Osborne Industries will owe royalties to the plaintiff based upon the contract.”
The case was tried to a jury on the above stated issue and the jury found for plaintiff, deciding that the orange-colored pork pad as produced after November, 1976, was not substantially different from the original gray-colored Stanfield pork pad. A careful review of the record reveals that substantial competent evidence was presented which supports that verdict.
Industries’ first allegation of error concerns the trial court’s construction of the patent license agreement. Where, as here, it is stipulated by the contracting parties that the contract is not ambiguous, this court on appeal is free to examine the agreement and make its own determination as to the agreement’s proper meaning. Stith v. Williams, 227 Kan. 32, 605 P.2d 86 (1980); Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 354 P.2d 368 (1960).
The apparent focus of the controversy in this case centers around the construction of Paragraph 6 of the agreement which states:
“Industries hereby accepts the license hereinabove granted, subject to all the conditions expressed elsewhere in this Agreement, and in consideration therefore [sic], agrees to pay to Stanfield a royalty of Five (5) percent of the net wholesale price of the above named products to which Stanfield hold [sic] patents or copyrights or has patents or copyrights pending and those items, though not patentable, which Stanfield has introduced and developed for Industries.”
The specific issue is whether the contract requires payment of royalties by Industries to plaintiff in the event that a patent is applied for but not obtained for the Stanfield pork pad. It is important to remember that the intent and purpose of a contract is not to be determined by considering one isolated sentence or provision thereof, but by considering and construing the instrument in its entirety. Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P.2d 350 (1954); Maltby v. Sumner, 169 Kan. 417, 219 P.2d 395 (1950); In re Estate of Koellen, 162 Kan. 395, 176 P.2d 544 (1947).
When viewed in its entirety we find the primary purpose of this agreement to be the licensing of two categories of inventions: those already existing, having been created by plaintiff Stanfield and specifically listed in the contract, and those which Stanfield may create in the future during the course of his employment with Industries. The contract further provides for Stanfield to apply for and prosecute an application for letters of patent on the first class of inventions. Paragraph 6 of the agreement provides for the payment of royalties to Stanfield in consideration for the license granted to Industries. We find that the royalty provision applies to all inventions licensed by defendant Industries from Stanfield which are eventually manufactured and sold. Industries has the obligation to pay royalties on not only the subsequently introduced inventions but also on those existing inventions specifically listed in the agreement in which Stanfield had the obligation to pursue an application for a patent. The subsequent failure to obtain a patent on any of the listed inventions does not terminate Industries’ obligation to pay royalties on the manufacture and sale of such invention. Since a patent was applied for and prosecuted by Stanfield and was subsequently denied, we find Paragraph 10 to be the relevant termination provision. That section provides:
“Industries agrees that this agreement shall terminate as to any one given product, Twelve (12) months after Industries, or its successors and assigns, fail to produce or sell such products but that this provision shall not be construed to terminate the entire agreement, provided however, that Industries continues to manufacture and sell other products as above set forth in this agreement and further Industries hereby agrees that upon the termination of this agreement, as above described, it shall forthwith cease to manufacture said products as specified by the Letters of Patent issued to Stanfield.”
Industries argues that if this court interprets the contract to mean that a royalty is owing on the pork pad, notwithstanding the denial of the patent, the license agreement is nevertheless rendered unenforceable by preemption of federal patent law. In Aronson v. Quick Point Pencil Co., 440 U.S. 257, 59 L.Ed.2d 296, 99 S.Ct. 1096 (1979), the United States Supreme Court dealt with a case very similar to the one presented here on appeal. Applying the law recently stated there, we find that the enforcement of this patent license agreement is not inconsistent with the purposes of the federal patent system, which are: (1) to foster and reward invention; (2) to promote disclosure of inventions, stimulate further innovation, and permit the public to practice the invention once the patent expires; and (3) to assure that ideas in the public domain remain there for the free use of the public. We therefore hold that federal patent law does not preempt Kansas contract law under the particular facts of this case.
Industries next contends that the trial court erred in finding that whether or not the pork pad embodied a trade secret was irrelevant. Industries also argues that the court erred in excluding evidence concerning that question. We find that the trial court did not err on these two points. The court correctly determined that the rights and obligations of the parties were established by the contract. The finding that royalties were owing under the contract, notwithstanding the denial of the patent application, effectively renders Industries’ contentions of error regarding trade secrets moot.
Industries next contends that the trial court erred in refusing to permit its expert witness to testify. The record clearly reflects that Industries failed to meet the pretrial deadline set for the exchange of the names of expert witnesses. In Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 1, 564 P.2d 508 (1977), the court held:
“A pretrial order, entered by the trial court pursuant to K.S.A. 60-216, controls the subsequent course of an action unless such order is modified at the trial to prevent manifest injustice. This proviso reposes in the trial court large discretionary powers.”
We find that Industries has failed to show or establish on appeal that prejudice resulted from the exclusion of this expert witness or that the trial court abused its discretion under the circumstances of this case.
Industries next contends that the trial court erred in permitting a certain line of questioning on cross-examination of its witness, Ronald Thibault. The witness was questioned regarding a substantial number of pork pads returned to Industries from the sales outlets for possible defects. The trial court overruled Industries’ objection to this line of questioning, stating: “This bears on the evidence brought out in direct examination as to the stability of the pads and as to improvement.” The scope of cross-examination in any particular case is a matter resting within the discretion of the trial court. Rostine v. City of Hutchinson, 219 Kan. 320, 329, 548 P.2d 756 (1976). “A trial court is vested with considerable discretion in determining the scope of cross-examination, and its rulings on objections to questions asked of a witness on cross-examination will not be disturbed on appeal, absent a showing of an abuse of discretion.” Frame, Administrator v. Bauman, 202 Kan. 461, Syl. ¶ 1, 449 P.2d 525 (1969). We find no abuse of judicial discretion to exist regarding the allowance of this testimony. The cross-examination was clearly within the scope of direct examination and in no way inadmissible.
Plaintiff Stanfield’s first contention of error is that the trial court erred in sustaining defendants’ motion for summary judgment on plaintiff’s second cause of action, holding that there is no question of fact as a matter of law, and the acts complained of by plaintiff against the individual defendants (Stanley and Ronald Thibault) would not allow plaintiff to recover under a theory of wrongful interference with plaintiff’s contractual rights. Plaintiff alleged that the individual defendants, as corporate officers, interfered with plaintiff’s contractual rights when, at a special meeting of the board of directors of Osborne Industries, which took place on October 14, 1976, they willfully, intentionally, maliciously, wrongfully and for personal financial gain, induced the board of directors to cease paying Stanfield royalties under the October 3, 1973, license agreement. The trial court based its decision on the following rule which was stated in May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 425, 370 P.2d 390 (1962):
“[T]he officers and agents of a corporation, acting for and on behalf of their corporation, would not be liable for inducing action by the corporation which it could lawfully undertake to do under a contract of employment. Under such circumstances the conduct of the officers and agents of the corporation is privileged.”
In Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 2, 612 P.2d 150 (1980), the court held:
“An appellate court in examining the validity of a motion for summary judgment should read the record in the light most favorable to the party who defended against the motion. It should accept such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.”
In Supreme Petroleum, Inc. v. Briggs, 199 Kan. 669, 677, 433 P.2d 373 (1967), the court stated:
“We are mindful that in applying the summary judgment rule, a question of fact created by allegations, standing alone, is not sufficient to control the application. In discussing the principle in Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415, we said:
. . . The rule was intended to permit a party to pierce the allegation of facts in his opponent’s pleadings by affidavits and discovery, thus controlling the formal issues presented by the pleadings. (Citing cases.)’ (pp. 100, 101.)
“However, in considering the effect of affidavits and discovery, we are compelled to give to the party, against whom summary judgment is sought, the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019, and cases cited therein.)”
In In re Estate of Mullin, 201 Kan. 756, 761, 443 P.2d 331 (1968), the court stated:
“The purpose of summary judgment is to make possible the expeditious disposition of cases in which there are no genuine issues of material fact upon which the outcome of the litigation depends. In determining whether a motion for summary judgment is well founded, the court may pierce formal allegations of fact in pleadings and determine from the entire case whether there are genuine issues of fact to be resolved at a formal trial. Flimsy or transparent allegations are insufficient to sustain a justiciable controversy requiring the submission thereof to the trier of facts. (Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415; Hartman v. Stumbo, 195 Kan. 634, 408 P.2d 693; Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964; Whelan v. New Mexico Western Oil and Gas Company, 226 F.2d 156 [10th Cir. 1955]; Schreffler v. Bowles, 153 F.2d 1 [10th Cir. 1946].)”
In Bowen v. Westerhaus, 224 Kan. 42, 45, 578 P.2d 1102 (1978), the court held:
“In considering a motion for summary judgment a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. (Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 2, 553 P.2d 315 [1976].) A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. (Henrickson v. Drotts, 219 Kan. 435, 438, 548 P.2d 465 [1976].) Whether a party acts in good faith depends not only on the facts and circumstances but also on his state of mind.”
See also Gleichenhaus v. Carlyle, 226 Kan. 167, 169, 597 P.2d 611 (1979).
May v. Santa Fe Trail Transportation Co., 189 Kan. 419, the decision relied upon by the trial court in the present case, was an action against the Santa Fe Trail Transportation Company and three of its officials for an alleged unlawful discharge of the plaintiff from employment. The question presented was whether the petition stated a cause of action on the ground that the individual defendants unlawfully conspired to cause the discharge of the plaintiff from employment. The court held:
“Where . . . individual defendants are named and described as officials of the corporate defendant in the petition, with no allegations that these defendants acted other than in their official capacities on behalf of the corporate defendant, and no allegation remotely indicates that they were pursuing their course as individuals or for individual advantage, the acts of the individual defendants must be regarded as the acts of the corporation, and when so acting they cannot conspire with the corporation of which they are a part.”
The distinction between May and the present case is that in the present case there is an allegation that the individual defendants were acting for individual advantage. In plaintiff’s petition he alleges that the individual defendants acted to enhance their personal financial position and that the acts were carried out for the purpose of acquiring for themselves the rights and property of the plaintiff. Because of this factual distinction, the court’s decision in May is not dispositive of the issue presented here.
After a careful review of the pleadings, depositions and records available to the trial court at the time the summary judgment motions were heard, we find that no question of material fact remained unresolved, even though plaintiff contends that the individual intent of defendants was to materially benefit themselves as stockholders, and further that they had breached a fiduciary duty owed to plaintiff. We find that although the individual defendants were corporate officers and substantial stockholders of the corporation, all of the acts complained of by plaintiff were acts performed by defendants in their official capacities for the corporation. These acts included furthering the development of the pork pads by improving the materials used and the method employed in the manufacture of the pads, determining the status of plaintiff’s patent application and seeking information concerning competitors’ products and their construction. All of these actions were done while acting within their corporate capacities. The recommendation to the board of directors regarding the termination of royalties to plaintiff for the pork pads was also made by the individual defendants while acting in their corporate capacities. The individual defendants informed the board of directors of the current status of their pork pad development and contrasted it with the original pork pad as produced and sold under their license agreement with plaintiff. Defendants proposed that the royalties be terminated since the products were different. We find this action to be reasonable in light of the substantial question as to whether these two pads were substantially the same pads. While it is true that the individual defendants would personally benefit derivatively from the termination of the royalty payments to plaintiff, we find that the issue concerning defendants’ state of mind not to be an unresolved question of fact. A cautious review of the record on this issue reveals that the acts by the individual defendants complained of by plaintiff were so completely and utterly related to their official corporate responsibilities that the admitted fact of personal benefits as stockholders as a result of the termination of the royalties is totally insufficient as to leave a question of fact unresolved. We therefore hold that the trial court did not err in granting summary judgment on this issue.
Plaintiff’s final contention of error concerns the manner of computation and duration of the royalties to be paid to Stanfield by Industries. The trial court ordered the royalties to be computed by multiplying the number of units sold times the “distributor price” per unit. The court also determined that Stanfield was not entitled to royalties for the pork pad beyond the period of seventeen years after March 31, 1978 (the date on which the patent for the pork pad was denied).
We agree with Stanfield’s contention and reverse the trial court in that it erred in both respects. The parties’ agreement clearly and unambiguously defines in Paragraphs 6 and 7 how the royalties are to be computed:
“6. Industries hereby accepts the license hereinabove granted . . . and in consideration therefore, [sic] agrees to pay to Stanfield a royalty of Five (5) percent of the net wholesale price of the above named products. . . . The Five (5) percent shall be applicable to such products or merchandise actually billed by Industries to dealers, distributors, wholesalers, or individuals, as evidence [sic] by Industries’ invoices for the same. . . . It is understood and agreed that the royalty percentage shall be based upon the net wholesale price of each and every unit of products manufactured and sold as above described.
“7. The price received by Industries, F.O.B. factory, from its customers for -the sale of said above described products shall be deemed to be the net wholesale price of Industries for the purpose of computing the royalties hereunder.”
We have already stated above that Paragraph 10 is the relevant termination provision and, consequently, Industries will.be obligated for royalties until such time as it ceases production of the licensed products.
The judgment in favor of plaintiff Stanfield against defendant Industries is affirmed as to the liability of Industries to pay royalties, and the case is remanded to the trial court for the mathematical computations, to the date of this order, of the total amount of damages to be recovered by Stanfield under the terms of the contract.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the State Bank of Stanley from a judgment in a conversion action entered against it and in favor of the plaintiffs, Gene R. Mohr and Tri-County Farm Equipment Company, in the total amount of $422,650.26, following a jury trial in the District Court of Johnson County. The numerous issues raised on appeal will be stated and discussed separately in this opinion.
Tri-County Farm Equipment Company is a Missouri corporation qualified to do business in Kansas. Its principal activity was the sale of farm machinery at Olathe. Gene Mohr and James Loyd each owned 50% of the stock in Tri-County. The First National Bank of Olathe, Kansas, was designated as its depository bank. Tri-County’s corporate resolution provided that all checks, drafts, or other orders for payment of money could be endorsed for deposit by stamp or personal endorsement of any officer or employee and deposited in the First National Bank. Tri-County had no banking relationship with the State Bank of Stanley.
Mohr and Loyd also started a leasing company, known as Mohr-Loyd Leasing, a partnership, for the purpose of leasing farm equipment. (For further background on these organizations see Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, 715 P.2d 376 [1986].)
Additionally, Loyd had his own oil business known as Earth-born Energy. Mohr had no ownership interest in Earthborn Energy. So far as we are aware, Loyd was the sole owner and operator of Earthborn Energy, and its bank accounts were maintained in the State Bank of Stanley and in the First National Bank of Olathe.
Between January 25, 1982, and December 2, 1982, Loyd endorsed eight checks which were payable to Tri-County. He deposited those checks, not in the Tri-County account at the First National Bank of Olathe, but in Loyd’s Earthborn Energy account in the State Bank of Stanley. Similarly, on August 25, and October 25, 1982, Loyd endorsed two checks which were the property of Mohr-Loyd Leasing, and deposited those checks in his Earthborn Energy account.
This action for conversion was commenced by Mohr and Tri-County. Mohr, as the successor in interest to Mohr-Loyd Leasing, sought the proceeds of the two checks payable to the leasing company which it never received. Tri-County brought suit on the eight checks made payable to it, the proceeds of which it never received, contending the State Bank of Stanley converted those checks. The jury returned a verdict in favor of Tri-County in the amount of the eight checks payable to it, $186,615.06, plus punitive damages of $76,000. It also returned a verdict in favor of Mohr for the two checks payable to Mohr-Loyd Leasing, in the amount of $57,455.92, plus punitive damages of $24,000. The trial court added 10% prejudgment interest to the actual damages (the face amount of all of the checks) in the total sum of $78,579.28. The Bank appeals.
For its first issue, the Bank contends that as a matter of law, Loyd had implied or apparent authority to endorse and negotiate checks payable to Tri-County. It will be helpful at the outset to
summarize the agency principles pertinent to this issue. In Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 236-37, 613 P.2d 1342 (1980), Justice Fromme summarized these principles as follows:
“The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent. The authority of an actual agent may be either express or implied. Theis v. DuPont, Glore Forgan, Inc., 212 Kan. 301, 306, 510 P.2d 1212 (1973).
“It is an express agency if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal. An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent. Gardner v. Rensmeyer, 221 Kan. 23, Syl. ¶ 1, 557 P.2d 1258 (1976); Greep v. Bruns, 160 Kan. 48, Syl. ¶ 4, 159 P.2d 803 (1945).”
In the earlier case of Brown v. Wichita State University, 217 Kan. 279, 286-87, 540 P.2d 66 (1975), aff'd in part, vacated in part 219 Kan. 2, 547 P.2d 1015 (1976), Chief Justice Fatzer considered the subject of implied agency. He said:
“To determine whether the record establishes an agency by agreement it must be examined to ascertain if the party sought to be charged as principal has delegated authority to the alleged agent by words which expressly authorize the agent to do the delegated act. If there is evidence of that character, the authority of the agent is express. If no express authorization is found, then the evidence must be considered to determine whether the alleged agent possesses implied powers. The test utilized by this court to determine if the alleged agent possesses implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency; in which event, the relation may be held to exist, notwithstanding either a denial by the alleged principal or whether the parties understood it to be an agency. (Rodgers v. Arapahoe Pipe Line Co., 185 Kan. 424, 345 P.2d 702.) In 2A C.J.S., Agency, § 52, p. 626, it is stated:
“ ‘An implied agency must be based on facts for which the principal is responsible. These facts must, in the absence of estoppel, be such as to imply an intention to create the agency, and the implication must arise from a natural and reasonable, and not from a forced, strained, or distorted, construction of them. They must lead to the reasonable conclusion that mutual assent exists, and be such as naturally lead another to believe in and to rely on the agency. The existence of the relation will not be assumed.
“ ‘While the relation may be implied from a single transaction, it is more readily inferable from a series of transactions.
“ ‘On the question of implied agency, it is the manifestation of the alleged principal and agent as between themselves that is decisive, and not the appearance to a third party or what the third party should have known. An agency will not be inferred because a third person assumed that it existed ....’”
Apparent agency is based on intentional actions or words of the principal toward third parties which reasonably induce or permit third parties to believe that an agency relationship exists. In the case before us, there were no actions by Tri-County and no words expressed on its behalf to the State Bank of Stanley to induce or permit it to believe that Loyd was the agent of TriCounty and authorized to deposit corporate checks in his own personal business account. The record indicates that the supervisor of tellers at the Bank did not even know of Loyd’s position with Tri-County. The identity of the individual tellers who handled the deposits was not disclosed, so it is impossible to know if they were aware of Loyd’s relationship with Tri-County. No corporate resolution of Tri-County was furnished to the State Bank of Stanley, no letters were written by Tri-County to the Bank, and Tri-County took no action of which the Bank was aware or upon which it relied. We find no basis in the evidence for the existence of any apparent agency.
Implied agency is based on an implied intention to create an agency. It arises upon facts for which the principal is responsible. It arises when, from the statements and conduct of the parties, it appears that the principal, or the principal and the “agent,” intended to make it appear to others that the acts of the “agent” were authorized by the principal. We find no facts here supporting an implied agency. There is no evidence indicating an intention by Tri-County to make it appear that Loyd was authorized to deposit checks payable to it in his personal account. Similarly, we find no evidence of a like intention on the part of the partnership. Though Loyd may have intended to convey to the Bank the appearance that he was authorized by Tri-County and the partnership to endorse and deposit the checks, his intention alone is not sufficient upon which to base a finding of implied agency.
The Bank insists that the “powers of position” rule created the necessary authority in Loyd to endorse and negotiate checks payable to the corporation. Basically it contends that because he was an officer and shareholder in the corporation, he was impliedly or apparently authorized to deposit corporate checks in his personal account. In support of this position, it cites Executive Financial Services, Inc. v. Loyd, 238 Kan. 663.
The pertinent part of the holding in Executive Financial Services, Inc., was that Tri-County was bound by Loyd’s signature on a guarantee contract because “generally a corporation is bound by contracts entered into on its behalf by its duly authorized officers or agents acting within the scope of their authority.” 238 Kan. at 665. We noted in the opinion, however, that Loyd was authorized to sign all orders, contracts, and notes for the corporation. He was acting within the scope of his authority in guaranteeing the loan transactions, and in executing the contracts at issue in Executive Financial Services, Inc. In the case at bar, Loyd was specifically authorized to endorse checks payable to Tri-County, but his authority to endorse was coupled with a duty to deposit those checks in the corporate bank account in Olathe. The resolution gave him no authority to deposit checks made payable to Tri-County in his own personal bank account. We know of no case in which the “powers of position” rule has been held to give a corporate officer or an employee apparent authority to deposit checks payable to the corporation in the officer’s or employee’s personal account.
To the contrary, in Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan. App. 2d 543, 630 P.2d 721 (1981), a case bearing some similarity to the one at hand, Chief Judge Foth said that the authority of an agent to sell goods of the principal and to make collections for the principal does not confer authority on the agent to endorse and cash checks made payable to the principal. A bank should be cautious in cashing such checks because:
“Barring exceptional circumstances, the general rule is that failure of a bank to inquire when an individual cashes a check made payable to a corporate payee and puts the money in his personal account is an unreasonable commercial banking practice as a matter of law.” 6 Kan. App. 2d at 551.
Chief Judge Foth cited numerous cases supporting this rule, and we find support in other jurisdictions. See Annot., 23 A.L.R.4th 855, § 5(b). The facts in the case at bar do not require a conclusion that Loyd had, as a matter of law, implied or apparent authority to endorse Tri-County or Mohr-Loyd checks and deposit them in his personal business account at the Stanley State Bank. The trial court correctly denied summary judgment on this question.
As its next issue, the Bank contends that Tri-County was precluded, as a matter of law, from denying Loyd’s authority to endorse and negotiate corporate checks. The Bank raised this defense before the trial court by way of motion for summary judgment, which the trial court overruled.
K.S.A. 84-3-404 provides in pertinent part that:
“Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it.”
While the Uniform Commercial Code does not define “preclusion,” paragraph four of the official U.C.C. Comment to K.S.A. 84-3-404 offers some guidance. It reads:
“The words ‘or is precluded from denying it’ are retained in subsection (1) to recognize the possibility of an estoppel against the person whose name is signed, as where he expressly or tacitly represents to an innocent purchaser that the signature is genuine; and to recognize the negligence which precludes a denial of the signature.”
Tri-County’s corporate records reveal numerous transactions from the corporation to Loyd. These include checks written on the corporate account payable to Loyd or to his other business accounts, Loyd’s withdrawals from the cash drawer, and four checks payable to Tri-County but endorsed by Loyd and deposited in his Earthborn Energy accounts. All of these transfers were known by Tri-County and were recorded in Loyd’s farming account, the L-Y Farms’ account. They were noted as “debts” owed by Loyd to Tri-County. The Bank contends that TriCounty is precluded from denying that Loyd had authority to deposit its corporate checks into his personal business account because it had permitted such conduct on four occasions in the past. The checks written on the corporate account payable to Loyd or to his other business and his withdrawals from the cash drawer would have no bearing upon the question here at issue. The four checks payable to Tri-County, which were endorsed by Loyd and deposited in his personal account, were discovered by Tri-County and were immediately noted as debts owed by Loyd to Tri-County. There is no showing that the Bank knew of these four checks or that it in any way relied upon them in accepting the eight checks which form a basis for Tri-County’s action here.
The legal theories included as “preclusion” under the U.C.C. and the legal theories asserted by the defendant each require proof of different elements. Equitable estoppel exists when a party, by its acts, representations, admissions, or silence, induced another party to believe certain facts existed upon which it detrimentally relied and acted. Miller v. St. Louis, Southwestern Ry. Co., 239 Kan. 198, 202, 718 P.2d 610 (1986). Here, there were no acts, representations, admissions, or silence by Tri-County which induced the Bank to believe that Loyd was authorized to deposit and cash checks made payable to TriCounty, and there was no detrimental reliance by the Bank. The Bank did not know of the discovery by Tri-County of the four checks endorsed by Loyd and did not know that the corporation had charged the amount of those checks as a debt by Loyd to the corporation. We find no equitable estoppel.
A defense of negligence is governed by K.S.A. 84-3-406. That section provides, in pertinent part, that:
“Any person who by his negligence substantially contributes to . . . the making of an unauthorized signature is precluded from asserting . . . lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.” (Emphasis supplied.)
Thus, to establish a defense of negligence on the part of TriCounty, the Bank must prove not only its own good faith but also that it acted in accordance with reasonable commercial banking standards. As was noted in Aetna, 6 Kan. App. 2d at 551, the action of a bank in accepting the endorsement of checks made payable to a corporation and the depositing of the funds in the endorser’s personal account is not a commercially reasonable banking practice. The failure of the Bank to follow reasonable commercial banking standards prevents the successful assertion of a negligence defense. Plaintiffs point to certain evidence as an indication that the Bank did not act in good faith. However, we need not reach that issue in view of our finding that the Bank did not follow reasonable banking standards in accepting the eight checks from Loyd and in depositing the proceeds in his personal business account without making inquiry. The trial court did not err in overruling the motion for summary judgment on the preclusion issue.
The third issue is whether the trial judge erred in submitting the claims of Mohr, based on the two Mohr-Loyd Leasing checks, to the jury. Mohr successfully negotiated with the Bank of Stanley two loans for the partnership, Mohr-Loyd Leasing. Checks were issued by the Bank, one for $34,455.92 and the other for $23,000.00. The partnership never received the proceeds; Loyd deposited both checks in his Earthborn Energy account. Later, suit was filed by the Johnson County Airport Commission against the State Bank of Stanley, Johnson County Case No. 123284. Codefendants included the Bank, Mohr, Loyd, and Mohr-Loyd Leasing. The Bank filed a cross-claim against Mohr, seeking recovery on the loans to Mohr-Loyd Leasing. Mohr filed no claim against the Bank arising out of the loans and the embezzlement by Loyd of the check proceeds in that lawsuit.
The Bank contends here that Mohr’s claim was a compulsory counterclaim in Johnson County Case No. 123284, and is barred pursuant to K.S.A. 1986 Supp. 60-213(a). That section provides in pertinent part:
“A pleading shall state as a compulsory counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . .”
The Bank claims that it was error to submit these claims to the jury because they should have been asserted in the Johnson County Airport case, and were barred because not asserted. Mohr argues that because the Johnson County Airport case, was subsequently dismissed, the claim on those two checks should not be barred. The Bank raised this early in this proceeding. The matter was argued, and Judge McWilliams, who was then presiding, ruled that the claim was barred. This was some 30 days before the Johnson County Airport case was dismissed. Mohr, thus, had ample notice and opportunity to raise the claim in the Airport case.
Mohr also argues that the claim, if asserted in the Airport case, would have been a cross-claim, not a counterclaim, and that cross-claims are permissive, not compulsory. This argument is not persuasive. While the claim would have been against a codefendant, Mohr and the Bank were adverse parties in the Airport case, and Mohr’s claim arose out of the transaction which formed the basis of the Bank’s cross-claim against him. In 3 Moore’s Federal Practice ¶ 13.12[1] (2nd ed. 1985), we find this explanation:
“[I]f defendant X pleads a cross-claim against his co-party, defendant Y, the latter must plead as a counterclaim any claim which he (Y) has against X that arises out of the transaction or occurrence which is made the basis of X’s cross-claim.”
The Bank, as a codefendant with Mohr in the Airport case, was not obligated to assert a cross-claim against Mohr. Such action was permissive, not mandatory. Once a cross-claim was asserted, however, it became incumbent upon Mohr to file an answer to the cross-claim. See K.S.A. 60-207, -208. He then became subject to the compulsory counterclaim rule, K.S.A. 1986 Supp. 60-213(a), which states:
“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . .”
K.S.A. 1986 Supp. 60-213 speaks of presenting a counterclaim in a pleading. It does not limit the inclusion of counterclaims to answers. It also speaks of including any claim against any opposing party — not just a claim against the plaintiff. Here, Mohr had a compulsory counterclaim to the Bank’s cross-claim in the Airport case. He was advised of that by the trial judge in this case almost a month before the Airport case was dismissed. No reason for his failure to assert his claim in the Airport case has been presented here. We hold that Mohr’s claim against the Bank on the two Mohr-Loyd Leasing checks was a compulsory counterclaim which had to be raised in the Airport case. They were not raised there, with the result that they may not now be raised in a separate action, but are barred. The judgment on those two checks and related relief must be reversed. We have not overlooked the Bank’s other arguments in support of this issue, but we need not decide them in view of our holding, above set forth.
For its fourth point, the Bank claims that the trial court erred in refusing to give its requested instructions on actual and implied authority. Appellant presented the court with several requested instructions. In ruling on them, the trial judge deleted references to actual or implied authority, and refused to give two instructions requested by the Bank. Requested Instruction No. 4 suggests that there are three types of authority: actual, apparent, and implied. As we discussed earlier, implied agency is one of the types of actual agency. There are but two types, actual and apparent authority. The judge correctly declined to give proposed Instruction No. 4. There was no evidence of express agency, and the court was not required to instruct on it. As to implied agency, we stated in Brown v. Wichita State University, 217 Kan. 279, 287, 540 P.2d 66 (1975), quoted earlier, that “it is the manifestation of the alleged principal and agent as between themselves that is decisive . . . .” Here, the evidence indicated that Loyd concealed his conduct from the corporation. He was expressly authorized to endorse checks but only to deposit them in the corporate bank account. When his defalcations were discovered, Mohr confronted him and he promptly ran away. There is simply no evidence to support the theory that the corporation did anything that caused Loyd to believe that he had authority to deposit corporate checks in his personal bank accounts. In the absence of evidence to support the Bank’s theory of implied agency, the trial court was not required to instruct on it.
Appellant contends that it was reversible error for the trial court to refuse to give its Requested Instructions Nos. 5 and 7. Requested Instruction No. 5 follows the language of K.S.A. 84-3-403(1). The trial court properly gave the substance of that section in its Instruction No. 8, tailoring the definition of agency to that of apparent agency, which was the issue submitted to the jury. The court did not err in refusing to give Instruction No. 5.
As to Requested Instruction No. 7, the first portion of the instruction discusses at length the subject of express and implied authority. As such, and for the reasons stated above, the instruction covers theories which were not supported by the evidence, and refusal to give it was not error.
The fifth issue raised by the Bank is its contention that the trial court erred in refusing to give its requested instructions on preclusion by estoppel. The trial judge instructed the jury only regarding the affirmative defense of contributory negligence, and his instructions on that defense are not challenged on appeal. Estoppel, as we have noted earlier, requires evidence of detrimental reliance. Absent any evidence of reliance by the Bank on acts of the corporation, the trial court did not err in refusing to give the requested instructions on preclusion by estoppel. The Bank did not have any knowledge of Loyd’s prior defalcations or embezzlements, and there was no evidence to suggest that it relied in any way on any acts or omissions of the corporation.
Appellant’s sixth assignment of error concerns Instruction No. 12, in which the trial court told the jury:
“Barring exceptional circumstances, the general rule is that the failure of a bank to inquire when an individual deposits a check made payable to a corporation into the account of another person or entity is an unreasonable commercial banking practice.
“The burden of proof as to whether exceptional circumstances existed as to the checks in question is on the Defendant State Bank of Stanley.
“If you find that Defendant State Bank of Stanley failed to act in good faith and in accordance with reasonable commercial banking standards, you may not consider any negligence of the Plaintiffs which may have substantially contributed to the making of any unauthorized endorsement or deposit.”
This instruction follows the opinion of the Court of Appeals in Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan. App. 2d at 551, discussed earlier. The Bank claims that this instruction is erroneous for two reasons: (1) the factual differences remove the case at bar from this general rule, and (2) the instruction unduly emphasized the plaintiffs’ expert testimony over that of the defendant’s expert.
The Bank argues that in Aetna, the agent was a mere employee, while Loyd was a major stockholder, an officer, and a director of the corporation. The Bank’s executive vice-president testified only that he knew that Loyd was a co-owner of TriCounty. The Bank’s head cashier testified that he did not know the identity of Tri-County’s officers, directors, or shareholders. The key issue in Aetna was not the position occupied by the employee, but the practice of allowing an individual to deposit checks payable to a corporation in an account other than the account of the designated corporate payee.
The second claimed factual distinction is that the employee in Aetna deposited the moneys into his personal account while Loyd deposited the moneys into a business account. The Earth-born account, however, was not the account of the corporate payee of the checks. Loyd was the only person authorized to sign checks on the Earthborn account, and for all practical purposes it was his personal account. Again, this was not the key factor in Aetna — it was the deposit of the moneys beyond the reach of the corporate payee into an account controlled by the individual. The type of account controlled by the individual was not a decisive factor in Aetna.
Plaintiffs’ expert testified that the Bank’s practice of permitting an individual to deposit checks, made payable to a corporation, in the individual’s own account, was an unreasonable banking practice. The Bank’s expert disagreed, and found this practice entirely reasonable. Though there was disagreement among the experts (and the Bank’s expert seemed to disagree with his prior published writings on the subject), it was the function of the trial court to instruct the jury as to the applicable law. There was no disagreement over the facts of the case, and simply because an expert testifies that he disagrees with the appropriate law is no reason for the trial court to withhold a statement of the law from the jury. The Bank argues that the court’s instruction emphasized one version of the facts over another. The instruction did not emphasize a disputed version of the facts; the facts were undisputed. The instruction only gave the jury a correct statement of the applicable legal principle. We find no error.
Appellant’s sixth point on appeal is its contention that the trial court erred in its jury instruction on the measure of damages. The coürt instructed the jury that the measure of damages for conversion is presumed to be the face amount of each check which was converted “unless you find the amount of the item should be reduced by an amount which could not have been realized by the use of ordinary care.”
K.S.A. 84-3-419(2) provides that in an action against a drawee for conversion, the measure of the drawee’s liability is the face amount of the instrument. In any other action for conversion under 84-3-419(1), the measure of liability is presumed to be the face amount of the instrument. The Bank was not the drawee of the eight checks, and this is not an action against the drawee; therefore, the presumption applies. The trial court’s instruction as to the reduction by an amount which could not have been realized by the use of ordinary care appears to have been taken from portions of the U.C.C. dealing with negligence.
Though the instruction was erroneous, no objection was made to it at trial, and we do not find reversible error. There was no evidence that the checks, at the time of their conversion, were worth less than their face value. Although appellant argues that the instruction improperly limited the evidence which the jury might consider in fixing the value, appellant points only to evidence of later settlements by third parties with the drawer of the checks. This does not refute the presumption. The measure of damages for conversion is the market value of the converted property on the date of conversion. Salem Development Co. v. Ross, 251 Cal. App. 2d 53, 59 Cal. Rptr. 548 (1967); PWA Farms v. North Platte State Bank, 220 Neb. 516, 522, 371 N.W.2d 102 (1985); Associated Bean Growers v. Chester B. Brown Co., 198 Neb. 775, 255 N.W.2d 425 (1977). The rule is stated in 18 Am. Jur. 2d, Conversion § 136, p. 241 as follows:
“The general measure of damages recoverable for the conversion of commercial paper is, as in other cases, the value of the property converted, plus interest thereon. Damages are to be measured by value at the time of conversion.” (Emphasis supplied.)
Further, in the discussion of damages recoverable for conversion under U.C.C. § 3-419, we find the following rule stated in 6 Anderson Uniform Commercial Code § 3-419:29 (3rd ed. 1984):
“The plaintiff in an action to recover for the conversion of commercial paper recovers the face amount as authorized by UCC § 3-419(2) and no reduction is to be made for indemnity received by the plaintiff from another source.”
We conclude that under the evidence in this case, the instruction was not prejudicial or reversible error.
Also, the Bank contends that the court erred in instructing the jury the Bank had the burden to overcome the presumption that the measure of damages is presumed to be the face amount of the checks. We do not agree. The burden of persuading the jury that the damage sustained was less than the face value of the converted checks was properly imposed upon the Bank. This is the general rule. In 18 Am. Jur. 2d, Conversion § 173, p. 264, it is said:
“[A] defendant who claims the actual value [of commercial paper] to be less than the face value bears the burden of introducing evidence to show such fact.”
As its eighth and final point, the Bank contends that the trial court erred in submitting the issue of punitive damages to the jury. The Bank argues, inter alia, that the evidence is insufficient to support a punitive damage award.
We recently discussed at length the rules relating to the allowance of punitive damages. See Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986); Johnson v. Geer Real Estate Co., 239 Kan. 324, 327-28, 720 P.2d 660 (1986); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert denied 469 U.S. 965 (1984). In summary, it may be said that punitive damages are allowed whenever the elements of fraud, malice, gross negligence, oppression, outrageous or vindictive conduct, intentional wrongdoing, or wanton invasion of the rights of the injured party are shown by the evidence. Punitive damages are awarded not because of any special merit in the injured party’s case, but are imposed to punish the wrongdoer because of the grossness of his or her conduct, the purpose being to restrain and deter others from the commission of like wrongs.
The usual rules governing the allowance of punitive damages are applicable in conversion cases arising under the U.C.C. Thus, in Sherrill White Const. v. South Carolina Nat. Bank, 713 F.2d 1047 (4th Cir. 1983), it was held that while punitive damages may be recovered in an action for conversion by payment of checks over a forged endorsement if it is established that the bank acted with malice or with reckless indifference to the rights of the parties, punitive damages may not be recovered where at most the bank was merely negligent. The court said:
“[I]n order to recover punitive damages [in a conversion case] there must be more than mere conversion. There must be ‘malice, ill will, a conscious indifference to the rights of others, or a reckless disregard thereof.’” 713 F.2d at 1051-52.
Finding no evidence except as to ordinary negligence on the part of the bank, the Fourth Circuit reversed the award as to punitive damages.
When a verdict is attacked for insufficiency of the evidence, the duty of an appellate court extends only to a search of the record for the purpose of determining whether there is any substantial competent evidence to support the verdict. The appellate court will not weigh the evidence or pass upon the credibility of witnesses. The reviewing court must review the evidence in the light most favorable to the party prevailing below. Borg Warner Acceptance Corp. v. Kansas Secretary of State, 240 Kan. 598, 603, 731 P.2d 301 (1987); Long v. Deere & Co., 238 Kan. 766, Syl. ¶ 1, 715 P.2d 1023 (1986).
James Loyd maintained a bank account for his oil company, Earthborn Energy, in the State Bank of Stanley. He deposited checks in that account which were made payable to Tri-County Farm Equipment Co. Loyd endorsed the checks on behalf of Tri-County without authority. The Bank did not inquire into his authority to endorse the checks and to deposit them in an account in which Tri-County, the payee, had no interest, but in which Loyd was the sole person authorized to sign checks.
There was evidence that Loyd’s Earthborn account was frequently overdrawn, and the Bank made an effort to encourage Loyd to make deposits in the account and to keep it solvent. There was evidence that Loyd did certain favors for Bank officers, and that the Bank suspected Loyd of check-kiting. The suspected check-kiting, however, was not shown to involve the checks at issue here.
The acts of the Bank, in accepting the Tri-County checks for deposit and in crediting Loyd’s personal business account with the proceeds, were negligent. Loyd, of course, profited from this activity. The Bank profited only in the sense that the deposit of these checks was of some help in covering Loyd’s overdrafts on his personal business account. There is no showing that the Bank was aware of Loyd’s actual and limited authority. Though the evidence is sufficient to support a finding of ordinary negligence against the Bank, we find no evidence which would support a finding of fraud, malice, gross negligence, oppression, outrageous or vindictive conduct, intentional wrongdoing, or wanton invasion of the rights of Tri-County. We hold that the evidence is insufficient to support an award of punitive damages.
The judgment in favor of Tri-County Farm Equipment Com pany and against the State Bank of Stanley in the amount of $186,615.06, being the amount of the eight checks, plus prejudgment interest to date of judgment in the amount of $61,837.43, as allowed by the trial court, is affirmed. The judgment in favor of Tri-County for punitive damages of $76,000, and the judgment in favor of Gene R. Mohr in the total sum or $98,197.77, are reversed. | [
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|
The opinion of the court was delivered by
Holmes, J.:
Plaintiff, Kenneth Burkhart, Jr., appeals from the dismissal of his personal injury lawsuit filed against his father, Elred Burkhart; his brother, Ron Burkhart; Philsco Products Company, Inc. (Philsco); and Powerline Nylon Tow Ropes, Inc. (Powerline).
As all parties apparently concede that discovery was incomplete or that additional discovery was advisable, the facts underlying the appellant’s case will be stated very briefly. On October 6, 1981, plaintiff was helping his father and brother on the family farm. Kenneth was driving a John Deere 4010 tractor which became stuck in a rut. He sought assistance from his brother Ron, who was also operating a tractor. Ron threaded a chain around the front axle of Kenneth’s tractor and through the loop on one end of a tow rope. At the other end of the rope, Ron put a clevis through the loop and dropped a pin through the clevis and the draw bar on his tractor. Ron proceeded to pull Kenneth’s tractor from the rut when “the hitch pin failed or the clevis separated causing the clevis to be propelled like a slingshot into Plaintiffs head.” Kenneth suffered severe injuries, including the loss of sight in one eye and permanent brain damage. He is now an incapacitated person and this action was filed on his behalf by his legally appointed conservator.
The basis for Kenneth’s claims is that the nylon tow rope was unreasonably dangerous and had dangerous propensities known to Powerline, the alleged manufacturer, and to Philsco, the alleged distributor. Plaintiff asserts there was an inadequate warning of the dangers inherent in using the rope and also asserted claims against the corporate defendants based upon negligent design and manufacture of the rope and breach of warranty. The Burkhart defendants were charged with negligent use and hookup of the rope and failure to warn of the danger inherent in the rope. The crux of the lawsuit, however, appears to be a failure to provide an adequate warning.
Following considerable discovery by way of interrogatories and requests for admissions, two pretrial conferences were held by the court. At the end of the second pretrial conference the court, sua sponte, dismissed plaintiffs case, with prejudice, stating:
“I’m going to enter an order dismissing the case for the reason that at the time of the pretrial plaintiff s counsel has put before the Court insufficient facts upon which a jury verdict could be supported.”
Plaintiff has appealed the order of dismissal with prejudice. We reverse.
Plaintiff asserts two issues on appeal: (1) The trial court improperly conducted the pretrial conferences, and (2) the trial court abused its discretion in dismissing plaintiffs case. In addition to the stated reason for dismissal, it appears from a review of the transcripts that the court was also dismissing the case for failure on the part of plaintiff to make discovery. The dismissal was based upon plaintiff s failure to produce reports from his expert witnesses after being ordered to do so and plaintiff s inability to state the name of a particular person or persons who would testify that the nylon tow rope was manufactured by Powerline and distributed by Philsco. The rope was purchased by Elred Burkhart from the Kinsley Co-operative which sold Powerline ropes along with other ropes, some of which were purchased through Philsco. Plaintiff, at the pretrial conferences, was unable to state that he had a witness who could positively testify that the rope in question was a Powerline product distributed by Philsco. Plaintiff asserts several complaints about the trial court’s procedure at the pretrial conferences, all but one of which apply only to the initial conference.
Pretrial conferences are controlled principally by K.S.A. 1986 Supp. 60-216 and Supreme Court Rule 140 (235 Kan. cix). The statute was amended in 1986 but the amendment is not directly involved here. The statute provides in part:
“In any action, the court shall on the request of either party, or may in its discretion without such request, direct the attorneys for the parties to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The trial of issues of law the determination of which may eliminate or affect the trial of issues of fact;'
(3) The necessity or desirability of amendments to the pleadings;
(4) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(5) The limitation of the number of expert witnesses;
(6) The advisability of a preliminary reference of issues to a master;
(7) Such other matters as may aid in the disposition of the action.
The court in its discretion may, and shall upon the request of either party make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.”
The 1986 amendment adds a subsection (b) which sets forth specific sanctions which may be applied for failure to comply with the pretrial procedures. Supreme Court Rule 140 sets forth in more detail the procedure and objectives of the pretrial conference. In Tillotson v. Abbott, 205 Kan. 706, 472 P.2d 240 (1970), we stated the purpose of the pretrial conference:
“The pre-trial conference and the order entered thereon are an important part of the procedural process. They áre provided to acquaint each party in advance of trial with the factual contentions of the opposite parties as to matters in dispute. The opportunity for maneuver and surprise during the trial is reduced. As a result of the pre-trial conference all parties are better able to prepare their testimony on the issues to be tried.” p. 709.
The trial court has broad discretion in the handling of the pretrial conference.
Two pretrial conferences were held in the present case. Plaintiff s procedural complaints are directed primarily to the first conference held April 19, 1985. At the outset it should be noted that much of the confusion in this case could have been avoided if the trial court had followed the mandate of Supreme Court Rule 140(e) that “[t]he court shall prepare the pretrial order or designate counsel to do so.” Many of the issues on appeal hinge on what the court “ordered” at the first pretrial conference as interpreted by the parties. No written pretrial order was ever prepared and resort must be made to the transcripts to determine what the court may have intended. Plaintiff throughout these proceedings has been represented by Michael J. Friesen and Phyllis Wendler of Garden City. Ms. Wendler appeared at the first pretrial conference.
Plaintiff first contends that the trial court abused its discretion in ordering that plaintiffs deposition be taken by a medical doctor selected by the defendants. The record reflects, however, that the court did not order that the deposition be so taken; rather, the court merely suggested it as a means of deposing the plaintiff under adverse conditions. The court’s suggestion was in response to the expressed concern of Lee Turner, counsel for the Burkhart defendants, regarding potential hearsay statements made by plaintiff to his medical doctors and Ms. Wendler’s concern for the health and welfare of her client. Plaintiff apparently suffered severe brain damage, had been adjudicated an incapacitated person, and was in need of constant professional care and attention. Plaintiffs counsel advised the court that plaintiff would not be able to testify at trial and the court was faced with the dilemma of the plaintiff s doctors possibly testifying as to statements from the plaintiff and how to adequately assess the reliability of such hearsay statements. The court stated:
“THE COURT: What I would consider doing in this case, Mr. Turner, is — would be to request that all defendants hire a medical doctor to video tape and take the deposition of this witness, before I expose him to all the attorneys.
“MS. WENDLER [counsel for plaintiff]: You mean to be examined to see whether he is competent?
“THE COURT: You hire a doctor to go in there and video tape an interview with the plaintiff, the injured person.
“THE COURT: We don’t need to explain about his condition at this point. You’re going to want to get in statements that he has made. I’m going to want to know whether or not those statements should be allowed in or whether or not they are made up by some physician. By having a medical doctor question him as to his story, I’m going to be able to have an idea of the reliability of hearsay statements.
“THE COURT: I’m not saying that his video tape deposition at this point is going to be admitted. I want to know whether or not the hearsay statements are reliable hearsay to go to the jury.”
During these proceedings, counsel for Philsco and Powerline made it clear they did not want to depose the plaintiff by doctor, counsel, or otherwise. Nothing further came of the issue and the question of whether the court “ordered” that plaintiff s deposition be taken by a doctor was not an issue at the second pretrial conference when the case was ultimately dismissed. We do not construe the judge’s suggestions as an order. Although somewhat unusual, it appears the court was seeking some solution to the potential hearsay problem which might arise and at the same time shield plaintiff from possible adverse reaction to the customary deposition procedure. As no “order,” written or oral, was made on the issue and as it was not a basis for the dismissal we cannot say the suggested procedure constituted an abuse of discretion, regardless of how extraordinary it may have been. Counsel for the Burkhart defendants evidently made no subsequent attempt to take the plaintiff s deposition.
Plaintiff next contends that the court abused its discretion in ordering plaintiff s counsel to make a formal opening statement to a “make-believe” jury at the pretrial conference.
After counsel for one of the defendants asked for evidence linking his client to the accident, the following discussion took place:
“THE COURT: Look, if this is a pre-trial the first thing I do at a pre-trial, Miss Wendler, is stand you up and make you give me an opening statement. Can you give me an opening statement of what your evidence will show?
“MS. WENDLER: I suppose I could give you an abbreviated one.
“THE COURT: If you give me a complete opening statement then Mr. Berscheidt’s questions will be answered, right?”
Later the court stated:
“THE COURT: What I want is an opening statement for the pre-trial, you know, make believe the jury is sitting over there, give them an opening statement.
“MS. WENDLER: As far as names, Your Honor, I’m afraid I’d have to — (interrupted)
“THE COURT: So, you aren’t ready for pre-trial today because you don’t know who your witnesses are.”
Supreme Court Rule 140(g)(1) provides:
“(g) The pretrial conference will be conducted substantially in conformity with the following procedural steps:
(1) Plaintiff will state concisely his factual contentions and the theory of his action.”
The court was attempting to ascertain whether plaintiff had any evidence which would show that the tow line used at the time of the accident was manufactured by Powerline and distributed by Philsco. We think the demand that counsel make a “jury opening statement” was overly broad and certainly more extensive than required by the statutes or Rule 140. The court appears to have been trying to make the point that if a complete statement was made, all parties could then proceed with a full understanding of the case and the contemplated evidence. Plaintiff complains on appeal that no such demands were made of the defendants; however, the proceedings never progressed to the point where defendants were required to state their positions. Again, as this issue was not a crucial element in the dismissal of the case, no error is found in the procedure followed even though it appears from the record to be somewhat harsh and demanding.
Plaintiff further contends that the court abused its discretion in requiring plaintiff to prove the origin of the rope through the testimony of witnesses rather than through the use of documentary evidence. Although it is not clear, plaintiff is apparently referring to the fact that after counsel for defendant Philsco inquired as to any evidence plaintiff had linking Philsco to the tow rope in question, the following colloquy took place:
“MS. WENDLER: Powerline manufactures ropes, the raw material, they put the hooks on it, they distribute it to Mr. Berscheidt [counsel for Philsco],
“THE COURT: What witnesses will say that?
“MS. WENDLER: It will be shown by invoices as well as the chain of distribution will show — (interrupted)
“THE COURT: We do not have witnesses we have documents that say this rope ties in Mr. Berscheidt’s clients. Do you have documents that show that, right?
“MS. WENDLER: Uh-huh.
“THE COURT: Have you seen that document, Mr. Berscheidt?
“MR. BERSCHEIDT: I have a document — we have documents showing that we have sold to Kinsley Co-op Nylon tow ropes, Philsco has. We also have evidence that the Kinsley Co-op purchased nylon rope from a number of distributors and various brands and no one can identify that nylon rope. . . .
“THE COURT: What other evidence do you have to show it is Philsco’s rope? The invoices, will Mr. Burkhart testify that it was Philsco’s rope?
“MS. WENDLER: Mr. Burkhart can’t testify.
“THE COURT: Do we have anyone who can say that that is Philsco’s rope?
“MS. WENDLER: Well, the people at the Kinsley Co-op.
“THE COURT: Which person there will say it is Philsco’s rope?
“MS. WENDLER: I really couldn’t say which one, I know we talked to some of them.”
We believe the plaintiff has misinterpreted the court’s statements. We find no indication on the court’s part that documentary evidence would not be acceptable at trial. It appears the court was attempting to elicit the relevant sources of information that would tie the corporate defendants to the particular tow rope in this case. We do not consider the court’s statements at this point as precluding proper proof of the source of the rope, whether oral or documentary in nature, but more in the nature of an attempt to pinpoint the evidence. As such, it was not an order precluding documentary proof and the complaints of the procedure on this issue are without merit.
The next issue is one which appears to have contributed to the ultimate dismissal of this action. At the initial pretrial conference, plaintiffs counsel indicated that several experts would testify at trial in the fields of rope identification, what constitutes an adequate warning, economic factors relating to damages, farm accidents related to tow ropes, metallurgy, and perhaps others. In addition, numerous medical doctors and experts had been listed in response to interrogatories. None of the experts had been deposed by the defendants and plaintiffs counsel was not definite in her identification of the experts. Defense counsel asked the court to order plaintiff to provide reports from each expert which plaintiff intended to call at trial. Counsel for plaintiff then advised the court that she had no reports or written statements from the proposed experts, that she had not intended to secure reports, and that defendants could take depositions of the expert witnesses. Evidently the proposed experts had been used by plaintiff s counsel before in similar litigation and she and Mr. Friesen knew the nature of their proposed testimony. Counsel also pointed out to the court that plaintiff was without funds and was cared for by social security and government assistance. Defense counsel, showing uncharacteristic concern for the expense that might be incurred by their respective clients, insisted that the court order plaintiff to obtain the reports. The court then ordered that plaintiff s counsel furnish a complete report from each expert who would testify and that if any of the reports were not deemed satisfactory or sufficiently complete, the expert providing such a report would be precluded from testifying and plaintiff would be limited to using the insufficient report. The reports were to be submitted to defense counsel by July 1, 1985, at which time a second pretrial conference would be held. We interpret the judge’s remarks in this regard to be a definite order although, as previously stated, no written order was ever prepared or “entered” as contemplated by K.S.A. 1986 Supp. 60-216(a) and as required by Supreme Court Rule 140.
The reports of plaintiff s experts were never obtained, with one exception, and, at the second pretrial conference finally held November 15, 1985, such failure was an obvious factor in the dismissal of the lawsuit. More will be said about the November pretrial conference later in this opinion. Plaintiff asserts the trial court abused its discretion in directing the plaintiff to provide the expert witness reports, that the oral directions of the court did not constitute a proper order pursuant to the statutes and rules and, as the order was never “entered,” plaintiff did not have to comply with it. It is also asserted that requiring plaintiff to furnish reports for defendants when the witnesses were available for depositions is not contemplated by the statutes and rules and constituted an abuse of discretion. We do not agree that such a procedure is unavailable or that its use, if properly conducted, constitutes an abuse of discretion.
The purpose of the pretrial conference and discovery is to eliminate the element of surprise from trials and to simplify the issues and procedure by full disclosure to all parties of the anticipated evidence, and factual and legal issues, and to consider “[s]uch other matters as may aid in the disposition of the action.” K.S.A. 1986 Supp. 60-216(a)(7). The statutes and rules governing discovery and pretrial.procedures are to be broadly construed to accomplish their intended objectives. K.S.A. 1986 Supp. 60-226 sets forth several procedures available in making discovery. This statute was also amended in 1986 but the amendments do not affect the issues herein. Subsection (b) of the statute provides in part:
“(4) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
“(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, (ii) Upon motion the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subsection (b)(4)(C), concerning fees and expenses as the court may deem appropriate.” (Emphasis added.)
Subsection (b)(4)(C) provides:
“(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subsections (b)(4)(A)(ii) and (b)(4)(B); and (ii) with respect to discovery obtained under subsection (b)(4)(A)(ii) the court may require, and with respect to discovery obtained under subsection (b)(4)(B) the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.” (Emphasis added.)
Considering the broad general scope and purpose of discovery, we think the use of expert reports in lieu of depositions or other methods of discovery is an acceptable method of pursuing “further discovery by other means.” However, here the trial court should have ordered the fees and expenses to be paid by defendants. Again, if a proper written order had been prepared, all parties would have been informed as to what exactly was required. It is true that the record does not reflect any request by plaintiff for an order allowing fees and expenses, but such should have been a part of the original order of the court.
Finally, plaintiff complains that the defendants were allowed to turn both pretrial conferences into a fishing expedition. Plaintiff s basic objection is that the repeated requests by counsel for Philsco and Powerline for evidence that would tie the rope used at the time of the accident to them, and the court’s insistence that plaintiff provide such evidence, constituted a fishing expedition. As stated by plaintiff in his brief, “[r]ather than conduct formal discovery utilizing proper discovery procedure, the defendants sought to conduct their discovery during the pretrial conferences which the court allowed.” In 6 Wright and Miller, Federal Practice and Procedure: Civil § 1525 (1971), the authors in discussing Fed. R. Civ. Proc. 16, the counterpart of K.S.A. 60-216, state:
“There are some functions that the pretrial conference is not designed to perform. Rule 16 may not be used solely as a fishing device, or to enable one party to make use of his opponent’s trial preparation, or as a discovery proceeding. Rather than being a game of hide and seek, the conference should be an open interchange between opposing counsel that is designed to program the best possible trial on the merits.” (Emphasis added.)
In 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-216 (1979), the comments reflect, however, that an early preliminary discovery conference serves an important function:
“It should be noted that Rule 140 does not preclude the holding of preliminary conferences before discovery has been completed, and informal conferences are indeed helpful if not necessary during the discovery stages to expedite discovery and narrow the issues so as to make some discovery by other means unnecessary. The rule is directed at the decisive conference where the issues are finally determined and the pretrial order is settled upon to determine the course of the trial.
“In fact the Kansas Supreme Court has seen the advantages of an early conference and its Rule 136, applicable to district courts, requires a ‘discovery conference’ to be held upon request or upon the court’s own initiative. Such a request in a damage action has the effect of limiting the taking of depositions until after the discovery conference has been held except on stipulation or affirmative order of the court.
“The advantage of holding an early conference is two-fold. It brings the parties together before burdensome and perhaps unnecessary depositions and other discovery processes have been resorted to, often resulting in fruitful settlement negotiations at an earlier stage than might be possible other-wise. Furthermore, the conference itself should be used as a means of discovery. Often information can be obtained at the conference which otherwise could be obtained only by interrogatories or depositions. Thus the need for discovery can be developed at the conference, and if the conference results in the disclosure of the desired information, expensive discovery by other routes can be avoided to the benefit of the parties.” p. 106.
One of the problems in the instant case is that it appears the court never really had control of the proceedings. A large portion of the proceedings was dominated by aggressive defense counsel and the proceedings took on the posture of a discovery conference rather than an actual pretrial conference. See Supreme Court Rule 136 (235 Kan. cvi). All counsel apparently were of the opinion that additional discovery was necessary and that the case was not really ready for a final pretrial conference. Viewing the initial conference as a discovery conference, the request that plaintiff furnish the factual basis for his claims and the evidence he would rely upon was not unreasonable. Plaintiff s complaints that the two conferences were turned into fishing expeditions for the benefit of the defendants lacks merit.
We now turn to the pretrial conference of November 15, 1985, and the actual dismissal of the case which led to this appeal. Plaintiff was represented by Michael J. Friesen at the second conference and two principal problems immediately arose.- Mr. Friesen had failed to obtain reports from all but one of his expert witnesses and took the position that he did not have to comply with the court’s oral directions from the first pretrial conference as there was no written pretrial order and, in any event, the plaintiff should not be required to do the defendants’ discovery. The second issue which immediately created problems between Mr. Friesen and the court was the inability of Mr. Friesen to specifically name a witness or witnesses who would testify that the rope in question was manufactured and distributed by the corporate defendants. This set the stage for what appears from the record to have been an adversarial proceeding involving Mr. Friesen and the court, with defense counsel adding fuel to the fire.
Mr. Friesen was adamant that he did not have to furnish reports from his expert witnesses or prove his case by specific witnesses who could definitely identify the rope. His position was that if defendants wanted to know how he would prove his case they could “[c]ome to the trial to find [out].” Counsel for the Burkhart defendants was insisting upon a report from one of plaintiffs experts when the following exchange took place:
“THE COURT: Mr. Turner, at this point Mr. Friesen’s position is there are the names of the people, I don’t have to give you anything. I’m going to put my evidence on and then you come — -and you come to the defense of it. Do I understand that’s where you’re operating from, Mr. Friesen?
“MR. FRIESEN: Yes, sir.
“THE COURT: And he doesn’t have to give you [Mr. Turner] anything else.
“MR. FRIESEN: I think they’re entitled to ask him [the expert witness]. I certainly don’t quarrel with their right to take his deposition .... I don’t think I’m required by affidavit or letter or report. I know I’m not, there’s no authority.
“THE COURT: You don’t really have to tell us at pretrial in order to show that you have enough evidence to take it to a jury ? Don’t you — don’t you even have to do that? Right?
“MR. FRIESEN: That’s right.
“THE COURT: Okay. And we will simply wait until the plaintiff puts on [his] case and then know whether or not we have enough to let it go ahead, right?
“MR. FRIESEN: That’s right.
“THE COURT: You don’t really have to give us any information up until that point, right, Mr. Friesen?
“MR. FRIESEN: I give you the information that’s required by Rule 140, yes, sir, I have to do that.”
Later in the proceedings the following transpired:
“THE COURT: Do we have a witness that can say that this rope was manufactured on October 5, 1983?
“MR. FRIESEN: Would you need that?
“THE COURT: Do you have anyone on the identity of the rope, Mr. Friesen?
“MR. FRIESEN: Sure, but down to the absolute individual rope, absolutely not.
“THE COURT: You know, I’d like to try this lawsuit but I don’t know about it yet — enough about it after you — after our second pretrial. You know, I’m down to the point, Mr. Friesen, where because you want to keep your case a secret, I think I’m going to be forced to throw it out.
“MR. FRIESEN: On what basis?
“THE COURT: On the basis that you have insufficient facts known to the Court now to go to a jury.”
At that point all defense counsel reiterated more discovery was necessary and suggested the plaintiff be given additional time to furnish reports from his expert witnesses and if not done, then the court should consider dismissing the case. The court then ruled:
“THE COURT: I can see no reason to drag this case any further, Mr. Friesen. You know we had an earlier pretrial, there’s a transcript of that. To continue it for another 30 days will be a waste of time. I’m going to enter an order dismissing the case for the reason that at the time of the pretrial piaintifF s counsel has put before the Court insufficient facts upon which a jury verdict could be supported.”
The court then went on to state the dismissal was with prejudice. The journal entry of judgment approved by the court expanded somewhat on the court’s oral ruling. It stated in part:
“[T]he Court dismissed plaintiff s Petition against the defendants, with prejudice, for the following reason:
1. Failure to provide the Court with sufficient factual information to allow the Court to determine whether this matter should be submitted to a jury.
“. . . As part of this Journal Entry the Court incorporates herein all statements and findings made by the Court during the Pretrial Conferences as they appear in the transcript.”
On appeal, plaintiff asserts that the action of the trial court in dismissing his case with prejudice was tantamount to granting summary judgment when there remained disputed issues of fact and at a time when all parties conceded discovery was incomplete, and therefore the dismissal was premature and constituted an abuse of the trial court’s discretion. Defendants, on the other hand, assert that the dismissal was justified as a sanction for plaintiff s failure to make discovery and his refusal to comply with a direct order of the court made at the first pretrial conference. A careful study of the transcripts of both pretrial hearings leads to the conclusion that the dismissal was, in effect, a sanction for failure to make discovery based upon the failure to furnish expert witness reports and that the case was also dismissed due to what the court conceived to be a fatal flaw in plaintiffs case.
As pointed out earlier, the use of reports from expert witnesses is an acceptable alternative to the more customary methods of discovery but if such a procedure is to be required, the court should make appropriate orders to assess the expense thereof to the requesting party. Here no such order was forthcoming and we think the court erred in ordering plaintiff to obtain and produce such reports without also ordering defendants to pay the expenses in connection therewith. See K.S.A. 1986 Supp. 60-226(b)(4)(C).
We also are of the opinion that the trial court erred in dismissing the action because “plaintiffs counsel has put before the Court insufficient facts upon which a jury verdict could be supported” and as a sanction for not making discovery. Where discovery has not been completed and there are disputed questions of fact, it is not the function of a trial court at a pretrial conference to rule that a party’s proposed evidence is insufficient as a matter of law. We appreciate the court’s concern about what it perceived as an inability to prove an essential element of plaintiff s case. However, on the state of this record, we cannot agree that the only way plaintiff could make a submissible case was to produce a witness who would categorically identify the Burkhart rope as a product of the corporate defendants. The record does not reflect what documentary evidence was to be produced. Counsel for Philsco contended that the depositions of the Burkhart defendants proved the rope did not come in a Philsco package. What evidence plaintiff might have had to the contrary or whether the deposition testimony would stand up on trial are matters of speculation at this time. Without going into detail, we think it quite possible that plaintiff might produce sufficient evidence to allow a jury to determine whether the Burkhart rope came from the corporate defendants without specific testimony that the rope was actually manufactured and distributed by them. In any event, a determination that plaintiff s proposed case was insufficient as a matter of law was premature when all parties concede that discovery was incomplete and there remained controverted questions of fact as well as law.
Was the dismissal justified as a sanction for failure of the plaintiff to make discovery? We think not. We recognize that dismissal is in some instances appropriate. K.S.A. 60-237(b)(2) provides in part:
“(2) Sanctions by court in which action is pending. If a party or an officer, director or managing agent of a party or a person designated under K.S.A. 60-230(b) or 60-231(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this section or under K.S.A. 60-235, the judge before whom the action is pending may make such orders in regard to the failure as are just, and among others the following:
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” (Emphasis added.)
The dismissal of a lawsuit and its equally severe sanction of granting a default judgment, while appropriate in certain circumstances (see Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 [1982]; Independent Mfg. Co. v. McGraw-Edison Co., 6 Kan. App. 2d 982, 637 P.2d 431 [1981]; Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 578 P.2d 1138, rev. denied 225 Kan. 843 [1978]; Prather v. Olson, 1 Kan. App. 2d 142, 562 P.2d 142 [1977]), should only be utilized as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end.
In Vickers v. City of Kansas City, 216 Kan. 84, 531 P.2d 113 (1975), we reversed an order of the district court which dismissed plaintiff s case for violation of a discovery order. In the opinion we stated:
“It is an elementary principle of law that the purpose of discovery rules is to provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses; to make available, in a simple, convenient, and inexpensive way, facts which- otherwise could not be proved except with great difficulty; to educate the parties in advance of trial as to the real value of their claims and defenses; to expedite litigation; to safeguard against surprise; to prevent delay; to simplify and narrow the issues, and to expedite and facilitate both preparation and trial. (23 Am. Jur. 2d, Depositions and Discovery, § 156, p. 493.)
“The legislature of our state had seen fit to promulgate discovery rules and regulations by the passage of K.S.A. 60-226 through K.S.A. 60-237. Throughout the statutory procedure the trial court is vested with large amounts of discretion in its direction of pre-trial discovery. Likewise, the trial court is vested with considerable discretion in the enforcement of its previously issued discovery orders and in the assessment of sanctions against noncomplying parties.
“K.S.A. 1973 Supp. 60-237 provides to a trial court a series of sanctions, varying in severity, which the court may use against parties unjustifiably resisting discovery. (See, B. F. Goodrich Tire Company v. Lyster, 328 F.2d 411 [5th Cir. 1964].)” p. 90.
In discussing the provisions of K.S.A. 60-237, which authorizes sanctions for failure to make discovery, the court said:
“The statute specifies that a judge ‘may make such orders in regard to the failure [to comply] as are just.’ This language on its face compels the conclusion that the legislature intended to vest discretion in the trial judge to decide among the various alternative orders available to him, and to choose the most appropriate sanction suitable to the history and circumstances of the case before him.” p. 91.
“Rules of procedure are a means of attaining justice and not an end to justice. In final analysis, a court has a responsibility to do justice between man and man. General principles cannot justify denial of the parties their day in court except upon a serious showing of willful default (Gill v. Stolow, 240 F.2d 669 [2d Cir. 1957]).
“Where a party fails to comply with a production order in the course of discovery proceedings, the trial court is required in the exercise of its power of judicial discretion to determine which of the variety of available sanctions it will impose by its judgment. In making this determination the trial court should consider whether or not the documents to be produced go to a dispositive issue in the case, and whether the party seeking discovery may therefore be protected by the imposition of a sanction short of dismissal. (Bernat v. Pennsylvania R. Co., 14 F.R.D. 465, [E.D. Pa. 1953].) Another factor to consider in making this determination is whether the party ordered to produce has failed to comply due to his inability to comply with the order, and not due to willfulness or bad faith.” p. 93.
In the instant case we are of the opinion that the court’s order relative to obtaining and producing reports from all expert witnesses could have been enforced by less drastic sanctions. For example, the court could have ordered that, upon failure to produce the reports, the defendants would be authorized to take the depositions of the expert witnesses, with all fees and costs thereof assessed to plaintiffs counsel. On the other hand, as previously pointed out, any order for reports not already in existence should have included provisions for defendants to pay the fees and expenses of obtaining such reports. Most of the cases in which a dismissal or a default judgment have been held proper sanctions involve parties who refuse or fail to follow a discovery order. Here, plaintiff is an incapacitated person without ability to control any stage of the proceedings or to assist or direct his attorney. To deprive plaintiff of his day in court for the actions of his attorney, when other lesser sanctions may have been sufficient, constitutes an abuse of the trial court’s discretion.
The dismissal for failure of plaintiff to designate a specific witness who would testify that the rope was produced and distributed by Powerline and Philsco was simply an error as to the evidence necessary to allow a case to go to the jury. In addition, the standard applied requiring specific evidence of every fact to be proved at trial was erroneous and overly strict. Discovery, for whatever reason, was not complete; there were obvious disputed questions of fact, and the case was not at a proper stage to be summarily dismissed. Upon completion of discovery, a motion for summary judgment pursuant to the statutes and rules may be appropriate but not at this point of the proceedings.
Finally, we do not condone Mr. Friesen’s attitude and his apparent disdain for the discovery process as reflected by the record. With a more cooperative attitude, this entire appeal could have been avoided and the case disposed of on its merits long before this. The court’s frustration with counsel is readily understandable and sanctions directed to counsel rather than the plaintiff may have been entirely appropriate.
The judgment of the district court is reversed and the case is remanded with directions to set aside the dismissal and for further proceedings consistent with this opinion.
Miller, J., concurs in the result. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from an award of the commissioner in a workmen s compensation case where the workman died as a result of a coronary thrombosis which it was claimed arose out of and in the course of his employment. Respondents appealed to the district court, which affirmed the award of the commissioner, and the appeal to this court followed.
Alan Dewey Burns, the deceased workman, had no dependents entitled to weekly payments of compensation and the award of the commissioner provided for payment of medical expenses in the amount of $374.00, funeral allowance of $450.00 to be paid to the decedent’s estate, and for payment of $500.00 to the second injury fund.
Our attention is first called to a motion of the claimant, appellee here, who is the married daughter of decedent, to dismiss the instant appeal of the respondents for the reason that the filing of the written notice of appeal with the clerk of the district court within twenty days after the final order of the district court was not sufficient to make and perfect the appeal because the notice of appeal was without acknowledgement of service, without waiver of proof, and without proof of service. The short and simple answer to this contention is that we do not borrow from the code of civil procedure in the determination of a workmen s compensation proceeding and the notice of appeal herein was sufficient under G. S. 1959 Supp., 44-556. In Souden v. Rine Drilling Co., 150 Kan. 239, 92 P. 2d 74, the following appropriate statement was made:
“The workmen’s compensation act is a comprehensive enactment, complete in itself, with a simplified procedure designed to speed the settlement of claims and avoid the delay as well as the expense of litigation. The rules of the civil code are not applicable to compensation proceedings.” (p. 241.)
Substantially the same statement has been made in numerous subsequent cases and a repetition of all the citations would only be burdensome to this opinion. The result is the motion of appellee to dismiss the appeal is overruled.
Decedent 'was a truck driver for the board of county commissioners of Kearny county in the road department and on February 28, 1959, between 7:00 and 8:00 a. m., in accord with his usual duties, he was servicing his truck preparatory to hauling some sand. These duties included checking the tires, filling the gas tank, and checking the oil and water. In the latter two duties* he would have to lift the spring-loaded hood of the truck with a little shove. According to Bill Fross, a fellow employee, decedent had reached the point of putting oil in the truck because when Fross later returned to the truck, after having taken decedent to the hospital, the filter oil can was still in the spout of the truck and the hood was open so that it was while decedent was putting oil in the engine that he left the truck, went from the yard into the shop where Bill Fross and another employee were at the time, and told them he “wasn’t feeling good.’’ He was pale but Fross testified he did not think he was in too bad a shape because he “didn’t look too bad.” On the suggestion of Fross, decedent went into the office and sat down in a chair for approximately thirty minutes. Fross went outside and he and a Mr. Oakley were standing just outside the door when de cedent came out of the office and stated that he felt better but after standing there a couple of minutes he said, “Somebody help me, I am going to faint [or collapse].” The witness was not certain which word decedent used. Fross and Oakley grabbed decedent who said, “Somebody take me to a doctor,” and after they had started, he said, “You better take me to the hospital,” which they did. Fross stayed with decedent until Doctor Sabo arrived.
In getting into the car en route to the hospital decedent complained of his right arm and his chest hurting him. He was in lots of pain and there were tears coming out of his eyes.
Patricia L. Jones, daughter of decedent and sister of claimant, testified as to the amounts of the bills of the Kearny county hospital, of Doctor R. A. Sabo, and of the Davis Funeral Home and also testified she visited her father in the hospital about twenty minutes before 8:00 a. m. on February 28,1959. She asked him what had happened and he told her he had been putting oil into a truck when he had this awful pain. He got down and sat in the truck for a while. Later that day and on the next day Patricia had further conversations with her father.
On cross-examination Patricia testified he told her about going in and sitting in the office and then a second pain, or another one, hit him when he got up and the men caught him. He had said, “Get me somewhere.” He had not told her that after the first pain he had asked somebody to take him to the hospital but had only made that request after the pain had hit him just outside the door of the office.
No autopsy was performed in this case.
On March 5, 1959, at approximately 1:35 p. m. decedent died as a result of anterior coronary infarction which cause of death was determined by x-rays, electrocardiograms, and transaminase tests given him in the interim between February 28 and March 5, 1959. Doctor Sabo, who stated he treated between twenty and twenty-five coronary patients a year, testified that these tests were sufficient to substantiate his opinion that the work decedent had done on the job the morning of February 28 had precipitated the attack. There was much more testimony by Doctor Sabo in regard to his opinion as to the cause of death — on both direct and cross-examination and on redirect and recross-examination — which brought out the fact that he had been a physician and surgeon since 1943 and also that he had treated decedent since January 26, 1952, but his records showed no coronary complaints or symptoms or that decedent had ever been examined by him for such symptoms.
Appellants’ witness, Doctor Gary B. Wood, testified he had practiced medicine since 1946 and had specialized in internal medicine since 1952. He took a directly opposite view of the cause of death from that taken by Doctor Sabo by testifying that physical exertion has a very unimportant part to play in the onset of a coronary thrombosis.
Both doctors were subjected to very thorough and capable direct and cross-examination by counsel in this case. The commissioner heard the witnesses, made the award and decided the only issue involved which was whether the employee sustained personal injury by accident arising out of and in the course of his employment. He did so find and further found that this aggravation of a pre-existing condition resulted in decedent’s death on March 5, 1959. The respondents below, appellants here, and their insurance carrier were ordered to pay the Kearny county hospital in Lakin $299.00; to pay Doctor Sabo $75.00; (G. S. 1949, 44-513) to pay to decedent’s estate funeral benefits in the sum of $450.00 under G. S. 1957 Supp., 44-510 [2] [d], then applicable; and awarded $500.00 to the workmen’s compensation commissioner for the second injury fund pursuant to G. S. 1949, 44-570. The commissioner further found that decedent had no dependents fully or in part dependent upon him but that the limitation of compensation to $750.00 provided in G. S. 1959 Supp., 44-510 (2) (a) did not apply to funeral expenses or to the second injury fund and made his award accordingly.
As previously mentioned, respondents appealed to the district court and that court, after examining the files and briefs of the parties, affirmed and adopted as its own the findings of fact and conclusions of law made by the commissioner as well as the award of compensation, and it is from that judgment the respondents have here appealed.
The first point set up in the specifications of error is that the trial court erred in finding that decedent sustained an accidental injury arising out of his employment which resulted in his death. Both parties cite and rely on Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676, and Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197, to the effect that this court will not examine the facts in a compensation case for the purpose of reweighing them in an effort to arrive at a conclusion and result different from that arrived at by the trial court but the contrary is true. This court examines the record only to ascertain if there is any substantial competent evidence to support the findings made by the trial court. As recently stated in Price v. McSpaden, 188 Kan. 578, 363 P. 2d 533, in quoting from Weimer v. Sander Tank Co., 184 Kan. 422, 337 P. 2d 672,
. . it is the function of the trial court not that of the appellate court to pass upon the facts. . . .’ (p.425.) (Our emphasis.)” (p. 581.)
Continuing further, the opinion in the Price case reiterated the proposition that whether a judgment is supported by substantial competent evidence is a question of law, as distinguished from a question of fact. This claimed specification of error by appellants must be taken to mean they believe there is no evidence of a competent and substantial nature which sustains the finding of the trial court affirming and adopting the commissioner’s findings and award, but to substantiate their contention, appellants state that on direct examination Doctor Sabo testified that,
“. . . in his opinion strenuous exercise could precipitate an attack such as the one involved in this case, and that in his opinion the duties of decedent performed the morning of his death precipitated his attack.”
The foregoing statement just does not support this contention of appellants. They also contend that on cross-examination the testimony of Doctor Sabo was reduced to nil by reason of some of the answers given in response to questions propounded to Doctor Sabo by appellants’ counsel. We concede that had such taken place in the trial court and the trial court had denied compensation on the record, then an entirely different situation would have been presented to this court on appeal. However, appellants would have us believe that this court, by comparing Doctor Sabo’s testimony with Doctor Woods’ testimony, would conclude that Doctor Woods is an expert to be fully believed and Doctor Sabo is not to be believed. Such comparison is not within the jurisdiction of the appellate court under our many decisions wherein we have stated that determination of the facts is a matter for the trial court along with the credibility of the witnesses and weight to be given to their testimony. One thing is apparent from the record and that is both doctors who testified herein proved their expert ability under strict cross and recross-examination but after close examination thereof, we cannot say that Doctor Sabo’s testimony was of such nature as to weaken his direct opinions and statements in regard to the cause of de cedent’s death, and that what happened on the morning of February 28, 1959, in the garage, yards, and office of the Kearny county road department while decedent was carrying out the duties of his employment was that he suffered injury by accident which arose out of and in the course of his employment resulting in his death on March 5, 1959.
In regard to a contention of error based on the allowance of $500.00 payable to the second injury fund, the trial court merely ordered what was mandatory under G. S. 1949, 44-570 which, in pertinent part, provides:
“From and after the effective date of this act, every employer in the state of Kansas operating a trade or business under the provisions of the workmen’s compensation law shall pay within thirty days after the award is made the sum of five hundred dollars to the workmen’s compensation commissioner in every case where death results from the accident where there are no dependents who are entitled to compensation under this act. . . .”
Finally, we have an application by the attorneys for. claimant for an award of attorney fees, which request is made for the first time in this court. No cross appeal was taken from any order of the trial court in regard to attorney fees because, as admitted by counsel for claimant, no application was made therefore in the court below. This court on appeal considers only questions presented to and determined by the trial court. (1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, § 304, pp. 152, 153; 2 West’s Kansas Digest, Appeal and Error, § 169, pp. 308, 309.) In view of this iron-clad rule, the request for attorney fees must be denied.
Affirmed.
Price, J-, dissents. | [
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The opinion of the court was delivered by
Johnson, J.:
Michael P. Oliver appeals the district court’s grant of summary judgment in favor of his former law firm, Wallace, Saunders, Austin, Brown & Enochs, Chartered (Wallace Saunders), in this dispute over a referral fee in a medical malpractice action. Shamberg, Johnson & Bergman, Chartered (Shamberg), the firm that had agreed to pay a contingent referral fee and that subsequently obtained a settlement judgment in favor of the injured person, filed this interpleader action and paid the referral fee into court in order to remove itself from this winner-take-all battle over the referral fee. Accordingly, Shamberg did not participate in this appeal. We reverse the district court’s grant of summary judgment and remand with directions to enter summary judgment in favor of Oliver.
FACTUAL OVERVIEW
Wallace Saunders is a law firm, duly incorporated under the laws of the State of Kansas, with which Oliver entered into an employment agreement on January 1, 1987. Subsequently, Oliver was elected a director of the firm.
Oliver first became involved in this case when he was contacted by the family of Sara Hotchkiss after she experienced severe medical complications. Sara’s husband, Rob, first requested assistance with the medical situation, and Oliver referred him to Jim Butler at Wallace Saunders. Butler drafted a power of attorney for the Hotchkisses. Next, Oliver met with Sara’s husband and her father to discuss the possibility of a medical malpractice claim. However, because Wallace Saunders was principally engaged in defense work, it had a policy against suing medical care providers. Therefore, Oliver proposed to refer the case to another firm and arranged for the Hotchkisses to meet with two attorneys to determine who they would want to retain. Oliver attended the meetings and assisted the Hotchkiss family in asking questions. The Hotchkisses selected Victor Bergman of the Shamberg firm.
On January 8, 2003, Sara and Robert Hotchkiss entered into an employment agreement with Shamberg, in which they agreed to a contingent fee of 40% of the net recovery after expenses. Bergman wrote Oliver at Wallace Saunders on January 13, 2003, offering 25% of Shamberg’s attorney fees as a referral fee. Bergman asked Oliver to confirm that the referral fee was acceptable or to malee a counterproposal. Shamberg would take responsibility to do the work and to finance the case, but Bergman solicited Oliver’s suggestions with regard to the areas on which Bergman planned to focus. The record reflects no written response to Bergman’s letter.
Oliver had his paralegal complete both a new file intake sheet and a new client intake sheet on or about February 19,2004. These forms identified Sara Hotchkiss as the plaintiff and Olathe Medical Center as the defendant. The new file documentation identified the case as a plaintiff, medical malpractice contingent fee case with the notation that “will receive a referral fee at the end of the case.” Sara Hotchkiss was identified as the new client and was listed as a contingent fee client.
A litigation file was opened, assigned to Oliver, placed upon the firm’s master inventory of cases, and placed in Oliver’s personal inventory. A file was also set up in the Wallace Saunders corporate accounting system for tracking time and expenses, showing Oliver as the billing attorney and listing the case as medical malpractice.
On May 5, 2004, over a year after Bergman’s first letter mentioning the referral fee, he wrote to Oliver at the Wallace Saunders offices and modified the fee-sharing arrangement, offering to divide the net attorney fees as follows: 10% of the first $100,000 of net attorney fees; plus 15% of any net attorney fees from $100,001-$250,000; plus 20% of any net attorney fee between $250,001 - $500,000; plus 25% of all net attorney fees greater than $500,001. The letter said that Shamberg would be responsible to advance all of the expenses of litigation and do all of the work. It also stated that if the Hotchkisses needed assistance with obtaining governmental benefits, Wallace Saunders would either help them or assist them with an appropriate referral. Bergman also requested Oliver to accompany him for an off-the-record visit with a physician. In the letter, Bergman said that the fees would be divided between “our firms,” referring to Shamberg and Wallace Saunders. Neither Oliver nor Wallace Saunders wrote a response to this May 5,2004, letter until after Oliver departed from Wallace Saunders.
Oliver resigned as an employee and director of Wallace Saunders, effective January 31, 2005. On February 1, 2005, Richard Merker of Wallace Saunders wrote to Bergman at Shamberg to advise him of a disagreement between Wallace Saunders and Oliver regarding entitlement to the referral fee. The next day, Merker wrote another letter to Shamberg, reciting the terms of the referral fee payment formula and reiterating that Wallace Saunders claimed the entire referral fee. On April 5, 2005, after he had resigned from Wallace Saunders, Oliver wrote to Shamberg, purporting to accept the referral fee agreement described in the May 2004 letter.
When Oliver left Wallace Saunders, he took the Hotchkiss file at the clients’ request. He continued to work on the Hotchkiss case, including assisting with mediation, drafting settlement documents, and being present for the first 2 days of trial. Oliver and his staff spent 151.3 hours working on the Hotchkiss file after his departure from Wallace Saunders. In contrast, while employed at Wallace Saunders, Oliver did not make a record of the time he worked on the Hotchkiss file, albeit he now claims to have put in approximately 15 hours on the Hotchkiss case before his departure from the firm. The Wallace Saunders file did reflect some paralegal time during that period, and some expenses were charged against the file in May and November 2004.
While researching on the Johnson County District Court online docket system after he left Wallace Saunders, Oliver discovered at least three different 2004 medical malpractice cases in which a Wallace Saunders attorney had entered his appearance on behalf of the Olathe Medical Center, after the Hotchkiss file was opened by Wallace Saunders in February of 2004. Wallace Saunders did not inform Olathe Medical Center of its relationship with the plaintiff in the Hotchkiss v. Olathe Medical Center matter and did not seek or obtain a conflict waiver. Wallace Saunders produced a conflict check dated March 20, 2006, which reflected that Wallace Saunders represented Sara Hotchkiss as a plaintiff against Olathe Medical Center. The Hotchkisses claimed they were not aware that Wallace Saunders was also representing Olathe Medical Center during the pendency of their lawsuit. The Hotchkisses also said that they did not know, at the time of settlement, that Wallace Saunders was claiming the entire referral fee. Wallace Saunders did not disclose to anyone at Shamberg that, while representing the Hotchkisses, it had been simultaneously representing Olathe Medical Center.
The Hotchkisses’ malpractice claim against certain physicians was settled and approved by the court on July 11, 2005. The claim against the Olathe Medical Center proceeded to trial but was settled during trial. The district court approved the settlement and attorney fees on September 2, 2005. Shortly thereafter, on September 16,2005, Shamberg filed this interpleader action. The total amount of referral fee at issue is $582,881.90.
Both Oliver and Wallace Saunders filed motions for summary judgment. The district court, in a memorandum decision and order, denied Oliver’s motion and granted Wallace Saunders’ motion, resulting in the court’s awarding the entire referral fee to Wallace Saunders. Oliver timely appealed, and the matter was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
LAW FIRM EMPLOYMENT CONTRACTS
In 1987, Oliver and Wallace Saunders executed an employment contract. As part of Oliver’s consideration, he agreed that he “shall not, without the express prior written consent of [Wallace Saunders], directly or indirectly, during the term of this agreement, render services of a professional nature to or for any person or firm for compensation or engage in any activity competitive with and adverse to [Wallace Saunders’] business or practice.” The contract set forth the manner in which it could be terminated and noted that upon termination, Oliver “shall not be entitled to keep or preserve files or records of [Wallace Saunders] as to any client unless said client shall specifically request a different disposition of his file.” Further, Oliver agreed “to carry out and to perform orders, directions and policies” of the firm and acknowledged that [Wallace Saunders] “shall have final authority over acceptance or refusal of any client and over the amount of fee to be charged any client for professional services.”
The same date, Oliver and Wallace Saunders entered into a Deferred Compensation Agreement (DCA), whereby the firm agreed to pay Oliver compensation in addition to the salary and bonus referred to in the employment contract. The additional compensation represented an amount “equal to [Oliver’s] interest in the active accounts receivable and work-in-process of the corporation.” The DCA described a formula to calculate Oliver’s interest in the firm’s accounts receivable and work-in-process that would accrue after his date of employment. Subsequently, the parties executed an addendum to the DCA.
On April 1, 2005, Wallace Saunders and Oliver entered into an agreement purporting to settle the amounts due to Oliver upon his termination from the firm. The settlement agreement recites that the employment agreement had been amended in 1995, that the date of the DCA was January 1, 1993, and that a stock purchase agreement had been entered on January 1, 1993, and amended November 2, 2004, albeit those dates do not match the documents in the appeal record. The calculation of Oliver’s share of work-in-process reflects that the amount due to Oliver was reduced by 32 files which were withdrawn from the firm, 12 of which were taken by Oliver. At the same time, the parties executed a carve-out agreement, acknowledging that they disagreed on how to handle the Hotchkiss v. Olathe Medical Center case and “any fees which may arise from that case, including referral fees, deferred compensation fees and accounting for that case and file.” The carve-out agreement clarified that both parties were preserving their claims to the Hotchkiss referral fee, notwithstanding their respective releases in the agreement for amounts due under the deferred compensation and stock purchase agreements.
DISTRICT COURTS DECISION
In its Memorandum Decision and Order, the district court made an extensive recitation, covering some 12-plus pages, of the “key” facts that it found to be uncontroverted. We will review those findings most relevant for our purposes.
The court found that “Sara and Rob Hotchkiss first became clients of [Wallace Saunders] after Sara’s injury when, at Oliver’s suggestion, James Butler of [Wallace Saunders] met with Rob and drafted a Power of Attorney in December 2002.” Butler opened a firm file, Msting Sara as a cHent. The findings indicate that, thereafter, Oliver actively participated in the Hotchkisses’ selection of an attorney to handle the medical malpractice claim, including attending and participating in the meetings with the prospective attorneys. The district court reviewed the records established by Oliver and Wallace Saunders reflecting that the Hotchkisses were firm clients and determined that “[t]he case was set up by [Wallace Saunders] administration on February 19,2004, in exactly the same manner that any other case, hourly or contingent, had been set up, and was not treated as unique.”
The court found that Bergman’s May 5, 2004, letter, outlining how the fees were to be divided, indicated that the agreement was between the Shamberg firm and the Wallace Saunders firm. However, Bergman from the Shamberg firm considered Oliver to be the Hotchkisses’ attorney and had no contact with any other Wallace Saunders attorney until Oliver’s termination from tire firm. No one from the Wallace Saunders firm, including Oliver, responded to Bergman’s May 5, 2004, fee-division proposal until after Oliver left Wallace Saunders. After Oliver’s termination, Bergman declined to communicate with Wallace Saunders about the case, but rather he continued “to work with Oliver and had found Oliver’s involvement to be helpful.”
When Oliver left the firm, “he took the Hotchkisses’ physical file with him at the Hotchkisses’ request” and afterward continued to work on the case. The district court found that Oliver’s involvement included:
“participating in the day-long settlement conference where the settlement agreement was reached with the doctor defendants and meeting with Rob and Sara concerning the settlement agreement reached and the use of special trusts and structures to protect their assets. Oliver also participated in the drafting of the final settlement documents from the first settlement with the doctors, including meeting with the bank that would handle and administer the special needs trust and meeting with two lawyers involved in preparing the structured settlement and the drafting of the trust itself. Oliver revised the final settlement documents and was the attorney of record in conducting the settlement approval hearing on July 11, 2005, with Judge Elliott.
“Oliver provided beneficial legal counsel to Rob and Sara regarding their lawsuit both before and after he left [Wallace Saunders] on January 31,2005, Oliver’s paralegal entered time on the file on May 11, 2004, and some expens’es were also added in May and November 2004. Oliver did not record any time on any time-sheets with respect to any work he allegedly performed on behalf of the Hotchkisses while he was an employee of [Wallace Saunders], Since his departure from [Wallace Saunders], Mr. Oliver and his staff spent 151.3 hours working on the Hotchkiss file.”
In discussing the agreed-upon calculation of the additional compensation due to Oliver under the DCA, the district court found:
“All files in inventory under the DCA and Addendum, as listed in the Agreement, are arbitrarily valued at the $150.00 [per file] rate, regardless of the actual value of the file or any potential fee recovery expected to result from the file, and regardless of whether hourly or contingent fee. The December 31, 2004, Inventory of 4,375 files used by [Wallace Saunders] to calculate Oliver’s deferred compensation for ‘work-in-process’ specifically included the Hotchkiss file. The Hotchkiss file was also specifically among the 12 Tiles withdrawn from Firm’ listed for Oliver and deducted from ‘work in process’ files to which the $150.00 per file was applied in the calculation set forth above. The Hotchkiss file was not classified by [Wallace Saunders] as an account receivable at the time Oliver left [Wallace Saunders] on January 31, 2005.”
The district court also found that Wallace Saunders had accepted representation of Olathe Medical Center to defend it in three different medical malpractice cases in 2004, after Oliver had opened the Hotchkiss file in which Olathe Medical Center was shown as the defendant. The district court noted that the Hotchkisses, Oliver, the Olathe Medical Center, and the Shamberg firm were all unaware that, according to Wallace Saunders’ own conflicts system, the firm was concurrently defending the medical center while seeking a referral fee in a lawsuit against the medical center. Wallace Saunders did not seek a conflicts waiver from anyone. Further, the Hotchkisses asserted that they were unaware that Wallace Saunders was claiming the entire referral fee.
The district court then offered its conclusions of law, beginning with the well-established law that summary judgment is proper only where there is no genuine issue of fact remaining, giving the party against whom judgment is sought the benefit of all inferences. The district court concluded that the referral agreement had been made between the two law firms, Wallace Saunders and Shamberg, with Oliver acting as an agent for his corporate law firm. Any purported confirmation or reaffirmation by Oliver, personally, after leaving the firm was ineffective, because the contract was between the law firms.
Most importantly, the court concluded that the referral contract was complete when Shamberg accepted the case and agreed to pay a referral fee. Wallace Saunders’ consideration was referring the case to Shamberg, and the firm “needed to do nothing else.” In essence, the district court found that the referral fee was earned by Wallace Saunders prior to Oliver’s departure.
The court rejected Oliver’s argument that he paid Wallace Saunders for the file under the DCA setdement when he left the firm and that the file included the referral fee agreement. The court was unpersuaded by the fact that the file was not part of the accounts receivable category, opining that listing the file in the “work-in-process” calculation “does not change the original contract between [Shamberg] and [Wallace Saunders].” The court did not believe that the DCA had any effect on the contract between the firms which was already in place when Oliver departed. Moreover, the district court concluded that the DCA agreement did not meet the legal requirements of an assignment of Wallace Saunders’ referral fee contract to Oliver, and that the carve-out agreement refuted such an assignment.
Finally, the district court declined to consider Oliver’s conflict of interest argument, which was that Wallace Saunders was precluded from accepting a referral fee on a case in which it had a conflict of interest. The district court noted that the conflict of interest arose after the referral contract was complete and, therefore, did not taint that matter. Moreover, the conflict issue was best left in the appropriate forum of a disciplinary proceeding, where, if deemed appropriate, the law firm could be ordered to make restitution on the referral fee.
Accordingly, the district court granted Wallace Saunders’ summary judgment motion, ruling that the law firm was entitled to the entire referral fee. In appealing the district court’s ruling, Oliver specifies the following issues: (1) the district court erred in its in terpretation of the deferred compensation agreement between Wallace Saunders and Oliver; (2) the district court erroneously interpreted the carve-out agreement; (3) the district court’s separation of the referral fee contract from the clients’ instructions and interests was against public policy and contrary to the law; (4) Wallace Saunders should be precluded from receiving a referral fee because of its conflict of interest and failure to effectively comply with Kansas Rules of Professional Conduct (KRPC) 1.5(g) (2008 Kan. Ct. R. Annot. 448); and (5) alternatively, the district court erred in refusing to divide the referral fee based upon quantum meruit. We take the liberty of combining and rearranging the order of our discussion of the issues.
STANDARDS OF REVIEW
The district court disposed of this case on summaiy judgment. Our standard of review in such cases is well settled:
‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from fire evidence, summary judgment must be denied.’ [Citation omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).’ State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).” Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
In addition, we will be called upon to interpret certain contracts. The interpretation and legal effect of a written contract are matters of law over which an appellate court has unlimited review. Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006). Regardless of the district court’s construction of a written contract, an appellate court may construe a written contract and determine its legal effect. City of Arkansas City v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007). However, whether a contract exists is a question of fact. In re Estate of Hjersted, 285 Kan. 559, 589, 175 P.3d 810 (2008).
Oliver also raises an issue involving the KRPC. “The interpretation of a Supreme Court rule, like the interpretation of a statute, is a question of law. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997).” Kansas Judicial Review v. Stout, 287 Kan. 450, 459, 196 P.3d 1162 (2008).
DISCIPLINARY VIOLATIONS
Oliver attempts to disqualify Wallace Saunders from receiving any portion of the fee generated through the referral agreement, which Oliver negotiated on behalf of the firm, because other members of the firm subsequently accepted representation of Olathe Medical Center, which was an adverse party in the Hotchkisses case. There is nothing in the record to indicate that, when Wallace Saunders opened the Hotchkiss file or when the referral to Sham-berg was accepted, the firm had a conflict of interest with respect to the adverse interest of Olathe Medical Center.
The district court found that Oliver s complaint about his former firm’s ethical conduct was more properly addressed through a disciplinary action, where, if appropriate, the firm could be ordered to disgorge any fees that were wrongfully received. We agree. This is an action between an attorney and his former firm over how to divide a referral fee, in which the attorney wants to assert the clients’ rights to have conflict-free representation, as a means to take the entire fee. This is not an action by a client seeking to avoid paying attorney fees or to disqualify an attorney or a firm from the case. The foreign cases cited by Oliver are distinguishable as involving the disallowance of referral fees because the referring attorney or firm had a conflict of interest precluding the initial acceptance of representation. Here, Oliver seeks to be the beneficiary of Wallace Saunders’ alleged postreferral wrongdoing toward its clients.
Supreme Court Rule 226 (2008 Kan. Ct. R. Annot. 391), setting forth the Kansas Rules of Professional Conduct, contains a section explaining the scope of the rules. Particularly pertinent to the case before us is the following recitation:
“Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinaiy remedy, such as disquahfication of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are involved by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.” 2008 Kan. Ct. R. Annot. 395.
Accordingly, when Oliver discovered what he perceived to be a rule violation by Wallace Saunders, his duty as an attorney was to “inform the appropriate professional authority,” i.e., the Office of the Disciplinary Administrator. KRPC 8.3(a) (2008 Kan. Ct. R. Annot. 585). He should not have sought standing to enforce the disciplinary rules as a procedural weapon to prevail in a civil action.
REFERRAL AGREEMENT
The district court’s memorandum decision began with the declaration: “This is a contract action.” We agree. However, whereas the district court focused solely on Wallace Saunders’ duty under a referral agreement, the facts of this case require us to consider the interface of the respective parties’ duties and obligations under a number of agreements. Oliver and Wallace Saunders had reciprocal rights and obligations emanating from an employment contract, the DCA, a stock purchase agreement, and the agreements executed upon Oliver’s termination. There was an attomey/client relationship between Oliver and the Hotchkisses, and vicariously between Wallace Saunders and the Hotchkisses. Shamberg had an attomey/client employment agreement with the Hotchkisses and a referral agreement with Wallace Saunders and/or Oliver.
We begin with die referral agreement between Shamberg and Wallace Saunders, which was the basis for the district court’s ruling. The district court found that a valid referral fee agreement was formed between the two law firms, Wallace Saunders and Shamberg; that Wallace Saunders gave consideration when Oliver, as a director-agent of the firm, referred the Hotchkisses to Sham-berg and that firm accepted the case; that, in return, Shamberg then promised to pay Wallace Saunders a referral fee; and that Wallace Saunders “needed to do nothing else.” Apparently, the district court viewed the referral agreement as a stand-alone contract for the sale of the medical malpractice claim and determined that Wallace Saunders had completed its performance and earned its referral fee when the client was delivered to Shamberg. We cannot accept that characterization. “A client is not an article of property in which a lawyer can claim a proprietary interest, which he can sell to other lawyers expecting to be compensated for the loss of a property right.” Palmer v. Breyfogle, 217 Kan. 128, 142, 535 P.2d 955 (1975). The referral agreement must be viewed in the context of the duties which are owed to the client.
We do agree with the district court’s finding that the original referral agreement was between the law firms. No one contests that fact, and Oliver’s employment contract would dictate that he be considered an agent of Wallace Saunders while performing attorney services during his period of employment. However, the uncontroverted facts refute the notion that Wallace Saunders had no further obligation on the file after referral.
The district court specifically found that “Oliver provided beneficial legal counsel to Rob and Sara regarding their lawsuit both before and after he left [Wallace Saunders] on January 31, 2005.” That finding is consistent with the affidavits from Oliver, Bergman, Robert Hotchkiss, and Sara Hotchkiss. Wallace Saunders contends that those services were not required by the referral agreement, pointing to language in Bergman’s May 5, 2004, letter that the Shamberg firm would be responsible for doing all of the work. However, that same letter indicates that Oliver would be expected to continue to assist the Hotchkisses on certain matters and suggests that Bergman would utilize Oliver’s assistance by specifically asking Oliver to accompany Bergman to visit a doctor. Moreover, the affidavits of both Oliver and Bergman, the two persons who negotiated the referral agreement on behalf of their respective firms, establish that the agreement contemplated Oliver’s continued participation, after referral. While Wallace Saunders embraces Oliver’s status as its agent to claim sole ownership of the referral fee, it apparently does not want to be bound by its agent’s commitment to provide assistance to Bergman as part of die referral agreement.
Aside from the ambiguous language in Bergman’s letter, the evidence establishes that part of the consideration for the referral was Oliver’s continued participation. Pointedly, the conduct of die parties corroborates that agreement. See Cline v. Angle, 216 Kan. 328, Syl. 6, 532 P.2d 1093 (1975) (“If parties to a contract, subsequent to its execution, have shown by their conduct that they have placed a common interpretation on the contract, this interpretation will be given great weight in determining the meaning to be attributed to the provisions in question.”). Both Bergman and Oliver conducted themselves as if the referral agreement called for Oliver’s continued participation and assistance. At the very least, then, the question of whether Wallace Saunders was obligated to provide Shamberg assistance to earn its referral fee is a disputed fact.
Nevertheless, even if no further participation by Oliver was required by the referral agreement, it is difficult to intuit how Wallace Saunders’ percentage share of the contingency fee could have been fully earned before Shamberg earned the contingency fee which was to be divided. Generally, an attorney who is discharged before the occurrence of the contingency provided for in a contingency fee contract may not recover compensation on the basis of the contract, but rather the attorney is entitled only to the reasonable value of the services rendered based upon quantum meruit. Madison v. Goodyear Tire & Rubber Co., 8 Kan. App. 2d 575, Syl. ¶ 1, 663 P.2d 663 (1983). If the Hotchkisses had discharged Sham-berg prior to obtaining the settlement judgments, there would have been no contingency fee to split and Wallace Saunders’ purported vested right in a share of that fee would have been illusory.
More importantly, however, the district court’s ruling that Wallace Saunders did not need to do anything further to earn its referral fee ignores tire firm’s vicarious obligations to the Hotch lasses. In its brief, Wallace Saunders attempted to skirt the issue by arguing that its representation of the Hotchkisses ended upon the referral to Shamberg. At oral argument, the firm argued that Ryder v. Farmland Mut. Ins. Co, 248 Kan. 352, 362, 807 P.2d 109 (1991), stands for the proposition that a referring attorney does not have an attomey/client relationship with the person referred. Neither argument fits the facts of this case.
The affidavits of Robert Hotchkiss and Sara Hotchkiss state that they considered Oliver to be their attorney from their first consultation about the medical malpractice claim and that the representation continued throughout the medical malpractice litigation. Oliver actively counseled the Hotchkisses about selecting an attorney and participated in the selection process. Oliver’s services from the beginning exceeded the simple referral scenario. Thereafter, as the district court specifically found, Oliver continued to provide beneficial services to the Hotchkisses, i.e., they continued to be Oliver’s clients even after the referral. Again, if Wallace Saunders wants to claim Oliver as an agent in order to claim ownership of the referral fee agreement, it must also claim Oliver’s clients as clients of the firm. Moreover, the district court found that Wallace Saunders had set up client files for the Hotchkisses in the normal fashion, i.e., Wallace Saunders’ own records refute its assertion that the Hotchkisses were not firm clients after the referral date.
The affidavits of Robert and Sara Hotchkiss also clearly establish their expectation that Oliver would continue to advise and counsel them, after the referral to Shamberg. Robert Hotchkiss’ affidavit states that he asked how Oliver would be paid for his advice and counseling on the medical malpractice case and Oliver said that his fees would be paid out of Bergman’s percentage. Therefore, regardless of what Oliver promised Bergman with respect to doing the work on the malpractice litigation, -Oliver promised the Hotchkisses that he would provide them with continuing legal advice and counseling after the referral and that the Hotchkisses would not need to pay any fees over and above the contingency percentage. Wallace Saunders was bound by that agreement, as Oliver’s principal.
Accordingly, the Hotchkisses’ consent to the referral agreement and the resultant referral fee must be viewed in the context of their vicarious attomey/client relationship with Wallace Saunders. The firm’s obligations to its own client cannot be divorced from the referral agreement it made with another firm. Although the referral fee may be paid by one firm to another, the bottom line is that fee is being paid by the clients. Wallace Saunders’ argument, and the district court’s suggestion, that Oliver should look to the Hotchkisses to pay additional fees for his postdeparture beneficial services suggests a breach of the firm’s agreement with the Hotchkisses.
Moreover, requiring the Hotchkisses to pay more than the contingency fee contradicts the district court’s finding that the referral agreement met the reasonableness requirement of KRPC 1.5(g) (2008 Kan. Ct. R. Annot. 448) because the judge in the medical malpractice lawsuit approved the amount of the contingency fee. That fee approval contemplated that tire referring attorney would be fully compensated through its percentage share of the agreed-upon contingency fee. If the Hotchkisses must pay more than the total contingency fee, then the validity of the referral agreement is suspect under the requirement that the total fee must be reasonable, i.e., the referral agreement cannot increase the total amount of fees the client must pay.
To summarize, Wallace Saunders, through its agent Oliver, had an attomey/client relationship with the Hotchkisses which required the firm to provide the client with advice and counseling throughout the medical malpractice litigation. The clients agreed to compensate for those services by consenting to the referral agreement which gave Wallace Saunders a share of the contingency fee. When Oliver departed the firm, the referral fee had not been fully earned because the clients were still entitled to services, i.e., the referral agreement remained executory.
DEFERRED COMPENSATION AGREEMENT
When Oliver departed Wallace Saunders, he took the Hotchkisses’ file at the client’s request. Oliver contends that the referral agreement is simply a fee arrangement with the client which passes with the file. He interprets the DCA as providing a mechanism for valuing the work-in-process for all of the applicable files, both retained and withdrawn, and regardless of whether the matter is designated as hourly or contingent fee. Accordingly, he argues that when Wallace Saunders deducted the agreed-upon value of the Hotchkiss file in the calculation of the amount due Oliver under the DCA, the firm received all of its contractually allocated share of the referral agreement. We agree.
The DCA begins with a calculation of the individual attorney s percentage share of the firm by dividing the attorney s total income in the preceding year by the total salaries and bonuses paid to all stockholders/employees for the prior year. The agreement then creates two categories upon which compensation will be calculated: work-in-process and accounts receivable. The work-in-process calculation begins with the total number of client files in the firm’s inventory the previous month and then subtracts the number of files in accounts receivable on that date. The resultant number of work-in-process files is then multiplied by $150 to get the total value of the firm’s work-in-process. That total is reduced by a floor dollar amount which essentially represents the number of active files the firm had in inventory when the attorney entered the firm, again valued at $150 each. That net dollar amount is then multiplied by the attorney’s percentage share of the firm to yield the amount that will be paid to the individual attorney. When an attorney is withdrawing from the firm, the attorney’s work-in-process payment is further reduced by the number of files that the attorney takes out of the firm, multiplied by $150 per file and by the attorney’s percentage share.
The attorney’s deferred compensation for accounts receivable is essentially determined by multiplying the attorney’s percentage share with the dollar amount of unrealized accounts receivable, which is defined as “professional charges for services billed and the expenses advanced by the [firm] which shall remain unpaid as of the last calendar month next preceding the event requiring payment.” A floor amount is again deducted and other adjustments made, none of which impact our analysis.
The district court found that the parties’ characterization of the Hotchkisses’ file as work-in-process, rather than as an accounts receivable, did not impact the original referral agreement between Wallace Saunders and Shamberg. Further, the court opined that the DCA was not an effective assignment of that referral contract and that the carve-out agreement corroborated that there was no assignment or transfer of the firm’s contractual rights. We disagree on both counts.
First, we quickly dispose of all of the arguments relying on the carve-out agreement. That document simply allowed the parties to settle all other aspects of the DCA calculation without prejudicing their respective claims to the referral fee in this case. By its terms, it did not create, modify, or destroy any of the parties’ respective rights and obligations that existed at the time.
Next, the district court’s determination that the parties’ treatment of the Hotchkisses’ file as work-in-process for DCA purposes had no impact on the original referral fee agreement is inconsistent with the court’s determination that Wallace Saunders had nothing more to do to earn the referral fee. The very name of the category, “work-in-process,” indicates a recognition there is more to do on the file. If, as the district court opined, Wallace Saunders had to do nothing else on the Hotchkisses’ referral, then that fee was fully earned when Oliver departed. If the fee was fully earned, the Hotchkisses’ file should have been in the accounts receivable pile, i.e., work completed, awaiting payment.
More to the point, however, the district court’s interpretation of the DCA treats the referral agreement as a separate and distinct sale of chattel between law firms, disassociated from the client file. However, as we noted above, the referral agreement was part of Oliver’s fee arrangement with the clients and, accordingly, was inextricably tied to the clients’ file. When Oliver took the Hotchkisses’ file, he not only assumed the obligation to complete the performance that was due the clients, but he also received the benefits of the fee arrangement that was tied to that performance.
On the other hand, part of the performance on the Hotchkisses’ file was effected while Oliver was an agent of Wallace Saunders. Accordingly, the firm was entitled to that part of the compensation the clients consented to be paid to Oliver that was earned during his employment. Cf. Tucker v. Rio Optical Corp., 20 Kan. App. 2d, 233, 236, 885 P.2d 1270 (1994) (generally, attorney withdrawing for good cause entitled to compensation, even if attorney had been working under a contingent fee contract). Arguably, in such circumstances, an allocation between the firm and departing attorney could be made on the basis of quantum meruit. Cf. Madison v. Goodyear Tire & Rubber Co., 8 Kan. App. 2d 575, 579, 663 P.2d 663 (1983) (discharged attorney subject to contingent fee arrangement entitled to reasonable value of services rendered based on quantum meruit). However, Wallace Saunders does not seek only a fair share of the fee and, more importantly, the firm had reached a prior agreement with Oliver, through the DCA, to place a fixed value on the file, rather than to allocate value on the basis of quantum meruit.
Wallace Saunders attempts to avoid using the DCA as a measure of the Hotchkisses’ file’s value by saying it was designed simply to measure the firm’s growth during the attorney’s employment. However, the firm acknowledges that the DCA “is an admittedly crude measuring stick used to arrive at an amount to pay a departing member.” Crude or not, the DCA effectively measures a departing attorney’s share of the value of the firm by utilizing a fixed rate of $150 for each and eveiy work-in-process file, including those retained by the firm with a contingent fee arrangement. Upon paying for retained work-in-process files under the DCA, the firm is entitled to receive all of the future fees generated by those files. In the context of our case, if the Hotchkisses had not requested Oliver to take their file, Oliver’s employment agreement would have left that file with Wallace Saunders. The firm would have paid Oliver for his percentage share of $150 on that file, being approximately $5.22, and subsequently kept the referral fee of over a half-million dollars. As Oliver aptly stated in his brief, “Sauce for the goose is sauce for the gander.” The DCA makes no provision for treating a withdrawn file with a referral fee arrangement any differently. Oliver paid the agreed-upon value for the Hotchkisses’ file under the DCA, and he, likewise, was entitled to the future fees generated by that file.
The district court’s grant of summary judgment to Wallace Saunders and denial of summary judgment to Oliver are reversed. The matter is remanded to the district court with directions to grant summary judgment in favor of Oliver.
Reversed and remanded.
Davis, J., recused.
Greene, J., assigned. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is the fifth appearance in this court involving the administration of either the estate of Charles E. Snyder or the estate of Isabelle H. Snyder (In re Estate of Snyder, 179 Kan. 252, 294 P. 2d 197; In re Estate of Snyder, 181 Kan. 222, 310 P. 2d 944; In re Estate of Snyder, 187 Kan. 373, 357 P. 2d 778; In re Estate of Snyder, 188 Kan. 46, 360 P. 2d 883). The present appeal arises out of a proceeding commenced in the probate court of Leavenworth County upon the petition of the executor of the last will and testament of Isabelle H. Snyder, deceased, to determine the ownership of 166 shares of stock in the Manufacturers State Bank of Leavenworth, Kansas, and six $10,000 face value unregistered “bearer” bonds of the United States government. The proceeding was prosecuted to final judgment in the probate and district courts by the special administratrix of her estate. The executor of the last will and testament of Charles E. Snyder, deceased, claimed and listed the securities in the inventory of his estate. The decedents were husband and wife, and Charles died first. Both wills were admitted to probate in Leavenworth County. The district court made findings of fact and conclusions of law that Isabelle’s esta.te was the sole owner of the securities and entered judgment in favor of the special administratrix. The executor of Charles’ estate has appealed.
Charles E. Snyder and Isabelle H. Benedict were married September 4, 1948. Charles was 69 and Isabelle was 76 years of age. Each was previously married, and Charles had three sons. Isabelle had no children, and possessed an estate worth approximately $150,000. At the time of the marriage she had suffered a stroke and was in failing health both physically and mentally.
Findings of the district court are briefly summarized: Charles was president of the Manufacturers State Bank. Two years prior to the marriage he commenced handling the business affairs of Isabelle and was her confidential agent and advisor and managed and controlled her affairs until his death on May 3, 1953. From approximately 1947 Isabelle was incompetent to transact business, and for approximately two years preceding her death on June 19, 1954, she was totally incompetent.
Prior to the marriage Isabelle maintained a separate bank account, and a separate safety deposit box No. 404 in the Manufacturers State Bank. Charles maintained a separate and detailed record of the property and affairs of Isabelle. On the date of the marriage, the balance in Isabelle’s individual account was withdrawn and deposited in a new joint account in the joint and survivorship names of Isabelle and Charles. On that same date the safety deposit box was released by Isabelle and a new contract lease was issued on the box in the names of Isabelle or Charles as joint tenants with right of survivorship. All of the funds deposited in the joint bank account were the separate and individual funds of Isabelle which were used and dispensed for the separate and individual account of Isabelle. All of the contents of box 404 was the separate and individual property of Isabelle both before and after the marriage and was either owned by her prior to the marriage, or was procured with her separate funds by disbursements from the joint bank account.
Following Charles’ death the bonds in question, and the 166 shares of bank stock, which were registered in the names of Isabelle or Charles or the survivor, were found in box 404. As previously indicated, the executor of Charles’ estate claimed and listed those securities in the inventory of his estate. The court specifically found that the securities in question were procured by Charles in the course of his management of Isabelle’s affairs with funds from the joint bank account; that they were at all times segregated and identified as her separate property; that Charles’ estate had no interest therein and no transfer of any sort from Isabelle to Charles was accomplished; that the contents of the box at no time was in the possession of Charles’ estate; that Isabelle’s estate had at all times been entitled to possession thereof and that the securities in question, together with all other contents of the box, were the separate property of Isabelle and were a part of her estate. In addition to the foregoing, the court found generally for Isabelle’s estate and against Charles’ estate. In harmony with its findings, the court rendered judgment in favor of Isabelle’s estate.
Various arguments are advanced by the appellant in support of the contention that Charles’ estate is entitled to one-half interest in the securities. All have been fully examined and the court finds that each is disproved by the evidence and the findings of the district court. The effort on the part of the estate of Charles to claim the securities is well characterized by the district court’s restrained language in its oral decision when it said:
“And why anybody should be in doubt as to whom those stocks belong . . . is something that this Court can’t understand . . . and how any person can conceive on any theory of law that tire Charles Snyder estate would have any interest in those bonds is just something that this Court cannot see.”
No new principles of law of striking interest, and no new application of old principles, are involved, and when the facts have been determined, the conclusions of law follow as a matter of course. Under these circumstances this court does not feel that any useful purpose would be subserved by a fuller discussion of the case except to say the district court’s findings of fact were amply supported by the evidence, and are approved.
Error is never presumed, and it is incumbent upon the appellant to make it affirmatively appear that error was committed. We have carefully examined the record and find the appellant has not sustained the burden cast upon him by the appeal. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Rosen, J.:
The Mental Health Association of the Heartland (MHAH) is a tax-exempt organization that qualifies for federal income tax exemption under Internal Revenue Code § 501(c)(3), see 26 U.S.C. § 501(c) (2006). It is incorporated as a public-benefit, nonprofit corporation in Missouri. In October 2006, MHAH sought an exemption from ad valorem taxation beginning in the year 2002 on real property that it owns and operates as an apartment building (the Marion Home) for chronically homeless, low-income people who suffer from severe mental handicaps and other physical disabilities. The building contains a total of 11 apartments, 10 of which are occupied by mentally handicapped residents, with the remaining apartment serving as an office for a full-time residential counselor who provides on-site non-Medicaid/Medicare reimbursable services. A peer support worker also works on-site providing the residents with nonclinical, noncrisis interventions. Collaborative meetings between MHAH staff and other service providers, such as social workers and case managers, occasionally take place on the property.
In order to qualify for apartments at the site, residents must demonstrate that they are homeless and have severe and persistent mental illness. Residents pay a rental fee consisting of no more than 30% of their monthly gross income, in addition to a deposit of $601. Depending on the residents’ incomes, the monthly rental fee ranges from $0 to $601. The average monthly rental fee of $234 is below the fair market value. All fees that are collected are applied to operating expenses. The total income from rent and deposits is less than the cost of operating the program and maintaining the property. MHAH receives tax-deductable donations from the United Way, corporate sponsors, the Leavenworth Sisters of Charity, private foundations, and private individuals.
Although the county appraiser recommended that MHAH receive the tax exemption, BOTA denied the application. (The Board of Tax Appeals was supplanted by the State Court of Tax Appeals during the 2008 legislative session. L. 2008, ch. 109, sec. 2; K.S.A. 2008 Supp. 74-2433.) MHAH filed a timely petition for reconsideration, which was also denied. MHAH then took a timely appeal to the Kansas Court of Appeals. The Court of Appeals affirmed the BOTA order in In re Tax Appeal of Mental Health Ass’n of the Heartland, 40 Kan. App. 2d 531, 194 P.3d 580 (2008). This court granted MHAH’s petition for review.
MHAH asks this court to find that it qualifies for exemption under either K.S.A. 2008 Supp. 79-201 Second or Ninth, and that K.S.A. 2008 Supp. 79-20lb Fourth does not operate to bar residential facilities from tax exempt status if those facilities independently qualify under K.S.A. 2008 Supp. 79-201 Second or Ninth. In order to resolve this issue, we must closely read the three stat utoiy provisions in question and review prior decisions of the Court of Appeals and of this court.
Whether certain property is exempt from ad valorem taxation is a question of law if the facts are not in dispute, but it is a mixed question of law and fact if the facts are controverted. T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645, 693 P.2d 1187 (1985).
Interpretation of a statute is a question of law over which this court has unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). When courts are called upon to interpret statutes, they begin with the fundamental rule that they must give effect to the intent that the legislature expressed through the plain language of the statute, when that language is plain and unambiguous. See State v. Valladarez, 288 Kan. 671, 675-76, 206 P.3d 879 (2009). An appellate court’s first task is to ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). Only if the statutoiy language is not plain and unambiguous are the courts called upon to resort to canons of statutoiy construction or consult legislative history. See Valladarez, 288 Kan. at 675-76.
Statutes imposing a tax must be interpreted strictly in favor of the taxpayer. However, tax exemption statutes are interpreted strictly in favor of imposing the tax and against allowing an exemption for one that does not clearly qualify. In re Tax Appeal of Western Resources, Inc., 281 Kan. 572, 575, 132 P.3d 950 (2006). Strict construction of an exemption provision does not, however, warrant unreasonable construction. In re Tax Application of Lietz Constr. Co., 273 Kan. 890, Syl. ¶ 7, 47 P.3d 1275 (2002).
Article 11, § 1(b) (2008 Supp.) of the Kansas Constitution provides:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchants’ and manufacturers’ inventories, other than public utility inventories included in subclass (3) of class 2, livestock, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.”
Although the legislature may broaden the tax exemption permitted by the Kansas Constitution, it may not limit or curtail the constitutional provisions. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 853, 473 P.2d 1 (1970).
In Lutheran Home, Inc. v. Board of County Commissioners, 211 Kan. 270, 275-79, 505 P.2d 1118 (1973), this court held that a not-for-profit corporation that charged nursing home residents monthly fees that were paid by the residents or by welfare was not acting as a constitutionally exempt “charity” as envisioned by Article 11, § 1(b), of the Kansas Constitution. The court held that “charity involves the doing of something generous for other human beings who are unable to provide for themselves. To have charity there must be a gift from one who has to one who has not. Unless there is a gift, there can be no charity.” 211 Kan. at 277. In order to constitute a charity, it must provide a service “free of charge, or, at least, so nearly free of charge as to malee the charges nominal or negligible,” and the recipients of the charitable service must be “those who are unable to provide themselves with what the institution provides for them.” 211 Kan. at 278.
In 1986, the Kansas Legislature amended K.S.A. 79-201 (Ensley 1984) to create the modem version of 79-201 Second. L. 1986, ch. 369, sec. 1. The legislature followed that amendment by enacting K.S.A. 79-201 Ninth in 1988. L. 1988, ch. 373, sec. 1. These amendments were adopted largely in response to BOTA decisions limiting exempt property to exclusively charitable uses and in response to the decision of this court in Lutheran Home. See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 754-57, 768, 973 P.2d 176 (1999).
K.S.A. 2008 Supp. 79-201 addresses property used exclusively for certain cultural, religious, and charitable purposes and reads in relevant part:
“The following described property, to tifie extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“Second. All real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, religious, benevolent or charitable purposes, including property used exclusively for such purposes by more than one agency or organization for one or more of such exempt purposes. Except with regard to real property which is owned by a religious organization, is to be used exclusively for religious purposes and is not used for a nonexempt purpose prior to its exclusive use for religious purposes which property shall be deemed to be actually and regularly used exclusively for religious purposes for the purposes of this paragraph, this exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes. . . . This exemption shall not be deemed inapplicable to property which would otherwise be exempt pursuant to this paragraph because an agency or organization: (a) Is reimbursed for the provision of services accomplishing the purposes enumerated in this paragraph based upon the ability to pay by the recipient of such services; or (b) is reimbursed for the actual expense of using such property for purposes enumerated in this paragraph; or (c) uses such property for a nonexempt purpose which is minimal in scope and insubstantial in nature if such use is incidental to the exempt purposes of this paragraph; or (d) charges a reasonable fee for admission to cultural or educational activities or permits the use of its property for such activities by a related agency or organization, if any such activity is in furtherance of the purposes of this paragraph.
“Ninth. All real property and tangible personal property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services, which is owned and operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in this state as a foreign not-for-profit corporation if: (a) The directors of such corporation serve without pay for such services; (b) the corporation is operated in a manner which does not result in the accrual of distributable profits, realization of private gain resulting from the payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered or the realization of any other form of private gain; (c) no officer, director or member of such corporation has any pecuniary interest in the property for which exemption is claimed; (d) the corporation is organized for the purpose of providing humanitarian services; (e) the actual use of property for which an exemption is claimed must be substantially and predominantly related to the purpose of providing humanitarian services, except that, the use of such property for a nonexempt purpose which is minimal in scope and insubstantial in nature shall not result in the loss of exemption if such use is incidental to the purpose of providing humanitarian services by the corporation; (f) the corporation is exempt from federal income taxation pursuant to section 501(c)(3) of the internal revenue code of 1986 and; (g) contributions to the corporation are deductible under the Kansas income tax act. As used in this clause, ‘humanitarian services’ means the conduct of activities which substantially and predominantly meet a demonstrated community need and which improve the physical, mental, social, cultural or spiritual welfare of others or the relief, comfort or assistance of persons in distress or any combination thereof including but not limited to health and recreation services, child care, individual and family counseling, employment and training programs for handicapped persons and meals or feeding programs.”
K.S.A. 2008 Supp. 79-201b relates to certain specialized uses of property and reads in relevant part:
“The following described property, to the extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“Fourth. All real property and tangible personal property, actually and regularly used exclusively for: (a) Housing for elderly and handicapped persons having a limited or lower income, or used exclusively for cooperative housing for persons having a limited or low income, assistance for the financing of which was received under 12 U.S.C.A. 1701 et seq., or under 42 U.S.C.A. 1437 et seq., which is operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under tire laws of another state and duly admitted to engage in business in this state as a foreign, not-for-profit corporation; and (b) for all taxable years commencing after December 31, 2006, temporary housing of 24 months or less for limited or low income, single-parent families in need of financial assistance who are enrolled in a program to receive life training skills, which is operated by a charitable or religious organization; and all intangible property including moneys, notes and other evidences of debt, and the income therefrom, belonging exclusively to such a corporation and used exclusively for the purposes of such housing. For the purposes of this subsection, cooperative housing means those not-for-profit cooperative housing projects operating or established pursuant to sections 236 or 221(d)(3), or both, of the national housing act and which have been approved as a cooperative housing project pursuant to applicable federal housing administration and U.S. Department of Housing and Urban Development statutes, and rules and regulations, during such time as the use of such properties are: (1) Restricted pursuant to such act, or rules and regulations thereof; or (2) subject to affordability financing standards established pursuant to the national housing act during such time that such not-for-profit corporation has adopted articles of incorporation or by-laws, or both, requiring such corporation to continue to operate in compliance with the United States department of housing and urban development affordability income guidelines established pursuant to sections 236 or 221(d)(3) of the national housing act or rules and regulations thereof.”
BOTA and the Court of Appeals denied MHAH’s application because MHAH does not fit all the statutory requirements for residential property exempt status under K.S.A. 2008 Supp. 79-201b Fourth. Although it was not disputed that the property was used for benevolent or charitable purposes under K.S.A. 2008 Supp. 79-201 Second and Ninth, BOTA and the Court of Appeals concluded that 79-20lb is the more specific statute and takes priority over 79-201.
Case law spells out the rule that the more specific statute governs when two statutes are in conflict. “A specific statute controls over a general statute. [Citation omitted.] Likewise, a specific provision within a statute controls over a more general provision within the statute.” In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied 172 L. Ed. 2d 239 (2008).
“It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]” Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 432, 601 P.2d 1100 (1979).
In In re Tax Exemption Application of Johnson County Housing Coalition, Inc., 29 Kan. App. 2d 322, 26 P.3d 1279, rev. denied 272 Kan. 1418 (2001), our Court of Appeals first applied this doctrine to charitable property tax exemption statutes. The Johnson County Housing Coalition was a nonprofit community development organization that provided low-income, handicapped, elderly, and special-needs people with housing facilities and services. It applied for exemption under K.S.A. 2000 Supp. 79-201b Fourth and K.S.A. 2000 Supp. 79-201 Ninth. The Coalition failed to meet the requirements of 79-20lb Fourth, which provides exempt status to certain housing for low-income residents who qualify under specific federal statutes. In affirming BOTA’s denial of the application, the Court of Appeals concluded that 79-201 Ninth was not designed to apply to residential housing facilities because it was the more general statute. 29 Kan. App. 2d at 327.
The Court of Appeals has extended this analysis to other sections of the exemption statutes. In In re Tax Exemption Application of Gracious Promise Foundation, 42 Kan. App. 2d 180, 211 P.3d 161 (2009), petition for review filed July 17, 2009, the court found that the child care facility exemption under K.S.A. 79-201b Third was more specific than and controlled exemptions under K.S.A. 79-201 Second and Ninth; see also In re Tax Exemption Application of Inter-Faith Villa, 39 Kan. App. 2d 810, Syl. ¶ 6, 185 P.3d 295 (2008) (taxpayer requesting statutory tax exemption for property that is primarily low income housing must meet requirements of K.S.A. 79-201b Fourth).
Have BOTA and the Court of Appeals properly applied this rule of construction to our tax-exemption statutes? We conclude they have not.
Before looking to rules of construction that might limit the application of a statute, this court looks to the plain language of the statute:
“The fundamental rule of statutoiy interpretation is that a court must give effect to the intent of the legislature as expressed. Thus, when the language of a statute is plain and unambiguous, a court must give effect to that language rather than determine what the law should or should not be, speculate as to legislative intent, add something not readily found in the statute, resort to canons of statutoiy construction, or consult legislative history.” Polson v. Farmers Ins. Co., 288 Kan. 165, Syl. ¶ 2, 200 P.3d 1266 (2009).
It is not disputed that the MHAH propex-ty meets the plain-language l'equirements of K.S.A. 2008 Supp. 79-201 Second and Ninth. MHAH uses the property to provide both living quarters and counseling for severely mentally ill citizens. These services are provided at no cost or reduced cost to individuals who would otherwise likely be homeless and without access to public assistance programs. MHAH does not make a profit from these services. These are clearly benevolent, charitable, and humanitarian purposes.
This position is consistent with the modern view of the status of not-for-profit residential facilities targeting populations with limited resources and special needs. See, e.g., St. Joseph’s Living Center, Inc. v. Windham, 290 Conn. 695, 966 A.2d 188 (2009) (not-for-profit nursing home that received some fees from residents was pure charity); Isaiah 61:1, Inc., v. Bridgeport, 270 Conn. 69, 851 A.2d 277 (2004) (hallway house for inmates is exclusively charitable use of land entitled to propeity tax exemption even though some residents paid some costs); Banahan v. Presbyterian Housing Corp., 553 S.W.2d 48 (Ky. 1977) (nonprofit corporations providing housing to families of elderly or handicapped persons at low rental rates were institutions of “purely public charity”); Rio Vista NonProfit Hous. Corp. v. Ramsey Cty., 277 N.W.2d 187 (Minn. 1979) (nonprofit corporation providing housing to families of modest income was “purely public charity” even though it received a portion of costs from renting families because tenants did not provide major source of project’s revenue); Gateway Rehab, v. Com'rs Cty. of Beaver, 710 A.2d 1239 (Pa. Commw. 1998) (residential drug and alcohol treatment facility was purely charitable institution entitled to property tax exemption).
Because the plain language of both K.S.A. 2008 Supp. 79-201 Second and Ninth applies to the MHAH property, it is unnecessary to resort to statutory construction. Those provisions are not in conflict with K.S.A. 2008 Supp. 79-201b Fourth-, it is possible, as the present case illustrates, for property to qualify under the former statutes without qualifying under the latter, and vice versa.
Two additional grounds support the result derived from the plain language of the statutes. First, the legislative history of the three statutes in question shows a clear intent on the part of the legislature to broaden the scope of property that is exempt by virtue of its charitable or humanitarian use. The analysis by the Court of Appeals reaches an incongruous contrary result — that the legislature enacted three statutes with the intention each would expand the scope of tax-exempt charitable-use property beyond the restrictive constitutional language, but that these statutes operate to cancel each other out. We do not agree. We cannot conclude that the legislature intended to create an exemption for property used to house certain low-income citizens but not for property used to house even lower-income citizens who have severe mental illnesses.
Second, the statutes address different situations. K.S.A. 2008 Supp. 79-201 Second governs property used exclusively for defined purposes, including benevolent and charitable purposes, and extends the exemption to those uses even when they are not provided strictly as gifts. K.S.A. 2008 Supp. 79-201 Ninth governs property used by community service organizations for the purporse of pro viding humanitarian services and extends the exemption to such property when it is owned and operated by not-for-profit corporations that qualify for federal income taxation exemption under § 501(c)(3) of the Internal Revenue Code. K.S.A. 2008 Supp. 79-201b Fourth governs property that is used to provide housing for certain qualified residents, even if the property is owned and operated by a not-for-profit corporation that does not qualify for federal tax exemption under § 501(c)(3). The legislature clearly spelled out the scope of each statute, and determining which statute to apply does not depend on distinguishing residential from nonresidential use. There is simply no conflict among the three statutes, and it is therefore improper to use the more-specific-statute rule of construction.
MHAH also argues that the denial of exempt status violates its constitutional rights to both equal protection and due process. Because we are reversing on the issue of statutory interpretation, we need not address whether the tax-exemption scheme is unconstitutional as applied.
The. BOTA decision denying MHAH tax-exempt status is reversed. The Court of Appeals opinion affirming the BOTA decision is reversed. The matter is remanded to the State Court of Tax Appeals for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Robb, J.;
This is an appeal from the trial court’s judgment entered on April 15, 1960, sustaining defendant’s motion to dismiss plaintiff’s appeal from an order of the state board of tax appeals.
The railroad operated its line through the Elwood-Gladden drainage district located in Doniphan county onto and across the railroad’s bridge which spanned the Missouri River, a navigable stream. No challenge was made of the fact that the bridge approach on the Kansas end was subject to a five mill tax levy in the year 1958 by the drainage district for benefits from flood control work to be done by the drainage district, but when the county clerk, under G. S. 1949, 79-322 (relating in part to assessing and taxing as personal property a railway bridge over a river forming the boundary line between this and another state), extended the five mill levy against the $200,-000 assessed value of the bridge and entered a $1,000 tax against the bridge, the railroad on December 19, 1958, paid the $1,000 tax under written protest. The written protest claimed illegality of the tax because the Missouri River is a navigable stream over which the federal government has exclusive jurisdiction relating to navigation, drainage and flood control, and including the bridges cross ing it. The imposed protested tax violated article XI, section 5, o£ the Kansas constitution and the fourteenth amendment of the federal constitution, as well as article I, section 8, vesting Congress with power to regulate commerce among the several states.
The Doniphan county commissioners failed to refund the protested $1,000, under G. S. 1949, 79-1701, wherein it is provided that authority to correct errors shall carry with it authority to order refund of taxes shown to have been unlawfully charged and collected; that such authority is first given to the county clerk until November 1 of each year, and then to the board of county commissioners until August 1 of the next following year. The railroad filed its application for refund with the state board of tax appeals pursuant to G. S. 1949, 79-1702 (whereunder that board [see G. S. 1959 Supp. 74-2439] at any time prior to August 1 of the year succeeding the year when the assessment was made, has the authority to order a refund of the amount found to have been unlawfully charged and collected) and pursuant to the provisions of G. S. 1949, 79-2005 (wherein procedure for a payment prior to protest is fully explained and also that within thirty days the taxpayer shall commence an action to recover the protested payment in a court of competent jurisdiction, or file an application for hearing on the validity of the protest with the state board of tax appeals [see G. S. 1959 Supp. 74-2439]). Within ten days of the filing of this application, notice shall be given to the county treasurer along with a true copy of the application filed with the board. The foregoing statutory procedures were fully followed by the railroad in its application to the state board of tax appeals made within thirty days after the protested payment of taxes.
On May 13, 1959, a hearing was conducted before the board of tax appeals and on November 19, 1959, the board entered its order denying the railroad’s protest and directing the Doniphan county treasurer to distribute the money paid in under protest but that such treasurer should not comply with the directions until after the expiration of thirty days from receipt of a certified copy of the order.
A copy of the order of November 19, 1959, was served on the railroad on December 1, 1959, and within thirty days, in accordance with the provisions of G. S. 1957 Supp. 74-2426, the railroad gave notice of appeal to the Doniphan county district court from the order of the board of tax appeals. Under the terms of the statute, “the director shall be deemed to be a party to such appeal, and the clerk of the district court . . . shall . . . without praecipe issue summons and cause the same to be served upon the director. . . .” Thus the only defendant in the appeal before the trial court was Eldon Sloan, then director of the state property valuation department, for whom F. A. Palmer has since been substituted.
On April 15, 1960, the trial court sustained defendant’s motion to dismiss the appeal from the order of the board of tax appeals and the railroad brought the instant appeal presenting the sole question as to whether the trial court erred in dismissing the appeal.
It is worthy of mention at this point that this record reflects the tireless efforts on the part of capable and competent counsel in preparing briefs in a clear and concise manner which cover all the pertinent law available in this jurisdiction on the prime issue.
On March 4, 1961, one month prior to the filing of the railroad’s reply brief herein, this court handed down an opinion in City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P. 2d 29, which involved a tax grievance such as our present one. No good purpose will be served by reiterating everything that was therein stated and we shall set out only that part which is most pertinent.
“The provisions for appeal to the district court from a final order of the board of tax appeals, under G. S. 1957 Supp. 74-2426, are applicable only to such matters as are appealed to that board from, the orders of the director of revenue or the director of property valuation (G. S. 1957 Supp., 74-2437 and 74-2438) and have no application to orders made by the board of tax appeals on original applications for relief of tax grievances under the provisions of G. S. 1949, 79-1702.” (Syl. ¶ 3.) (Emphasis supplied.)
The railroad contends the above Kansas City case is distinguishable from our present one because in that case no payment of tax under protest was made but nothing stated in that opinion would lead to a conclusion that such a variation in circumstances would require a contrary holding in this case.
Judgment affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s order overruling defendant’s motion for new trial, from the judgment made upon the jury’s verdict in favor of plaintiffs, and from other rulings and orders of the trial court.
Plaintiffs commenced this action against the Lyon county board of commissioners to recover damages for the death of their seven year old son, Virgil Schmidt, on October 14, 1959, proximately caused by the collapse of a county-maintained bridge which had been in use since 1892. The collapse resulted when a dead jack oak tree thirty to forty feet long in close proximity to the bridge abutment wing fell upon the bridge prior to 8:00 o’clock a. m. on the day in question. The county road and the bridge, which was seventy feet long and fourteen feet wide, both ran north and south and crossed Eagle Creek in a wooded area.
On the morning of October 14, 1959, as usual, plaintiffs’ car driven by the oldest of their children, Diana, and having as passengers three of their other children, was proceeding north along the county road. Because of the bridge collapse the car pitched into the bed of Eagle Creek and Virgil was killed. Vertical concrete abutments were situated at both the north and south ends of the bridge upon which rested the ends of steel beams that extended across the creek north and south. The plank floor and superstructure, including the trusses, rested on the beams.
The jack oak tree was on the north side of the creek and at the north end of the bridge. Its trunk was within six inches of the northwest wing of the west edge of the north abutment. The tree was two to three feet in diameter at its base and according to the testimony of a surveyor who surveyed the area after the collapse of the bridge, the center of the hole left after the tree fell was twenty feet from the center line of the bridge. No unusual weather conditions likely to cause the tree to fall had occurred the previous night so that with the exception of one defense witness who thought he had, in the current year, seen some green branches on the tree, the evidence, though conflicting as to whether the tree had been dead three or more years, showed that the tree fell because it had been dead for such a period of time that the base had rotted off the roots. Although there was some conflicting evidence that the tree was remembered as being straight, or as not appearing to be a menace to the bridge, or traffic using the bridge, there was abundant evidence that the tree leaned noticeably toward and over the bridge and many of the limbs and branches were over and above the bridge, which created a distinct menace in view of the fact the tree had been dead for so long a time.
Three years prior to the trial the landowner, in the presence of a neighbor, called the condition of the dead tree to the attention of the then county patrolman, Ralph Ames, while Ames was operating a road maintenance machine in the area. The landowner offered to remove or help remove the tree, but the patrolman did not then, or at the time of trial, believe the condition presented any problem and he did not report it to Joe Dieker, superintendent of roads and bridges of Lyon county. However, on April 16, 1959, in response to a report from Ames that the floor of the bridge needed plank repair, Dieker made an inspection of the bridge and after first stating he had not noticed the tree, he testified that in examining the abutments and wings of the bridge for cracks, etc., since the tree was about six inches from the north abutment, he probably saw the tree; he had noticed no undercutting of the abutment because the tree was back at the end of the wing and finally, he testified he had had to see the tree and whatever condition the tree was in, he had seen it at the time.
The trial court instructed the jury, a verdict for plaintiff in the sum of $12,100.00 was returned and accepted by the court, and judgment entered. Defendant’s motion for new trial was overruled. Hence this appeal which presents the question, “Did the dead jack oak tree and the circumstances surrounding it on April 16, 1959, render the bridge in question defective within the provisions of G. S. 1949, 68-301?” The statute, in pertinent part, reads:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge . . . may recover such damage from the county . . . wherein such defective bridge ... is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge . . . which by law, or agreement entered into pursuant to law, the county is obligated to maintain. . . .”
Mention should perhaps be made that the matter of notice is not before us in this appeal and the sole question, as stated above, is a question of law under 68-301. On this proposition, see Thompson v. Morris County Comm'rs, 170 Kan. 74, 223 P. 2d 749, wherein a statement was made that is found in many of our decisions to the effect that 68-301 fixing a county’s liability is almost identical with 68-419 fixing the state’s liability for defects in state highways. The cases as to what constitutes a defect in a state highway are handled on an individual basis. One such case was Cronin v. State Highway Commission, 182 Kan. 42, 318 P. 2d 1066, where it was stated that “. . . in the final analysis it is the fixed policy of this court to handle each case separately and to either include it in or exclude it from the operation of the statute.” (p. 45.) The same rule is obviously appropriate here.
There are, of course, a multitude of cases covering defects both on the traveled, concrete slab, or blacktop portions of highways as well as on portions of the right of way located at the sides or edges thereof and including ruts, ditches hidden by weeds, etc. Recovery has been allowed in some cases and denied in others. We note that Lawson v. Sumner County Comm'rs, 144 Kan. 450, 61 P. 2d 1365, had two things in common with our case. There a bridge collapsed into the Ninnescah River as the plaintiff and her husband were crossing it on March 19, 1934. In 1923 the bridge had been damaged by flood and driftwood was lodged against it which pushed the bridge trusses out of alignment. The downstream side of the bridge bulged outward so the weight of the bridge no longer was supported through the center of gravity. A good description of a “Pratt” type bridge was given in the Lawson case by the Honorable John S. Dawson, the writer of the opinion, and while the bridge involved in our present case was referred to as a “pony” bridge, from the description it appears to be the same type.
No decision is cited and our research has produced none under our statutory provisions to fit our particular and unusual defect and the circumstances surrounding it. Due to the location of the tree, its size and weight, and the fact it had been leaning to the southeast and over toward the bridge, and the further fact it had been dead for at least three years, the falling of the dead tree was only a matter of time and the resulting collapse of the bridge, which the county had an obligation to maintain in a safe condition, constituted a defect under the contemplation of 68-301. The Lawson case relates that such a bridge was never a heavy duty bridge and here we have the further element that the bridge was weakened from age as shown by the need of new planks in the floor thereof.
The conclusion is inescapable that the trial court did not err in overruling defendant’s demurrer to plaintiff’s amended petition and the judgment should be and it is hereby affirmed. So ordered.
Parker, C. J., Price and Fatzer, JJ., dissent. | [
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|
The opinion of the court was delivered by
Herd, J.:
The appellant, Stephen Macomber, appeals his jury convictions of four counts of aggravated robbery (K.S.A. 21-3427) and one count of aggravated battery (K.S.A. 21-3414). The convictions are the result of the robbery of a Wendy’s restaurant on East Central; two robberies of a Pizza Hut on East Central; and the robbery of Godfather’s Pizza on East Harry; all in Wichita. Because of his disguise none of the restaurant employees could identify Macomber; however, the appellant was convicted on admissions he made to his friends. The appellant raises only two issues on appeal, both of which pertain to the admission of evidence. Thus, additional facts will be discussed as they relate to those issues.
The appellant first argues the trial court committed reversible error when it permitted the State to introduce evidence of his prior juvenile adjudications.
Prior to the commencement of the trial, Macomber made a motion in limine seeking to prohibit reference to his previous juvenile convictions. At that time, the State conceded the prior crimes evidence would be inadmissible under K.S.A. 60-455 and that the only way the evidence could come in would be if Macomber placed his credibility in issue.
The court permitted cross-examination of appellant concerning his prior conviction of crimes on the theory he had placed his credibility in issue in his case in chief. The ruling was based on the following testimony between Macomber and his attorney:
“Q. Now, when you were in this interview room and the detectives were talking, or Detective Mervosh was talking to you, and he kept asking you had you been to this Wendy’s, had you robbed this Wendy’s, had you done any of this stuff that these friends of yours said that you did, what did you tell them each and every time?
“A. I told them no.
“MR. BRITTON: Your Honor, I don’t believe I have any more questions of this witness.”
After a recess, the appellant was cross-examined by the State:
“Q. All right. Now, Mr. Macomber, the statement that you gave Detective Mervosh, is all that true?
“A. Yes, sir, it was.
“Q. And was it true when you said that you told Mervosh you’d never been at Wendy’s, this type of thing?
“A. Yes, sir, it is.
“Q. Mr. Macomber, have you ever been convicted of crimes involving dishonesty or false statement?
“MR. BRITTON: Objection, Your Honor.
“THE COURT: Come forward, please.”
An off-the-record discussion occurred, after which the trial court held:
“THE COURT: Well, gentlemen, I recall the motion in limine and I think we indicated, the Court anyway, at that time indicated, Mr. Britton, that the motion in limine would be sustained unless the door was opened. On direct examination from your questioning, the defendant has stated that his answers to whether he was ever at Wendy’s or did any of the robberies was no. You have carefully avoided asking him at that point whether that was the truth or not. I do think, however, that opened the door for Mr. Skinner to ask him was that the truth, which he has now done.”
Thus, the State was allowed to again ask the appellant whether he had ever been convicted of crimes involving dishonesty or false statement. The appellant responded that he had previously been convicted of burglary and theft. The appellant argues the trial court committed reversible error in admitting evidence of his prior crimes.
The admissibility of an accused’s prior conviction of a crime not involving dishonesty or false statement is governed by K.S.A. 60-421, which provides:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
The appellant contends that no evidence was offered during his direct testimony for the sole purpose of supporting his credibility. The appellant contends that no inference could be made (i.e., that the appellant was telling the truth) from his testimony reaffirming previous statements made to the police detective.
In its brief on appeal, the State does not argue the trial court properly ruled that an inference could be derived from the appellant’s direct testimony reaffirming his previous testimony. Instead, the State contends that the “record as a whole” supports the trial court’s ruling admitting evidence of appellant’s prior crimes. The State contends the appellant placed his credibility at issue during direct examination, thus “opening the door” for the admission of prior crimes evidence going to credibility. As support for its argument, the State points to the appellant’s testimony that he (1) worked at the YMCA where he supervised small children; (2) “truthfully” admitted to the police he had used marijuana; and (3) repeatedly told the police he did not commit the robberies.
None of the testimony relied on by the State was introduced for the sole purpose of supporting the appellant’s credibility. Appellant’s defense consisted of his testimony denying he committed the crimes charged and the testimony of a police detective, who testified regarding the appellant’s previous statement (which was consistent with his trial statements).
A case with similar facts is State v. Harris, 215 Kan. 961, 529 P.2d 101 (1974), In Harris, the defendant relied upon the defense of alibi. The court held that none of the evidence introduced by the defense could be interpreted as having been introduced solely for the purpose of supporting the credibility of the defendant. Yet, on cross-examination, the prosecution was allowed to examine the defendant concerning a prior conviction for aggravated robbery.
This court held the introduction of evidence of a prior conviction constituted reversible error and was in direct violation of K.S.A. 60-421. The court stated:
“This statute [K.S.A. 60-421] is clear and should be understood by every prosecutor in the state. The statute recognizes but one exception and that is when the defendant had previously introduced evidence admissible for the purpose of supporting his credibility.” 215 Kan. at 963.
In State v. Quick, 229 Kan. 117, 621 P.2d 997 (1981), the defendant was charged with aggravated robbery and relied upon an alibi defense. During the defendant’s direct testimony, the defendant did not attempt to introduce evidence for the purpose of supporting his credibility. Although a few references were made to his attendance at church, these were in connection with the defendant’s attempt to prove his alibi. The court held neither the credibility nor character of the defendant was placed in issue and the trial court committed reversible error in allowing the State to introduce evidence of prior crimes during the cross-examination of the defendant.
As in Harris and Quick, Macomber did not place his credibility in issue. A defendant must have the right to deny the charges against him and to maintain that he has consistently done so without fearing such testimony will render evidence of other crimes admissible.
The State argues that even if the trial court improperly admitted evidence of the appellant’s previous convictions, the error was not prejudicial. The appellant, on the other hand, contends the evidence against him was not overwhelming and the error constituted reversible error.
The primary testimony against the appellant was that of three of his friends: Charles Poe, Christopher Fulps, and Bryan Fair-child. They testified that the appellant admitted to them he had committed the robberies charged. Also, a number of individuals who were employees of the businesses robbed testified for the prosecution. However, none of the employees were able to identify the appellant as the man who robbed their store, because in each instance the robber wore a plastic bag over his head.
Under the circumstances of this case, we hold the trial court committed reversible error in permitting the admission of evidence of the appellant’s previous convictions where such evidence was not within the scope of the direct examination and the appellant had not introduced evidence for the purpose of supporting his credibility.
The appellant next alleges the trial court erred when it prohibited the defense from introducing evidence impairing the credibility of State’s witness Bryan Fairchild.
During cross-examination of Fairchild, appellant was permitted to ask the witness whether he had ever lied on the stand before. Fairchild replied that he had not. A proffer of evidence was made, setting forth evidence appellant wished to use to impeach Mr. Fairchild. Specifically, at the preliminary examination in this case, Fairchild stated he was not under the influence of drugs and never used drugs; yet, two witnesses would testify Fairchild had in fact smoked marijuana on the way to the preliminary hearing and was involved in various drug transactions at the time of the hearing.
The trial court ruled that although a witness’s credibility may be attacked by evidence regarding the character traits of honesty and veracity, it can only be attacked by opinion or evidence testimony of reputation and not by specific instances of a witness’s conduct. K.S.A. 60-422(c) and (d). The court further held that evidence of drug use or drug offenses does not involve dishonesty or false statement and such evidence is inadmissible for impeaching the credibility of a witness.
K.S.A. 60-420 provides:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
K.S.A. 60-422(c) and (d) provide:
“As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
The issue now before the court is similar to one raised in State v. Nixon, 223 Kan. 788, 576 P.2d 691 (1978). There, the defendant was convicted of rape and the principal issue at trial was whether or not the victim consented to the defendant’s actions. During the direct examination of the victim, the prosecutor brought out the use of marijuana by both parties. On cross-examination, the victim was asked whether she had ever engaged in the sale of marijuana before. The victim responded that she had not.
In an attempt to show the victim was not “truthful,” the defendant sought to introduce evidence that the victim had previously participated in the sale of drugs. The trial court held such evidence was inadmissible under K.S.A. 60-422(d). On appeal, the defendant argued he was not attempting to show general traits of character or specific instances of conduct to prove a trait or character, but rather sought to prove the victim was not truthful in this case.
The Nixon court recognized that although no statute provided for its admission, the evidence in question was still admissible under the rationale of Dewey v. Funk, 211 Kan. 54, 505 P.2d 722 (1973). There, the court held that if Collateral or indirect testimony is introduced without objection, it is error not to allow the defendant to show such testimony is false.
Nixon was recently reaffirmed in State v. Davis, 237 Kan. 155, 697 P.2d 1321 (1985).
As in Nixon, the appellant here introduced the evidence of Fairchild’s drug use to show that Fairchild was not telling the truth in this case. Since Fairchild’s testimony regarding the appellant’s admission of criminal activity was essential to the State’s case, the trial court should have admitted the evidence showing the witness had testified falsely.
The judgment of the trial court is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellant Northern Natural Gas Company began a judicial review action in the court below to review an order of the Corporation Commission directing it to take gas ratably from all gas wells in the Kansas Hugoton Gas Field to which its lines were connected including the gas wells owned by Republic Natural Gas Company with which company it had a special contract as to the purchase of gas. The district court affirmed the order of the Commission, and the appellant brings the matter to this court on an appeal from the district court’s decision.
Throughout the remainder of this opinion we shall refer to the above parties as “Northern,” “Republic,” and the “Commission.”
For many years Northern and Republic have been parties to a contract under which Northern agreed to take and pay for a sufficient amount of natural gas to supply 60 percent of the supply needed by Northern to satisfy the needs of its customers in a certain area in Iowa and Nebraska. The exact location of this area in Nebraska and Iowa is not important, but it is referred to in the briefs as the Omaha District. This contract covers only some 144 wells owned by Republic and in the briefs this group of wells is referred to as the “Republic A” wells.
The above contract has been before this court in the former case of Northern Natural Gas Co. v. Republic Natural Gas Co., 172 Kan. 450, 241 P. 2d 708, in which opinion a more detailed account of the contract may be found.
There can be no question that Northern is engaged in the interstate transportation of natural gas by pipe line for sale in states other than Kansas, as defined in the Natural Gas Act. In the last case mentioned, the question at issue was the amount of gas which could be lawfully produced under the above contract and regulations of the Commission. The important part of the syllabus of the case just cited reads: “An operator of gas wells . . . as to the amount of gas he can produce from the wells, is governed by the allowables for such wells made by the commission for the time in question and not by slightly less than three times such allowables.”
Another case which is connected with this same contract between Republic and Northern is that of Republic Natural Gas Co. v. State Corporation Commission, 173 Kan. 172, 244 P. 2d 1196. Those inter ested in an account of the manner of establishing proration allowables for gas wells in the Hugoton field are directed to the opinion in the last mentioned case. The case affirmed the Commission in making an order refusing to reinstate canceled “underages” of certain gas wells owned by Republic. The canceled underages had been canceled according to the rules of the Commission applying to the entire Hugoton field.
As early as 1938, Northern had begun to purchase additional gas supply in the Hugoton field in addition to the Republic “A” wells. In 1949, Northern entered into a gas purchase contract with Cities Service Oil Company. Thereafter, Northern purchased other gas supply and now owns some 125 gas purchase contracts.
These gas purchase contracts cover a total of some 1,100 gas wells in the Hugoton field. Such contracts contain provisions for the ratable taking of gas between all gas wells with the exception that Republic “A” wells are specifically excepted from the provision for ratable taking and are given preference where the demand for gas does not equal the allowables for all of the wells. A copy of such contracts is contained in the abstract but need not be reproduced in this opinion.
Northern’s position is quite clearly and forcefully stated in the following quotation taken from its brief:
“As Northern has interpreted its commitments under its gas purchase contracts in such field, when Northern’s market requirements from the field are less than the total allowables assigned to the wells connected to Northern, Northern’s contractual commitment (as previously interpreted by the Court) under the Republic “A” contract is first deducted from Northern’s gas requirements and allocated to the Republic “A” wells. The balance of Northern’s requirements is then allocated ratably to all other wells to it connected in such Field.”
Northern further tells us that from 1944 until 1958, Northern was largely able to take ratably from all wells connected with its lines, but it seems to concede that during 1958, it took gas from Republic “A” wells at a much greater rate than from the rest of the wells connected to its gathering lines. In January, 1959, the Cities Service wells connected to Northern’s lines had a monthly allowable of 2,084,874 Mcf, They had an underage of 11,411,727 Mcf., and 123,711 Mcf. of these underages were canceled by the Commission under its general rules as being underproduced in excess of six times the January current allowable. Northern’s other connections aside from Republic “A” wells had a January current allowable of 9,309,441 Mcf. and a total underage of 48,604,070 Mcf. The net status of these wells was 522.09 percent underproduced, and they suffered cancellation of 409,393 Mcf. of the aforementioned underage.
In contrast, Republic “A” wells had a current January allowable of 2,674,390 Mcf. and an overage of 114,858 Mcf. They were overproduced 4.29 percent in that particular month.
Northern makes no claim that it would not have been possible to take gas ratably from all of its wells. It only claims that the contract with Republic gives it the right to prefer Republic “A” wells.
On May 27, 1959, the Commission on its own motion took notice of the above situation and issued an order to Northern- to show cause why it should not take ratably from the wells to which it is connected in the Hugoton field in Kansas. The hearing was set first on June 26,1959, but later continued to July 24, 1959, and the order appealed from was issued October 7,1959.
At the hearing before the Commission, an expert witness testified as follows:
“. . . I have expressed an opinion that there is drainage occurring. Our studies indicate that if the wells are produced with the same percent of allowable production or of net allowable production, then the wells will be ratable, and correlative rights will be protected. There are two ways of accomplishing this currently in the Hugoton Field. One is to raise the total (of) Northern Natural’s takes up until they are ratable with the Republic ‘A’ group, and second would be to lower Republic ‘A’ by curtailing their production, so they will become ratable with the balance of the field.”
We do not read the record to show that there is any contention but that drainage was occurring, and that the underproduced wells were losing the right to produce gas from the common source of supply to the great damage of the owners of the wells in the loss of their correlative rights.
While the members of this court make no claim to be experts in the science of the production of natural gas, we believe that the court may take judicial notice of the fact that where natural gas is within the earth in one common source and is under pressure, if one gas well is allowed to take gas, this will result in the pressure being lowered around the vicinity of this gas well so that the gas in the common source will tend to drain or rush to the vicinity of the well taking gas. The result will be that the other wells in the common field or source will be able to produce much less gas and the owners of such wells will have suffered a definite loss.
It should be noted at this time that shortly after the issuance of the order of the Commission dated October 7, 1959, directed only to Northern and which is appealed from in this present proceeding, the Commission, after due notice and hearing, issued a general rule applicable to all takers of natural gas from the Hugoton gas field requiring that all takers of gas take ratably from the wells to which they are connected. Northern’s appeal from that general order is to be found in Northern Natural Gas Co. v. State Corporation Commission, 188 Kan. 351, 362 P. 2d 609.
In attempting to sustain its position in the present case, Northern first contends that our state Natural Gas Act does not provide for ratable taking; that the act applies only to producers of gas; that Northern is a purchaser of gas and a natural gas company engaged in interstate commerce. It refers to section 55-703, G. S. 1959 Supp., and stresses the first part of the section which refers to producers. Rut Northern has ignored the latter part of the section wherein the following language is found:
“The commission shall so regulate the taking of natural gas from any and all such common sources of supply within this state as to prevent the inequitable or unfair taking from such common source of supply by any person, firm or corporation and to prevent unreasonable discrimination in favor of or against any producer in any such common source of supply. In promulgating rules, regulations and formulas, to attain such results the commission shall give equitable consideration to acreage, pressure, open flow, porosity, permeability and thickness of pay, and such other factors, conditions and circumstances as may exist in the common source of supply under consideration at the time, as may be pertinent.”
In Summers on Oil and Gas, Vol. 1A, sec. 103.1 p. 139, wherein the eminent author is dealing with ratable taking of oil and gas, that part of section 55-703 set out above is noted and the author concludes as follows:
“The Kansas gas conservation act authorizes the state corporation commission to so regulate the taking of gas from any common source of supply as to prevent inequitable and unfair taking. This act does not expressly state that purchasers of gas in the common source of supply may be required to take ratably from all wells with which their pipe lines may be connected, hut unless the commission has such authority it cannot prevent inequitable and unfair taking.” (Italics supplied.)
It will be noted that the Commission is authorized to make rules and regulations for the purpose of accomplishing the results to which the Commission is directed; and that such rules and regulations have the force and effect of law when filed in the office of the revisor of statutes (G. S. 1949, 77-410).
In search of Commission’s Rule 82-2-101, which has been so filed, we find the following: “Taker: See purchaser.” And in the' same rule, purchaser is defined as follows:
“Purchaser shall mean any person who directly or indirectly purchases, transports, takes, or otherwise removes production to his account from a well, lease or common source of supply. Purchaser is usually considered to be the person holding the division order.” (Italics supplied.)
We believe Northern is mistaken in arguing that the above statute and the rules made thereunder do not apply to a purchaser of natural gas. We are only more convinced that the legislature had this in mind by the fact that natural gas cannot be produced unless someone is ready to buy it, it cannot be stored in a tank on the lease. Therefore, as Professor Summers says, the object of the quoted provisions of section 55-703 cannot be accomplished unless the taker or purchaser can be controlled. We believe the statute is sufficient to reach Northern.
We note that in its brief, the Commission has directed attention to certain language in the opinion of Republic Natural Gas Co. v. State Corporation Commission, supra. While the whole opinion in that case is in line with what we are now deciding, the precise question now before us was not there involved.
The second objection to the validity of the order of the Commission appealed from is sweeping in its coverage and reads as follows:
“II
“Said order as approved by the trial court is arbitraiy, unreasonable and discriminatory, has no relation to proration or conservation of gas, burdens interstate commerce and takes appellant’s property and contract rights, all in violation of the commerce clause, the contract clause and the fourteenth amendment to the federal constitution, and the Kansas Bill of Rights, sections one, two and eighteen, and section seventeen, article two of the Kansas constitution."
Despite the sweeping indictment of the order, Northern really seems to simply argue that the contract has established the correlative rights of the parties, and that therefore, the state is powerless to prevent waste and drainage of gas as long as the monthly allowables are not unlawfully exceeded.
We would direct attention to a provision of the contract upon which Northern relies, and which reads:
“Section 2. Commission Jurisdiction. This contract is subject to all valid legislation with respect to the subject matter hereof, either State or Federal, and to all valid present and future orders, rules and regulations of duly constituted authorities having jurisdiction.”
We cannot agree with the argument that the monthly allowable is the whole story. Certainly, the wells attached to Northern and apart from Republic “A” are losing gas to Republic “A” and possibly to any other taker who is taking gas at a greater rate than Northern is allowing gas to be produced from these wells.
It would seem that ratable taking in the production of natural gas has been late in coming before this court for approval. The Supreme Court of Oklahoma upheld an order of the Corporation Commission of that state providing that a purchaser of natural gas must take gas from a producer having no contract with the purchaser and must also take ratably from the aforesaid producer; see Cities Service Gas Co. v. Peerless Oil and Gas Co., 203 Okla. 35, 220 P. 2d 279, affirmed on appeal, 340 U. S. 179, 95 L. Ed. 190, 71 S. Ct. 215.
It would appear to us that the opinions of the Supreme Court of Oklahoma and of the Supreme Court of the United States in the above case foreclose any of Northern’s arguments in the case at bar. There was a matter of contract involved in the Peerless case. Cities Service undoubtedly thought they had a right to take gas from the wells from which it had contracted to buy gas, and that it had no duty to contract with Peerless. But it was held that the state might prevent drainage of gas from the Peerless wells despite the contracts held by Cities Service.
Certainly, in view of the above quoted provision of the contract between Northern and Republic, there has been no impairment of the obligation of contract in this case or any other impairment of constitutional right.
Lastly, Northern contends that the order of the Commission impinges upon the authority of the Federal Power Commission under the Natural Gas Act, 15 U. S. C. A. § 717 et seq.
As above noted, we are quite well aware that Northern is engaged in the transportation and sale of natural gas in interstate commerce by pipe line. We do not believe, however, that the matters dealt with in this case affect interstate transportation or sale in any respect. That is, the matters dealt with in this case pertain to “production and gathering of natural gas.” (15 U. S. C. A. § 717(b)).
It should again be emphasized that the Commission’s order did not direct Northern as to the amount of gas which it should take, it only directed that the amount Northern needs shall be taken ratably from all the gas wells which Northern serves. Northern agrees that it could do this, but says it would have to give up its contracted preference to Republic “A” wells. Everyone would be happy if Northern would take the entire monthly allowable from all of the wells served. Northern says that in the near future it believes that it will be able to do this very thing.
We believe that the state may regulate the production of natural gas and the gathering of the same to the extent necessary to insure that the gas under one owner’s land will not be drawn off by his neighbor, and that his neighbor cannot plead a contract with a third person to give him a right to drain gas from his neighbor.
All of the matters contained in Northern’s brief have been fully considered, and we find that the order appealed from must be affirmed. It is hereby so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of a divorce action and is by plaintiff husband from a judgment granting separate maintenance to his wife.
Plaintiff sued his wife for divorce — charging extreme cruelty. She filed an answer in the form of a general denial, and a cross-petition seeking separate maintenance of $500 per month on the ground that he was guilty of gross neglect of duty and extreme cruelty.
Considerable evidence was introduced at the trial. At the conclusion thereof her demurrer to his evidence was sustained, and his demurrer to her evidence was overruled. From the bench the court stated that plaintiff’s evidence was insufficient to support his petition for a divorce, and further, that the prayer of the wife’s cross-petition for separate maintenance was sustained. Judgment was entered directing' plaintiff to pay the sum of $270 per month as separate maintenance to the wife and $80 per month for the support of their infant child.
Plaintiff husband has appealed—
“. . . from the Order of the Court overruling the plaintiff’s Motion for a New Trial and particularly the Order and Judgment denying a divorce herein and particularly to the Order and Judgment pertaining to permanent alimony.”
The specifications of error are that the court erred in sustaining defendant’s demurrer to his evidence; in overruling his demurrer to defendant’s evidence; in granting a judgment of separate maintenance without making a specific finding that a cause existed for which a divorce may be granted; that the court abused its discretion in failing to grant a divorce and in granting a pretended separate maintenance judgment, and that the judgment rendered was grossly excessive.
It is to be noted that plaintiff did not appeal from either of the rulings on the demurrers.
It also is to be noted that plaintiff did not specify as error the order overruling his motion for a new trial.
No appeal being taken from the rulings on the demurrers, they are not subject to appellate review — even though specified as error.
Notwithstanding the fact plaintiff appealed from the order overruling his motion for a new trial, his failure to specify such ruling as error precludes review of alleged trial errors, and the scope of review is limited to the question whether the judgment is supported by the pleadings and the findings. (Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105; Jelinek v. Jelinek, 161 Kan. 362, 168 P. 2d 547; Shelton v. Simpson, 184 Kan. 270, 336 P. 2d 159; Green v. State Highway Commission, 184 Kan. 525, 337 P. 2d 657 [opinion on motion for rehearing at 185 Kan. 36, 340 P. 2d 927]).
In connection with the question whether the judgment is supported by the pleadings and the findings, attention is called to G. S. 1949, 60-1516, which provides that a wife may obtain alimony from the husband without a divorce in an action brought for that purpose for any of the causes for which a divorce may be granted.
Plaintiff complains of the fact the findings of the trial court, as orally announced from the bench or as set forth in the journal entry of judgment, do not contain a specific finding that a cause existed for which a divorce might be granted — that is, there is no specific finding by the court that plaintiff was guilty of any of the statutory grounds for divorce enumerated in G. S. 1959 Supp., 60-1501, and our attention is directed to Perkins v. Perkins, 154 Kan. 73, 114 P. 2d 804, where it was said that in an action for alimony, before the trial court may make an award the plaintiff must plead and prove, and the trial court must find, that a cause exists for which a divorce may be granted, and to Paul v. Paul, 183 Kan. 201, 326 P. 2d 283, where it was held that before the trial court could grant separate maintenance it would be necessary for the wife to plead and prove, and it would be incumbent that the trial court find, that a cause existed for which a divorce could be granted.
We have no fault to find with the holding in either of those cases. Both correctly state the law, but on the precise question now before us neither is in point. In the Perkins case the trial court, after hearing the evidence, found that the wife should take nothing under her cross-petition seeking permanent alimony, and in the Paul case the wife, during the course of the trial, had dismissed her cross-petition, leaving no pleadings on file to support an award of separate maintenance in her favor.
In the case before us plaintiff husband sued for a divorce on the ground of extreme cruelty. Defendant entered a general denial, and filed a cross-petition seeking separate maintenance on the grounds of gross neglect of dirty and extreme cruelty. The journal entry of judgment contains a specific finding that she is entitled to a judgment for separate maintenance and permanent alimony, and judgment was entered accordingly. We think that the journal entry of judgment properly should have included and set forth the specific ground or grounds upon which the judgment was based, and that good practice dictates that such should have been done, but, on this record, we are unable to say that the fact the judgment omits such specific finding constitutes reversible error. An examination of the record leads to the plain inference that the judgment for separate maintenance was based on the fact the court found plaintiff to be guilty of either extreme cruelty or gross neglect of duty, or both — as alleged in her cross-petition — the prayer of which the court found to be sustained.
The rule is that a general finding by a trial court determines every controverted question of fact in support of which evidence has been introduced, and that a general finding raises a presumption that it found all facts necessary to support and sustain the judgment. (Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Manville v. Gronniger, 182 Kan. 572, 322 P. 2d 789, syl. 2; Smith v. Smith, 186 Kan. 728, 352 P. 2d 1036.) Inherent in this judgment is the fact the court found that defendant had established the allegations of her cross-petition seeking separate maintenance, and it may not be said the judgment is not supported by the pleadings and the findings. Other matters argued in the brief of plaintiff are not subject to review.
The judgment is affirmed.
Wertz, J., dissents. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from three real estate foreclosure proceedings which were consolidated for discovery and trial.
Between September 1983 and July 1984, the plaintiff/appellee Southwest National Bank of Wichita (Bank) made several construction loans to ATG Construction Management, Inc., (ATG) to enable ATG to build single-family dwellings. Six of these loans went into default and on October 15, 1984, the Bank filed four foreclosure actions in the Sedgwick District Court. (Nos. 84-C-2840, -2841, -2842, and -2843.)
On that same date, the court held an ex parte hearing at the conclusion of which the court appointed Glenn Holmes, the bank vice-president, as receiver in each of the four cases. The court held notice of the appointment of a receiver should be given to all interested parties within three days and a date set for hearing within ten days, thus affording parties time to file objections to the appointment.
Numerous subcontractors were named as defendants in the various actions. Appellant Star Lumber and Supply Co., Inc., (Star Lumber) was named as a defendant in case numbers 84-C-2840, -2841, and -2843. Appellant Valentine Roofing and Waterproofing, Inc., (Valentine Roofing) was named as a defendant only in case number 84-C-2840. Defendant Superior Plumbing of Wichita, Inc., (Superior Plumbing) was a defendant in case numbers 84-C-2840 and -2841.
On October 26,1984, Star Lumber and Valentine Roofing filed objections to the appointment of Holmes as receiver, alleging the appointment was invalid because Holmes was an interested party and seeking the appointment of a independent, qualified receiver, after a proper hearing. The Bank filed a response to these objections, stating that Holmes should be retained as receiver since there were no funds available to complete the construction projects which were the subject of the foreclosure proceedings, and since any other receiver would demand compensation, thereby reducing the available proceeds for payment of debts. The Bank further requested, if another receiver was appointed, the fees and expenses be paid by those who petitioned for the change of receiver.
A hearing on the objections to the appointment of Holmes as receiver was held on November 2, 1984. At the hearing, the district court ruled Holmes was to serve as a custodial receiver rather than as operating receiver. The court also ruled it would not appoint a new receiver unless the parties requesting the appointment were willing to “bring money from home in the event the receivership is an insolvent one and the operating receiver does not generate funds.” Finally, with agreement of all parties the court continued the hearing until December 7, 1984, to “get a better handle on whether or not there would be a reasonable probability an operating receiver would be able to pay the expenses of the receiver.”
Star Lumber and Valentine Roofing failed to appear at the hearing scheduled for December 7, 1984, and the motion was treated as withdrawn.
On February 7,1985, Star Lumber and Valentine Roofing filed counterclaims against the Bank in case numbers 84-C-2840, -2841 and -2843, alleging: (1) The Bank and ATG were joint venturers in a general construction scheme and therefore the Bank was liable for the payments to subcontractors as a co-principal; and (2) the Bank wrongfully obtained an ex parte appointment of an interested receiver and the receiver failed and neglected to discharge his duties as a receiver. It was further alleged that, in case number 84-C-2843, ATG and the Bank wrongfully induced Star Lumber into waiving its lien rights by refusing to honor a check written by ATG to Star Lumber in the amount of $29,848.59 where payment of this check was twice refused. Superior Plumbing was later permitted to join in the counterclaims of Star Lumber.
No counterclaims were filed in case number 84-C-2842. Thus, the Bank obtained a judgment of foreclosure and sale in that action and the subject property was sold before the other three actions proceeded to trial.
At trial, the parties stipulated to the validity of the Bank’s promissory notes and mortgages; the Bank’s records concerning the loan balances for the notes in question; the amounts of the mechanics’ liens filed against the subject properties; the dates the various mortgages and mechanics’ liens were filed of record; and the dates construction commenced on the three properties in question. Since these stipulations established a prima facie case as to the validity, amount, and priority of the Bank’s mortgages, the Bank rested and the trial proceeded upon the defendants’ counterclaims.
On December 16,1985, the trial court issued its memorandum opinion containing extensive findings of fact and conclusions of law. It held Star Lumber and Valentine Roofing waived their objections to the appointment of Holmes as receiver when they failed to appear at the hearing on December 7, 1984. The court further held the defendants failed to prove they had been damaged by the appointment of Holmes or that the appointment of a receiver was unnecessary. Additionally, the trial court held the defendants had failed to show the Bank and ATG were joint venturers.
Star Lumber, Valentine Roofing, and Superior Plumbing appealed the trial court’s rulings. Superior Plumbing has since abandoned its appeal.
Additional facts will be discussed where relevant.
The first issue is whether the trial court erred in failing to find a joint venture existed between the Bank and ATG. The appellants argue that a joint venture existed, and therefore the Bank was liable for payments to the appellants as co-principal.
In Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 74-76, 596 P.2d 816 (1979), this court thoroughly reviewed the law regarding joint ventures and concluded:
“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.” 226 Kan. at 76.
The liability of one engaged in a joint venture for the acts of his associates is discussed in 46 Am. Jur. 2d, Joint Ventures § 57, p. 76:
“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.”
In the present case, the trial court determined no joint venture existed. The scope of appellate review of a trial court’s findings of fact and conclusions of law is to determine whether the findings are supported by substantial competent evidence and are sufficient to justify the conclusions of law. Holly Energy, Inc. v. Patrick, 239 Kan. 528, Syl. ¶ 2, 722 P.2d 1073 (1986).
The trial court concluded that ATG had sole control and direction over: (1) negotiations with prospective purchasers of homes; (2) the preparation of plans and specifications for homes to be constructed; (3) the selection of subcontractors and suppliers; and (4) the manner and schedule of construction. The court further found that title to all properties constructed by ATG and financed by the Bank (with the exception of one house which is the subject of a case not part of this appeal) was in the name of ATG. The court noted that while the Bank initially required a representative of the Bank to co-sign checks drawn on the ATG account, this practice was abandoned within thirty days and prior to the initiation of any loan which is currently the subject of litigation. Finally, the court held the property of ATG was owned solely by ATG; that there was no evidence of an agreement by the Bank to share in the profits and losses of ATG or vice-versa; nor was there any evidence the Bank exercised any voice in determining the division of the net earnings of ATG.
Appellants point to the trial testimony of Joe Driver (ATG’s president), where he stated ATG had agreed with Clem Rasmussen (a loan officer at the Bank) that $10,000 from each ATG project closing was to go to the Bank and be applied to an old debt of Driver’s with the Bank. Appellants argue this is evidence that the Bank and ATG shared expenses, profits, and losses.
The Bank contends that even if such an agreement were made, it is not evidence of a joint venture. Further, the Bank points out that it has never attempted to enforce this agreement and, on the two houses which realized a profit, the Bank received no funds except for the payment of principal and interest on the construction loan.
Thus, the evidence indicates no agreement was ever made by the Bank to share profits and losses with ATG. However, even if an agreement were made and executed for the Bank to receive a payment from each sale to apply on previous debt, it would not be evidence of joint control. It would merely indicate the Bank had bargained for payment of prior debt from current profit.
We affirm the trial court’s ruling and hold appellants failed to establish a joint venture relationship between ATG and the Bank.
Appellants next allege the trial court improperly held they had waived their objections to the appointment of Holmes as receiver. Appellants further argue Holmes negligently conducted his duties and that they were damaged by his conduct.
K.S.A. 60-1301 et seq. govern the appointment of receivers. K.S.A. 1986 Supp. 60-1301 provides:
“A justice of the supreme court, a judge of the court of appeals or a district judge, or in the district judge’s absence from the county a district magistrate judge, shall have authority to appoint a receiver in conformity with the provisions of K.S.A. 60-1302 and 60-1303, and amendments thereto, whose duty it shall be to keep, preserve, and manage all property and protect any business or business interest entrusted to the receiver pending the determination of any proceeding in which such property or interest may be affected by the final judgment. A person who has an interest in property or in the outcome of the proceeding shall not be appointed or continued as a receiver if objection is made thereto by another interested party unless the judge finds and rules that such objection is arbitrary or unreasonable.” (Emphasis added.)
Here, the appellants objected to the appointment of an interested party as receiver and, thus, the court was not permitted under K.S.A. 1986 Supp. 60-1301 to name Holmes as receiver unless it found such objection was “arbitrary or unreasonable.” The court modified its order and appointed Holmes a custodial receiver, then continued the hearing on appellants’ objection to Holmes’ appointment to a later date, commenting those objecting to Holmes should be prepared to pay the fees of an alternate. Appellants failed to appear on the hearing date. Accordingly, the trial court determined appellants had waived their objections to the appointment of Holmes as a receiver, eliminating the necessity for a finding the objection was “arbitrary or unreasonable.”
There being adequate evidence to support the trial court’s findings of fact and conclusions of law, we affirm its determination that the appellants waived and abandoned their objections to the appointment of Holmes as a receiver.
Appellants next contend they are entitled to damages for the wrongful appointment of Holmes as a receiver and contend further that Holmes negligently conducted his duties and that they are entitled to receive damages resulting from that conduct.
The trial court held the fact that Holmes is an officer of the Bank does not in and of itself give rise to damages or punitive damages and the appellants cannot rely upon the statute prohibiting the appointment of an interested party as receiver to support their damage claim, since they had waived their objections. The court further held that before the appellants could be entitled to damages, they must introduce credible evidence that the appointment of a receiver was not necessary. The court then held that the appellants did not introduce such evidence.
In Braun v. Pepper, 224 Kan. 56, Syl. ¶ 3, 578 P.2d 695 (1978), the court held, in an action to recover damages for the wrongful ex parte appointment of a receiver, damages are recoverable if the facts, as established at trial, show that a receivership was not justified. The court further held it is not necessary for the debtor to show the appointment of a receiver was obtained maliciously and without probable cause.
Since the appellants made no showing that a receivership was not justified, the trial court properly refused to award damages for the allegedly wrongful ex parte appointment of a receiver.
However, this determination doe's not address the appellants’ allegations that Holmes negligently performed his obligations, entitling them to compensation.
The standard of care required of a receiver is discussed at 66 Am. Jur. 2d, Receivers § 367, p. 184:
“A receiver, in caring for the property or managing the business over which he has been appointed, is bound to proceed with at least ordinary care and prudence. When he uses ordinary care and prudence, that is, the care and diligence which an ordinarily prudent man uses in handling his own estate, he has fulfilled the measure of his official duty, and is not answerable for losses which occur to the property and assets in his charge; but when he fails to exercise this degree of care and diligence, he becomes answerable for the consequences of his neglect or dereliction. He is not an insurer of the safety of the property; ordinary care is the test of his responsibility. The measure of his responsibility, therefore, is analogous to that of an administrator or guardian.”
Appellants argue “any reasonable person” would have made a report and recommended to the court that the subject properties be sold and liquidated, rather than do “absolutely nothing and experience accruals of interest at the rate of $30 to $40 per day per property.” Appellants further contend Holmes failed to avoid waste and vandalism by securing the premises and that the evidence clearly shows vandalism occurred. Specifically, appellants claim two $900 patio doors were missing from one property and there were several inches of water in the basement of that same property. Testimony also indicated three 6-inch wide planks were missing from a redwood deck located on another property.
The Bank first contends there is no evidence in the record to show whether these problems occurred before or after the appointment of a receiver. Second, no evidence was introduced to show whether the value of any of the properties subject to this appeal decreased due to injury or waste after Holmes was appointed receiver. Finally, the Bank argues the property in question ultimately sold for less than the amount of the Bank’s first mortgage lien and therefore any damages realized were suffered by the Bank, not the appellants.
This is a fact issue determined below by the trier of facts. On appeal we are bound by the findings of fact in the absence of a showing there was no substantial competent evidence to support the findings. Here, the appellants failed to show that the receiver did not exercise ordinary care and diligence in administering his duties. The Bank’s argument, that the property sold for less then its first mortgage and thus any loss was suffered by the Bank, lacks probative value since the receiver’s lack of care could have been the cause of the low selling price. Nevertheless, appellants had the duty to present evidence of the receiver’s negligence and the resulting damages and they failed to do so. We hold there is no merit to this issue.
The final issue raised by appellants is whether the Bank wrongfully induced Star Lumber to waive its lien rights in case number 84-C-2843 by refusing to honor a check written by ATG to Star Lumber in the amount of $29,848.59.
Although appellants’ brief is somewhat unclear on this issue, they appear to argue that because the Bank had almost continuously permitted ATG to operate under a deficit bank balance during the summer of 1984, the Bank therefore was not permitted to reject payment on a check for $29,848.59 written by ATG to Star Lumber and deposited on August 10, 1984. Star Lumber further contends the Bank improperly debited this entry to ATG’s account on August 10 and reversed the entry on August 13.
The Bank argues this issue need not be addressed on appeal since the issue was not raised at trial until closing arguments. Further, the trial court made no findings of fact or conclusions of law with respect to this issue, yet the appellants did not object to this lack of findings. Generally, a litigant must object to inadequate findings and conclusions of law in order to give the trial court an opportunity to correct them. Burch v. Dodge, 4 Kan. App. 2d 503, 507, 608 P.2d 1032 (1980). In the absence of an objection, omissions in findings will not be considered on appeal. Green v. Geer, 239 Kan. 305, 311, 720 P.2d 656 (1986).
We hold the appellants failed to make timely objection to the omission in the trial court’s findings and, accordingly, the issue is not properly before us. However, even if the issue were properly before us, we would find it without merit.
K.S.A. 84-3-508(2) and 84-4-104(l)(h) provide a bank must give notice of dishonor of a check before its midnight deadline and that such deadline is midnight on the next banking day following the day a check is presented for payment. Here, the check was presented on Friday, August 10,1984. The next banking day was Monday, August 13, 1984. The check was returned before midnight August 13. The check was again presented on August 15, 1984, and dishonored on August 16, 1984. Therefore, in both instances, it was properly dishonored by the Bank.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Nuss, J.:
The issue presented is whether a defendant must use actual force to justify a jury instruction on self-defense. We answer this question “yes.” Accordingly, the judgment of the Court of Appeals is affirmed.
FACTS
The facts necessaiy to our determination are straightforward. While visiting their mother in her hospital room, Rodney Maurice Hendrix and his sister, Charlotte Brown, had a heated confrontation. According to Brown, her brother entered the room and angrily approached her. Hendrix “shoved” a piece of paper in her face so severely that when he pulled the paper away it showed traces of her makeup. Brown testified that Hendrix backed away, then again came toward her and pulled a knife. He then threatened to kill Brown if she returned to their mother s home where Hendrix lived and where Brown had been staying during her visit. According to Brown, Hendrix then left.
Hendrix’s stoiy was considerably different. According to him, he entered the hospital room and knelt by his mother while holding a piece of paper that he wanted to. show her. He testified that Brown approached him and stuck her hand in his face while loudly cussing him. Hendrix claimed he was afraid that Brown would slap him. He testified that to get her to back away, he told her he would “bréale her neck.” One fact the siblings do agree upon is the complete absence of physical force by either one.
Hendrix was charged with the crimes of criminal threat and aggravated assault. The trial court denied his request for a self-defense jury instruction on the basis of insufficient evidence. Specifically, it ruled that Hendrix did not have a reasonable belief that his conduct was necessary to defend himself against the use of imminent force by his sister. The jury then convicted Hendrix of making a criminal threat under K.S.A. 21-3419(a) (“any threat to ... [1] [c]ommit violence communicated with intent to terrorize another, or ... in reckless disregard of the risk of causing such terror”) and misdemeanor assault under K.S.A. 21-3408 (“intentionally placing another person in reasonable apprehension of immediate bodily harm”).
The Court of Appeals held that Hendrix was not entided to a self-defense instruction as a matter of law because no physical force was actually used. State v. Hendrix, No. 97,323, unpublished opinion filed September 19, 2008. The panel cited the statute and the standard jury instruction on self-defense: K.S.A. 21-3211 (Furse 1995) and PIK Crim. 3d 54.17. Accordingly, its rationale eliminated the need to consider the trial court’s determination of insufficient evidence of Hendrix’s reasonable belief that his conduct was necessary to defend himself against the threat of imminent force.
We granted Hendrix’s petition for review under K.S.A. 22-3602(e).
ANALYSIS
We recently set forth our standard of review for determining when a defendant is entitled to a jury instruction on his or her theory of defense in State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008):
“ ‘A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory.’ ”
The statute concerning Hendrix’s theory of self-defense, K.S.A. 21-3211 (Furse 1995), in turn provides as follows:
“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 use of unlawful force.” (Emphasis added.)
We begin by acknowledging that the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007). The intent of the legislature is to be derived in the first place from the words used. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 460, 124 P.3d 57 (2005). In determining whether a statute is open to construction or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous language. Perry v. Board of Franklin County Comm'rs, 281 Kan. 801, Syl. ¶ 8, 132 P.3d 1279 (2006); see Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 822, 104 P.3d 378 (2005).
“When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” Steffes, 284 Kan. 380, Syl. ¶ 2.
We agree with the State and the Court of Appeals panel that the phrase “use of force” contained in K.S.A. 21-3211 (Furse 1995) should be given its ordinary meaning — and that means actual force. “Use of force” does not mean “threat of force” or “display of force” or “presentation of force” or any interpretations which similarly dilute the actual use of force, i.e., physical contact.
Even if the statutory language were somehow ambiguous and we looked to canons of construction to assist in determining the meaning of “use of force,” we note that the legislature has been clear in other contexts to distinguish between the actual use of force and diluted variations. For example, the legislature has explicitly defined robbery as the taking of property from the person or presence of another either “by force or by threat of bodily harm” to any person. (Emphasis added.) K.S.A. 21-3426. The legislature has made the same type of explicit distinctions in the crime of kidnapping. It defines kidnapping as a taking or confining of another person “accomplished by force, threat or deception.” (Emphasis added.) K.S.A. 21-3420.
Finally the legislative distinction is again clearly made in K.S.A. 21-3213 which concerns defense of property other than a dwelling. It provides:
“A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.” (Emphasis added.)
Hendrix’s take on the statutes would make the language of clear distinction superfluous. In short, there would be no need for the legislature to discern, on the one hand, “threats” or implied force from actual “force” and “use of force” on the other. See Hawley v. Kansas Department of Agriculture, 281 Kan. 603, Syl. ¶ 9, 132 P.3d 870 (2006) (there is a presumption that the legislature does not intend to enact useless or meaningless legislation).
Hendrix relies upon language contained in another unpublished Court of Appeals decision, State v. Kincade, No. 94,657, filed August 4, 2006. There the panel stated:
“In the present case, idle defendant offered no evidence which, if believed, would have supported a reasonable belief the defendant or another person was in imminent danger of the use of unlawful force. The use of force or the threat of force to protect another person is a defense only when such force is necessary to protect the third party from an aggressor s imminent use of force. K.S.A. 21-3211. The evidence in this case provides no basis from which to conclude that any person, other than the victim, was placed in imminent danger of the use of unlawful force justifying the defendant’s protective use of force in response. The record simply fails to support an instruction on self-defense or defense of another.” (Emphasis added.) Slip Op. at 4.
The italicized words upon which Hendrix relies are contrary to the plain language of the statute. More specifically, the Kincade panel inappropriately read into the statute words not found there. Steffes, 284 Kan. 380, Syl. ¶ 2. To the extent that Kincade is inconsistent with the holding of the instant case, it is overruled.
Hendrix primarily argues policy considerations. Among other things, he points out the alleged absurdity in denying self-defense to a defendant (purportedly like himself) who can defuse a violent situation with the mere threat of force, but then in granting the defense to one who instead chooses to actually apply force. He argues the statute — or at least our interpretation of it — promotes violence because defendants wanting to ensure their entitlement to the defense will use actual force instead of words.
We agree with the worthy goal of promoting de-escalation, e.g., defusing a violent episode with some well chosen words. However, policy making is the province of the legislature. See Bland v. Scott, 279 Kan. 962, 966, 112 P.3d 941 (2005) (“ ‘declaration of public policy is normally the function of the legislative branch of government’ ”); see also State v. Prine, 287 Kan. 713, 737, 200 P.3d 1 (2009) (“Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change that might make [the statute] more workable.”). It alone must decide whether to pursue this goal in the self-defense statute. Consequently, it alone must decide to make the explicit distinctions there as it has in the other statutory enactments mentioned earlier.
Such an approach would also be consistent with the ones chosen by a number of other states in their self-defense statutes. See, e.g., Ga. Code Ann. § 16-3-24.2 (2007) (“A person who uses threats or force ... shall be immune from criminal prosecution therefor....”); Tex. Penal Code Ann. § 9.04 (West 2003) (“The threat of force is justified when the use of force is justified by this chapter.”); Wise. Stat. § 939.48(1) (2005) (“A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person.”).
For all of these reasons, the judgment of the Court of Appeals is affirmed. | [
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|
The opinion of the court was delivered by
Beier, J.;
This case arises out of a denial of movant Jerry L. Rowland’s K.S.A. 60-1507 motion after appointment of counsel and a preliminary hearing. Rowland attempts to pursue a claim that the evidence against him was insufficient, as well as alleging ineffective assistance of trial and appellate counsel. The peculiar procedural path of Rowland’s claims compels us to reexamine the procedure to be followed when a criminal defendant alleges ineffective assistance of counsel during direct appeal or on K.S.A. 60-1507 motion.
Factual and Procedural Rackground
The State charged Rowland with one count of aggravated burglary, one count of rape, and one count of aggravated criminal sodomy. At trial, the victim, R.C., testified that she woke up to discover Rowland standing in the doorway’ of her bedroom. Although she struggled with Rowland, he overpowered her and penetrated her anally and vaginally.
As Rowland left, R.C. further testified, she followed him, locking the exterior door to her apartment behind him. She then saw Rowland reach through a window and unlock the door, and she immediately took refuge in a bathroom. She called police from her cell phone. While on the phone, R.C. could hear Rowland walking around her apartment. Rowland also banged on the bathroom door once but did not try to enter the room, even though the bathroom door had no lock.
During defense counsel’s cross-examination of R.C., he established that (1) Rowland had been a friend of R.C.’s boyfriend; (2) R.C. did not like Rowland; (3) R.C. did not scream for help; (4) R.C.’s cell phone had been next to her bed during the attack; and (5) R.C. called her boyfriend and her mother from the bathroom before she called the police.
Kathy Gill-Hopple, an advanced registered nurse practitioner who examined R.C. on the morning of the crimes, testified at trial that R.C. had told her during the exam:
“[S]he was at home asleep in her bed about 7:00 in the morning, and she woke up and her neighbor, [Rowland], was on top other, ripping her underwear .... She tried to push him off other, and he pushed her back down, and then she said he was inside of her. . . .
“. . . She was pushing him, and finally he left. At that point she got up and locked the door, went into the bathroom, called her mother and her boyfriend, and while she was in the bathroom, he came back through the kitchen window. She locked the bathroom door, and he was banging on the door and asked who [she] was calling. Then she said he got his stuff and left.”
The jury convicted Rowland of aggravated burglary and of attempted rape as a lesser included offense of rape. It deadlocked on the aggravated criminal sodomy charge.
On direct appeal to our Court of Appeals, Rowland argued that the trial judge erred by failing to instruct the jury on voluntary intoxication. He also argued that he was denied his right to counsel, to due process, and to a fair trial because:
“Defense counsel confessed guilt in opening statement, and then placed [Rowland] on the stand and elicited a confession to the crime from him. In closing, counsel argued to the jury that [Rowland] should be found guilty of lesser included offenses of the charged offenses, even though [Rowland] had asserted his innocence. Finally, counsel also failed to request an instruction on voluntary intoxication that would have informed the jury that [Rowland] had a defense to the charges.”
The Court of Appeals panel ruled that the omission of a jury instruction on voluntary intoxication was not clearly erroneous, because the record did not demonstrate that Rowland was unable to form the requisite intent to commit rape because alcohol or drags impaired his mental faculties. State v. Rowland, No. 90,128, unpublished opinion filed July 23, 2004.
The panel also rejected Rowland’s argument that his trial counsel was ineffective. After reciting the two-pronged standard for such claims — objectively unreasonable performance by counsel and prejudice arising from that performance — the panel’s entire discussion of the merits of the claim was contained in one brief paragraph. It read:
“The record provides no evidence the defendant’s representation at trial constituted a breakdown of the adversarial system of justice. Every allegation concerning trial counsel’s admissions of the defendant’s guilt is unsubstantiated by the record on appeal.” Rowland, slip op. at 2.
The defense had not requested a remand to the district court for a hearing on the ineffective assistance of counsel claim under State v. Van Cleave, 239 Kan. 117, 120, 716 P.2d 580 (1986), and the panel had not required one. Rather, the panel characterized Rowland’s claim as one of the few ineffective assistance claims that could be decided on direct appeal on the record as it stood at that time. Rowland, slip op. at 1-2 (citing State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 [2000]).
Rowland later filed the pro se K.S.A. 60-1507 motion that is the subject of this appeal. He argued that there was insufficient evidence to convict him of aggravated burglary and attempted rape. To support this claim, Rowland asserted that R.C.’s testimony at trial contradicted information she had provided to the police.
“[R.C.] initiated communication with law enforcement and gave die following statements!:] ‘[T]hat [Rowland] ripped her underwear off[;] that [Rowland] entered the home a second time through tire kitchen windowf; and] that she had locked the bedroom door.’
“When testifying under oath, [R.C.’s] testimony differed] from the testimony she gave initially to officers, under oath she testified[: (1)] ‘that [Rowland] pulled her panties to the side, that they weren’t off[;] (2) that there wasn’t a lock on the bathroom door[;] and (3) that she saw [Rowland] reaching in the window from the kitchen.’ ”
Rowland’s sufficiency challenge also relied upon what he asserted was an absence of evidence of his specific intent and, otherwise, to prove he raped R.C.
In addition, Rowland’s pro se motion argued that his trial “counsel’s representation fell below an objective standard of reasonableness.” He contended that his counsel’s failure to challenge inconsistencies in R.C.’s testimony affected the outcome of the trial.
The district judge rejected Rowland’s motion after appointing counsel and conducting a preliminary hearing to entertain legal arguments. The judge adopted the State’s response as his ruling and instructed the prosecutor to prepare a journal entry. Thus, to the extent tire motion advanced insufficiency of evidence, the judge rejected tire claim as improper under K.S.A. 60-1507. The judge also rejected the claim that trial counsel had been ineffective by failing to challenge R.C.’s testimony, pursue the issue of Rowland’s intent, and investigate unspecified matters, because an ineffectiveness claim had been dealt with on direct appeal. The judge also ruled that the ineffectiveness claim lacked merit because Rowland had been convicted of a lesser included offense, the jury had deadlocked on the aggravated criminal sodomy charge, and trial counsel had cross-examined R.C.; and there was sufficient evidence to corroborate her testimony.
In his brief to the Court of Appeals, Rowland contended that the evidence at trial was insufficient because R.C.’s story was inconsistent, and her credibility should have been determined by the court in some manner pretrial. Rowland asserted that his testimony, in contrast to R.C.’s, was consistent, and he argued specifically that this meant the State had failed to prove his intent to rape R.C. Rowland also asserted that exceptional circumstances allowed him to raise his sufficiency argument on his K.S.A. 60-1507 motion, because he had received ineffective assistance of counsel on his direct appeal, citing Maggard v. State, 27 Kan. App. 2d. 1060, 1064-65, 11 P.3d 89, rev. denied 270 Kan. 899 (2000). Rowland further challenged the quality of the assistance he had received from trial counsel, arguing that counsel’s failures to “seek out the credibility” of R.C., request that she undergo a psychiatric evaluation, and present adequate evidence of her character or emotional state entitled him to a reversal and a new trial. Rowland differentiated the motion’s arguments supporting his trial ineffectiveness claim from those that had been raised on his direct appeal, asserting that the direct appeal had dealt with counsel’s guilt-based defense rather than a failure to investigate and failure to “pursue” the element of intent. Rowland also urged the Court of Appeals to reject the district judge’s adoption of the State’s response as the legal ruling and sought remand for an evidentiary hearing on his K.S.A. 60-1507 motion.
In its brief to the Court of Appeals, the State argued that Rowland’s claim on ineffectiveness of trial counsel had already been heard and decided against Rowland on direct appeal, a decision with res judicata effect. It also argued that the ineffectiveness claim failed on its merits because the record demonstrated that defense counsel’s cross-examination had exposed inconsistencies in R.C.’s story, that there was no support for an order directing her to undergo a psychiatric evaluation, and that Rowland’s conviction on a lesser crime for the rape charge and the jury’s inability to reach a verdict on the aggravated criminal sodomy charge meant defense counsel’s performance was constitutionally sound. The State also argued that Rowland’s sufficiency claim ordinarily would not be properly before the court on a K.S.A. 60-1507 motion and that he failed to articulate exceptional circumstances to allow the court to reach its merits. The State agreed that the district court had rejected the motion’s sufficiency and ineffective assistance claims because of procedural bars.
The Court of Appeals panel affirmed the district court’s decision. The panel noted that a K.S.A. 60-1507 motion cannot be used as a substitute for a direct appeal or as a second direct appeal, absent showings that the alleged trial error affected constitutional rights and that exceptional circumstances excuse the requirement that it have been raised earlier, and then determined Rowland had failed to establish exceptional circumstances for his sufficiency claim. Rowland, slip op. at 1. On the other side of the K.S.A. 60-1507 coin, tire panel determined that Rowland was barred from raising his ineffective assistance of counsel claim, because the Court of Appeals had considered and decided such a claim on his direct appeal:
“Rowland acknowledges diis issue was raised and decided in his direct appeal, but claims we should nonetheless address the issue because he is alleging a different factual basis to support the ineffective assistance of counsel claim. [State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990), rules] otherwise.
“Further, Rowland fails to establish exceptional circumstances warranting further examination of this issue.” Rowland, slip op. at 4.
The panel did not address Rowland’s specific sufficiency argument regarding lack of intent evidence.
Rowland filed a petition for review with this court. He argued first that his ineffective assistance of trial counsel claim in his K.S.A. 60-1507 motion differed significantly from that made in his direct appeal and that it thus could still be the catalyst for post-conviction relief. Second, he argued that the Court of Appeals erred in ruling that his sufficiency claim was barred because he had failed to argue exceptional circumstances for its late appearance. Rather, in his view, he had adequately argued that ineffective assistance by trial and appellate counsel constituted the necessary exceptional circumstances to enable the court to reach the sufficiency claim.
We granted Rowland’s petition for review. The State has since filed a supplemental brief, which invoked Bellamy v. State, 285 Kan. 346, 353-54, 172 P.3d 10 (2007), for the applicable standards of review on K.S.A. 60-1507 motions. Under that decision, when a district court judge has appointed counsel and conducted a preliminary hearing, we review any findings of fact under a deferential standard and any conclusions of law under a de novo standard. Bellamy, 285 Kan. at 354. In order to obtain K.S.A. 60-1507 relief, as a matter of law, a movant must demonstrate that
“the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack ....” K.S.A. 60-1507(b).
We address the issues in the order they are raised in Rowland’s petition for review.
Ineffective Assistance of Counsel
The standard for demonstrating ineffective assistance of counsel is often recited. Rowland must
“establish the two essential elements of ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984); [citation omitted]. Those elements, as recognized by this court, are: (1) counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances and (2) but for counsel’s deficient performance there is a reasonable probability that the outcome of the proceeding would have been more favorable to the defendant. [Citation omitted.] In considering the first element, [Rowland’s] trial and appellate counsel enjoy a strong presumption that their conduct falls within the wide range of reasonable professional conduct. Thus, we are highly deferential in scrutinizing their conduct and make every effort to eliminate the distorting effects of hindsight.” Moncla v. State, 285 Kan. 826, 831-32, 176 P.3d 954 (2008).
Moreover, Rowland
“must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690-91. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than a complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 466 U.S. at 690-91. [Rowland] bears the burden of demonstrating that trial counsel’s alleged deficiencies were not tire result of strategy. Ferguson v. State, 276 Kan. 428, 446, 78. P.3d 40 (2003).” State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004).
The second element requires a showing of prejudice. Moncla, 285 Kan. 832.
Ordinarily an ineffective assistance of trial counsel claim is not suitable for resolution on direct appeal. See State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000). There are several sound reasons for this rule. If trial counsel continues to represent a defendant on appeal, an ineffective assistance of counsel claim usually gives rise to an irreconcilable conflict of interest. If trial counsel does not continue to represent the defendant on appeal and yet is not inclined to fall on his or her sword, no chance to develop facts and present evidence in support of or in derogation of the quality of the trial representation will have been afforded to counsel or to tire defendant. In addition, the district court judge who presided over the proceedings below, who usually is in the best position to judge the merits of many such claims, will not have had a chance to consider and rule upon the issue.
Because such claims nevertheless become apparent during the pendency of some direct appeals, we have developed a procedure for remand to the district court to consider a claim that trial counsel was ineffective before the appeal is finally decided. This procedure, referred to as a Van Cleave hearing, see 239 Kan. at 120-21, may begin with a party’s motion for such a remand or with the court’s sua sponte order, so that facts relevant to determination of the legal issue may be developed and an evidentiary record established.
The problem in this case is that no Van Cleave hearing took place before Rowland’s ineffective assistance of counsel claim was finally decided on direct appeal. Although there are circumstances when no evidentiaiy record need be established, when the merit or lack of merit of an ineffectiveness claim about trial counsel is obvious without that step being taken, see Laymon v. State, 280 Kan. 430, 444, 122 P.3d 326 (2005); Carter, 270 Kan. at 433-34, 440-41 (counsel’s adoption of a guilt-based defense in conflict with defendant’s wishes deprived defendant of effective assistance, prejudicial per se), such circumstances are extremely rare. If an appellate court foregoes the Van Cleave procedure, it risks what has occurred here: The defendant, with or without legal assistance, later moves under K.S.A. 60-1507 to challenge ineffective assistance of counsel, either to complete the litigation of an earlier argument or to raise a new one or both. Without a thorough procedure in the first instance, such claims cannot be cavalierly rejected.
As recited above, Rowland’s ineffective assistance claim on direct appeal included an attack on what he characterized as his counsel’s unauthorized admission of Rowland’s guilt, a claim the Court of Appeals characterized as “unsubstantiated by the record on appeal.” Rowland, slip op. at 2. It was appropriate for the Court of Appeals to dispose of this claim. See Carter, 270 Kan. at 433.
But Rowland also questioned his counsel’s failure to seek a voluntary intoxication instruction. Although, on the record then existing, the Court of Appeals ruled that the absence of such an instruction without a defense request was not clear error on the part of the district judge, this ruling was not the analytical equivalent of (1) a ruling that Rowland’s counsel had performed an adequate pretrial investigation; (2) a ruling that he had presented adequate evidence at trial, perhaps evidence that could have supported such a voluntary intoxication instruction; or (3) a ruling that a failure in either regard did not prejudice Rowland’s case.
On this portion of Rowland’s direct appeal ineffective assistance claim, the Court of Appeals should have remanded on its own motion for a Van Cleave hearing or declined to decide the merits, until it had been brought first to the district court on a K.S.A. 60-1507 motion. Either procedure could have insured that this and any other questions regarding trial counsel’s performance were fully explored and disposed of by the district court first, where any necessary evidentiary hearing could be held and trial counsel and Rowland permitted to testify. If such a procedure had been followed here, then Rowland would have been barred from raising any later argument to support a second ineffective assistance of counsel claim.
The Court of Appeals’ direct appeal decision on Rowland’s ineffective assistance of counsel claim based on the argument that counsel should have sought a voluntary intoxication instruction was premature. The panel appears to have assumed that trial counsel’s choice about the need for the instruction was strategic and thus functionally unassailable. See Gleason, 277 Kan. at 244. But strategy cannot be automatically assumed. Although counsel’s.performance cannot be viewed through the corrective lens of 20/20 hindsight, and a defendant claiming ineffective assistance must bear the burden of proof, counsel’s decision does not necessarily merit a “strategic” label merely because it fell within the broad category of decisions not specifically reserved to his or her client. See State v. Gonzales, 289 Kan. 351, 358, 212 P.3d 215 (2009) (only criminal defendant can make choice of plea, waiver of jury trial, whether to testify). To be strategic, a choice must have been made by counsel after “thorough investigation of law and facts relevant to plausible options.” Gleason, 277 Kan. at 244.
It is apparent that the record before the Court of Appeals on direct appeal did not contain the information necessary for the panel to determine whether Rowland’s counsel made an informed choice or an ignorant mistake on the voluntary intoxication instruction. Until such a record was available, no judge or panel should have decided the merits of the ineffective assistance of counsel issue as a whole and as a matter of law. Thus the panel’s decision does not pose a procedural obstacle to the defendant’s later arguments in support of such a claim, even though the arguments may differ. Cf. Rice v. State, 37 Kan. App. 2d 456, 464-65, 154 P.3d 537, rev. denied 284 Kan. 946 (2007) (defendant who received Van Cleave hearing during direct appeal on claim of ineffective assistance barred from relitigating any arguments on ineffective assistance in later K.S.A. 60-1507 motion).
Because Rowland’s ineffective assistance of counsel claim did not receive the complete review it was due during his direct appeal, he may advance further arguments in support of the claim on his K.S.A. 60-1507 motion. We therefore must reverse the Court of Appeals and the district court and remand this case for further proceedings consistent with this opinion in the district court.
Sufficiency of the Evidence
As both parties acknowledge, a K.S.A. 60-1507 motion cannot serve as a vehicle to raise an issue that should have been raised on direct appeal, unless the movant demonstrates exceptional circumstances excusing earlier failure to bring the issue before the court. See Supreme Court Rule 183(c)(3) (2008 Kan. Ct. R. Annot. 247); State v. Swisher, 281 Kan. 447, 450, 132 P.3d 1274 (2006). Exceptional circumstances have been defined as “unusual events or intervening changes in the law.” See Woodberry v. State, 33 Kan. App. 2d 171, 175, 101 P.3d 727, rev. denied 278 Kan. 853 (2004). Ineffective assistance of counsel can qualify as an exceptional circumstance. See Robertson v. State, 288 Kan. 217, 221, 201 P.3d 691 (2009).
In this appeal, Rowland intermittently advances ineffective assistance of trial and appellate counsel as the exceptional circumstances allowing him to raise sufficiency of the evidence — including what can only be seen as a subissue on evidence of intent to rape R.C. — on this K.S.A. 60-1507 motion. He is correct that the Court of Appeals did not address the effect of this ineffective assistance argument on the usual procedural bar to a sufficiency claim. This was an erroneous omission in its reasoning.
Nonetheless, we are compelled to uphold the Court of Appeals panel’s decision on this issue as right for the wrong reasons. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008). The problem for Rowland on his sufficiency claim is not procedural; it is substantive.
Even if we were to assume that an error by trial counsel or appellate counsel was sufficient to amount to an exceptional circumstance, Rowland’s sufficiency claim is plainly without merit. In fact, it is mislabeled. Stripped of bombast, Rowland does not actually argue that there was no evidence of the necessaiy intent for attempted rape or any other element. He argues only that the State’s evidence was weaker than his evidence. The jury’s decision on which version of events to credit was its alone. The district judge was not equipped or empowered before trial, nor is this court long after trial, to weigh the parties’ stories and assess their relative credibility. Regardless of any inconsistencies in R.C.’s version of events, the record contains ample evidence of Rowland’s guilt. See State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007) (after review of all evidence, in light most favorable to prosecution, appellate court must be convinced rational factfinder could have found defendant guilty beyond reasonable doubt). The district court thus need not address sufficiency of the evidence on remand.
Judgment of the Court of Appeals is affirmed in part and reversed in part. Judgment of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant was charged with manslaughter in the fourth degree. (G. S. 1949, 21-420.) The information alleged in substance that the defendant drove his automobile into an intersection without first stopping at the stop sign controlling his entrance thereto, thus causing a collision with another vehicle entering the intersection from a different direction, killing two children who were passengers in the defendant’s vehicle as a result thereof.
Trial was had before a jury which returned a verdict of guilty. The defendant was sentenced to six months in the county jail, from which judgment and sentence appeal was duly perfected to this court.
The questions presented are (1) whether the trial court properly instructed the jury; and (2) whether the jury was guilty of misconduct which prejudiced the substantial rights of the appellant.
Except as hereafter noted the facts giving rise to this action are not in dispute.
The appellant is thirty-four years of age and resides in Johnson County, Kansas. He is married and the father of two children. Ernest Roberts, the father of the two deceased children, and the appellant are good friends and reside next door to each other. Their families visit back and forth.
On September 11, 1960, both families met at a Go-Kart track in Johnson County where they enjoyed a picnic. At approximately 5:00 p. m., Ernest Roberts and two of his children, Randy and Thomas, left with the appellant who was driving a Nash Rambler station wagon. One Go-Kart was tied to the top of the station wagon with its wheels resting on the roof. The second Go-Kart was placed in the back seat where the two children were sitting, one on each side of the Go-Kart.
The appellant was proceeding north on Morse Road toward the intersection of 111th Street. Both of the intersecting roads were black-top but Morse Road was more heavily covered with small gravel or chat. Morse Road is controlled by a stop sign at the intersection but 111th Street is not. At the time of the accident, approximately 350 feet south of the intersection in question on Morse Road was a “Stop Ahead” sign. There was also a stop sign at the southeast corner of the intersection controlling traffic on Morse Road proceeding north. West of the intersection on 111th Street is an “Intersection Ahead” or “Dangerous Intersection” sign. The field on the southwest corner of the intersection had a growing crop of sorghum which obstructed the view.
Both roads were zoned for a maximum speed of 60 miles per hour, and according to Roberts’ testimony they were proceeding northward on Morse Road at approximately 45 to 50 miles per hour when Roberts, who was trying to light a cigarette, glanced up to see the stop sign out of the corner of his eye and the top of the Riggs car approaching, from the west on 111th Street. Roberts started to say “Bob, here comes a car,” but only got out “Bob” when the collision occurred.
The impact took place slightly south of the center of the intersection with the Riggs car leaving skid marks measuring 37 feet and the appellant’s car leaving skid marks measuring 17 feet up to the point of impact. The appellant’s vehicle struck the right side of the Riggs car with its left front fender.
As a result of the accident the appellant, Thomas Roberts and Randy Roberts were thrown from the station wagon. Thomas died at the scene, and Randy died enroute to a hospital. The appellant was knocked unconscious and has no recollection of the accident or the events immediately preceding it.
The only discrepancy in the evidence worthy to note is the speed at which the appellant drove into the intersection. Harold R. Riggs, driver of the other vehicle involved in the collision, said it appeared to him as though the appellant’s car was coming at perhaps 70 miles per hour. Mr. Riggs testified that he reduced his speed from approximately 40 to approximately 35 miles per hour at the intersection, ■ but that his speed was slightly less than 35 miles per hour at the time of the impact.
The allegations of the information pertinent to this appeal charged that the appellant on or about the 11th day of September, 1960, in Johnson County “did then and there Unlawfully, feloniously, willfully and by his act, procurement and culpable negligence, kill two human beings,” in negligent disregard of the lives and property of other persons.
The appellant contends the court improperly instructed the jury with respect to the elements of manslaughter, in the fourth degree, and complains particularly of Instruction No. 8 given to the jury.
Material to a proper disposition of this point are the following instructions given by the trial court:
“Instruction No. 3.
“You are instructed that the law of Kansas in Section 21-420 provides: ‘Every other killing of a' human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.’ [Emphasis added.]
“Instruction No. 4.
“Culpable negligence, as that term is used in defining manslaughter in the fourth degree, as set out in these instructions, means an act or acts of reckless indifference to the rights and safety of others.
“Instruction No. 5.
“You are further instructed that the mere fact you may believe from the evidence beyond a reasonable doubt that the defendant was operating his motor vehicle in a culpably negligent manner, such is not sufficient to sustain a conviction of manslaughter in the fourth degree. There must be, in addition, a causal connection between the acts or the culpable negligence of the defendant and the death of the persons. In other words, the acts or culpable negligence of the defendant must be the proximate cause of the death of the person.
“The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred. Unless you find beyond a reasonable doubt that the culpable negligence of the defendant was the proximate cause of the death of the person, then you will acquit the defendant of the charge of manslaughter in the fourth degree.
“Instruction No. 6.
“You are further instructed that the laws of Kansas, Section 8-568 of the 1959 Supplement to the General Statutes of Kansas for 1949, provide in part:
“ ‘Except when directed to proceed by police officer or traffic control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway, before entering the intersection.’
“Instruction No. 7.
“You are further instructed that Section 8-5G8 of the 1959 Supplement to the General Statutes of Kansas for 1949 is a statute enacted for the purpose of protecting human life and safety.
“Instruction No. 8.
“You are further instructed that if you find from the evidence beyond a reasonable doubt that the defendant drove his automobile into 111th Street at its intersection with Morse Road in Johnson County, Kansas, without first stopping said automobile at the lawfully erected stop sign at the Southeast corner of the intersection of 111th Street and Morse Road and in violation of Section 8-568 and that Randy Roberts and Thomas Roberts died as a proximate result of said unlawful conduct, the defendant is guilty of manslaughter in the fourth degree.”
The trial court then instructed that the charge in the information contained the lesser offense of negligent homicide, which was defined, and it gave other appropriate instructions concerning which no complaint is made.
It is the appellant’s position that Instruction No. 8 should not have been given because it is inconsistent with many of the principles laid down in State v. Custer, 129 Kan. 381, 282 Pac. 1071. It is argued the holding in Custer did not intend the result reached in this case; that the jury, in effect, as instructed were told to return a verdict of guilty — that violation of the statute was manslaughter in the fourth degree if death resulted as the proximate result thereof.
The appellant contends later cases relying upon State v. Custer, supra, do not present a consistent pattern. It is argued later cases had factors present other than a mere violation of a statute designed for the purpose of protecting human life and safety. (Citing, State v. Pendleton, 144 Kan. 410, 61 P. 2d 107; State v. Gloyd, 148 Kan. 706, 84 P. 2d 966; State v. Phelps, 153 Kan. 337, 110 P. 2d 755; State v. Spohr, 171 Kan. 129, 230 P. 2d 1013; State v. Gibler, 182 Kan. 578, 322 P. 2d 829; and State v. Yowell, 184 Kan. 352, 336 P. 2d 841.)
The appellant argues the type of conduct which seems to be the correct basis for a manslaughter conviction is illustrated in State v. Townsend, 146 Kan. 982, 73 P. 2d 1124, which involved driving at high speed under the influence of intoxicating liquor, and driving crosswise to the highway into the path of an oncoming vehicle. Cases inconsistent with the appellant’s theory of manslaughter in the fourth degree are criticized and cited as throwing confusion into the law. We do not think the law to be in a state of confusion. In State v. Champ, 172 Kan. 737, 242 P. 2d 1070, it was said:
“. . . Since the decision in State v. Custer, supra, it is no longer an open question in this state as to what constitutes manslaughter at common law.” (p. 739.)
The last case on the subject, State v. Brooks, 187 Kan. 46, 354 P. 2d 89, clearly construed the Custer case in the following language:
“As held in State v. Custer, supra, and our other decisions, involuntary manslaughter is the killing of another unintentionally and without malice and results either from the commission of a lawful act or an unlawful act. If death resulted from negligent conduct in doing a lawful act it is necessary in order to constitute manslaughter that the conduct be reckless, that is, be such as to evince disregard or indifference to consequences, under circumstances involving danger to life and safety to others, although no harm was intended. On the other hand, if death resulted from unlawful conduct amounting to misdemeanors denounced by statutes for the purpose of protecting human life and safety, and the death would not have resulted except for the unlawful conduct, the killing would also be manslaughter at common law. Whether statutes are enacted and designed for the purpose of protecting human life and safety is a question of law for the courts to determine (State v. Yowell, 184 Kan. 352, supra).” (p. 50.)
The decisions following State v. Custer, supra, under G. S. 1949, 21-420, defining manslaughter in the fourth degree, clearly indicate two types of conduct which would be manslaughter at the common law. The instructions given by the court in the instant case correctly give recognition to such interpretation of the statute. It is sufficient to sustain a conviction under 21-420, supra, that the person charged cause the death of another by unlawful conduct amounting to a misdemeanor denounced by statute for the purpose of protecting human life and safety. Under such circumstances, where the death would not have resulted except for the unlawful conduct, the killing would be manslaughter at common law. Violation of G. S. 1959 Supp., 8-568, amending the original act, is denounced as a misdemeanor by G. S. 1949, 8-503, and was clearly enacted for the purpose of protecting human life and safety.
The crucial language in 21-420, supra, is worded in the alternative —‘Toy his act, procurement or culpable negligence.” Therefore, it is unnecessary to have “procurement” or “culpable negligence” to sustain a conviction for manslaughter in the fourth degree where the unlawful act would be manslaughter at the common law.
While the language used in the information in the case at bar is worded in the conjunctive — “by his act, procurement and culpable negligence,” and not in the alternative as worded in the statute, the variance is immaterial. It cannot be said the substantial rights of the appellant were prejudiced because he was charged with both types of conduct denounced in 21-420, supra, which would be manslaughter at the common law. (See, G. S. 1949, 62-1011; State v. Champ, supra; and State v. Brooks, supra.)
In the last paragraph of State v. Custer, supra, the court said:
“The views which have been expressed will not require any change in the manner of pleading manslaughter. Paradoxical as it may seem, manslaughter committed by act, procurement or culpable negligence, which would be manslaughter at common law, is a statutory crime, and the information may charge killing by unlawful act, or by culpable negligence, stating the facts.” (p. 395.)
If there appears to be an inconsistency in the cases, it is attributable to the fact that the killing by unlawful act denounced in 21-420, supra, may also, depending on the facts, be killing by the type of conduct described as culpable negligence in such statute. It may have been the intention of the county attorney who filed the information in the instant case to charge the appellant with both types of conduct by using the conjunctive in the information.
The trial court did not err in giving Instruction No. 8 to the jury.
The appellant contends the jury was guilty of misconduct which prejudiced his substantial rights.
At the hearing on the motion for a new trial five jurors appeared in response to subpoenas and by their testimony established that most of the jurors had consulted dictionaries at their homes, during a recess until the following day, to ascertain the meaning of the word “culpable” which appeared in the court’s instructions.
Prior to the recess in which the jurors resorted to the dictionary, and during their deliberations, the jury sent two questions to the court. One read as follows:
“Does an act of culpable negligence have to be involved to bring a conviction of 4th degree manslaughter?”
The foregoing question indicates the jury was confused by the last sentence of Instruction No. 5.
The trial judge told the jury they could find the answer by reading all the instructions pertaining to manslaughter in the fourth degree.
Some of the jurors indicated, after following the court’s instruction in this respect, the meaning of the word “culpable” was not clear in their minds; thus indicating they erroneously felt the answer to the above question was in the affirmative.
It was admitted there was discussion in the jury room concerning the various meanings obtained by reading dictionaries. One of the definitions given in Webster’s Unabridged Dictionary was written on a piece of paper and returned to the jury room. It was: “deserving of blame or censure.” Another testified he remembered the definition of the word to be “worthy of blame,, along those lines.”
One juror testified the dictionary definition “deserving of blame or censure” satisfied his own mind, at least, he ..was thinking the same as the instructions instructed him. (See Instruction No. 4.)
It is the appellant’s contention the dictionary cannot usurp the court’s duty and prerogative to instruct a jury in all respects. It is argued the dictionary definition is not the accepted legal definition of the word “culpable.” State v. Custer, supra, is cited where the court discussed the dictionary definition of the word “culpable” in the phrase “culpable negligence.”
G. S. 1949, 62-1718, provides that on appeal the court must give judgment without regard to technical errors or defects which do not' affect the substantial rights of the parties.
The state concedes the jury was guilty of misconduct and recognizes it has the burden of establishing that the substantial rights of the appellant have not been prejudiced.
Cases in which the jurors went beyond the evidence submitted in court to determine certain questions, and in which a new trial was granted are: State v. Lantz, 23 Kan. 728; State v. Clark, 34 Kan. 289, 8 Pac. 528; State v. McCormick, 57 Kan. 440; 46 Pac. 777; and State v. Hanes, 166 Kan. 271, 200 P. 2d 317. Other cases in which a new trial was not granted are State v. Schaben, 69 Kan. 421, 76 Pac. 823; State v. Evans, 90 Kan. 795, 136 Pac. 270; and State v. Faulkner, 139 Kan. 665, 33 P. 2d 175, thus indicating that each case must be considered upon its own particular set of facts and circumstances.
In this state it is proper to instruct jurors that they have the right to use that knowledge and experience which they possess in common with men in general. The meaning of words in the English language is ordinarily a matter concerning which the jurors have common knowledge.
The word “culpable” was used in the trial court’s instructions numbered 4 and 5, and it was used only in connection with the phrase “culpable negligence,” which was defined in Instruction No. 4.
A definition of the word “culpable” was not given by the court, and obviously the ordinary meaning of the word in the dictionary would not necessarily define “culpable negligence.” The jury was therefore,inquisitive, no one knowing the ordinary meaning of the word, to find its definition. An understanding of this word, as we read instructions numbered 4 and 5, would better enable the jurors to understand the court’s definition of “culpable negligence” given in Instruction No. 4.
Furthermore, the jurors were not required under the evidence to consider “culpable negligence” at all to find the appellant guilty of manslaughter in the fourth degree, but they were apparently confused by the last sentence of Instruction No. 5. Under these circumstances it is apparent from the evidence and the verdict that the jury found the appellant guilty of both types of conduct denounced as manslaughter in the fourth degree under 21-420, supra.
Upon all the facts and circumstances presented by the record in this case, we do not think the substantial rights of the appellant have been prejudiced by the misconduct of the jury.
The judgment of the lower court is affirmed. | [
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